posasr
As filed with the Securities and Exchange Commission on
November 17, 2008
Registration No. 333-155100
UNITED STATES SECURITIES AND
EXCHANGE COMMISSION
Washington, D.C.
20549
Post-Effective Amendment
No. 1
to
Form S-3
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF
1933
LAS VEGAS SANDS CORP.
(Exact name of registrant as
specified in its charter)
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Nevada
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27-0099920
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(State of incorporation)
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(I.R.S. Employer Identification No.)
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3355 Las Vegas Boulevard
South
Las Vegas, Nevada
89109
(702) 414-1000
(Address, including zip code,
and telephone number, including area code, of registrants
principal executive offices)
J. Alberto
Gonzalez-Pita, Esq.
3355 Las Vegas Boulevard
South
Las Vegas, Nevada
89109
(702) 414-1000
(Name, address, including zip
code, and telephone number, including area code, of agent for
service)
Copies to:
John C.
Kennedy, Esq.
Paul, Weiss, Rifkind, Wharton
& Garrison LLP
1285 Avenue of the
Americas
New York, New York
10019-6064
(212) 373-3000
Approximate date of commencement of proposed sale to the
public: From time to time after the effective
date of this Registration Statement.
If the only securities being registered on this Form are to be
offered pursuant to dividend or interest reinvestment plans,
please check the following
box. o
If any of the securities being registered on this Form are being
offered on a delayed or continuous basis pursuant to
Rule 415 under the Securities Act of 1933, other than
securities offered only in connection with dividend or interest
reinvestment plans, check the following
box. þ
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act
registration statement number of the earlier effective
registration statement for the same
offering. o
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following
box and list the Securities Act registration statement number of
the earlier effective registration statement for the same
offering. o
If this Form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that
shall become effective upon filing with the Commission pursuant
to Rule 462(e) under the Securities Act, check the
following
box. þ
If this Form is a post-effective amendment to a registration
statement filed pursuant to General Instruction I.D. filed to
register additional securities or additional classes of
securities pursuant to Rule 413(b) under the Securities
Act, check the following
box. þ
Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated
filer, or a smaller reporting company. See the definitions of
large accelerated filer, accelerated
filer and smaller reporting company in
Rule 12b-2 of the Exchange Act. (Check one):
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Large accelerated
filer þ
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Accelerated filer
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Non-accelerated
filer o
(Do not check if a smaller reporting company)
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Smaller reporting
company o
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CALCULATION OF REGISTRATION FEE
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Proposed Maximum
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Proposed Maximum
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Amount of
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Title of Each Class of
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Aggregate Amount
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Offering
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Aggregate
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Registration
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Securities to be Registered
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to be Registered(1)
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Price per Unit(1)
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Offering Price(1)
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Fee(1)
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Senior Debt Securities and Subordinated Debt Securities
(collectively, debt securities)(2)
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Preferred Stock(2)
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Common Stock(2)
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Depositary Shares
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Warrants
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Purchase Contracts
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Units
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Guarantees of Debt Securities(3)
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(1)
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Pursuant to General
Instruction II.E., this information is not required to be
included. An indeterminate aggregate initial offering price or
number of debt securities, shares of preferred stock, shares of
common stock, depositary shares, warrants, purchase contracts
and units of Las Vegas Sands Corp. is being registered as may
from time to time be issued at currently indeterminable prices.
Securities registered hereunder may be sold separately or
together with other securities registered hereunder. The
proposed maximum initial offering prices per security will be
determined, from time to time, by Las Vegas Sands Corp. Prices,
when determined, may be in U.S. dollars or the equivalent
thereof in one or more foreign currencies, foreign currency
units or composite currencies. If any debt securities or
preferred stock are issued at an original issue discount, then
the amount registered will include the principal or liquidation
amount of such securities measured by the initial offering price
thereof. In reliance on Rule 456(b) and Rule 457(r)
under the Securities Act, Las Vegas Sands Corp. hereby defers
payment of the registration fee required in connection with this
registration statement.
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(2)
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Including an indeterminate number
of shares of common stock and preferred stock as may from time
to time be issued upon conversion or exchange of debt securities
or preferred stock, or upon the exercise of warrants or purchase
contracts, as the case may be.
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(3)
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Las Vegas Sands, LLC may guarantee
senior debt securities. No separate consideration will be
received for the guarantees.
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TABLE OF
ADDITIONAL REGISTRANT
The following subsidiary of Las Vegas Sands Corp. may guarantee
certain of the debt securities and is a co-registrant under this
registration statement:
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State or Other Jurisdiction of
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I.R.S. Employer
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Name of Co-Registrant
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Incorporation or Organization
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Identification No.
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Las Vegas Sands, LLC
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Nevada
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04-3010100
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The address of the foregoing co-registrant is 3355 Las
Vegas Boulevard South, Las Vegas, Nevada 89109 and the phone
number is (702) 414-1000.
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.
All of the securities listed above will be issued by Las Vegas
Sands Corp. In addition, Las Vegas Sands, LLC, a subsidiary of
Las Vegas Sands Corp., may guarantee senior debt securities
offered under this prospectus. 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 17, 2008.
TABLE OF
CONTENTS
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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In addition, Las Vegas Sands, LLC, a subsidiary of ours, may
guarantee senior debt securities offered under this prospectus.
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, 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.
1
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), the quarter ended June 30, 2008 (filed
August 11, 2008) and the quarter ended September 30,
2008 (filed November 10, 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,
November 6, 2008, November 7, 2008, November 12,
2008 (other than with respect to Item 7.01),
November 14, 2008, and November 17, 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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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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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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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 and mall sales;
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the impact of the 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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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 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.
Las Vegas Sands, LLC is an operating subsidiary of ours. It is a
limited liability company organized under the laws of Nevada and
its 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 quarters ended June 30, 2008 and September 30,
2008, all 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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Nine Months
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Ended
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September 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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(b
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(b
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2.7
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3.1
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4.2
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1.5
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(a) |
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We 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
ratio of earnings to fixed charges. |
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Earnings were insufficient to cover fixed charges by
approximately $167.2 million and $73.6 million in the
nine months ended September 30, 2008 and 2007,
respectively, and $80.7 million in the year ended
December 31, 2007. |
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 trustee or an indenture
between us, Las Vegas Sands, LLC, as guarantor and
U.S. Bank National Association, as trustee (collectively,
the senior indenture). The subordinated debt
securities will be issued under an indenture between us and
U.S. Bank National Association, as trustee (the
subordinated indenture and, together with the
senior indenture, the indentures). The
trustees under the indentures are 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
General
Our payment obligations under any series of non-convertible 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.
Guarantees
of Senior Debt Securities
In addition, Las Vegas Sands, LLC may guarantee our
non-convertible senior debt securities under the Guarantees (as
defined below). Las Vegas Sands, LLC, as primary obligor and not
merely as surety, will fully, irrevocably and unconditionally
guarantee to each Holder of the senior debt securities and to
the applicable Trustee and its successors and assigns, (1) the
full and punctual payment of principal and interest on the debt
securities when due, whether at maturity, by acceleration, by
redemption or otherwise, and all other monetary obligations of
ours under the senior indenture (including obligation applicable
to the Trustee) and the debt securities and (2) the full and
punctual performance within applicable grace periods of all
other obligations of ours under the senior indenture and the
debt securities (the Guarantees). Such Guarantees
will constitute guarantees of payment, performance and
compliance and not merely of collection. The obligations of Las
Vegas Sands, LLC under the senior indentures will be
unconditional irrespective of the absence or existence of any
action to enforce the same, the recovery of any judgment against
us or each other or any waiver or amendment of the provisions of
the senior indenture or the debt securities to the extent that
any such action or similar action would otherwise constitute a
legal or equitable discharge or defense of a guarantor (except
that any such waiver or amendment that expressly purports to
modify or release such obligations shall be effective in
accordance with its terms). The obligations of Las Vegas Sands,
LLC to make any payments may be satisfied by causing us to make
such payments. Las Vegas Sands, LLC shall further agree to waive
presentment to, demand of payment from and protest to us, and
shall also waive diligence, notice of acceptance of its
Guarantee, presentment, demand for payment, notice of protest
for non-payment, filing a claim if we complete a merger or
declare bankruptcy and any right to require a proceeding first
against us. These obligations shall be unaffected by any failure
or policy of the Trustee to exercise any right under the senior
indenture or under any series of security. If any Holder of any
debt security or the senior Trustee is required by a court or
otherwise to return to us, Las Vegas Sands, LLC, or any
custodian, Trustee, liquidator or other similar official acting
in relation to us, Las Vegas Sands, LLC, any amount paid by us
or any of them to the Trustee or such Holder, the Guarantees of
Las Vegas Sands, LLC, to the extent theretofore discharged,
shall be reinstated in full force and effect.
Further, each of the Guarantors agrees to pay any and all
reasonable costs and expenses (including reasonable
attorneys fees) incurred by the Trustee, or any Holder of
debt securities in enforcing any of their respective rights
under the Guarantees. The senior indentures provides that each
of the Guarantees of Las Vegas Sands, LLC is limited to the
maximum amount that can be guaranteed by Las Vegas Sands, LLC,
without rendering the relevant
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Guarantee voidable under applicable law relating to fraudulent
conveyance or fraudulent transfer or similar laws affecting the
rights of creditors generally. Although we believe the
Guarantees of Las Vegas Sands, LLC are valid and enforceable,
under certain circumstances, a court could find a
subsidiarys guarantee void or unenforceable under
fraudulent conveyance, fraudulent transfer or similar laws
affecting the rights of creditors generally.
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 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 (or Las Vegas
Sands, LLC if it is a guarantor of senior debt securities), Las
Vegas Sands, LLC 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) (a) in the case of our company 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 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; (b) in the case of Las Vegas Sands
LLC, where it is the guarantor of senior debt securities, the
entity formed by such consolidation or into which Las Vegas
Sands, LLC is merged or the entity which acquires by conveyance
or transfer the properties and assets of Las Vegas Sands, LLC
substantially as an entirety shall be either (i) one of us
or Las Vegas Sands, LLC or (ii) an entity organized and
existing under the laws of the United States of America or any
State or the District of Columbia, and in the case of clause
(ii), shall expressly assume, by supplemental indenture,
executed and delivered to the Trustee, in form reasonably
satisfactory to the Trustee, the performance of every covenant
of the applicable indenture (as supplemented from time to time)
on the part of Las Vegas Sands, LLC 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
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(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 (or Las Vegas Sands,
LLC) substantially as an entirety as set forth above, the
successor person formed by such consolidation or into which our
Company (or Las Vegas Sands, LLC) 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 (or Las Vegas Sands, LLC) under the applicable indenture
with the same effect as if such successor had been named as our
Company (or Las Vegas Sands, LLC) in the applicable indenture.
In the event of any such conveyance or transfer, our Company (or
Las Vegas Sands, LLC) 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.
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.
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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.
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
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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
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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.
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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with respect to any securities guaranteed, any Guarantee ceasing
to be, or asserted by any Guarantor as not being, in full force
and effect, enforceable according to its terms, except to the
extent contemplated by the applicable indenture; 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
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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;
(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
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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
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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
and the agent for our outstanding warrants.
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 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.
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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 31, 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 31,
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 31, 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.
On November 14, 2008, we issued 286,363,636 additional
shares of common stock, 10,446,300 shares of Series A
Cumulative Perpetual Preferred Stock and warrants to purchase up
to 174,105,348 shares of 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 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.
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Series A
Cumulative Perpetual Preferred Stock
The Series A Cumulative Perpetual Preferred Stock is a
single series of the preferred shares, consisting of
10,446,300 shares. The holders of the Series A
Cumulative Perpetual Preferred Stock have no preemptive rights.
The Series A Cumulative Perpetual Preferred Stock ranks 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
are 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 10% 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 10% 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
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
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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 Parity Stock or 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
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 do
not have any right to require us to redeem any shares of
Series A Cumulative Perpetual Preferred Stock.
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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 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 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; provided, however, that no amendment,
alteration or repeal shall be made that has a disproportionate
effect on any holder of Series A Cumulative Perpetual Preferred
Stock without the consent of such holder; 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
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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 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.
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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 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.
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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.
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 and Series
A Cumulative Perpetual Preferred 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 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
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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.
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
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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 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
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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 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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29
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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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30
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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 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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31
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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.
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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32
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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.
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,
units and guarantees will be passed upon for us by Paul, Weiss,
Rifkind, Wharton & Garrison LLP, New York,
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 17, 2008 and the financial statement
schedule and managements assessment of the effectiveness
of internal control over financial reporting (which is included
in Managements Report on Internal Control over Financial
Reporting) incorporated in this prospectus by reference to the
Annual Report on
Form 10-K
of Las Vegas Sands Corp. for the year ended December 31,
2007 have been so incorporated in reliance on the report (which
contains a paragraph relating to certain actions taken by
management to remove substantial doubt about the Companys
ability to continue as a going concern) of
PricewaterhouseCoopers LLP, an independent registered public
accounting firm, given on the authority of said firm as experts
in auditing and accounting.
34
Debt Securities
Preferred Stock
Common Stock
Depositary Shares
Warrants
Purchase Contracts
Units
PROSPECTUS
November 17, 2008
PART II
INFORMATION
NOT REQUIRED IN PROSPECTUS
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Item 14.
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OTHER
EXPENSES OF ISSUANCE AND DISTRIBUTION
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The following table sets forth expenses payable by Las Vegas
Sands Corp. in connection with the issuance and distribution of
the securities being registered. All the amounts shown are
estimates.
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SEC registration fee
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$
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0
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*
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Printing expenses
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20,000
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Legal fees and expenses
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150,000
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Accounting fees and expenses
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50,000
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Fees and expenses of trustee and counsel
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24,000
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Miscellaneous
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5,000
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Total
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$
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249,000
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*
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* |
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Applicable SEC registration fees have been deferred in
accordance with Rules 456(b) and 457(r) of the Securities
Act of 1933 and are not estimable at this time. |
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ITEM 15.
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INDEMNIFICATION
OF DIRECTORS AND OFFICERS
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The Company is a Nevada corporation. Section 78.7502 of
Chapter 78 of the Nevada Revised Statutes empowers a
corporation to indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in
the right of the corporation) by reason of the fact that he is
or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another
corporation or enterprise, against expenses, including
attorneys fees, judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection
with such action, suit or proceeding if he acted in good faith
and in a manner he reasonably believed to be in or not opposed
to the best interests of the corporation, and, with respect to
any criminal action or proceedings, had no reasonable cause to
believe his conduct was unlawful. No indemnification may be made
in respect of any claim, issue or matter as to which such person
shall have been adjudged by a court of competent jurisdiction
after exhaustion of all appeals therefrom to be liable to the
corporation or for amounts paid in settlement to the corporation
unless and only to the extent that the court in which such
action or suit was brought or other court of competent
jurisdiction determines that in view of all the circumstances of
the case, such person is fairly and reasonably entitled to
indemnity for such expenses as the court deems proper.
The Companys Articles of Incorporation, as amended and
restated, provide in Article Seven that the Company shall
indemnify its directors and officers to the fullest extent
permitted by the laws of the State of Nevada.
The operating agreement of Las Vegas Sands, LLC provides that
Las Vegas Sands, LLC will indemnify the Company for all costs,
losses, liabilities and damages incurred in connection with the
Companys business, to the fullest extent provided or
allowed by Nevada law.
The Company maintains a Directors and Officers
Liability and Reimbursement Insurance Policy designed to
reimburse it for any payments made by it pursuant to the
foregoing indemnification.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers or
persons controlling us under the foregoing provisions, we have
been informed that in the opinion of the SEC such
indemnification is against public policy as expressed in the
Securities Act and is therefore unenforceable.
Reference is made to Item 17 for our undertakings with
respect to indemnification for liabilities arising under the
Securities Act.
II-1
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Exhibit
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No.
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Description
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1
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.1
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Form of underwriting agreement for debt securities.
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1
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.2
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Form of underwriting agreement for equity securities.
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1
|
.3
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Form of underwriting agreement for depositary shares.
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1
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.4
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Form of underwriting agreement for purchase contracts.
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1
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.5
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Form of underwriting agreement for units.
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3
|
.1
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|
Operating Agreement of Las Vegas Sands, LLC dated July 28,
2005.
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3
|
.2
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|
First Amendment to the Operating Agreement of Las Vegas Sands,
LLC dated May 23, 2007.
|
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4
|
.1
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|
Amended and Restated Articles of Incorporation of Las Vegas
Sands Corp. (incorporated by reference from Exhibit 3.1 to
the Companys Amendment No. 2 to Registration
Statement on
Form S-1
(Reg. No. 333-118827)
dated November 22, 2004).
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4
|
.2
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|
Amended and Restated By-laws of Las Vegas Sands Corp.
(incorporated by reference from Exhibit 3.2 to the
Companys Quarterly Report on
Form 10-Q
for the period ended September 30, 2007,
filed November 9, 2007).
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4
|
.3
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|
Form of Specimen Common Stock Certificate of Las Vegas Sands
Corp. (incorporated by reference from Exhibit 4.1 to the
Companys Amendment No. 2 to Registration Statement on
Form S-1
(Reg. No. 333-118827)
dated November 22, 2004).
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4
|
.4
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Certificate of Designations for Series A Cumulative Perpetual
Preferred Stock (incorporated by reference from Exhibit 3.1
to the Companys Current Report on
Form 8-K
filed on November 14, 2008).
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4
|
.5*
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Indenture, dated as of September 30, 2008, between the
Company and U.S. Bank National Association, as trustee (the
Senior Indenture).
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4
|
.6*
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|
Form of Indenture to be entered into by the Company and U.S.
Bank National Association, as trustee (the Subordinated
Indenture).
|
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4
|
.7
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|
Form of Indenture to be entered into by the Company, Las Vegas
Sands, LLC and U.S. Bank National Association, as trustee (the
Senior Guaranteed Debt Security Indenture).
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4
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.8
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Form of Warrant Agreement.
|
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4
|
.9
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|
Form of Warrant.
|
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4
|
.10
|
|
Form of Deposit Agreement.
|
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4
|
.11
|
|
Form of Depositary Receipt.
|
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4
|
.12
|
|
Form of Purchase Contract.
|
|
4
|
.13
|
|
Form of Unit Agreement.
|
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5
|
.1*
|
|
Opinion of Paul, Weiss, Rifkind, Wharton & Garrison
LLP.
|
|
5
|
.2*
|
|
Opinion of Lionel Sawyer & Collins LTD.
|
|
5
|
.3
|
|
Opinion of Paul, Weiss, Rifkind, Wharton & Garrison
LLP.
|
|
12
|
.1
|
|
Computation of ratio of earnings to fixed charges.
|
|
23
|
.1
|
|
Consent of PricewaterhouseCoopers LLP.
|
|
23
|
.2*
|
|
Consent of Paul, Weiss, Rifkind, Wharton & Garrison
LLP (contained in Exhibit 5.1).
|
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23
|
.3*
|
|
Consent of Lionel Sawyer & Collins LTD (contained in
Exhibit 5.2).
|
|
23
|
.4
|
|
Consent of Paul, Weiss, Rifkind, Wharton & Garrison
LLP (contained in Exhibit 5.3).
|
|
24
|
.1*
|
|
Powers of attorney related to the Company.
|
|
24
|
.2
|
|
Powers of attorney related to Las Vegas Sands, LLC (included on
the signature page of this
Form S-3
and incorporated herein by reference).
|
|
25
|
.1*
|
|
Statement of eligibility and qualification on
Form T-l
of U.S. Bank National Association with respect to the Company
under the Senior Indenture.
|
|
25
|
.2*
|
|
Statement of eligibility and qualification on
Form T-l
of U.S. Bank National Association with respect to the Company
under the Subordinated Indenture.
|
|
25
|
.3
|
|
Statement of eligibility and qualification on Form T-1 of
U.S. Bank National Association with respect to the Company and
Las Vegas Sands, LLC under the Senior Guaranteed Debt Security
Indenture.
|
|
|
|
* |
|
Previously filed. |
|
|
|
To be filed, if necessary, by a post-effective amendment to the
registration statement or as an exhibit to a document
incorporated by reference herein. |
II-2
(a) The undersigned Registrants hereby undertake:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum
aggregate offering price set forth in the Calculation of
Registration Fee table in the effective registration
statement; and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
provided, however, that paragraphs (1)(i), (1)(ii) and
(1)(iii) do not apply if the information required to be included
in a post-effective amendment by those paragraphs is contained
in reports filed with or furnished to the Commission by the
Registrants pursuant to Section 13 or Section 15(d) of
the Exchange Act that are incorporated by reference in the
registration statement, or is contained in a form of prospectus
filed pursuant to Rule 424(b) that is part of the
registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability under
the Securities Act of 1933 to any purchaser:
(i) Each prospectus filed by the Registrants pursuant to
Rule 424(b)(3) shall be deemed to be part of the registration
statement as of the date the filed prospectus was deemed part of
and included in the registration statement; and
(ii) Each prospectus required to be filed pursuant to Rule
424(b)(2), (b)(5), or (b)(7) as part of a registration statement
in reliance on Rule 430B relating to an offering made
pursuant to Rule 415(a)(1)(i), (vii) or (x) for the
purpose of providing the information required by
Section 10(a) of the Securities Act of 1933 shall be deemed
to be part of and included in the registration statement as of
the earlier of the date such form of prospectus is first used
after effectiveness or the date of the first contract of sale of
securities in the offering described in the prospectus. As
provided in Rule 430B, for liability purposes of the issuer
and any person that is at that date an underwriter, such date
shall be deemed to be a new effective date of the registration
statement relating to the securities in the registration
statement to which that prospectus relates, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof. Provided, however, that no statement
made in a registration statement or prospectus that is part of
the registration statement or made in a document incorporated or
deemed incorporated by reference into the registration statement
or prospectus that is part of the registration statement will,
as to a purchaser with a time of contract of sale prior to such
effective date, supersede or modify any statement that was made
in the registration statement or prospectus that was part of the
registration statement or made in any such document immediately
prior to such effective date.
II-3
(5) That, for the purpose of determining liability of the
Registrants under the Securities Act of 1933 to any purchaser in
the initial distribution of the securities:
The undersigned Registrants undertake that in a primary offering
of securities of such undersigned Registrants pursuant to the
registration statement, regardless of the underwriting method
used to sell the securities to the purchaser, if the securities
are offered or sold to such purchaser by means of any of the
following communications, such undersigned Registrants will be a
seller to the purchaser and will be considered to offer or sell
such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of such
undersigned Registrants relating to the offering required to be
filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering
prepared by or on behalf of such undersigned Registrants or used
or referred to by such undersigned Registrants;
(iii) The portion of any other free writing prospectus
relating to the offering containing material information about
such undersigned Registrants or their securities provided by or
on behalf of such undersigned Registrants; and
(iv) Any other communication that is an offer in the
offering made by such undersigned Registrants to the purchaser.
(b) The undersigned Registrants hereby further undertake
that, for purposes of determining any liability under the
Securities Act, each filing of the Registrants annual
report pursuant to Section 13(a) or Section 15(d) of
the Exchange Act (and, where applicable, each filing of an
employee benefit plans annual report pursuant to
Section 15(d) of the Exchange Act) that is incorporated by
reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to
directors, officers and controlling persons of the Registrant
pursuant to the foregoing provisions, or otherwise, the
Registrants have been advised that in the opinion of the SEC
such indemnification is against public policy as expressed in
the Securities Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities
(other than the payment by the Registrants of expenses incurred
or paid by a director, officer or controlling person of the
Registrants in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, such
Registrants will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Securities Act and will be governed by the final
adjudication of such issue.
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the registrant certifies that it has reasonable grounds
to believe that it meets all of the requirements for filing on
Form S-3
and has duly caused this post-effective amendment to the
registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of
Las Vegas, State of Nevada, on November 17, 2008.
LAS VEGAS SANDS CORP.
|
|
|
|
By:
|
/s/ WILLIAM
P. WEIDNER
|
Name: William P. Weidner
|
|
|
|
Title:
|
President, Chief Operating Officer,
Secretary and Director
|
Pursuant to the requirements of the Securities Act of 1933, this
post-effective amendment to the registration statement has been
signed by the following persons in the following capacities on
November 17, 2008.
|
|
|
|
|
Signature
|
|
Title
|
|
|
|
|
*
Sheldon
G. Adelson
|
|
Chairman of the Board, Chief Executive Officer,
Treasurer and Director (principal executive officer)
|
|
|
|
/s/ WILLIAM
P. WEIDNER
William
P. Weidner
|
|
President, Chief Operating Officer,
Secretary and Director
|
|
|
|
*
Michael
Quartieri
|
|
Corporate Controller
(principal financial officer)
|
|
|
|
*
Irwin
Chafetz
|
|
Director
|
|
|
|
*
Charles
D. Forman
|
|
Director
|
|
|
|
*
Andrew
R. Heyer
|
|
Director
|
|
|
|
*
George
P. Koo
|
|
Director
|
|
|
|
*
Michael
A. Leven
|
|
Director
|
|
|
|
*
James
L. Purcell
|
|
Director
|
|
|
|
*
Irwin
A. Siegel
|
|
Director
|
|
|
|
|
|
*By:
|
|
/s/ WILLIAM
P. WEIDNER
Attorney-in-fact
|
|
|
II-5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the registrant certifies that it has reasonable grounds
to believe that it meets all of the requirements for filing on
Form S-3
and has duly caused this post-effective amendment on
Form S-3
to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Las Vegas, State of Nevada, on
November 17, 2008.
LAS VEGAS SANDS, LLC
|
|
|
|
By:
|
/s/ Sheldon
G. Adelson
|
Name: Sheldon G. Adelson
|
|
|
|
Title:
|
Chairman and Treasurer
|
POWER OF
ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each individual whose
signature appears below hereby constitutes and appoints Sheldon
G. Adelson, William P. Weidner and J. Alberto Gonzalez-Pita or
any of them his or her true and lawful agent, proxy and attorney
in fact, with full power of substitution and resubstitution, for
him and in his name, place and stead, in any and all capacities,
to (i) act on, sign and file with the Securities and
Exchange Commission any and all amendments (including
post-effective amendments) to this registration statement
together with all schedules and exhibits thereto, (ii) act
on, sign and file such certificates, instruments, agreements and
other documents as may be necessary or appropriate in connection
therewith, (iii) act on and file any supplement to any
prospectus included in this registration statement or any such
amendment, and (iv) take any and all actions which may be
necessary or appropriate in connection therewith, granting unto
such agent, proxy and attorney in fact full power and authority
to do and perform each and every act and thing necessary or
appropriate to be done, as fully for all intents and purposes as
he or she might or could do in person, hereby approving,
ratifying and confirming all that such agents, proxies and
attorneys in fact or any of their substitutes may lawfully do or
cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this
post-effective amendment on
Form S-3
has been signed by the following persons in the following
capacities on November 17, 2008.
|
|
|
|
|
Signature
|
|
Title
|
|
|
|
|
/s/ Sheldon
G. Adelson
Sheldon
G. Adelson
|
|
Chairman of the Board, Treasurer and Director
(principal executive officer)
|
|
|
|
/s/ William
P. Weidner
William
P. Weidner
|
|
President, Chief Operating Officer,
Assistant Secretary and Director
|
|
|
|
/s/ Charles
D. Forman
Charles
D. Forman
|
|
Director
|
|
|
|
/s/ Michael
Quartieri
Michael
Quartieri
|
|
Corporate Controller of Las Vegas Sands Corp,
the sole member of Las Vegas Sands, LLC
(principal financial officer)
|
II-6
EXHIBITS
|
|
|
|
|
Exhibit
|
|
|
No.
|
|
Description
|
|
|
1
|
.1
|
|
Form of underwriting agreement for debt securities.
|
|
1
|
.2
|
|
Form of underwriting agreement for equity securities.
|
|
1
|
.3
|
|
Form of underwriting agreement for depositary shares.
|
|
1
|
.4
|
|
Form of underwriting agreement for purchase contracts.
|
|
1
|
.5
|
|
Form of underwriting agreement for units.
|
|
3
|
.1
|
|
Operating Agreement of Las Vegas Sands, LLC dated July 28,
2005.
|
|
3
|
.2
|
|
First Amendment to the Operating Agreement of Las Vegas Sands,
LLC dated May 23, 2007.
|
|
4
|
.1
|
|
Amended and Restated Articles of Incorporation of Las Vegas
Sands Corp. (incorporated by reference from Exhibit 3.1 to
the Companys Amendment No. 2 to Registration
Statement on
Form S-1
(Reg. No. 333-118827)
dated November 22, 2004).
|
|
4
|
.2
|
|
Amended and Restated By-laws of Las Vegas Sands Corp.
(incorporated by reference from Exhibit 3.2 to the
Companys Quarterly Report on
Form 10-Q
for the period ended September 30, 2007, filed
November 9, 2007).
|
|
4
|
.3
|
|
Form of Specimen Common Stock Certificate of Las Vegas Sands
Corp. (incorporated by reference from Exhibit 4.1 to the
Companys Amendment No. 2 to Registration Statement on
Form S-1
(Reg. No. 333-118827)
dated November 22, 2004).
|
|
4
|
.4
|
|
Certificate of Designations for Series A Cumulative Perpetual
Preferred Stock (incorporated by reference from Exhibit 3.1
to the Companys Current Report on
Form 8-K
filed on November 14, 2008).
|
|
4
|
.5*
|
|
Indenture, dated as of September 30, 2008, between the
Company and U.S. Bank National Association, as trustee (the
Senior Indenture).
|
|
4
|
.6*
|
|
Form of Indenture to be entered into by the Company and U.S.
Bank National Association, as trustee (the Subordinated
Indenture).
|
|
4
|
.7
|
|
Form of Indenture to be entered into by the Company, Las Vegas
Sands, LLC and U.S. Bank National Association, as trustee (the
Senior Guaranteed Debt Security Indenture).
|
|
4
|
.8
|
|
Form of Warrant Agreement.
|
|
4
|
.9
|
|
Form of Warrant.
|
|
4
|
.10
|
|
Form of Deposit Agreement.
|
|
4
|
.11
|
|
Form of Depositary Receipt.
|
|
4
|
.12
|
|
Form of Purchase Contract.
|
|
4
|
.13
|
|
Form of Unit Agreement.
|
|
5
|
.1*
|
|
Opinion of Paul, Weiss, Rifkind, Wharton & Garrison
LLP.
|
|
5
|
.2*
|
|
Opinion of Lionel Sawyer & Collins LTD.
|
|
5
|
.3
|
|
Opinion of Paul, Weiss, Rifkind, Wharton & Garrison
LLP.
|
|
12
|
.1
|
|
Computation of ratio of earnings to fixed charges.
|
|
23
|
.1
|
|
Consent of PricewaterhouseCoopers LLP.
|
|
23
|
.2*
|
|
Consent of Paul, Weiss, Rifkind, Wharton & Garrison
LLP (contained in Exhibit 5.1).
|
|
23
|
.3*
|
|
Consent of Lionel Sawyer & Collins LTD (contained in
Exhibit 5.2).
|
|
23
|
.4
|
|
Consent of Paul, Weiss, Rifkind, Wharton & Garrison
LLP (contained in Exhibit 5.3).
|
|
24
|
.1*
|
|
Powers of attorney related to the Company.
|
|
24
|
.2
|
|
Powers of attorney related to Las Vegas Sands, LLC (included on
the signature page of this
Form S-3
and incorporated herein by reference).
|
|
25
|
.1*
|
|
Statement of eligibility and qualification on
Form T-l
of U.S. Bank National Association with respect to the Company
under the Senior Indenture.
|
|
25
|
.2*
|
|
Statement of eligibility and qualification on
Form T-l
of U.S. Bank National Association with respect to the Company
under the Subordinated Indenture.
|
|
25
|
.3
|
|
Statement of eligibility and qualification on Form T-1 of
U.S. Bank National Association with respect to the Company and
Las Vegas Sands, LLC under the Senior Guaranteed Debt Security
Indenture.
|
|
|
|
* |
|
Previously filed. |
|
|
|
To be filed, if necessary, by a post-effective amendment to the
registration statement or as an exhibit to a document
incorporated by reference herein. |