e424b5
CALCULATION OF REGISTRATION FEE
|
|
|
|
|
|
|
Title of Each Class of Securities to Be Registered
|
|
|
Maximum Aggregate Offering Price
|
|
|
Amount of Registration Fee(1)
|
Debt Securities
|
|
|
$500,000,000
|
|
|
$35,650
|
|
|
|
|
|
|
|
|
|
(1) |
Calculated in accordance with Rule 457(r) under the
Securities Act of 1933, as amended.
|
Filed
pursuant to Rule 424(b)(5)
File Number 333-157502
Prospectus
Supplement
(To Prospectus Dated February 23, 2009)
$500,000,000
Johnson
Controls, Inc.
5.000% Senior Notes due
2020
The notes will mature on March 30, 2020. The notes will
bear interest at a rate of 5.000% per year, payable semiannually
on March 30 and September 30 of each year, beginning
September 30, 2010. We may redeem the notes in whole or in
part at any time at the redemption price described in this
prospectus supplement under Description of the
NotesOptional Redemption. If we experience a change
of control triggering event, we may be required to offer to
purchase the notes from holders.
The notes will be our senior unsecured obligations and will rank
equally with all of our other existing and future unsecured and
unsubordinated indebtedness.
Investing in the notes involves risks, including those
described in the Risk Factors section beginning on
page S-4
of this prospectus supplement.
|
|
|
|
|
|
|
|
|
|
|
Per Note
|
|
Total
|
|
Public offering price(1)
|
|
|
99.543
|
%
|
|
$
|
497,715,000
|
|
Underwriting discounts and commissions
|
|
|
0.650
|
%
|
|
$
|
3,250,000
|
|
Proceeds, before expenses, to us
|
|
|
98.893
|
%
|
|
$
|
494,465,000
|
|
(1) Plus accrued interest, if any,
from March 9, 2010.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or determined if this prospectus supplement or the
accompanying prospectus is truthful or complete. Any
representation to the contrary is a criminal offense.
The underwriters expect to deliver the notes to purchasers
through the book-entry delivery system of The Depository
Trust Company and its participants, including Clearstream
and the Euroclear System, on or about March 9, 2010.
Joint
Book-Running Managers
|
|
|
|
BofA
Merrill Lynch |
Citi |
Barclays Capital |
ING |
Senior Co-Managers
|
|
|
|
Banca
IMI |
Commerzbank Corporates & Markets |
Danske
Markets |
J.P.
Morgan |
|
|
|
Mizuho
Securities USA Inc. |
Standard
Chartered Bank |
U.S.
Bancorp Investments, Inc. |
Co-Managers
|
|
|
|
|
Credit
Agricole CIB |
KBC Financial Products |
RBS |
TD Securities |
Wells Fargo Securities |
March 4, 2010
TABLE OF
CONTENTS
|
|
|
|
|
|
|
Page
|
|
Prospectus Supplement
|
|
|
|
|
|
|
|
|
|
|
|
|
S-ii
|
|
|
|
|
S-ii
|
|
|
|
|
S-1
|
|
|
|
|
S-4
|
|
|
|
|
S-7
|
|
|
|
|
S-7
|
|
|
|
|
S-8
|
|
|
|
|
S-9
|
|
|
|
|
S-16
|
|
|
|
|
S-21
|
|
|
|
|
S-24
|
|
|
|
|
|
|
Prospectus
|
|
|
|
|
|
|
|
|
|
About This Prospectus
|
|
|
1
|
|
Cautionary Note For Forward-Looking Information
|
|
|
1
|
|
Johnson Controls, Inc.
|
|
|
1
|
|
Ratio of Earnings to Fixed Charges
|
|
|
2
|
|
Use of Proceeds
|
|
|
2
|
|
Description of Capital Stock
|
|
|
2
|
|
Description of the Debt Securities
|
|
|
10
|
|
Description of the Warrants to Purchase Common Stock or
Preferred Stock
|
|
|
25
|
|
Description of the Warrants to Purchase Debt Securities
|
|
|
25
|
|
Description of the Stock Purchase Contracts and Stock Purchase
Units
|
|
|
26
|
|
Selling Shareholders
|
|
|
27
|
|
Plan of Distribution
|
|
|
27
|
|
Where You Can Find More Information
|
|
|
29
|
|
Legal Matters
|
|
|
30
|
|
Experts
|
|
|
30
|
|
You should rely only on the information contained or
incorporated by reference in this prospectus supplement, the
accompanying prospectus or any free writing prospectus prepared
by us. We and the underwriters have not authorized anyone else
to provide you with different or additional information. We are
not, and the underwriters are not, making an offer of these
notes in any jurisdiction where the offer or sale is not
permitted. You should not assume that the information contained
or incorporated by reference in this prospectus supplement or in
the accompanying prospectus is accurate as of any date other
than the date on the front of that document.
S-i
ABOUT
THIS PROSPECTUS SUPPLEMENT
This document is in two parts. The first part is this prospectus
supplement, which describes the specific terms of the notes that
we are offering and other matters relating to us and our
financial condition. The second part is the attached base
prospectus, which gives more general information about
securities we may offer from time to time, some of which does
not apply to the notes we are offering. The description of the
terms of the notes in this prospectus supplement supplements the
description in the accompanying prospectus under
Description of the Debt Securities, and to the
extent it is inconsistent with that description, the information
in this prospectus supplement replaces the information in the
accompanying prospectus. Generally, when we refer to the
prospectus, we are referring to both parts of this document
combined. If information in the prospectus supplement differs
from information in the accompanying prospectus, you should rely
on the information in this prospectus supplement.
Except as used in Description of the Notes, as the
context otherwise requires, or as otherwise specified or used in
this prospectus supplement or the accompanying prospectus, the
terms we, our, us, the
company, JCI and Johnson Controls
refer to Johnson Controls, Inc. and its subsidiaries. References
in this prospectus supplement to U.S. dollars,
U.S. $ or $ are to the currency of
the United States of America.
The distribution of this prospectus supplement and the
accompanying prospectus and the offering of the notes in certain
jurisdictions may be restricted by law. Persons who come into
possession of this prospectus supplement and the accompanying
prospectus should inform themselves about and observe any such
restrictions. This prospectus supplement and the accompanying
prospectus do not constitute, and may not be used in connection
with, an offer or solicitation by anyone in any jurisdiction in
which such offer or solicitation is not authorized or in which
the person making such offer or solicitation is not qualified to
do so or to any person to whom it is unlawful to make such offer
or solicitation.
You should not consider any information in this prospectus
supplement or the accompanying prospectus to be investment,
legal or tax advice. You should consult your own counsel,
accountant and other advisors for legal, tax, business,
financial and related advice regarding the purchase of the
notes. We are not making any representation to you regarding the
legality of an investment in the notes by you under applicable
investment or similar laws.
You should read and consider all information contained or
incorporated by reference in this prospectus supplement and the
accompanying prospectus before making your investment decision.
CAUTIONARY
NOTE FOR FORWARD-LOOKING STATEMENTS
Certain statements in this prospectus supplement, the
accompanying prospectus
and/or other
offering material and the information incorporated by reference
in the prospectus
and/or other
offering material, other than purely historical information,
including estimates, projections, statements relating to our
business plans, objectives and expected operating results, and
the assumptions upon which those statements are based, are
forward-looking statements within the meaning of the
Private Securities Litigation Reform Act of 1995,
Section 27A of the Securities Act of 1933, as amended (the
Securities Act), and Section 21E of the
Securities Exchange Act of 1934, as amended (the Exchange
Act). These forward-looking statements generally are
identified by the words believe,
project, expect, anticipate,
estimate, forecast, outlook,
intend, strategy, plan,
may, should, will,
would, will be, will
continue, will likely result, or the negative
thereof or variations thereon or similar terminology generally
intended to identify forward-looking statements. Forward-looking
statements are based on current expectations and assumptions
that are subject to risks and uncertainties which may cause
actual results to differ materially from the forward-looking
statements. A detailed discussion of risks and uncertainties
that could cause actual results and events to differ materially
from such forward-looking statements has been included in the
section entitled Risk Factors in this prospectus
supplement and in our Annual Report on
Form 10-K
for the year ended September 30, 2009. We undertake no
obligation, and we disclaim any obligation, to update or revise
publicly any forward-looking statements, whether as a result of
new information, future events or otherwise.
S-ii
SUMMARY
This summary highlights information from this prospectus
supplement and the accompanying prospectus. It is not complete
and may not contain all of the information that you should
consider before investing in our notes. We encourage you to read
this prospectus supplement, the accompanying prospectus and the
documents incorporated by reference in their entirety before
making an investment decision, including the information set
forth under the heading Risk Factors.
Johnson
Controls, Inc.
Johnson Controls is a corporation organized under the laws of
the State of Wisconsin. We bring ingenuity to the places where
people live, work and travel. By integrating technologies,
products and services, we create smart environments that
redefine the relationships between people and their
surroundings. We strive to create a more comfortable, safe and
sustainable world through our products and services to millions
of vehicles, homes and commercial buildings. Johnson Controls
provides innovative automotive interiors that help make driving
more comfortable, safe and enjoyable. For buildings, we offer
products and services that optimize energy use and improve
comfort and security. We also provide batteries for automobiles
and hybrid electric vehicles, along with related systems
engineering, marketing and service expertise.
Our building efficiency business is a global market leader in
designing, producing, marketing and installing integrated
heating, ventilating and air conditioning (HVAC) systems,
building management systems, controls, security and mechanical
equipment. In addition, our building efficiency business
provides technical services, energy management consulting and
operations of entire real estate portfolios for the
non-residential buildings market. We also provide residential
air conditioning and heating systems.
Our automotive experience business is one of the worlds
largest automotive suppliers, providing innovative interior
systems through our design and engineering expertise. Our
technologies extend into virtually every area of the interior
including seating and overhead systems, door systems, floor
consoles, instrument panels, cockpits and integrated
electronics. Our customers include most of the worlds
major automakers.
Our power solutions business is a leading global supplier of
lead-acid automotive batteries for virtually every type of
passenger car, light truck and utility vehicle. We serve both
automotive original equipment manufacturers and the general
vehicle battery aftermarket. We offer Absorbent Glass Mat,
nickel-metal-hydride and lithium-ion battery technologies to
power hybrid vehicles.
Our principal executive offices are located at 5757 North Green
Bay Avenue, Milwaukee,
Wisconsin 53209-4408,
and our telephone number is
(414) 524-1200.
S-1
The
Offering
The brief summary below describes the principal terms of the
notes. Certain of the terms and conditions described below are
subject to important limitations and exceptions. The
Description of the Notes section of this prospectus
supplement and the Description of the Debt
Securities section of the accompanying prospectus contain
a more detailed description of the terms and conditions of the
notes. As used in this section, we, our,
us and JCI refer to Johnson Controls,
Inc. and not to its subsidiaries.
|
|
|
Issuer |
|
Johnson Controls, Inc. |
|
Notes Offered |
|
$500,000,000 aggregate principal amount of 5.000% senior
notes due 2020. |
|
Maturity |
|
The notes will mature on March 30, 2020. |
|
Interest Rate |
|
The notes will bear interest at a rate of 5.000% per year. |
|
Interest Payment Dates |
|
The interest will be payable semiannually in arrears on
March 30 and September 30 of each year, beginning on
September 30, 2010. |
|
Optional Redemption |
|
We may redeem the notes at any time or from time to time, in
whole or in part, at the redemption price equal to the greater
of: |
|
|
|
100% of the principal amount
of the notes being redeemed; and
|
|
|
|
the sum of the present
values of the remaining scheduled payments of principal and
interest on the notes to be redeemed (not including any portion
of such payments of interest accrued to the date of redemption),
discounted to the date of redemption on a semi-annual basis
(assuming a
360-day year
consisting of twelve
30-day
months) at the applicable Treasury Rate (as defined in this
prospectus supplement), plus 25 basis points.
|
|
|
|
We will also pay the accrued and unpaid interest on the notes
being redeemed to the redemption date. |
|
Offer to Repurchase Upon Change of Control
Triggering Event |
|
If we experience a Change of Control Triggering
Event (as defined in this prospectus supplement) with
respect to the notes, unless we have exercised our right to
redeem the notes, each holder of notes will have the right to
require us to repurchase all or a portion of such holders
notes at a price equal to 101% of the principal amount of the
notes repurchased plus accrued and unpaid interest, if any, as
described more fully under Description of the
NotesOffer to Repurchase Upon Change of Control Triggering
Event. |
|
Ranking |
|
The notes will be our senior unsecured obligations and will rank
equally with all of our existing and future unsecured and
unsubordinated indebtedness. |
|
Certain Covenants |
|
The indenture governing the notes will, among other things,
limit our and our subsidiaries ability to: |
|
|
|
incur secured indebtedness;
|
|
|
|
enter into certain sale and
leaseback transactions; and
|
|
|
|
enter into certain mergers,
consolidations and transfers of substantially all of our assets.
|
S-2
|
|
|
|
|
The above restrictions are subject to significant exceptions.
See Description of the Debt SecuritiesCovenants
Applicable to Senior Debt Securities and
Merger in the accompanying prospectus. |
|
Use of Proceeds |
|
We will use the net proceeds from the sale of the notes, which
will be approximately $494.2 million, after deducting
underwriting discounts and commissions and our offering expenses
for general corporate purposes, including to repay short-term
indebtedness that we have incurred to finance working capital
requirements. See Use of Proceeds. |
|
Denominations |
|
The notes will be issued only in denominations of $2,000 and any
integral multiple of $1,000 in excess thereof. |
|
Form of Notes |
|
We will issue the notes in the form of one or more fully
registered global notes registered in the name of the nominee of
The Depository Trust Company (DTC). Investors
may elect to hold the interests in the global notes through any
of DTC, Clearstream Luxembourg or the Euroclear System, as
described under the heading Description of the
NotesDelivery and Form. |
|
Further Issues |
|
We may, without the consent of the holders, reopen
the notes and issue additional notes that have the same ranking,
interest rate, maturity date and other terms as the notes being
offered by this prospectus supplement (except for the issue
date, the public offering price and, in some cases, the first
interest payment date), as described under Description of
the NotesPrincipal Amount; Maturity. These
additional notes, together with the notes offered by this
prospectus supplement, would constitute a single series of debt
securities under the indenture. |
|
Risk Factors |
|
You should consider carefully all the information set forth and
incorporated by reference in this prospectus supplement and the
accompanying prospectus and, in particular, you should evaluate
the specific factors set forth under Risk Factors
beginning on
page S-4
of this prospectus supplement before deciding whether to invest
in the notes. |
|
Governing Law |
|
New York. |
|
Trustee |
|
U.S. Bank National Association. |
S-3
RISK
FACTORS
Investing in the notes involves a high degree of risk. In
addition to the other information contained in this prospectus
supplement, the accompanying prospectus and the information
incorporated by reference herein and therein, you should
consider carefully the following factors relating to us and the
notes before making an investment in the notes offered hereby.
If any of the following events actually occur, our business,
results of operations, financial condition, cash flows or
prospects could be materially adversely affected, which in turn
could adversely affect the trading price of the notes. You may
lose all or part of your original investment.
Risks
Related to the Notes
The
notes are effectively subordinated to any secured debt and any
liabilities of our subsidiaries.
The notes will rank senior in right of payment to existing and
future indebtedness that is expressly subordinated in right of
payment to the notes; equal in right of payment to our existing
and future indebtedness that is not so subordinated; junior in
right of payment to any future secured indebtedness to the
extent of the value of the assets securing such indebtedness;
and structurally junior to all existing and future indebtedness
and other liabilities of our subsidiaries. In the event of our
bankruptcy, liquidation, reorganization or other winding up, our
assets that secure debt ranking senior or equal in right of
payment to the notes will be available to pay obligations on the
notes only after any secured debt has been repaid in full from
these assets. There may not be sufficient assets remaining to
pay amounts due on any or all of the notes then outstanding. The
indenture governing the notes does not prohibit us from
incurring additional indebtedness, nor does it prohibit any of
our subsidiaries from incurring additional liabilities. The
terms of the indenture limit our ability to secure additional
debt without also securing the notes, to enter into sale and
leaseback transactions and to transfer certain of our assets to
unrestricted subsidiaries. However, these limitations are
subject to numerous exceptions. See Description of the
Debt SecuritiesCovenants Applicable to Senior Debt
Securities in the accompanying prospectus.
As of December 31, 2009, we had $3.3 billion of
outstanding indebtedness on a consolidated basis and our
subsidiaries had outstanding indebtedness of $0.1 billion.
After giving effect to the issuance of the notes, and the use of
proceeds therefrom, our total consolidated indebtedness would
have been $3.5 billion as of December 31, 2009.
The
notes are our obligations only, and a portion of our operations
are conducted through, and a portion of our consolidated assets
are held by, our subsidiaries.
The notes are our obligations exclusively and are not guaranteed
by any of our subsidiaries. A portion of our consolidated assets
are held by our subsidiaries. Accordingly, our ability to
service our debt, including the notes, depends partially on the
results of operations of our subsidiaries and upon the ability
of such subsidiaries to provide us with cash, whether in the
form of dividends, loans or otherwise, to pay amounts due on our
obligations, including the notes. Our subsidiaries are separate
and distinct legal entities and have no obligation, contingent
or otherwise, to make payments on the notes or to make any funds
available for that purpose. In addition, dividends, loans or
other distributions to us from such subsidiaries may be subject
to contractual and other restrictions and are subject to other
business considerations.
Servicing
our debt requires a significant amount of cash, and we may not
have sufficient cash flow from our business to pay our
substantial debt.
Our ability to make scheduled payments of the principal of, to
pay interest on or to refinance our indebtedness, including the
notes, depends on our future performance, which is subject to
economic, financial, competitive and other factors beyond our
control. Our business may not continue to generate cash flow
from operations in the future sufficient to service our debt and
make necessary capital expenditures. If we are unable to
generate such cash flow, we may be required to adopt one or more
alternatives, such as selling assets, restructuring debt or
obtaining additional equity capital on terms that may be onerous
or highly dilutive. Our ability to refinance our indebtedness
will depend on the capital markets and our financial condition
at
S-4
such time. We may not be able to engage in any of these
activities or engage in these activities on desirable terms,
which could result in a default on our debt obligations.
The
notes do not restrict our ability to incur additional debt or
prohibit us from taking other action that could negatively
impact holders of the notes.
We are not restricted under the terms of the indenture or the
notes from incurring additional indebtedness. The terms of the
indenture limit our ability to secure additional debt without
also securing the notes, to enter into sale and leaseback
transactions and to transfer certain of our assets to
unrestricted subsidiaries. However, these limitations are
subject to numerous exceptions. See Description of the
Debt SecuritiesCovenants Applicable to Senior Debt
Securities in the accompanying prospectus. In addition,
the notes do not require us to achieve or maintain any minimum
financial results relating to our financial position or results
of operations. Our ability to recapitalize, incur additional
debt, secure existing or future debt or take a number of other
actions that are not limited by the terms of the indenture and
the notes, including repurchasing subordinated indebtedness or
common stock or to transfer assets to our parent if we were to
form a holding company, could have the effect of diminishing our
ability to make payments on the notes when due, causing a loss
in the trading value of your notes, if any, and increasing the
risk that the credit rating of the notes is lowered or withdrawn.
We may
not have sufficient cash to repurchase the notes upon the
occurrence of a Change of Control Triggering
Event.
As described under Description of the NotesOffer to
Repurchase upon Change of Control Triggering Event, we
will be required to offer to repurchase all of the notes upon
the occurrence of a Change of Control Triggering Event. We may
not, however, have sufficient cash at that time or have the
ability to arrange necessary financing on acceptable terms to
repurchase the notes under such circumstances. If we are unable
to repurchase the notes upon the occurrence of a Change of
Control Triggering Event, it would result in an event of default
under the indenture. A default under the indenture could also
lead to a default under the agreements governing our existing or
future indebtedness. If the repayment of the related
indebtedness were to be accelerated after any applicable notice
or grace periods, we may not have sufficient funds to repay the
indebtedness and repurchase the notes.
Our
financial performance and other factors could adversely impact
our ability to make payments on the notes.
Our ability to make scheduled payments with respect to our
indebtedness, including the notes, will depend on our financial
and operating performance, which, in turn, is subject to
prevailing economic conditions and to financial, business and
other factors beyond our control.
We
cannot assure you that an active trading market will develop for
the notes.
Prior to this offering, there has been no trading market for the
notes. We do not intend to apply for listing of the notes on any
securities exchange or to arrange for quotation on any
interdealer quotation system. We have been informed by the
underwriters that they intend to make a market in the notes
after the offering is completed. However, the underwriters may
cease their market-making at any time without notice. In
addition, the liquidity of the trading market in the notes, and
the market price quoted for the notes, may be adversely affected
by changes in the overall market for this type of security and
by changes in our financial performance or prospects or in the
prospects for companies in our industry generally. As a result,
we cannot assure you that an active trading market will develop
for the notes. If an active trading market does not develop or
is not maintained, the market price and liquidity of the notes
may be adversely affected. In that case you may not be able to
sell your notes at a particular time or you may not be able to
sell your notes at a favorable price.
S-5
Ratings
of the notes may not reflect all risks of an investment in the
notes.
The notes will be rated by at least one nationally recognized
statistical rating organization. The ratings of our notes will
primarily reflect our financial strength and will change in
accordance with the rating of our financial strength. Any rating
is not a recommendation to purchase, sell or hold any particular
security, including the notes. These ratings do not comment as
to market price or suitability for a particular investor. In
addition, ratings at any time may be lowered or withdrawn in
their entirety. The ratings of the notes may not reflect the
potential impact of all risks related to structure and other
factors on any trading market for, or trading value of, your
notes.
Our
management will have broad discretion in allocating the net
proceeds of this offering.
Our management has significant flexibility in applying the net
proceeds we expect to receive in this offering. We intend to use
the net proceeds from this offering for general corporate
purposes, including to repay short-term indebtedness that we
have incurred to fund working capital requirements. Because the
net proceeds are not required to be allocated to any specific
investment or transaction, you cannot determine at this time the
value or propriety of our application of the proceeds, and you
may not agree with our decisions. In addition, our use of the
proceeds from this offering may not yield a significant return
or any return at all. The failure by our management to apply
these funds effectively could have a negative impact on our
business, results of operations or financial condition. See
Use of Proceeds.
An
increase in market interest rates could result in a decrease in
the value of the notes.
In general, as market interest rates rise, notes bearing
interest at a fixed rate generally decline in value because the
premium, if any, over market interest rates will decline.
Consequently, if you purchase notes and market interest rates
increase, the market value of your notes may decline. We cannot
predict the future level of market interest rates.
If you
are able to resell your notes, many other factors may affect the
price you receive, which may be lower than you believe to be
appropriate.
If you are able to resell your notes, the price you receive will
depend on many other factors that may vary over time, including:
|
|
|
|
|
our financial performance;
|
|
|
|
the amount of indebtedness we have outstanding;
|
|
|
|
the market for similar securities;
|
|
|
|
market interest rates;
|
|
|
|
the liquidity of the market in which the notes trade;
|
|
|
|
the redemption and repayment features of the notes to be
sold; and
|
|
|
|
the time remaining to maturity of your notes.
|
As a result of these factors, you may only be able to sell your
notes at prices below those you believe to be appropriate,
including prices below the price you paid for them.
S-6
USE OF
PROCEEDS
We will use the net proceeds that we receive from the sale of
the notes, which will be approximately $494.2 million, after
deducting underwriting discounts and commissions and our
offering expenses, for general corporate purposes, including the
repayment of short-term indebtedness that we have incurred to
finance working capital requirements. As of December 31,
2009, we had various forms of short-term indebtedness that had a
weighted average maturity of 45 days and carried a weighted
average annual interest rate of 1.25%.
RATIO OF
EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed
charges for us for each year in the five year period ended
September 30, 2009, and for the three months ended
December 31, 2009.
|
|
|
|
|
|
|
|
|
|
|
Year Ended September 30,
|
|
Three Months Ended
|
2005
|
|
2006
|
|
2007
|
|
2008
|
|
2009
|
|
December 31, 2009
|
|
5.5x
|
|
4.1x
|
|
5.0x
|
|
4.1x
|
|
(a)
|
|
5.8x
|
|
|
|
(a) |
|
Total earnings were insufficient to cover fixed charges by
89.2 million in the year ended September 30, 2009. |
For the purposes of computing this ratio, earnings
consist of income from continuing operations before income
taxes, minority interest in earnings or losses of consolidated
subsidiaries and income from equity affiliates plus
(a) amortization of previously capitalized interest,
(b) distributed income from equity affiliates and
(c) fixed charges, minus interest capitalized during the
period. Fixed charges consist of (i) interest
incurred and amortization of debt expense plus (ii) the
portion of rent expense representative of the interest factor.
We did not have any preferred stock outstanding and we did not
pay or accrue any preferred stock dividends during the periods
presented above.
S-7
CAPITALIZATION
The following table sets forth, as of December 31, 2009,
our consolidated cash and cash equivalents, short-term debt and
total long-term debt and stockholders equity on an actual
basis and as adjusted to give effect to the sale of the notes
and the application of the net proceeds to repay short-term
indebtedness. You should read this table in conjunction with our
consolidated financial statements and the notes thereto which
are incorporated by reference.
|
|
|
|
|
|
|
|
|
|
|
At December 31, 2009
|
|
|
|
|
|
|
As
|
|
|
|
Actual
|
|
|
Adjusted
|
|
|
|
(dollars in millions)
|
|
|
Cash and cash equivalents
|
|
$
|
791
|
|
|
$
|
985
|
|
|
|
|
|
|
|
|
|
|
Short-term debt
|
|
$
|
361
|
|
|
$
|
61
|
|
|
|
|
|
|
|
|
|
|
Long-term debt:
|
|
|
|
|
|
|
|
|
Notes due from 2011 2046
|
|
$
|
2,780
|
|
|
$
|
2,780
|
|
5.000% senior notes due 2020 offered hereby
|
|
|
|
|
|
|
500
|
|
Other
|
|
|
303
|
|
|
|
303
|
|
|
|
|
|
|
|
|
|
|
Current portion of long-term debt
|
|
|
6
|
|
|
|
6
|
|
|
|
|
|
|
|
|
|
|
Total long-term debt, net of current portion
|
|
|
3,077
|
|
|
|
3,577
|
|
|
|
|
|
|
|
|
|
|
Stockholders equity
|
|
|
|
|
|
|
|
|
Common stock
|
|
|
9
|
|
|
|
9
|
|
Capital in excess of par value
|
|
|
2,383
|
|
|
|
2,383
|
|
Retained earnings
|
|
|
6,916
|
|
|
|
6,916
|
|
Treasury stock, at cost
|
|
|
(73)
|
|
|
|
(73)
|
|
Accumulated other comprehensive income
|
|
|
118
|
|
|
|
118
|
|
Equity attributable to noncontrolling interests
|
|
|
203
|
|
|
|
203
|
|
|
|
|
|
|
|
|
|
|
Total stockholders equity
|
|
|
9,556
|
|
|
|
9,556
|
|
|
|
|
|
|
|
|
|
|
Total long-term debt and stockholders equity
|
|
$
|
12,633
|
|
|
$
|
13,133
|
|
|
|
|
|
|
|
|
|
|
S-8
DESCRIPTION
OF THE NOTES
General
For purposes of the accompanying prospectus, the notes are
Senior Debt Securities. We refer you to the
Description of the Debt Securities in the
accompanying prospectus, which you should read carefully. The
following description of the particular terms of the notes
offered by this prospectus supplement supplements, and to the
extent inconsistent with the description in the accompanying
prospectus replaces, that description. The notes will be issued
under an Indenture, dated as of January 17, 2006, which we
refer to as the indenture, between us and
U.S. Bank National Association (as successor trustee to
JPMorgan Chase Bank). U.S. Bank National Association will
be the trustee for the notes. Except as otherwise defined in
this prospectus supplement, capitalized definitional terms used
in this prospectus supplement have the meanings specified in the
accompanying prospectus. The notes will be issued in the form of
one or more fully registered global securities which will be
deposited with, or on behalf of, The Depository
Trust Company, or DTC, as the depositary, and registered in
the name of the depositarys nominee. See
Delivery and Form below and Description
of the Debt SecuritiesBook-Entry, Delivery and
Settlement in the accompanying prospectus.
Principal
Amount; Maturity
We will issue a total of $500,000,000 initial principal amount
of notes that will mature on March 30, 2020. If the date of
maturity falls on a day that is not a business day, the related
payment of principal and interest will be made on the next
business day as if it were made on the date such payment was
due, and no interest will accrue on the amounts so payable for
the period from and after such date to the next business day.
The notes are issuable only in registered form without coupons
in denominations of $2,000 and any integral multiples of $1,000
in excess thereof. We may, without the consent of the holders,
reopen the notes and issue additional notes that
have the same ranking, interest rate, maturity date and other
terms as the notes being offered by this prospectus supplement
(except for the issue date, the public offering price and, in
some cases, the first interest payment date). These additional
notes, together with the notes offered by this prospectus
supplement, would constitute a single series of debt securities
under the indenture.
Interest
The notes will bear interest at an annual rate of 5.000% per
year. Interest will accrue from March 9, 2010. Interest is
payable semiannually on March 30 and September 30 of
each year to the holders of record at the close of business on
March 15 and September 15 (whether or not that date is
a business day), as the case may be, immediately preceding such
interest payment date. Interest on the notes will be computed on
the basis of a
360-day year
of twelve
30-day
months. The first interest payment date will be
September 30, 2010. If any interest payment date is not a
business day, the payment of interest will be made on the next
succeeding business day and no additional interest will accrue.
Optional
Redemption
The notes are redeemable, in whole at any time or in part from
time to time, at our option at a redemption price equal to the
greater of:
(1) 100% of the principal amount of the
notes being redeemed; and
(2) the sum of the present values of the
remaining scheduled payments of principal and interest on the
notes to be redeemed (not including any portion of such payments
of interest accrued to the date of redemption), discounted to
the date of redemption on a semi-annual basis (assuming a
360-day year
consisting of twelve
30-day
months) at the applicable Treasury Rate (as defined below), plus
25 basis points,
plus, in each case, accrued and unpaid interest on the notes
being redeemed to the redemption date. Notwithstanding the
foregoing, installments of interest on the notes that are due
and payable on interest payment dates falling on or prior to a
redemption date will be payable on the interest payment date to
the
S-9
registered holders as of the close of business on the relevant
record date according to the notes and the indenture.
Comparable Treasury Issue means the
U.S. Treasury security selected by an Independent
Investment Banker as having a maturity comparable to the
remaining term (the Remaining Life) of the notes to
be redeemed that would be utilized, at the time of selection and
in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to
the remaining term of such notes.
Comparable Treasury Price means, with respect to any
redemption date, (1) the average of five Reference Treasury
Dealer Quotations for such redemption date, after excluding the
highest and lowest Reference Treasury Dealer Quotations, or
(2) if the Independent Investment Banker obtains fewer than
five such Reference Treasury Dealer Quotations, the average of
all such quotations.
Independent Investment Banker means one of the
Reference Treasury Dealers appointed by us.
Reference Treasury Dealer means (1) each of
Banc of America Securities LLC, Citigroup Global Markets Inc.
and Barclays Capital Inc. (or their respective affiliates that
are primary U.S. Government securities dealers); provided,
however, that if any of the foregoing shall cease to be a
primary U.S. Government securities dealer in New York City
(a Primary Treasury Dealer), we will substitute
therefor another Primary Treasury Dealer, and (2) any other
Primary Treasury Dealer selected by us after consultation with
the Independent Investment Banker.
Reference Treasury Dealer Quotations means, with
respect to each Reference Treasury Dealer and any redemption
date, the average, as determined by the Independent Investment
Banker, of the bid and asked prices for the Comparable Treasury
Issue (expressed in each case as a percentage of its principal
amount) quoted in writing to the Independent Investment Banker
at 5:00 p.m., New York City time, on the third business day
preceding such redemption date.
Treasury Rate means, with respect to any redemption
date, the rate per annum equal to the semi-annual equivalent
yield to maturity of the Comparable Treasury Issue, calculated
using a price for the Comparable Treasury Issue (expressed as a
percentage of its principal amount) equal to the Comparable
Treasury Price for such redemption date. The Treasury Rate will
be calculated on the third business day preceding the redemption
date.
Holders of notes to be redeemed will receive notice thereof by
first-class mail at least 30 and not more than 60 days
prior to the date fixed for redemption. If fewer than all of the
notes are to be redeemed, the trustee will select, not more than
60 days prior to the redemption date, the particular notes
or portions thereof for redemption from the outstanding not
previously called by such method as the trustee deems fair and
appropriate.
Sinking
Fund
The notes will not be entitled to any sinking fund.
Offer to
Repurchase Upon Change of Control Triggering Event
Upon the occurrence of a Change of Control Triggering Event with
respect to the notes, unless we have exercised our right to
redeem the notes as described under Optional
Redemption by giving irrevocable notice to the trustee in
accordance with the indenture, each holder of notes will have
the right to require us to purchase all or a portion of such
holders notes pursuant to the offer described below (the
Change of Control Offer), at a purchase price equal
to 101% of the principal amount thereof plus accrued and unpaid
interest, if any, up to but not including the date of purchase
(the Change of Control Payment), subject to the
rights of holders of notes on the relevant record date to
receive interest due and owing on the relevant interest payment
date.
Within 30 days following the date upon which the Change of
Control Triggering Event occurs or, at our option, prior to any
Change of Control but after the public announcement of the
pending Change of Control, we will be required to send, by first
class mail, a notice to each holder of notes, with a copy to the
trustee,
S-10
which notice will govern the terms of the Change of Control
Offer. Such notice will state, among other things, the purchase
date, which must be no earlier than 30 days nor later than
60 days from the date such notice is mailed, other than as
may be required by law (the Change of Control Payment
Date). The notice, if mailed prior to the date of
consummation of the Change of Control, will state that the
Change of Control Offer is conditioned on the Change of Control
being consummated on or prior to the Change of Control Payment
Date.
On the Change of Control Payment Date, we will, to the extent
lawful:
|
|
|
|
|
accept or cause a third party to accept for payment all notes or
portions of notes properly tendered pursuant to the Change of
Control Offer;
|
|
|
|
deposit or cause a third party to deposit with the paying agent
an amount equal to the Change of Control Payment in respect of
all notes or portions of notes properly tendered; and
|
|
|
|
deliver or cause to be delivered to the trustee the notes
properly accepted together with an officers certificate
stating the aggregate principal amount of notes or portions of
notes being repurchased.
|
We will not be required to make a Change of Control Offer with
respect to the notes if a third party makes such an offer in the
manner, at the times and otherwise in compliance with the
requirements for such an offer made by us and such third party
purchases all the notes properly tendered and not withdrawn
under its offer. In addition, we will not repurchase any notes
if there has occurred and is continuing on the Change of Control
Payment Date an event of default under the indenture, other than
a default in the payment of the Change of Control Payment on the
Change of Control Payment Date.
We must comply in all material respects with the requirements of
Rule 14e-1
under the Securities Exchange Act of 1934, as amended (the
Exchange Act), and any other securities laws and
regulations thereunder to the extent those laws and regulations
are applicable in connection with the repurchase of the notes as
a result of a Change of Control Triggering Event. To the extent
that the provisions of any such securities laws or regulations
conflict with the Change of Control Offer provisions of the
notes, we will be required to comply with those securities laws
and regulations and will not be deemed to have breached our
obligations under the Change of Control Offer provisions of the
notes by virtue of any such conflict.
For purposes of the foregoing discussion of a Change of Control
Offer, the following definitions are applicable:
Change of Control means the occurrence of any
of the following after the date of issuance of the notes:
(1) the direct or indirect sale, lease, transfer,
conveyance or other disposition (other than by way of merger or
consolidation), in one or a series of related transactions, of
all or substantially all of our assets and the assets of our
subsidiaries taken as a whole to any person or
group (as those terms are used in
Section 13(d)(3) of the Exchange Act) other than to us or
one of our subsidiaries;
(2) the consummation of any transaction (including, without
limitation, any merger or consolidation) the result of which is
that any person or group (as those terms
are used in Section 13(d)(3) of the Exchange Act) (other
than Johnson Controls or one of our subsidiaries) becomes the
beneficial owner (as defined in
Rules 13d-3
and 13d-5
under the Exchange Act), directly or indirectly, of our Voting
Stock representing a majority of the voting power of our
outstanding Voting Stock;
(3) we consolidate with, or merge with or into, any Person,
or any Person consolidates with, or merges with or into, us, in
any such event pursuant to a transaction in which any of our
outstanding Voting Stock or Voting Stock of such other Person is
converted into or exchanged for cash, securities or other
property, other than any such transaction where our Voting Stock
outstanding immediately prior to such transaction constitutes,
or is converted into or exchanged for, Voting Stock representing
a majority of the voting power of the Voting Stock of the
surviving Person immediately after giving effect to such
transaction;
(4) the first day on which the majority of the members of
the board of directors of the Company cease to be Continuing
Directors; or
(5) the adoption by our shareholders of a plan relating to
our liquidation or dissolution.
S-11
Notwithstanding the foregoing, a transaction will not be deemed
to involve a change of control under clause (2) above if
(1) we become a direct or indirect wholly-owned subsidiary
of a holding company and (2)(A) the direct or indirect holders
of the Voting Stock of such holding company immediately
following that transaction are substantially the same as the
holders of our Voting Stock immediately prior to that
transaction or (B) immediately following that transaction
no person (as that term is used in Section 13(d)(3) of the
Exchange Act) (other than a holding company satisfying the
requirements of this sentence) is the beneficial owner, directly
or indirectly, of more than 50% of the Voting Stock of such
holding company.
Change of Control Triggering Event means,
with respect to the notes, the notes cease to be rated
Investment Grade by each of the Rating Agencies on any date
during the period (the Trigger Period) commencing
60 days prior to the first public announcement by us of any
Change of Control (or pending Change of Control) and ending
60 days following consummation of such Change of Control
(which Trigger Period will be extended following consummation of
a Change of Control for so long as any of the Rating Agencies
has publicly announced that it is considering a possible ratings
change). However, a Change of Control Triggering Event otherwise
arising by virtue of a particular reduction in rating shall not
be deemed to have occurred in respect of a particular Change of
Control (and thus shall not be deemed a Change of Control
Triggering Event for purposes of the definition of Change of
Control Repurchase Event) if the Rating Agencies making the
reduction in rating to which this definition would otherwise
apply do not announce or publicly confirm or inform the trustee
in writing at our request that the reduction was the result, in
whole or in part, of any event or circumstance comprised of or
arising as a result of, or in respect of, the applicable Change
of Control (whether or not the applicable Change of Control
shall have occurred at the time of the Change in Control
Triggering Event). If a Rating Agency is not providing a rating
for the notes at the commencement of any Trigger Period, the
notes will be deemed to have ceased to be rated Investment Grade
by such Rating Agency during that Trigger Period.
Notwithstanding the foregoing, no Change of Control Triggering
Event will be deemed to have occurred in connection with any
particular Change of Control unless and until such Change of
Control has actually been consummated.
Continuing Director means, as of any date of
determination, any member of our board of directors who:
(1) was a member of our board of
directors on the date of the issuance of the notes; or
(2) was nominated for election or elected
or appointed to our board of directors with the approval of a
majority of the Continuing Directors who were members of our
board of directors at the time of such nomination, election or
appointment (either by a specific vote or by approval of our
proxy statement in which such member was named as a nominee for
election as a director, without objection to such nomination).
Investment Grade means a rating of Baa3 or
better by Moodys (or its equivalent under any successor
rating category of Moodys) and a rating of BBB-or better
by S&P (or its equivalent under any successor rating
category of S&P), and the equivalent investment grade
credit rating from any replacement rating agency or rating
agencies selected by us under the circumstances permitting us to
select a replacement rating agency and in the manner for
selecting a replacement rating agency, in each case as set forth
in the definition of Rating Agency.
Moodys means Moodys Investors
Service, Inc., a subsidiary of Moodys Corporation, and its
successors.
Person means any individual, corporation,
partnership, limited liability company, business trust,
association, joint-stock company, joint venture, trust,
incorporated or unincorporated organization or government or any
agency or political subdivision thereof.
Rating Agency means each of Moodys and
S&P; provided, that if any of Moodys or
S&P ceases to provide rating services to issuers or
investors, we may appoint another nationally recognized
statistical rating
S-12
organization within the meaning of
Rule 15c3-1(c)(2)(vi)(F)
under the Exchange Act as a replacement for such Rating Agency;
provided, that we shall give notice of such appointment
to the trustee.
S&P means Standard &
Poors Ratings Services, a division of The McGraw-Hill
Companies, Inc., and its successors.
Voting Stock of any specified Person as of
any date means the capital stock of such Person that is at the
time entitled to vote generally in the election of the board of
directors of such Person.
The definition of Change of Control includes a phrase relating
to the direct or indirect sale, lease, transfer, conveyance or
other disposition of all or substantially all of the
properties or assets of Johnson Controls and its subsidiaries
taken as a whole. Although there is a limited body of case law
interpreting the phrase substantially all, there is
no precise, established definition of the phrase under
applicable law. Accordingly, the applicability of the
requirement that we offer to repurchase the notes as a result of
a sale, lease, transfer, conveyance or other disposition of less
than all of the assets of Johnson Controls and its subsidiaries
taken as a whole to another person or
group (as those terms are used in
Section 13(d)(3) of the Exchange Act) may be uncertain.
Defeasance
The defeasance provisions of Article Thirteen of the
indenture will apply to the notes. See Description of the
Debt SecuritiesCovenant Defeasance and Satisfaction and
Discharge of a Series in the accompanying prospectus.
Same-Day
Settlement and Payment
Settlement for the notes will be made in
same-day
funds. All payments of principal and interest will be made by us
in immediately available funds. To the extent any notes are held
by DTC, such notes will trade in DTCs
Same-Day
Funds Settlement System until maturity, and therefore DTC will
require secondary trading activity in the notes to be settled in
immediately available funds. Please see Description of the
Debt SecuritiesBook-Entry, Delivery and Settlement
in the accompanying prospectus for a further description of book
entry procedures.
Delivery
and Form
The notes will be represented by one or more permanent global
certificates (each a Global Note and collectively,
the Global Notes) deposited with, or on behalf of,
DTC and registered in the name of Cede & Co.
(DTCs partnership nominee). The notes will be available
for purchase in denominations of $2,000 and integral multiples
of $1,000 in excess thereof in book-entry form only. Unless and
until certificated notes are issued under the limited
circumstances described in the accompanying prospectus, no
beneficial owner of a note shall be entitled to receive a
definitive certificate representing a note. So long as DTC or
any successor depositary (collectively, the
Depositary) or its nominee is the registered owner
of the Global Notes, the Depositary, or such nominee, as the
case may be, will be considered to be the sole owner or holder
of the senior notes for all purposes of the indenture.
Beneficial interests in the Global Notes will be represented
through book-entry accounts of financial institutions acting on
behalf of beneficial owners as direct and indirect participants
in DTC. Investors may elect to hold interests in the Global
Notes through DTC either directly if they are participants in
DTC or indirectly through organizations that are participants in
DTC.
Clearstream. Clearstream Banking, S.A. is
incorporated under the laws of Luxembourg as a professional
depositary. Clearstream holds securities for its participating
organizations (Clearstream Participants) and
facilitates the clearance and settlement of securities
transactions between Clearstream Participants through electronic
book-entry changes in accounts of Clearstream Participants,
thereby eliminating the need for physical movement of
certificates. Clearstream provides Clearstream Participants
with, among other things, services for safekeeping,
administration, clearance and establishment of internationally
traded securities and securities lending and borrowing.
Clearstream interfaces with domestic markets in several
countries. As a
S-13
professional depositary, Clearstream is subject to regulation by
the Luxembourg Monetary Institute. Clearstream Participants are
recognized financial institutions around the world, including
underwriters, securities brokers and dealers, banks, trust
companies, clearing corporations and certain other
organizations, and may include the underwriters. Indirect access
to Clearstream is also available to others, such as banks,
brokers, dealers and trust companies that clear through or
maintain a custodial relationship with a Clearstream Participant
either directly or indirectly.
Distributions with respect to notes held beneficially through
Clearstream will be credited to cash accounts of Clearstream
Participants in accordance with its rules and procedures to the
extent received by the U.S. Depositary for Clearstream.
Euroclear. Euroclear Bank SP./N.V. was created in
1968 to hold securities for participants of Euroclear
(Euroclear Participants) and to clear and settle
transactions between Euroclear Participants through simultaneous
electronic book-entry delivery against payment, thereby
eliminating the need for physical movement of certificates and
any risk from lack of simultaneous transfers of securities and
cash. Euroclear includes various other services, including
securities lending and borrowing and interfaces with domestic
markets in several markets in several countries. Euroclear is
operated by Euroclear Bank S.A./N.V. (the Euroclear
Operator), under contract with Euro-clear Clearance
Systems S.C., a Belgian cooperative corporation (the
Cooperative). All operations are conducted by the
Euroclear Operator, and all Euroclear securities clearance
accounts and Euroclear cash accounts are accounts with the
Euroclear Operator, not the Cooperative. The Cooperative
establishes policy for Euroclear on behalf of Euroclear
Participants. Euroclear Participants include banks (including
central banks), securities brokers and dealers and other
professional financial intermediaries and may include the
underwriters. Indirect access to Euroclear is also available to
other firms that clear through or maintain a custodial
relationship with a Euroclear Participant, either directly or
indirectly.
The Euroclear Operator is regulated and examined by the Belgian
Banking Commission.
Links have been established among DTC, Clearstream and Euroclear
to facilitate the initial issuance of the senior notes sold
outside of the United States and cross-market transfers of the
senior notes associated with secondary market trading.
Although DTC, Clearstream and Euroclear have agreed to the
procedures provided 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 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 senior notes against
payment. After settlement, Clearstream or Euroclear will credit
its participants account. Credit for the 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 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
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 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 participants
account will instead be valued as of the actual settlement date.
S-14
You should be aware that you will only be able to make and
receive deliveries, payments and other communications involving
the senior 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.
The information in this section concerning the operations and
procedures of DTC, Clearstream Luxembourg and Euroclear has been
obtained from sources that we believe to be reliable, but
neither we nor the underwriters take responsibility for its
accuracy. These operations and procedures are solely within the
control of DTC, Euroclear and Clearstream Luxembourg, as
applicable, and are subject to change by them from time to time.
None of us, the underwriters or the trustee takes any
responsibility for these operations and procedures, and you are
urged to contact DTC, Euroclear, Clearstream Luxembourg or their
respective participants to discuss these matters.
S-15
MATERIAL
U.S. FEDERAL INCOME TAX CONSIDERATIONS
THIS SUMMARY IS OF A GENERAL NATURE AND IS INCLUDED HEREIN
SOLELY FOR INFORMATION PURPOSES. THIS SUMMARY IS NOT INTENDED TO
BE, AND SHOULD NOT BE, CONSTRUED TO BE LEGAL OR TAX ADVICE. NO
REPRESENTATION WITH RESPECT TO THE CONSEQUENCES TO ANY
PARTICULAR PURCHASER OF THE NOTES IS MADE. PROSPECTIVE
PURCHASERS SHOULD CONSULT THEIR OWN ADVISORS WITH RESPECT TO
THEIR PARTICULAR CIRCUMSTANCES.
The following is a summary of certain U.S. federal income
tax considerations relevant to U.S. Holders and
Non-U.S. Holders
(both as defined below) relating to the purchase, ownership and
disposition of the notes. This summary is based upon current
provisions of the U.S. Internal Revenue Code of 1986, as
amended (the Internal Revenue Code), existing and
proposed Treasury Regulations promulgated thereunder, rulings,
pronouncements, judicial decisions and administrative
interpretations of the U.S. Internal Revenue Service (the
IRS), all of which are subject to change, possibly
on a retroactive basis, at any time by legislative, judicial or
administrative action. We cannot assure you that the IRS will
not challenge the conclusions stated below, and no ruling from
the IRS or an opinion of counsel has been (or will be) sought on
any of the matters discussed below.
The following summary does not purport to be a complete analysis
of all the potential U.S. federal income tax considerations
relating to the purchase, ownership, and disposition of the
notes. Without limiting the generality of the foregoing, this
summary does not address the effect of any special rules
applicable to certain types of beneficial owners, including,
without limitation, dealers in securities or currencies,
insurance companies, financial institutions, thrifts, regulated
investment companies, tax-exempt entities, governmental bodies
or agencies and instrumentalities thereof, U.S. Holders
whose functional currency is not the U.S. dollar,
U.S. expatriates, persons who hold notes as part of a
straddle, hedge, conversion transaction, or other risk reduction
or integrated investment transaction, investors in securities
that elect to use a
mark-to-market
method of accounting for their securities holdings, individual
retirement accounts or qualified pension plans, controlled
foreign corporations, passive foreign investment companies, or
investors in pass through entities, including partnerships and
Subchapter S corporations. In addition, this summary is
limited to holders who are the initial purchasers of the notes
at their original issue price and who hold the notes as capital
assets within the meaning of Section 1221 of the Internal
Revenue Code. This summary does not address the effect of any
U.S. state or local income or other tax laws, any
U.S. federal estate and gift tax laws, or any foreign tax
laws.
U.S.
Holders
The term U.S. Holder means a beneficial owner
of a note that is:
|
|
|
|
|
an individual who is a citizen of the United States or who is a
resident alien of the United States for U.S. federal income
tax purposes;
|
|
|
|
a corporation or other entity taxable for U.S. federal
income tax purposes as a corporation created or organized in or
under the laws of the United States, any state thereof or the
District of Columbia;
|
|
|
|
an estate the income of which is subject to U.S. federal
income taxation regardless of its source; or
|
|
|
|
a trust if a court within the United States is able to exercise
primary supervision over the administration of the trust and one
or more U.S. persons have the authority to control all
substantial decisions of the trust, or if a valid election is in
effect under applicable Treasury Regulations to be treated as a
U.S. person.
|
Taxation
of Interest
All of the notes bear interest at a fixed rate. Moreover, we do
not intend to issue the notes at a discount that will exceed a
de minimis amount of original issue discount. Accordingly,
interest on a note will generally be includable in income of a
U.S. Holder as ordinary income, in accordance with the
U.S. Holders regular method of accounting for
U.S. federal income tax purposes. A U.S. Holder using
the accrual method of
S-16
accounting for federal income tax purposes must include interest
on the notes in ordinary income as interest accrues. A
U.S. Holder using the cash receipts and disbursements
method of accounting for U.S. federal income tax purposes
must include interest in ordinary income when payments are
received, or made available for receipt, by the U.S. Holder.
In certain circumstances (See Description of the
NotesOptional Redemption, and Description of
the NotesOffer to Repurchase Upon a Change of Control
Triggering Event), we may pay amounts on the notes that
are in excess of the stated interest or principal of the notes.
We intend to take the position that the possibility that any
such payment will be made is remote so that such possibility
will not affect the timing or amount of interest income that
holders recognize unless and until any such payment is made. Our
determination that these contingencies are remote is binding on
the holder, unless the holder discloses its contrary position to
the IRS in the manner that is required by applicable Treasury
regulations. Our determination is not, however, binding on the
IRS. It is possible that the IRS might take a different position
from that described above, in which case the timing, character
and amount of taxable income in respect of the notes may be
different from that described herein.
Sale,
Exchange, or Other Disposition
A U.S. Holder will generally recognize capital gain or loss
on a sale, exchange, redemption, retirement or other taxable
disposition of a note measured by the difference, if any,
between:
|
|
|
|
|
the amount of cash and the fair market value of any property
received, except to the extent that the cash or other property
received in respect of a note is attributable to accrued
interest on the note not previously included in income, which
amount will be taxable as ordinary income; and
|
|
|
|
the U.S. Holders adjusted tax basis in the note.
|
Such capital gain or loss will be treated as a long-term capital
gain or loss if, at the time of the sale or exchange, the note
has been held by the U.S. Holder for more than one year;
otherwise, the capital gain or loss will be short-term.
Non-corporate taxpayers may be subject to a lower federal income
tax rate on their net long-term capital gains than that
applicable to ordinary income. U.S. Holders are subject to
certain limitations on the deductibility of their capital losses.
Information
Reporting and Backup Withholding
U.S. Holders of notes will be subject to information
reporting and may be subject, under certain circumstances, to
backup withholding (currently at a rate of 28%) on payments of
interest, principal, gross proceeds from disposition of notes,
and redemption premium, if any. Backup withholding generally
applies only if the U.S. Holder:
|
|
|
|
|
fails to furnish its social security or other taxpayer
identification number within a reasonable time after a request
for such information;
|
|
|
|
furnishes an incorrect taxpayer identification number;
|
|
|
|
has been notified by the IRS that the U.S. Holder has
failed to report interest properly; or
|
|
|
|
fails, under certain circumstances, to provide a certified
statement, signed under penalty of perjury, that the taxpayer
identification number provided is its correct number and that
the U.S. Holder is not subject to backup withholding.
|
Backup withholding is not an additional tax. Any amount withheld
from a payment to a U.S. Holder under the backup
withholding rules is allowable as a credit against such
U.S. Holders U.S. federal income tax liability
and such U.S. Holder may be entitled to a refund of any
amounts withheld in excess of its actual U.S. federal
income tax liability, provided such U.S. Holder files the
appropriate returns
and/or
timely furnishes the required information to the IRS. Certain
persons are exempt from backup withholding, including
corporations and financial institutions. U.S. Holders of
notes should consult their tax advisors as to their
S-17
qualification for exemption from backup withholding and the
procedure for obtaining such exemption. We cannot refund amounts
once withheld.
We will furnish annually to the IRS, and to record holders of
the notes to whom we are required to furnish such information,
information relating to the amount of interest and the amount of
backup withholding, if any, with respect to the notes.
Non-U.S.
Holders
The following summary is limited to the U.S. federal income
tax consequences relevant to a beneficial owner of a note who is
not classified for U.S. federal income tax purposes as a
partnership or as a disregarded entity and who is
not a U.S. Holder (a
Non-U.S. Holder).
In the case of a
Non-U.S. Holder
who is an individual, the following summary assumes that this
individual was not formerly a U.S. citizen, and was not
formerly a resident of the United States for U.S. federal
income tax purposes.
Taxation
of Interest
Subject to the summary of backup withholding rules below,
payments of interest on a note to any
Non-U.S. Holder
will not generally be subject to U.S. federal income or
withholding tax provided we or the person otherwise responsible
for withholding U.S. federal income tax from payments on
the notes receives a required certification from the
Non-U.S. Holder
(as discussed below) and the
Non-U.S. Holder
is not:
|
|
|
|
|
an actual or constructive owner of 10% or more of the total
combined voting power of all our voting stock;
|
|
|
|
a controlled foreign corporation related, directly or
indirectly, to us through stock ownership;
|
|
|
|
a bank receiving interest on the notes in connection with an
extension of credit made pursuant to a loan entered into in the
ordinary course of business; or
|
|
|
|
receiving such interest payments as income effectively connected
with the conduct by the
Non-U.S. Holder
of a trade or business within the United States (and, if an
income tax treaty applies to the
Non-U.S. Holder,
as income attributable to a permanent establishment of the
Non-U.S. Holder
in the United States).
|
In order to satisfy the certification requirement, the
Non-U.S. Holder
must provide a properly completed IRS
Form W-8BEN
(or substitute
Form W-8BEN
or the appropriate successor form) under penalties of perjury
that provides the
Non-U.S. Holders
name and address and certifies that the
Non-U.S. Holder
is not a U.S. person. Alternatively, in a case where a
security clearing organization, bank or other financial
institution holds the notes in the ordinary course of its trade
or business on behalf of the
Non-U.S. Holder,
the certification requirements provide that we or the person who
otherwise would be required to withhold U.S. federal income
tax receive from the financial institution a certification under
penalties of perjury that a properly completed
Form W-8BEN
(or substitute
Form W-8BEN
or the appropriate successor form) has been received by it, or
by another such financial institution, from the
Non-U.S. Holder,
and a copy of such a form is furnished to the payor. Special
rules apply to foreign partnerships, estates and trusts, and in
certain circumstances, certifications as to foreign status of
partners, trust owners, or beneficiaries may be required to be
provided to our paying agent or to us. In addition, special
rules apply to payments made through a qualified intermediary.
A
Non-U.S. Holder
that does not qualify for exemption from withholding under the
preceding paragraphs generally will be subject to withholding of
U.S. federal income tax at the rate of 30%, unless
(i) the
Non-U.S. Holder
provides a properly completed IRS
Form W-8BEN
and other required documentation evidencing its entitlement to
an exemption from (or a reduction of) withholding under an
applicable income tax treaty, or (ii) payments of interest
on the notes are effectively connected with the conduct by the
Non-U.S. Holder
of a trade or business in the United States and the
Non-U.S. Holder
meets the certification requirement discussed at the end of the
following paragraph.
S-18
If the payments of interest on a note are effectively connected
with the conduct by a
Non-U.S. Holder
of a trade or business in the United States (or, in the event
that an income tax treaty is applicable, if the payments of
interest are attributable to a U.S. permanent establishment
maintained by the
Non-U.S. Holder),
such payments will be subject to U.S. federal income tax on
a net basis at the rates applicable to U.S. persons
generally. If the
Non-U.S. Holder
is a corporation for U.S. federal income purposes, such
payments also may be subject to a branch profits tax at the rate
of 30%, or lower applicable treaty rate. If payments are subject
to U.S. federal income tax on a net basis in accordance
with the rules described in the preceding two sentences, such
payments will not be subject to U.S. withholding tax so
long as the
Non-U.S. Holder
provides us, or the person who otherwise would be required to
withhold U.S. federal income tax, with a properly completed
and executed IRS
Form W-8ECI.
Non-U.S. Holders
should consult their tax advisors regarding any applicable
income tax treaties, which may provide for a lower rate of
withholding tax, exemption from or reduction of branch profits
tax, or other rules different from those described above.
Sale,
Exchange, or Other Disposition
Subject to the summary of backup withholding rules below, any
gain realized by a
Non-U.S. Holder
on the sale, exchange, redemption, retirement or other
disposition of a note generally will not be subject to
U.S. federal income tax, unless:
|
|
|
|
|
such gain is effectively connected with the conduct by such
Non-U.S. Holder
of a trade or business within the United States (or, in the
event that an income tax treaty is applicable, such gain is
attributable to a U.S. permanent establishment maintained
by the
Non-U.S. Holder); or
|
|
|
|
the
Non-U.S. Holder
is an individual who is present in the United States for
183 days or more in the taxable year of the disposition and
certain other conditions are satisfied.
|
Proceeds from the disposition of a note that are attributable to
accrued but unpaid interest generally will be subject to, or
exempt from, tax to the same extent as described above with
respect to interest paid on a note, although such proceeds
generally are not subject to withholding tax. A
non-U.S. Holder
should treat any amount received on redemption of a note in the
same manner as the
non-U.S. Holder
treats proceeds received on a sale.
If the gain on a disposition of a note is effectively connected
with the conduct by a
Non-U.S. Holder
of a trade or business in the United States (or, in the event
that an income tax treaty is applicable, if the gain is
attributable to a U.S. permanent establishment maintained
by the
Non-U.S. Holder),
such gain will be subject to U.S. federal income tax in the
same manner as interest that is effectively connected with the
conduct by the
Non-U.S. Holder
of a trade or business in the United States, as described under
Taxation of Interest above.
Information
Reporting and Backup Withholding
Any payments of interest on the notes to a
Non-U.S. Holder
will generally be reported to the IRS and to the
Non-U.S. Holder.
Copies of these information returns also may be made available
under the provisions of a specific treaty or other agreement to
the tax authorities of the country in which the
Non-U.S. Holder
resides.
The backup withholding tax and certain additional information
reporting generally will not apply to payments of interest with
respect to which either the requisite certification, as
described above, has been received or an exemption otherwise has
been established, provided that neither we nor the person who
otherwise would be required to withhold U.S. federal income
tax has actual knowledge or reason to know that the holder is,
in fact, a U.S. person or that the conditions of any other
exemption are not, in fact, satisfied.
The payment of the proceeds from the disposition of the notes by
or through the U.S. office of any broker, U.S. or
foreign, will be subject to information reporting and backup
withholding unless the
Non-U.S. Holder
certifies as to its
non-U.S. status
(e.g., by furnishing the broker with a properly completed and
executed IRS
Form W-8BEN)
or otherwise establishes an exemption, provided that the broker
does not have actual knowledge or reason to know that the holder
is a U.S. person or that the conditions of any other
S-19
exemption are not, in fact, satisfied. The payment of the
proceeds from the disposition of the notes by or through a
non-U.S. office
of a
non-U.S. broker
will not be subject to information reporting or backup
withholding unless the
non-U.S. broker
has certain types of relationships with the United States (a
U.S. related person). In the case of the
payment of the proceeds from the disposition of the notes by or
through a
non-U.S. office
of a broker that is either a U.S. person or a
U.S. related person, the Treasury Regulations require
information reporting (but not backup withholding) on the
payment unless the broker has documentary evidence in its files
that the beneficial owner is a
Non-U.S. Holder
and the broker has no knowledge or reason to know to the
contrary.
Backup withholding is not an additional tax. Any amounts
withheld under the backup withholding rules may be credited
against the
Non-U.S. Holders
U.S. federal income tax liability (and the
Non-U.S. Holder
may be entitled to a refund of amounts withheld in excess of the
Non-U.S. Holders
U.S. federal income tax liability) provided such
Non-U.S. Holder
timely furnishes the required information to
and/or files
the necessary returns or claims with the IRS. We cannot refund
amounts once withheld.
Proposed
Legislation
The U.S. House of Representatives recently passed
legislation that would require a withholding agent to withhold
tax at a rate of 30% on interest, dividends and other
withholdable payments made to foreign entities, unless the
entity certifies that it has no substantial U.S. owners or
provides the withholding agent with the name, address, and
taxpayer identification number of each of its substantial
U.S. owners. Moreover, the Obama Administration has
recently proposed to (i) limit the ability of investors to
claim an exemption from U.S. withholding tax through a
foreign intermediary that is not a qualified
intermediary (a nonqualified intermediary),
(ii) require a withholding agent to withhold tax at a rate
of 20% on gross proceeds from the sale of securities under
certain circumstances when paid to a nonqualified intermediary
that is located in a jurisdiction with which the United States
does not have a comprehensive income tax treaty that includes a
satisfactory exchange of information program, and
(iii) limit the ability of certain foreign entities to
claim relief from U.S. withholding tax unless those
entities provide documentation of their beneficial owners to the
withholding agent. It is unclear whether, or in what form, the
Obama Administration proposals or the legislation passed by the
House of Representatives will be enacted. Holders of notes are
encouraged to consult with their tax advisors regarding the
possible implications of these proposals on their investment in
the notes.
THE PRECEDING SUMMARY OF CERTAIN U.S. FEDERAL INCOME TAX
CONSEQUENCES IS FOR GENERAL INFORMATION ONLY AND IS NOT LEGAL OR
TAX ADVICE. ACCORDINGLY, PROSPECTIVE PURCHASERS SHOULD CONSULT
THEIR OWN ADVISORS ON THE U.S. FEDERAL, STATE AND LOCAL,
AND FOREIGN TAX CONSEQUENCES OF THEIR PURCHASE, OWNERSHIP, AND
DISPOSITION OF THE NOTES, AND ON THE CONSEQUENCES OF ANY CHANGES
IN APPLICABLE LAW.
S-20
UNDERWRITING
We intend to offer the notes through the underwriters. Banc of
America Securities LLC and Citigroup Global Markets Inc. are
acting as representatives of the underwriters named below.
Subject to the terms and conditions contained in an underwriting
agreement among us and the underwriters, we have agreed to sell
to the underwriters and the underwriters severally have agreed
to purchase from us, the principal amount of the notes listed
opposite their names below:
|
|
|
|
|
Underwriter
|
|
Principal Amount of
Notes
|
|
|
Banc of America Securities LLC
|
|
$
|
100,000,000
|
|
Citigroup Global Markets Inc.
|
|
|
100,000,000
|
|
Barclays Capital Inc.
|
|
|
76,923,000
|
|
ING Financial Markets LLC
|
|
|
76,923,000
|
|
Banca IMI S.p.A.
|
|
|
15,385,000
|
|
Commerzbank Capital Markets Corp.
|
|
|
15,385,000
|
|
Danske Markets Inc.
|
|
|
15,385,000
|
|
J.P. Morgan Securities Inc.
|
|
|
15,385,000
|
|
Mizuho Securities USA Inc.
|
|
|
15,385,000
|
|
Standard Chartered Bank
|
|
|
15,385,000
|
|
U.S. Bancorp Investments, Inc.
|
|
|
15,385,000
|
|
Credit Agricole Securities (USA) Inc.
|
|
|
7,692,000
|
|
KBC Financial Products USA Inc.
|
|
|
7,692,000
|
|
RBS Securities Inc.
|
|
|
7,692,000
|
|
TD Securities (USA) LLC
|
|
|
7,692,000
|
|
Wells Fargo Securities, LLC
|
|
|
7,691,000
|
|
|
|
|
|
|
Total
|
|
$
|
500,000,000
|
|
|
|
|
|
|
The underwriters have agreed to purchase all of the notes sold
pursuant to the underwriting agreement if any of these notes are
purchased. If an underwriter defaults, the underwriting
agreement provides that the purchase commitments of the
non-defaulting underwriters may be increased or the underwriting
agreement may be terminated.
We have agreed to indemnify the underwriters against certain
liabilities, including liabilities under the Securities Act, or
to contribute to payments the underwriters may be required to
make in respect of those liabilities.
The underwriters are offering the notes, subject to prior sale,
when, as and if issued to and accepted by them, subject to
approval of legal matters by their counsel, including the
validity of the notes, and other conditions contained in the
underwriting agreement, such as the receipt by the underwriters
of officers certificates and legal opinions. The
underwriters reserve the right to withdraw, cancel or modify
offers to the public and to reject orders in whole or in part.
Discounts
and Commissions
The underwriters have advised us that they propose to initially
offer the notes at a price of 99.543% of the principal amount of
the notes, plus accrued interest from the original issue date of
the notes, if any, and to dealers at that price less a
concession not in excess of 0.400% of the principal amount of
the notes, plus accrued interest from the original issue date of
the notes, if any. The underwriters may allow, and dealers may
reallow a concession not to exceed 0.250% of the principal
amount of the notes on sales to other dealers. After the initial
public offering, the public offering price, concession and
discount may be changed.
S-21
The following table shows the underwriting discounts and
commissions that we are to pay the underwriters in connection
with this offering (expressed as a percentage of the principal
amount of the notes).
|
|
|
|
|
|
|
Paid by us
|
|
Per note
|
|
|
0.650
|
%
|
The expenses of the offering, not including the underwriting
discounts and commissions, are estimated to be $300,000 and are
payable by us.
New Issue
of Notes
The notes are a new issue of securities with no established
trading market. We do not intend to apply for listing of the
notes on any national securities exchange or for inclusion of
the notes on any automated dealer quotation system. We have been
advised by the underwriters that they presently intend to make a
market in the notes after completion of the offering. However,
they are under no obligation to do so and may discontinue any
market-making activities at any time without any notice. We
cannot assure the liquidity of the trading market for the notes
or that an active public market for the notes will develop. If
an active public trading market for the notes does not develop,
the market price and liquidity of the notes may be adversely
affected. If the notes are traded, they may trade at a discount
from their initial public offering price, depending on
prevailing interest rates, the market for similar securities,
our performance and other factors.
Price
Stabilization and Short Positions
In connection with the offering, the underwriters are permitted
to engage in transactions that stabilize the market price of the
notes. Such transactions consist of bids or purchases to peg,
fix or maintain the price of the notes.
If the underwriters create a short position in the notes in
connection with the offering, i.e., if they sell more notes than
are on the cover page of this prospectus supplement, the
underwriters may reduce that short position by purchasing notes
in the open market. Purchases of the notes to stabilize the
price or to reduce a short position could cause the price of the
notes to be higher than it might be in the absence of such
purchases.
Neither we nor any of the underwriters makes any representation
or prediction as to the direction or magnitude of any effect
that the transactions described above may have on the price of
the notes. In addition, neither we nor any of the underwriters
makes any representation that the underwriters will engage in
these transactions or that these transactions, once commenced,
will not be discontinued without notice.
Other
Relationships
Some of the underwriters and their affiliates have engaged in,
and may in the future engage in, investment banking and other
commercial dealings in the ordinary course of business with us.
They have received customary fees and commissions for these
transactions. In addition, affiliates of Banc of America
Securities LLC, Citigroup Global Markets Inc. and Barclays
Capital Inc. were co-syndication agents on our revolving credit
facility, for which they each received customary compensation.
Selling
Restrictions
Other than in the United States, no action has been taken by us
or the underwriters that would permit a public offering of the
securities offered by this prospectus supplement in any
jurisdiction where action for that purpose is required. The
securities offered by this prospectus supplement may not be
offered or sold, directly or indirectly, nor may this prospectus
supplement or any other offering material or advertisements in
connection with the offer and sale of any such securities be
distributed or published in any jurisdiction, except under
circumstances that will result in compliance with the applicable
rules and regulations of that jurisdiction. Persons into whose
possession this prospectus supplement comes are advised to
inform themselves about and to observe any restrictions relating
to the offering and the distribution of this prospectus
supplement. This
S-22
prospectus supplement does not constitute an offer to sell or a
solicitation of an offer to buy any securities offered by this
prospectus supplement in any jurisdiction in which such an offer
or a solicitation is unlawful.
This document is only being distributed to and is only directed
at (i) persons who are outside the United Kingdom or
(ii) to investment professionals falling within
Article 19(5) of the Financial Services and Markets Act
2000 (Financial Promotion) Order 2005 (the Order) or
(iii) high net worth entities, and other persons to whom it
may lawfully be communicated, falling with Article 49(2)(a)
to (d) of the Order (all such persons together being
referred to as relevant persons). The securities are
only available to, and any invitation, offer or agreement to
subscribe, purchase or otherwise acquire such securities will be
engaged in only with, relevant persons. Any person who is not a
relevant person should not act or rely on this document or any
of its contents.
In relation to each Member State of the European Economic Area,
the EU plus Iceland, Norway and Liechtenstein, which has
implemented the Prospectus Directive (each, a Relevant
Member State), from and including the date on which the
European Union Prospectus Directive (the EU Prospectus
Directive) is implemented in that Relevant Member State
(the Relevant Implementation Date) an offer of
securities described in this prospectus supplement may not be
made to the public in that Relevant Member State prior to the
publication of a prospectus in relation to the securities which
has been approved by the competent authority in that Relevant
Member State or, where appropriate, approved in another Relevant
Member State and notified to the competent authority in that
Relevant Member State, all in accordance with the EU Prospectus
Directive, except that it may, with effect from and including
the Relevant Implementation Date, make an offer of shares to the
public in that Relevant Member State at any time:
|
|
|
|
|
to legal entities which are authorized or regulated to operate
in the financial markets or, if not so authorized or regulated,
whose corporate purpose is solely to invest in securities;
|
|
|
|
to any legal entity which has two or more of (1) an average
of at least 250 employees during the last financial year;
(2) a total balance sheet of more than 43,000,000 and
(3) an annual net turnover of more than 50,000,000,
as shown in its last annual or consolidated accounts;
|
|
|
|
to fewer than 100 natural or legal persons (other than qualified
investors as defined in the EU Prospectus Directive) subject to
obtaining the prior consent of the representatives for any such
offer; or
|
|
|
|
in any other circumstances which do not require the publication
by the Issuer of a prospectus pursuant to Article 3 of the
Prospectus Directive.
|
For the purposes of this provision, the expression an
offer of securities to the public in relation to any
securities in any Relevant Member State means the communication
in any form and by any means of sufficient information on the
terms of the offer and the securities to be offered so as to
enable an investor to decide to purchase or subscribe for the
securities, as the same may be varied in that Member State by
any measure implementing the EU Prospectus Directive in that
Member State and the expression EU Prospectus Directive means
Directive 2003/71/EC and includes any relevant implementing
measure in each Relevant Member State.
Other
Information
Certain of the underwriters are not U.S. registered
broker-dealers and, therefore, to the extent that they intend to
effect any sales of the notes in the United States, they will do
so through one or more U.S. registered broker-dealers as
permitted by the regulations of the Financial Industry
Regulatory Authority, Inc.
S-23
LEGAL
MATTERS
The legality of the notes is being passed upon for us by Jerome
D. Okarma, our Vice President, Secretary and General Counsel,
and/or
Foley & Lardner LLP, Milwaukee, Wisconsin. As of
March 1, 2010, Mr. Okarma beneficially owned
101,331.191 shares of our common stock, and held options to
purchase 721,000 shares of our common stock, of which
options to purchase 463,500 shares were exercisable.
Certain legal matters will be passed upon for the underwriters
by Mayer Brown LLP, Chicago, Illinois.
S-24
PROSPECTUS
Johnson Controls, Inc.
Common Stock, Preferred Stock,
Debt Securities,
Warrants to Purchase Common
Stock or Preferred Stock or Debt Securities,
Stock Purchase Contracts and
Stock Purchase Units
We may offer and sell from time to time securities in one or
more offerings. This prospectus provides you with a general
description of the securities we may offer.
We may offer and sell the following securities:
|
|
|
|
|
common stock;
|
|
|
|
preferred stock, which may be convertible into our common stock;
|
|
|
|
senior or subordinated debt securities, which may be convertible
into our common stock or preferred stock;
|
|
|
|
warrants to purchase common stock, preferred stock or debt
securities; and
|
|
|
|
stock purchase contracts and stock purchase units.
|
Each time securities are sold using this prospectus, we will
provide a supplement to this prospectus and possibly other
offering material containing specific information about the
offering and the terms of the securities being sold, including
the offering price. The supplement or other offering material
may also add, update or change information contained in this
prospectus. You should read this prospectus, any supplement and
any other offering material carefully before you invest.
We may offer and sell these securities to or through
underwriters, dealers or agents, or directly to investors, on a
continued or a delayed basis. The supplements to this prospectus
will provide the specific terms of the plan of distribution.
In addition, selling shareholders to be named in a prospectus
supplement may offer and sell from time to time shares of our
common stock in such amounts as set forth in a prospectus
supplement. Unless otherwise set forth in a prospectus
supplement, we will not receive any proceeds from the sale of
shares of our common stock by any selling shareholders.
Our common stock is listed on the New York Stock Exchange under
the symbol JCI.
See Risk Factors in the accompanying prospectus
supplement or in such other document we refer you to in the
accompanying prospectus supplement for a discussion of certain
risks that prospective investors should consider before
investing in our securities.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or determined if this prospectus is accurate or
complete. Any representation to the contrary is a criminal
offense.
This prospectus is dated February 23, 2009.
TABLE OF
CONTENTS
|
|
|
|
|
|
|
|
1
|
|
|
|
|
1
|
|
|
|
|
1
|
|
|
|
|
2
|
|
|
|
|
2
|
|
|
|
|
2
|
|
|
|
|
10
|
|
|
|
|
25
|
|
|
|
|
25
|
|
|
|
|
26
|
|
|
|
|
27
|
|
|
|
|
27
|
|
|
|
|
29
|
|
|
|
|
30
|
|
|
|
|
30
|
|
ABOUT
THIS PROSPECTUS
Unless the context otherwise requires, references in this
prospectus to we , us, our,
the Company and Johnson Controls refer
to Johnson Controls, Inc. and its consolidated subsidiaries,
collectively. References to the common stock refer
to Johnson Controls common stock, par value $0.01 7/18 per
share. References to the preferred stock refer to
Johnson Controls preferred stock, par value $1.00 per
share. References to $ are to United States
currency, and the terms United States and
U.S. mean the United States of America, its states,
territories, possessions and all areas subject to its
jurisdiction.
This prospectus is part of a registration statement that we
filed with the Securities and Exchange Commission, or SEC,
utilizing a shelf registration process. Under this
shelf process, we may, from time to time, sell the securities or
combinations of the securities described in this prospectus, and
one or more of our shareholders may sell our common stock, in
one or more offerings. This prospectus provides you with a
general description of those securities. Each time we offer
securities, we will provide a prospectus supplement that will
contain specific information about the terms of that offering.
The prospectus supplement may also add, update or change
information contained in this prospectus. You should read both
this prospectus and any prospectus supplement together with
additional information described under the heading Where
You Can Find More Information.
You should rely only on the information contained or
incorporated by reference in this prospectus and in any
prospectus supplement. Incorporated by reference
means that we can disclose important information to you by
referring you to another document filed separately with the SEC.
We have not authorized any other person to provide you with
different information. If anyone provides you with different or
inconsistent information, you should not rely on it. We are not
making offers to sell nor soliciting offers to buy, nor will we
make an offer to sell nor solicit an offer to buy, securities in
any jurisdiction where the offer or sale is not permitted. You
should assume that the information appearing in this prospectus
or any supplement to this prospectus, as well as the information
we file or previously filed with the SEC that we incorporate by
reference in this prospectus or any prospectus supplement, is
accurate only as of the dates on their covers. Our business,
financial condition, results of operations and prospects may
have changed since those dates.
CAUTIONARY
NOTE FOR FORWARD-LOOKING INFORMATION
Certain statements in this prospectus, any supplement to this
prospectus
and/or other
offering material and the information incorporated by reference
in this prospectus or any prospectus supplement
and/or other
offering material, other than purely historical information,
including estimates, projections, statements relating to our
business plans, objectives and expected operating results, and
the assumptions upon which those statements are based, 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. These
forward-looking statements generally are identified by the words
believe, project, expect,
anticipate, estimate,
forecast, outlook, intend,
strategy, plan, may,
should, will, would,
will be, will continue, will
likely result, or the negative thereof or variations
thereon or similar terminology generally intended to identify
forward-looking statements. Forward-looking statements are based
on current expectations and assumptions that are subject to
risks and uncertainties which may cause actual results to differ
materially from the forward-looking statements. A detailed
discussion of risks and uncertainties that could cause actual
results and events to differ materially from such
forward-looking statements will be included in the section
entitled Risk Factors in an accompanying prospectus
supplement or in such other document we refer you to in the
accompanying prospectus supplement. We undertake no obligation,
and we disclaim any obligation, to update or revise publicly any
forward-looking statements, whether as a result of new
information, future events or otherwise.
JOHNSON
CONTROLS, INC.
Johnson Controls is a corporation organized under the laws of
the State of Wisconsin. We bring ingenuity to the places where
people live, work and travel. By integrating technologies,
products and services, we create
1
smart environments that redefine the relationships between
people and their surroundings. We strive to create a more
comfortable, safe and sustainable world through our products and
services for vehicles, homes and commercial buildings. Johnson
Controls provides innovative automotive interiors that help make
driving more comfortable, safe and enjoyable. For buildings, we
offer products and services that optimize energy use and improve
comfort and security. We also provide batteries for automobiles
and hybrid electric vehicles, along with related systems
engineering, marketing and service expertise.
Our building efficiency business is a global market leader in
designing, producing, marketing and installing integrated
heating, ventilating and air conditioning (HVAC) systems,
building management systems, controls, security and mechanical
equipment. In addition, the building efficiency business
provides technical services, energy management consulting and
operations of entire real estate portfolios for the
non-residential buildings market. We also provide residential
air conditioning and heating systems.
Our automotive experience business is one of the worlds
largest automotive suppliers, providing interior products and
systems to millions of vehicles annually. Our technologies
extend into every area of the interior including seating and
overhead systems, door systems, floor consoles, instrument
panels, cockpits and integrated electronics. Customers include
virtually every major automaker in the world.
Our power solutions business is a leading global producer of
lead-acid automotive batteries, serving both automotive original
equipment manufacturers and the general vehicle battery
aftermarket. We also offer Absorbent Glass Mat,
nickel-metal-hydride and lithium-ion battery technologies to
power hybrid vehicles.
Our principal executive offices are located at 5757 North Green
Bay Avenue, Milwaukee, Wisconsin
53209-4408,
and our telephone number is
(414) 524-1200.
RATIO OF
EARNINGS TO FIXED CHARGES
The following table shows our ratio of earnings to fixed charges
for each of our last five fiscal years:
|
|
|
|
|
|
|
|
|
Year Ended September 30,
|
2004
|
|
2005
|
|
2006
|
|
2007
|
|
2008
|
|
6.1
|
|
5.5
|
|
4.1
|
|
5.0
|
|
4.1
|
For the purposes of computing this ratio, earnings
consist of income from continuing operations before income
taxes, minority interest in earnings or losses of consolidated
subsidiaries and income from equity affiliates plus
(a) amortization of previously capitalized interest,
(b) distributed income from equity affiliates and
(c) fixed charges, minus interest capitalized during the
period. Fixed charges consist of (i) interest
incurred and amortization of debt expense plus (ii) the
portion of rent expense representative of the interest factor.
We did not have any preferred stock outstanding and we did not
pay or accrue any preferred stock dividends during the periods
presented above.
USE OF
PROCEEDS
We intend to use the net proceeds from the sales of the
securities as set forth in the applicable prospectus supplement
and/or other
offering material for repayment of debt and general corporate
purposes.
DESCRIPTION
OF CAPITAL STOCK
We are authorized to issue up to 1,802,000,000 shares of
capital stock, 1,800,000,000 of which are shares of common
stock, par value $0.01 7/18 per share, and
2,000,000 shares of which are preferred stock, par value
$1.00 per share. As of January 31, 2009, there were
594,251,892 shares of common stock issued and outstanding
and no shares of preferred stock issued and outstanding. Shares
of our common stock are listed on the New York Stock Exchange
under the symbol JCI.
2
The following description of our capital stock summarizes
general terms and provisions that apply to our capital stock.
Since this is only a summary, it does not contain all of the
information that may be important to you. The summary is subject
to and qualified in its entirety by reference to our restated
articles of incorporation and our bylaws, as amended, which are
filed as exhibits to the registration statement of which this
prospectus is a part. See Where You Can Find More
Information.
Common
Stock
Preemptive
Rights
Our common shareholders do not have any preemptive rights except
as the board of directors may otherwise determine.
Dividends
After all dividends on all of our preferred stock outstanding
have been paid or declared and set apart for payment, the
holders of our common stock are entitled to receive dividends as
may be declared from time to time by our board of directors, in
its discretion, out of funds legally available therefor.
Liquidation
or Dissolution
In the event of a liquidation, dissolution or winding up of our
affairs, holders of our common stock are entitled to share
ratably in the distribution of our assets that remain after
provision for payment of all liabilities to creditors and
payment of liquidation preferences and accrued dividends, if
any, to our preferred shareholders.
Voting
Rights and Extraordinary Transactions
Our common shareholders are entitled to one vote for each share
of common stock held on all matters on which our shareholders
are entitled to vote, and our common shareholders vote together
share for share with our preferred shareholders as one class,
except as otherwise provided by law or as determined by our
board of directors at the time it establishes a series of
preferred stock.
Provisions of our articles of incorporation and bylaws might
discourage some types of transactions that involve an actual or
threatened change of control. Our articles of incorporation
provide that, subject to specified exceptions, the affirmative
vote or consent of the holders of four-fifths of all classes of
our capital stock, considered as one class, is required
(1) for the adoption of any agreement for the merger or
consolidation of us with or into any other corporation or
(2) to authorize any sale, lease, exchange, mortgage,
pledge or other disposition of all or any substantial part of
our assets to, or any sale, lease, exchange, mortgage, pledge,
other disposition to us in exchange for our securities or any
assets of, any other corporation, person or other entity, if, in
either case, the other corporation, person or entity is the
beneficial owner, directly or indirectly, of more than 10% of
our outstanding capital stock. Any corporation, person or other
entity will be deemed to be the beneficial owner of all shares
of our capital stock which are beneficially owned, directly or
indirectly, by it and its affiliates and associates, and which
it and its affiliates and associates have the right to acquire
pursuant to any agreement, or upon exercise of conversion
rights, warrants or options, or otherwise.
The provisions of our articles of incorporation requiring a
four-fifths vote are not applicable to (1) any merger or
consolidation of us with or into any other corporation, or any
sale, lease, exchange, mortgage, pledge or other disposition of
all or any substantial part of our assets to, or any sale,
lease, mortgage, pledge or other disposition to us in exchange
for our securities or any assets of, any other corporation,
person or other entity, if our board of directors by resolution
has approved a memorandum of understanding with the other
corporation, person or other entity, with respect to and
substantially consistent with the proposed transaction, prior to
the time the other corporation, person or other entity has
become a beneficial owner of more than 10% of our outstanding
capital stock or (2) any merger or consolidation of us
with, or any sale, lease, exchange, mortgage, pledge or other
disposition to as of any assets of, any corporation of which a
majority of the outstanding capital stock is held by us.
3
No amendment to our articles of incorporation may amend, alter,
change or repeal any of the provisions of our articles of
incorporation requiring a four-fifths vote unless the amendment
effecting the amendment, alteration, change or repeal receives
the affirmative vote or consent of the holders of four-fifths of
all of our capital stock, considered as one class.
Provisions of Wisconsin law might also discourage some types of
transactions that involve an actual or threatened change of
control of Johnson Controls. Sections 180.1140 through
180.1144 of the Wisconsin Business Corporation Law contain
limitations and special voting provisions applicable to
specified business combinations involving Wisconsin
corporations, including Johnson Controls, and a significant
stockholder, unless the board of directors of the corporation
approves the business combination or the stockholders
acquisition of shares before the shares are acquired. Similarly,
Sections 180.1130 through 180.1133 of the Wisconsin
Business Corporation Law contain special voting provisions
applicable to specified business combinations unless minimum
price and procedural requirements are met. Following the
commencement of a takeover offer, Section 180.1134 of the
Wisconsin Business Corporation Law imposes special voting
requirements on specified share repurchases effected at a
premium to the market and on specified asset sales by the
corporation unless, as it relates to the potential sale of
assets, the corporation has at least three independent directors
and a majority of the independent directors vote not to have the
provision apply to the corporation.
Section 180.1150 of the Wisconsin Business Corporation Law
provides that the voting power of shares of Wisconsin
corporations, including Johnson Controls, held by any person or
persons acting as a group in excess of 20% of the voting power
of the corporation is limited to 10% of the full voting power of
those shares. This restriction does not apply to shares acquired
directly from the corporation or in specified transactions or
shares for which full voting power has been restored pursuant to
a vote of shareholders.
Number
and Tenure of Board of Directors; Special Meetings
As of November 19, 2008, our bylaws provide that our board
of directors is composed of not less than nine nor more than
thirteen directors divided into three classes, consisting of
three to four members each, depending on the size of the board
of directors. A director may be removed from office by
shareholders prior to the expiration of his or her term, but
only:
|
|
|
|
|
at a special meeting called for the purpose of removing the
director;
|
|
|
|
by the affirmative vote of two-thirds of the outstanding shares
entitled to vote for the election of the director; and
|
|
|
|
for cause, but if the board of directors, by resolution adopted
by the affirmative vote of at least two-thirds of the directors
then in office plus one director, recommends removal of a
director, then the shareholders may remove the director without
cause by the vote described in the two clauses above.
|
A special meeting of shareholders may be called only by the
chairman of the board of directors, the vice chairman of the
board of directors, the president or the board of directors, and
will be called by the chairman of the board of directors or the
president upon the demand of shareholders representing at least
10% of all of the votes entitled to be cast at the special
meeting.
The affirmative vote of (1) shareholders possessing at
least four-fifths of the voting power of the outstanding shares
of all classes of our capital stock, considered as one class
(subject to the rights of holders of any class or series of
stock having a preference over the common stock as to dividends
or upon liquidation) or (2) at least two-thirds of the
directors then in office plus one director, is required to
amend, alter, change or repeal the provisions of the bylaws
relating to the number and tenure of members of our board of
directors.
Preferred
Stock
General
Our articles of incorporation authorize our board of directors
to issue shares of preferred stock in one or more series and
with rights, preferences, privileges and restrictions, including
dividend rights, voting rights,
4
conversion rights, terms of redemption and liquidation
preferences, as may be designated by our board of directors
without any further vote or action by our shareholders, provided
that the aggregate liquidation preference of all shares of
preferred stock outstanding may not exceed $100,000,000. The
issuance of preferred stock may have the effect of delaying,
deferring or preventing a change in control of Johnson Controls.
The specific terms of a particular series of preferred stock
offered pursuant to this prospectus will be described in the
prospectus supplement
and/or other
offering material relating to that series. The related
prospectus supplement
and/or other
offering material will contain a description of material United
States federal income tax consequences relating to the purchase
and ownership of the series of preferred stock described in the
prospectus supplement
and/or other
offering material.
The rights, preferences, privileges and restrictions of the
preferred stock of each series will be fixed by articles of
amendment to the articles of incorporation relating to that
series. A prospectus supplement
and/or other
offering material, relating to each series, will specify the
terms of the preferred stock as follows:
|
|
|
|
|
the maximum number of shares to constitute, and the designation
of, the series;
|
|
|
|
the annual dividend rate, if any, on shares of the series,
whether the rate is fixed or variable or both, and the date or
dates from which dividends will begin to accrue or accumulate;
|
|
|
|
the price at and the terms and conditions on which the shares of
the series may be redeemed;
|
|
|
|
the liquidation preference, if any, that the holders of shares
of the series would be entitled to receive upon the liquidation,
dissolution or winding up of our affairs;
|
|
|
|
whether or not the shares of the series will be subject to
operation of a retirement or sinking fund, and, if so, the
extent and manner in which that fund would be applied to the
purchase or redemption of the shares of the series for
retirement or for other corporate purposes, and the terms and
provisions relating to the operation of the fund;
|
|
|
|
the terms and conditions, if any, on which the shares of the
series will be convertible into, or exchangeable for, shares of
common stock, including the price or prices or the rate or rates
of conversion or exchange and the method, if any, of adjusting
the same and whether that conversion is mandatory or
optional; and
|
|
|
|
the voting rights, if any, of the shares of the series.
|
Dividends
The holders of our preferred stock will be entitled to receive
dividends at the rate per year set by our board of directors,
payable quarterly on the last day of March, June, September, and
December in each year for the respective calendar quarter ending
on those dates, when and as declared by our board of directors.
Dividends will accrue on each share of preferred stock from the
first day of each quarterly dividend period in which the share
is issued or from another date as our board of directors may fix
for that purpose. All dividends on preferred stock will be
cumulative so that if we do not pay or set apart for payment the
dividend, or any part thereof, for any dividend period on the
preferred stock then issued and outstanding, the unpaid portion
of the dividend will thereafter be fully paid or declared and
set apart for payment, but without interest, before any dividend
will be paid or declared and set apart for payment on our common
stock. The holders of our preferred stock will not be entitled
to participate in any of our other or additional earnings or
profits, except for those premiums, if any, as may be payable in
case of redemption, liquidation, dissolution or winding up of
our affairs.
Any dividend paid upon our preferred stock at a time when any
accrued dividends for any prior dividend period are delinquent
will be expressly declared to be in whole or partial payment of
the accrued dividends to the extent there are accrued dividends,
beginning with the earliest dividend period for which dividends
are then wholly or partly delinquent, and will be so designated
to each shareholder to whom payment is made. No dividends will
be paid upon any shares of any series of preferred stock for a
current dividend period unless there has been paid or declared
and set apart for payment dividends required to be paid to the
holders of each
5
other series of preferred stock for all past dividend periods of
the other series. If any dividends are paid on any of our
preferred stock with respect to any past dividend period at any
time when less than the total dividends then accumulated and
payable for all past dividend periods on all of the preferred
stock then outstanding are to be paid or declared and set apart
for payment, then the dividends being paid will be paid on each
series of preferred stock in the proportions that the dividends
then accumulated and payable on each series for all past
dividend periods bear to the total dividends then accumulated
and payable for all past dividend periods on all outstanding
preferred stock.
Liquidation
or Dissolution
In case of our voluntary or involuntary liquidation, dissolution
or winding up of our affairs, the holders of each series of
preferred stock would be entitled to receive out of our assets
in money or moneys worth the liquidation preference with
respect to that series of preferred stock, together with all
accrued but unpaid dividends thereon, whether or not earned or
declared, before any of our assets would be paid or distributed
to holders of our common stock. In case of our voluntary or
involuntary liquidation, dissolution or winding up of our
affairs, if our assets would be insufficient to pay the holders
of all of the series of our preferred stock then outstanding the
full amounts to which they may be entitled, the holders of each
outstanding series would share ratably in our assets in
proportion to the amounts which would be payable with respect to
that series if all amounts payable thereon were paid in full.
Our consolidation or merger with or into any other corporation,
or a sale of all or any part of our assets, will not be deemed a
liquidation, dissolution or winding up of our affairs for
purposes of this paragraph.
Redemption
Except as otherwise provided with respect to a particular series
of our preferred stock, the following general redemption
provisions will apply to each series of preferred stock.
On or prior to the date fixed for redemption of a particular
series of our preferred stock or any part of a particular series
of our preferred stock as specified in the notice of redemption
for that series, we will deposit adequate funds for the
redemption, in trust for the account of holders of that series,
with a bank having trust powers or a trust company in good
standing, organized under the laws of the United States or the
State of Wisconsin doing business in the State of Wisconsin and
having capital, surplus and undivided profits aggregating at
least $1,000,000. If the name and address of the bank or trust
company and the deposit of or intent to deposit the redemption
funds in the trust account is stated in the notice of
redemption, then from and after the mailing of the notice and
the making of the deposit, the shares of the series called for
redemption will no longer be deemed to be outstanding for any
purpose whatsoever, and all rights of the holders of the shares
of the series in or with respect to us will cease and terminate
except only the right of the holders of the shares:
|
|
|
|
|
to transfer shares prior to the date fixed for redemption;
|
|
|
|
to receive the redemption price of the shares, including accrued
but unpaid dividends to the date fixed for redemption, without
interest, upon surrender of the certificate or certificates
representing the shares to be redeemed; and
|
|
|
|
on or before the close of business on the fifth day preceding
the date fixed for redemption, to exercise privileges of
conversion, if any, not previously expired.
|
Any money deposited by us that remains unclaimed by the holders
of the shares called for redemption and not converted will, at
the end of six years after the date fixed for redemption, be
paid to us upon our request, after which repayment the holders
of the shares called for redemption will no longer look to the
bank or trust company for the payment of the redemption price
but will look only to us or to others, as the case may be, for
the payment of any lawful claim for the money which holders of
the shares may still have. After the six-year period, the right
of any shareholder or other person to receive payment for its
shares in the series redeemed may be forfeited in the manner and
with the effect provided under Wisconsin law. Any portion of
6
the money so deposited by us, in respect of shares of our
preferred stock called for redemption that are converted into
our common stock, will be repaid to us upon our request.
In case of redemption of only a part of a series of preferred
stock, we will designate by lot, in the manner our board of
directors may determine, the shares to be redeemed, or we will
effect the redemption pro rata.
Conversion
Rights
Except as otherwise provided with respect to a particular series
of our preferred stock, the following general conversion
provisions will apply to each series of our preferred stock that
is convertible into common stock.
All shares of our common stock issued upon conversion will be
fully paid and nonassessable, and will be free of all taxes,
liens and charges with respect to the issuance except taxes, if
any, payable by reason of issuance in a name other than that of
the holder of the share or shares converted and except as
otherwise provided by applicable Wisconsin law.
The number of shares of our common stock issuable upon
conversion of a particular series of preferred stock at any time
will be the quotient obtained by dividing the aggregate
conversion value of the shares of the series surrendered for
conversion by the conversion price per share of common stock
then in effect for that series. We will not be required,
however, upon any such conversion, to issue any fractional share
of common stock, but in lieu of fractional shares we will pay to
the holder who would otherwise be entitled to receive a
fractional share a sum in cash equal to the value of the
fractional share at the rate of the then-prevailing market value
per share of our common stock. The then-prevailing market value
per share means for these purposes the last reported sale price
of our common stock on the New York Stock Exchange. Shares of
our preferred stock will be deemed to have been converted as of
the close of business on the date the transfer agent receives
the certificate for the shares to be converted, duly endorsed,
together with written notice by the holder of its election to
convert the shares.
The basic conversion price per share of common stock for a
series of our preferred stock, as fixed by the board of
directors, will be subject to adjustment from time to time as
follows:
|
|
|
|
|
If we (1) pay a dividend or make a distribution to all of
our common shareholders as a class in shares of common stock,
(2) subdivide or split the outstanding shares of common
stock into a larger number of shares, or (3) combine the
outstanding shares of our common stock into a smaller number of
shares, the basic conversion price per share of common stock in
effect immediately prior thereto will be adjusted so that the
holder of each outstanding share of each series of our preferred
stock which by its terms is convertible into common stock will
thereafter be entitled to receive upon the conversion of that
share the number of shares of common stock which the holder
would have owned and been entitled to receive after the
happening of any of the events described above had that share of
preferred stock been converted immediately prior to the
happening of the event.
|
|
|
|
If we issue to all of our common shareholders as a class any
rights or warrants enabling them to subscribe for or purchase
shares of our common stock at a price per share less than the
current market price per share of our common stock, the
conversion price per share of common stock in effect immediately
prior thereto for each series of preferred stock which by its
terms is convertible into common stock will be adjusted by
multiplying the conversion price by a fraction. The numerator of
the fraction would be the sum of the number of shares of common
stock outstanding and the number of shares of common stock which
the aggregate exercise price, before deduction of underwriting
discounts or commissions and other expenses we would incur in
connection with the issue, of the total number of shares so
offered for subscription or purchase would purchase at the
current market price per share. The denominator of the fraction
would be the sum of the number of shares of common stock
outstanding at the record date and the number of additional
shares of common stock so offered for subscription or purchase.
|
|
|
|
If we distribute to all of our common shareholders as a class
evidences of our indebtedness or assets, other than cash
dividends, the basic conversion price per share of common stock
in effect immediately
|
7
|
|
|
|
|
prior thereto for each series of preferred stock which by its
terms is convertible into common stock would be adjusted by
multiplying the basic conversion price by a fraction, of which
the numerator will be the difference between the current market
price per share of common stock and the fair value, as
determined by our board of directors, of the portion of the
evidences of indebtedness or assets, other than cash dividends,
so distributed with respect to one share of common stock, and of
which the denominator would be the current market price per
share of common stock.
|
Any adjustment to the conversion price for any series of our
preferred stock is made retroactively. No adjustment will be
made in the conversion price for any series of our preferred
stock if the amount of the adjustment would be less than fifty
cents, but any adjustments which are not made for that reason
will be carried forward and taken into account in any subsequent
adjustment and all adjustments will be made not later than the
earlier of three years after the occurrence of the event giving
rise to the adjustment or the date as of which the adjustment
would require an increase or decrease of at least 3% in the
aggregate number of shares of common stock issued and
outstanding on the first date on which an event occurred which
required the making of a computation described above. All
adjustments will be made to the nearest cent or to the nearest
1/100th of a share, as the case may be.
In the case of any capital reorganization or reclassification of
our common stock, or if we consolidate with or merge into, or
sell or dispose of all or substantially all of our property and
assets to, any other corporation, proper provisions will be made
as part of the terms of the capital reorganization,
reclassification, consolidation, merger or sale that any shares
of a particular series of preferred stock at the time
outstanding will thereafter be convertible into the number of
shares of stock or other securities or property to which a
holder of the number of shares of common stock deliverable upon
conversion of the shares of a particular series would have been
entitled upon the capital reorganization, reclassification,
consolidation or merger.
No adjustment with respect to dividends upon any series of our
preferred stock or with respect to dividends upon our common
stock will be made in connection with any conversion.
Whenever there is an issuance of additional shares of our common
stock requiring an adjustment in the conversion price, and
whenever there occurs any other event which results in a change
in the existing conversion rights of the holders of shares of a
series of our preferred stock, we will file with our transfer
agent or agents, and at our principal office in Milwaukee,
Wisconsin, a statement signed by our president or a vice
president and by our treasurer or an assistant treasurer
describing specifically the issuance of additional shares of
common stock or other event (and, in the case of a capital
reorganization, reclassification, consolidation or merger, the
terms thereof), the actual conversion prices or basis of
conversion as changed by the issuance or event and the change,
if any, in the securities issuable upon conversion. Whenever we
issue to all holders of our common stock as a class any rights
or warrants enabling them to subscribe for or purchase shares of
common stock, we will also file in like manner a statement
describing the issuance and the consideration we received as a
result of that issuance. The statement so filed may be inspected
by any holder of record of shares of any series of our preferred
stock.
We will at all times have authorized and will at all times
reserve and set aside a sufficient number of duly authorized
shares of our common stock for the conversion of all stock of
all then outstanding series of preferred stock which are
convertible into common stock.
Reissuance
of Shares
Any shares of our preferred stock retired by purchase,
redemption, through conversion, or through the operation of any
sinking fund or redemption or purchase account, will thereafter
have the status of authorized but unissued shares of preferred
stock, and may thereafter be reissued as part of the same series
or may be reclassified and reissued by our board of directors in
the same manner as any other authorized and unissued shares of
preferred stock.
8
Voting
Rights
Holders of our preferred stock will be entitled to one vote for
each share held on all questions on which our shareholders are
entitled to vote and will vote together share for share with the
holders of our common stock as one class, except as otherwise
provided by law or as described below or as otherwise determined
by the board of directors at the time of the establishment of a
series of preferred stock.
The affirmative vote or written consent of the holders of record
of at least two-thirds of the outstanding shares of a series of
our preferred stock is a prerequisite of our right:
|
|
|
|
|
to create any shares or any securities convertible into or
evidencing the right to purchase shares ranking prior to that
series of our preferred stock with respect to the payment of
dividends or of assets upon liquidation, dissolution or winding
up; or
|
|
|
|
to change the designations, preferences, limitations, or
relative rights of the outstanding shares of that series of
preferred stock in any manner prejudicial to the holders thereof.
|
The affirmative vote or written consent of the holders of a
majority of the outstanding shares of each series of our
preferred stock will be a prerequisite to our right to authorize
any shares of preferred stock in excess of 2,000,000 shares
or any other shares ranking on a parity with our preferred stock
with respect to the payment of dividends or of assets upon
liquidation, dissolution or winding up.
Special
Voting Rights for the Election of Directors upon our Failure to
Pay Dividends
Whenever dividends payable on any series of our preferred stock
are in arrears in an aggregate amount equivalent to six full
quarterly dividends on the shares of all of the preferred stock
of that series then outstanding, the holders of preferred stock
of that series will have the exclusive and special right, voting
separately as a class, to elect two of our directors, and the
number of directors constituting our board of directors will be
increased to the extent necessary to effectuate that right.
Whenever the holders of any series of our preferred stock have
the right to elect two of our directors, that right may be
exercised initially either at a special meeting of the holders
possessing that right or at any annual meeting of our
shareholders, and thereafter at annual meetings of our
shareholders. The right of the holders of any series of our
preferred stock voting separately as a class to elect members of
our board of directors will continue until the time all
dividends accumulated on that series of our preferred stock have
been paid in full, at which time the right of the holders of
that series of our preferred stock to vote separately as a class
for the election of directors will terminate, subject to
revesting in the event of any subsequent default in an aggregate
amount equivalent to six full quarterly dividends.
At any time when the holders of any series of preferred stock
have special voting rights as a result of our failure to make
dividends, a proper officer will, upon the written request of
the holders of at least 10% of the series of our preferred stock
then outstanding entitled to the special voting rights addressed
to our secretary, call a special meeting of the holders of that
series of our preferred stock for the purpose of electing
directors. The special meeting will be held at the earliest
practicable date in the place designated pursuant to our bylaws
or, if there be no designation, at our principal office in
Milwaukee, Wisconsin. If the special meeting is not called by
the proper officers within 20 days after personal service
of the written request upon our secretary, or within
30 days after mailing the written request within the United
States by registered or certified mail addressed to our
secretary at our principal office, then the holders of at least
10% of the series of our preferred stock then outstanding may
designate in writing one of the holders to call a special
meeting at our expense, and the meeting may be called by that
person upon the notice required for annual meetings of
shareholders and will be held in Milwaukee, Wisconsin. In no
event, however, will a special meeting be called during the
period within 90 days immediately preceding the date fixed
for our next annual meeting of shareholders.
At any annual or special meeting at which the holders of any
series of our preferred stock will have the special right,
voting separately as a class, to elect directors as a result of
our failure to pay dividends, the presence, in person or by
proxy, of the holders of
331/3%
of the series of preferred stock entitled to the special voting
rights will be required to constitute a quorum of that series
for the election of any director by the holders of that series
as a class. At that meeting or adjournment thereof, the absence
of a quorum of the series
9
of our preferred stock entitled to special voting rights will
not prevent the election of directors other than those to be
elected by that series of preferred stock voting as a class, and
the absence of a quorum for the election of other directors will
not prevent the election of the directors to be elected by that
series of preferred stock voting as a class. In the absence of
either or both quorums, a majority of the holders present in
person or by proxy of the stock or stocks which lack a quorum
will have power to adjourn the meeting for the election of
directors which they are entitled to elect until a quorum is
present, without notice other than announcement at the meeting.
During any period in which the holders of any series of
preferred stock have the right to vote as a class for directors
as described above, any vacancies in our board of directors will
be filled only by vote of a majority (even if that be only a
single director) of the remaining directors elected by the
holders of the series or class of stock which elected the
directors whose offices have become vacant. During that period
the directors so elected by the holders of any series of
preferred stock will continue in office (1) until the next
succeeding annual meeting or until their successors, if any, are
elected by those holders and qualify, or (2) unless
required by applicable law to continue in office for a longer
period, until termination of the special voting rights of those
holders, if earlier. If and to the extent permitted by
applicable law, immediately upon any termination of the right of
the holders of any series of our preferred stock to vote as a
class for directors as described in this prospectus, the term of
office of the directors then in office so elected by the holders
of that series will terminate.
Other
Restrictions upon our Failure to Pay Dividends or Retire Shares
of Preferred Stock
If we fail at any time to pay dividends in full on our preferred
stock, thereafter and until dividends in full, including all
accrued and unpaid dividends for all past quarterly dividend
periods on our preferred stock outstanding, have been declared
and set apart in trust for payment or paid, or if at any time we
fail to pay in full amounts payable with respect to any
obligations to retire shares of our preferred stock, thereafter
and until those amounts have been paid in full or set apart in
trust for payment, we cannot:
|
|
|
|
|
without the affirmative vote or consent of the holders of at
least
662/3%
of our preferred stock at the time outstanding, redeem less than
all of our preferred stock at the time outstanding; or
|
|
|
|
purchase any of our preferred stock except in accordance with a
purchase offer made in writing to all holders of our preferred
stock of all series upon the terms our board of directors, in
its sole discretion after consideration of the respective annual
dividend rate and other relative rights and preferences of the
respective series, determines (which determination will be final
and conclusive) will result in fair and equitable treatment
among the respective series. We may, to meet the requirements of
any purchase, retirement or sinking fund provisions with respect
to any series,
use shares
of that series that we acquired prior to our failure to pay
dividends. We may also complete the purchase or redemption of
shares of our preferred stock for which a purchase contract was
entered into for any purchase, retirement or sinking fund
purposes, or the notice of redemption of which was initially
mailed, prior to our failure to pay dividends; or
|
|
|
|
redeem, purchase or otherwise acquire any shares of any other
class of our stock ranking junior to the preferred stock as to
dividends and upon liquidation.
|
DESCRIPTION
OF THE DEBT SECURITIES
The following description of the debt securities sets forth the
material terms and provisions of the debt securities to which
any prospectus supplement
and/or other
offering material may relate. The particular terms of the debt
securities offered by any prospectus supplement
and/or other
offering material and the extent, if any, to which the
provisions described in this prospectus may apply to the offered
debt securities will be described in the prospectus supplement
and/or other
offering material relating to the offered debt securities. As
used in this section, the terms we, us,
our, Johnson Controls and the
Company refer to Johnson Controls, Inc., a Wisconsin
corporation, and not any of its subsidiaries, unless the context
requires.
10
Senior debt securities will be issued under an indenture between
Johnson Controls and U.S. Bank National Association, as
trustee, a form of which is incorporated by reference as an
exhibit to the registration statement of which this prospectus
is a part. The indenture relating to the senior debt securities,
as amended or otherwise supplemented by any supplemental
indentures, is referred to in this prospectus as the senior
indenture. Subordinated debt securities will be issued under an
indenture between Johnson Controls and the trustee, the form of
which is incorporated by reference as an exhibit to the
registration statement of which this prospectus is a part. The
indenture relating to the subordinated debt securities, as
amended or otherwise supplemented by any supplemental
indentures, is referred to in this prospectus as the
subordinated indenture. The senior indenture and the
subordinated indenture are sometimes referred to in this
prospectus collectively as the indentures, and each
individually, as an indenture.
The following summaries of the material provisions of the
indentures and the debt securities do not purport to be complete
and are subject to, and are qualified in their entirety by
reference to, all of the provisions of the indentures, including
the definitions of specified terms used in the indentures, and
the debt securities. Wherever particular articles, sections or
defined terms of an indenture are referred to, it is intended
that those articles, sections or defined terms will be
incorporated herein by reference, and the statement in
connection with which reference is made is qualified in its
entirety by the article, section or defined term in the
indenture.
General
The indentures do not limit the amount of debt, either secured
or unsecured, which we may issue under the indentures or
otherwise. The debt securities may be issued in one or more
series with the same or various maturities and may be sold at
par, a premium or an original issue discount. Some of the debt
securities may be issued under the applicable indenture as
original issue discount securities to be sold at a substantial
discount below their principal amount. Federal income tax and
other considerations applicable to any original issue discount
securities will be described in the related prospectus
supplement
and/or other
offering material. We have the right to reopen a
previous issue of a series of debt by issuing additional debt
securities of such series.
Because we are a holding company, our right, and hence the
rights of our creditors and shareholders, to participate in any
distribution of assets of any of our subsidiaries upon its
liquidation or reorganization or otherwise and the ability of a
holder of debt securities to benefit as our creditor from any
distribution are subject to prior claims of the creditors of the
subsidiary, except to the extent that any claim of ours as a
creditor of the subsidiary may be recognized. The debt
securities will also effectively rank junior in right of payment
to any of our secured debt.
The prospectus supplement
and/or other
offering material relating to the particular series of debt
securities offered thereby will describe the following terms of
the offered debt securities:
|
|
|
|
|
the title of the offered debt securities;
|
|
|
|
any limit upon the aggregate principal amount of the offered
debt securities;
|
|
|
|
the date or dates (or the manner of calculating the date or
dates) on which the principal of the offered debt securities is
payable;
|
|
|
|
the rate or rates (or the manner of calculating the rate or
rates) at which the offered debt securities shall bear interest,
if any, the date or dates from which such interest shall accrue,
the interest payment dates on which such interest shall be
payable and the regular record date for the interest payable on
any interest payment date;
|
|
|
|
the place or places where the principal of and premium, if any,
and interest, if any, on the offered debt securities will be
payable;
|
|
|
|
the period or periods within which, the price or prices at
which, the currency or currency units in which, and the terms
and conditions upon which the offered debt securities may be
redeemed, in whole or in part, at our option;
|
11
|
|
|
|
|
our obligation, if any, to redeem or purchase the offered debt
securities pursuant to any sinking fund or analogous provisions
or at the option of a holder thereof and the period or periods
within which, the price or prices in the currency at which, the
currency or currency units in which, and the terms and
conditions upon which the offered debt securities shall be
redeemed or purchased, in whole or in part, pursuant to such
obligation;
|
|
|
|
the denominations in which the offered debt securities shall be
issuable if other than denominations of $1,000 and any integral
multiple thereof;
|
|
|
|
if other than the currency of the United States of America, the
currencies in which payments of interest or principal of (and
premium, if any, with respect to) the offered debt securities
are to be made;
|
|
|
|
if the interest on or principal of (or premium, if any, with
respect to) the offered debt securities are to be payable, at
our election or at the election of a holder thereof or
otherwise, in a currency other than that in which such debt
securities are payable, the period or periods within which, and
the other terms and conditions upon which, such election may be
made, and the time and manner of determining the exchange rate
between the currency in such debt securities are denominated or
stated to be payable and the currency in which such debt
securities or any of them are to be so payable;
|
|
|
|
whether the amount of payments of interest on or principal of
(or premium, if any, with respect to) the offered debt
securities of such series may be determined with reference to an
index, formula or other method (which index, formula or method
or method may be based, without limitation, on one or more
currencies, commodities, equity indices or other indices), and,
if so, the terms and conditions upon which and the manner in
which such amounts shall be determined and paid or payable;
|
|
|
|
the extent to which any offered debt securities will be issuable
in permanent global form, the manner in which any payments on a
permanent global debt security will be made, and the appointment
of any depository relating thereto;
|
|
|
|
the inapplicability of specified provisions relating to
discharge and defeasance described in this prospectus with
respect to the offered debt securities;
|
|
|
|
any deletions from, modifications of or additions to the events
of default or covenants with respect to the offered debt
securities of such series, whether or not such events of default
or covenants are consistent with the events of default or
covenants set forth herein;
|
|
|
|
if any of the offered debt securities are to be issuable upon
the exercise of warrants, and, if so, the time, manner and place
for such debt securities to be authenticated and delivered;
|
|
|
|
the terms of any right to convert the offered debt securities of
such series into, or exchange the debt securities for, our
common stock or other securities or property or cash in lieu of
our common stock or other securities or property, or any
combination thereof; and
|
|
|
|
any other terms of the series (which terms shall not be
inconsistent with the provisions of the related indenture).
|
Payments
Unless otherwise indicated in any prospectus supplement
and/or other
offering material, principal of and premium, if any, and
interest, if any, on the offered debt securities will be
payable, and transfers of the offered debt securities will be
registrable, at the corporate trust office of the trustee.
Alternatively, at our option, payment of interest may be made by
check mailed to the address of the person entitled thereto as it
appears in the debt security register.
Denominations,
Registration and Transfer
Unless otherwise indicated in any prospectus supplement
and/or other
offering material, the offered debt securities will be issued
only in fully registered form without coupons in denominations
of $1,000 or any integral multiple of $1,000, or the equivalent
in foreign currency. No service charge will be made for any
12
registration of transfer or exchange of offered debt securities,
but we may require payment of a sum sufficient to cover any tax
or other governmental charge payable in connection with any
transfer or exchange.
If the purchase price of any of the offered debt securities is
denominated in a foreign currency or currencies or foreign
currency unit or units or if the principal of, premium, if any,
or interest, if any, on any series of offered debt securities is
payable in a foreign currency or currencies or foreign currency
unit or units, the restrictions, elections, tax consequences,
specific terms and other information with respect to the issue
of offered debt securities and the foreign currency or
currencies or foreign currency unit or units will be described
in the related prospectus supplement
and/or other
offering material.
We will not be required to issue, register the transfer of, or
exchange debt securities of any series during the period from
15 days prior to the mailing of a notice of redemption of
debt securities of that series to the date the notice is mailed.
We will also not be required to register the transfer of or
exchange any debt security so selected for redemption, except
the unredeemed portion of any debt security being redeemed in
part.
Conversion
and Exchange
The terms, if any, on which debt securities of any series are
convertible into or exchangeable for common stock or preferred
stock, property or cash, or a combination of any of the
foregoing, will be set forth in the related prospectus
supplement
and/or other
offering material. Terms may include provisions for conversion
or exchange that is either mandatory, at the option of the
holder, or at our option. The number of shares of common stock
or preferred stock to be received by the holders of the debt
securities will be calculated in the manner, according to the
factors and at the time as described in the related prospectus
supplement
and/or other
offering material.
Covenants
Applicable to Senior Debt Securities
The indentures require us to comply with certain restrictive
covenants.
Restrictions
on Secured Debt
We may not, and may not permit our restricted subsidiaries to,
create, assume, or guarantee any indebtedness secured by
mortgages, pledges, liens, encumbrances, conditional sale or
title retention agreements or other security interests, which we
refer to collectively as security interests, on any of our
principal properties or any shares of capital stock or
indebtedness of any of our restricted subsidiaries without
making effective provision for securing the senior debt
securities offered under this prospectus and any prospectus
supplement
and/or other
offering material equally and ratably with the secured debt.
Notwithstanding this limitation on secured debt, we and our
restricted subsidiaries may have debt secured by:
|
|
|
|
|
(a) any security interest on any property hereafter
acquired or constructed by us or a restricted subsidiary to
secure or provide for the payment of all or any part of the
purchase price or construction cost of such property, including,
but not limited to, any indebtedness incurred by us or a
restricted subsidiary prior to, at the time of, or within
180 days after the later of the acquisition, the completion
of construction (including any improvements on an existing
property) or the commencement of commercial operation of such
property, which indebtedness is incurred for the purpose of
financing all or any part of the purchase price thereof or
construction or improvements thereon; or (b) the
acquisition of property subject to any security interest upon
such property existing at the time of acquisition thereof,
whether or not assumed by us or such restricted subsidiary; or
(c) any security interest existing on the property or on
the outstanding shares of capital stock or indebtedness of a
corporation at the time such corporation shall become a
restricted subsidiary; or (d) a security interest on
property or shares of capital stock or indebtedness of a
corporation existing at the time such corporation is merged into
or consolidated with us or a restricted subsidiary or at the
time of a sale, lease or other disposition of the properties of
a corporation or firm as an entirety or substantially as an
entirety to us or a restricted subsidiary, provided, however,
that no such security interest shall extend to any other
principal property of ours or such restricted subsidiary prior
to such acquisition or to the other principal property
thereafter acquired other than additions to such acquired
property;
|
13
|
|
|
|
|
security interests in property of ours or a restricted
subsidiary in favor of the United States of America or any State
thereof, or any department, agency or instrumentality or
political subdivision of the United States of America or any
State thereof, or in favor of any other country, or any
department, agency or instrumentality or political subdivision
thereof (including, without limitation, security interests to
secure indebtedness of the pollution control or industrial
revenue bond type), in order to permit us or a restricted
subsidiary to perform any contract or subcontract made by it
with or at the request of any of the foregoing, or to secure
partial, progress, advance or other payments pursuant to any
contract or statute or to secure any indebtedness incurred for
the purpose of financing all or any part of the purchase price
or the cost of constructing or improving the property subject to
such security interests;
|
|
|
|
any security interest on any property or assets of any
restricted subsidiary to secure indebtedness owing by it to us
or to a restricted subsidiary;
|
|
|
|
mechanics, materialmens, carriers or other
like liens arising in the ordinary course of business (including
construction of facilities) in respect of obligations which are
not due or which are being contested in good faith;
|
|
|
|
any security interest arising by reason of deposits with, or the
giving of any form of security to, any governmental agency or
any body created or approved by law or governmental regulations,
which is required by law or governmental regulation as a
condition to the transaction of any business, or the exercise of
any privilege, franchise or license;
|
|
|
|
security interests for taxes, assessments or governmental
charges or levies not yet delinquent, or the security interests
for taxes, assessments or government charges or levies already
delinquent but the validity of which is being contested in good
faith;
|
|
|
|
security interests (including judgment liens) arising in
connection with legal proceedings so long as such proceedings
are being contested in good faith and, in the case of judgment
liens, execution thereon is stayed;
|
|
|
|
landlords liens on fixtures located on premises leased by
us or a restricted subsidiary in the ordinary course of
business; or
|
|
|
|
any extension, renewal or replacement (or successive extensions,
renewals or replacements) in whole or in part of any security
interest permitted by these indentures.
|
In addition to these exceptions, we or a restricted subsidiary
may assume or guarantee other secured debt without securing the
debt securities if the total amount of secured debt outstanding
and value of sale and leaseback transactions at the time does
not exceed 10% of Consolidated Shareholders Equity,
determined as of a date not more than 90 days prior thereto.
Consolidated Shareholders Equity means, at any
date, our stockholders equity and that of our consolidated
subsidiaries determined on a consolidated basis as of such date
in accordance with generally accepted accounting principles;
provided that, our consolidated stockholders equity
and that of our consolidated subsidiaries is to be calculated
without giving effect to (i) the application of Financial
Accounting Standards Board Statement No. 106 or
(ii) the cumulative foreign currency translation
adjustment. The term consolidated subsidiary means,
as to any person, each subsidiary of such person (whether now
existing or hereafter created or acquired) the financial
statements of which shall be (or should have been) consolidated
with the financial statements of such person in accordance with
generally accepted accounting principles, but excluding any such
consolidated subsidiary of York International Corporation that
would not be so consolidated but for the effect of Financial
Accounting Standards Board Interpretation No. 46.
The term value means with respect to a sale and
leaseback transaction, an amount equal to the greater of:
|
|
|
|
|
the net proceeds of the sale of the property leased pursuant to
the sale and leaseback transaction; or
|
|
|
|
the fair value of the property at the time of the sale and
leaseback transaction, as determined by our board of directors.
|
14
In either case, the amount derived is first divided by the term
of the lease and then multiplied by the number of years
remaining on the lease at the time of determination.
Restrictions
on Sale and Leaseback Transactions
We and our restricted subsidiaries may not engage in sale and
leaseback transactions (excluding such transactions between us
and our restricted subsidiaries or between our restricted
subsidiaries) whereby a principal property that is owned by us
or one of our restricted subsidiaries and that has been in full
operation for more than 180 days is sold or transferred
with the intention of taking back a lease of such property
(except a lease for a term of no more than three years entered
into with the intent that the use by us or such restricted
subsidiary of such property will be discontinued on or before
the expiration of such term).
The sale and leaseback of a principal property is not
prohibited, however, if we and the applicable restricted
subsidiary would be permitted under the applicable indenture to
incur secured debt equal in amount to the amount realized or to
be realized upon the sale or transfer secured by a lien on the
principal property to be leased without equally and ratably
securing the debt securities. We and our restricted subsidiaries
may also engage in an otherwise prohibited sale and leaseback
transaction if an amount equal to the value of the principal
property so leased is applied, subject to credits for delivery
by us to the trustee of debt securities we have previously
purchased or otherwise acquired and specified voluntary
redemptions of the debt securities, to the retirement (other
than mandatory retirement), within 120 days of the
effective date of the arrangement, of specified indebtedness for
borrowed money incurred or assumed by us or a restricted
subsidiary, as shown on our most recent consolidated balance
sheet and, in the case of our indebtedness, the indebtedness is
not subordinated to the debt securities.
Restrictions
on Transfer of Principal Properties to Some
Subsidiaries
The senior indenture provides that, so long as the senior debt
securities of any series are outstanding, we will not, and will
not cause or permit any of our restricted subsidiaries to,
transfer (whether by merger, consolidation or otherwise) any
principal property to any unrestricted subsidiary, unless such
subsidiary shall apply within one year after the effective date
of the transaction, or shall have committed within one year of
the effective date to apply, an amount equal to the fair value
of the principal property at the time of transfer:
|
|
|
|
|
to the acquisition, construction, development or improvement of
properties, facilities or equipment which are, or upon the
acquisition, construction, development or improvement will be, a
principal property or properties or a part thereof;
|
|
|
|
to the redemption of senior debt securities;
|
|
|
|
to the repayment of certain indebtedness for borrowed money of
us or any of our restricted subsidiaries, other than any
indebtedness owed to any restricted subsidiary or our
subordinated indebtedness; or
|
|
|
|
in part to an acquisition, construction, development or
improvement and in part to redemption
and/or
repayment, in each case as described above.
|
The fair value of any principal property for purposes of this
paragraph will be as determined by our board of directors. In
lieu of applying all or any part of any amount to redemption of
senior debt securities, we may, within one year of the transfer,
deliver to the trustee under the senior indenture senior debt
securities of any series, other than senior debt securities made
the basis of a reduction in a mandatory sinking fund payment,
for cancellation and thereby reduce the amount to be applied to
the redemption of senior debt securities of that series by an
amount equivalent to the aggregate principal amount of the
senior debt securities so delivered.
Certain
Definitions
The following are the meanings of terms that are important in
understanding the covenants previously described:
|
|
|
|
|
principal property means any manufacturing
plant, warehouse, office building or parcel of real property,
including fixtures but excluding leases and other contract
rights which might otherwise be
|
15
|
|
|
|
|
deemed real property, owned by us or any restricted subsidiary,
whether owned on the date of the senior indenture or thereafter,
that has a gross book value (without deduction for any
depreciation reserves) at the date as of which the determination
is being made of in excess of two percent of the consolidated
net tangible assets of us and our restricted subsidiaries, other
than such plant, warehouse, office building or parcel of real
property or portion thereof which, in the opinion of our board
of directors (evidenced by a certified board resolution thereof
delivered to the Trustee), is not of material importance to the
business conducted by us and our restricted subsidiaries taken
as a whole.
|
|
|
|
|
|
restricted subsidiary means any subsidiary
other than an unrestricted subsidiary, and any subsidiary which
is an unrestricted subsidiary but which is designated by our
board of directors to be a restricted subsidiary. Our board of
directors may not designate any subsidiary to be a restricted
subsidiary if we would thereby breach any covenant or agreement
contained in the senior indenture, assuming for the purpose of
determining whether such a breach would occur that any secured
debt of that subsidiary was incurred at the time of the
designation and that any sale and leaseback transaction to which
the subsidiary is then a party was entered into at the time of
the designation.
|
|
|
|
secured debt means indebtedness for money
borrowed which is secured by a security interest in (a) any
principal property or (b) any shares of capital stock or
indebtedness of any restricted subsidiary and certain
indebtedness for borrowed money having a maturity of more than
twelve months from the date of the most recent consolidated
balance sheet of the Company and its restricted subsidiaries
(excluding indebtedness of unrestricted subsidiaries).
|
|
|
|
subsidiary means any corporation of which we,
or we and one or more of our subsidiaries, or any one or more
subsidiaries, directly or indirectly own more than 50% of the
voting stock of such corporation.
|
|
|
|
unrestricted subsidiary means any subsidiary:
|
|
|
|
|
|
acquired or organized after March 31, 1989, other than any
subsidiary acquired or organized after that date that is a
successor, directly or indirectly, to any restricted subsidiary;
|
|
|
|
whose principal business or assets are located outside the
United States, its territories and possessions, Puerto Rico or
Canada;
|
|
|
|
the principal business of which consists of financing or
assisting in financing of customer construction projects or the
acquisition or disposition of products of dealers, distributors
or other customers;
|
|
|
|
engaged in the insurance business or whose principal business is
the ownership, leasing, purchasing, selling or development of
real property; and
|
|
|
|
substantially all the assets of which consist of stock or other
securities of a subsidiary or subsidiaries referred to above in
this sentence, unless and until that subsidiary is designated by
our board of directors to be a restricted subsidiary.
|
Merger
Each indenture provides that we may, without the consent of the
holders of debt securities, consolidate with, or sell, lease or
convey all or substantially all of its assets to, or merge into
any other corporation, provided that:
|
|
|
|
|
immediately after giving effect to the transaction, no default
under the applicable indenture has occurred and is continuing;
|
|
|
|
the successor corporation is a corporation organized and
existing under the laws of the United States or a state
thereof; and
|
|
|
|
the successor corporation expressly assumes the due and punctual
payment of the principal of and premium, if any, and interest on
all debt securities, according to their tenor, and the due and
punctual
|
16
|
|
|
|
|
performance and observance of all the covenants and conditions
of the applicable indenture to be performed by us.
|
In addition, we must provide to the trustee an opinion of legal
counsel that any such transaction and any assumption by a
successor corporation complies with the applicable provisions of
the indenture and that we have complied with all conditions
precedent provided in the indenture relating to such transaction.
Other than the covenants described above, or as set forth in any
accompanying prospectus supplement
and/or other
offering material, neither indenture contains any covenants or
other provisions designed to afford holders of the debt
securities protection in the event of a takeover,
recapitalization or a highly leveraged transaction involving us.
Modification
of the Indentures
With the consent of the holders of more than 50% in aggregate
principal amount of any series of debt securities then
outstanding under the applicable indenture, waivers,
modifications and alterations of the terms of either indenture
may be made which affect the rights of the holders of the series
of debt securities. However, no modification or alteration may,
without the consent of all holders of any series of debt
securities then outstanding affected thereby:
|
|
|
|
|
extend the fixed maturity of any debt security of that series;
|
|
|
|
reduce the rate or extend the time of payment of interest
thereon;
|
|
|
|
reduce the principal amount thereof or any premium thereon;
|
|
|
|
make the principal thereof or interest or premium thereon
payable in any coin or currency other than that provided in the
debt securities; or
|
|
|
|
reduce the percentage of debt securities of that series, the
holders of which are required to consent to:
|
|
|
|
|
|
any supplemental indenture;
|
|
|
|
rescind and annul a declaration that the debt securities of that
series are due and payable as a result of the occurrence of an
event of default;
|
|
|
|
waive any past event of default under the applicable indenture
and its consequences; and
|
|
|
|
waive compliance with other specified provisions of the
applicable indenture.
|
In addition, as described in the description of Events of
Default set forth below, holders of more than 50% in
aggregate principal amount of the debt securities of any series
then outstanding may waive past events of default in specified
circumstances and may direct the trustee in enforcement of
remedies.
We and the trustee may, without the consent of any holders,
modify and supplement the applicable indenture:
|
|
|
|
|
to evidence the succession of another corporation to us under
the applicable indenture, or successive successions, and the
assumption by the successor corporation of the covenants,
agreements and obligations of us pursuant to the applicable
indenture;
|
|
|
|
to add to the covenants applicable to us such further covenants,
restrictions, conditions or provisions as our board of directors
and the trustee shall consider to be for the protection of the
holders of debt securities of any or all series, and to make the
occurrence, or the occurrence and continuance, of a default in
any of such additional covenants, restrictions, conditions or
provisions a default or event of default with respect to such
series permitting the enforcement of all or any of the several
remedies provided in the applicable indenture; provided,
however, that in respect of any such additional covenant,
restriction or condition, such supplemental indenture may
provide for a particular period of grace after default (which
period may be shorter or longer than that allowed in the case of
other defaults) or may provide for an immediate enforcement upon
such default or may limit the remedies available to the trustee
upon such default;
|
17
|
|
|
|
|
to cure any ambiguity or to correct or supplement any provision
contained in the applicable indenture or in any supplemental
indenture which may be defective or inconsistent with any other
provision contained in the indenture or in any supplemental
indenture;
|
|
|
|
to convey, transfer, assign, mortgage or pledge any property to
or with the trustee;
|
|
|
|
to make other provisions in regard to matters or questions
arising under the applicable indenture as shall not adversely
affect the interests of the holders;
|
|
|
|
to evidence and provide for the acceptance of appointment by
another corporation as a successor trustee under the applicable
indenture with respect to one or more series of debt securities
and to add to or change any of the provisions of the indenture
as shall be necessary to provide for or facilitate the
administration of the trusts under the indenture by more than
one trustee;
|
|
|
|
to modify, amend or supplement the applicable indenture in such
a manner as to permit the qualification of any supplemental
indenture under the Trust Indenture Act of 1939 as then in
effect, except that nothing contained in the indentures shall
permit or authorize the inclusion in any supplemental indenture
of the provisions referred to in Section 316(a)(2) of the
Trust Indenture Act of 1939;
|
|
|
|
to provide for the issuance under the applicable indenture of
debt securities in coupon form (including debt securities
registrable as to principal only) and to provide for
exchangeability of such debt securities with debt securities of
the same series issued hereunder in fully registered form and to
make all appropriate changes for such purpose;
|
|
|
|
to change or eliminate any of the provisions of the applicable
indenture, provided, however, that any such change or
elimination shall become effective only when there is no debt
security outstanding of any series created prior to the
execution of such supplemental indenture which is entitled to
the benefit of such provision; and
|
|
|
|
to establish any additional form of debt security and to provide
for the issuance of any additional series of debt securities.
|
Covenant
Defeasance and Satisfaction and Discharge of a Series
Covenant
Defeasance of any Series
If we deposit with the trustee, in trust, at or before maturity
or redemption:
|
|
|
|
|
lawful money;
|
|
|
|
direct obligations of the government which issued the currency
in which the debt securities of a series are denominated, or
obligations of a person controlled or supervised by and acting
as an agency or instrumentality of such government and which
obligations are guaranteed by such government (which direct or
guaranteed obligations are full faith and credit obligations of
such government, are denominated in the currency in which the
debt securities of such are denominated and which are not
callable or redeemable at the option of the issuer there) in an
amount and with a maturity so that the proceeds therefrom will
provide funds; or
|
|
|
|
a combination thereof,
|
in each case in an amount sufficient, after payment of all
federal, state and local taxes in respect thereof payable by the
trustee, in the opinion of a nationally-recognized firm of
independent public accountants expressed in a written
certification thereof delivered to the trustee, to pay when due
the principal, premium, if any, and interest to maturity or to
the redemption date, as the case may be, with respect to any
series of debt securities then outstanding, and any mandatory
sinking fund payments or similar payments or payment pursuant to
any call for redemption applicable to such debt securities of
such series on the day on which such payments are due and
payable in accordance with the terms of the applicable indenture
and such debt securities, then the provisions of the indenture
would no longer be effective as to the debt securities to which
18
such deposit relates, including the restrictive covenants
described in this prospectus or any prospectus supplement
relating to such debt securities, except as to:
|
|
|
|
|
our obligation to duly and punctually pay the principal of and
premium, if any, and interest on the series of debt securities
if the debt securities are not paid from the money or securities
held by the trustee;
|
|
|
|
certain of the events of default described under Events of
Default below; and
|
|
|
|
other specified provisions of the applicable indenture
including, among others, those relating to registration,
transfer and exchange, lost or stolen securities, maintenance of
place of payment and, to the extent applicable to the series,
the redemption and sinking fund provisions of the applicable
indenture.
|
Defeasance of debt securities of any series is subject to the
satisfaction of specified conditions, including, among others,
the absence of an event of default at the date of the deposit
and the perfection of the holders security interest in the
deposit.
Satisfaction
and Discharge of any Series
Upon the deposit of money or securities contemplated above and
the satisfaction of specified conditions, the provisions of the
applicable indenture (excluding the exceptions discussed above
under the heading Covenant Defeasance of any Series)
would no longer be effective as to the related debt securities,
we may cease to comply with our obligation to pay duly and
punctually the principal of and premium, if any, and interest on
a particular series of debt securities, the events of default in
the applicable indenture no longer would be effective as to such
debt securities and thereafter the holders of the series of debt
securities will be entitled only to payment out of the money or
securities deposited with the trustee.
The specified conditions include, among others, except in
limited circumstances involving a deposit made within one year
of maturity or redemption:
|
|
|
|
|
the absence of an event of default at the date of deposit or on
the 91st day thereafter;
|
|
|
|
our delivery to the trustee of an opinion of
nationally-recognized tax counsel, or our receipt or publication
of a ruling by the Internal Revenue Service, to the effect that
holders of the debt securities of the series will not recognize
income, gain or loss for federal income tax purposes as a result
of the deposit and discharge, and the holders will be subject to
federal income tax on the same amounts and in the same manner
and at the same times as would have been the case if the deposit
and discharge had not occurred; and
|
|
|
|
that we receive an opinion of counsel to the effect that the
satisfaction and discharge will not result in the delisting of
the debt securities of that series from any
nationally-recognized exchange on which they are listed.
|
Events of
Default
As to any series of debt securities, an event of default is
defined in the applicable indenture as being:
|
|
|
|
|
failure to pay any interest on the debt securities of that
series when due, which failure continues for 30 days;
|
|
|
|
failure to pay principal or premium, if any, with respect to the
debt securities of that series when due;
|
|
|
|
failure to pay or satisfy any sinking fund payment or similar
obligation with respect to debt securities of that series when
due;
|
|
|
|
failure to observe or perform any other covenant, warranty or
agreement in the applicable indenture or debt securities of that
series, other than a covenant, warranty or agreement, a default
in whose performance or whose breach is specifically dealt with
in the section of the applicable indenture governing events of
default, if the failure continues for 75 days after written
notice by the trustee or the
|
19
|
|
|
|
|
holders of at least 25% in aggregate principal amount of the
debt securities of that series then outstanding;
|
|
|
|
|
|
uncured or unwaived failure to pay principal of or interest on
any of our other obligations for borrowed money, including any
other series of debt securities, beyond any period of grace with
respect thereto if
|
|
|
|
|
|
the aggregate principal amount of any the obligation is in
excess of $100,000,000; and
|
|
|
|
the default in payment is not being contested by us in good
faith and by appropriate proceedings;
|
|
|
|
|
|
specified events of bankruptcy, insolvency, receivership or
reorganization; or
|
|
|
|
any other event of default provided with respect to debt
securities of that series.
|
Notice
and Declaration of Defaults
So long as the debt securities of any series remain outstanding,
we will be required to furnish annually to the trustee a
certificate of one of our corporate officers stating whether, to
the best of such officers knowledge, we are in default
under any of the provisions of the applicable indenture, and
specifying all defaults, and the nature thereof, of which such
officer has knowledge. We will also be required to furnish to
the trustee copies of specified reports filed by us with the SEC.
Each indenture provides that the trustee will, within
90 days after the occurrence of a default with respect to
any series for which there are debt securities outstanding which
is continuing, give to the holders of those debt securities
notice of all uncured defaults known to it, including events
specified above without grace periods. Except in the case of
default in the payment of principal, premium, if any, or
interest on any of the debt securities of any series or the
payment of any sinking fund installment on the debt securities
of any series, the trustee may withhold notice to the holders if
the trustee in good faith determines that withholding notice is
in the interest of the holders of the debt securities.
The trustee or the holders of not less than 25% in aggregate
principal amount of the outstanding debt securities of any
series may declare the debt securities of that series
immediately due and payable upon the occurrence of any event of
default after expiration of any applicable grace period. In some
cases, the holders of a majority in principal amount of the debt
securities of any series then outstanding may waive any past
default and its consequences, except a default in the payment of
principal, premium, if any, or interest, including sinking fund
payments.
Actions
upon Default
Subject to the provisions of the applicable indenture relating
to the duties of the trustee in case an event of default with
respect to any series of debt securities occurs and is
continuing, the applicable indenture provides that the trustee
will be under no obligation to exercise any of its rights or
powers under the applicable indenture at the request, order or
direction of any of the holders of debt securities outstanding
of any series unless the holders have offered to the trustee
reasonable indemnity. The right of a holder to institute a
proceeding with respect to the applicable indenture is subject
to conditions precedent including notice and indemnity to the
trustee, but the holder has a right to receipt of principal,
premium, if any, and interest on their due dates or to institute
suit for the enforcement thereof, subject to specified
limitations with respect to defaulted interest.
The holders of a majority in principal amount of the debt
securities outstanding of the series in default will have the
right to direct the time, method and place for conducting any
proceeding for any remedy available to the trustee, or
exercising any power or trust conferred on the trustee. Any
direction by the holders will be in accordance with law and the
provisions of the related indenture, provided that the trustee
may decline to follow any such direction if the trustee
determines on the advice of counsel that the proceeding may not
be lawfully taken or would be materially or unjustly prejudicial
to holders not joining in the direction. The trustee will be
under no obligation to act in accordance with the direction
unless the holders offer the trustee reasonable security or
indemnity against costs, expenses and liabilities which may be
incurred thereby.
20
Subordination
of Subordinated Debt Securities
The senior debt securities will constitute part of our senior
indebtedness and will rank equally with all outstanding senior
debt. Except as set forth in the related prospectus supplement
and/or other
offering material, the subordinated debt securities will be
subordinated, in right of payment, to the prior payment in full
of the senior indebtedness, including the senior debt
securities, whether outstanding at the date of the subordinated
indenture or thereafter incurred, assumed or guaranteed. The
term senior indebtedness means:
|
|
|
|
|
the principal, premium, if any, and unpaid interest on
indebtedness for money borrowed;
|
|
|
|
purchase money and similar obligations;
|
|
|
|
obligations under capital leases;
|
|
|
|
guarantees, assumptions or purchase commitments relating to, or
other transactions as a result of which we are responsible for
the payment of, indebtedness of others;
|
|
|
|
renewals, extensions and refunding of any senior indebtedness;
|
|
|
|
interest or obligations in respect of any senior indebtedness
accruing after the commencement of any insolvency or bankruptcy
proceedings; and
|
|
|
|
obligations associated with derivative products, including
interest rate and currency exchange contracts, foreign exchange
contracts, commodity contracts, and similar arrangements unless,
in each case, the instrument by which we incurred, assumed or
guaranteed the indebtedness or obligations described in the
foregoing clauses expressly provides that the indebtedness or
obligation is not senior in right of payment to the subordinated
debt securities.
|
Upon any distribution of our assets in connection with any
dissolution, winding up, liquidation or reorganization of our
company, whether in a bankruptcy, insolvency, reorganization or
receivership proceeding or upon an assignment for the benefit of
creditors or any other marshalling of our assets and liabilities
or otherwise, except a distribution in connection with a merger
or consolidation or a conveyance or transfer of all or
substantially all of our properties in accordance with the
subordinated indenture, the holders of all senior indebtedness
will first be entitled to receive payment of the full amount due
on the senior indebtedness, or provision will be made for that
payment in money or moneys worth, before the holders of
any of the subordinated debt securities are entitled to receive
any payment in respect of the subordinated debt securities.
In the event that a payment default occurs and is continuing
with respect to the senior indebtedness, the holders of all
senior indebtedness will first be entitled to receive payment of
the full amount due on the senior indebtedness, or provision
will be made for that payment in money or moneys worth,
before the holders of any of the subordinated debt securities
are entitled to receive any payment in respect of the
subordinated debt securities. In the event that the principal of
the subordinated debt securities of any series is declared due
and payable pursuant to the subordinated indenture and that
declaration is not rescinded and annulled, the holders of all
senior indebtedness outstanding at the time of the declaration
will first be entitled to receive payment of the full amount due
on the senior indebtedness, or provision will be made for that
payment in money or moneys worth, before the holders of
any of the subordinated debt securities are entitled to receive
any payment in respect of the subordinated debt securities.
This subordination will not prevent the occurrence of any event
of default with respect to the subordinated debt securities.
There is no limitation on the issuance of additional senior
indebtedness in the subordinated indenture.
Governing
Law
The indentures and the debt securities will be governed by, and
construed in accordance with, the laws of the State of New York.
21
Concerning
the Trustee
We and our affiliates utilize a full range of treasury services,
including investment management and banking services, from the
trustee and its affiliates in the ordinary course of business to
meet our funding and investment needs.
Under each indenture, the trustee is required to transmit annual
reports to all holders regarding its eligibility and
qualifications as trustee under the applicable indenture and
specified related matters.
Book-Entry,
Delivery and Settlement
We will issue the debt securities in whole or in part in the
form of one or more global certificates, which we refer to as
global securities. We will deposit the global securities with or
on behalf of The Depository Trust Company, which we refer
to as DTC, and registered in the name of Cede & Co.,
as nominee of DTC. Beneficial interests in the global securities
may be held through the Euroclear System (Euroclear)
and Clearstream Banking, S.A. (Clearstream) (as
indirect participants in DTC).
We have provided the following descriptions of the operations
and procedures of DTC, Euroclear and Clearstream solely as a
matter of convenience. These operations and procedures are
solely within the control of DTC, Euroclear and Clearstream and
are subject to change by them from time to time. Neither we, any
underwriter nor the trustee take any responsibility for these
operations or procedures, and you are urged to contact DTC,
Euroclear or Clearstream directly to discuss these matters.
DTC has advised us that:
|
|
|
|
|
DTC is a limited-purpose trust company organized under the New
York Banking Law, a banking organization within the
meaning of the New York Banking Law, a member of the Federal
Reserve System, a clearing corporation within the
meaning of the New York Uniform Commercial Code and a
clearing agency registered under Section 17A of
the Securities Exchange Act of 1934;
|
|
|
|
DTC holds securities that its direct participants deposit with
DTC and facilitates the settlement among direct participants of
securities transactions, such as transfers and pledges, in
deposited securities through electronic computerized book-entry
changes in direct participants accounts, thereby
eliminating the need for physical movement of securities
certificates;
|
|
|
|
Direct participants include securities brokers and dealers,
trust companies, clearing corporations and other organizations;
|
|
|
|
DTC is owned by a number of its direct participants and by the
New York Stock Exchange, Inc., the American Stock Exchange LLC
and the Financial Industry Regulatory Authority;
|
|
|
|
Access to the DTC system is also available to indirect
participants such as securities brokers and dealers, banks and
trust companies that clear through or maintain a custodial
relationship with a direct participant, either directly or
indirectly; and
|
|
|
|
The rules applicable to DTC and its direct and indirect
participants are on file with the SEC.
|
We expect that under procedures established by DTC:
|
|
|
|
|
Upon deposit of the global securities with DTC or its custodian,
DTC will credit on its internal system the accounts of direct
participants designated by the underwriters with portions of the
principal amounts of the global securities; and
|
|
|
|
Ownership of the debt securities will be shown on, and the
transfer of ownership of the debt securities will be effected
only through, records maintained by DTC or its nominee, with
respect to interests of direct participants, and the records of
direct and indirect participants, with respect to interests of
persons other than participants.
|
Investors in the global securities who are participants in
DTCs system may hold their interests therein directly
through DTC. Investors in the global notes who are not
participants may hold their interests therein
22
indirectly through organizations (including Euroclear and
Clearstream) which are participants in such system. Euroclear
and Clearstream may hold interests in the global securities on
behalf of their participants through customers securities
accounts in their respective names on the books of their
respective depositories, which are Euroclear Bank S.A./N.V., as
operator of Euroclear, and Citibank, N.A., as depository of
Clearstream. All interests in a securities, including those held
through Euroclear or Clearstream, may be subject to the
procedures and requirements of DTC. Those interests held through
Euroclear or Clearstream may also be subject to the procedures
and requirements of such systems.
The laws of some jurisdictions require that purchasers of
securities take physical delivery of those securities in the
form of a certificate. For that reason, it may not be possible
to transfer interests in a global security to those persons. In
addition, because DTC can act only on behalf of its
participants, who in turn act on behalf of persons who hold
interests through participants, the ability of a person having
an interest in a global security to pledge or transfer that
interest to persons or entities that do not participate in
DTCs system, or otherwise to take actions in respect of
that interest, may be affected by the lack of a physical
definitive security in respect of that interest.
So long as DTC or its nominee is the registered owner of a
global security, DTC or that nominee will be considered the sole
owner or holder of the debt securities represented by that
global security for all purposes under the applicable indenture
and under the debt securities. Except as described below, owners
of beneficial interests in a global security will not be
entitled to have debt securities represented by that global
security registered in their names, will not receive or be
entitled to receive the debt securities in the form of a
physical certificate and will not be considered the owners or
holders of the debt securities under the applicable indenture or
under the debt securities, and may not be entitled to give the
trustee directions, instructions or approvals. For that reason,
each holder owning a beneficial interest in a global security
must rely on DTCs procedures and, if that holder is not a
direct or indirect participant in DTC, on the procedures of the
DTC participant through which that holder owns its interest, to
exercise any rights of a holder of debt securities under the
applicable indenture or the global security.
Neither we nor the trustee will have any responsibility or
liability for any aspect of DTCs records relating to the
debt securities or relating to payments made by DTC on account
of the debt securities, or any responsibility to maintain,
supervise or review any of DTCs records relating to the
debt securities.
We will make payments on the debt securities represented by the
global securities to DTC or its nominee, as the registered owner
of the debt securities. We expect that when DTC or its nominee
receives any payment on the debt securities represented by a
global security, DTC will credit participants accounts
with payments in amounts proportionate to their beneficial
interests in the global security as shown in DTCs records.
We also expect that payments by DTCs participants to
owners of beneficial interests in the global security held
through those participants will be governed by standing
instructions and customary practice as is now the case with
securities held for the accounts of customers registered in the
names of nominees for such customers. DTCs participants
will be responsible for those payments.
Payments on the debt securities represented by the global
securities will be made in immediately available funds.
Transfers between participants in DTC will be made in accordance
with DTCs rules and will be settled in immediately
available funds.
Transfers between participants in DTC will be effected in
accordance with DTCs procedures, and will be settled in
same-day
funds, and transfers between participants in Euroclear and
Clearstream will be effected in accordance with their respective
rules and operating procedures.
Cross-market transfers between the participants in DTC, on the
one hand, and Euroclear or Clearstream participants, on the
other hand, will be effected through DTC in accordance with
DTCs rules on behalf of Euroclear or Clearstream, as the
case may be, by its depository; however, such cross-market
transactions will require delivery of instructions to Euroclear
or Clearstream, as the case may be, by the counterparty in such
system in accordance with the rules and procedures and within
the established deadlines (European time) of such system.
Euroclear or Clearstream, as the case may be, will, if the
transaction meets its settlement requirements, deliver
instructions to its respective depository to take action to
effect final settlement on its
23
behalf by delivering or receiving interests in the relevant
global security in DTC, and making or receiving payment in
accordance with normal procedures for
same-day
funds settlement applicable to DTC. Euroclear participants and
Clearstream participants may not deliver instructions directly
to the depositories for Euroclear or Clearstream.
DTC has advised us that it will take any action permitted to be
taken by a holder of notes only at the direction of one or more
participants to whose account DTC has credited the interests in
the global securities and only in respect of such portion of the
aggregate principal amount of the notes as to which such
participant or participants has or have given such direction.
However, if there is an event of default under the notes, DTC
reserves the right to exchange the global securities for
certificated notes, and to distribute such notes to its
participants.
Although DTC, Euroclear and Clearstream have agreed to the
foregoing procedures to facilitate transfers of interests in the
global securities among participants in DTC, Euroclear and
Clearstream, they are under no obligation to perform or to
continue to perform such procedures, and may discontinue such
procedures at any time. None of the Company, the trustee or any
of their respective agents will have any responsibility for the
performance by DTC, Euroclear or Clearstream or their respective
direct or indirect participants of their respective obligations
under the rules and procedures governing their operations.
Exchange
of Global Securities for Certificated Securities
We will issue certificated debt securities to each person that
DTC identifies as the beneficial owner of debt securities
represented by the global securities upon surrender by DTC of
the global securities only if:
|
|
|
|
|
DTC notifies us that it is no longer willing or able to act as a
depository for the global securities, and we have not appointed
a successor depository within 90 days of that notice;
|
|
|
|
An event of default with respect to the debt securities has
occurred and is continuing; or
|
|
|
|
We decide not to have the debt securities represented by a
global security.
|
Neither we nor the trustee will be liable for any delay by DTC,
its nominee or any direct or indirect participant in identifying
the beneficial owners of the related debt securities. We and the
trustee may conclusively rely on, and will be protected in
relying on, instructions from DTC or its nominee, including
instructions about the registration and delivery, and the
respective principal amounts, of the debt securities to be
issued.
Same Day
Settlement and Payment
We will make payments in respect of the notes represented by the
global securities (including principal, premium, if any, and
interest) by wire transfer of immediately available funds to the
accounts specified by the global securities holder. We will make
all payments of principal, interest and premium, if any, with
respect to certificated notes by wire transfer of immediately
available funds to the accounts specified by the holders of the
certificated notes or, if no such account is specified, by
mailing a check to each such holders registered address.
The notes represented by the global securities are expected to
be eligible to trade in DTCs
Same-Day
Funds Settlement System, and any permitted secondary market
trading activity in such notes will, therefore, be required by
DTC to be settled in immediately available funds. The Company
expects that secondary trading in any certificated notes will
also be settled in immediately available funds.
Because of time zone differences, the securities account of a
Euroclear or Clearstream participant purchasing an interest in a
global security from a participant in DTC will be credited, and
any such crediting will be reported to the relevant Euroclear or
Clearstream participant, during the securities settlement
processing day (which must be a business day for Euroclear and
Clearstream) immediately following the settlement date of DTC.
DTC has advised us that cash received in Euroclear or
Clearstream as a result of sales of interests in a global
securities by or through a Euroclear or Clearstream participant
to a participant in DTC will be received with value on the
settlement date of DTC but will be available in the relevant
Euroclear or Clearstream cash account only as of the business
day for Euroclear or Clearstream following DTCs settlement
date.
24
DESCRIPTION
OF THE WARRANTS TO PURCHASE COMMON STOCK OR PREFERRED
STOCK
We may issue, alone or together with common stock or preferred
stock, stock warrants for the purchase of common stock or
preferred stock. The stock warrants will be issued under a stock
warrant agreement to be entered into between us and a warrant
agent to be selected at the time of the issue. The stock warrant
agreement may include or incorporate by reference standard
warrant provisions substantially in the form of the standard
stock warrant provisions incorporated by reference as an exhibit
to the registration statement of which this prospectus is a part.
If stock warrants are offered, the related prospectus supplement
and/or other
offering material will describe the designation and terms of the
stock warrants, including, among other things, the following:
|
|
|
|
|
the offering price, if any;
|
|
|
|
the designation of the common stock or the designation and terms
of the preferred stock purchasable upon exercise of the stock
warrants;
|
|
|
|
if applicable, the date on and after which the stock warrants
and the related offered securities will be separately
transferable;
|
|
|
|
the number of shares of common stock or preferred stock
purchasable upon exercise of each stock warrant and the initial
price at which the shares may be purchased upon exercise;
|
|
|
|
the date on which the right to exercise the stock warrants will
commence and the date on which that right will expire;
|
|
|
|
a discussion of material federal income tax considerations;
|
|
|
|
the call provisions, if any;
|
|
|
|
the currency, currencies or currency units in which the offering
price, if any, and exercise price are payable;
|
|
|
|
the antidilution provisions of the stock warrants; and
|
|
|
|
any other terms of the stock warrants.
|
Holders of stock warrants, by virtue of being such holders, will
not be entitled to vote, consent, receive dividends, receive
notice as shareholders with respect to any meeting of
shareholders for the election of directors of Johnson Controls
or any other matter, or to exercise any rights whatsoever as
shareholders of Johnson Controls.
DESCRIPTION
OF THE WARRANTS TO PURCHASE DEBT SECURITIES
We may issue, alone or together with debt securities, debt
warrants for the purchase of debt securities. The debt warrants
will be issued under debt warrant agreement to be entered into
between us and a warrant agent to be selected at the time of the
issue. The debt warrant agreement may include or incorporate by
reference standard warrant provisions substantially in the form
of the standard debt warrant provisions incorporated by
reference as an exhibit to the registration statement of which
this prospectus is a part.
If debt warrants are offered, the related prospectus supplement
and/or other
offering material will describe the designation and terms of the
debt warrants, including, among other things, the following:
|
|
|
|
|
the offering price, if any;
|
|
|
|
the designation, aggregate principal amount and terms of the
debt securities purchasable upon exercise of the debt warrants;
|
|
|
|
if applicable, the date on and after which the debt warrants and
the related offered securities will be separately transferable;
|
25
|
|
|
|
|
the principal amount of debt securities purchasable upon
exercise of one debt warrant and the price at which that
principal amount of debt securities may be purchased upon
exercise;
|
|
|
|
the date on which the right to exercise the debt warrants will
commence and the date on which that right will expire;
|
|
|
|
a discussion of material federal income tax considerations;
|
|
|
|
whether the warrants represented by the debt warrant
certificates will be issued in registered or bearer form;
|
|
|
|
the currency, currencies or currency units in which the offering
price, if any, and exercise price are payable;
|
|
|
|
the antidilution provisions of the debt warrants; and
|
|
|
|
any other terms of the debt warrants.
|
Holders of debt warrants do not have any of the rights of
holders of debt securities, including the right to receive the
payment of principal of, or interest on, the debt securities or
to enforce any of the covenants of the debt securities or the
related indenture except as otherwise provided in the related
indenture.
DESCRIPTION
OF THE STOCK PURCHASE CONTRACTS AND STOCK PURCHASE
UNITS
We may issue stock purchase contracts that obligate you to
purchase from us, and obligate us to sell to you, a specified or
varying number of shares of common stock at a future date or
dates. Alternatively, the stock purchase contracts may obligate
us to purchase from you, and obligate you to sell to us, a
specified or varying number of shares of common stock or
preferred stock at a future date or dates. The price per share
of common stock or preferred stock may be fixed at the time the
stock purchase contracts are entered into or may be determined
by reference to a specific formula set forth in the stock
purchase contracts. Any stock purchase contract may include
anti-dilution provisions to adjust the number of shares to be
delivered pursuant to the stock purchase contract upon the
occurrence of specified events.
The stock purchase contracts may be entered into separately or
as a part of stock purchase units consisting of a stock purchase
contract and, as security for your obligations to purchase or
sell the shares of common stock or preferred stock, as the case
may be, under the stock purchase contracts, either:
|
|
|
|
|
common stock;
|
|
|
|
preferred stock;
|
|
|
|
debt securities; or
|
|
|
|
debt obligations of third parties, including U.S. Treasury
securities.
|
If we issue stock purchase units where debt obligations of third
parties are used as security for your obligations to purchase or
sell shares of common stock or preferred stock, we will include
in the prospectus supplement
and/or other
offering material relating to the offering information about the
issuer of the debt securities. Specifically, if the issuer has a
class of securities registered under the Securities Exchange Act
of 1934 and is either eligible to register its securities on
Form S-3
under the Securities Act of 1933 or meets the listing criteria
to be listed on a national securities exchange, we will include
a brief description of the business of the issuer, the market
price of its securities and how you can obtain more information
about the issuer. If the issuer does not meet the criteria
described in the previous sentence, we will include
substantially all of the information that would be required if
the issuer were making a public offering of the debt securities.
The stock purchase contracts may require us to make periodic
payments to you or vice versa, and these payments may be
unsecured or prefunded and may be paid on a current or deferred
basis. The stock purchase contracts may require you to secure
your obligations in a specified manner and, in some
circumstances, we may deliver newly issued prepaid stock
purchase contracts upon release to you of any collateral
securing your obligations under the original stock purchase
contract.
26
The applicable prospectus supplement
and/or other
offering material will describe the specific terms of any stock
purchase contracts or stock purchase units and, if applicable,
prepaid stock purchase contracts.
SELLING
SHAREHOLDERS
We may register shares of common stock covered by this
prospectus for re-offers and resales by any selling shareholders
to be named in a prospectus supplement. We may register these
shares to permit selling shareholders to resell their shares
when they deem appropriate. A selling shareholder may resell
all, a portion or none of such shareholders shares at any
time and from time to time. Selling shareholders may also sell,
transfer or otherwise dispose of some or all of their shares of
our common stock in transactions exempt from the registration
requirements of the Securities Act. We do not know when or in
what amounts the selling shareholders may offer shares for sale
under this prospectus and any prospectus supplement. We will not
receive any proceeds from any sale of shares by a selling
shareholder under this prospectus and any prospectus supplement.
We may pay all expenses incurred with respect to the
registration of the shares of common stock owned by the selling
shareholders, other than underwriting fees, discounts or
commissions which will be borne by the selling shareholders. We
will provide you with a prospectus supplement naming the selling
shareholders, the amount of shares to be registered and sold and
any other terms of the shares of common stock being sold by each
selling shareholder.
PLAN OF
DISTRIBUTION
We may sell our securities, and any selling shareholder may sell
shares of our common stock, in any one or more of the following
ways from time to time: (1) through agents; (2) to or
through underwriters; (3) through brokers or dealers;
(4) directly by us or any selling shareholders to
purchasers, including through a specific bidding, auction or
other process; or (5) through a combination of any of these
methods of sale. The applicable prospectus supplement
and/or other
offering materials will contain the terms of the transaction,
name or names of any underwriters, dealers, agents and the
respective amounts of securities underwritten or purchased by
them, the initial public offering price of the securities, and
the applicable agents commission, dealers purchase
price or underwriters discount. Any selling shareholders,
dealers and agents participating in the distribution of the
securities may be deemed to be underwriters, and compensation
received by them on resale of the securities may be deemed to be
underwriting discounts. Additionally, because selling
shareholders may be deemed to be underwriters within
the meaning of Section 2(11) of the Securities Act, selling
shareholders may be subject to the prospectus delivery
requirements of the Securities Act.
Any initial offering price, dealer purchase price, discount or
commission may be changed from time to time.
The securities may be distributed from time to time in one or
more transactions, at negotiated prices, at a fixed price or
fixed prices (that may be subject to change), at market prices
prevailing at the time of sale, at various prices determined at
the time of sale or at prices related to prevailing market
prices.
Offers to purchase securities may be solicited directly by us or
any selling shareholder or by agents designated by us from time
to time. Any such agent may be deemed to be an underwriter, as
that term is defined in the Securities Act, of the securities so
offered and sold.
If underwriters are utilized in the sale of any securities in
respect of which this prospectus is being delivered, such
securities will be acquired by the underwriters for their own
account and may be resold from time to time in one or more
transactions, including negotiated transactions, at fixed public
offering prices or at varying prices determined by the
underwriters at the time of sale. Securities may be offered to
the public either through underwriting syndicates represented by
managing underwriters or directly by one or more underwriters.
If any underwriter or underwriters are utilized in the sale of
securities, unless otherwise indicated in the applicable
prospectus supplement
and/or other
offering material, the obligations of the underwriters are
subject to certain conditions precedent, and the underwriters
will be obligated to purchase all such securities if they
purchase any of them.
27
If a dealer is utilized in the sale of the securities in respect
of which this prospectus is delivered, we will sell such
securities, and any selling shareholder will sell shares of our
common stock to the dealer, as principal. The dealer may then
resell such securities to the public at varying prices to be
determined by such dealer at the time of resale. Transactions
through brokers or dealers may include block trades in which
brokers or dealers will attempt to sell shares as agent but may
position and resell as principal to facilitate the transaction
or in cross trades, in which the same broker or dealer acts as
agent on both sides of the trade. Any such dealer may be deemed
to be an underwriter, as such term is defined in the Securities
Act, of the securities so offered and sold. In addition, any
selling shareholder may sell shares of our common stock in
ordinary brokerage transactions or in transactions in which a
broker solicits purchases.
Offers to purchase securities may be solicited directly by us or
any selling shareholder and the sale thereof may be made by us
or any selling shareholder directly to institutional investors
or others, who may be deemed to be underwriters within the
meaning of the Securities Act with respect to any resale thereof.
Any selling shareholders may also resell all or a portion of
their shares of our common stock in transactions exempt from the
registration requirements of the Securities Act in reliance upon
Rule 144 under the Securities Act provided they meet the
criteria and conform to the requirements of that rule,
Section 4(1) of the Securities Act or other applicable
exemptions, regardless of whether the securities are covered by
the registration statement of which this prospectus forms a part.
If so indicated in the applicable prospectus supplement
and/or other
offering material, we or any selling shareholder may authorize
agents and underwriters to solicit offers by certain
institutions to purchase securities from us or any selling
shareholder at the public offering price set forth in the
applicable prospectus supplement
and/or other
offering material pursuant to delayed delivery contracts
providing for payment and delivery on the date or dates stated
in the applicable prospectus supplement
and/or other
offering material. Such delayed delivery contracts will be
subject only to those conditions set forth in the applicable
prospectus supplement
and/or other
offering material.
Agents, underwriters and dealers may be entitled under relevant
agreements with us or any selling shareholder to indemnification
by us against certain liabilities, including liabilities under
the Securities Act, or to contribution with respect to payments
which such agents, underwriters and dealers may be required to
make in respect thereof. The terms and conditions of any
indemnification or contribution will be described in the
applicable prospectus supplement
and/or other
offering material.
We may pay all expenses incurred with respect to the
registration of the shares of common stock owned by any selling
shareholders, other than underwriting fees, discounts or
commissions, which will be borne by the selling shareholders. We
or any selling shareholder may also sell shares of our common
stock through various arrangements involving mandatorily or
optionally exchangeable securities, and this prospectus may be
delivered in connection with those sales.
We or any selling shareholder may enter into derivative, sale or
forward sale transactions with third parties, or sell securities
not covered by this prospectus to third parties in privately
negotiated transactions. If the applicable prospectus supplement
and/or other
offering material indicates, in connection with those
transactions, the third parties may sell securities covered by
this prospectus and the applicable prospectus supplement
and/or other
offering material, including in short sale transactions and by
issuing securities not covered by this prospectus but
convertible into, exchangeable for or representing beneficial
interests in securities covered by this prospectus, or the
return of which is derived in whole or in part from the value of
such securities. The third parties may use securities received
under derivative, sale or forward sale transactions or
securities pledged by us or any selling shareholder or borrowed
from us, any selling shareholder or others to settle those sales
or to close out any related open borrowings of stock, and may
use securities received from us or any selling shareholder in
settlement of those transactions to close out any related open
borrowings of stock. The third party in such sale transactions
will be an underwriter and will be identified in the applicable
prospectus supplement (or a post-effective amendment)
and/or other
offering material.
Additionally, any selling shareholder may engage in hedging
transactions with broker-dealers in connection with
distributions of shares or otherwise. In those transactions,
broker-dealers may engage in short sales
28
of shares in the course of hedging the positions they assume
with such selling shareholder. Any selling shareholder also may
sell shares short and redeliver shares to close out such short
positions. Any selling shareholder may also enter into option or
other transactions with broker-dealers which require the
delivery of shares to the broker-dealer. The broker-dealer may
then resell or otherwise transfer such shares pursuant to this
prospectus. Any selling shareholder also may loan or pledge
shares, and the borrower or pledgee may sell or otherwise
transfer the shares so loaned or pledged pursuant to this
prospectus. Such borrower or pledgee also may transfer those
shares to investors in our securities or the selling
shareholders securities or in connection with the offering
of other securities not covered by this prospectus.
Underwriters, broker-dealers or agents may receive compensation
in the form of commissions, discounts or concessions from us or
any selling shareholder. Underwriters, broker-dealers or agents
may also receive compensation from the purchasers of shares for
whom they act as agents or to whom they sell as principals, or
both. Compensation as to a particular underwriter, broker-dealer
or agent will be in amounts to be negotiated in connection with
transactions involving shares and might be in excess of
customary commissions. In effecting sales, broker-dealers
engaged by us or any selling shareholder may arrange for other
broker-dealers to participate in the resales.
Any securities offered other than common stock will be a new
issue and, other than the common stock, which is listed on the
New York Stock Exchange, will have no established trading
market. We may elect to list any series of securities on an
exchange, and in the case of the common stock, on any additional
exchange, but, unless otherwise specified in the applicable
prospectus supplement
and/or other
offering material, we shall not be obligated to do so. No
assurance can be given as to the liquidity of the trading market
for any of the securities.
Agents, underwriters and dealers may engage in transactions
with, or perform services for, us or our subsidiaries or any
selling shareholder in the ordinary course of business.
Any underwriter may engage in overallotment, stabilizing
transactions, short covering transactions and penalty bids in
accordance with Regulation M under the Securities Exchange
Act of 1934. Overallotment involves sales in excess of the
offering size, which create a short position. Stabilizing
transactions permit bids to purchase the underlying security so
long as the stabilizing bids do not exceed a specified maximum.
Short covering transactions involve purchases of the securities
in the open market after the distribution is completed to cover
short positions. Penalty bids permit the underwriters to reclaim
a selling concession from a dealer when the securities
originally sold by the dealer are purchased in a covering
transaction to cover short positions. Those activities may cause
the price of the securities to be higher than it would otherwise
be. If commenced, the underwriters may discontinue any of the
activities at any time. An underwriter may carry out these
transactions on the New York Stock Exchange, in the
over-the-counter market or otherwise.
The place and time of delivery for securities will be set forth
in the accompanying prospectus supplement
and/or other
offering material for such securities.
WHERE YOU
CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements
and other information with the SEC under the Securities Exchange
Act of 1934. You may read and copy that information at the
SECs Public Reference Room located at
100 F Street, N.E., Washington, D.C. 20549.
Please call the SEC at
1-800-SEC-0330
for further information on the public reference room.
The SEC also maintains a web site that contains reports, proxy
statements and other information about issuers, including
Johnson Controls, that file electronically with the SEC. The
address of that site is
http://www.sec.gov.
Our SEC filings are also available on our website, located at
http://www.johnsoncontrols.com.
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 filed separately with the SEC. The information
incorporated by reference is considered to be a part of this
prospectus, except for any information that is superseded by
information that is included directly in this document.
29
This prospectus incorporates by reference the documents listed
below that we have previously filed with the SEC. The documents
contain important information about us and our financial
condition:
|
|
|
Our Filings with the SEC
|
|
Period
|
|
Annual Report on
Form 10-K
|
|
Year ended September 30, 2008
|
Quarterly Report on
Form 10-Q
|
|
Quarter ended December 31, 2008
|
Current Report on
Form 8-K
|
|
Dated November 19, 2008
|
The description of the Companys Common Stock contained in
Item 1 of the Companys Registration Statement on
Form 8-A
dated April 23, 1965, as superseded by the description
contained in the Companys definitive proxy/registration
statement
(Form S-14
Registration
No. 2-62382)
incorporated by reference as Exhibit 1 to Current Report on
Form 8-K,
dated October 23, 1978, and in the Companys
Registration Statement on
Form S-14,
dated April 18, 1985 (Registration
No. 2-97136),
and any amendments or reports filed for the purpose of updating
such description.
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
Securities Exchange Act of 1934 after the date of the filing of
this registration statement, and until the we terminate the
offering of securities pursuant to this prospectus. Our
subsequent filings with the SEC will automatically update and
supersede information in this prospectus.
You may obtain a copy of any of the documents incorporated by
reference in this registration statement at no cost by writing
to or calling our secretary at:
Johnson
Controls, Inc.
Attention: Secretary
5757 North Green Bay Avenue
Milwaukee, Wisconsin
53209-4408
(414) 524-1200
You should not assume that the information in this prospectus,
any prospectus supplement
and/or other
offering material, as well as the information we file or
previously filed with the SEC that we incorporate by reference
in this prospectus, any prospectus supplement
and/or other
offering material, is accurate as of any date other than its
respective date. Our business, financial condition, results of
operations and prospects may have changed since that date.
LEGAL
MATTERS
The validity of the securities offered by this prospectus will
be passed upon for us by Jerome D. Okarma, our Vice President,
Secretary and General Counsel,
and/or
Foley & Lardner LLP, Milwaukee, Wisconsin. As of
February 20, 2009, Mr. Okarma beneficially owned
123,473.502 shares of our common stock, and held options to
purchase 611,000 shares of our common stock, of which
options to purchase 366,000 shares were exercisable. The
opinions of Mr. Okarma and Foley & Lardner LLP
may be conditioned upon and may be subject to assumptions
regarding future action required to be taken by us and any
underwriters, dealers or agents in connection with the issuance
and sale of any securities. The opinions of Mr. Okarma and
Foley & Lardner LLP with respect to securities may be
subject to other conditions and assumptions, as indicated in the
prospectus supplement.
EXPERTS
The financial statements and managements assessment of the
effectiveness of internal control over financial reporting
(which is included in Managements report on Internal
Control over Financial Reporting) incorporated in this
prospectus by reference to the Annual Report on
Form 10-K
of Johnson Controls, Inc. for the year ended September 30,
2008 have been so incorporated in reliance on the report(s) of
PricewaterhouseCoopers LLP, an independent registered public
accounting firm, given on the authority of said firm as experts
in auditing and accounting.
30
$500,000,000
5.000% Senior Notes due
2020
Prospectus Supplement
Joint Book-Running Managers
BofA Merrill Lynch
Citi
Barclays Capital
ING
Senior Co-Managers
Banca IMI
Commerzbank
Corporates & Markets
Danske Markets
J.P. Morgan
Mizuho Securities USA
Inc.
Standard Chartered
Bank
U.S. Bancorp Investments,
Inc.
Co-Managers
Credit Agricole CIB
KBC Financial
Products
RBS
TD Securities
Wells Fargo
Securities
March 4, 2010