e424b2
This
prospectus supplement relates to an effective registration
statement under the Securities Act of 1933, but the information
in this prospectus supplement and the accompanying prospectus is
not complete and may be changed. This prospectus supplement and
the accompanying prospectus are not an offer to sell and we are
not soliciting an offer to buy these securities in any
jurisdiction where the offer or sale is not permitted.
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Filed pursuant to
Rule 424(b)(2)
Registration No. 333-155100
Subject to
Completion, Dated November 10, 2008.
Preliminary
Prospectus Supplement
(To Prospectus Dated November 6, 2008)
Shares
of % Series A Cumulative
Perpetual Preferred Stock
(Liquidation Preference $100 per
Preferred Share)
and Warrants to
Purchase Shares
of Common Stock
Shares
of Common Stock
We are
offering shares
of our % Series A Cumulative
Perpetual Preferred Stock and warrants to purchase up
to shares
of our common stock (and the shares of common stock issuable
upon exercise of those warrants). Purchasers will receive one
warrant to
purchase shares
of common stock at an exercise price of
$ per share for each share of
preferred stock they purchase. Units consisting of one share of
Series A Cumulative Perpetual Preferred Stock and one
warrant will be purchased at a price of
$ per unit. Units will not be
issued or certificated. The shares of Series A Cumulative
Perpetual Preferred Stock and warrants are immediately separable
and will be issued separately.
We are also offering, pursuant to this prospectus supplement and
the accompanying
prospectus, shares
of our common stock at a price of
$ per share.
Dividends on the Series A Cumulative Perpetual Preferred
Stock will be payable quarterly in arrears only when and if
declared by our Board of Directors, and may be deferred.
Deferred dividends compound at a rate
of % per annum. We may not redeem
the Series A Cumulative Perpetual Preferred Stock prior to
November 15, 2011. On or after that date, we may, at our
option, redeem the Series A Cumulative Perpetual Preferred
Stock in whole or in part at a price of $110 per share plus any
accrued and unpaid dividends.
We are also offering, pursuant to this prospectus supplement and
the accompanying
prospectus, shares
of our % Series A Cumulative
Perpetual Preferred Stock, liquidation preference $100 per
preferred share, and warrants to purchase up
to shares
of our common stock (and the shares of common stock issuable
upon exercise of those warrants) to a member of the Adelson
family. The Series A Cumulative Perpetual Preferred Stock
and warrants will contain substantially the same terms as the
Series A Cumulative Perpetual Preferred Stock and warrants
offered to the public. See Agreements Related to the
Concurrent Offering of Series A Cumulative Perpetual
Preferred Stock and Warrants in this prospectus supplement
for more information regarding these arrangements.
The securities offered hereby are subject to mandatory
redemption in certain circumstances and other ownership
restrictions. See Mandatory Redemption and Ownership
Limitations.
Our common stock is listed on the New York Stock Exchange under
the symbol LVS. The last reported sale price of our
common stock on November 10, 2008 was $8.00 per share.
See Risk Factors on
page S-8
to read about factors you should consider before buying our
securities.
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Per Unit
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Total
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Public offering price
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$
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$
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Underwriting discount
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$
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$
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Proceeds, before expenses, to us
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$
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$
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Per
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Common
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Share
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Total
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Public Offering Price
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$
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$
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Underwriting Discount
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$
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$
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Proceeds, before expenses, to us
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$
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$
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To the extent that the underwriter sells more
than shares
of common stock, the underwriter has the option to purchase up
to an
additional shares
of common stock from the Company at the public offering price
less the underwriting discount.
Neither the Securities and Exchange Commission nor any other
regulatory body has approved or disapproved of these securities
or passed upon the accuracy or adequacy of this prospectus. Any
representation to the contrary is a criminal offense.
Neither the Nevada State Gaming Control Board, the Nevada
Gaming Commission nor any other gaming regulatory agency has
passed upon the accuracy or adequacy of this prospectus
supplement or the accompanying prospectus or the investment
merits of the securities offered hereby. Any representation to
the contrary is unlawful.
The underwriter expects to deliver the shares and warrants
against payment in New York, New York on
November , 2008
Goldman, Sachs &
Co.
Prospectus Supplement
dated ,
2008.
TABLE OF
CONTENTS
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Page
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Prospectus Supplement
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S-ii
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S-ii
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S-iii
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S-iii
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S-1
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S-8
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S-14
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S-15
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S-25
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S-33
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S-36
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S-37
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S-37
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S-39
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S-43
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Prospectus
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About This Prospectus
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1
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Where You Can Find More Information
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2
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Incorporation by Reference
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2
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Statements Regarding Forward-Looking Information
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3
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The Company
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6
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Risk Factors
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6
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Ratio of Earnings to Fixed Charges
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6
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Use of Proceeds
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7
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Description of the Debt Securities
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7
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Description of Capital Stock
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19
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Plan of Distribution
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29
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Legal Matters
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32
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Experts
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32
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No dealer, salesperson or other person is authorized to give any
information or to represent anything not contained in or
incorporated by reference into this prospectus supplement, the
accompanying prospectus or any free writing prospectus prepared
by us. You must not rely on any unauthorized information or
representations. This prospectus supplement, the accompanying
prospectus or any free writing prospectus prepared by us is an
offer to sell only the units offered hereby, but only under
circumstances and in jurisdictions where it is lawful to do so.
The information contained in this prospectus supplement, the
accompanying prospectus or any free writing prospectus prepared
by us is current only as of the respective date of such document.
S-i
ABOUT THIS
PROSPECTUS SUPPLEMENT
As used in this prospectus supplement, unless the context
requires otherwise, references to we,
our, us, Las Vegas Sands,
and the Company are to Las Vegas Sands Corp.
This document is in two parts. The first part is this prospectus
supplement, which describes the offering of our Series A
Cumulative Perpetual Preferred Stock and warrants and the
offering of shares of our common stock. This first part also
adds to and updates information contained in the accompanying
prospectus and the documents incorporated by reference into the
accompanying prospectus. The second part, the accompanying
prospectus, provides more general information about our Company
and securities we may offer from time to time, some of which may
not apply to these offerings of securities. If the information
varies between this prospectus supplement and the accompanying
prospectus, or any document incorporated by reference therein,
you should rely on the information contained in this prospectus
supplement.
You should rely only on the information contained in,
incorporated or deemed incorporated by reference into this
prospectus supplement and the accompanying prospectus. Neither
we nor the underwriter has authorized anyone to provide
information different from that contained in, incorporated or
deemed incorporated by reference into this prospectus supplement
or the accompanying prospectus. You should not assume that the
information contained in this prospectus supplement and the
accompanying prospectus to which it relates or the documents
incorporated or deemed incorporated herein or therein is
accurate as of any date other than the date of this prospectus
supplement, the accompanying prospectus or such documents.
This prospectus supplement and the accompanying prospectus are
not an offer to sell any security other than our Series A
Cumulative Perpetual Preferred Stock and warrants and shares of
our common stock and are not soliciting an offer to buy any
security other than these securities. This prospectus supplement
and the accompanying prospectus are not an offer to sell our
Series A Cumulative Perpetual Preferred Stock and warrants
or shares of our common stock to any person, and they are not
soliciting an offer from any person to buy these securities, in
any jurisdiction where the offer or sale to that person is not
permitted.
WHERE YOU CAN
FIND MORE INFORMATION
We file our annual, quarterly and current reports, proxy
statements and other information with the SEC. You can inspect
and copy the materials we have filed with the SEC at the public
reference room maintained by the SEC at 100 F Street,
NE, Washington, D.C. 20549. You can call the SEC
at 1-800-732-0330
for further information about the public reference room,
including copy charges. We are also required to file electronic
versions of these documents with the SEC, which may be accessed
through the SECs Internet site at
http://www.sec.gov.
As permitted by SEC rules, this prospectus supplement and the
accompanying prospectus do not contain all of the information we
have included in the registration statement and the accompanying
exhibits and schedules we file with the SEC. You may refer to
the registration statement, exhibits and schedules for more
information about us and the securities.
The registration statement, exhibits and schedules are available
through the SECs website or at its public reference room.
Our website is www.lasvegassands.com. We make our annual
reports, quarterly reports, current reports, and proxy
statements available free of charge on our website as soon as
reasonably practicable after we file these reports with the SEC.
Information contained on the website is not a part of this
prospectus supplement, except as explicitly incorporated by
reference.
S-ii
INCORPORATION BY
REFERENCE
The SEC allows us to incorporate by reference
information we have filed with it, which means that we can
disclose important information to you by referring you to those
documents. The following documents have been filed by us with
the SEC after the date of the accompanying prospectus and are
incorporated by reference into this prospectus supplement:
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Our Quarterly Report on
Form 10-Q
for the quarter ended September 30, 2008 (filed
November 10, 2008); and
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Our Current Reports on
Form 8-K
filed on November 7, 2008.
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You may request a copy of these filings, other than an exhibit
to these filings unless we have specifically included or
incorporated that exhibit by reference into the filing, from the
SEC as described under Where You Can Find More
Information or, at no cost, by writing or telephoning Las
Vegas Sands at the following address:
Las Vegas Sands Corp.
3355 Las Vegas Boulevard South
Las Vegas, Nevada 89109
Attention: Investor Relations
Telephone:
(702) 414-1000
FORWARD-LOOKING
STATEMENTS
This prospectus supplement and the accompanying prospectus
contain or incorporate by reference forward-looking statements
that are made pursuant to the Safe Harbor Provisions of the
Private Securities Litigation Reform Act of 1995. These
forward-looking statements include the discussions of our
business strategies and expectations concerning future
operations, margins, profitability, liquidity and capital
resources. In addition, in certain portions included or
incorporated by reference in this prospectus supplement, the
words anticipates, believes,
estimates, seeks, expects,
plans, intends and similar expressions,
as they relate to our Company or its management, are intended to
identify forward-looking statements. Although we believe that
these forward-looking statements are reasonable, we cannot
assure you that any forward-looking statements will prove to be
correct. These forward-looking statements involve known and
unknown risks, uncertainties and other factors, which may cause
our actual results, performance or achievements to be materially
different from any future results, performance or achievements
expressed or implied by these forward-looking statements.
These factors include, among others, the risks associated with:
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our substantial leverage, debt service and debt covenant
compliance (including sensitivity to fluctuations in interest
rates and other capital markets trends);
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our ability to continue as a going concern;
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recent disruptions in the global financing markets and our
ability to obtain sufficient funding for our current and future
developments, including our Cotai Strip developments;
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general economic and business conditions which may impact levels
of disposable income, consumer spending, pricing of hotel rooms
and retail revenues at our properties;
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the impact of delays and suspensions of certain of our
development projects;
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the uncertainty of tourist behavior related to spending and
vacationing at casino-resorts in Las Vegas, Macao and Singapore;
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potential visa restrictions limiting the number of visits and
the length of stay for visitors from mainland China to our Macao
properties;
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S-iii
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our dependence upon properties in Las Vegas and Macao for all of
our cash flow;
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our relationship with GGP or any successor owner of The Shoppes
at The Palazzo and The Grand Canal Shoppes, and the ability of
GGP to perform under the Phase II Mall purchase and sale
agreement, as amended;
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new developments, construction and ventures, including our Cotai
Strip developments, Marina Bay Sands, Sands Bethlehem and the
St. Regis Residences;
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the passage of new legislation and receipt of governmental
approvals for our proposed developments in Macao, Singapore and
other jurisdictions where we are planning to operate;
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our insurance coverage, including the risk that we have not
obtained sufficient coverage against acts of terrorism or will
only be able to obtain additional coverage at significantly
increased rates;
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disruptions or reductions in travel due to conflicts in Iraq and
any future terrorist incidents;
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outbreaks of infectious diseases, such as severe acute
respiratory syndrome or avian flu, in our market areas;
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government regulation of the casino industry, including gaming
license regulation, the legalization of gaming in certain
domestic jurisdictions, including Native American reservations,
and regulation of gaming on the Internet;
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increased competition and additional construction in Las Vegas,
including recent and upcoming increases in hotel rooms, meeting
and convention space and retail space;
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fluctuations in the demand for all-suites rooms, occupancy rates
and average daily room rates in Las Vegas;
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the popularity of Las Vegas and Macao as convention and trade
show destinations;
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new taxes or changes to existing tax rates;
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our ability to meet certain development deadlines in Macao and
Singapore;
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our ability to maintain our gaming subconcession in Macao;
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the completion of infrastructure projects in Macao and Singapore;
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increased competition and other planned construction projects in
Macao and Singapore; and
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the outcome of any ongoing and future litigation.
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For additional information about factors that could cause actual
results to differ materially from those described in the
forward-looking statements, please see the documents that we
have filed with the SEC, including our most recent annual report
on
Form 10-K,
quarterly reports on
Form 10-Q,
current reports on
Form 8-K
and proxy statement.
All future written and verbal forward-looking statements
attributable to us or any person acting on our behalf are
expressly qualified in their entirety by the cautionary
statements contained or referred to in this section. New risks
and uncertainties arise from time to time, and it is impossible
for us to predict these events or how they may affect us.
Readers are cautioned not to place undue reliance on these
forward-looking statements. We assume no obligation to update
any forward-looking statements after the date of this prospectus
supplement as a result of new information, future events or
developments, except as required by federal securities laws.
S-iv
PROSPECTUS
SUPPLEMENT SUMMARY
This summary highlights selected information contained
elsewhere or incorporated by reference into this prospectus
supplement and the accompanying prospectus. This summary does
not contain all the information that you should consider before
investing in our securities. You should read the entire
prospectus supplement and the accompanying prospectus carefully,
including the risk factors and the financial statements included
or incorporated by reference in this prospectus supplement and
the accompanying prospectus.
Our
Company
We own and operate The Venetian Resort-Hotel-Casino, The Palazzo
Resort-Hotel-Casino and the Sands Expo and Convention Center in
Las Vegas, as well as the Sands Macao and The Venetian Macao
Resort Hotel in the Peoples Republic of China Special
Administrative Region of Macao. We also own the Four Seasons
Hotel Macao, the hotel and luxury serviced apartment hotel
portions of which are managed by Four Seasons Hotel Inc.,
adjacent to The Venetian Macao Resort Hotel.
Our principal executive office is located at 3355 Las Vegas
Boulevard South, Las Vegas, Nevada 89109. Our telephone number
at that address is
(702) 414-1000.
Our website address is www.lasvegassands.com. The information on
our website is not part of this prospectus supplement.
Recent
Developments
Conversion of
Convertible Senior Notes; Concurrent Offering
On September 30, 2008, we sold, in a private placement
transaction, $475.0 million in aggregate principal amount
of our 6.5% convertible senior notes due 2013 (the
convertible senior notes) to Dr. Miriam
Adelson, the wife of Sheldon G. Adelson, our principal
stockholder, chairman and chief executive officer. The
convertible senior notes were issued pursuant to an indenture,
as supplemented by a supplemental indenture, each dated as of
September 30, 2008, between U.S. Bank National
Association, as trustee, and the Company (the Convertible
Notes Indenture). Upon completing the offering of
convertible senior notes, we immediately contributed the
proceeds from the offering to Las Vegas Sands, LLC.
Concurrently with the offering of the Series A Cumulative
Perpetual Preferred Stock and warrants to the public, we expect
to enter into a Note Conversion and Securities Purchase
Agreement with Dr. Adelson pursuant to which
Dr. Adelson will agree to convert the convertible senior
notes
into shares
of our common stock pursuant to the terms of the Convertible
Notes Indenture at a conversion price of
$ per share, and Dr. Adelson
will purchase from us, pursuant to this prospectus supplement
and the accompanying
prospectus, shares
of % Series A Cumulative
Perpetual Preferred Stock and warrants to
purchase shares
of our common stock for $525.0 million in cash. See
Agreements Related to the Concurrent Offering of
Series A Cumulative Perpetual Preferred Stock and
Warrants for more information regarding these arrangements.
S-1
Estimated
Adjusted Property EBITDAR and Operating Income
The following presents our estimates of our 2012 Adjusted
Property EBITDAR and operating income for each of our current
and projected properties.
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Estimated
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2012
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Estimated
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Adjusted
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2012
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Property
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Operating
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Property
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Quarter Open
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EBITDAR
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Income
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(In millions)
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(in millions)
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U.S.
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Venetian Las Vegas
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2Q 1999
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$
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289.0
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$
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187.0
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Palazzo Las Vegas
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4Q 2007
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258.0
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93.0
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Sands Bethlehem (PA)(1)
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2Q 2009
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(est)
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154.0
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125.0
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Sands Expo Center
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4Q 1991
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20.0
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16.0
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Macao
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Venetian Macao
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3Q 2007
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625.0
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414.0
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Sands Macao
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2Q 2004
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239.0
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183.0
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Four Seasons Macao
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3Q 2008
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140.0
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96.0
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Singapore
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Marina Bay Sands
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1Q 2010
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(est)
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1,259.0
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1,091.0
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Corporate and Other Asia(2)
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N/A
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(127.0
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)
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(137.0
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Total
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$
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2,857.0
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$
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2,068.0
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Phase I Macao Sites 5 and 6
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TBD
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533.0
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464.0
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Adjusted Total
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$
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3,390.0
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$
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2,532.0
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(1) |
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Represents our share of the Sands Bethlehem EBITDAR. |
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(2) |
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Includes operations of
CotaiJettm
and excludes stock based compensation. |
Adjusted Property EBITDAR consists of operating income (loss)
before depreciation and amortization, gain or loss on disposal
of assets, pre-opening expense, development expense, stock-based
compensation, corporate expense, and rental expense.
The Marina Bay
Sands
Profitability Illustration
(US$ in millions)
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Venetian
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Marina Bay
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Macao
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Sands
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Difference
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Gaming Win(1)
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$
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2,010
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$
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2,010
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Effective Gaming and GST Tax Rate
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39.0
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%
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17.3
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%
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Gaming and GST Taxes(2)
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$
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784
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$
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347
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$
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436
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Venetian Macao LTM EBITDAR at 9/30/08
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$
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504
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Difference in Gaming and GST Taxes from Above
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$
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436
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Implied Marina Bay Sands EBITDAR Assuming Comparable Gaming Win
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$
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940
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(1) |
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Twelve months ended September 30, 2008 for Venetian Macao |
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(2) |
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Gaming tax in Macao is 39%. Projected blended effective GST and
gaming tax in Singapore is 17.3%. |
S-2
The Marina Bay
Sands
Gaming Comparison
(US$)
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Venetian Macao
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Marina Bay Sands
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YTD 9/30/08
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Target 2012E
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Rolling Table WPUD(1)
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$
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23,515
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$
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22,411
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Non-Rolling Table WPUD
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3,088
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3,922
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Total Table WPUD
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6,669
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7,886
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Slot WPUD
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170
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308
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(1) |
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WPUD represents Wins Per Unit Per Day. |
The Marina Bay
Sands
WPUD Sensitivity
(US$ in millions, except WPUD)
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Implied Marina Bay Sands EBITDAR(1)
|
|
|
|
|
|
|
Number of Tables
|
|
|
|
|
|
|
800
|
|
|
900
|
|
|
1,000
|
|
|
Total
|
|
$
|
8,866
|
|
|
|
1,262
|
|
|
|
1,476
|
|
|
|
1,690
|
|
Table
|
|
$
|
7,866
|
|
|
|
1,069
|
|
|
|
1,259
|
|
|
|
1,449
|
|
WPUD
|
|
$
|
6,866
|
|
|
|
876
|
|
|
|
1,041
|
|
|
|
1,207
|
|
|
|
|
(1) |
|
Assumes rolling WPUD is fixed at $22,411 for an estimated 192
rolling tables in each case. |
The estimates provided above are projections and have been
prepared by management. These projections are based upon a
number of assumptions made by management, including:
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|
the scheduled completion and opening of the Marina Bay Sands
project in Singapore no later than the first quarter of 2010
within our current estimated cost budget (although we currently
anticipate completion and opening of the Marina Bay Sands in the
fourth quarter of 2009). Completion of the Marina Bay Sands
project will require the Company to contribute an additional
approximately $427.0 million in equity to the project under
the terms of the loan funding a significant portion of
construction costs;
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|
|
|
the receipt of final approval of our final casino floor plan
from the Casino Regulatory Authority of Singapore with such
floor plan permitting up to 1,000 gaming tables and 1,400 slot
machines in the Marina Bay Sands;
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|
the scheduled completion of the casino portion of our Sands
Bethlehem project in the second quarter of 2009 within our
current estimated cost budget of approximately
$743.0 million;
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|
with regard to Phase I Macao Sites 5 and 6, obtaining project
financing that is currently targeted to be obtained within the
next three to six months in an amount sufficient to resume and
complete construction;
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growth in demand for gaming, hotel rooms and related amenities
at our U.S., Singapore and Macao operations in line with
historical growth rates observed by our management;
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achieving assumed occupancy and projected room rates at our
hotel properties;
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the completion of the offerings of the Series A Cumulative
Perpetual Preferred Stock and warrants, and the common stock and
conversion of our convertible senior notes pursuant to this
prospectus supplement and accompanying prospectus; and
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assumptions as to the factors noted in Forward-Looking
Statements above.
|
S-3
Any differences among these assumptions and our actual
experiences may result in actual results in future periods
significantly differing from managements current
estimates. See Risk Factors Risks Relating to
Our Business We may not achieve the results
currently projected, and our projections may not be indicative
of actual results and should not be relied upon. The
projections set forth above are management estimates and are not
guarantees of future performance. Factors outside of our control
may cause actual results to be materially lower than these
projections. There can be no assurance that any of our
assumptions will reflect actual performance. The continuation or
further deterioration of current market conditions may result in
changes to the above assumptions or may result in unforeseeable
effects on our business that could cause actual results to
differ. In addition, these projections are forward-looking
statements and are subject to those risks, uncertainties and
other factors listed under Forward-Looking
Statements on
page S-iii.
The Company does not intend to update the projections contained
herein on a quarterly basis otherwise. You should read the above
information together with our historical financial statements
and the accompanying notes and other information incorporated by
reference into this prospectus supplement. In managements
view, such information was prepared on a reasonable basis,
reflects the best currently available estimates and judgments
and, to managements knowledge and belief, presents the
assumptions and considerations on which we base our belief that
we can achieve such results. The prospective financial
information included in this prospectus supplement has been
prepared by, and is the responsibility of management. The
prospective financial information included in this prospectus
supplement has been prepared by, and is the responsibility of
management. PricewaterhouseCoopers LLP, our independent
auditors, has neither examined, complied nor performed any
procedures with respect to the accompanying prospective
financial information, and accordingly, they do not express an
opinion or any other form of assurance with respect thereto.
The PricewaterhouseCoopers report incorporated by reference into
the accompanying prospectus relates to the Companys
historical financial information only. It does not extend to the
projections and should not be read to do so. The projections
were not prepared with a view toward compliance with published
guidelines of the Securities and Exchange Commission or the
guidelines established by the American Institute of Certified
Public Accountants for preparation and presentation of
prospective financial information.
Adjusted Property EBITDAR is a supplemental non-GAAP financial
measure used by management, as well as industry analysts, to
evaluate operations and operating performance. In particular,
management utilizes Adjusted Property EBITDAR to compare the
operating profitability of its casinos (segments) with those of
its competitors, as well as for determining certain incentive
compensation. We are presenting Adjusted Property EBITDAR
because it is used by some investors as a way to measure a
companys ability to incur and service debt, make capital
expenditures and meet working capital requirements. Gaming
companies have historically reported EBITDAR as a supplemental
performance measure to GAAP financial measures. In order to view
the operations of their casinos on a more stand-alone basis,
gaming companies, including Las Vegas Sands Corp., have
historically excluded certain expenses that do not relate to the
management of specific casino properties, such as pre-opening
expense, development expense, and corporate expense, from their
EBITDAR calculations. When evaluating Adjusted Property EBITDAR,
investors should consider, among other factors,
(1) increasing or decreasing trends in Adjusted Property
EBITDAR and (2) how Adjusted Property EBITDAR compares to levels
of debt and interest expense. However, Adjusted Property EBITDAR
should not be interpreted as an alternative to income from
operations (as an indicator of operating performance) or to cash
flows from operations (as a measure of liquidity), in each case,
as determined in accordance with generally accepted accounting
principles. We have significant uses of cash flow, including
capital expenditures, interest payments and debt principal
repayments, which are not reflected in Adjusted Property
EBITDAR. Not all companies calculate EBITDAR in the same manner.
As a result, Adjusted Property EBITDAR as presented by us may
not be directly comparable to similarly titled measures
presented by other companies. Adjusted Property EBITDAR consists
of adjusted EBITDAR for a particular property, such as The
Venetian and The Palazzo in Las Vegas and The Venetian Macao and
the Sands Macao in Macao. Accordingly, the measures are
presented so that investors have the same financial data that
management uses in evaluating performance with the
S-4
belief that it will assist the investment community in properly
assessing our potential operating performance.
The following are reconciliations of our estimated 2012
operating income (loss) to our estimated 2012 Adjusted Property
EBITDAR presented above ($ in millions):
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|
|
|
|
|
|
|
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|
|
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|
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|
(Gain)
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|
|
|
|
|
|
|
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|
|
|
|
|
|
|
|
Operating
|
|
|
Depreciation
|
|
|
Loss on
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|
|
Pre-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Adjusted
|
|
|
|
Income/
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|
and
|
|
|
Disposal of
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|
|
Opening
|
|
|
Development
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|
|
Stock-Based
|
|
|
Corporate
|
|
|
Rental
|
|
|
Property
|
|
|
|
(loss)
|
|
|
Amortization
|
|
|
Assets
|
|
|
Expense
|
|
|
Expense
|
|
|
Compensation
|
|
|
Expense
|
|
|
Expense
|
|
|
EBITDAR(1)
|
|
|
Sands Macao
|
|
$
|
183
|
|
|
$
|
51
|
|
|
$
|
|
|
|
$
|
|
|
|
$
|
|
|
|
$
|
3
|
|
|
$
|
|
|
|
$
|
1
|
|
|
$
|
239
|
|
The Venetian Macao
|
|
|
414
|
|
|
|
196
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
8
|
|
|
|
|
|
|
|
8
|
|
|
|
625
|
|
Four Seasons Macao
|
|
|
96
|
|
|
|
42
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2
|
|
|
|
|
|
|
|
1
|
|
|
|
140
|
|
Phase I Macao Sites 5 and 6
|
|
|
464
|
|
|
|
61
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
5
|
|
|
|
|
|
|
|
4
|
|
|
|
533
|
|
Marina Bay Sands
|
|
|
1,091
|
|
|
|
153
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
14
|
|
|
|
1,259
|
|
Sands Bethlehem(2)
|
|
|
125
|
|
|
|
26
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3
|
|
|
|
|
|
|
|
|
|
|
|
154
|
|
Venetian Las Vegas
|
|
|
187
|
|
|
|
85
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
14
|
|
|
|
|
|
|
|
4
|
|
|
|
289
|
|
Palazzo Las Vegas
|
|
|
93
|
|
|
|
152
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10
|
|
|
|
|
|
|
|
3
|
|
|
|
258
|
|
SECC
|
|
|
16
|
|
|
|
3
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1
|
|
|
|
20
|
|
Corporate/Other Asia(3)
|
|
|
(137
|
)
|
|
|
10
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(127
|
)
|
|
|
|
(1)
|
|
Certain figures do not total due to
rounding.
|
|
(2)
|
|
Represents our share of Sands
Bethlehem.
|
|
(3)
|
|
Includes operations of
CotaiJettm.
|
S-5
The
Offerings
The following is a brief summary of the offerings and is not
intended to be complete. It does not contain all the information
that is important to you. For a more complete understanding of
our Series A Cumulative Perpetual Preferred Stock and
warrants and our common stock, you should read the sections of
this prospectus supplement entitled Description of
Series A Cumulative Perpetual Preferred Stock and
Description of Warrants and the section of the
accompanying prospectus entitled Description of Capital
Stock.
|
|
|
Issuer |
|
Las Vegas Sands Corp., a Nevada corporation. |
|
Units Offered |
|
Units consisting of Series A Cumulative Perpetual Preferred
Stock and warrants will be purchased at a price of $ per
unit. Each unit consists of one share of our Series A
Cumulative Perpetual Preferred Stock and one warrant to purchase
up
to
shares of our common stock. Units will not be issued or
certificated, and the shares of Series A Cumulative
Perpetual Preferred Stock and warrants are immediately separable
and will be issued separately. |
|
Common Stock Offered |
|
shares
of our common stock
( shares
if the underwriters elect to
number additional
shares for us in this offering)
and shares
of our common stock issuable upon exercise of the warrants. |
|
Preferred Stock Offered |
|
shares
of % Series A Cumulative
Perpetual Preferred Stock, liquidation preference $100 per
share, plus accrued and unpaid dividends. |
|
Warrants to Purchase Common Stock Offered |
|
Warrants to
purchase shares
of common stock at an exercise price of
$ per share. The warrants will be
exercisable at any time after the date of issuance but in no
event later than 5:00 p.m., New York City time, on
November 16, 2013. |
|
Concurrent Offering |
|
We are also offering pursuant to this prospectus supplement and
the accompanying
prospectus shares
of our % Series A Cumulative
Perpetual Preferred Stock, liquidation preference $100 per share
and warrants to purchase up
to shares
of our common stock to a member of the Adelson family. The
warrants have an exercise price of
$ per share. Shares of
Series A Cumulative Perpetual Preferred Stock and warrants
will be purchased at a price of $
per unit. Each unit consists of one share of Series A
Cumulative Perpetual Preferred Stock and one warrant to
purchase shares
of our common stock. The shares of Series A Cumulative
Perpetual Preferred Stock and warrants are immediately separable
and will be issued separately. This prospectus supplement and
the accompanying prospectus also registers the issuance of our
common stock issued upon exercise of the warrants. See and
Agreements Related to the Concurrent Offering of
Series A Cumulative Perpetual Preferred Stock and
Warrants of this prospectus supplement for more
information regarding these arrangements. |
S-6
|
|
|
Series A Cumulative Perpetual Preferred Stock to be
Outstanding after the Offerings |
|
shares |
|
Common Stock Outstanding Prior to the Offerings (1) |
|
355,476,161 shares |
|
Common Stock Outstanding After the Offerings |
|
, excluding shares of common stock
issuable upon exercise of the warrants |
|
Risk Factors |
|
You should carefully consider the information set forth in the
section entitled Risk Factors in this prospectus
supplement and in the accompanying prospectus, as well as the
other information included in or incorporated by reference in
this prospectus supplement and the accompanying prospectus,
before deciding whether to invest in our securities. |
|
Use of Proceeds |
|
We intend to use net proceeds from the offerings for general
corporate purposes, including to repay indebtedness outstanding
under the revolving credit portion of our U.S. senior secured
credit facility from time to time and the financing of our
construction and development projects in Las Vegas, Macao,
Singapore and Pennsylvania. Pending their application, we intend
to invest a portion of the net proceeds from the offerings in
short-term investments. |
|
|
|
(1) |
|
Except as otherwise indicated herein, the information above and
elsewhere in this prospectus supplement regarding outstanding
shares of our common stock is based on 355,476,161 shares
of common stock outstanding as of October 31, 2008,
including vested and unvested shares of restricted stock, and
excluding the following shares of common stock: |
|
|
|
10,536,831 shares of common stock issuable upon
the exercise of stock options outstanding as of October 31,
2008, with a weighted-average exercise price of $67.05 per share;
|
|
|
|
14,471,899 shares of common stock reserved for
future awards under our 2004 equity award plan;
|
|
|
|
The number of shares of common stock issuable from
time to time upon exercise of the warrants offered in the
offerings; and
|
|
|
|
shares
of common stock issuable upon conversion of the convertible
senior notes at a conversion price of
$ per share.
|
S-7
RISK
FACTORS
An investment in our securities involves a number of risks. You
should carefully consider each of the risks described below,
together with all of the other information contained in or
incorporated by reference in this prospectus supplement and the
accompanying prospectus before deciding to invest in our
securities. Risks pertaining to us and our business are
incorporated by reference to the section entitled Risk
Factors in our Annual Report on
Form 10-K
for the year ended December 31, 2007, as updated by the
risks, uncertainties and assumptions discussed under the caption
Risk Factors included in our Quarterly Reports on
Form 10-Q
for the quarters ended June 30, 2008 and September 30,
2008. See Where You Can Find More Information in
this prospectus supplement and the accompanying prospectus. If
any of the risks set forth below or incorporated by reference in
this prospectus supplement develop into actual events, our
business, financial condition or results of operations could be
negatively affected, the market price of our preferred stock,
warrants and common stock could decline and you may lose all or
part of your investment.
Risks Relating to
Our Business
We may not
achieve the results currently projected, and comparisons of
period-to-period
estimates are not necessarily meaningful, may not be indicative
of actual results and should not be relied upon.
The disclosure of projected Adjusted Property EBITDAR, projected
operating income and estimated cost and in the Marina Bay Sands
target gaming comparison contained in this prospectus supplement
is based on a number of assumptions, including our ability to
complete our development plans according to our current
schedule. We have assumed the scheduled completion and opening
of the Marina Bay Sands project in Singapore to be no later than
the first quarter of 2010 and within our current estimated cost
budget (although we currently anticipate completion and opening
of the Marina Bay Sands in the fourth quarter of 2009).
Completion of the Marina Bay Sands project will require us to
contribute approximately an additional $427.0 million in
equity to the project under the terms of the loan funding a
significant portion of construction costs. In addition, we have
also assumed receipt of final approval of our final casino floor
plan from the Casino Regulatory Authority of Singapore, with
such floor plan permitting up to 1,000 gaming tables and
1,400 slot machines in the Marina Bay Sands. We have
assumed that we will be able to complete construction and
opening of the casino portion of our Sands Bethlehem project the
second quarter of 2009 within our current estimated cost budget
of approximately $743.0 million. With regard to all of our
properties, we have assumed growth in demand for gaming, hotel
rooms and related amenities at our U.S., Singapore and Macao
operations in line with historical growth rates observed by our
management and our ability to achieve certain occupancy and
projected room rates at our hotel properties. Finally, we have
assumed the completion of these offerings and conversion of the
convertible senior notes held by Dr. Adelson.
In addition, our ability to generate the anticipated Adjusted
Property EBITDAR and operating income and achieve the Marina Bay
Sands gaming estimates will be dependent upon numerous other
factors, including general economic and business conditions
which may impact levels of disposable income, consumer spending
and pricing of hotel rooms, tourist behavior related to spending
and vacationing at casino-resorts in Las Vegas, Macao, Singapore
and Pennsylvania, disruptions or reductions in travel due to the
conflicts in Iraq and any future terrorist incidents, outbreaks
of infectious diseases, such as severe acute respiratory
syndrome or avian flu, in our market areas, government
regulation of the casino industry, including gaming license
regulation, the legalization of gaming in certain domestic
jurisdictions, including Native American reservations, and
regulation of gaming on the Internet, increased competition and
additional construction in Las Vegas, including recent and
upcoming increases in hotel rooms, meeting and convention space
and retail space, fluctuations in the demand for all-suites
rooms, occupancy rates and average daily room rates in Las
Vegas, our ability to maintain our gaming subconcession in
Macao, the completion of infrastructure projects in Macao and
Singapore, increased competition and other planned construction
projects in Macao and Singapore, changes in foreign exchange
rates and the outcome of any ongoing or future litigation.
S-8
Changes in our estimates or any of these assumptions may result
in our actual results being significantly lower than our
anticipated results. You should read our Projected
Adjusted Property EBITDAR and Operating Income information
above together with our historical financial statements and the
accompanying notes and other information incorporated by
reference into this prospectus supplement. In managements
view, such information was prepared on a reasonable basis,
reflects the best currently available estimates and judgments
and, to managements knowledge and belief, presents the
assumptions and considerations on which we base our belief that
we can generate such Adjusted Property EBITDAR and operating
income. PricewaterhouseCoopers LLP, our independent auditors,
has neither examined, complied nor performed any procedures with
respect to the accompanying prospective financial information,
and accordingly, they do not express an opinion or any other
form of assurance with respect thereto. The
PricewaterhouseCoopers report incorporated by reference into the
accompanying prospectus relates to our historical financial
information. It does not extend to the projections and should
not be read to do so. The projections were not prepared with a
view toward compliance with published guidelines of the
Securities and Exchange Commission or the guidelines established
by the American Institute of Certified Public Accountants for
preparation and presentation of prospective financial
information.
Certain
beneficial owners of our voting securities may be required to
file an application with, and be investigated by, the Nevada
Gaming Authorities, and the Nevada Commission may restrict the
ability of a beneficial owner to receive any benefit from our
voting securities and may require the disposition of shares of
our voting securities, if a beneficial owner is found to be
unsuitable. Upon exercise of warrants for shares of our common
stock, you may be subject to these regulations.
Any person who acquires beneficial ownership of more than 10% of
our voting securities will be required to apply to the Nevada
Commission for a finding of suitability within thirty days after
the Chairman of the Nevada Board mails a written notice
requiring the filing. Under certain circumstances, an
institutional investor as defined under the
regulations of the Nevada Commission, which acquires beneficial
ownership of more than 10% but not more than 15% of our voting
securities, may apply to the Nevada Commission for a waiver of
such finding of suitability requirement if the institutional
investor holds our voting securities only for investment
purposes. In addition, any beneficial owner of our securities,
regardless of the number beneficially owned, may be required at
the discretion of the Nevada Commission to file an application
for a finding of suitability as such. In either case, a finding
of suitability is comparable to licensing and the applicant must
pay all costs of investigation incurred by the Nevada Gaming
Authorities in conducting the investigation.
Any person who fails or refuses to apply for a finding of
suitability or a license within thirty days after being ordered
to do so by the Nevada Gaming Authorities may be found
unsuitable. The same restrictions apply to a record owner if the
record owner, after request, fails to identify the beneficial
owner. Any stockholder found unsuitable and who holds, directly
or indirectly, any beneficial ownership of the common stock of a
registered corporation beyond such period of time as may be
prescribed by the Nevada Commission may be guilty of a criminal
offense. We are subject to disciplinary action if, after we
receive notice that a person is unsuitable to be a stockholder
or to have any other relationship with us or a licensed
subsidiary, we, or any of the licensed subsidiaries:
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|
allow that person to exercise, directly or indirectly, any
voting right conferred through securities held by that person;
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|
|
pay remuneration in any form to that person for services
rendered or otherwise; or
|
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|
|
fail to pursue all lawful efforts to require such unsuitable
person to relinquish his or her voting securities for cash at
fair market value.
|
S-9
Owners of our
voting securities may be required to become licensed with, and
be investigated by, the Pennsylvania Gaming Control Board, the
Pennsylvania State Police and other agencies. Holders of our
securities that are found unsuitable by the Pennsylvania Gaming
Control Board may be required to divest our securities at a
price not exceeding the lower of cost or fair market
value.
Under the Pennsylvania Race Horse Development and Gaming Act, or
the Gaming Act, any person who holds a
controlling interest in our outstanding voting
securities may be required to be licensed by the Pennsylvania
Gaming Control Board, or the PaGCB. Pursuant to the
Gaming Act, any person who holds who holds 5% or more of our
outstanding voting securities is presumed to hold a controlling
interest in our voting securities. In the absence of a waiver or
other exemption, that holder will be required to obtain a
principals license. Licensing requires, among other
things, that the applicant establish by clear and convincing
evidence the applicants good character, honesty and
integrity. Pursuant to the terms of the Series A Cumulative
Perpetual Preferred Stock, if any holder of shares of
Series A Cumulative Perpetual Preferred Stock acquires
voting rights as a result of a default in the payment of
dividends on the Series A Cumulative Perpetual Preferred
Stock or other corporate actions by us, that holder may
similarly become subject to these regulations and be required to
file for a waiver if the shares of Series A Cumulative
Perpetual Preferred Stock, combined with any other voting stock,
held by that holder represent 5% or more of our total
outstanding voting securities. In addition, any beneficial owner
of any of our securities, regardless of the number of securities
beneficially owned, may be required at the discretion of the
PaGCB to file an application for licensure or, alternatively,
file a waiver application.
Any holder of our voting securities that is an
institutional investor, which is generally defined
under the Gaming Act as any retirement fund administered for
federal, state or local employees, registered investment
companies, collective investment trust organized by banks,
closed end investment trust, chartered or licensed life or
property and casualty insurance company, banking and other
chartered or licensed lending institution, registered investment
advisor and any other person that the PaGCB may determine
consistent with the Gaming Act, and owns 5% or more, but less
than 10% of our outstanding voting securities, will be eligible
to receive a waiver of the licensing requirements as a principal
by requesting a waiver on a form prescribed by the PaGCB that
includes a certification that it is a passive investor with no
intention of influencing or affecting, directly or indirectly,
the affairs of the Company.
The warrant agreement governing the warrants to be issued in
this offering provides that the warrants are not exercisable
such that the warrant holder would become the holder of 5.0% or
more of our outstanding common stock unless such warrant holder
either (i) is an institutional investor under the Gaming
Act or (ii) has complied with any license requirements, or
obtained a waiver from the licensing requirements, under the
Gaming Act.
A change of control would be triggered if a person
or a group of persons acting in concert acquire more than 20% of
our outstanding voting securities. Such a change in
control could require the acquirers to independently
qualify for licensure and to pay the full $50.0 million
license fee to the PaGCB as a result of the
presumptive change of control of the licensee.
In the event a security holder, including any purchasers of the
warrants or the Series A Cumulative Perpetual Preferred
Stock or common stock in these offerings, is required to be
found qualified for licensure and is not found qualified, the
security holder may be required by the PaGCB to divest of the
interest at a price not exceeding the lower of cost or fair
market value of the interest.
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Risks Relating to
Our Stock
Our
Series A Cumulative Perpetual Preferred Stock and warrants
will not be listed on a national securities exchange, and we
cannot guarantee that a trading market will develop for such
securities.
Our Series A Cumulative Perpetual Preferred Stock and
warrants will not be listed on the New York Stock Exchange
or any other national securities exchange. As a result, trading
in such securities will be dependent on
over-the-counter
trades.
Over-the-counter
trading is dependent on a broker-dealer being willing to make a
market in the securities, and we cannot predict or guarantee
that such a market will be created or how long it will continue
if created. As a result, your ability to resell your securities
may be limited.
Our
Series A Cumulative Perpetual Preferred Stock is an equity
security and subordinate to our existing and future
indebtedness.
The shares of Series A Cumulative Perpetual Preferred Stock
are equity interests in Las Vegas Sands Corp. and do not
constitute indebtedness. As such, such shares will rank junior
to all indebtedness and other non-equity claims on Las Vegas
Sands Corp. with respect to assets available to satisfy claims
against Las Vegas Sands Corp., including in a liquidation of Las
Vegas Sands Corp. Additionally, unlike indebtedness, where
principal and interest would customarily be payable on specified
due dates, in the case of preferred stock like our Series A
Cumulative Perpetual Preferred Stock, dividends are payable only
if declared by our board of directors. Furthermore, as a
corporation, we are subject to restrictions on payments of
dividends and redemption price out of lawfully available funds.
Finally, our credit agreements contain certain restrictions on
the ability of certain of our subsidiaries to make dividend
payments to Las Vegas Sands Corp.
Holders of
Series A Cumulative Perpetual Preferred Stock will have
limited voting rights.
Holders of Series A Cumulative Perpetual Preferred Stock
will have limited voting rights in the event of non-payment of
dividends under certain circumstances and with respect to
certain fundamental changes in the terms thereof, certain other
matters and as otherwise required by law, as described under
Description of the Series A Cumulative Perpetual
Preferred Stock.
Our stock
price may be volatile, and you may lose all or part of your
investment.
The market price of our common stock could fluctuate
significantly, in which case you may not be able to resell your
warrants or shares of common stock when desired or at attractive
prices. The market price of our common stock may fluctuate based
on a number of factors in addition to those listed in this
prospectus supplement, including:
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our operating performance and the performance of our competitors
and other similar companies;
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the publics reaction to our press releases, our other
public announcements and our filings with the SEC;
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changes in earnings estimates or recommendations by research
analysts who track our common stock or the stocks of other
companies in our industry;
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changes in the capital markets or actual or perceived general
economic conditions;
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the number of our publicly traded shares;
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actions of our management or stockholders, including this
offering;
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the arrival or departure of key personnel or personal matters
affecting our principal stockholder;
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acquisitions, strategic alliances or joint ventures involving us
or our competitors; and
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other developments affecting us, our industry or our competitors.
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As of the date of this prospectus supplement, current market
conditions remain volatile. The trading price of our common
stock has been, and may continue to be, subject to wide
fluctuations. From January 1, 2007 through
November 10, 2008, the reported sale price of our common
stock on the NYSE ranged from $4.32 to $148.76 per share, and
the last reported sale price of our common stock on
November 10, 2008 was $8.00 per share. In addition, the
stock market in general, and the stock prices for companies in
our industry in particular, have experienced extreme volatility
that often has been unrelated to the operating performance of
these companies. These broad market and industry fluctuations
may adversely affect the price of our common stock, regardless
of our operating performance.
Our articles
of incorporation and by-laws contain provisions that may
discourage a takeover attempt. Nevada law also imposes, and
other jurisdictions may impose, barriers to acquiring a
controlling interest in our shares.
Provisions contained in our amended and restated articles of
incorporation and by-laws could make it more difficult for a
third party to acquire us, even if doing so might be beneficial
to our stockholders. Provisions of our amended and restated
articles of incorporation and amended and restated by-laws
impose various procedural and other requirements which could
make it more difficult for stockholders to affect some corporate
actions. For example, our amended and restated articles of
incorporation authorize our board of directors to determine the
rights, preferences, privileges and restrictions of any unissued
series of preferred stock, without any vote or action by our
stockholders. Thus our board of directors can authorize and
issue shares of preferred stock with voting or conversion rights
that could adversely affect the voting or other rights of
holders of our common stock. These rights may have the effect of
delaying or deterring a change of control of our Company. In
addition, a change of control of our Company may be delayed or
deferred as a result of our having three classes of directors.
Nevada law provides that, in certain circumstances, a
stockholder who acquires a controlling interest in a
corporation, defined statutorily as any acquisition that causes
such stockholders interest to exceed any of a 1/5, 1/3 or
1/2 interest in a corporation, has no voting rights in the
shares acquired that caused the stockholder to exceed any such
threshold, unless:
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the corporations other stockholders, by majority vote,
grant voting rights to such shares; or
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the corporations articles of incorporation or by-laws in
effect on the tenth day following such acquisition of shares
exempt the corporation from the relevant Nevada law provisions.
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In addition, under Nevada law, any change of control of our
Company must also be approved by the Nevada Gaming Authorities.
Other jurisdictions may have similar requirements. These
provisions could limit the price that investors might be willing
to pay in the future for shares of our common stock. See
Description of Capital Stock beginning on
page 19 of the accompanying prospectus for additional
information on the anti-takeover measures applicable to us.
Future sales
of shares could depress our stock price.
Sales of a substantial number of shares of our common stock or
preferred stock, or the perception that a large number of shares
will be sold, could depress the market price of our common stock
or preferred stock. We, our executive officers, directors and
certain other stockholders have agreed with the underwriter not
to offer, sell, contract to sell, pledge, grant any option to
purchase, make any short sale or otherwise dispose of any of
their shares of preferred stock or common stock or securities
convertible into or exchangeable for, or that represent the
right to receive, shares of common stock other than under our
employee compensation plans, and subject to specified exceptions
and extensions, during the period from the date of this
prospectus supplement continuing through 90 days or one
year after the date of this prospectus supplement, except with
the prior written
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consent of Goldman, Sachs & Co. Goldman,
Sachs & Co. in its sole discretion may release any of
the securities subject to these
lock-up
agreements at any time without notice. See
Underwriting
Lock-Up
Agreements.
Following the consummation of the offerings, approximately
267,056,154 shares of common stock will be restricted
pursuant to Rule 144 under the Securities Act of 1933, as
amended (the Securities Act), of which
(i) 582,280 shares will be available for sale at any
time, subject to the volume and other restrictions of
Rule 144 and (ii) and 266,473,874 shares will be
available for sale 90 days or one year (or earlier if
waived by Goldman, Sachs & Co.) after the date of this
prospectus supplement, respectively, upon the expiration of the
lock-up
agreements with the underwriter, subject to the volume and other
restrictions of Rule 144. There are certain permitted
exceptions to the
lock-up
agreements which are described under Underwriting.
After the offerings, the Adelson holder of the Series A
Cumulative Perpetual Preferred Stock and warrants and the
holders of approximately 244,173,246 shares of our common
stock (excluding options and shares of our common stock issuable
upon exercise of the warrants) will have rights, subject to some
conditions, to require us to file registration statements
covering their shares of common stock, including shares issuable
upon conversion of such warrants, or to include such shares in
registration statements that we may file for ourselves or other
stockholders. By exercising their registration rights and
selling a large amount or number of shares, these stockholders
could cause the price of our common stock to decline. The
Adelson holder of our Series A Cumulative Perpetual
Preferred Stock and warrants will also have the right, subject
to certain conditions, to require us to file registration
statements covering the sale of its Series B Cumulative
Perpetual Preferred Stock and warrants.
We do not
expect to pay cash dividends on our common stock.
We do not expect to pay cash dividends on our common stock in
the foreseeable future. Our board of directors will determine
whether to pay dividends in the future based on conditions then
existing, including our earnings, financial condition and
capital requirements, as well as economic and other conditions
our board of directors may deem relevant. Our ability to declare
and pay dividends on our common stock is subject to the
requirements of Nevada law. We are a holding company, dependent
upon the operations of our subsidiaries for cash. The terms of
our subsidiaries debt and other agreements restrict the
ability of our subsidiaries to dividend funds up to us. We
intend to retain earnings to finance operations and the
expansion of our business, including existing and future
development projects. Therefore, unless and until we pay cash
dividends on our common stock, any gains from your investment in
our common stock must come from an increase in its market price.
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USE OF
PROCEEDS
We estimate that the net proceeds from the sale of the
Series A Cumulative Perpetual Preferred Stock and warrants
will be approximately $ , after
deducting the underwriters discounts and commissions and
estimated offering expenses. We estimate that the net proceeds
from the sale of our common stock (other than upon the exercise
of the warrants) will be approximately
$ , after deducting estimated
offering expenses, and $ if the
underwriters option to purchase additional shares of
common stock is exercised in full. We could receive proceeds of
up to $ from the issuance of
shares of our common stock upon the exercise of the warrants
offered in this offering if the holders of such warrants elect
to exercise the cash settlement feature.
We intend to use net proceeds from the offerings for general
corporate purposes, which may include repayment of our
indebtedness under the revolving credit portion of our U.S.
senior secured credit facility from time to time and the
financing of our construction and development projects in Las
Vegas, Macao, Singapore and Pennsylvania. Pending their
application, we intend to invest a portion of the net proceeds
from this offering in short-term investments.
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CERTAIN U.S.
FEDERAL INCOME TAX CONSIDERATIONS
The following is a summary of certain United States federal
income tax considerations that apply to holders of our
Series A Preferred Stock, Series B Preferred Stock
(such Series A Preferred Stock together with such
Series B Preferred Stock, the Preferred Stock),
common stock and warrants. Except where noted, this summary
deals only with a share of Preferred Stock, common stock or a
warrant held as a capital asset (generally, property held for
investment) and does not represent a detailed description of the
United States federal income tax consequences applicable to you
if you are subject to special treatment under the United States
federal income or estate tax laws, including if you are:
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a dealer in securities;
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a financial institution;
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a regulated investment company;
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a real estate investment trust;
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a tax-exempt organization;
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an insurance company;
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a person holding the Preferred Stock, common stock or warrants
as part of a hedging, integrated, conversion or constructive
sale transaction or a straddle;
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a trader in securities that has elected the mark-to-market
method of accounting for your securities;
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a person liable for alternative minimum tax;
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a person who is an investor in a pass-through entity;
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a U.S. holder (as defined below) whose functional
currency is not the U.S. dollar;
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a partnership or other entity classified as a partnership for
United States federal income tax purposes; or
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a United States expatriate, a former U.S. citizen or a
former long-term resident of the United States.
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This summary is based upon the provisions of the Internal
Revenue Code of 1986, as amended (the Code), and
regulations, rulings and judicial decisions as of the date
hereof. Those authorities may be changed, perhaps retroactively,
so as to result in United States federal income tax consequences
different from those summarized below. This summary does not
address all aspects of United States federal income taxes and
does not deal with all tax considerations that may be relevant
to holders in light of their personal circumstances (including
state, local, foreign or estate and gift tax considerations).
For purposes of this discussion, a U.S. holder
is a beneficial owner of Preferred Stock, common stock or
warrants that is:
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an individual citizen or resident of the United States for
United States federal income tax purposes;
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a corporation (or any other entity treated as a corporation for
United States federal income tax purposes) created or organized
in or under the laws of the United States, any state thereof or
the District of Columbia;
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an estate the income of which is subject to United States
federal income taxation regardless of its source;
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a trust if it (1) is subject to the primary supervision of
a court within the United States and one or more United States
persons (as defined in the Code) have the authority to control
all substantial decisions of the trust or (2) has a valid
election in effect under applicable United States Treasury
regulations to be treated as a United States person.
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The term
non-U.S. holder
means a beneficial owner of Preferred Stock, common stock or
warrants (other than a partnership) that is not a
U.S. holder.
If an entity classified as a partnership holds Preferred Stock,
common stock or warrants, the tax treatment of a partner will
generally depend upon the status of the partner and the
activities of the partnership. If you are a partnership or a
partner of a partnership holding Preferred Stock, common stock
or warrants, you should consult your own tax advisors.
We have not sought and will not seek any rulings from the
Internal Revenue Service (the IRS) with respect to
the matters discussed below. There can be no assurance that the
IRS will not take a different position concerning the tax
consequences of the purchase, ownership or disposition of shares
of our Preferred Stock, common stock or warrants or that any
such position would not be sustained.
Allocation of
Purchase Price Between Preferred Stock and Warrants
Each holder that purchases a share of our Preferred Stock in the
offering will also receive warrants for a certain amount of our
common stock (see Description of Warrants
General). The purchase price for the Preferred Stock and
warrants will be allocated between the Preferred Stock and
warrants in proportion to their relative fair market values on
the date that the unit is purchased by such holder. This
allocation of the purchase price will establish a holders
initial tax basis for U.S. federal income tax purposes in
its Preferred Stock and warrants.
Each holder should consult its own tax advisor regarding the
allocation of the purchase price between the Preferred Stock and
the warrants.
Summary of Tax
Consequences with Respect to Our Preferred Stock
U.S.
Holders
Distributions. Except as discussed
below, the distributions received on shares of our Preferred
Stock will be treated as follows: first, as a dividend, taxable
as ordinary income, to the extent of our current or accumulated
earnings and profits, as calculated for U.S. federal income
tax purposes; next, as a tax-free return of capital to the
extent of your adjusted tax basis in such stock, and thereafter,
as capital gain from the sale of such stock (which capital gain
will be long-term if your holding period for the stock is more
than one year). Distributions on our Preferred Stock generally
will be taxable when received. Under current tax law, dividends
received from us by non-corporate U.S. holders before
January 1, 2011 are eligible for a preferential rate of
taxation at the rates otherwise applicable to capital gains,
currently a maximum of 15%.
Distributions taxable as dividends to corporate holders of the
Preferred Stock will be eligible for the dividends received
deduction, subject to applicable limitations. The benefits of
any dividends received deduction to a corporate holder of
Preferred Stock may, in effect, be reduced or eliminated by
various exceptions and restrictions, including restrictions
relating to the holding period of stock on which the dividends
are received, debt-financed portfolio stock and the so-called
extraordinary dividend provisions of
Section 1059 of the Code.
Redemption Premium. The amount of
the purchase price allocated to the Preferred Stock will be less
than the redemption price of such Preferred Stock (see
Allocation of Purchase Price above). The difference
(i.e., the redemption premium) could be treated as a
constructive distribution in respect of the Preferred Stock,
which would accrue over the term of the Preferred Stock from its
date of issuance to the most likely redemption date based on a
constant yield method. Such constructive
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distribution would be taxable in the same manner as a cash
distribution of equal amount, and therefore would result in tax
liability even though no cash is received.
Such accrual would not be required if, based on all the facts
and circumstances as of the issue date of the Preferred Stock,
it is more likely than not that we would not exercise our call
right with respect to the Preferred Stock. The regulations
include a safe harbor under which the likelihood that we would
not exercise our call right with respect to a particular holder
is generally deemed not to be more likely than not if
(i) the holder is not related to us under certain
attribution rules, (ii) there are no plans, arrangements or
agreements that would effectively require us to exercise our
call right, and (iii) exercise of our call right would not
reduce the yield of the stock as determined under applicable tax
rules.
If we exercise our call right in order to redeem shares of our
Preferred Stock, the redemption price with respect to the
Series A Preferred Stock would be 110% of the liquidation
preference (plus accrued dividends) and the redemption price
with respect to the Series B Preferred Stock would be 100%
of the liquidation preference (plus accrued dividends).
Accordingly, a redemption of the Preferred Stock would not
reduce the yield of the Preferred Stock, and holders of
Preferred Stock that are not related to us under the applicable
attribution rules would qualify for the safe harbor. As a
result, the rules applicable to redemption premium described
above would not apply to such holder.
We intend to take the position that the rules applicable to
redemption premium do not apply to any holders. This position is
binding on holders (unless a holder discloses that it does not
agree with this position on such holders tax return), but
is not binding on the IRS and the IRS might successfully
challenge such position. Holders of the Preferred Stock should
consult their own tax advisors as to the proper treatment of any
potential redemption premium.
Deemed Distributions. If we are unable
to pay dividends on the Preferred Stock, the accreted
liquidation preference of the Preferred Stock will be increased
and/or the
dividends will be deferred, which may give rise to a deemed
distribution, at the time of such increase
and/or
deferral, to the holders of the Preferred Stock in the amount of
all, or a portion of, the increase in liquidation preference
and/or
deferred dividends. Any deemed distribution would be taxable in
the same manner as a cash distribution of equal amount, and
therefore would result in tax liability even though no cash is
received. Although not free from doubt, we intend to take the
position that any such increase in the liquidation preference
and/or
deferred dividends would not give rise to a deemed distribution.
Sales or Other Dispositions. Except as
described elsewhere in this summary, a holder of Preferred Stock
who sells or otherwise disposes of Preferred Stock generally
will recognize capital gain or loss equal to the difference
between the sum of the amount of cash and fair market value of
any property received on the sale or other disposition and the
tax basis in the shares sold or disposed. Any such capital gain
or loss will be long-term capital gain or loss if the
holders holding period for the warrant is more than one
year at the time of disposition, currently subject to a
preferential tax rate at a maximum of 15% in the case of
non-corporate U.S. holders. The deductibility of capital
losses is subject to certain limitations.
Redemptions. A redemption of Preferred
Stock will generally be treated under Section 302 of the
Code as a distribution that is taxable as a dividend (to the
extent of our current or accumulated earnings and profits). If a
redemption satisfies certain tests provided in
Section 302(b) of the Code, the redemption would be treated
as sale of the Preferred Stock, with similar tax consequences to
a sale as described above under Sales or Other
Distributions. The redemption will satisfy such tests if
it (i) is substantially disproportionate with
respect to the holders interest in our stock,
(ii) results in a complete termination of the
holders interest in all our classes of stock, or
(iii) is not essentially equivalent to a
dividend with respect to the holder, all within the
meaning of Section 302(b) of the Code. The
substantially disproportionate test measures the
change in a shareholders interest in a corporations
voting stock, and accordingly redemptions of our Preferred Stock
are generally not expected to satisfy this test.
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In determining whether any of the tests under
Section 302(b) has been met, stock considered to be owned
by the holder by reason of certain constructive ownership rules
described in the Code (including rules that would treat the
warrants and other options as having been exercised), as well as
stock actually owned, generally must be taken into account.
Because the determination as to whether any of the three
alternative tests of Section 302(b) will be satisfied with
respect to any particular holder of the Preferred Stock depends
upon the facts and circumstances of the holder at the time that
the determination must be made, prospective investors are
advised to consult their own tax advisors to determine such tax
treatment.
If a redemption of the Preferred Stock does not meet any of the
tests under Section 302(b), the redemption proceeds will be
treated as a distribution, with the tax consequences described
under Distributions above. In such a case, a
stockholders adjusted tax basis in the redeemed Preferred
Stock will be transferred to such stockholders remaining
stock holdings in us. If the stockholder does not retain any of
our stock, such basis could be transferred to a related person
that holds our stock or it may be lost.
Backup Withholding and Information
Reporting. Information returns may be filed
with the IRS in connection with payments or accrual of dividends
on the Preferred Stock and the proceeds from a sale or other
disposition of the Preferred Stock. You will not be subject to
U.S. backup withholding tax on these payments if you
provide your taxpayer identification number to the paying agent
and comply with certain certification procedures or otherwise
establish an exemption from backup withholding. The amount of
any backup withholding from a payment to you will be allowed as
a credit against your U.S. federal income tax liability and
may entitle you to a refund, provided that the required
information is furnished to the IRS.
Non-U.S.
Holders
The character for U.S. income tax purposes of any payment
received by a
non-U.S. holder
as a distribution or required to be accrued generally will be
determined by applying the principles described above with
respect to U.S. holders. Dividends paid or required to be
accrued on our Preferred Stock held by a
non-U.S. holder
which are not effectively connected with a trade or business
conducted by such
non-U.S. holder
in the United States, generally will be subject to a
U.S. withholding tax at a rate of 30% or at such lower rate
as may be provided by an applicable treaty, if any. Any
withholding tax imposed on accrued dividends may be satisfied by
withholding on other amounts payable to the
non-U.S. holder.
You will recognize gain or loss on the sale, exchange,
redemption or other taxable disposition of shares of Preferred
Stock. Nevertheless, subject to the discussion below concerning
backup withholding, such gain (except to the extent such gain is
treated as a distribution, which will be taxed in the manner
described in the preceding paragraph) generally will not be
subject to U.S. federal income tax unless:
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such gain is effectively connected with your conduct of a trade
or business in the United States (and, if required by an
applicable income tax treaty, is attributable to a
U.S. permanent establishment);
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you are an individual who is present in the United States for
183 days or more in the taxable year of that disposition,
and certain other conditions are met; or
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we are or have been a U.S. real property holding
corporation, or a USRPHC, for United States federal income
tax purposes (i.e., a domestic corporation a significant portion
of whose trade or business and real property assets consist of
United States real property interests).
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If you are an individual described in the first bullet point
above, you will be subject to tax on the net gain derived from
the sale, exchange, redemption or other taxable disposition
under regular graduated U.S. federal income tax rates. If
you are an individual described in the second bullet point
above, you will be subject to a flat 30% tax on the gain derived
from the sale, exchange, redemption
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or other taxable disposition, which may be offset by United
States source capital losses, even though you are not considered
a resident of the United States. If you are a foreign
corporation that falls under the first bullet point above, you
will be subject to tax on your net gain generally in the same
manner as if you were a U.S. holder and, in addition, you
may be subject to the branch profits tax equal to 30% of your
effectively connected earnings and profits or at such lower rate
as may be specified by an applicable income tax treaty.
With respect to the third bullet point above, a corporation is a
USRPHC if the fair market value of its U.S. real
property interests, as defined in the Code and applicable
Treasury regulations, equals or exceeds 50% of the sum of the
fair market value of its worldwide real property interests and
its other assets used or held for use in a trade or business. We
believe that we are not and have not been a USRPHC and do not
anticipate becoming one in the future. If, however, we are or
were to become a USRPHC, the U.S. federal income and
withholding taxes relating to interests in USRPHCs nevertheless
will not apply to gains derived from the sale or other
disposition of Preferred Stock by a
non-U.S. holder
if the aggregate fair market value of the interests in us,
including the Preferred Stock, treated as held by such
non-U.S. holder
is less than or equal to the fair market value of 5% of the
shares of the regularly-traded class of our stock with the
lowest fair market value, determined as of the date that such
non-U.S. holder
acquires Preferred Stock. If a class of our Preferred Stock were
to be treated as regularly traded on an established securities
market, such 5% test would be applied with respect to such class
of Preferred Stock. No assurance can be given that we will not
become a USRPHC, or that any class of our stock will be
considered regularly traded, when a
non-U.S. holder
sells its shares of our Preferred Stock.
Information Reporting. Information
returns may be filed with the IRS in connection with the payment
to, or accrual in respect of,
non-U.S. holders
of dividends on the Preferred Stock and the proceeds from the
sale or other disposition of the Preferred Stock. You may be
subject to U.S. backup withholding on these payments unless
you comply with certification procedures to establish an
exemption from backup withholding. The amount of backup
withholding from a payment to you will be allowed as a credit
against your U.S. federal income tax liability and may
entitle you to a refund, provided that the required information
is furnished to the IRS.
PROSPECTIVE PURCHASERS OF PREFERRED STOCK SHOULD SEEK ADVICE
BASED ON THEIR PARTICULAR CIRCUMSTANCES FROM AN INDEPENDENT TAX
ADVISOR.
Summary of Tax
Consequences with Respect to the Warrants
U.S.
Holders
Exercise of Warrants. If a
U.S. holder exercises a warrant with cash (the Cash
Exercise Option), a U.S. holder should not be
required to recognize income, gain or loss and the
U.S. holders tax basis in common stock received upon
the exercise will equal the sum of (i) the
U.S. holders adjusted tax basis in the warrant at the
time of exercise and (ii) the exercise price of the warrant
(reduced by any tax basis allocable to a fractional share). The
U.S. holders holding period in the shares received
under the Cash Exercise Option will commence on the day that the
U.S. holder exercises the warrant and will not include the
period during which the U.S. holder held the warrant. If a
U.S. holder receives any cash in lieu of a fractional share
of common stock, the rules described below under Sale or
Other Disposition of Warrants will apply with respect to
portion of the warrants that correspond to the fractional share.
If a U.S. holder exercises a warrant by having us withhold
a portion of the common shares to be delivered on exercise (the
Net Exercise Option), the tax consequences are not
entirely clear under current tax law. The Net Exercise Option
may be tax-free, either because the exercise is not a taxable
exchange or because the exercise is treated as a
recapitalization for U.S. federal income tax purposes. In
either tax-free situation, a U.S. holders tax basis
in the common stock received would equal the
U.S. holders tax basis in the warrant. If the Net
Exercise Option were treated as other than a taxable exchange, a
U.S. holders holding period in the common stock would
commence on the date
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of exercise of the warrant. If the Net Exercise Option were
treated as a recapitalization, the holding period of the common
stock would include the holding period of the warrant.
It is also possible that the Net Exercise Option could be
treated as a taxable exchange in which gain or loss would be
recognized. In such event, a U.S. holder could be deemed to
have surrendered a number warrants having a fair market value
equal to the exercise price for the number of warrants deemed
exercised (i.e., the number of warrants equal to the number of
common shares issued pursuant to the Net Exercise Option). The
U.S. holder would recognize capital gain or loss in an
amount equal to the difference between such fair market value
and the U.S. holders tax basis in such warrants
deemed surrendered. In this case, a U.S. holders tax
basis in the common stock received would equal the sum of such
fair market value and the U.S. holders tax basis in
the remaining warrants exercised. A U.S. holders
holding period for the common stock would commence on the date
of exercise of the warrant.
If a U.S. holder exercises a warrant by tendering shares of
Preferred Stock (the Preferred Exercise Option) the
tax consequences under current law are also not entirely clear.
The Preferred Exercise Option could be treated as a
recapitalization, in which case the U.S. holders tax
basis in the common stock received would be equal to the sum of
the U.S. holders tax basis in the Preferred Stock
tendered to exercise the warrant and the U.S. holders
tax basis in the exercised warrants. The holding period of the
common stock received likely would be split and include the
holding period of the Preferred Stock in part and the warrant in
part.
Alternatively, the Preferred Exercise Option could be treated as
a taxable exchange, in which case the U.S. holder would
first recognize gain equal to the excess of the fair market
value of the Preferred Stock relinquished in the exchange over
the U.S. holders tax basis in such Preferred Stock,
and then would take a tax basis in the common stock received in
the exchange equal to the sum of the fair market value of such
Preferred Stock and the tax basis in the warrant. In this case,
the holding period of the common stock received would commence
on the date that the warrant was exercised.
The tax consequences of holding and disposing of common shares
acquired on exercise of a warrant are described under
Summary of Tax Consequences with Respect to Our Common
Stock below.
Holders of warrants should consult their own tax advisors as to
the proper treatment of the exercise of such warrants.
Lapse of Warrants. If a warrant expires
without being exercised, a U.S. holder will recognize a
capital loss in an amount equal to its tax basis in the warrant.
A U.S. holders tax basis in a warrant generally will
equal the cost of the warrant to such U.S. holder. Such
loss will be long-term capital loss if, at the time of the
expiration, the warrant has been held by the U.S. holder
for more than one year, and currently subject to a preferential
tax rate of a maximum of 15% in the case of non-corporate
U.S. holders. The deductibility of capital losses is
subject to various limitations.
Sale or Other Disposition of
Warrants. Upon a sale or other taxable
disposition of a warrant other than by exercise as described
above, a U.S. holder generally will recognize capital gain
or loss in an amount equal to the difference between the amount
realized on the disposition and the U.S. holders tax
basis in such warrant (see Allocation of Purchase
Price above). A U.S. holders tax basis in a
warrant generally will equal the cost of the warrant to such
U.S. holder. Any such capital gain or loss will be
long-term capital gain or loss if the holders holding
period for the warrant is more than one year at the time of
disposition, and currently subject to a preferential tax rate of
a maximum of 15% in the case of non-corporate U.S. holders.
The deductibility of capital losses is subject to certain
limitations.
Adjustments to the Number of Shares Underlying the
Warrants
and/or
Exercise Price of the Warrants. Certain
adjustments to, or failure to adjust, the number of shares
underlying the warrants
and/or
exercise price of the warrants may cause holders of warrants to
be treated as having received a distribution on the warrants, to
the extent any such adjustment or failure to adjust results in
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an increase in the proportionate interest of such holders in our
company. Such a distribution would be taxable to holders as a
dividend, return of capital or capital gain in accordance with
rules discussed above under Summary of Tax Consequences
with Respect to Our Preferred Stock
U.S. Holders Distributions.
Non-U.S.
Holders
Adjustments to the Number of Shares Underlying the
Warrants
and/or
Exercise Price of the Warrants. Certain
adjustments to, or failure to adjust, the number of shares
underlying the warrants
and/or
exercise price of the warrants may cause holders of warrants to
be treated as having received a distribution on the warrants, to
the extent any such adjustment or failure to adjust results in
an increase in the proportionate interest of such holders in our
company. Any such deemed distribution would be subject to
withholding tax to the same extent as an actual distribution.
Exercise or Sale of Warrants or Common
Stock. You may recognize gain or loss on the
exercise or the sale, exchange, redemption or other taxable
disposition of a warrant. Nevertheless, subject to the
discussion below concerning backup withholding, such gain
generally will not be subject to U.S. federal income tax
unless:
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such gain is effectively connected with your conduct of a trade
or business in the United States (and, if required by an
applicable income tax treaty, is attributable to a
U.S. permanent establishment);
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you are an individual who is present in the United States for
183 days or more in the taxable year of that disposition,
and certain other conditions are met; or
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we are or have been a U.S. real property holding
corporation, or a USRPHC, for United States federal income
tax purposes (i.e., a domestic corporation a significant portion
of whose trade or business and real property assets consist of
United States real property interests).
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If you are an individual described in the first bullet point
above, you will be subject to tax on the net gain derived from
the sale, exchange, redemption or other taxable disposition
under regular graduated U.S. federal income tax rates. If
you are an individual described in the second bullet point
above, you will be subject to a flat 30% tax on the gain derived
from the sale, exchange, redemption or other taxable
disposition, which may be offset by United States source capital
losses, even though you are not considered a resident of the
United States. If you are a foreign corporation that falls under
the first bullet point above, you generally will be subject to
tax on your net gain in the same manner as if you were a United
States person as defined under the Code and, in addition, you
may be subject to the branch profits tax equal to 30% of your
effectively connected earnings and profits or at such lower rate
as may be specified by an applicable income tax treaty.
With respect to the third bullet point above, a corporation is a
USRPHC if the fair market value of its U.S. real
property interests, as defined in the Code and applicable
Treasury regulations, equals or exceeds 50% of the sum of the
fair market value of its worldwide real property interests and
its other assets used or held for use in a trade or business. We
believe that we are not and have not been a USRPHC and do not
anticipate becoming one in the future. If, however, we are or
were to become a USRPHC, the U.S. federal income and
withholding taxes relating to interests in USRPHCs nevertheless
will not apply to gains derived from the sale or other
disposition of warrants by a
non-U.S. holder
if the aggregate fair market value of the interests in us,
including the warrants, treated as held by such
non-U.S. holder
is less than or equal to the fair market value of 5% of the
shares of the regularly-traded class of our stock with the
lowest fair market value, determined as of the date that such
non-U.S. holder
acquires Preferred Stock. If the warrants were to be treated as
regularly traded on an established securities market, such 5%
test would be applied with respect to such warrants. No
assurance can be given that we will not become a USRPHC, or that
the warrants will be considered regularly traded, when a
non-U.S. holder
sells its warrants.
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Information Reporting. Information
returns may be filed with the IRS in connection with deemed
payments of dividends on our warrants and the proceeds from a
sale or other disposition of the warrants. You may be subject to
U.S. backup withholding on these payments unless you comply
with certification procedures to establish an exemption from
backup withholding. The amount of any backup withholding from a
payment to you will be allowed as a credit against your
U.S. federal income tax liability and may entitle you to a
refund, provided that the required information is furnished to
the IRS.
PROSPECTIVE PURCHASERS OF WARRANTS SHOULD SEEK ADVICE BASED UPON
THEIR PARTICULAR CIRCUMSTANCES FROM AN INDEPENDENT TAX ADVISOR.
Summary of Tax
Consequences with Respect to our Common Stock
U.S.
Holders
Distributions on Our Common
Stock. Distributions on our common stock
generally will be treated as a dividend, return of capital or
capital gain as described in Summary of Tax Consequences
with Respect to Our Preferred Stock
U.S. Holders Distributions.
Adjustments to the Number of Shares Underlying the
Warrants
and/or
Exercise Price of the Warrants. Certain
adjustments to, or failure to adjust, the number of shares
underlying the warrants
and/or
exercise price of the warrants may cause holders of common stock
to be treated as having received a distribution on the common
stock, to the extent any such adjustment or failure to adjust
results in an increase in the proportionate interest of such
holders in our company. Such a distribution would be taxable to
holders as a dividend, return of capital or capital gain
generally in accordance with rules discussed above under
Summary of Tax Consequences with Respect to Our Preferred
Stock U.S. Holders
Distributions.
Sale, Exchange or Other Disposition of Our Common
Stock. Upon a taxable disposition of common
stock, a holder generally will recognize capital gain or loss
equal to the difference, if any, between (i) the amount of
cash and the fair market value of other property received, and
(ii) the holders adjusted tax basis in the shares.
Such gain or loss generally will be long-term capital gain or
loss if the holding period with respect to such shares is more
than one year, currently subject to a preferential tax rate at a
maximum of 15% in the case of non-corporate U.S. holders.
The deductibility of capital losses is subject to certain
limitations.
Backup Withholding and Information
Reporting. Information returns may be filed
with the IRS in connection with payments or accrual of dividends
on the common stock and the proceeds from a sale or other
disposition of the common stock. You will not be subject to
U.S. backup withholding tax on these payments if you
provide your taxpayer identification number to the paying agent
and comply with certain certification procedures or otherwise
establish an exemption from backup withholding. The amount of
any backup withholding from a payment to you will be allowed as
a credit against your U.S. federal income tax liability and
may entitle you to a refund, provided that the required
information is furnished to the IRS.
Non-U.S.
Holders
Dividends and Adjustments to the Number of Shares
Underlying the Warrants
and/or
Exercise Price of the Warrants. Any dividend
paid with respect to our common stock will be subject to
withholding tax at a 30% rate or such lower rate as specified by
an applicable income tax treaty. Certain adjustments to, or
failure to adjust, the number of shares underlying the warrants
and/or
exercise price of the warrants may cause holders of common stock
to be treated as having received a distribution on the common
stock, to the extent any such adjustment or failure to adjust
results in an increase in the proportionate interest of such
holders in our company. Any such deemed distribution would be
subject to withholding tax to the same extent as an actual
distribution.
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Dividends and deemed distributions that are effectively
connected with the conduct of a trade or business within the
United States, however, are not subject to the withholding tax,
but instead are subject to U.S. federal income tax on a net
income basis at applicable graduated individual or corporate
rates (unless, under an applicable treaty, such dividends or
deemed distributions are not attributable to a
U.S. permanent establishment of such holder). Certain
certification and disclosure requirements must be complied with
in order for effectively connected income to be exempt from
withholding. Any such effectively connected dividends or deemed
distributions received by a foreign corporation may, under
certain circumstances, be subject to an additional branch
profits tax at a 30% rate or such lower rate as specified by an
applicable income tax treaty.
A
non-U.S. holder
of shares of common stock who wishes to claim the benefit of an
applicable treaty rate is required to satisfy applicable
certification and other requirements. If a
non-U.S. holder
is eligible for a reduced rate of U.S. withholding tax
pursuant to an income tax treaty, the holder may obtain a refund
of any excess amounts withheld by timely filing an appropriate
claim for refund with the IRS.
Sale, Exchange or Other Disposition of Our Common
Stock. You will recognize gain or loss on the
sale, exchange, redemption or other taxable disposition on the
sale or other taxable disposition of shares of common stock.
Nevertheless, subject to the discussion below concerning backup
withholding, gain generally will not be subject to United States
federal income tax unless:
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that gain is effectively connected with your conduct of a trade
or business in the United States (and, if required by an
applicable income tax treaty, is attributable to a
U.S. permanent establishment);
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you are an individual who is present in the United States for
183 days or more in the taxable year of that disposition,
and certain other conditions are met; or
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we are or have been a U.S. real property holding
corporation, or a USRPHC, for United States federal income
tax purposes (i.e., a domestic corporation a significant portion
of whose trade or business and real property assets consist of
United States real property interests).
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If you are an individual described in the first bullet point
above, you will be subject to tax on the net gain derived from
the sale, exchange, redemption or other taxable disposition
under regular graduated U.S. federal income tax rates. If
you are an individual described in the second bullet point
above, you will be subject to a flat 30% tax on the gain derived
from the sale, exchange, redemption or other taxable
disposition, which may be offset by United States source capital
losses, even though you are not considered a resident of the
United States. If you are a foreign corporation that falls under
the first bullet point above, you generally will be subject to
tax on your net gain in the same manner as if you were a United
States person as defined under the Code and, in addition, you
may be subject to the branch profits tax equal to 30% of your
effectively connected earnings and profits or at such lower rate
as may be specified by an applicable income tax treaty.
With respect to the third bullet point above, a corporation is a
USRPHC if the fair market value of its U.S. real
property interests, as defined in the Code and applicable
Treasury regulations, equals or exceeds 50% of the sum of the
fair market value of its worldwide real property interests and
its other assets used or held for use in a trade or business. We
believe that we are not and have not been a USRPHC and do not
anticipate becoming one in the future. If, however, we are or
were to become a USRPHC, the U.S. federal income and
withholding taxes relating to interests in USRPHCs nevertheless
will not apply to gains derived from the sale or other
disposition of the common stock by a
non-U.S. holder
whose shareholdings, actual and constructive, at all times
during the applicable period, amount to 5% or less of our common
stock, provided that our common stock is regularly traded on an
established securities market. No assurance can be given that we
will not become a USRPHC, or that our common stock will be
considered regularly traded, when a
Non-U.S. Holder
sells its shares of our common stock.
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Information Reporting and Backup
Withholding. Generally, we must report to the
IRS and to you the amount of dividends paid to you and the
amount of tax, if any, withheld with respect to those payments.
Copies of the information returns reporting such payments and
any withholding may also be made available to the tax
authorities in the country in which you reside under the
provisions of an applicable income tax treaty.
In general, you will not be subject to backup withholding with
respect to payments of dividends that we make to you provided
that we do not have actual knowledge or reason to know that you
are a United States person, as defined under the Code, you
provide your name and address on an IRS
Form W-8BEN
(or other applicable form), and certify, under penalties of
perjury, that you are not a United States person.
In addition, no information reporting or backup withholding will
be required regarding the proceeds of the sale of shares of
common stock made within the United States or conducted through
certain United States-related financial intermediaries, if the
payor receives the statement described above and does not have
actual knowledge or reason to know that you are a United States
person, as defined under the Code, or you otherwise establish an
exemption.
Any amounts withheld under the backup withholding rules will be
allowed as a refund or a credit against your United States
federal income tax liability provided the required information
is furnished to the IRS.
PROSPECTIVE PURCHASERS OF COMMON STOCK SHOULD SEEK ADVICE BASED
ON THEIR PARTICULAR CIRCUMSTANCES FROM AN INDEPENDENT TAX
ADVISOR.
S-24
DESCRIPTION OF
SERIES A CUMULATIVE PERPETUAL PREFERRED STOCK
This description of the terms of the Series A Cumulative
Perpetual Preferred Stock is only a summary. The terms of the
Series A Cumulative Perpetual Preferred Stock will be
contained in a certificate of designations adopted by our board
of directors. The certificate of designations will be filed as
an exhibit to a Current Report on
Form 8-K
after the date of this prospectus supplement.
General
Our articles of incorporation authorizes the issuance of
50,000,000 preferred shares, par value $0.001 per share.
When issued, the Series A Cumulative Perpetual Preferred
Stock will constitute a single series of the preferred shares,
consisting
of shares
(or shares
if the underwriters exercise their option to purchase additional
shares of Series A Cumulative Perpetual Preferred Stock in
accordance with the procedures set forth in
Underwriting). The holders of the Series A
Cumulative Perpetual Preferred Stock will have no preemptive
rights. All of the shares of the Series A Cumulative
Perpetual Preferred Stock, when issued and paid for, will be
fully paid and non-assessable.
The Series A Cumulative Perpetual Preferred Stock will rank
as to payment of dividends and distributions of assets upon
dissolution, liquidation or winding up:
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junior to all of our and our subsidiaries existing and
future debt obligations;
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junior to any class or series of our capital stock, the terms of
which provide that such class or series will rank senior to the
Series A Cumulative Perpetual Preferred Stock;
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senior to our common shares and any other class or series of our
capital stock, the terms of which provide that such class or
series will rank junior to the Series A Cumulative
Perpetual Preferred Stock either or both as to the payment of
dividends
and/or as to
the distribution of assets on any liquidation, dissolution or
winding up of our company (in each case without regard to
whether dividends accrue cumulatively or non-cumulatively),
which are collectively referred to as the Junior
Stock; and
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on a parity with any other class or series of our capital stock,
the terms of which provide that such class or series will rank
equally with Series A Cumulative Perpetual Preferred Stock
both in the payment of dividends and in the distribution of
assets on any liquidation, dissolution or winding up of our
company, which are collectively referred to as the Parity
Stock;
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in each case, whether now outstanding or to be issued in the
future.
Under Nevada law, the Company may declare or pay dividends on
the Series A Cumulative Perpetual Preferred Stock only to
the extent by which the total assets exceed the total
liabilities and so long as the Company is able to pay its debts
as they become due in the usual course of its business. When the
need to make these determinations arises, our board of directors
will determine the amount of the total assets and total
liabilities and our ability to pay our debts in accordance with
Nevada law.
Dividends
General
Holders of Series A Cumulative Perpetual Preferred Stock
will be entitled to receive cumulative cash dividends quarterly,
when and if declared, on February 15, May 15, August
15 and November 15 of each year (or the following business day
if such day is not a business day), commencing on
February 15, 2009, each of which is a dividend
payment date, on each share of Series A Cumulative
Perpetual Preferred Stock at a per annum rate of % on
(i) the amount of $100 per share of Series A
Cumulative Perpetual Preferred Stock and (ii) the amount of
accrued and unpaid dividends (including dividends thereon at a
per annum rate of % to the date of payment) on such
share of Series A Cumulative Perpetual Preferred Stock, if
any (giving effect to (A) any dividends paid through the
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dividend payment date that begins such dividend period (other
than the initial dividend period) and (B) any dividends
paid during such dividend period). Dividends on the
Series A Cumulative Perpetual Preferred Stock will begin to
accrue and be cumulative from the original issuance date, will
compound on each dividend payment date and will be payable in
arrears.
Dividends accrued on the Series A Cumulative Perpetual
Preferred Stock in respect of any dividend period will be
computed on the basis of a
360-day year
consisting of twelve
30-day
months. The amount of dividends accrued on the Series A
Cumulative Perpetual Preferred Stock on any date prior to the
end of a dividend period, and for the initial dividend period,
will be computed on the basis of a
360-day year
consisting of twelve
30-day
months, and actual days elapsed over a
30-day month.
A dividend period is the period ending on the day before a
dividend payment date and beginning on the preceding dividend
payment date or, if none, the original date of issuance of the
Series A Cumulative Perpetual Preferred Stock. Dividends
payable in respect of a dividend period will be payable in
arrears on the first dividend payment date after such dividend
period. Dividends that are payable on Series A Cumulative
Perpetual Preferred Stock will be payable to holders of record
of Series A Cumulative Perpetual Preferred Stock as they
appear on the stock register on the applicable record date,
which shall be the 15th calendar day before such dividend
payment date (as originally scheduled) or such other record date
fixed by our board of directors (or another duly authorized
committee of our board of directors) that is not more than 60
nor less than 10 days prior to such dividend payment date.
There is no sinking fund with respect to dividends.
Payment
Restrictions
Unless all accrued, cumulated and unpaid dividends on the
Series A Cumulative Perpetual Preferred Stock for all past
quarterly dividend periods shall have been paid in full (or
declared and a sum sufficient for the payment thereof has been
set aside for the benefit of the holders of shares of
Series A Cumulative Perpetual Preferred Stock on the
applicable record date), we will not:
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declare or pay any dividend on any Junior Stock, unless it is
paid in the form of Junior Stock; or
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redeem, purchase, or otherwise acquire any Junior Stock or
Parity Stock, directly or indirectly, unless it is other than as
a result of a reclassification of Junior Stock for or into other
Junior Stock or of Parity Stock for or into other Parity Stock
(with the same or lesser aggregate liquidation amount) or Junior
Stock, or the exchange or conversion of one share of Junior
Stock for or into another share of Junior Stock or of one share
of Parity Stock for or into another share of Parity Stock (with
the same or lesser per share liquidation amount) or Junior Stock.
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When dividends are not paid (or declared and a sum sufficient
for payment thereof set aside for the benefit of the holders
thereof on the applicable record date) on any dividend payment
date (or, in the case of Parity Stock having dividend payment
dates different from the dividend payment dates, on a dividend
payment date falling within a dividend period related to such
dividend payment date) in full upon the Series A Cumulative
Perpetual Preferred Stock and any shares of Parity Stock, all
dividends declared on the Series A Cumulative Perpetual
Preferred Stock and all such Parity Stock and payable on such
dividend payment date (or, in the case of Parity Stock having
dividend payment dates different from the dividend payment
dates, on a dividend payment date falling within the dividend
period related to such dividend payment date) will be declared
pro rata so that the respective amounts of such dividends
declared shall bear the same ratio to each other as all accrued
and unpaid dividends per share on the Series A Cumulative
Perpetual Preferred Stock (including, if applicable, dividends
on such amount) and all Parity Stock payable on such dividend
payment date (or, in the case of Parity Stock having dividend
payment dates different from the dividend payment dates, on a
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dividend payment date falling within the dividend period related
to such dividend payment date) bear to each other.
If all or a portion of the dividends payable on any series of
our preferred stock by its terms are not permitted to be paid in
cash and are required to be paid in the form of additional
shares of such series of preferred stock or an increase in the
liquidation preference of such series of preferred stock, that
amount of dividends paid on such series of preferred stock in
the form of additional shares or an increase in the liquidation
preference of such series of preferred stock shall be considered
paid for purposes of the payment restrictions and pro rata
payment requirements set forth above.
Subject to the foregoing, such dividends (payable in cash,
securities or other property) as may be determined by our board
of directors (or another duly authorized committee of our board
of directors) may be declared and paid on any securities,
including Junior Stock, from time to time out of any funds
legally available for such payment, and the Series A
Cumulative Perpetual Preferred Stock shall not be entitled to
participate in any such dividends.
Redemption
Holders of Series A Cumulative Perpetual Preferred Stock
will not have any right to require us to redeem any shares of
Series A Cumulative Perpetual Preferred Stock.
Prior to November 15, 2011, we may not redeem any shares of
Series A Cumulative Perpetual Preferred Stock. On or after
November 15, 2011, we may, at our option, redeem, in whole
at any time or in part from time to time, the shares of
Series A Cumulative Perpetual Preferred Stock at the time
outstanding, at a redemption price equal to the sum of
(i) $110 per share and (ii) the accrued and unpaid
dividends thereon (including, if applicable, dividends on such
amount), whether or not declared, to the redemption date.
However, the minimum number of shares of Series A
Cumulative Perpetual Preferred Stock that we may redeem at any
time is the lesser of (i) 1,000,000 shares of
Series A Cumulative Perpetual Preferred Stock and
(ii) the number of shares of Series A Cumulative
Perpetual Preferred Stock outstanding.
The redemption price for any shares of Series A Cumulative
Perpetual Preferred Stock shall be payable on the redemption
date to the holder of such shares against surrender of the
certificate(s) evidencing such shares to us or our agent. Any
accrued but unpaid dividends payable on a redemption date that
occurs subsequent to the dividend record date for a dividend
period will not be paid to the holder entitled to receive the
redemption price on the redemption date, but rather will be paid
to the holder of record of the redeemed shares on such dividend
record date relating to the dividend payment date.
Notice of every redemption of shares of Series A Cumulative
Perpetual Preferred Stock shall be given by first class mail,
postage prepaid, addressed to the holders of record of the
shares to be redeemed at their respective last addresses
appearing on our books, on not less than 30 days and not
more than 60 days before the date fixed for redemption.
Notwithstanding the foregoing, if the Series A Cumulative
Perpetual Preferred Stock are issued in book-entry form through
The Depository Trust Company or any other similar facility,
notice of redemption may be given to the holders of
Series A Cumulative Perpetual Preferred Stock at such time
and in any manner permitted by such facility. Each notice of
redemption given to a holder shall state: (1) the
redemption date; (2) the number of shares of Series A
Cumulative Perpetual Preferred Stock to be redeemed and, if less
than all the shares held by such holder are to be redeemed, the
number of such shares to be redeemed from such holder;
(3) the redemption price; and (4) the place or places
where certificates for such shares are to be surrendered for
payment of the redemption price.
In case of any redemption of part of the shares of Series A
Cumulative Perpetual Preferred Stock at the time outstanding,
the shares to be redeemed shall be selected either pro rata
or in such other manner as we may determine to be fair and
equitable. We have full power and authority to
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prescribe the terms and conditions upon which shares of
Series A Cumulative Perpetual Preferred Stock shall be
redeemed from time to time.
Conversion
Holders of Series A Cumulative Perpetual Preferred Stock
shares have no right to exchange or convert such shares into any
other securities.
Liquidation
Rights
In the event of a voluntary or involuntary liquidation,
dissolution or winding up, subject to the rights of holders of
any shares of the capital stock then outstanding ranking senior
to or pari passu with the Series A Cumulative Perpetual
Preferred Stock in respect of distributions upon our
liquidation, dissolution or winding up, the holders of the
Series A Cumulative Perpetual Preferred Stock then
outstanding will be entitled to receive before any distribution
or payment is made on any shares of the capital stock ranking
junior as to the distribution of assets upon our voluntary or
involuntary liquidation, dissolution or the winding up of our
affairs, payment in full in the amount of (i) $100 per
share; and (ii) the accrued and unpaid dividends thereon
(including, if applicable, dividends on such amount), whether or
not declared, to the date of payment.
For the purpose of the immediately preceding paragraph, none of
the following will constitute or be deemed to constitute a
voluntary or involuntary liquidation, dissolution or winding up
of the affairs:
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the sale, transfer, lease or conveyance of all or substantially
all of the property or business;
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our consolidation or merger with or into any other
person; or
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the consolidation or merger of any other person with or into us.
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In the event our assets available for distribution to the
holders of the preferred shares, including the Series A
Cumulative Perpetual Preferred Stock, upon our liquidation,
dissolution or winding up, whether voluntary or involuntary, are
insufficient to pay in full all amounts to which such holders
are entitled, the holders of the Series A Cumulative
Perpetual Preferred Stock and the holders of the securities
ranking pari passu with the Series A Cumulative Perpetual
Preferred Stock as to distribution of our assets upon such
liquidation, dissolution or winding up, will share ratably in
any distribution of the assets based upon the proportion of the
full respective liquidation preference of each such series,
including an amount equal to any accrued and unpaid dividends,
to the aggregate liquidation preference, including an amount
equal to any accrued but unpaid dividends, for all outstanding
shares for each series.
After the payment to the holders of the Series A Cumulative
Perpetual Preferred Stock of the full preferential amounts
provided for above, the holders of the Series A Cumulative
Perpetual Preferred Stock will have no right or claim to any of
the remaining assets.
Voting
Rights
The holders of Series A Cumulative Perpetual Preferred
Stock shall not have any voting rights except as required by
applicable Nevada laws, the certificate of designations and as
described below.
So long as any shares of Series A Cumulative Perpetual
Preferred Stock are outstanding, in addition to any other vote
or consent of stockholders required by law or by our articles of
incorporation, the vote or consent of the holders of at least
662/3%
of the shares of Series A Cumulative Perpetual Preferred
Stock and any Parity Stock at the time outstanding and entitled
to vote thereon, voting together as a single class, given in
person or by proxy, either in writing without a meeting or by
vote at any meeting called for the purpose, shall be necessary
for effecting or validating:
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any amendment or alteration of our articles of incorporation to
authorize or create, or increase the authorized amount of, any
shares of any class or series of our capital stock ranking
senior
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to the Series A Cumulative Perpetual Preferred Stock with
respect to either or both the payment of dividends
and/or the
distribution of assets on any liquidation, dissolution or
winding up of the Corporation;
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any amendment, alteration or repeal of any provision of our
articles of incorporation so as to materially and adversely
affect the special rights, preferences, privileges or voting
powers of the Series A Cumulative Perpetual Preferred Stock
, taken as a whole; or
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any consummation of a binding share exchange or reclassification
involving the Series A Cumulative Perpetual Preferred Stock
, or of our merger or consolidation with another corporation or
other entity, unless in each case (x) the shares of
Series A Cumulative Perpetual Preferred Stock remain
outstanding or, in the case of any such merger or consolidation
with respect to which we are not the surviving or resulting
entity, are converted into or exchanged for preference
securities of the surviving or resulting entity or its ultimate
parent, and (y) such shares remaining outstanding or such
preference securities, as the case may be, have such rights,
preferences, privileges and voting powers, and limitations and
restrictions thereof, taken as a whole, as are not materially
less favorable to the holders thereof than the rights,
preferences, privileges and voting powers, and limitations and
restrictions thereof, of the Series A Cumulative Perpetual
Preferred Stock immediately prior to such consummation, taken as
a whole;
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provided, however, that any increase in the amount
of the authorized preferred stock, or the creation and issuance,
or an increase in the authorized or issued amount, of any other
series of preferred stock ranking equally with
and/or
junior to the Series A Cumulative Perpetual Preferred Stock
with respect to the payment of dividends (whether such dividends
are cumulative or non-cumulative)
and/or the
distribution of assets upon our liquidation, dissolution or
winding up will not be deemed to adversely affect the rights,
preferences, privileges or voting powers of the Series A
Cumulative Perpetual Preferred Stock.
In addition to any other vote or consent of stockholders
required by law or by our articles of incorporation, so long as
at least 1,000,000 shares of Series A Cumulative
Perpetual Preferred Stock are outstanding, the vote or consent
of the holders of at least a majority of the shares of
Series A Cumulative Perpetual Preferred Stock at the time
outstanding, voting in person or by proxy, either in writing
without a meeting or by vote at any meeting called for the
purpose, shall be necessary for effecting or validating:
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any amendment or alteration of our articles of incorporation to
authorize or create, or increase the authorized amount of, any
shares of any class or series of our capital stock, or the
issuance of any shares of any class or series of our capital
stock, in each case, ranking senior to the Series A
Cumulative Perpetual Preferred Stock with respect to either or
both the payment of dividends
and/or the
distribution of assets on our liquidation, dissolution or
winding up;
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any amendment, alteration or repeal of any provision of our
articles of incorporation so as to affect or change the rights,
preferences, privileges or voting powers of the Series A
Cumulative Perpetual Preferred Stock so as not to be
substantially similar to those in effect immediately prior to
such amendment, alteration or repeal; or
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any consummation of a binding share exchange or reclassification
involving the Series A Cumulative Perpetual Preferred
Stock, or of our merger or consolidation with another
corporation or other entity, unless in each case (x) the
shares of Series A Cumulative Perpetual Preferred Stock
remain outstanding or, in the case of any such merger or
consolidation with respect to which we are not the surviving or
resulting entity, are converted into or exchanged for preference
securities of the surviving or resulting entity or its ultimate
parent, and (y) such shares remaining outstanding or such
preference securities, as the case may be, have such rights,
preferences, privileges and voting powers, and limitations and
restrictions thereof as are
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substantially similar to the rights, preferences, privileges and
voting powers, and limitations and restrictions of the
Series A Cumulative Perpetual Preferred Stock immediately
prior to such consummation;
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provided, however, that the creation and issuance,
or an increase in the authorized or issued amount, of any other
series of preferred stock ranking equally with
and/or
junior to the Series A Cumulative Perpetual Preferred Stock
with respect to the payment of dividends (whether such dividends
are cumulative or non-cumulative)
and/or the
distribution of assets upon liquidation, dissolution or winding
up of the Company will not be deemed to adversely affect the
rights, preferences, privileges or voting powers of the
Series A Cumulative Perpetual Preferred Stock.
No vote or consent of the holders of Series A Cumulative
Perpetual Preferred Stock shall be required as set forth in the
preceding two paragraphs if, at or prior to the time when any
such vote or consent would otherwise be required, all
outstanding shares of Series A Cumulative Perpetual
Preferred Stock (or, in the case of a vote or consent related to
any share exchanges, reclassifications, mergers and
consolidations, more than 9,000,000 shares of Series A
Cumulative Perpetual Preferred Stock ) shall have been redeemed,
or shall have been called for redemption upon proper notice and
sufficient funds shall have been deposited in trust for such
redemption.
Election of
Directors
If and whenever an amount equal to six full quarterly dividends,
whether or not consecutive, payable on any class or series of
our preferred stock, including the Series A Cumulative
Perpetual Preferred Stock , are not paid or otherwise declared
and set aside for payment, the holders of the Series A
Cumulative Perpetual Preferred Stock and our preferred stock
with similar rights to elect directors in the event dividends
are not paid or otherwise set side for payment that have also
been triggered as a result of the our failure to pay dividends
on our preferred stock (the Voting Preferred),
voting as a single class shall be entitled to increase the
authorized number of directors on our board of directors by two
and elect such two additional directors to our board of
directors at the next annual meeting or special meeting. Not
later than 40 days after the entitlement arises our board
of directors will convene a special meeting of the holders of
the Voting Preferred for the purpose of electing the additional
two directors. If our board of directors fails to convene such
meeting within such
40-day
period, then holders of 10% of the outstanding shares of the
Voting Preferred, taken as single class, may call the meeting.
If all accrued, cumulated and unpaid dividends in default on our
preferred stock have been paid in full or declared and set apart
for payment, the holders of the Voting Preferred will no longer
have the right to vote on directors and the term of office of
each director so elected will terminate immediately and the
authorized number of our directors will, without further action,
be reduced accordingly. If all or a portion of the dividends
payable on any series of our preferred stock by its terms are
not permitted to be paid in cash and are required to be paid in
the form of additional shares of such series of preferred stock
or an increase in the liquidation preference of such series of
preferred stock, that amount of dividends paid on such series of
preferred stock in the form of additional shares or an increase
in the liquidation preference of such series of preferred stock
shall be considered paid and not in default for purposes of the
right to elect directors.
Transfer Agent,
Registrar and Paying Agent
American Stock Transfer and Trust Company will act as
transfer agent, registrar and paying agent for the payment of
dividends for the Series A Cumulative Perpetual Preferred
Stock.
Title
To the fullest extent permitted by applicable law, we and the
transfer agent for the Series A Cumulative Perpetual
Preferred Stock may deem and treat the record holder of any
share of Series A Cumulative Perpetual Preferred Stock as
the true and lawful owner thereof for all purposes, and neither
we nor such transfer agent shall be affected by any notice to
the contrary.
S-30
Book-Entry,
Delivery and Form
The Depository Trust Company will act as securities
depositary for the Series A Cumulative Perpetual Preferred
Stock. The Series A Cumulative Perpetual Preferred Stock
will be issued only as fully registered securities registered in
the name of Cede & Co., the depositarys nominee.
One or more fully registered global security certificates,
representing the total aggregate number of shares of
Series A Cumulative Perpetual Preferred Stock, will be
issued and deposited with or on behalf of the depositary and
will bear a legend regarding the restrictions on exchanges and
registration of transfer referred to below.
The laws of some jurisdictions require that some purchasers of
securities take physical delivery of securities in definitive
form. Those laws may impair the ability to transfer beneficial
interests in the Series A Cumulative Perpetual Preferred
Stock so long as the Series A Cumulative Perpetual
Preferred Stock is represented by global security certificates.
The depositary 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
pursuant to the provisions of Section 17A of the Securities
Exchange Act of 1934.
The depositary holds securities that its participants deposit
with the depositary. The depositary also facilitates the
settlement among participants of securities transactions,
including transfers and pledges, in deposited securities through
electronic computerized book-entry changes in participants
accounts, thus eliminating the need for physical movement of
securities certificates. Direct participants include securities
brokers and dealers, banks, trust companies, clearing
corporations and certain other organizations. The depositary is
owned by a number of its direct participants and by the New York
Stock Exchange, the American Stock Exchange, Inc. and the
Financial Industry Regulatory Authority, Inc., collectively
referred to as participants. Access to the depositary system is
also available to others, including securities brokers and
dealers, bank and trust companies that clear transactions
through or maintain a direct or indirect custodial relationship
with a direct participant, collectively referred to as indirect
participants. The rules applicable to the depositary and its
participants are on file with the SEC.
Except as otherwise required by applicable law, no shares of the
Series A Cumulative Perpetual Preferred Stock represented
by global security certificates may be exchanged in whole or in
part for the Series A Cumulative Perpetual Preferred Stock
registered, and no transfer of global security certificates will
be made in whole or in part for the Series A Cumulative
Perpetual Preferred Stock registered, and no transfer of global
security certificates in whole or in part may be registered, in
the name of any person other than the depositary or any nominee
of the depositary, unless (i) the depositary has notified
us that it is unwilling or unable to continue as depositary for
the global security certificates and we do not appoint a
qualified replacement within 90 days; (ii) the
depositary has ceased to be qualified to act as such and we do
not appoint a qualified replacement within 90 days; or
(iii) we decide to discontinue the use of book-entry
transfer through the depositary (or any successor depositary).
All of the Series A Cumulative Perpetual Preferred Stock
represented by one or more global security certificates or any
portion of them will be registered in those names as the
depositary may direct.
As long as the depositary or its nominee is the registered owner
of the global security certificates, the depositary or that
nominee will be considered the sole owner and holder of the
global security certificates and all of the Series A
Cumulative Perpetual Preferred Stock represented by those
certificates for all purposes under the Series A Cumulative
Perpetual Preferred Stock. Notwithstanding the foregoing,
nothing herein shall prevent us or any of our agents or the
registrar or any of its agents from giving effect to any written
certification, proxy or other authorization furnished by the
depositary or impair, as between the depositary and its members
or participants, the operation of customary practices of the
depositary governing the exercise of the rights of a holder of a
beneficial
S-31
interest in any global security certificates. The depositary or
any nominee of the depositary may grant proxies or otherwise
authorize any person to take any action that the depositary or
such nominee is entitled to take pursuant to the Series A
Cumulative Perpetual Preferred Stock, the certificate of
designations, which contains the terms of the Series A
Cumulative Perpetual Preferred Stock, or our articles of
incorporation.
Except in the limited circumstances referred to above or as
otherwise required by applicable law, owners of beneficial
interests in global security certificates will not be entitled
to have the global security certificates or the Series A
Cumulative Perpetual Preferred Stock represented by those
certificates registered in their names, will not receive or be
entitled to receive physical delivery of the Series A
Cumulative Perpetual Preferred Stock certificates in exchange
and will not be considered to be owners or holders of the global
security certificates or any of the Series A Cumulative
Perpetual Preferred Stock represented by those certificates for
any purpose under the Series A Cumulative Perpetual
Preferred Stock. All payments on the Series A Cumulative
Perpetual Preferred Stock represented by the global security
certificates and all related transfers and deliveries of common
shares will be made to the depositary or its nominee as their
holder.
Ownership of beneficial interests in the global security
certificates will be limited to participants or persons that may
hold beneficial interests through institutions that have
accounts with the depositary or its nominee, including Euroclear
Bank S.A./N.V., as the operator of the Euroclear System,
and Clearstream Banking, société anonyme.
Ownership of beneficial interests in global security
certificates will be shown only on, and the transfer of those
ownership interests will be effected only through, records
maintained by the depositary or its nominee with respect to
participants interests or by the participant with respect
to interests of persons held by the participants on their behalf.
Payments, transfers, deliveries, exchanges and other matters
relating to beneficial interests in global security certificates
may be subject to various policies and procedures adopted by the
depositary from time to time.
Neither we nor any of the agents will have any responsibility or
liability for any aspect of the depositarys or any
participants records relating to, or for payments made on
account of, beneficial interests in global security
certificates, or for maintaining, supervising or reviewing any
of the depositarys records or any participants
records relating to those beneficial ownership interests.
The information in this section concerning the depositary and
its book-entry system has been obtained from sources that we
believe to be reliable, but we do not take responsibility for
its accuracy.
Replacement of
Series A Cumulative Perpetual Preferred Stock
Certificates
We will replace any mutilated certificate at the holders
expense upon surrender of that certificate to us. We will
replace certificates that become destroyed, stolen or lost at
the holders expense upon delivery to us of reasonably
satisfactory evidence that the certificate has been destroyed,
stolen or lost, together with any indemnity that we may
reasonably require.
S-32
DESCRIPTION OF
WARRANTS
General
The warrants will be issued pursuant to a warrant agreement (the
Warrant Agreement) between us and U.S. Bank
National Association, as the warrant agent. The following
summary of certain provisions of the warrant agreement,
including the definitions therein of certain terms used below,
does not purport to be complete and is qualified in its entirety
by reference to the Warrant Agreement and the warrant
certificate attached thereto, the forms of which have been filed
as exhibits to the registration statement of which this
prospectus supplement is a part.
Each warrant, when exercised, will entitle the holder thereof to
receive fully paid and non-assessable shares of our common stock
(the Warrant Shares) at an exercise price equal to
$ per share (the
Exercise Price). The Exercise Price and the number
of shares of common stock received upon exercise are both
subject to adjustment in certain cases referred to below. The
warrants issued with respect to the Series A Cumulative
Perpetual Preferred Stock will entitle the holders thereof to
purchase,
collectively, Warrant
Shares, or approximately % of the
outstanding shares of our outstanding common stock on a
fully-diluted basis as of the date hereof.
The warrants will be exercisable at any time after the date of
issuance, but in no event later than 5:00 p.m., New York
City time, on November 16, 2013. The exercise and transfer
of the warrants will be subject to applicable federal and state
securities laws.
The warrants may be exercised by (i) surrendering to the
Company the warrant certificates evidencing the warrants to be
exercised together with the accompanying form of election to
purchase Warrant Shares, properly completed and executed, and
(ii) tendering payment to the Company of the aggregate
Exercise Price by, at the option of the holder exercising the
warrants, either:
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paying an amount in cash equal to the aggregate Exercise Price
by wire transfer or by certified or official bank check payable
to the Companys order (the Cash Exercise
Option);
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tendering shares of Series A Cumulative Perpetual Preferred
Stock or Series B Cumulative Perpetual Preferred Stock having an
aggregate liquidation preference, plus, without duplication,
accumulated and unpaid dividends, at the time of tender equal to
the Exercise Price (the Preferred Exercise
Option); or
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having the Company withhold, from the shares of common stock
that would otherwise be delivered to the warrantholder upon such
exercise, shares of common stock with a Market Value equal to
the Exercise Price (the Net Share Exercise Option).
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The Market Value of a share of the Companys
common stock is equal to the average of the daily VWAPs of such
common stock for each day of the related observation period.
The observation period with respect to any warrant
means the 20 consecutive trading day period beginning on and
including the third trading day after the Exercise Date (as
defined below) of such warrant.
The daily VWAP for the common stock of the Company
means, for each of the 20 consecutive trading days during the
observation period, the per share volume-weighted average price
as displayed under the heading Bloomberg VWAP on
Bloomberg page LVS.N < equity> AQR (or any
successor page) in respect of the period from 9:30 a.m. to
4:00 p.m., New York City time, on such trading day, or if
such volume-weighted average price is unavailable, the market
value of one share of our common stock on such trading day as
our board of directors determines in good faith using a
volume-weighted method.
For purposes of determining the payment of the Exercise Price,
trading day means a day during which
(i) trading in our common stock generally occurs on the
principal U.S. national or regional securities exchange or
market on which our common stock is listed or admitted for
trading and
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(ii) there is no market disruption event. If our common
stock is not so listed or traded, then trading day
means a business day.
Market disruption event means (i) a failure by
the principal U.S. national or regional securities exchange
or market on which our common stock is listed or admitted for
trading to open for trading during its regular trading session
or (ii) the occurrence or existence prior to
1:00 p.m., New York City time, on any scheduled
trading day for our common stock for an aggregate one
half-hour
period of any suspension or limitation imposed on trading (by
reason of movements in price exceeding limits permitted by the
stock exchange or otherwise) in our common stock or in any
options contracts or futures contracts relating to our common
stock.
The date on which the holder surrenders the warrant certificates
and accompanying form of election and payment of the aggregate
Exercise Price will be the Exercise Date. The
Company will deliver, or cause to be delivered, to or to the
written order of such warrantholder, stock certificates
representing the number of Warrant Shares to which such
warrantholder is entitled, (i) in the case of the Cash
Exercise Option or the Preferred Exercise Option, on the third
business day following the Exercise Date, and (ii) in the
case of the Net Share Exercise Option, on the third scheduled
trading business day immediately following the last day of the
applicable observation period in the event the holder elects the
Net Share Exercise Option. If less than all of the warrants
evidenced by a warrant certificate are to be exercised, a new
warrant certificate will be issued for the remaining number of
unexercised warrants.
No fractional Warrant Shares will be issued upon exercise of the
warrants. In lieu of such fractional shares otherwise issuable
upon exercise of the warrants, the Company may either
(i) round the number of Warrant Shares to be issued upon
exercise up to the nearest whole number of Warrant Shares or
(ii) deliver an amount in cash equal to the same fraction
of the closing price per share of common stock on the Exercise
Date.
Warrantholders (in their capacities as such) will not have the
right to vote on matters submitted to stockholders of the
Company, to receive dividends in respect of the Companys
capital stock or to share in the Companys assets in the
event of the Companys liquidation, dissolution or winding
up. In the event a bankruptcy or reorganization is commenced by
or against the Company, a bankruptcy court may hold that
unexercised warrants are executory contracts that may be subject
to rejection by the Company with approval of the bankruptcy
court, and the warrantholders may, even if sufficient funds are
available, receive nothing or a lesser amount than that to which
they would otherwise be entitled as a result of any such
bankruptcy case if they had exercised their warrants prior to
the commencement of any such case.
In the event of a taxable distribution to holders of the
Companys common stock that results in an adjustment to the
number of Warrant Shares or other consideration for which a
warrant may be exercised, warrantholders may, in certain
circumstances, be deemed to have received a distribution subject
to United States federal income tax as a dividend. See
Certain U.S. Federal Income Tax
Consequences Summary of Tax Consequences with
Respect to the Warrants
U.S. Holders Adjustments to the Conversion
Rate.
The Warrant Agreement governing the warrants to be issued in
this offering provides that the warrants are not exercisable
such that the warrant holder would become the holder of 5.0% or
more of our outstanding common stock unless such warrant holder
either (i) is an institutional investor under the gaming
regulations of the State of Pennsylvania or (ii) has
complied with any license requirements, or obtained a waiver
from the licensing requirements, under the State of Pennsylvania.
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Adjustments
The number of Warrant Shares purchasable upon exercise of
warrants and the Exercise Price both will be subject to
adjustment in certain events, including:
(a) the payment by us of dividends (and other
distributions) on our common stock payable in common stock;
(b) subdivisions, combinations and reclassifications of our
common stock or capital reorganizations of the Company;
(c) the issuance of common stock, or rights or warrants or
other securities exercisable or convertible into or exchangeable
for shares of common stock, to all holders of our common stock
without consideration or at a consideration per share (or having
a conversion price per share) that is less than 95% of the
current market price per share (as defined in the Warrant
Agreement) of our common stock;
(d) in the event of any pro rata repurchase of our common
stock by us or any of our affiliates;
(e) certain mergers, consolidations and stock and asset
dispositions; and
(f) distributions on our common stock of assets (including
cash), debt securities, preferred stock or any warrants or other
rights to purchase any such securities (excluding those warrants
and other rights referred to in clause (c) above).
No adjustment in the Exercise Price or number of Warrant Shares
will be required if the amount of such adjustment would be less
than $0.0001 or one-ten-thousandth (1/10,000th) of a share of
our common stock; provided, however, that any adjustment that is
not made will be carried forward and taken into account in any
subsequent adjustment. In the case of certain mergers,
consolidations and dispositions, each warrant will thereafter be
exercisable for the right to receive the kind and amount of
shares of stock or other securities, cash or property to which
such holder would have been entitled as a result of such merger,
consolidation or disposition had the warrant been exercised
immediately prior thereto.
In no circumstances would the Company be able to complete any
adjustment should the adjustment cause the number of common
shares issued and outstanding upon completion of the adjustment
to be in excess of the number of authorized shares of the
Company.
Warrants Issued
to the Adelson Holder With Respect to the Series A
Cumulative Perpetual Preferred Stock
The warrants issued to the Adelson Holder with respect to the
Series A Cumulative Perpetual Preferred Stock will have
identical terms as the warrants issued to the public with
respect to the Series A Cumulative Perpetual Preferred
Stock except that the warrants issued to the Adelson Holder will
not be exercisable until all necessary approvals have been
obtained, including listing of the common stock issuable upon
exercise of the warrants on the New York Stock Exchange, and
until stockholder approval of the issuance of common stock upon
exercise of the warrants is effective.
S-35
MANDATORY
REDEMPTION AND OWNERSHIP LIMITATIONS
Notwithstanding any other provision in the certificate of
incorporation, certificate of designations, and or warrant
agreement, if any gaming authority requires that a holder or
beneficial owner of the common stock, Series A Cumulative
Perpetual Preferred Stock, or warrants must be licensed,
qualified or found suitable under any applicable gaming laws in
order to maintain any gaming license or franchise of the Company
or any of its subsidiaries under any applicable gaming laws, and
the holder or beneficial owner fails to apply for a license,
qualification or finding of suitability within 30 days
after being requested to do so by the gaming authority (or
within such period that may be required by such gaming
authority) or if such holder or beneficial owner is denied such
license or qualification or found not to be suitable, the
Company shall have the right, at its option, (1) to require
such holder or beneficial owner to dispose of such holders
or beneficial owners securities within 30 days of
receipt of such finding by the applicable gaming authority (or
such time as may be required by the applicable gaming authority)
or (2) to call for redemption the securities of such holder
or beneficial owner at a redemption price equal to (i) the
lesser of (a) the price at which such holder or beneficial
owner acquired the securities or (b) the fair market value
of the securities as determined in good faith by the board of
directors of the Company, together with, in each case, accrued
and unpaid dividends to the earlier of the date of redemption or
such earlier date as may be required by the gaming authority or
the date of the finding of unsuitability by such gaming
authority if so ordered by such gaming authority or
(ii) such other price as may be ordered by the gaming
authority. Immediately upon a determination that a holder or
beneficial owner will not be licensed, qualified or found
suitable, the holder or beneficial owner will have no further
rights (a) to exercise any right conferred by the
securities, directly or indirectly, through any trustee, nominee
or any other person or (b) to receive any interest or other
distribution or payment with respect to the securities except
the redemption price of the securities described in this
paragraph; provided, however, such holder or
beneficial holder may, to the extent permitted by such gaming
authority, transfer the securities to any unaffiliated third
party, who shall then be entitled to exercise all rights of a
holder or beneficial holder under the securities. Under the
certificate of designations/warrant agreement, the Company is
not required to pay or reimburse any holder of securities or
beneficial owner who is required to apply for such license,
qualification or finding of suitability for the costs of the
licensure or investigation for such qualification or finding of
suitability. Such expenses will, therefore, be the obligation of
such holder or beneficial owner. See Business
Regulation and Licensing in our annual report on
Form 10-K
incorporated by reference in this prospectus supplement.
Gaming authority means any agency, authority,
board, bureau, commission, department, office or instrumentality
of any nature whatsoever of the United States or foreign
government, any state, province or any city or other political
subdivision, whether now or hereafter existing, or any officer
or official thereof, including without limitation, the Nevada
Gaming Commission, the Nevada State Gaming Control Board, the
Clark County Liquor and Gaming Licensing Board, the Macau Gaming
Authorities, the Pennsylvania Gaming Control Board, the
Singapore Casino Regulatory Authority and any other agency with
authority to regulate any gaming operation (or proposed gaming
operation) owned, managed or operated by the Company or any of
its subsidiaries.
S-36
AGREEMENTS
RELATED TO CONCURRENT OFFERING OF SERIES A CUMULATIVE
PERPETUAL PREFERRED STOCK AND WARRANTS
Note Conversion
and Securities Purchase Agreement
Concurrently with the offering of the Series A Cumulative
Perpetual Preferred Stock and warrants to the public, we expect
to enter into a Note Conversion and Securities Purchase
Agreement with Dr. Adelson pursuant to which
Dr. Adelson will agree to convert the convertible senior
notes
into shares
of our common stock pursuant to the terms of the Convertible
Notes Indenture at a conversion price of
$ per
share, and Dr. Adelson will purchase from us, pursuant to
this prospectus supplement and the accompanying
prospectus, shares
of the % Series A Cumulative
Perpetual Preferred Stock and warrants to
purchase shares
of our common stock for $525.0 million in cash.
The warrants to be issued to Dr. Adelson will not be exercisable
and the senior convertible notes will not be converted into
shares of our common stock, until all necessary approvals have
been obtained (the Approvals), including listing of
the shares of our common stock issuable upon exercise of such
warrants on the New York Stock Exchange, and until the
stockholder approval of the issuance of shares of our common
stock upon exercise of such warrants and conversion of the
senior convertible notes is effective. Stockholders holding
approximately 68.9% of our outstanding common stock are expected
to approve the issuance of shares of our common stock upon
exercise of such warrants and conversion of the senior
convertible notes prior to the completion of the offerings (the
Stockholder Action). The Stockholder Action will not
be effective until 20 days after the Company mails to all of its
stockholders an information statement on Schedule 14C under the
Securities Exchange Act of 1934 (the Information
Statement) regarding the Stockholder Action. Pursuant to
the Note Conversion and Securities Purchase Agreement, the
Company agreed to prepare, file with the Securities and Exchange
Commission and mail to its stockholders the Information
Statement. If the Company does not obtain all required Approvals
within 120 days of the date of the agreement, thereafter and
until the Company receives all required Approvals, a fee will
accrue based on a rate of 2.00% per annum on the aggregate
liquidation preference in respect of the Series A
Cumulative Perpetual Preferred Stock then held directly or
beneficially by Dr. Adelson, Mr. Adelson, or any
Related Party of Mr. Adelson, (provided, that in the
event that any such holder only holds warrants (or common stock
for which the warrants have been exercised) at the time of such
default, the applicable fee shall be determined as described
above as though such holder then holds such amount of
Series A Cumulative Perpetual Preferred Stock as was
originally issued to Dr. Adelson in proportion to the
amount of warrants (or the amount of warrants the exercise of
which yielded the common stock) then actually held by such
holder).
The Note Conversion and Securities Purchase Agreement will
contain customary representations, warranties and covenants for
investments of this type. The closing of the purchase of the
Series A Cumulative Perpetual Preferred Stock and warrants
will be subject to customary conditions to closing, including
the satisfaction of all of the conditions relating to the sale
of the Series A Cumulative Perpetual Preferred Stock and
warrants contained in the Underwriting Agreement (other than the
consummation of the sale of the Series A Cumulative
Perpetual Preferred Stock pursuant to the Note Conversion and
Securities Purchase Agreement). Mr. Adelson, Dr. Adelson
and certain entities related thereto have waived their
preemptive rights in connection with the offerings of the
Series A Cumulative Perpetual Preferred Stock and warrants
and common stock.
Amended and
Restated Registration Rights Agreement
In connection with the Note Conversion and Securities Purchase
Agreement, we will amend and restate the registration rights
agreement originally dated December 20, 2004 and previously
amended and restated on September 30, 2008 (the
Amended and Restated Registration Rights Agreement).
Pursuant to the Amended and Restated Registration Rights
Agreement, the purchaser of the Series A Cumulative
Perpetual Preferred Stock and warrants related thereto will be
granted the same registration rights with
S-37
respect to the Series A Cumulative Perpetual Preferred
Stock and warrants related thereto and the shares of our common
stock issuable upon exercise of the warrants and conversion of
the senior convertible notes as the registration rights
previously granted to Mr. Adelson and certain trusts for
the benefit of the Adelson family that were parties to the
Registration Rights Agreement, dated as of December 20,
2004 (such persons, together with the purchaser of the Series A
Cumulative Perpetual Preferred Stock, the Adelson
Holders).
Under the Amended and Restated Registration Rights Agreement,
subject to certain conditions, the Adelson Holders have demand
and
Form S-3
registration rights with respect to sales of the Series A
Cumulative Perpetual Preferred Stock and warrants, as well as
with respect to shares of our common stock issuable upon
exercise of the warrants (collectively, the Registrable
Securities). The Adelson Holders and the other parties to
the agreement also have certain piggyback registration rights
with respect to sales of our common stock. In addition to the
grant of registration rights, if the Company fails to comply
with its obligations to file a registration statement in respect
of the Registrable Securities within 90 days of a
registration request by the Adelson Holders, fails to cause such
registration statement to be declared effective by the SEC
within 120 days of a registration request, or such a
registration statement ceases to be effective or otherwise
usable for a specified period of time (each, a
Registration Default), then the Company will pay
liquidated damages to the Adelson Holders holding the
Registrable Securities equal to (i) one-half of one percent
(50 basis points) per annum on the aggregate liquidation
preference in respect of the Series A Cumulative Perpetual
Preferred Stock constituting Transfer Restricted Securities then
held directly or beneficially by the Adelson Purchaser or
another Adelson Holder for the period up to and including the
90th day during which such Registration Default has
occurred and is continuing; and (ii) one percent
(100 basis points) per annum on the liquidation preference
in respect of the Series A Cumulative Perpetual Preferred
Stock constituting Transfer Restricted Securities then held
directly or beneficially by the Adelson Purchaser or another
Adelson Holder for the period including and subsequent to the
91st day during which such Registration Default has
occurred and is continuing; provided, however,
that in the event that any such holder only holds warrants (or
common stock for which the warrants have been exercised) at the
time of such Registration Default, Liquidated Damages shall be
determined in accordance with the foregoing clauses (i) or
(ii), as the case may be, as though such holder then holds such
amount of Series A Cumulative Perpetual Preferred Stock
constituting Transfer Restricted Securities as was issued
pursuant to the Note Conversion and Securities Purchase
Agreement in proportion to the amount of warrants (or the amount
of warrants the exercise of which yielded the common stock) then
actually held by such holder.
S-38
UNDERWRITING
The company and the underwriter named below have entered into an
underwriting agreement with respect to the units and shares of
common stock being offered to the public. Each unit consists of
one share of our Series A Cumulative Perpetual
Preferred Shares and one warrant to purchase up
to shares
of our common stock. Units will not be issued or certificated,
and the shares of Series A Cumulative Perpetual Preferred
Stock and warrants are immediately separable and will be issued
separately. Subject to certain conditions, the underwriter has
agreed to purchase the number of units and shares of common
stock indicated in the following table.
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Shares of
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Underwriter
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Number of Units
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Common Stock
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Goldman, Sachs & Co.
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Total
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The underwriter is committed to take and pay for all of the
units and shares of common stock being offered, if any are
taken, other than the shares of common stock covered by the
option described below unless and until the option is exercised.
If the underwriter sells more shares of common stock than the
total number set forth in the table above, the underwriter has
an option to buy up to an
additional
shares of common stock from the company to cover such sales. It
may exercise this option for 30 days. If any shares of
common stock are purchased pursuant to this option, the
underwriter will purchase shares of common stock in
approximately the same proportion as set forth in the table
above.
The following table shows the per unit and total underwriting
discounts and commissions to be paid to the underwriter by the
company.
Units sold by the underwriter to the public will initially be
offered at the public offering price set forth on the cover of
this prospectus. Any units sold by the underwriter to securities
dealers may be sold at a discount of up to
$ per unit from the public
offering price. If all the units are not sold at the public
offering price, the underwriter may change the offering price
and the other selling terms. The offering of the units by the
underwriter is subject to receipt and acceptance and subject to
the underwriters right to reject any order in whole or in
part.
The following table shows the per common share and total
underwriting discounts and commissions to be paid to the
underwriter by the company. Such amounts are shown assuming both
no exercise and full exercise of the underwriters option
to
purchase
additional shares of common stock.
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No Exercise
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Full Exercise
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Shares of common stock sold by the underwriter to the public
will initially be offered at the public offering price set forth
on the cover of this prospectus. Any shares of common stock sold
by the underwriter to securities dealers may be sold at a
discount of up to $ per common
share from the public offering price. If all the shares of
common stock are not sold at the public offering price, the
underwriter may change the offering price and the other selling
terms. The offering of the shares of common stock by the
underwriter are subject to receipt and acceptance and subject to
the underwriters right to reject any order in whole or in
part.
The company, our executive officers, directors and certain
stockholders have agreed with the underwriter, subject to
certain exceptions, not to offer, sell, contract to sell or
otherwise dispose of, except as provided hereunder, any
securities of the company that are substantially similar to the
units,
S-39
preferred stock or common stock of the company, including but
not limited to any securities that are convertible into or
exchangeable for, or that represent the right to receive,
preferred stock or common stock or any such substantially
similar securities (other than pursuant to employee stock option
plans existing on, or upon the conversion or exchange of
convertible or exchangeable securities outstanding as of, the
date of this prospectus (or issued or to be issued pursuant to
employee stock option plans existing on the date of this
prospectus)), whether now owned or hereafter acquired, during
the following periods:
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for our principal stockholder and the trusts established for the
benefit of our principal stockholder
and/or his
family, from the date of the prospectus continuing through the
first anniversary of the date of this prospectus; and
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for the company, our executive officers and the members of our
board of directors (other than our principal stockholder), from
the date of the prospectus continuing through the date that is
90 days after the date of this prospectus;
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in each case, except with the prior written consent of Goldman,
Sachs & Co. Goldman, Sachs & Co. in its sole
discretion may release any of the securities subject to these
lock-up
agreements at any time without notice.
In connection with the offerings, the underwriter may purchase
and sell units, preferred stock or common stock in the open
market. These transactions may include short sales, stabilizing
transactions and purchases to cover positions created by short
sales. Shorts sales involve the sale by the underwriter of a
greater number of securities than it is required to purchase in
the offering. Covered short sales are sales made in
an amount not greater than the underwriters option to
purchase additional shares from the company in the offering. The
underwriter may close out any covered short position by either
exercising its option to purchase additional securities or
purchasing securities in the open market. In determining the
source of securities to close out the covered short position,
the underwriter will consider, among other things, the price of
securities available for purchase in the open market as compared
to the price at which they may purchase additional securities
pursuant to the option granted to them. Naked short
sales are any sales in excess of such option. The underwriter
must close out any naked short position by purchasing securities
in the open market. A naked short position is more likely to be
created if the underwriter is concerned that there may be
downward pressure on the price of the securities in the open
market after pricing that could adversely affect investors who
purchase in the offering. Stabilizing transactions consist of
various bids for or purchases of securities made by the
underwriter in the open market prior to the completion of the
offerings.
Purchases to cover a short position and stabilizing
transactions, as well as other purchases by the underwriter for
its own account, may have the effect of preventing or retarding
a decline in the market price of the companys securities,
and together with the imposition of a penalty bid, may
stabilize, maintain or otherwise affect the market price of the
securities. As a result, the price of the securities may be
higher than the price that otherwise might exist in the open
market. If these activities are commenced, they may be
discontinued at any time. These transactions may be effected on
the New York Stock Exchange, in the over-the-counter market or
otherwise.
The company may enter into derivative transactions with third
parties, or sell securities not covered by this prospectus to
third parties in privately negotiated transactions. In
connection with those derivatives, the third parties may sell
securities covered by this prospectus, including in short sale
transactions. If so, the third party may use securities pledged
by the company or borrowed from the company or others to settle
those sales or to close out any related open borrowings of
stock, and may use securities received from the company in
settlement of those derivatives to close out any related open
borrowings of stock. The third party in such sale transactions
will be an underwriter or will be identified in a post-effective
amendment.
S-40
European Economic
Area
In relation to each Member State of the European Economic Area
which has implemented the Prospectus Directive (each, a Relevant
Member State), the underwriter has represented and agreed that
with effect from and including the date on which the Prospectus
Directive is implemented in that Relevant Member State (the
Relevant Implementation Date) it has not made and will not make
an offer of shares to the public in that Relevant Member State
prior to the publication of a prospectus in relation to the
shares 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 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:
(a) to legal entities which are authorised or regulated to
operate in the financial markets or, if not so authorised or
regulated, whose corporate purpose is solely to invest in
securities;
(b) 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;
(c) to fewer than 100 natural or legal persons (other than
qualified investors as defined in the Prospectus Directive)
subject to obtaining the prior consent of the representative for
any such offer; or
(d) 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 shares to the public in relation to any
shares 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 shares to be offered so as to enable an
investor to decide to purchase or subscribe the shares, as the
same may be varied in that Relevant Member State by any measure
implementing the Prospectus Directive in that Relevant Member
State and the expression Prospectus Directive means Directive
2003/71/EC and includes any relevant implementing measure in
each Relevant Member State.
The underwriter has represented and agreed that:
(a) it has only communicated or caused to be communicated
and will only communicate or cause to be communicated an
invitation or inducement to engage in investment activity
(within the meaning of Section 21 of the FSMA) received by
it in connection with the issue or sale of the shares in
circumstances in which Section 21(1) of the FSMA does not
apply to the Issuer; and
(b) it has complied and will comply with all applicable
provisions of the FSMA with respect to anything done by it in
relation to the shares in, from or otherwise involving the
United Kingdom.
The securities may not be offered or sold by means of any
document other than (i) in circumstances which do not
constitute an offer to the public within the meaning of the
Companies Ordinance (Cap.32, Laws of Hong Kong), or (ii) to
professional investors within the meaning of the
Securities and Futures Ordinance (Cap.571, Laws of Hong Kong)
and any rules made thereunder, or (iii) in other
circumstances which do not result in the document being a
prospectus within the meaning of the Companies
Ordinance (Cap.32, Laws of Hong Kong), and no advertisement,
invitation or document relating to the securities may be issued
or may be in the possession of any person for the purpose of
issue (in each case whether in Hong Kong or elsewhere), which is
directed at, or the contents of which are likely to be accessed
or read by, the public in Hong Kong (except if permitted to do
so under the laws of Hong Kong) other than with respect to
securities which are or are intended to be disposed of only to
persons outside Hong Kong or only to professional
investors within the
S-41
meaning of the Securities and Futures Ordinance (Cap. 571, Laws
of Hong Kong) and any rules made thereunder.
This prospectus has not been registered as a prospectus with the
Monetary Authority of Singapore. Accordingly, this prospectus
and any other document or material in connection with the offer
or sale, or invitation for subscription or purchase, of the
securities may not be circulated or distributed, nor may the
securities be offered or sold, or be made the subject of an
invitation for subscription or purchase, whether directly or
indirectly, to persons in Singapore other than (i) to an
institutional investor under Section 274 of the Securities
and Futures Act, Chapter 289 of Singapore (the
SFA), (ii) to a relevant person, or any person
pursuant to Section 275(1A), and in accordance with the
conditions, specified in Section 275 of the SFA or
(iii) otherwise pursuant to, and in accordance with the
conditions of, any other applicable provision of the SFA.
Where the securities are subscribed or purchased under
Section 275 by a relevant person which is: (a) a
corporation (which is not an accredited investor) the sole
business of which is to hold investments and the entire share
capital of which is owned by one or more individuals, each of
whom is an accredited investor; or (b) a trust (where the
trustee is not an accredited investor) whose sole purpose is to
hold investments and each beneficiary is an accredited investor,
shares, debentures and units of shares and debentures of that
corporation or the beneficiaries rights and interest in
that trust shall not be transferable for 6 months after
that corporation or that trust has acquired the securities under
Section 275 except: (1) to an institutional investor
under Section 274 of the SFA or to a relevant person, or
any person pursuant to Section 275(1A), and in accordance
with the conditions, specified in Section 275 of the SFA;
(2) where no consideration is given for the transfer; or
(3) by operation of law.
The securities have not been and will not be registered under
the Financial Instruments and Exchange Law of Japan (the
Securities and Exchange Law) and the underwriter has agreed that
it will not offer or sell any securities, directly or
indirectly, in Japan or to, or for the benefit of, any resident
of Japan (which term as used herein means any person resident in
Japan, including any corporation or other entity organized under
the laws of Japan), or to others for re-offering or resale,
directly or indirectly, in Japan or to a resident of Japan,
except pursuant to an exemption from the registration
requirements of, and otherwise in compliance with, the Financial
Instruments and Exchange Law and any other applicable laws,
regulations and ministerial guidelines of Japan.
The company estimates that its share of the total expenses of
the offering, excluding underwriting discounts and commissions,
will be approximately $750,000.
The company has agreed to indemnify the underwriter against
certain liabilities, including liabilities under the Securities
Act of 1933.
The underwriter and its affiliates have, from time to time,
performed, and may in the future perform, various financial
advisory and investment banking services for the company, for
which they received or will receive customary fees and expenses.
S-42
LEGAL
MATTERS
Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, New
York, will pass upon certain legal matters for us. Lionel Sawyer
& Collins Ltd., Las Vegas, Nevada, will pass upon the
validity of the preferred stock, common stock and warrants
offered by this prospectus for us and certain legal matters with
respect to Nevada corporate law. Latham & Watkins LLP, New
York, New York, will pass upon certain legal matters for the
Underwriter.
S-43
PROSPECTUS
Debt Securities
Preferred Stock
Common Stock
Depositary Shares
Warrants
Purchase Contracts
Units
This prospectus contains a general description of securities
that may be offered for sale from time to time. The specific
terms of the securities, including their offering prices, will
be contained in one or more supplements to this prospectus. You
should read this prospectus and any supplement carefully before
you invest.
The securities will be issued by Las Vegas Sands Corp. The
common stock of Las Vegas Sands Corp. is listed on the New York
Stock Exchange under the trading symbol LVS.
Investing in our securities involves risks that are
referenced under the caption Risk Factors on
page 5 of this prospectus.
These securities have not been approved or disapproved by the
Securities and Exchange Commission or any state securities
commission nor has the Securities and Exchange Commission or any
state securities commission passed upon the accuracy or adequacy
of this prospectus. Any representation to the contrary is a
criminal offense.
Neither the Nevada State Gaming Control Board, the Nevada Gaming
Commission nor any other gaming regulatory agency has passed
upon the accuracy or adequacy of this prospectus supplement or
the accompanying prospectus or the investment merits of the
securities offered hereby. Any representation to the contrary in
unlawful.
The date of this prospectus is November 6, 2008.
TABLE OF
CONTENTS
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ABOUT
THIS PROSPECTUS
To understand the terms of the securities offered by this
prospectus, you should carefully read this prospectus and any
applicable prospectus supplement. You should also read the
documents referenced under the heading Where You Can Find
More Information for information on Las Vegas Sands Corp.
and its financial statements. Certain capitalized terms used in
this prospectus are defined elsewhere in this prospectus.
This prospectus is part of a registration statement that Las
Vegas Sands Corp. has filed with the U.S. Securities and
Exchange Commission, or the SEC, using a shelf
registration procedure. Under this procedure, we may offer and
sell from time to time, any of the following securities, in one
or more series:
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debt securities,
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preferred stock,
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common stock,
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depositary shares,
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warrants,
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purchase contracts and
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units.
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As described under the heading Plan of Distribution,
certain third parties may also offer securities from time to
time. The securities may be sold for U.S. dollars,
foreign-denominated currency or currency units. Amounts payable
with respect to any securities may be payable in
U.S. dollars or foreign-denominated currency or currency
units as specified in the applicable prospectus supplement.
This prospectus provides you with a general description of the
securities that may be offered. Each time securities are
offered, we will provide you with a prospectus supplement that
will describe the specific amounts,
1
prices and terms of the securities being offered. The prospectus
supplement may also add, update or change information contained
or incorporated by reference in this prospectus.
The prospectus supplement may also contain information about any
material U.S. federal income tax considerations relating to
the securities covered by the prospectus supplement. Securities
may be sold to underwriters who will sell the securities to the
public on terms fixed at the time of sale. In addition, the
securities may be sold directly or through dealers or agents
designated from time to time, which agents may be affiliates of
ours. If we, directly or through agents, solicit offers to
purchase the securities, we reserve the sole right to accept
and, together with our agents, to reject, in whole or in part,
any offer.
The prospectus supplement will also contain, with respect to the
securities being sold, the names of any underwriters, dealers or
agents, together with the terms of the offering, the
compensation of any underwriters and the net proceeds to us.
Any underwriters, dealers or agents participating in the
offering may be deemed underwriters within the
meaning of the Securities Act of 1933, as amended, which we
refer to in this prospectus as the Securities Act.
As used in this prospectus, unless the context requires
otherwise, the terms we, us,
our, Las Vegas Sands or the
Company refer to Las Vegas Sands Corp., a Nevada
corporation.
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, as amended, which we refer to in this prospectus as
the Exchange Act. You may obtain such SEC filings
from the SECs website at
http://www.sec.gov.
You may also read and copy these materials at the SECs
public reference room at 100 F Street, N.E.,
Washington, D.C. 20549. You can obtain information about
the operation of the SECs public reference room by calling
the SEC at
1-800-SEC-0330.
You can also obtain information about Las Vegas Sands at the
offices of the New York Stock Exchange, 20 Broad Street,
New York, New York 10005.
As permitted by SEC rules, this prospectus does not contain all
of the information we have included in the registration
statement and the accompanying exhibits and schedules we file
with the SEC. You may refer to the registration statement,
exhibits and schedules for more information about us and the
securities. The registration statement, exhibits and schedules
are available through the SECs website or at its public
reference room.
INCORPORATION
BY REFERENCE
The SEC allows us to incorporate by reference
information we have filed with it, which means that we can
disclose important information to you by referring you to those
documents. The information we incorporate by reference is an
important part of this prospectus, and later information that we
file with the SEC will automatically update and supersede this
information. The following documents have been filed by us with
the SEC and are incorporated by reference into this prospectus:
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Our Annual Report on
Form 10-K
for the year ended December 31, 2007 (filed
February 29, 2008), including portions of our Proxy
Statement for the 2008 annual meeting of stockholders (filed
April 29, 2008) to the extent specifically
incorporated by reference therein;
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Our Quarterly Reports on
Form 10-Q
for the quarter ended March 31, 2008 (filed May 9,
2008) and the quarter ended June 30, 2008 (filed
August 11, 2008);
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Our Current Reports on
Form 8-K
filed on January 4, 2008, January 16, 2008,
February 15, 2008, March 6, 2008, March 31, 2008,
April 24, 2008, April 28, 2008, April 30, 2008
(only with respect to Item 5.02), July 30, 2008 (only
with respect to Item 5.02), October 1, 2008 (other
than with respect to Item 7.01), November 3, 2008 and
November 6, 2008 (other than any portion of such filings
that are furnished under applicable SEC rules rather than
filed); and
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The description of the common stock set forth in our
Registration Statement on
Form 8-A
filed pursuant to Section 12 of the Exchange Act on
December 8, 2004, and any amendment or report filed for the
purpose of updating any such description.
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2
All documents and reports that we file with the SEC (other than
any portion of such filings that are furnished under applicable
SEC rules rather than filed) under Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act from the date of this prospectus
until the termination of the offering under this prospectus
shall be deemed to be incorporated in this prospectus by
reference. The information contained on our website
(http://www.lasvegassands.com)
is not incorporated into this prospectus.
You may request a copy of these filings, other than an exhibit
to these filings unless we have specifically included or
incorporated that exhibit by reference into the filing, from the
SEC as described under Where You Can Find More
Information or, at no cost, by writing or telephoning Las
Vegas Sands at the following address:
Las Vegas Sands Corp.
3355 Las Vegas Boulevard South
Las Vegas, Nevada 89109
Attention: Investor Relations
Telephone:
(702) 414-1000
You should rely only on the information contained or
incorporated by reference in this prospectus, the prospectus
supplement, any free writing prospectus that we authorize and
any pricing supplement that we authorize. We have not authorized
any person, including any underwriter, salesperson or broker, to
provide information other than that provided in this prospectus,
the prospectus supplement, any free writing prospectus that we
authorize or any pricing supplement that we authorize. We have
not authorized anyone to provide you with different information.
We are not making an offer of the securities in any jurisdiction
where the offer is not permitted.
You should assume that the information in this prospectus, the
prospectus supplement, any free writing prospectus that we
authorize and any pricing supplement that we authorize is
accurate only as of the date on its cover page and that any
information we have incorporated by reference is accurate only
as of the date of such document incorporated by reference.
Any statement contained in a document incorporated or deemed to
be incorporated by reference into this prospectus will be deemed
to be modified or superseded for purposes of this prospectus to
the extent that a statement contained in this prospectus or any
other subsequently filed document that is deemed to be
incorporated by reference into this prospectus modifies or
supersedes the statement. Any statement so modified or
superseded will not be deemed, except as so modified or
superseded, to constitute a part of this prospectus.
STATEMENTS
REGARDING FORWARD-LOOKING INFORMATION
This prospectus and the documents incorporated by reference
contain forward-looking statements within the
meaning of the Private Securities Litigation Reform Act of 1995
and Section 27A of the Securities Act. These
forward-looking statements include the discussions of our
business strategies and expectations concerning future
operations, margins, profitability, liquidity and capital
resources. Words such as anticipates,
believes, estimates, seeks,
expects, plans, intends and
similar expressions, as they relate to our Company or its
management, are intended to identify forward-looking statements.
Although we believe that these forward-looking statements are
reasonable, we cannot assure you that any forward-looking
statements will prove to be correct. These forward-looking
statements involve known and unknown risks, uncertainties and
other factors, which may cause our actual results, performance
or achievements to be materially different from any future
results, performance or achievements expressed or implied by
these forward-looking statements.
These factors include, among others, those discussed under
Risk Factors or otherwise discussed in our most
recent annual report on
Form 10-K
and quarterly reports on
Form 10-Q
and in our other filings made from time to time with the SEC
after the date of the registration statement of which this
prospectus is a part. These factors also include the risks
associated with:
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general economic and business conditions which may impact levels
of disposable income, consumer spending and pricing of hotel
rooms;
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our ability to obtain sufficient funding for our current and
future developments, including our Cotai Strip developments;
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the uncertainty of tourist behavior related to spending and
vacationing at casino-resorts in Las Vegas, Macao, Singapore and
Pennsylvania;
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potential visa restrictions limiting the number of visits and
the length of stay for visitors from mainland China to our Macao
properties;
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our dependence upon properties in Las Vegas and Macao for all of
our cash flow;
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new developments, construction and ventures, including The
Venetian Macao and other Cotai Strip developments, Marina Bay
Sands, Sands Bethlehem and the Las Vegas condominiums;
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the passage of new legislation and receipt of governmental
approvals for our proposed developments in Nevada, Macao,
Pennsylvania, Singapore and other jurisdictions where we operate
or are planning to operate;
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our substantial leverage, debt service and debt covenant
compliance (including sensitivity to fluctuations in interest
rates and other capital markets trends);
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our insurance coverage, including the risk that we have not
obtained sufficient coverage against acts of terrorism or will
only be able to obtain additional coverage at significantly
increased rates;
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disruptions or reductions in travel due to the conflicts in Iraq
and Afghanistan and any future terrorist incidents;
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outbreaks of infectious diseases, such as severe acute
respiratory syndrome or avian flu, in our market areas;
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government regulation of the casino industry, including gaming
license regulation, the legalization of gaming in certain
domestic jurisdictions, including Native American reservations,
and regulation of gaming on the Internet;
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increased competition and additional construction in Las Vegas,
including recent and upcoming increases in hotel rooms, meeting
and convention space and retail space;
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fluctuations in the demand for all-suites rooms, occupancy rates
and average daily room rates in Las Vegas;
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the popularity of Las Vegas and Macao as convention and trade
show destinations;
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new taxes or changes to existing tax rates;
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our ability to meet certain development deadlines in Macao and
Singapore;
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our ability to maintain our gaming subconcession in Macao;
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the completion of infrastructure projects in Macao and Singapore;
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increased competition and other planned construction projects in
Macao and Singapore; and
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the outcome of any ongoing future litigation.
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For additional information about factors that could cause actual
results to differ materially from those described in the
forward-looking statements, please see the documents that we
have filed with the SEC, including our most recent annual report
on
Form 10-K,
quarterly reports on
Form 10-Q,
current reports on
Form 8-K
and proxy statements.
All future written and verbal forward-looking statements
attributable to us or any person acting on our behalf are
expressly qualified in their entirety by the cautionary
statements contained or referred to in this section. New risks
and uncertainties arise from time to time, and it is impossible
for us to predict these events or how they may affect us.
Readers are cautioned not to place undue reliance on these
forward-looking statements. We assume no obligation to update
any forward-looking statements after the date of this prospectus
as a result of new information, future events or developments,
except as required by federal securities laws.
4
THE
COMPANY
We own and operate The Venetian Resort-Hotel-Casino, The Palazzo
Resort-Hotel-Casino and the Sands Expo and Convention Center in
Las Vegas, as well as the Sands Macao and The Venetian Macao
Resort Hotel in the Peoples Republic of China Special
Administrative Region of Macao. We also own the Four Seasons
Hotel Macao, the hotel and luxury serviced apartment hotel
portions of which are managed by Four Seasons Hotel Inc.,
adjacent to The Venetian Macao Resort Hotel. We are currently
constructing two additional integrated resorts: Sands Casino
Resort Bethlehem in Bethlehem, Pennsylvania, and the Marina Bay
Sandstm
in Singapore. We are also creating the Cotai
Striptm,
a master-planned development of resort-casino properties in
Macao. We are exploring the possibility of developing and
operating integrated resorts in additional Asian and
U.S. jurisdictions, and in Europe.
For a description of our business, financial condition, results
of operations and other important information regarding our
Company, we refer you to our filings with the SEC incorporated
by reference in this prospectus. For instructions on how to find
copies of these documents, see Where You Can Find More
Information.
We are organized under the laws of Nevada. Our principal
executive office is located at 3355 Las Vegas Boulevard South,
Las Vegas, Nevada 89109, telephone
(702) 414-1000.
RISK
FACTORS
Investing in our securities involves risk. You should carefully
consider the specific risks discussed or incorporated by
reference in the applicable prospectus supplement, together with
all the other information contained in the prospectus supplement
or incorporated by reference in this prospectus and the
applicable prospectus supplement. You should also consider the
risks, uncertainties and assumptions discussed under the caption
Risk Factors included in our Annual Report on
Form 10-K
for the year ended December 31, 2007, as updated by the
risks, uncertainties and assumptions discussed under the caption
Risk Factors included in our Quarterly Report on
Form 10-Q
for the quarter ended June 30, 2008, both of which are
incorporated by reference in this prospectus. These risk factors
may be amended, supplemented or superseded from time to time by
other reports we file with the SEC in the future.
RATIO OF
EARNINGS TO FIXED CHARGES
The following table sets forth our consolidated ratio of
earnings to fixed charges for each of the periods indicated. For
the purpose of calculating the consolidated ratio of earnings to
fixed charges, earnings represents pre-tax income
plus amortization of capitalized interest and fixed charges, and
less interest capitalized. Fixed charges consists of
interest expense, whether expensed or capitalized, amortization
of debt financing costs, and one-third of lease expense, which
we believe is representative of the interest component of lease
expense. You should read these ratios in connection with our
consolidated financial statements, including the notes to those
statements, incorporated by reference in this prospectus.
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Six Months
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Ended
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June 30,
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Year Ended December 31,
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2008
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2007
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2007
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2006
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2005
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2004
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2003
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Ratio of earnings to fixed charges(a)
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(b
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1.2
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(b
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2.7
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x
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3.1
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4.2
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x
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1.5
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Currently, we have no shares of preferred stock outstanding and
have not paid any dividends on preferred stock in the periods
presented. Therefore, the ratio of earnings to combined fixed
charges and preferred stock dividends is not different from the
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Earnings were insufficient to cover fixed charges by
approximately $80.1 million and $80.7 million in the
six months ended June 30, 2008 and the year ended
December 31, 2007, respectively. |
5
USE OF
PROCEEDS
We will use the net proceeds we receive from the sale of the
securities offered by this prospectus for general corporate
purposes, unless we specify otherwise in the applicable
prospectus supplement. General corporate purposes may include
our construction and development projects in Las Vegas, Macao,
Singapore and Pennsylvania, additions to working capital,
capital expenditures, repayment of debt, the financing of
possible acquisitions and investments or stock repurchases.
DESCRIPTION
OF THE DEBT SECURITIES
General
The following description of the terms of our senior debt
securities and subordinated debt securities (together, the
debt securities) sets forth certain general
terms and provisions of the debt securities to which any
prospectus supplement may relate. Unless otherwise noted, the
general terms and provisions of our debt securities discussed
below apply to both our senior debt securities and our
subordinated debt securities. Our debt securities may be issued
from time to time in one or more series. The particular terms of
any series of debt securities and the extent to which the
general provisions may apply to a particular series of debt
securities will be described in the prospectus supplement
relating to that series.
The senior debt securities will be issued under an indenture
dated as of September 30, 2008, between us and
U.S. Bank National Association, as Senior Indenture Trustee
(the senior indenture). The subordinated debt
securities will be issued under an indenture between us and
U.S. Bank National Association, as Subordinated Indenture
Trustee (the subordinated indenture and,
together with the senior indenture, the
indentures). The Senior Indenture Trustee and
the Subordinated Indenture Trustee are both referred to,
individually, as the Trustee. The senior debt
securities will constitute our unsecured and unsubordinated
obligations and the subordinated debt securities will constitute
our unsecured and subordinated obligations. A detailed
description of the subordination provisions is provided below
under the caption Ranking and
Subordination Subordination. In general,
however, if we declare bankruptcy, holders of the senior debt
securities will be paid in full before the holders of
subordinated debt securities will receive anything.
The statements set forth below are brief summaries of certain
provisions contained in the indentures, which summaries do not
purport to be complete and are qualified in their entirety by
reference to the indentures, which are incorporated by reference
as exhibits or filed as exhibits to the registration statement
of which this prospectus forms a part. Terms used herein that
are otherwise not defined shall have the meanings given to them
in the indentures. Such defined terms shall be incorporated
herein by reference.
The indentures do not limit the amount of debt securities that
may be issued under the applicable indenture and debt securities
may be issued under the applicable indenture up to the aggregate
principal amount that may be authorized from time to time by us.
Any such limit applicable to a particular series will be
specified in the prospectus supplement relating to that series.
The prospectus supplement relating to any series of debt
securities in respect to which this prospectus is being
delivered will contain the following terms, among others, for
each such series of debt securities:
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the designation and issue date of the debt securities;
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the date or dates on which the principal of the debt securities
is payable;
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the rate or rates (or manner of calculation thereof), if any,
per annum at which the debt securities will bear interest, if
any, the date or dates from which interest will accrue and the
interest payment date or dates for the debt securities;
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any limit upon the aggregate principal amount of the debt
securities which may be authenticated and delivered under the
applicable indenture;
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the period or periods within which, the redemption price or
prices or the repayment price or prices, as the case may be, at
which, and the terms and conditions upon which, the debt
securities may be redeemed at the Companys option or the
option of the holder of such debt securities;
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the obligation, if any, of the Company to purchase the debt
securities pursuant to any sinking fund or analogous provisions
or at the option of a holder of such debt securities and the
period or periods within which, the price or prices at which and
the terms and conditions upon which such debt securities will be
purchased, in whole or in part, pursuant to such obligation;
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if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which the debt securities will be
issuable;
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provisions, if any, with regard to the conversion or exchange of
the debt securities, at the option of the holders of such debt
securities or the Company, as the case may be, for or into new
securities of a different series, the Companys common
stock or other securities;
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if other than U.S. dollars, the currency or currencies or
units based on or related to currencies in which the debt
securities will be denominated and in which payments of
principal of, and any premium and interest on, such debt
securities shall or may be payable;
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if the principal of (and premium, if any) or interest, if any,
on the debt securities are to be payable, at the election of the
Company or a holder of such debt securities, in a currency
(including a composite currency) other than that in which such
debt securities are stated to be payable, the period or periods
within which, and the terms and conditions upon which, such
election may be made;
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if the amount of payments of principal of (and premium, if any)
or interest, if any, on the debt securities may be determined
with reference to an index based on a currency (including a
composite currency) other than that in which such debt
securities are stated to be payable, the manner in which such
amounts shall be determined;
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provisions, if any, related to the exchange of the debt
securities, at the option of the holders of such debt
securities, for other securities of the same series of the same
aggregate principal amount or of a different authorized series
or different authorized denomination or denominations, or both;
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the portion of the principal amount of the debt securities, if
other than the principal amount thereof, which shall be payable
upon declaration of acceleration of the maturity thereof as more
fully described under the section Events of
Default, Notice and Waiver below;
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whether the debt securities will be issued in the form of global
securities and, if so, the identity of the depositary with
respect to such global securities;
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if the debt securities will be guaranteed, the terms and
conditions of such guarantees and provisions for the accession
of the guarantors to certain obligations under the applicable
indenture;
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with respect to subordinated debt securities only, the amendment
or modification of the subordination provisions in the
subordinated indenture with respect to the debt
securities; and
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any other specific terms.
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We may issue debt securities of any series at various times and
we may reopen any series for further issuances from time to time
without notice to existing holders of securities of that series.
Some of the debt securities may be issued as original issue
discount debt securities. Original issue discount debt
securities bear no interest or bear interest at below-market
rates. These are sold at a discount below their stated principal
amount. If we issue these securities, the prospectus supplement
relating to such series of debt securities will describe any
special tax, accounting or other information which we think is
important. We encourage you to consult with your own competent
tax and financial advisors on these important matters.
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Unless we specify otherwise in the applicable prospectus
supplement relating to such series of debt securities, the
covenants contained in the indentures will not provide special
protection to holders of debt securities if we enter into a
highly leveraged transaction, recapitalization or restructuring.
Unless otherwise set forth in the prospectus supplement relating
to such series of debt securities, interest on outstanding debt
securities will be paid to holders of record on the date that is
15 days prior to the date such interest is to be paid or,
if not a business day, the next preceding business day. Unless
otherwise specified in the prospectus supplement, debt
securities will be issued in fully registered form only. Unless
otherwise specified in the prospectus supplement, the principal
amount of the debt securities will be payable at the corporate
trust office of the Trustee in New York, New York. The debt
securities may be presented for transfer or exchange at such
office unless otherwise specified in the prospectus supplement,
subject to the limitations provided in the applicable indenture,
without any service charge, but we may require payment of a sum
sufficient to cover any tax or other governmental charges
payable in connection therewith.
Guarantees
Our payment obligations under any series of the debt securities
may be guaranteed by one or more of our subsidiaries or other
persons. If a series of debt securities is so guaranteed by any
of our subsidiaries, such subsidiaries will execute a
supplemental indenture or notation of guarantee as further
evidence of their guarantee. The applicable prospectus
supplement will describe the terms of any guarantee by our
subsidiaries.
The obligations of each guarantor under its guarantee may be
limited to the maximum amount that will not result in such
guarantee obligations constituting a fraudulent conveyance or
fraudulent transfer under federal or state law, after giving
effect to all other contingent and fixed liabilities of that
subsidiary and any collections from or payments made by or on
behalf of any other guarantor in respect to its obligations
under its guarantee.
Ranking
and Subordination
General
The debt securities and the guarantees will effectively rank
junior in right of payment to any of our or the guarantors
current and future secured obligations to the extent of the
value of the assets securing such obligations. The debt
securities and the guarantees will be effectively subordinated
to all existing and future liabilities, including indebtedness
and trade payables, of our non-guarantor subsidiaries. Unless
otherwise set forth in the prospectus supplement relating to a
specific series of debt securities, the indentures do not limit
the amount of unsecured indebtedness or other liabilities that
can be incurred by our non-guarantor subsidiaries.
Furthermore, we are a holding company with no material business
operations. Our ability to service our respective indebtedness
and other obligations is dependent primarily upon the earnings
and cash flows of our subsidiaries and the distribution or other
payment to us of such earnings or cash flows. In addition,
certain indebtedness of our subsidiaries contains, and future
agreements relating to any indebtedness of our subsidiaries may
contain, significant restrictions on the ability of our
subsidiaries to pay dividends or otherwise make distributions to
us.
Ranking
of Debt Securities
The senior debt securities described in this prospectus will be
unsecured, senior obligations of Las Vegas Sands Corp. and will
rank equally with our other unsecured and unsubordinated
obligations. Any guarantees of the senior debt securities will
be unsecured and senior obligations of each of the guarantors,
and will rank equally with all other unsecured and
unsubordinated obligations of such guarantors. The subordinated
debt securities will be unsecured, subordinated obligations and
the any guarantees of the subordinated debt securities will be
unsecured and subordinated obligations of each of the guarantors.
Subordination
If issued, the indebtedness evidenced by the subordinated debt
securities will be subordinate to the prior payment in full of
all our Senior Indebtedness (as defined below). During the
continuance beyond any applicable
8
grace period of any default in the payment of principal,
premium, interest or any other payment due on any of our Senior
Indebtedness, we may not make any payment of principal of, or
premium, if any, or interest on the subordinated debt
securities. In addition, upon any payment or distribution of our
assets upon any dissolution, winding up, liquidation or
reorganization, the payment of the principal of, or premium, if
any, and interest on the subordinated debt securities will be
subordinated to the extent provided in the subordinated
indenture in right of payment to the prior payment in full of
all our Senior Indebtedness. Because of this subordination, if
we dissolve or otherwise liquidate, holders of our subordinated
debt securities may receive less, ratably, than holders of our
Senior Indebtedness. The subordination provisions do not prevent
the occurrence of an event of default under the subordinated
indenture.
The subordination provisions also apply in the same way to each
guarantor with respect to the Senior Indebtedness of such
guarantor.
The term Senior Indebtedness of a person means with
respect to such person the principal of, premium, if any,
interest on, and any other payment due pursuant to any of the
following, whether outstanding on the date of the subordinated
indenture or incurred by that person in the future:
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all of the indebtedness of that person for borrowed money,
including any indebtedness secured by a mortgage or other lien
which is (1) given to secure all or part of the purchase
price of property subject to the mortgage or lien, whether given
to the vendor of that property or to another lender, or
(2) existing on property at the time that person acquires
it;
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all of the indebtedness of that person evidenced by notes,
debentures, bonds or other similar instruments sold by that
person for money;
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all of the lease obligations which are capitalized on the books
of that person in accordance with generally accepted accounting
principles;
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all indebtedness of others of the kinds described in the first
two bullet points above and all lease obligations of others of
the kind described in the third bullet point above, in each
case, that the person, in any manner, assumes or guarantees or
that the person in effect guarantees through an agreement to
purchase, whether that agreement is contingent or
otherwise; and
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all renewals, extensions or refundings of indebtedness of the
kinds described in the first, second or fourth bullet point
above and all renewals or extensions of leases of the kinds
described in the third or fourth bullet point above;
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unless, in the case of any particular indebtedness,
lease, renewal, extension or refunding, the instrument or lease
creating or evidencing it or the assumption or guarantee
relating to it expressly provides that such indebtedness, lease,
renewal, extension or refunding is not superior in right of
payment to the subordinated debt securities. Our senior debt
securities, and any unsubordinated guarantee obligations of ours
or any guarantor to which we and the guarantors are a party,
including the guarantors guarantees of our debt securities
and other indebtedness for borrowed money, constitute Senior
Indebtedness for purposes of the subordinated indenture.
Pursuant to the subordinated indenture, the subordinated
indenture may not be amended, at any time, to alter the
subordination provisions of any outstanding subordinated debt
securities without the consent of the requisite holders of each
outstanding series or class of Senior Indebtedness (as
determined in accordance with the instrument governing such
Senior Indebtedness) that would be adversely affected thereby.
Consolidation,
Merger, Conveyance or Transfer on Certain Terms
Except as described in the applicable prospectus supplement
relating to such debt securities, our Company will not
consolidate with or merge into any other entity or convey or
transfer its properties and assets substantially as an entirety
to any entity, unless:
(1) the entity formed by such consolidation or into which
our Company is merged or the entity that acquires by conveyance
or transfer the properties and assets of our Company
substantially as an entirety shall be organized and existing
under the laws of the United States of America or any State or
the District of
9
Columbia, and will expressly assume, by supplemental indenture,
executed and delivered to the Trustee, in form reasonably
satisfactory to the Trustee, the due and punctual payment of the
principal of (and premium, if any) and interest on all the debt
securities and the performance of every covenant of the
applicable indenture (as supplemented from time to time) on the
part of our Company to be performed or observed;
(2) immediately after giving effect to such transaction, no
Event of Default (as defined below), and no event which, after
notice or lapse of time, or both, would become an Event of
Default, shall have happened and be continuing;
(3) such transaction will not result in the loss or
suspension or material impairment of any material Gaming License
of the Company or its Subsidiaries;
(4) such transaction would not require any holder of debt
securities (other than any person acquiring the Company or its
assets and any affiliate thereof) to obtain a Gaming License or
be qualified under the law of any applicable gaming
jurisdiction; provided that such holder would not have
been required to obtain a Gaming License or be qualified under
the laws of any applicable gaming jurisdiction in the absence of
such transaction; and
(5) we have delivered to the Trustee an officers
certificate and an opinion of counsel each stating that such
consolidation, merger, conveyance or transfer and such
supplemental indenture comply with this covenant and that all
conditions precedent provided for relating to such transaction
have been complied with.
Upon any consolidation or merger, or any conveyance or transfer
of the properties and assets of our Company substantially as an
entirety as set forth above, the successor person formed by such
consolidation or into which our Company is merged or to which
such conveyance or transfer is made shall succeed to, and be
substituted for, and may exercise every right and power of our
Company under the applicable indenture with the same effect as
if such successor had been named as our Company in the
applicable indenture. In the event of any such conveyance or
transfer, our Company as the predecessor shall be discharged
from all obligations and covenants under the applicable
indenture and the debt securities issued under such indenture
and may be dissolved, wound up or liquidated at any time
thereafter.
Certain
Covenants
Any covenants of our Company pertaining to a series of debt
securities will be set forth in a prospectus supplement relating
to such series of debt securities.
Except as described in the prospectus and any applicable
prospectus supplement relating to such series of debt
securities, the indentures and the debt securities do not
contain any covenants or other provisions designed to afford
holders of debt securities protection in the event of a
recapitalization or highly leveraged transaction involving our
Company.
Certain
Definitions
The following are certain of the terms defined in the indentures:
GAAP means generally accepted accounting
principles as such principles are in effect in the
United States as of the date of the applicable indenture.
Gaming Authority means any agency, authority,
board, bureau, commission, department, office or instrumentality
of any nature whatsoever of the United States or foreign
government, any state, province or any city or other political
subdivision, whether now or hereafter existing, or any officer
or official thereof, including without limitation, the Nevada
Gaming Commission, the Nevada State Gaming Control Board, the
Clark County Liquor and Gaming Licensing Board, the Macau Gaming
Authorities, the Pennsylvania Gaming Control Board, the
Singapore Casino Regulatory Authority and any other agency with
authority to regulate any gaming operation (or proposed gaming
operation) owned, managed or operated by the Company or any of
its subsidiaries.
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Gaming Laws means the gaming laws of a
jurisdiction or jurisdictions to which the Company or a
Subsidiary of the Company is, or may at any time after the date
of the applicable indenture be, subject, including all
applicable provisions of all: (1) constitutions, treatises,
statutes or laws governing gaming operations (including, without
limitation, card club casinos and pari-mutuel race tracks) and
rules, regulations and ordinances of any Gaming Authority;
(2) any governmental approval relating to any gaming
business (including pari-mutuel betting) or enterprise; and
(3) orders, decisions, judgments, awards and decrees of any
Gaming Authority.
Gaming Licenses means every license,
franchise or other authorization required to own, lease, operate
or otherwise conduct activities of the Company or any of its
subsidiaries and the regulations promulgated pursuant thereto,
and other applicable federal, state, foreign or local laws.
Significant Subsidiary means any Subsidiary
which would be a significant subsidiary as defined
in Article 1,
Rule 1-02
of
Regulation S-X,
promulgated pursuant to the Securities Act of 1933, as in effect
on the date of the applicable indenture.
Subsidiary means, with respect to any person,
any corporation more than 50% of the voting stock of which is
owned directly or indirectly by such person, and any
partnership, association, joint venture or other entity in which
such person owns more than 50% of the equity interests or has
the power to elect a majority of the board of directors or other
governing body.
Optional
Redemption
Unless we specify otherwise in the applicable prospectus
supplement, we may redeem any of the debt securities as a whole
at any time or in part from time to time, at our option, on at
least 15 days, but not more than 45 days, prior notice
mailed to the registered address of each holder of the debt
securities to be redeemed, at respective redemption prices equal
to the greater of:
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100% of the principal amount of the debt securities to be
redeemed, and
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the sum of the present values of the Remaining Scheduled
Payments, as defined below, discounted to the redemption date,
on a semi-annual basis, assuming a 360 day year consisting
of twelve 30 day months, at the Treasury Rate, as defined
below, plus the number, if any, of basis points specified in the
applicable prospectus supplement;
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plus, in each case, accrued interest to the date of redemption
that has not been paid (such redemption price, the
Redemption Price).
Comparable Treasury Issue means, with respect
to the debt securities, the United States Treasury security
selected by an Independent Investment Banker as having a
maturity comparable to the remaining term (Remaining
Life) of the debt securities being 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 Life of
such debt securities.
Comparable Treasury Price means, with respect
to any redemption date for the debt securities: (1) the
average of two Reference Treasury Dealer Quotations for that
redemption date, after excluding the highest and lowest of four
such Reference Treasury Dealer Quotations; or (2) if the
Trustee obtains fewer than four Reference Treasury Dealer
Quotations, the average of all quotations obtained by the
Trustee.
Independent Investment Banker means one of
the Reference Treasury Dealers, to be appointed by us.
Reference Treasury Dealer means four primary
U.S. Government securities dealers to be selected by us.
Reference Treasury Dealer Quotations means,
with respect to each Reference Treasury Dealer and any
redemption date, the average, as determined by the Trustee, 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 Trustee by such Reference Treasury
Dealer at 3:00 p.m., New York City time, on the third
business day preceding such redemption date.
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Remaining Scheduled Payments means, with
respect to each debt security to be redeemed, the remaining
scheduled payments of the principal thereof and interest thereon
that would be due after the related redemption date but for such
redemption; provided, however, that, if such redemption
date is not an interest payment date with respect to such debt
security, the amount of the next succeeding scheduled interest
payment thereon will be deemed to be reduced by the amount of
interest accrued thereon to such redemption date.
Treasury Rate means, with respect to any
redemption date for the debt securities: (1) the yield,
under the heading which represents the average for the
immediately preceding week, appearing in the most recently
published statistical release designated H.15(519)
or any successor publication which is published weekly by the
Board of Governors of the Federal Reserve System and which
establishes yields on actively traded United States Treasury
debt securities adjusted to constant maturity under the caption
Treasury Constant Maturities, for the maturity
corresponding to the Comparable Treasury Issue; provided
that if no maturity is within three months before or after
the maturity date for the debt securities, yields for the two
published maturities most closely corresponding to the
Comparable Treasury Issue will be determined and the Treasury
Rate will be interpolated or extrapolated from those yields on a
straight line basis, rounding to the nearest month; or
(2) if that release, or any successor release, is not
published during the week preceding the calculation date or does
not contain such yields, the rate per annum equal to the
semiannual 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 that
redemption date. The Treasury Rate will be calculated on the
third business day preceding the redemption date.
On and after the redemption date, interest will cease to accrue
on the debt securities or any portion thereof called for
redemption, unless we default in the payment of the
Redemption Price, and accrued interest. On or before the
redemption date, we shall deposit with a paying agent, or the
applicable Trustee, money sufficient to pay the
Redemption Price of and accrued interest on the debt
securities to be redeemed on such date. If we elect to redeem
less than all of the debt securities of a series, then the
Trustee will select the particular debt securities of such
series to be redeemed in a manner it deems appropriate and fair.
Mandatory
Disposition Pursuant to Gaming Laws
Gaming Authorities in several jurisdictions extensively regulate
our casino entertainment operations. The Gaming Authority of any
jurisdiction in which we or any of our subsidiaries conduct or
propose to conduct gaming may require that a holder of the debt
securities or the beneficial owner of the debt securities of a
holder be licensed, qualified or found suitable under applicable
Gaming Laws. Under each indenture, each person that holds or
acquires beneficial ownership of any of the debt securities
shall be deemed to have agreed, by accepting such debt
securities, that if any such Gaming Authority requires such
person to be licensed, qualified or found suitable under
applicable Gaming Laws, such holder or beneficial owner, as the
case may be, shall apply for a license, qualification or a
finding of suitability within the required time period.
Except as described in the applicable prospectus supplement
relating to such series of debt securities, if a person required
to apply or become licensed or qualified or be found suitable
fails to do so, we will have the right, at our election,
(1) to require such person to dispose of its debt
securities or beneficial interest therein within 30 days of
receipt of notice of such finding by the applicable Gaming
Authority or such earlier date as may be requested or prescribed
by such Gaming Authority or (2) to redeem such debt
securities at a redemption price equal to the lesser of:
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100% of the principal amount thereof;
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the price at which such person acquired the debt
securities; or
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the fair market value of the debt securities as determined in
good faith by the board of directors of the Company, together
with, in each case, accrued and unpaid interest to the earlier
of the date of redemption or such earlier date as may be
required by the Gaming Authority or the date of the finding of
unsuitability by such Gaming Authority, which may be less than
30 days following the notice of redemption, if so ordered
by such Gaming Authority,
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or such other price as may be ordered by the Gaming Authority.
Immediately upon a determination that a holder or beneficial
owner will not be licensed, qualified or found suitable, the
holder or beneficial owner will have no further rights
(a) to exercise any right conferred by the debt securities,
directly or indirectly, through any trustee, nominee or any
other person or (b) to receive any interest or other
distribution or payment with respect to the debt securities
except the redemption price of the debt securities described in
this paragraph; provided, however, such holder or
beneficial owner may, to the extent permitted by such Gaming
Authority, transfer the debt securities to any unaffiliated
third party, who shall then be entitled to exercise all rights
of a holder or beneficial owner under the debt securities.
We will notify the Trustee in writing of any such redemption as
soon as practicable. Under each indenture, we will not be
required to pay or reimburse any holder of the debt securities
or beneficial owner who is required to apply for such license,
qualification or finding of suitability for the costs of the
licensure or investigation for such qualification or finding of
suitability.
Defeasance
Except as otherwise set forth in the prospectus supplement
relating to the debt securities, each indenture provides that
we, at our option,
(a) will be discharged from any and all obligations in
respect of any series of debt securities (except in each case
for certain obligations to register the transfer or exchange of
debt securities, replace stolen, lost or mutilated debt
securities, maintain paying agencies and hold monies for payment
in trust), or
(b) need not comply with any restrictive covenants
described in a prospectus supplement relating to such series of
debt securities, the guarantors will be released from the
guarantees and certain Events of Default (other than those
arising out of the failure to pay interest or principal on the
debt securities of a particular series and certain events of
bankruptcy, insolvency and reorganization) will no longer
constitute Events of Default with respect to such series of debt
securities,
in each case, if we deposit with the Trustee, in trust, money or
the equivalent in securities of the government which issued the
currency in which the debt securities are denominated or
government agencies backed by the full faith and credit of such
government, or a combination thereof, which through the payment
of interest thereon and principal thereof in accordance with
their terms will provide money in an amount sufficient to pay
all the principal (including any mandatory sinking fund
payments) of, and interest on, such series on the dates such
payments are due in accordance with the terms of such series.
To exercise any such option, we are required, among other
things, to deliver to the Trustee an opinion of counsel to the
effect that the deposit and related defeasance would not cause
the holders of such series to recognize income, gain or loss for
federal income tax purposes and, in the case of a discharge
pursuant to clause (a) above, accompanied by a ruling to
such effect received from or published by the U.S. Internal
Revenue Service.
In addition, we are required to deliver to the Trustee an
officers certificate stating that such deposit was not
made by us with the intent of preferring the holders over other
creditors of ours or with the intent of defeating, hindering,
delaying or defrauding creditors of ours or others.
Events of
Default, Notice and Waiver
Except as otherwise set forth in the prospectus supplement
relating to such series of debt securities, each indenture
provides that, if an Event of Default specified therein with
respect to any series of debt securities issued thereunder shall
have happened and be continuing, either the Trustee thereunder
or the holders of
331/3%
in aggregate principal amount of the outstanding debt securities
of such series (or
331/3%
in aggregate principal amount of all outstanding debt securities
under such indenture, in the case of certain Events of Default
affecting all series of debt securities issued under such
indenture) may declare the principal of all the debt securities
of such series to be due and payable.
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Except as otherwise set forth in the prospectus supplement
relating to such series of debt securities, an Event of
Default in respect of any series will be defined in
the indentures as being any one of the following events:
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default for 30 days in payment of any interest installment
with respect to such series;
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default in payment of principal of, or premium, if any, on, or
any sinking or purchase fund or analogous obligation with
respect to, debt securities of such series when due at their
stated maturity, by declaration or acceleration, when called for
redemption or otherwise;
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default for 90 days after written notice to us by the
Trustee thereunder or by holders of
331/3%
in aggregate principal amount of the outstanding debt securities
of such series in the performance, or breach, of any covenant or
warranty pertaining to debt securities of such series;
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certain events of bankruptcy, insolvency and reorganization with
respect to us or any Significant Subsidiary of ours which is
organized under the laws of the United States or any political
sub-division thereof or the entry of an order ordering the
winding up or liquidation of our affairs; and
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revocation, termination, suspension or other cessation of
effectiveness of any Nevada or Macau Gaming License, which
results in the cessation or suspension of gaming operations for
a period of more than 90 consecutive days.
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Each indenture provides that the Trustee thereunder will, within
90 days after the occurrence of a default with respect to
the debt securities of any series issued under such indenture,
give to the holders of the debt securities of such series notice
of all uncured and unwaived defaults known to it; provided,
however, that, except in the case of default in the payment
of principal of, premium, if any, or interest, if any, on any of
the debt securities of such series, the Trustee will be
protected in withholding such notice if it in good faith
determines that the withholding of such notice is in the
interests of the holders of the debt securities of such series.
The term default for the purpose of this provision
means any event which is, or after notice or lapse of time or
both would become, an Event of Default with respect to debt
securities of such series.
Each indenture contains provisions entitling the Trustee under
such indenture, subject to the duty of the Trustee during an
Event of Default to act with the required standard of care, to
be indemnified to its reasonable satisfaction by the holders of
the debt securities before proceeding to exercise any right or
power under the applicable indenture at the request of holders
of such debt securities.
Each indenture provides that the holders of a majority in
aggregate principal amount of the outstanding debt securities of
any series issued under such indenture may direct the time,
method and place of conducting proceedings for remedies
available to the Trustee or exercising any trust or power
conferred on the Trustee in respect of such series, subject to
certain conditions.
Except as otherwise set forth in the prospectus supplement
relating to the debt securities, in certain cases, the holders
of a majority in principal amount of the outstanding debt
securities of any series may waive, on behalf of the holders of
all debt securities of such series, any past default or Event of
Default with respect to the debt securities of such series
except, among other things, a default not theretofore cured in
payment of the principal of, or premium, if any, or interest, if
any, on any of the senior debt securities of such series or
payment of any sinking or purchase fund or analogous obligations
with respect to such senior debt securities.
Each indenture includes a covenant that we will file annually
with the Trustee a certificate of no default or specifying any
default that exists.
Modification
of the Indentures
Except as set forth in the prospectus supplement relating to the
debt securities, we and the Trustee may, without the consent of
the holders of the debt securities issued under the indenture
governing such debt securities, enter into indentures
supplemental to the applicable indenture for, among others, one
or more of the following purposes:
(1) to evidence the succession of another person to us or
to a guarantor, if any, and the assumption by such successor of
our Companys or the guarantors obligations under the
applicable indenture and the debt securities of any series;
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(2) to add to the covenants of our Company or any
guarantor, if any, or to surrender any rights or powers of our
Company or any guarantor for the benefit of the holders of debt
securities of any or all series issued under such indenture;
(3) to cure any ambiguity, to correct or supplement any
provision in the applicable indenture which may be inconsistent
with any other provision therein, or to make any other
provisions with respect to matters or questions arising under
such indenture;
(4) to add to the applicable indenture any provisions that
may be expressly permitted by the Trust Indenture Act of
1939, as amended (the TIA), excluding the
provisions referred to in Section 316(a)(2) of the TIA as in
effect at the date as of which the applicable indenture was
executed or any corresponding provision in any similar federal
statute hereafter enacted;
(5) to establish the form or terms of any series of debt
securities to be issued under the applicable indenture, to
provide for the issuance of any series of debt securities
and/or to
add to the rights of the holders of debt securities;
(6) to evidence and provide for the acceptance of any
successor Trustee with respect to one or more series of debt
securities or to add or change any of the provisions of the
applicable indenture as shall be necessary to facilitate the
administration of the trusts thereunder by one or more trustees
in accordance with the applicable indenture;
(7) to provide any additional Events of Default;
(8) to provide for uncertificated securities in addition to
or in place of certificated securities; provided that the
uncertificated securities are issued in registered form for
certain federal tax purposes;
(9) to provide for the terms and conditions of converting
those debt securities that are convertible into common stock or
another such similar security;
(10) to secure any series of debt securities;
(11) to add guarantees in respect of any series or all of
the debt securities;
(12) to make any change necessary to comply with any
requirement of the SEC in connection with the qualification of
the applicable indenture or any supplemental indenture under the
TIA; and
(13) to make any other change that does not adversely
affect the rights of the holders of the debt securities.
No supplemental indenture for the purpose identified in clauses
(2), (3) or (5) above may be entered into if to do so
would adversely affect the rights of the holders of debt
securities of any series issued under the same indenture in any
material respect.
Except as set forth in the prospectus supplement relating to
such series of debt securities, each indenture contains
provisions permitting us and the Trustee under such indenture,
with the consent of the holders of a majority in principal
amount of the outstanding debt securities of all series issued
under such indenture to be affected voting as a single class, to
execute supplemental indentures for the purpose of adding any
provisions to or changing or eliminating any of the provisions
of the applicable indenture or modifying the rights of the
holders of the debt securities of such series to be affected,
except that no such supplemental indenture may, without the
consent of the holders of affected debt securities, among other
things:
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change the maturity of the principal of, or the maturity of any
premium on, or any installment of interest on, any such debt
security, or reduce the principal amount or the interest or any
premium of any such debt securities, or change the method of
computing the amount of principal or interest on any such debt
securities on any date or change any place of payment where, or
the currency in which, any debt securities or any premium or
interest thereon is payable, or impair the right to institute
suit for the enforcement of any such payment on or after the
maturity of principal or premium, as the case may be;
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reduce the percentage in principal amount of any such debt
securities the consent of whose holders is required for any
supplemental indenture, waiver of compliance with certain
provisions of the applicable indenture or certain defaults under
the applicable indenture;
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modify any of the provisions of the applicable indenture related
to (i) the requirement that the holders of debt securities
issued under such indenture consent to certain amendments of the
applicable indenture, (ii) the waiver of past defaults and
(iii) the waiver of certain covenants, except to increase
the percentage of holders required to make such amendments or
grant such waivers; or
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impair or adversely affect the right of any holder to institute
suit for the enforcement of any payment on, or with respect to,
such senior debt securities on or after the maturity of such
debt securities.
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In addition, the subordinated indenture will provide that we may
not make any change in the terms of the subordination of the
subordinated debt securities of any series in a manner adverse
in any material respect to the holders of any series of
subordinated debt securities without the consent of each holder
of subordinated debt securities that would be adversely affected.
The
Trustee
U.S. Bank National Association is the Trustee under each
indenture. The Trustee and its affiliates may also provide
banking, trustee and other services for, and transact other
banking business with, us in the normal course of business.
U.S. Bank National Association is also the trustee under
the indenture governing our 6.375% senior notes due 2015.
Governing
Law
The indentures will be governed by, and construed in accordance
with, the laws of the State of New York.
Global
Securities
We may issue debt securities through global securities. A global
security is a security, typically held by a depositary, that
represents the beneficial interests of a number of purchasers of
the security. If we do issue global securities, the following
procedures will apply.
We will deposit global securities with the depositary identified
in the prospectus supplement. After we issue a global security,
the depositary will credit on its book-entry registration and
transfer system the respective principal amounts of the debt
securities represented by the global security to the accounts of
persons who have accounts with the depositary. These account
holders are known as participants. The underwriters
or agents participating in the distribution of the debt
securities will designate the accounts to be credited. Only a
participant or a person who holds an interest through a
participant may be the beneficial owner of a global security.
Ownership of beneficial interests in the global security will be
shown on, and the transfer of that ownership will be effected
only through, records maintained by the depositary and its
participants.
We and the Trustee will treat the depositary or its nominee as
the sole owner or holder of the debt securities represented by a
global security. Except as set forth below, owners of beneficial
interests in a global security will not be entitled to have the
debt securities represented by the global security registered in
their names. They also will not receive or be entitled to
receive physical delivery of the debt securities in definitive
form and will not be considered the owners or holders of the
debt securities except that owners of beneficial interests in
the debt securities will be subject to all of the provisions of
the section entitled Mandatory Disposition Pursuant to
Gaming Laws.
Principal, any premium and any interest payments on debt
securities represented by a global security registered in the
name of a depositary or its nominee will be made to the
depositary or its nominee as the registered owner of the global
security. None of us, the Trustee or any paying agent will have
any responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership
interests in the global security or maintaining, supervising or
reviewing any records relating to the beneficial ownership
interests.
We expect that the depositary, upon receipt of any payments,
will immediately credit participants accounts with
payments in amounts proportionate to their respective beneficial
interests in the principal amount of the global security as
shown on the depositarys records. We also expect that
payments by participants to owners of beneficial
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interests in the global security will be governed by standing
instructions and customary practices, as is the case with the
securities held for the accounts of customers registered in
street names, and will be the responsibility of the
participants.
If the depositary is at any time unwilling or unable to continue
as depositary and a successor depositary is not appointed by us
within 90 days, we will issue registered securities in
exchange for the global security. In addition, we may at any
time in our sole discretion determine not to have any of the
debt securities of a series represented by global securities. In
that event, we will issue debt securities of that series in
definitive form in exchange for the global securities.
DESCRIPTION
OF CAPITAL STOCK
The following description of the terms of our common stock and
preferred stock sets forth certain general terms and provisions
of our common stock and preferred stock, par value $0.001 per
share, to which any prospectus supplement may relate. This
section also summarizes relevant provisions of Nevada law. The
following summary of the terms of our common stock and preferred
stock does not purport to be complete and is subject to, and is
qualified in its entirety by reference to, the applicable
provisions of Nevada law and our amended and restated articles
of incorporation and our amended and restated by-laws, copies of
which are exhibits to the registration statement of which this
prospectus forms a part.
Capital
Stock
Our authorized capital stock currently consists of
1,000,000,000 shares of common stock and
50,000,000 shares of preferred stock. As of
October 28, 2008, we had 355,476,161 outstanding shares of
common stock, including vested and unvested shares of restricted
stock and excluding the following shares of common stock:
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10,536,831 shares of common stock issuable upon the
exercise of stock options outstanding as of October 28,
2008, with a weighted-average exercise price of $67.05 per
share; and
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14,471,899 shares of common stock reserved for future
awards under our 2004 equity award plan.
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As of October 28, 2008, we had no shares of preferred stock
outstanding. As of October 28, 2008, there were
approximately 303 holders of record of our common stock.
Common
Stock
The holders of our common stock are entitled to one vote per
share on all matters submitted to a vote of stockholders,
including the election of directors. Holders of the common stock
do not have any preemptive rights or cumulative voting rights,
which means that the holders of a majority of the outstanding
common stock voting for the election of directors can elect all
directors then being elected. The holders of our common stock
are entitled to receive dividends when, as, and if declared by
our board of directors out of legally available funds. Upon our
liquidation or dissolution, the holders of common stock will be
entitled to share ratably in those of our assets that are
legally available for distribution to stockholders after payment
of liabilities and subject to the prior rights of any holders of
preferred stock then outstanding. All of the outstanding shares
of common stock are fully paid and nonassessable. The rights,
preferences and privileges of holders of common stock are
subject to the rights of the holders of shares of any series of
preferred stock that may be issued in the future. Nevada gaming
laws and regulations subject holders of our common stock to
certain suitability requirements. See Business
Regulation and Licensing State of Nevada in
our Annual Report on
Form 10-K
for the year ended December 31, 2007, which is incorporated
by reference herein.
Preferred
Stock
We are authorized to issue up to 50,000,000 shares of
preferred stock. Our board of directors is authorized, subject
to limitations prescribed by Nevada law and our articles of
incorporation, to determine the terms and conditions of the
preferred stock, including whether the shares of preferred stock
will be issued in one or more series, the number of shares to be
included in each series and the powers, designations,
preferences and rights of the
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shares. Our board of directors also is authorized to designate
any qualifications, limitations or restrictions on the shares
without any further vote or action by the stockholders. The
issuance of preferred stock may have the effect of delaying,
deferring or preventing a change in control of our company and
may adversely affect the voting and other rights of the holders
of our common stock, which could have an adverse impact on the
market price of our common stock.
Certain
Articles of Incorporation, By-Laws and Statutory
Provisions
The provisions of our amended and restated articles of
incorporation and amended and restated by-laws and of the Nevada
Business Corporation Act summarized below may have an
anti-takeover effect and may delay, defer or prevent a tender
offer or takeover attempt that you might consider in your best
interest, including an attempt that might result in your receipt
of a premium over the market price for your shares.
Limitation
of Liability of Officers and Directors
Nevada law currently provides that our directors will not be
personally liable to our Company or our stockholders for
monetary damages for any act or omission as a director other
than in the following circumstances:
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the director breaches his fiduciary duty to our Company or our
stockholders and this breach involves intentional misconduct,
fraud or a knowing violation of law; or
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our Company makes an unlawful payment of a dividend or unlawful
stock purchases, redemptions or other distributions.
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As a result, neither we nor our stockholders have the right,
through stockholders derivative suits on our behalf, to
recover monetary damages against a director for breach of
fiduciary duty as a director, including breaches resulting from
grossly negligent behavior, except in the situations described
above. Nevada law allows the articles of incorporation of a
corporation to provide for greater liability of the
corporations directors. Our amended and restated articles
of incorporation do not provide for such expanded liability.
Special
Meetings of Stockholders
Our amended and restated articles of incorporation and amended
and restated by-laws provide that special meetings of
stockholders may be called only by the chairman or by a majority
of the members of our board. Stockholders are not permitted to
call a special meeting of stockholders, to require that the
chairman call such a special meeting, or to require that our
board request the calling of a special meeting of stockholders.
Stockholder
Action; Advance Notice Requirements for Stockholder Proposals
and Director Nominations
Our amended and restated articles of incorporation provide that
stockholders may not take action by written consent unless this
action and the taking of such action by written consent have
been expressly approved by the board of directors, and otherwise
may only take action at duly called annual or special meetings.
In addition, our amended and restated by-laws establish advance
notice procedures for:
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stockholders to nominate candidates for election as a
director; and
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stockholders to propose topics for consideration at
stockholders meetings.
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Stockholders must notify our corporate secretary in writing
prior to the meeting at which the matters are to be acted upon
or directors are to be elected. The notice must contain the
information specified in our amended and restated by-laws. To be
timely, the notice must be received at our corporate
headquarters not less than 90 days nor more than
120 days prior to the first anniversary of the date of the
prior years annual meeting of stockholders. If the annual
meeting is advanced by more than 30 days, or delayed by
more than 70 days, from the anniversary of the preceding
years annual meeting, notice by the stockholder, to be
timely, must be received not earlier than the 120th day
prior to the annual meeting and not later than the later of the
90th day prior to the annual meeting or the 10th day
following the day on which we notify stockholders of the date of
the annual meeting, either by mail or other public disclosure.
In the case of a special meeting of stockholders called to elect
directors, the stockholder notice must be received not earlier
than 120 days prior to the special meeting and not later
than the later of the 90th day
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prior to the special meeting or 10th day following the day
on which we notify stockholders of the date of the special
meeting, either by mail or other public disclosure. These
provisions may preclude some stockholders from bringing matters
before the stockholders at an annual or special meeting or from
nominating candidates for director at an annual or special
meeting.
Election
and Removal of Directors
Our board of directors is divided into three classes. The
directors in each class serve for a three-year term, one class
being elected each year by our stockholders. Our stockholders
may only remove directors for cause. Our board of directors may
elect a director to fill a vacancy created by the expansion of
the board of directors. This system of electing and removing
directors may discourage a third party from making a tender
offer or otherwise attempting to obtain control of us because it
generally makes it more difficult for stockholders to replace a
majority of our directors.
Nevada
Anti-Takeover Statutes
Business
Combinations Act
Under the terms of our amended and restated articles of
incorporation and as permitted under Nevada law, we have elected
not to be subject to Nevadas anti-takeover law. This law
provides that specified persons who, together with affiliates
and associates, own, or within three years did own, 10% or more
of the outstanding voting stock of a corporation cannot engage
in specified business combinations with the corporation for a
period of three years after the date on which the person became
an interested stockholder. The law defines the term
business combination to encompass a wide variety of
transactions with or caused by an interested stockholder,
including mergers, asset sales and other transactions in which
the interested stockholder receives or could receive a benefit
on other than a pro rata basis with other stockholders. With the
approval of our stockholders, we may amend our articles of
incorporation in the future to become governed by the
anti-takeover law. This provision would then have an
anti-takeover effect for transactions not approved in advance by
our board of directors, including discouraging takeover attempts
that might result in a premium over the market price for the
shares of our common stock. By opting out of the Nevada
anti-takeover law, third parties or existing stockholders could
more easily pursue a takeover transaction that was not approved
by our board of directors.
Control
Shares Act
Nevada law provides that, in certain circumstances, a
stockholder who acquires a controlling interest in a
corporation, defined in the statute as an interest in excess of
a 1/5, 1/3 or 1/2 interest, has no voting rights in the shares
acquired that caused the stockholder to exceed any such
threshold, unless the corporations other stockholders, by
majority vote, grant voting rights to such shares. We may opt
out of this act by amending our by-laws either before or within
ten days after the relevant acquisition of shares. Presently,
our amended and restated by-laws do not opt out of this act.
Gaming
Requirements
Applicable Gaming Laws impose certain reporting and suitability
requirements to holders of our capital stock. See Risk
Factors Risks Associated with Our
U.S. Operations Certain beneficial owners of
our voting securities may be required to file an application
with, and be investigated by, the Nevada Gaming Authorities, and
the Nevada Commission may restrict the ability of a beneficial
owner to receive any benefit from our voting securities and may
require the disposition of shares of our voting securities, if a
beneficial owner is found to be unsuitable and
Certain beneficial owners of our voting
securities may be required to file a license application with,
and be investigated by, the Pennsylvania Gaming Control Board,
the Pennsylvania State Police and other agencies in our
Annual Report on
Form 10-K
for the year ended December 31, 2007, which is incorporated
by reference herein.
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Our amended and restated articles of incorporation provide that
if the Nevada Gaming Authorities determine at any time that a
holder of our stock or other securities is unsuitable to hold
such securities, then until such securities are owned by persons
found by the Nevada Gaming Authorities to be suitable to own
them:
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we will not be required or permitted to pay any dividend or
interest with regard to these securities;
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the holder of these securities will not be entitled to vote on
any matter as the holder of the securities and these securities
will not for any purposes be included in the securities entitled
to vote; and
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we will not pay any remuneration in any form to the holder of
these securities.
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In addition to the foregoing, our amended and restated articles
of incorporation also provide that the issuance or transfer of
any stock or securities in violation of applicable Gaming Laws,
including Nevada Gaming Laws, will be void and that such stock
or securities shall be deemed not to be issued and outstanding
until:
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we cease to be subject to the jurisdiction of the Gaming
Authorities; or
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the applicable Gaming Authorities validate the issuance or
transfer or waive any defect in the issuance or transfer.
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Amendment
to Certain Articles of Incorporation and By-Law
Provisions
Our amended and restated articles of incorporation provide that
amendments to certain provisions of the articles will require
the affirmative vote of the holders of at least
662/3%
of the outstanding shares of our voting stock, namely:
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the provisions requiring a
662/3%
stockholder vote for removal of directors;
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the provisions requiring a
662/3%
stockholder vote for the amendment, repeal or adoption of our
by-law provisions (described below);
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the provisions requiring a
662/3%
stockholder vote for the amendment of certain provisions of our
articles of incorporation; and
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the provisions prohibiting stockholder action by written consent
except under certain circumstances.
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In addition, our amended and restated articles of incorporation
and amended and restated by-laws provide that our by-laws are
subject to adoption, amendment or repeal either by a majority of
the members of our board of directors or the affirmative vote of
the holders of not less than
662/3%
of the outstanding shares of our voting stock voting as a single
class.
The
662/3%
vote will allow the holders of a minority of our voting
securities to prevent the holders of a majority or more of our
voting securities from amending certain provisions of our
amended and restated articles of incorporation and our amended
and restated by-laws.
Transfer
Agent and Registrar
The transfer agent and registrar for the common stock is
American Stock Transfer and Trust Company. Its telephone
number is
(212) 936-5100.
Listing
Our common stock is listed the New York Stock Exchange under the
symbol LVS.
DESCRIPTION
OF THE DEPOSITARY SHARES
General
We may, at our option, elect to offer fractional shares rather
than full shares of the preferred stock of a series. In the
event that we determine to do so, we will issue receipts for
depositary shares, each of which will represent a
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fraction (to be set forth in the prospectus supplement relating
to a particular series of preferred stock) of a share of a
particular series of preferred stock as more fully described
below.
The shares of any series of preferred stock represented by
depositary shares will be deposited under one or more deposit
agreements among us, a depositary to be named in the applicable
prospectus supplement, and the holders from time to time of
depositary receipts issued thereunder. Subject to the terms of
the applicable deposit agreement, each holder of a depositary
share will be entitled, in proportion to the applicable fraction
of a share of preferred stock represented by the depositary
share, to all the rights and preferences of the preferred stock
represented thereby (including, as applicable, dividend, voting,
redemption, subscription and liquidation rights).
The depositary shares will be evidenced by depositary receipts
issued pursuant to the deposit agreement. Depositary receipts
will be distributed to those persons purchasing the fractional
shares of the related series of preferred stock.
The following description sets forth certain general terms and
provisions of the depositary shares to which any prospectus
supplement may relate. The particular terms of the depositary
shares to which any prospectus supplement may relate and the
extent, if any, to which such general provisions may apply to
the depositary shares so offered will be described in the
applicable prospectus supplement. To the extent that any
particular terms of the depositary shares or the deposit
agreement described in a prospectus supplement differ from any
of the terms described below, then the terms described below
will be deemed to have been superseded by that prospectus
supplement relating to such deposited shares. The forms of
deposit agreement and depositary receipt will be filed as
exhibits to the documents incorporated or deemed to be
incorporated by reference in this prospectus. Holders of
depositary shares will be subject to all of the provisions of
the section entitled Description of Capital
Stock Gaming Requirements.
The following summary of certain provisions of the depositary
shares and deposit agreement does not purport to be complete and
is subject to, and is qualified in its entirety by express
reference to, all the provisions of the deposit agreement and
the applicable prospectus supplement, including the definitions.
Immediately following our issuance of shares of a series of
preferred stock that will be offered as fractional shares, we
will deposit the shares with the depositary, which will then
issue and deliver the depositary receipts to the purchasers
thereof. Depositary receipts will only be issued evidencing
whole depositary shares. A depositary receipt may evidence any
number of whole depositary shares.
Pending the preparation of definitive depositary receipts, the
depositary may, upon our written order, issue temporary
depositary receipts substantially identical to (and entitling
the holders thereof to all the rights pertaining to) the
definitive depositary receipts but not in definitive form.
Definitive depositary receipts will be prepared thereafter
without unreasonable delay, and such temporary depositary
receipts will be exchangeable for definitive depositary receipts
at our expense.
Dividends
and Other Distributions
The depositary will distribute all cash dividends or other cash
distributions received in respect of the related series of
preferred stock to the record holders of depositary shares
relating to the series of preferred stock in proportion to the
number of the depositary shares owned by the holders.
In the event of a distribution other than in cash, the
depositary will distribute property received by it to the record
holders of depositary shares entitled thereto in proportion to
the number of depositary shares owned by the holders, unless the
depositary determines that the distribution cannot be made
proportionately among the holders or that it is not feasible to
make the distributions, in which case the depositary may, with
our approval, adopt any method as it deems equitable and
practicable for the purpose of effecting the distribution,
including the sale (at public or private sale) of the securities
or property thus received, or any part thereof, at the place or
places and upon those terms as it may deem proper.
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The amount distributed in any of the foregoing cases will be
reduced by any amounts required to be withheld by us or the
depositary on account of taxes or other governmental charges.
Redemption
of Depositary Shares
If any series of the preferred stock underlying the depositary
shares is subject to redemption, the depositary shares will be
redeemed from the proceeds received by the depositary resulting
from any redemption, in whole or in part, of the series of the
preferred stock held by the depositary. The redemption price per
depositary share will be equal to the applicable fraction of the
redemption price per share payable with respect to the series of
the preferred stock. If we redeem shares of a series of
preferred stock held by the depositary, the depositary will
redeem as of the same redemption date the number of depositary
shares representing the shares of preferred stock so redeemed.
If less than all the depositary shares are to be redeemed, the
depositary shares to be redeemed will be selected by lot or
substantially equivalent method determined by the depositary.
After the date fixed for redemption, the depositary shares so
called for redemption will no longer be deemed to be outstanding
and all rights of the holders of the depositary shares will
cease, except the right to receive the monies payable upon
redemption and any money or other property to which the holders
of the depositary shares were entitled upon such redemption,
upon surrender to the depositary of the depositary receipts
evidencing the depositary shares. Any funds deposited by us with
the depositary for any depositary shares that the holders
thereof fail to redeem will be returned to us after a period of
two years from the date the funds are so deposited.
Voting
the Underlying Preferred Stock
Upon receipt of notice of any meeting at which the holders of
any series of the preferred stock are entitled to vote, the
depositary will mail the information contained in the notice of
meeting to the record holders of the depositary shares relating
to the series of preferred stock. Each record holder of the
depositary shares on the record date (which will be the same
date as the record date for the related series of preferred
stock) will be entitled to instruct the depositary as to the
exercise of the voting rights pertaining to the number of shares
of the series of preferred stock represented by that
holders depositary shares. The depositary will endeavor,
insofar as practicable, to vote or cause to be voted the number
of shares of preferred stock represented by the depositary
shares in accordance with the instructions, provided the
depositary receives the instructions sufficiently in advance of
the meeting to enable it to so vote or cause to be voted the
shares of preferred stock, and we will agree to take all
reasonable action that may be deemed necessary by the depositary
in order to enable the depositary to do so. The depositary will
abstain from voting shares of the preferred stock to the extent
it does not receive specific instructions from the holders of
depositary shares representing the preferred stock.
Withdrawal
of Stock
Upon surrender of the depositary receipts at the corporate trust
office of the depositary and upon payment of the taxes, charges
and fees provided for in the deposit agreement and subject to
the terms thereof, the holder of the depositary shares evidenced
thereby will be entitled to delivery at such office, to or upon
his or her order, of the number of whole shares of the related
series of preferred stock and any money or other property, if
any, represented by the depositary shares. Holders of depositary
shares will be entitled to receive whole shares of the related
series of preferred stock, but holders of the whole shares of
preferred stock will not thereafter be entitled to deposit the
shares of preferred stock with the depositary or to receive
depositary shares therefor. If the depositary receipts delivered
by the holder evidence a number of depositary shares in excess
of the number of depositary shares representing the number of
whole shares of the related series of preferred stock to be
withdrawn, the depositary will deliver to the holder or upon his
or her order at the same time a new depositary receipt
evidencing the excess number of depositary shares.
Amendment
and Termination of a Deposit Agreement
The form of depositary receipt evidencing the depositary shares
of any series and any provision of the applicable deposit
agreement may at any time and from time to time be amended by
agreement between us and the depositary. However, any amendment
that materially adversely alters the rights of the holders of
depositary shares
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of any series will not be effective unless the amendment has
been approved by the holders of at least a majority of the
depositary shares of the series then outstanding. Every holder
of a depositary receipt at the time the amendment becomes
effective will be deemed, by continuing to hold the depositary
receipt, to be bound by the deposit agreement as so amended.
Notwithstanding the foregoing, in no event may any amendment
impair the right of any holder of any depositary shares, upon
surrender of the depositary receipts evidencing the depositary
shares and subject to any conditions specified in the deposit
agreement, to receive shares of the related series of preferred
stock and any money or other property represented thereby,
except in order to comply with mandatory provisions of
applicable law. The deposit agreement may be terminated by us at
any time upon not less than 60 days prior written notice to
the depositary, in which case, on a date that is not later than
30 days after the date of the notice, the depositary shall
deliver or make available for delivery to holders of depositary
shares, upon surrender of the depositary receipts evidencing the
depositary shares, the number of whole or fractional shares of
the related series of preferred stock as are represented by the
depositary shares. The deposit agreement shall automatically
terminate after all outstanding depositary shares have been
redeemed or there has been a final distribution in respect of
the related series of preferred stock in connection with any
liquidation, dissolution or winding up of us and the
distribution has been distributed to the holders of depositary
shares.
Charges
of Depositary
We will pay all transfer and other taxes and the governmental
charges arising solely from the existence of the depositary
arrangements. We will pay the charges of the depositary,
including charges in connection with the initial deposit of the
related series of preferred stock and the initial issuance of
the depositary shares and all withdrawals of shares of the
related series of preferred stock, except that holders of
depositary shares will pay transfer and other taxes and
governmental charges and any other charges as are expressly
provided in the deposit agreement to be for their accounts.
Resignation
and Removal of Depositary
The depositary may resign at any time by delivering to us
written notice of its election to do so, and we may at any time
remove the depositary. Any resignation or removal will take
effect upon the appointment of a successor depositary, which
successor depositary must be appointed within 60 days after
delivery of the notice of resignation or removal and must be a
bank or trust company having its principal office in the United
States and having a combined capital and surplus of at least
$50,000,000.
Miscellaneous
The depositary will forward to the holders of depositary shares
all reports and communications from us that are delivered to the
depositary and which we are required to furnish to the holders
of the related preferred stock.
The depositarys corporate trust office will be identified
in the applicable prospectus supplement. Unless otherwise set
forth in the applicable prospectus supplement, the depositary
will act as transfer agent and registrar for depositary receipts
and if shares of a series of preferred stock are redeemable, the
depositary will also act as redemption agent for the
corresponding depositary receipts.
DESCRIPTION
OF THE WARRANTS
The following description of the terms of the warrants sets
forth certain general terms and provisions of the warrants to
which any prospectus supplement may relate. We may issue
warrants for the purchase of senior debt securities,
subordinated debt securities, preferred stock, depositary shares
or common stock. Warrants may be issued independently or
together with debt securities, preferred stock or common stock
offered by any prospectus supplement and may be attached to or
separate from any such offered securities. Each series of
warrants will be issued under a separate warrant agreement to be
entered into between us and a bank or trust company, as warrant
agent. The warrant agent will act solely as our agent in
connection with the warrants and will not assume any obligation
or relationship of agency or trust for or with any holders or
beneficial owners of warrants. The following summary of certain
provisions of the warrants does not purport to be complete and
is subject to, and qualified in its
23
entirety by reference to, the provisions of the warrant
agreement that will be filed with the SEC in connection with the
offering of such warrants. Holders of warrants for debt
securities will be subject to all of the provisions of the
section entitled Description of the Debt
Securities Mandatory Disposition Pursuant to Gaming
Laws and holders of warrants for capital stock will be
subject to the provisions of the section entitled
Description of our Capital Stock Gaming
Requirements related to discretionary qualification or
licensing requirements and to the restrictions upon a finding of
unsuitability.
Debt
Warrants
The prospectus supplement relating to a particular issue of debt
warrants will describe the terms of such debt warrants,
including the following:
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the title of such debt warrants;
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the offering price for such debt warrants, if any;
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the aggregate number of such debt warrants;
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the designation and terms of the debt securities purchasable
upon exercise of such debt warrants;
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if applicable, the designation and terms of the debt securities
with which such debt warrants are issued and the number of such
debt warrants issued with each such debt security;
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if applicable, the date from and after which such debt warrants
and any debt securities issued therewith will be separately
transferable;
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the principal amount of debt securities purchasable upon
exercise of a debt warrant and the price at which such principal
amount of debt securities may be purchased upon exercise (which
price may be payable in cash, securities or other property);
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the date on which the right to exercise such debt warrants shall
commence and the date on which such right shall expire;
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if applicable, the minimum or maximum amount of such debt
warrants that may be exercised at any one time;
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whether the debt warrants represented by the debt warrant
certificates or debt securities that may be issued upon exercise
of the debt warrants will be issued in registered or bearer form;
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information with respect to book-entry procedures, if any;
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the currency or currency units in which the offering price, if
any, and the exercise price are payable;
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if applicable, a discussion of material United States federal
income tax considerations;
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the antidilution or adjustment provisions of such debt warrants,
if any;
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the redemption or call provisions, if any, applicable to such
debt warrants; and
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any additional terms of such debt warrants, including terms,
procedures, and limitations relating to the exchange and
exercise of such debt warrants.
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Stock
Warrants
The prospectus supplement relating to any particular issue of
depositary share warrants, preferred stock warrants or common
stock warrants will describe the terms of such warrants,
including the following:
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the title of such warrants;
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the offering price for such warrants, if any;
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the aggregate number of such warrants;
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the designation and terms of the offered securities purchasable
upon exercise of such warrants;
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if applicable, the designation and terms of the offered
securities with which such warrants are issued and the number of
such warrants issued with each such offered security;
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if applicable, the date from and after which such warrants and
any offered securities issued therewith will be separately
transferable;
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the number of shares of common stock, preferred stock or
depositary shares purchasable upon exercise of a warrant and the
price at which such shares may be purchased upon exercise;
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the date on which the right to exercise such warrants shall
commence and the date on which such right shall expire;
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if applicable, the minimum or maximum amount of such warrants
that may be exercised at any one time;
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the currency or currency units in which the offering price, if
any, and the exercise price are payable;
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if applicable, a discussion of material United States federal
income tax considerations;
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the antidilution provisions of such warrants, if any;
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the redemption or call provisions, if any, applicable to such
warrants; and
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any additional terms of such warrants, including terms,
procedures and limitations relating to the exchange and exercise
of such warrants.
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DESCRIPTION
OF THE PURCHASE CONTRACTS
We may issue, from time to time, purchase contracts, including
contracts obligating holders to purchase from us and us to sell
to the holders, a specified principal amount of senior debt
securities, subordinated debt securities, shares of common stock
or preferred stock, depositary shares, government securities, or
any of the other securities that we may sell under this
prospectus at a future date or dates. The consideration payable
upon settlement of the purchase contracts may be fixed at the
time the purchase contracts are issued or may be determined by a
specific reference to a formula set forth in the purchase
contracts. The purchase contracts may be issued separately or as
part of units consisting of a purchase contract and other
securities or obligations issued by us or third parties,
including United States treasury securities, securing the
holders obligations to purchase the relevant securities
under the purchase contracts. The purchase contracts may require
us to make periodic payments to the holders of the purchase
contracts or units or vice versa, and the payments may be
unsecured or prefunded on some basis. The purchase contracts may
require holders to secure their obligations under the purchase
contracts. Holders of purchase contracts for debt securities
will be subject to all of the provisions of the section entitled
Description of the Debt Securities Mandatory
Disposition Pursuant to Gaming Laws and holders of
purchase contracts for capital stock will be subject to the
provisions of the section entitled Description of our
Capital Stock Gaming Requirements related to
discretionary qualification or licensing requirements and to the
restrictions upon a finding of unsuitability.
The prospectus supplement related to any particular purchase
contracts will describe, among other things, the material terms
of the purchase contracts and of the securities being sold
pursuant to such purchase contracts, a discussion, if
appropriate, of any special United States federal income tax
considerations applicable to the purchase contracts and any
material provisions governing the purchase contracts that differ
from those described above. The description in the prospectus
supplement will not necessarily be complete and will be
qualified in its entirety by reference to the purchase
contracts, and, if applicable, collateral arrangements and
depositary arrangements, relating to the purchase contracts.
DESCRIPTION
OF THE UNITS
We may, from time to time, issue units comprised of one or more
of the other securities that may be offered under this
prospectus, in any combination. Each unit may also include debt
obligations of third parties, such as U.S. Treasury
securities. Each unit will be issued so that the holder of the
unit is also the holder of each security included in the unit.
Thus, the holder of a unit will have the rights and obligations
of a holder of each included security. The unit agreement under
which a unit is issued may provide that the securities included
in the unit may not
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be held or transferred separately at any time, or at any time
before a specified date. To the extent that units include debt
securities, holders of the units will be subject to all of the
provisions of the section entitled Description of the Debt
Securities Mandatory Disposition Pursuant to Gaming
Laws, and to the extent that units include capital stock,
holders of the units will be subject to the provisions of the
section entitled Description of our Capital
Stock Gaming Requirements related to
discretionary qualification or licensing requirements and to the
restrictions upon a finding of unsuitability.
Any prospectus supplement related to any particular units will
describe, among other things:
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the material terms of the units and of the securities comprising
the units, including whether and under what circumstances those
securities may be held or transferred separately;
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any material provisions relating to the issuance, payment,
settlement, transfer or exchange of the units or of the
securities comprising the units;
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if appropriate, any special United States federal income tax
considerations applicable to the units; and
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any material provisions of the governing unit agreement that
differ from those described above.
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PLAN OF
DISTRIBUTION
We may offer and sell the securities in any one or more of the
following ways:
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to or through underwriters, brokers or dealers;
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directly to one or more other purchasers;
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through a block trade in which the broker or dealer engaged to
handle the block trade will attempt to sell the securities as
agent, but may position and resell a portion of the block as
principal to facilitate the transaction;
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through agents on a best-efforts basis; or
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otherwise through a combination of any of the above methods of
sale.
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In addition, we may enter into option, share lending or other
types of transactions that require us to deliver shares of
common stock to an underwriter, broker or dealer, who will then
resell or transfer the shares of common stock under this
prospectus. We may enter into hedging transactions with respect
to our securities. For example, we may:
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enter into transactions involving short sales of the shares of
common stock by underwriters, brokers or dealers;
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sell shares of common stock short themselves and deliver the
shares to close out short positions;
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enter into option or other types of transactions that require us
to deliver shares of common stock to an underwriter, broker or
dealer, who will then resell or transfer the shares of common
stock under this prospectus; or
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loan or pledge the shares of common stock to an underwriter,
broker or dealer, who may sell the loaned shares or, in the
event of default, sell the pledged shares.
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We may enter into derivative transactions with third parties, or
sell securities not covered by this prospectus to third parties
in privately negotiated transactions. If the applicable
prospectus supplement indicates, in connection with those
derivatives, the third parties may sell securities covered by
this prospectus and the applicable prospectus supplement,
including in short sale transactions. If so, the third party may
use securities pledged by us or borrowed from us or others to
settle those sales or to close out any related open borrowings
of stock, and may use securities received from us in settlement
of those derivatives to close out any related open borrowings of
stock. The third party in such sale transactions will be an
underwriter and, if not identified in this prospectus, will be
identified in the applicable prospectus supplement (or a
post-effective amendment). In addition, we may otherwise loan or
pledge securities to a financial institution or other third
party that in turn may sell the securities short using this
prospectus. Such financial institution or other third party may
transfer its economic short position to investors in our
securities or in connection with a concurrent offering of other
securities.
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Each time we sell securities, we will provide a prospectus
supplement that will name any underwriter, dealer or agent
involved in the offer and sale of the securities. The prospectus
supplement will also set forth the terms of the offering,
including:
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the purchase price of the securities and the proceeds we will
receive from the sale of the securities;
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any underwriting discounts and other items constituting
underwriters compensation;
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any public offering or purchase price and any discounts or
commissions allowed or re-allowed or paid to dealers;
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any commissions allowed or paid to agents;
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any other offering expenses;
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any securities exchanges on which the securities may be listed;
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the method of distribution of the securities;
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the terms of any agreement, arrangement or understanding entered
into with the underwriters, brokers or dealers; and
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any other information we think is important.
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If underwriters or dealers are used in the sale, the securities
will be acquired by the underwriters or dealers for their own
account. The securities may be sold from time to time in one or
more transactions:
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at a fixed price or prices, which may be changed;
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at market prices prevailing at the time of sale;
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at prices related to such prevailing market prices;
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at varying prices determined at the time of sale; or
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at negotiated prices.
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Such sales may be effected:
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in transactions on any national securities exchange or quotation
service on which the securities may be listed or quoted at the
time of sale;
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in transactions in the over-the-counter market;
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in block transactions in which the broker or dealer so engaged
will attempt to sell the securities as agent but may position
and resell a portion of the block as principal to facilitate the
transaction, or in crosses, in which the same broker acts as an
agent on both sides of the trade;
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through the writing of options; or
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through other types of transactions.
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The securities may be offered to the public either through
underwriting syndicates represented by one or more managing
underwriters or directly by one or more of such firms. Unless
otherwise set forth in the prospectus supplement, the
obligations of underwriters or dealers to purchase the
securities offered will be subject to certain conditions
precedent and the underwriters or dealers will be obligated to
purchase all the offered securities if any are purchased. Any
public offering price and any discount or concession allowed or
reallowed or paid by underwriters or dealers to other dealers
may be changed from time to time.
The securities may be sold directly by us or through agents
designated by us from time to time. Any agent involved in the
offer or sale of the securities in respect of which this
prospectus is delivered will be named, and any commissions
payable by us to such agent will be set forth in, the prospectus
supplement. Unless otherwise indicated in the prospectus
supplement, any such agent will be acting on a best efforts
basis for the period of its appointment.
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Offers to purchase the securities offered by this prospectus may
be solicited, and sales of the securities may be made, by us
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 of the securities. The terms of any offer
made in this manner will be included in the prospectus
supplement relating to the offer.
If indicated in the applicable prospectus supplement, we will
authorize underwriters, dealers or agents to solicit offers by
certain institutional investors to purchase securities from us
pursuant to contracts providing for payment and delivery at a
future date. Institutional investors with which these contracts
may be made include, among others:
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commercial and savings banks;
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insurance companies;
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pension funds;
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investment companies; and
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educational and charitable institutions.
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In all cases, these purchasers must be approved by us. Unless
otherwise set forth in the applicable prospectus supplement, the
obligations of any purchaser under any of these contracts will
not be subject to any conditions except that (a) the
purchase of the securities must not at the time of delivery be
prohibited under the laws of any jurisdiction to which that
purchaser is subject, and (b) if the securities are also
being sold to underwriters, we must have sold to these
underwriters the securities not subject to delayed delivery.
Underwriters and other agents will not have any responsibility
in respect of the validity or performance of these contracts.
Some of the underwriters, dealers or agents used by us in any
offering of securities under this prospectus may be customers
of, engage in transactions with, and perform services for us or
affiliates of ours in the ordinary course of business.
Underwriters, dealers, agents and other persons may be entitled
under agreements which may be entered into with us to
indemnification against and contribution toward certain civil
liabilities, including liabilities under the Securities Act, and
to be reimbursed by us for certain expenses.
Subject to any restrictions relating to debt securities in
bearer form, any securities initially sold outside the United
States may be resold in the United States through underwriters,
dealers or otherwise.
Any underwriters to which offered securities are sold by us for
public offering and sale may make a market in such securities,
but those underwriters will not be obligated to do so and may
discontinue any market making at any time.
The anticipated date of delivery of the securities offered by
this prospectus will be described in the applicable prospectus
supplement relating to the offering.
If more than 10 percent of the net proceeds of any offering
of securities made under this prospectus will be received by
members of the Financial Industry Regulatory Authority, which we
refer to in this prospectus as FINRA, participating
in the offering or by affiliates or associated persons of such
FINRA members, the offering will be conducted in accordance with
NASD Conduct Rule 2710(h). The maximum compensation we will
pay to underwriters in connection with any offering of the
securities will not exceed 8% of the maximum proceeds of such
offering.
To comply with the securities laws of some states, if
applicable, the securities may be sold in these jurisdictions
only through registered or licensed brokers or dealers. In
addition, in some states the securities may not be sold unless
they have been registered or qualified for sale or an exemption
from registration or qualification requirements is available and
is complied with.
LEGAL
MATTERS
Certain legal matters in connection with the offered debt
securities, depositary shares, warrants, purchase contracts and
units will be passed upon for us by Paul, Weiss, Rifkind,
Wharton & Garrison LLP, New York,
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New York. Certain legal matters with respect to the offered
common stock and preferred stock and with respect to Nevada
corporate law will be passed upon for us by Lionel
Sawyer & Collins LTD, Las Vegas, Nevada.
EXPERTS
The financial statements incorporated in this prospectus by
reference to Las Vegas Sands Corp.s Current Report on
Form 8-K
dated November 6, 2008 and the financial statement schedule
and managements assessment on 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 Las Vegas Sands Corp. for the year ended December 31,
2007 have been so incorporated in reliance on the report (which
contains an explanatory paragraph relating to the Companys
ability to continue as a going concern as described in Note 1 to
the financial statements) of PricewaterhouseCoopers LLP, an
independent registered public accounting firm, given on the
authority of said firm as experts in auditing and accounting.
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Shares
of % Series A Cumulative
Perpetual
Preferred Stock
(Liquidation Preference $100 per
Preferred Share)
and Warrants to
Purchase Shares
of Common Stock
Shares
of Common Stock
Las Vegas Sands Corp.
PROSPECTUS SUPPLEMENT
Goldman, Sachs &
Co.