Filed pursuant to Rule 424(b)(3)
Registration No. 333-60434
PROSPECTUS
$1,005,000,000
LOWE'S COMPANIES, INC.
Liquid Yield Option(TM) Notes due 2021
(Zero Coupon - Senior)
_______________
The Offering:
We issued the LYONs in a private placement on February 16, 2001 with an
issue price of $608.41 per LYON. Selling securityholders will use this
prospectus to resell their LYONs and the shares of common stock issuable upon
conversion and/or redemption of their LYONs at fixed, varying or negotiated
prices as described in the "Plan of Distribution" section beginning on page 38
of this prospectus. The LYONs are zero-coupon debt securities. On February
16, 2021, the maturity date of the LYONs, a holder will receive the principal
amount at maturity of the LYONs, which will be $1,000 per LYON. The issue price
of each LYON represents a yield to maturity of 2.5% per year, calculated from
February 16, 2001. The LYONs are unsecured and unsubordinated and rank equal in
right of payment to all of our existing and future unsecured and unsubordinated
indebtedness.
Convertibility of the LYONs:
Holders may convert their LYONs at any time on or prior to the maturity
date, unless the LYONs have been redeemed or purchased previously, into 16.4480
shares of our common stock. The conversion rate may be adjusted for certain
reasons, but will be adjusted for accrued original issue discount. Our common
stock trades on the New York Stock Exchange under the ticker symbol "LOW." The
last reported sale price of our common stock on the New York Stock Exchange was
$48.04 per share on May 29,2002
Purchase of the LYONs by Lowe's at the Option of the Holder:
Holders may require us to purchase all or a portion of their LYONs on
February 16, 2004, at a price of $655.49 per LYON on February 16, 201 I, at a
price of $780.01 per LYON. We may choose to pay the purchase price of such LYONs
in cash, shares of common stock or a combination of cash and common stock. In
addition, upon a change in control of Lowe's occurring on or before February 16,
2004, holders may require us to purchase all or a portion of their LYONs for
cash.
Redemption of the LYONs at the Option of Lowe's:
We may redeem all or a portion of the LYONs for cash at any time on or
after February 16,2004, at a price equal to the sum of the issue price and
accrued original issue discount of such LYONs on the redemption date.
The LYONs issued in the initial private placement are eligible for
trading in the PORTAL system. LYONs sold using this prospectus, however, will no
longer be eligible for trading in the PORTAL system. We do not intend to list
the LYONS on any other national securities exchange or automated quotation
system.
_______________
Investing in the LYONs involves risks that are described in the "Risk
Factors Relating to the LYONs" section beginning on page of this prospectus.
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Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
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The date of this prospectus is May 29, 2002
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(TM) Trademark of Merrill Lynch & Co., Inc.
TABLE OF CONTENTS
Page
----
SUMMARY ........................................................................... 1
RISK FACTORS RELATING TO THE LYONS ................................................ 5
WARNING REGARDING FORWARD-LOOKING STATEMENTS ...................................... 7
SELECTED CONSOLIDATED FINANCIAL INFORMATION ....................................... 8
USE OF PROCEEDS ................................................................... 9
PRICE RANGE OF COMMON STOCK AND DIVIDEND HISTORY .................................. 9
DESCRIPTION OF LYONs .............................................................. 10
DESCRIPTION OF CAPITAL STOCK ...................................................... 25
CERTAIN UNITED STATES FEDERAL INCOME TAX CONSEQUENCES ............................. 28
SELLING SECURITYHOLDERS ........................................................... 34
PLAN OF DISTRIBUTION .............................................................. 38
WHERE YOU CAN FIND MORE INFORMATION ............................................... 40
INCORPORATION OF INFORMATION FILED WITH THE SEC ................................... 41
LEGAL MATTERS ..................................................................... 42
EXPERTS ........................................................................... 42
SUMMARY
The following summary of material terms of the LYONs appearing
elsewhere in this prospectus is qualified in its entirety by the more detailed
information included elsewhere or incorporated by reference in this
prospectus. You should read the entire prospectus, as well as the information
incorporated by reference, before making an investment decision. When used in
this prospectus, the terms "Lowe's," "we," "our" and "us" refer to Lowe's
Companies, Inc. and its consolidated subsidiaries, unless otherwise specified.
All information in this prospectus reflects a two-for-one split of Lowe's
Common Stock effective June 29, 2001.
Lowe's Companies, Inc.
Lowe's Companies, Inc. is the world's second largest home improvement
retailer competing in a highly fragmented $400 billion industry. We serve more
than seven million do-it-yourself and commercial business customers weekly
through more than 744 stores in 42 states. At February 1, 2002, our retail
square footage totaled approximately 80.7 million square feet. Headquartered
in Wilkesboro, North Carolina, our 56-year-old company employs over 110,000
people. We anticipate opening 123 stores, which includes relocating 7 older,
smaller format stores, under our 2002 expansion plan.
Lowe's gives back to the communities it serves through programs and
volunteer involvement. Lowe's contributes regularly to nonprofit organizations
in towns and cities throughout Lowe's territory. Through the "Lowe's Heroes"
programs and Lowe's Home Safety Council, Lowe's provides civic groups help
with public safety projects and shares important home safety and fire
prevention information with neighborhoods across the country.
Lowe's is incorporated in North Carolina and has been a publicly held
company since October 10, 1961. Our stock is listed on the New York Stock
Exchange, with shares trading under the ticker symbol "LOW."
The Offering
LYONS ................................ Selling securityholders may sell up to
$1,005,000,000 aggregate principal
amount at maturity of LYONs due
February 16, 2021. We will not pay any
interest on the LYONs prior to
maturity. Each LYON was issued at a
price of $608.41 per LYON and will have
a principal amount at maturity of
$1,000.
Maturity of the LYONs ................ February 16, 2021.
Yield to Maturity of LYONs ........... 2.5% per year, computed on a semiannual
bond equivalent basis and calculated
from February 16, 2001.
Original Issue Discount ............. We offered our LYONs at an issue price
significantly below the principal amount
at maturity of the LYONs. This original
issue discount will accrue daily at a
rate of 2.5% per year from February 16,
2001, calculated on a semiannual bond
equivalent basis at the yield to
maturity of the LYONs, using a 360-day
year comprised of twelve 30-day months.
You should be aware that, although we
will not pay interest on the LYONs, U.S.
holders must include original issue
discount, as it accrues, in their gross
income for United States federal income
tax purposes. See "Certain United States
Federal Income Tax Consequences."
Conversion Rights ................... Holders may convert the LYONs at any
time on or before the maturity date,
unless the LYONs have been redeemed or
purchased previously. For each LYON
converted, we will deliver 16.4480
shares of common stock (including rights
associated with our shareholder rights
plan). The conversion rate may be
adjusted for certain reasons, but will
not be adjusted for accrued original
issue discount. Upon conversion, the
holder will not receive any cash payment
representing accrued original issue
discount; accrued original issue
discount will be deemed paid by the
shares of common stock received by the
holder of LYONs on conversion.
Ranking ............................. The LYONs are unsecured obligations and
rank equal in right of payment to all of
our other unsecured and unsubordinated
indebtedness. The LYONs are effectively
subordinated to our secured indebtedness
to the extent of the security. Also, the
LYONs are effectively subordinated to
the indebtedness and other liabilities
of our subsidiaries.
At February 1, 2002, we had $166.4
million of secured indebtedness
outstanding, $3,260.1 million of
unsecured indebtedness outstanding and
$466.8 million of capital leases. At
February 1, 2002, our subsidiaries had
$125.2 million of secured unsubordinated
indebtedness outstanding.
Sinking Fund ........................ None.
2
Redemption of LYONs at Our Option ... We may redeem for cash all or a portion
of the LYONs at any time on or after
February 16, 2004, at redemption prices
equal to the sum of the issue price and
accrued original issue discount for the
LYONs on the applicable redemption date.
See "Description of LYONS-Redemption of
LYONs at Our Option."
Purchase of the LYONs by Lowe's at Holders may require us to purchase all
the Option of the Holder ............. or a portion of their LYONs on each of
the following dates at the following
prices, which are equal to the sum of
the issue price and accrued original
issue discount for the LYONs on such
dates:
. on February 16, 2004 at a price of
$655.49 per LYON; and
. on February 16, 2011 at a price of
$780.01 per LYON.
We may pay the purchase price in cash or
shares of our common stock or in a
combination of cash and shares of our
common stock. See "Description of LYONs
- Purchase of LYONs at the Option of the
Holder."
Change in Control ................... Upon a change in control of Lowe's
occurring on or before February 16,
2004, the holders may require us to
purchase for cash all or a portion of
their LYONs at a price equal to the sum
of the issue price and accrued original
issue discount for the LYONs on the date
of purchase. Although not anticipated,
we may not have sufficient cash to
redeem the LYONs upon a change of
control.
Optional Conversion to Semiannual From and after the occurrence of a Tax
Coupons Notes Upon Tax Event ......... Event, at our option, interest in lieu
of future accrued original issue
discount will accrue on each LYON from
the option exercise date at 2.5% per
year on the restated principal amount
and will be payable semiannually.
In such event, the redemption price,
purchase price and change in control
purchase price will be adjusted, as
described herein. However, there will be
no change in the holder's conversion
rights. See "Description of
LYONS-Optional Conversion to Semiannual
Coupon Notes upon Tax Event."
DTC Eligibility ..................... The LYONs were issued in fully
registered book- entry form and are
represented by permanent global LYONs
without coupons. DTC or its nominee is
the sole registered holder of the global
LYONs. Beneficial interests in global
LYONs are shown on, and transfers
thereof will be effected only through,
3
records maintained by DTC and its direct
and indirect participants, and your
interest in any global LYON may not be
exchanged for certificated LYONs, except
in limited circumstances described
herein.
Use of Proceeds ...................... We will not receive any of the proceeds
from the sale by any selling
securityholder of the LYONs or the
common stock issuable upon conversion
and/or redemption of the LYONs. See "Use
of Proceeds."
Trading .............................. We do not intend to list the LYONs on
any national securities exchange. The
LYONs issued in the initial private
placement are eligible for trading in
the PORTAL system. LYONs sold using this
prospectus, however, will no longer be
eligible for trading in the PORTAL
system. Our common stock is traded on
the New York Stock Exchange, under the
symbol "LOW."
4
RISK FACTORS RELATING TO THE LYONS
You should carefully consider the following information with the other
information contained in or incorporated by reference into this prospectus
before purchasing the LYONs.
The covenants applicable to the LYONs do not require minimum financial results
or prevent Lowe's from incurring additional debt or paying extraordinary
dividends and may not afford protection to holders of LY ONs against some
transactions, such as recapitalizations or incurrence of additional
indebtedness.
The holders of LYONs may require us to purchase the LYONs upon the
occurrence of certain change-in-control events described under "Description of
LYONs -- Change in Control Permits Purchase of LYONs by Lowe's at the Option of
the Holder" on page 17. The covenants applicable to the LYONs do not restrict us
from incurring indebtedness or paying extraordinary dividends. Further, the
LYONs do not afford a holder protection under maintenance or other covenants
relating to our consolidated financial position or results of operations. Our
ability to recapitalize or incur additional indebtedness could have the effect
of diminishing our ability to make payments on the LYONs when due. In addition,
certain transactions, including certain recapitalizations, would not constitute
a change in control with respect to the change in control purchase feature of
the LYONs, even though these transactions may increase the amount of our (or our
subsidiaries') outstanding indebtedness.
An active trading market for LYONs may not develop, which could reduce their
value.
The LYONs comprise a new issue of securities for us for which there is
currently no public market. The LYONs issued in the initial private placement
are eligible for trading in the PORTAL system. LYONs sold using this prospectus,
however, will no longer be eligible for trading in the PORTAL system. We do not
intend to list the LYONs on any other national securities exchange or automated
quotation system. If the LYONs are traded, they may trade at a discount from
their initial offering price, depending on prevailing interest rates, the market
for similar securities, the price of our common stock, our performance and other
factors. We do not know whether an active trading market will develop for the
LYONs. To the extent that an active trading market does not develop, the price
at which you may be able to sell the LYONs, if at all, may be less than the
price you pay for them.
You should consider the United States Federal Income Tax Consequences of owning
LYONs in the context of your own tax position.
Our tax counsel has concluded that the LYONs are characterized as
indebtedness for United States federal income tax purposes. In addition, the
LYONs were issued with original issue discount. You will be required to include
original issue discount in income over the term of the LYONs as ordinary income,
in advance of the receipt of the cash, or other property, attributable thereto.
You will recognize gain or loss on the sale or other disposition of a
LYON in an amount equal to the difference between the amount realized on such a
transaction, and your adjusted tax basis in the LYON. Any gain or loss so
recognized by you generally will be capital gain or loss. However, it is
possible that holders may be precluded by certain rules regarding
recapitalizations from recognizing any capital loss with respect to a conversion
or redemption of the LYONs in exchange for shares of our common stock. Holders
of LYONs should consult their tax advisors regarding the deductibility of any
such capital loss. A summary of the federal income tax consequences of ownership
of the LYONs is described in this prospectus under the heading "Certain United
States Federal Income Tax Consequences" beginning on page 28.
5
We may not have the funds necessary to finance a purchase of LYONs at the option
of the holder or upon a change in control of Lowe's.
On February 16, 2004 and February 16, 2011 or in the event of a change
in control of Lowe's occurring on or before February 16, 2004, holders of LYONs
have the right to require us to purchase their LYONs. Although not anticipated,
we may not have sufficient funds at those times to make any required purchase of
LYONs. In such event, holders would not be able to sell their LYONs to Lowe's
for cash. In addition, corporate events involving fundamental changes to our
capital structure, such as leveraged recapitalizations that would increase the
level of our indebtedness or that of our subsidiaries, would not necessarily
constitute a change in control for these purposes. See "Description of LYONs --
Purchase of LYONs at the Option of the Holder" on page 14 and "--Change in
Control Permits Purchase of LYONs by Lowe's at the Option of the Holder" on page
17.
6
WARNING REGARDING FORWARD-LOOKING STATEMENTS
This Prospectus may include "forward-looking statements" within the
meaning of Section 27A of the Securities Act of 1933 and Section 21E of the
Securities Exchange Act of 1934. Although we believe that the expectations
reflected in such forward-looking statements are reasonable, we can give no
assurance that such expectations will prove to be correct. Some of the things
that could cause our actual results to differ substantially from our
expectations are:
. Our sales are dependent upon the general economic health of the
country, variations in the number of new housing starts and
existing home sales, the level of repairs, remodeling and
additions to existing homes, commercial building activity, and the
availability and cost of financing. An economic downturn affecting
consumer confidence in making housing and home improvement
expenditures, could affect sales because a portion of our
inventory is purchased for discretionary projects, which can be
delayed.
. Our expansion strategy may be impacted by environmental
regulations, local zoning issues and delays, availability and
development of land, and more stringent land use regulations than
we have traditionally experienced as well as the availability of
sufficient labor to facilitate our growth.
. Many of our products are commodities whose prices fluctuate
erratically within an economic cycle, a condition especially true
of lumber and plywood.
. Our business is highly competitive, and as we expand to larger
markets we may face new forms of competition which do not exist in
some of the markets we have traditionally served.
. The ability to continue our everyday competitive pricing strategy
and provide the products that customers want depends on our
vendors providing a reliable supply of inventory at competitive
prices.
. On a short-term basis, weather may affect sales of product groups
like nursery, lumber, and building materials.
We undertake no obligation to publicly update or revise any
forward-looking statements, whether as a result of new information, future
events or otherwise.
You should carefully read this prospectus and the documents
incorporated by reference in their entirety. They contain information that you
should consider when making your investment decision.
You should rely only on the information contained or incorporated by
reference in this prospectus. We have not authorized any other person to
provide you with different information. If anyone provides you with different
or inconsistent information, you should not rely on it. You should assume that
the information appearing in this prospectus, as well as information that we
previously filed with the SEC and incorporated by reference, is accurate as of
the date on the front cover of this prospectus only. Our business, financial
condition, results of operations and prospects may have changed since that
date.
7
SELECTED CONSOLIDATED FINANCIAL INFORMATION
We have derived the following results of operations and balance sheet
data for and as of the end of fiscal years 1997, 1998, 1999, 2000 and 2001 from
our audited consolidated financial statements. All per share amounts have been
adjusted to reflect a two-for-one stock split of Lowe's Common Stock effective
June 29, 2001. You should read the information set forth below in conjunction
with our consolidated financial statements and related notes and other
financial information incorporated by reference in this offering memorandum.
See "Incorporation of Information Filed with the SEC" on page 41.
For the Fiscal Year Ended
---------------------------------------------------------------------
Jan. 30, Jan. 29, Jan. 28, Feb. 2, Feb. 1,
1998 1999 2000 2001 2002
---- ---- ---- ---- ----
(dollars in thousands except per share amounts and ratios)
Results of Operations Data:
Net sales......................... $ 11,108,378 $13,330,540 $15,905,595 $18,778,559 $22,111,108
Gross margin...................... 2,953,046 3,573,895 4,380,582 5,290,768 6,367,841
Operating income.................. 670,246 868,307 1,147,969 1,402,265 1,797,788
Net earnings...................... 383,030 500,374 672,795 809,871 1,023,262
Earnings per share-diluted........ 0.52 0.67 0.88 1.05 1.30
Selected Operating Data:
Number of stores open at end of
period.......................... 477 520 576 650 744
Selling square footage at end of
period (in thousands):.......... 39,861 47,795 56,982 67,775 80,702
Same store sales change........... 4% 6% 6% 1% 2%
Balance Sheet Data (at period end):
Total assets...................... $ 5,861,790 $ 7,086,882 $ 9,006,757 $11,358,167 $13,736,219
Long-term debts, excluding
current portion................. 1,191,406 1,364,278 1,726,579 2,697,669 3,734,011
Shareholders' equity.............. $ 2,978,004 $ 3,619,767 $ 4,695,471 $ 5,494,885 $ 6,674,442
Other Data:
Ratio of earnings to fixed
charges (1)..................... 5.95x 5.86x 6.50x 6.31x 6.40x
________________
(1) The ratio of earnings to fixed charges is computed by dividing earnings
by fixed charges. For this purpose, "earnings" includes pretax earnings
plus fixed charges. "Fixed charges" includes interest expense,
capitalized interest and the portion of rental expense that is
representative of the interest factor in these rentals.
8
USE OF PROCEEDS
We will not receive any of the proceeds from the sale of the LYONs or
shares of common stock by the selling securityholders. See "Selling
Securityholders" for a list of those entities receiving proceeds from sales of
LYONs.
PRICE RANGE OF COMMON STOCK AND DIVIDEND HISTORY
Our common stock is traded on the New York Stock Exchange under the
symbol "LOW."
Set forth below are the high and low sales prices for Lowe's common
stock as reported on the New York Stock Exchange composite transaction reporting
system and the dividends we paid on such shares for each quarterly period during
the fiscal years 2000, 2001 and 2002. The information set forth below has been
adjusted to reflect a two-for-one split of Lowe's common stock effective June
29,2001.
Dividends
High Low Per Share
------- ------- ---------
Fiscal 2002
2/nd/ Quarter (through May 29,2002).......................... $ 49.99 $ 41.27 $ 0.0000
1/st/ Quarter................................................ 47.78 41.35 0.0200
Fiscal 2001
4/th/ Quarter................................................ $ 48.88 $ 33.70 $ 0.0200
3/rd/ Quarter................................................ 39.30 24.99 0.0200
2/nd/ Quarter................................................ 39.86 30.30 0.0200
1/st/ Quarter................................................ 32.30 24.79 0.0175
Fiscal 2000
4/th/ Quarter................................................ $ 27.75 $ 18.88 $ 0.0175
3/rd/ Quarter................................................ 27.25 17.13 0.0175
2/nd/ Quarter................................................ 26.35 20.19 0.0175
1/st/ Quarter................................................ 33.63 20.38 0.0175
Our payment of dividends in the future will be determined by our board
of directors and will depend on business conditions, our financial condition and
earnings and other factors.
9
DESCRIPTION OF LYONs
The following is a description of the material features of the LYONs.
We issued the LYONs under an indenture, dated as of February 16, 2001, between
us and The Bank of New York, as trustee. The following summary does not purport
to be complete and is subject to, and qualified by reference to, all of the
provisions of the indenture, which we urge you to read because they define your
rights as a LYONs holder. As used in this description of LYONs, the words "we,"
"us," "our" or "Lowe's" refer only to Lowe's and do not include any current
or future subsidiary of Lowe's.
General
The LYONs are limited to $1,005,000,000 aggregate principal amount at
maturity. The LYONs will mature on February 16,2021. The principal amount at
maturity of each LYON will be $1,000. The LYONs will be payable at the principal
corporate trust office of the paying agent, which initially will be an office or
agency of the trustee, or an office or agency maintained by us for such purpose,
in the Borough of Manhattan, The City of New York.
The LYONs were offered at a substantial discount from their $1,000
principal amount at maturity. The LYONs were issued at an issue price of $608.41
per LYON. We will not make periodic payments of interest on the LYONs. However,
the LYONs will accrue original issue discount while they remain outstanding.
Original issue discount is the difference between the issue price and the stated
principal amount at maturity of a LYON. Original issue discount will accrue at a
rate of 2.5% per year, beginning on the date of original issuance of the LYONs.
The calculation of the accrual of original issue discount will be on a
semiannual bond equivalent basis, using a 360-day year composed of twelve 30-day
months.
Original issue discount will cease to accrue on a LYON upon its
maturity, conversion, purchase by us at the option of a holder or redemption. We
may not reissue a LYON that has matured or been converted, purchased by us at
your option, redeemed or otherwise cancelled, except for registration of
transfer, exchange or replacement of such LYON.
LYONs may be presented for conversion at the office of the conversion
agent and for exchange or registration of transfer at the office of the
registrar. The conversion agent and the registrar shall initially be the
trustee. No service charge will be made for any registration of transfer or
exchange of LYONs. However, we may require the holder to pay any tax, assessment
or other governmental charge payable as a result of such transfer or exchange.
Ranking of the LYONs
The LYONs are unsecured obligations and rank equal in right of payment
to all of our other unsecured and unsubordinated indebtedness. The LYONs are
effectively subordinated to our secured indebtedness to the extent of the
security. Also, the LYONs are effectively subordinated to the indebtedness and
other liabilities of our subsidiaries. At February 1, 2002, we had $166.4
million of secured indebtedness outstanding, $3,260.1 million of unsecured
indebtedness outstanding and $466.8 million of capital leases. At February 1,
2002, our subsidiaries had $125.2 million of secured unsubordinated indebtedness
outstanding.
Conversion Rights
A holder may convert a LYON, in multiples of $1,000 principal amount
at maturity, into common stock at any time before the close of business on
February 16, 2021. However, a holder may convert a
10
LYON only until the close of business on the redemption date if we call a LYON
for redemption. A LYON for which a holder has delivered a purchase notice or a
change in control purchase notice requiring us to purchase the LYONs may be
surrendered for conversion only if such notice is withdrawn in accordance with
the indenture.
The conversion rate is 16.4480 shares of common stock per LYON, subject
to adjustment upon the occurrence of certain events described below. A holder of
a LYON otherwise entitled to a fractional share will receive cash equal to the
applicable portion of the then current sale price of our common stock on the
trading day immediately preceding the conversion date.
To convert a LYON into shares of common stock, a holder must:
. complete and manually sign a conversion notice, a form of which is
on the back of the LYON, and deliver the conversion notice to the
conversion agent;
. surrender the LYON to the conversion agent;
. if required by the conversion agent, furnish appropriate
endorsements and transfer documents; and
. if required, pay all transfer or similar taxes.
On conversion of a LYON, a holder will not receive any cash payment of
interest representing accrued original issue discount. Delivery to the holder of
the full number of shares of common stock into which the LYON is convertible,
together with any cash payment of such holder's fractional shares, will be
deemed:
. to satisfy our obligation to pay the principal amount at maturity
of the LYON; and
. to satisfy our obligation to pay accrued original issue discount
attributable to the period from the issue date through the
conversion date.
As a result, accrued original issue discount is deemed paid in full rather than
cancelled, extinguished or forfeited.
If semiannual interest is payable to holders of LYONs due to the
occurrence of a Tax Event and such LYONs are converted after a record date and
prior to the next interest payment date for the LYONs, holders of such LYONs on
the record date will receive the semi-annual interest payable on such LYONs on
the corresponding interest payment date notwithstanding the conversion and such
LYONs upon surrender must be accompanied by funds equal to the amount of
semiannual interest payable on the principal amount of LYONs so converted,
unless such LYONs have been called for redemption, in which case no such payment
shall be required.
The conversion rate will not be adjusted for accrued original issue
discount. A certificate for the number of full shares of common stock into which
any LYON is converted, together with any cash payment for fractional shares,
will be delivered through the conversion agent as soon as practicable following
the conversion date. For a discussion of the tax treatment of a holder receiving
shares of our common stock upon surrendering LYONs for conversion, see "Certain
United States Federal Income Tax Consequences--U.S. Holders--Sale, Exchange,
Conversion or Redemption."
11
We will adjust the conversion rate for:
. dividends or distributions on our common stock payable in our
common stock or other capital stock of Lowe's;
. subdivisions, combinations or certain reclassifications of our
common stock;
. distributions to all holders of our common stock of certain rights
to purchase our common stock for a period expiring within 60 days
at less than the then current sale price; and
. distributions to the holders of our common stock of a portion of
our assets (including shares of capital stock of a subsidiary) or
debt securities issued by us or certain rights to purchase our
securities (excluding cash dividends or other cash distributions
from current or retained earnings unless the annualized amount
thereof per share exceeds 5% of the sale price of our common
stock on the day preceding the date of declaration of such
dividend or other distribution).
However, no adjustment to the conversion rate need be made if holders
of the LYONs may participate in the transaction without conversion or in
certain other cases.
In addition, the indenture provides that upon conversion of the LYONs,
the holders of such LYONs will receive, in addition to the shares of common
stock issuable upon such conversion, the rights related to such common stock
pursuant to our existing and any future shareholder rights plan, whether or not
such rights have separated from the common stock at the time of such conversion.
However, there shall not be any adjustment to the conversion privilege or
conversion rate as a result of
. the issuance of the rights;
. the distribution of separate certificates representing the rights;
. the exercise or redemption of such rights in accordance with any
rights agreement; or
. the termination or invalidation of the rights.
The indenture permits us to increase the conversion rate from time to
time.
Holders of the LYONs may, in certain circumstances, be deemed to have
received a distribution subject to federal income tax as a dividend upon:
. a taxable distribution to holders of common stock which results in
an adjustment of the conversion rate;
. an increase in the conversion rate at our discretion; or
. failure to adjust the conversion rate in some instances.
See "Certain United States Federal Income Tax Consequences--U.S.
Holders--Constructive Dividend."
If we are a party to a consolidation, merger or binding share exchange
or a transfer of all or substantially all of our assets, the right to convert a
LYON into common stock may be changed into a
12
right to convert it into the kind and amount of securities, cash or other assets
of Lowe's or another person which the holder would have received if the holder
had converted the holder's LYON immediately prior to the transaction.
Redemption of LYONs at Our Option
No sinking fund is provided for the LYONs. Prior to February 16, 2004, we
cannot redeem the LYONs at our option. Beginning on February 16,2004, we may
redeem the LYONs for cash, as a whole at any time or from time to time in part.
We will give not less than 30 days' or more than 60 days' notice of redemption
by mail to holders of LYONs.
If redeemed at our option, the LYONs will be redeemed at a price equal to
the sum of the issue price and accrued original issue discount on such LYONs as
of the applicable redemption date. The table below shows the redemption prices
of a LYON on February 16,2004, at each February thereafter prior to maturity and
at maturity on February 16, 2021. In addition, the redemption price of a LYON
that is redeemed between the dates listed below would include an additional
amount reflecting the additional accrued original issue discount that has
accrued on such LYON since the immediately preceding date in the table below.
Redemption Date
--------------- (1) (2) (3)
LYON Accrued Redemption
Issue Price Original Issue Discount Price (1) + (2)
----------- ----------------------- ---------------
February 16:
2004 ........................ $608.41 $ 47.08 $ 655.49
2005 ........................ 608.41 63.57 671.98
2006 ........................ 608.41 80.48 688.89
2007 ........................ 608.41 97.81 706.22
2008 ........................ 608.41 115.57 723.98
2009 ........................ 608.41 133.78 742.19
2010 ........................ 608.41 152.46 760.87
2011 ........................ 608.41 171.60 780.01
2012 ........................ 608.41 191.22 799.63
2013 ........................ 608.41 211.33 819.74
2014 ........................ 608.41 231.96 840.37
2015 ........................ 608.41 253.10 861.51
2016 ........................ 608.41 274.77 883.18
2017 ........................ 608.41 296.99 905.40
2018 ........................ 608.41 319.76 928.17
2019 ........................ 608.41 343.11 951.52
2020 ........................ 608.41 367.05 975.46
At stated maturity .......... 608.41 391.59 1,000.00
If we convert the LYONs to semiannual coupon notes following the occurrence
of a Tax Event, the notes will be redeemable at the restated principal amount
plus accrued and unpaid interest from the date of the conversion through the
redemption date. However, in no event may the LYONs be redeemed prior to
February 16,2004. For more information on this optional conversion, see
"-Optional Conversion to Semiannual Coupon Notes upon Tax Event."
If less than all of the outstanding LYONs are to be redeemed, the trustee
will select the LYONs to be redeemed in principal amounts at maturity of $1,000
or integral multiples of $1,000. In this case, the trustee may select the LYONs
by lot, pro rata or by any other method the trustee considers fair and
appropriate. If a portion of a holder's LYONs is selected for partial redemption
and the holder converts a portion of the LYONs, the converted portion will be
deemed to be the portion selected for redemption.
13
Purchase of LYONs at the Option of the Holder
On the purchase dates of February 16, 2004 and February 16, 2011, we may,
at the option of the holder, be required to purchase any outstanding LYON for
which a written purchase notice has been properly delivered by the holder and
not withdrawn, subject to certain additional conditions. Holders may submit
their LYONs for purchase to the paying agent at any time from the opening of
business on the date that is 20 business days prior to such purchase date until
the close of business on the business day immediately preceding such purchase
date.
The purchase price of a LYON will be:
. $655.49 per LYON on February 16,2004; and
. $780.01 per LYON on February 16, 2011.
The above purchase prices reflect a price equal to the sum of the issue
price and accrued original issue discount on such LYONs as of the applicable
purchase date.
We may, at our option, elect to pay the purchase price in cash or shares of
common stock, or any combination thereof. For a discussion of the tax treatment
of a holder receiving cash, common stock or any combination thereof, see
"Certain United States Federal Income Tax Consequences-U.S. Holders-Sale,
Exchange, Conversion or Redemption."
If prior to a purchase date the LYONs have been converted to semiannual
coupon notes following the occurrence of a Tax Event, the purchase price will be
equal to the restated principal amount plus accrued and a unpaid interest from
the date of the conversion to the purchase date. For more information on this
optional conversion, see "-Optional Conversion to Semiannual Coupon Notes upon
Tax Event."
We will be required to give notice on a date not less than 20 business days
prior to each purchase date to all holders at their addresses shown in the
register of the registrar, stating among other things:
. the amount of the purchase price;
. whether we will pay the purchase price of LYONs in cash or common
stock or any combination thereof, specifying the percentages of each;
. if we elect to pay in common stock, the method of calculating the
market price of the common stock; and
. the procedures that holders must follow to require us to purchase
their LYONs.
The purchase notice given by each holder electing to require us to purchase
LYONs shall state:
. the certificate numbers of the holder's LYONs to be delivered for
purchase;
. the portion of the principal amount at maturity of LYONs to be
purchased, which must be $1,000 or an integral multiple of $1,000;
. that the LYONs are to be purchased by us pursuant to the applicable
provisions of the LYONs; and
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. in the event we elect, pursuant to the notice that we are required to
give, to pay the purchase price in common stock, in whole or in part,
but the purchase price is ultimately to be paid to the holder entirely
in cash because any of the conditions to payment of the purchase price
or portion of the purchase price in common stock is not satisfied
prior to the close of business on the purchase date, as described
below, whether the holder elects:
(1) to withdraw the purchase notice as to some or all of the LYONs to
which it relates, or
(2) to receive cash in respect of the entire purchase price for all
LYONs or portions of LYONs subject to such purchase notice.
If the purchase price for the LYONs subject to the purchase notice is
ultimately to be paid to a holder entirely in cash because we have not satisfied
one or more of the conditions to payment of the purchase price in common stock
prior to the close of business on the purchase date, a holder shall be deemed to
have elected to receive cash in respect of the entire purchase price for all
such LYONs unless such holder has properly notified us of its election to
withdraw the purchase notice. For a discussion of the tax treatment of a holder
receiving cash instead of common stock, see "Certain United States Federal
Income Tax Consequences-U.S.Holders-Sale, Exchange, Conversion or Redemption."
Any purchase notice may be withdrawn by the holder by a written notice of
withdrawal delivered to the paying agent prior to the close of business on the
business day prior to the purchase date.
The notice of withdrawal shall state:
. the principal amount at maturity being withdrawn;
. the certificate numbers of the LYONs being withdrawn; and
. the principal amount at maturity, if any, of the LYONs that remains
subject to the purchase notice.
If we elect to pay the purchase price, in whole or in part, in shares of
our common stock, the number of such shares we deliver shall be equal to the
portion of the purchase price to be paid in common stock divided by the market
price of a share of common stock.
We will pay cash based on the market price for all fractional shares of
common stock in the event we elect to deliver common stock in payment, in whole
or in part, of the purchase price. See "Certain United States Federal Income Tax
Consequences-U.S.Holders-Sale, Exchange, Conversion or Redemption."
The market price of our common stock shall be an amount equal to the
average of the sale prices of our common stock for the five-trading-day period
ending on the third business day prior to the applicable purchase date, or, if
such business day is not a trading day, then on the last trading day prior to
such business day, appropriately adjusted to take into account any occurrence.
See "-Conversion Rights" for a description of the manner in which the sales
price of our common stock is determined.
Because the market price of our common stock is determined prior to the
applicable purchase date, holders of LYONs bear the market risk with respect to
the value of the common stock to be received from the date such market price is
determined to such purchase date. We may pay the purchase price or
15
any portion of the purchase price in common stock only if the information
necessary to calculate the market price is published in a daily newspaper of
national circulation.
Upon determination of the actual number of shares of common stock in
accordance with the foregoing provisions, we will promptly issue a press release
and publish such information on our website.
Our right to purchase LYONs, in whole or in part, with common stock is
subject to our satisfying various conditions, including:
. listing the common stock on the principal United States securities
exchange on which our common stock is then listed or, if not so
listed, on Nasdaq;
. the registration of the common stock under the Securities Act and the
Exchange Act, if required; and
. any necessary qualification or registration under applicable state
securities law or the availability of an exemption from such
qualification and registration.
If such conditions are not satisfied with respect to a holder prior to the
close of business on the purchase date, we will pay the purchase price of the
LYONs of the holder entirely in cash. See "Certain United States Federal Income
Tax Consequences-U.S.Holders-Sale, Exchange, Conversion or Redemption." We may
not change the form or components or percentages of components of consideration
to be paid for the LYONs once we have given the notice that we are required to
give to holders of LYONs, except as described in the first sentence of this
paragraph.
In connection with any purchase offer, we will:
. comply with the provisions of Rule 13e-4,Rule 14e-1 and any other
tender offer rules under the Exchange Act which may then be
applicable; and
. file Schedule TO or any other required schedule under the Exchange
Act.
Payment of the purchase price for a LYON for which a purchase notice has
been delivered and not validly withdrawn is conditioned upon delivery of the
LYON, together with necessary endorsements, to the paying agent at any time
after delivery of the purchase notice. Payment of the purchase price for the
LYON will be made as soon as practicable following the later of the purchase
date or the time of delivery of the LYON.
If the paying agent holds money or securities sufficient to pay the
purchase price of the LYON on the business day following the purchase date in
accordance with the terms of the indenture, then, immediately after the purchase
date, the LYON will cease to be outstanding and accrued original issue discount
on such LYON will cease to accrue, whether or not the LYON is delivered to the
paying agent. Thereafter, all other rights of the holder shall terminate, other
than the right to receive the purchase price upon delivery of the LYON.
No LYONs may be purchased for cash at the option of holders if there has
occurred and is continuing an event of default with respect to the LYONs, other
than a default in the payment of the purchase price with respect to such LYONs.
16
Change in Control Permits Purchase of LYONs by Lowe's at the Option of the
Holder
In the event of a change in control occurring on or prior to February
16,2004,each holder will have the right, at the holder's option, subject to the
terms and conditions of the indenture, to require us to purchase for cash all or
any portion of the holder's LYONs. However, the principal amount at maturity
submitted for purchase by a holder must be $1,000 or an integral multiple of
$1,000.
We will be required to purchase the LYONs as of a date no later than 35
business days after the occurrence of such change in control at a cash price
equal to the sum of the issue price and accrued original issue discount on such
LYON on such date of purchase. Although not anticipated, we may not have
sufficient cash to redeem the LYONs upon a change of control.
If prior to such date of purchase upon a change in control the LYONs have
been converted to semiannual coupon notes following the occurrence of a Tax
Event, we will be required to purchase the notes at a cash price equal to the
restated principal amount plus accrued and unpaid interest from the date of the
conversion to such date of purchase.
Within 15 days after the occurrence of a change in control, we are
obligated to mail to the trustee and to all holders of LYONs at their addresses
shown in the register of the registrar and to beneficial owners as required by
applicable law a notice regarding the change in control, which notice shall
state, among other things:
. the events causing a change in control;
. the date of such change in control;
. the last date on which the purchase right may be exercised;
. the change in control purchase price;
. the change in control purchase date;
. the name and address of the paying agent and the conversion agent;
. the conversion rate and any adjustments to the conversion rate
resulting from such change in control;
. that LYONs with respect to which a change in control purchase notice
is given by the holder may be converted only if the change in control
purchase notice has been withdrawn in accordance with the terms of the
indenture; and
. the procedures that holders must follow to exercise these rights.
To exercise this right, the holder must deliver a written notice to the
paying agent prior to the close of business on the business day prior to the
change in control purchase date. The required purchase notice upon a change in
control shall state:
. the certificate numbers of the LYONs to be delivered by the holder;
. the portion of the principal amount at maturity of LYONs to be
purchased, which portion must be $1,000 or an integral multiple of
$1,000; and
17
. that we are to purchase such LYONs pursuant to the applicable provisions
of the LYONs.
Any such change in control purchase notice may be withdrawn by the holder
by a written notice of withdrawal delivered to the paying agent prior to the
close of business on the business day prior to the change in control purchase
date.
The notice of withdrawal shall state:
. the principal amount at maturity being withdrawn;
. the principal amount at maturity, if any, of the LYONs that remain
subject to a change in control purchase notice; and
. the certificate numbers of the LYONs being withdrawn.
Payment of the change in control purchase price for a LYON for which a
change in control purchase notice has been delivered and not validly withdrawn
is conditioned upon delivery of the LYON, together with necessary endorsements,
to the paying agent at any time after the delivery of such change in control
purchase notice. Payment of the change in control purchase price for such LYON
will be made promptly following the later of the change in control purchase date
or the time of delivery of such LYON.
If the paying agent holds money sufficient to pay the change in control
purchase price of the LYON on the business day following the change in control
purchase date in accordance with the terms of the indenture, then, immediately
after the change in control purchase date, accrued original issue discount on
the LYON will cease to accrue, whether or not the LYON is delivered to the
paying agent. Thereafter, all other rights of the holder shall terminate, other
than the right to receive the change in control purchase price upon delivery of
the LYON.
Under the indenture, a "change in control" of Lowe's is deemed to have
occurred at such time as:
. any person, including its affiliates and associates, other than Lowe's,
its subsidiaries or their employee benefit plans, files a Schedule 13D or
Schedule TO (or any successor schedule, form or report under the Exchange
Act) disclosing that such person has become the beneficial owner of 50%
or more of the aggregate voting power of our common stock and other
capital stock with equivalent voting rights, or other capital stock into
which the common stock is reclassified or changed, with certain
exceptions; or
. there shall be consummated any consolidation or merger of Lowe's pursuant
to which the common stock would be converted into cash, securities or
other property, in each case other than a consolidation or merger of
Lowe's in which the holders of the common stock and other capital stock
with equivalent voting rights, immediately prior to the consolidation or
merger have, directly or indirectly, at least a majority of the total
voting power in the aggregate of all classes of capital stock of the
continuing or surviving corporation immediately after the consolidation
or merger.
The indenture does not permit our board of directors to waive our
obligation to purchase LYONs at the option of holders in the event of a change
in control.
18
In connection with any purchase offer in the event of a change in control,
we will:
. comply with the provisions of Rule 13e-4, Rule 14e-1 and any other tender
offer rules under the Exchange Act which may then be applicable; and
. file Schedule TO or any other required schedule under the Exchange Act.
The change in control purchase feature of the LYONs may, in certain
circumstances, make more difficult or discourage a takeover of Lowe's. The
change in control purchase feature, however, is not the result of our knowledge
of any specific effort:
. to accumulate shares of common stock:
. to obtain control of us by means of a merger, tender offer, solicitation
or otherwise; or
. part of a plan by management to adopt a series of anti-takeover
provisions.
Instead, the change in control purchase feature is a standard term
contained in other LYONs offerings that have been marketed by Merrill Lynch,
Pierce, Fenner & Smith Incorporated. The terms of the change in control purchase
feature resulted from negotiations between Merrill Lynch, Pierce, Fenner & Smith
Incorporated and us.
We could, in the future, enter into certain transactions, including certain
recapitalizations, that would not constitute a change in control with respect to
the change in control purchase feature of the LYONs but that would increase the
amount of our or our subsidiaries' outstanding indebtedness.
No LYONs may be purchased at the option of holders upon a change in control
if there has occurred and is continuing an event of default with respect to the
LYONs, other than a default in the payment of the change in control purchase
price with respect to the LYONs.
Events of Default and Acceleration
The following are events of default under the indenture:
. default in the payment of any principal amount (including accrued
original issue discount and, if the LYONs have been converted to
semiannual coupon notes following a Tax Event, the restated principal
amount) at maturity, redemption price, purchase price, or change in
control purchase price due with respect to the LYONs;
. default in payment of any interest which becomes payable after the LYONs
have been converted to semiannual coupon notes following the occurrence
of a Tax Event, which default continues for 30 days;
. our failure to comply with any of our other agreements in the LYONs or
the indenture upon our receipt of notice of such default from the trustee
or from holders of not less than 25% in aggregate principal amount at
maturity of the LYONs, and our failure to cure (or obtain a waiver of)
such default within 60 days after we receive such notice;
. default in the payment of principal when due or resulting in acceleration
of other indebtedness of ours for borrowed money where the aggregate
principal amount with respect to which the default or acceleration has
occurred exceeds $10 million, and such acceleration has not been
19
rescinded or annulled within a period of 10 days after written notice to
Lowe's by the trustee or to Lowe's and the trustee by the holders of at
least 25% in principal amount at maturity of the LYONs; or
. certain events of bankruptcy, insolvency or reorganization affecting
Lowe's.
We shall deliver an Officer's Certificate to the trustee within 120 days
after the end of our fiscal year, stating whether or not to the best knowledge
of the signers thereof we are in default under the indenture.
If an event of default shall have happened and be continuing, either the
trustee or the holders of not less than 25% in aggregate principal amount at
maturity of the LYONs then outstanding may declare the issue price of the LYONs
plus the original issue discount on the LYONs accrued through the date of such
declaration, and any accrued and unpaid interest through the date of such
declaration, to be immediately due and payable. In the case of certain events of
bankruptcy or insolvency, the issue price of the LYONs plus the original issue
discount accrued thereon through the occurrence of such event shall
automatically become and be immediately due and payable.
Mergers and Sales of Assets
Without the consent of the holders of any outstanding debt securities, we
may consolidate with or merge into any person or convey, transfer or lease our
properties and assets substantially as an entity to another person, so long as:
. the resulting, surviving or transferee person is a corporation organized
and existing under the laws of the United States, any state thereof or
the District of Columbia and such corporation (if other than us) assumes
all our obligations under the LYONs and the indenture;
. after giving effect to the transaction no event of default (and no event
that, after notice or passage of time or both, becomes an event of
default) has occurred and is continuing; and
. other conditions described in the indenture are met.
Upon the assumption of our obligations by such corporation in such
circumstances, subject to certain exceptions, we shall be discharged from all
obligations under the LYONs and the indenture. Although such transactions are
permitted under the indenture, certain of the foregoing transactions occurring
could constitute a change in control in Lowe's, permitting each holder to
require us to purchase the LYONs of such holder as described above.
Optional Conversion to Semiannual Coupon Notes upon Tax Event
From and after the date of the occurrence of a Tax Event, we shall have the
option to elect to have interest in lieu of future accrued original issue
discount accrue at 2.5% per year on a principal amount per LYON equal to the sum
of the issue price and accrued original issue discount on such LYON on the date
of the Tax Event or the date on which we exercise such option, whichever is
later.
Such interest shall accrue from the date that we exercise our option to pay
interest in lieu of accrued original issue discount, and shall be payable
semiannually on the interest payment dates of February 16 and August 16 of each
year to holders of record at the close of business on the February 1 or August 1
immediately preceding the interest payment date. Interest will be computed on
the basis of a 360-day year comprised of twelve 30-day months. Interest will
accrue from the most recent date to which
20
interest has been paid or, if no interest has been paid, from the date we
exercise our option to pay interest. In the event that we exercise our option to
pay interest in lieu of accrued original issue discount, the redemption price,
purchase price and change in control purchase price on the LYONs will be
adjusted. However, there will be no change in the holder's conversion rights.
A "Tax Event" means that we shall have received an opinion from independent
tax counsel experienced in such matters to the effect that, on or after the date
of this prospectus, as a result of:
. any amendment to, or change (including any announced prospective change)
in, the laws (or any regulations thereunder) of the United States or any
political subdivision or taxing authority thereof or therein; or
. any amendment to, or change in, an interpretation or application of such
laws or regulations by any legislative body, court, governmental agency
or regulatory authority,
in each case which amendment or change is enacted, promulgated, issued or
announced or which interpretation is issued or announced or which action is
taken, on or after the date of this prospectus there is more than an
insubstantial risk that accrued original issue discount payable on the LYONs
either:
. would not be deductible on a current accrual basis; or
. would not be deductible under any other method,
in either case in whole or in part, by us (by reason of deferral, disallowance,
or otherwise) for United States federal income tax purposes.
If a similar proposal were ever enacted and made applicable to the LYONs in
a manner that would limit our ability to either:
. deduct the interest, including the accrued original issue discount,
payable on the LYONs on a current accrual basis; or
. deduct the interest, including accrued original issue discount, payable
on the LYONs under any other method for United States federal income tax
purposes,
such enactment would result in a Tax Event and the terms of the LYONs would be
subject to modification at our option as described above.
The modification of the terms of LYONs by us upon a Tax Event as described
above could possibly alter the timing of income recognition by holders of the
LYONs with respect to the semiannual payments of interest due on the LYONs after
the date on which we exercise our option to pay interest in lieu of accrued
original issue discount on the LYONs.
Modification
We and the trustee may modify or amend the indenture or the LYONs with the
consent of the holders of not less than a majority in aggregate principal amount
at maturity of the LYONs then outstanding. However, the consent of the holders
of each outstanding LYON would be required to:
. alter the manner of calculation or rate of accrual of original issue
discount or interest on any LYON or change the time of payment;
21
. make any LYON payable in money or securities other than that stated in
the LYON;
. change the stated maturity of any LYON;
. reduce the principal amount at maturity, accrued original issue discount,
redemption price, purchase price or change in control purchase price with
respect to any LYON;
. make any change that adversely affects the rights of a holder to convert
any LYON;
. make any change that adversely affects the right to require us to
purchase a LYON;
. impair the right to institute suit for the enforcement of any payment
with respect to, or conversion of, the LYONs; and
. change the provisions in the indenture that relate to modifying or
amending the indenture.
Without the consent of any holder of LYONs, we and the trustee may enter
into supplemental indentures for any of the following purposes:
. to evidence a successor to us and the assumption by that successor of our
obligations under the indenture and the LYONs;
. to add to our covenants for the benefit of the holders of the LYONs or to
surrender any right or power conferred upon us;
. to secure our obligations in respect of the LYONs;
. to make any changes or modifications to the indenture necessary in
connection with the registration of the LYONs under the Securities Act
and the qualifications of the LYONs under the Trust Indenture Act as
contemplated by the indenture;
. to cure any ambiguity or inconsistency in the indenture; or
. to make any change that does not adversely affect the rights of any
holder of the LYONs.
The holders of a majority in principal amount at maturity of the
outstanding LYONs may, on behalf of all the holders of all LYONs:
. waive compliance by us with restrictive provisions of the indenture, as
detailed in the indenture; and
. waive any past default under the indenture and its consequences, except a
default in the payment of the principal amount at maturity, issue price,
accrued and unpaid interest, accrued original issue discount, redemption
price, purchase price or change in control purchase price or obligation
to deliver common stock upon conversion with respect to any LYON or in
respect of any provision which under the indenture cannot be modified or
amended without the consent of the holder of each outstanding LYON
affected.
22
Discharge of the Indenture
We may satisfy and discharge our obligations under the indenture by
delivering to the trustee for cancellation all outstanding LYONs or by
depositing with the trustee, the paying agent or the conversion agent, if
applicable, after the LYONs have become due and payable, whether at stated
maturity or any redemption date, or any purchase date, or a change in control
purchase date, or upon conversion or otherwise, cash or shares of common stock
(as applicable under the terms of the indenture) sufficient to pay all of the
outstanding LYONs and paying all other sums payable under the indenture.
Calculations in Respect of LYONs
We are responsible for making all calculations called for under the LYONs.
These calculations include, but are not limited to, determination of the market
prices of our common stock. We make all these calculations in good faith and,
absent manifest error, our calculations are final and binding on holders of
LYONs. We provide a schedule of our calculations to the trustee, and the trustee
is entitled to rely upon the accuracy of our calculations without independent
verification.
Limitations of Claims in Bankruptcy
If a bankruptcy proceeding is commenced in respect of Lowe's, the claim of
a holder of a LYON is, under Title 11 of the United States Code, limited to the
issue price of the LYON plus that portion of the original issue discount that
has accrued from the date of issue to the commencement of the proceeding. In
addition, the holders of LYONs will be effectively subordinated in right of
payment to our secured indebtedness to the extent of the security and
effectively subordinated to the indebtedness and other obligations of our
subsidiaries.
Governing Law
The indenture and the LYONs are governed by, and construed in accordance
with, the law of the State of New York without application to principles of law,
thereof.
Book-Entry System
The LYONs were issued only in the form of global securities held in
book-entry form. DTC or its nominee is the sole registered holder of the LYONs
for all purposes under the indenture. Owners of beneficial interests in the
LYONs represented by the global securities hold their interests pursuant to the
procedures and practices of DTC. As a result, beneficial interests in these
securities are shown on, and may only be transferred through, records maintained
by DTC and its direct and indirect participants and any such interest may not be
exchanged for certificated securities, except in limited circumstances. Owners
of beneficial interests must exercise any rights in respect of their interests,
including any right to convert or require purchase of their interests in the
LYONs, in accordance with the procedures and practices of DTC. Beneficial owners
are not holders and are not entitled to any rights under the global securities
or the indenture. Lowe's and the trustee, and any of their respective agents,
may treat DTC as the sole holder and registered owner of the global securities.
23
Exchange of Global Securities
LYONs represented by a global security are exchangeable for
certificated securities with the same terms only if:
. DTC is unwilling or unable to continue as depositary or if DTC
ceases to be a clearing agency registered under the Exchange Act
and a successor depositary is not appointed by us within 90 days;
. we decide to discontinue use of the system of book-entry transfer
through DTC (or any successor depositary); or
. a default under the indenture occurs and is continuing.
DTC has advised us as follows: DTC is a limited-purpose trust company
organized under the New York Banking Law, a "banking organization" within the
meaning of the New York Uniform Commercial Code, and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Exchange Act. DTC
facilitates the settlement of transactions among its participants through
electronic computerized book-entry changes in participants' accounts,
eliminating the need for physical movement of securities certificates. DTC's
participants include securities brokers and dealers, including Merrill Lynch,
banks, trust companies, clearing corporations and other organizations, some of
whom and/or their representatives, own DTC. Access to DTC's book-entry system is
also available to others, such as banks, brokers, dealers and trust companies
that clear through or maintain a custodial relationship with a participant,
either directly or indirectly.
24
DESCRIPTION OF CAPITAL STOCK
Common Stock
The following is a summary of some of the terms of our common stock.
For a more complete description of our common stock, you should review the
applicable North Carolina law, our Charter and Bylaws, and the Amended and
Restated Rights Agreement, dated December 2, 1999, between us and Equiserve
Trust Company, N.A., as rights agent.
Our Charter authorizes us to issue 2,800,000,000 shares of common
stock. As of April 1,2002, we had 776,775,934 shares of common stock
outstanding. Each share of common stock is entitled to one vote on all matters
submitted to a vote of shareholders. Holders of common stock are entitled to
receive dividends when our Board of Directors declares them out of funds legally
available therefor. Dividends may be paid on the common stock only if all
dividends on any outstanding preferred stock have been paid or provided for.
The issued and outstanding shares of common stock are fully paid and
nonassessable. Holders of common stock have no preemptive or conversion rights,
and we may not make further calls or assessments on our common stock.
In the event of our voluntary or involuntary dissolution, liquidation
or winding up, holders of common stock are entitled to receive, pro rata, after
satisfaction in full of the prior rights of creditors and holders of preferred
stock, if any, all of our remaining assets available for distribution.
Directors are elected by a vote of the holders of common stock. Holders
of common stock are not entitled to cumulative voting rights.
EquiServe Trust Company, N.A. of Boston, Massachusetts, acts as the
transfer agent and registrar for the common stock.
Preferred Share Purchase Rights.
In 1998, under our Shareholder Rights Plan, we distributed as a
dividend one right for each outstanding share of common stock. Each right
entitles the holder to buy one one-thousandth of a share of Participating
Cumulative Preferred Stock, Series A, at an exercise price of $152.50, which we
may adjust at a later time. As a result of a two-for-one stock split of Lowe's
common stock effective June 29, 2001, the number of rights associated with each
share of common stock was reduced to 0.5.
The rights will become exercisable only if a person or group acquires
or announces a tender offer for 15% or more of our outstanding common stock.
When exercisable, we may issue a share of common stock in exchange for each
right other than those held by the person or group. If a person or group
acquires 30% or more of the outstanding common stock, each right will entitle
the holder, other than the acquiring person, upon payment of the exercise price,
to acquire preferred stock or, at our option, common stock, having a value equal
to twice the right's exercise price. If we are acquired in a merger or other
business combination or if 50% of our earnings power is sold, each right will
entitle the holder, other than the acquiring person, to purchase securities of
the surviving company having a market value equal to twice the exercise price of
the right.
The rights will expire on September 9, 2008, and may be redeemed by us
at a price of $001 per right at any time before the tenth day after an
announcement that a 15% position has been acquired.
25
Until a person or group acquires or announces a tender offer for 15% or
more of the common stock:
. the rights will be evidenced by the common stock certificates
and will be transferred with and only with such common stock
certificates, and
. the surrender for transfer of any certificate for common stock
will also constitute the transfer of the rights associated
with the common stock represented by such certificate.
Rights may not be transferred, directly or indirectly:
. to any person or group that has acquired, or obtained the right
to acquire, beneficial ownership of 15% or more of the rights,
referred to as an "acquiring person;"
. to any person in connection with a transaction in which such
person becomes an acquiring person; or
. to any affiliate or associate of an acquiring person.
Any right that is the subject of a purported transfer to an acquiring
person will be null and void.
The rights may have some anti-takeover effects. The rights will cause
substantial dilution to a person or group that acquires more than 15% of the
outstanding shares of our common stock if some events thereafter occur without
the rights having been redeemed. However, the rights should not interfere with
any merger or other business combination approved by the Board of Directors and
the shareholders because the rights are redeemable in some circumstances.
Change of Control Provisions.
Some provisions of our Charter and of North Carolina law govern the
rights of holders of common stock with the intention of affecting any attempted
change of control of Lowe's.
Board of Directors.
Our Charter classifies the Board of Directors into three separate
classes, with the term of one- third of the directors expiring at each annual
meeting. Removal of a director requires the affirmative vote of 70% of
outstanding voting shares. These provisions make it more difficult for holders
of our common stock to gain control of the Board of Directors.
Fair Price Provisions.
Provisions of our Charter, which we will refer to as the "fair price
provisions," limit the ability of an interested shareholder to effect some
transactions involving us. An "interested shareholder" is one who beneficially
owns 20% or more of our outstanding voting shares.
Unless the fair price provisions are satisfied, an interested
shareholder may not engage in a business combination, which includes a merger,
consolidation, share exchange or similar transaction, involving us unless
approved by 70% of our outstanding voting shares. In general, the fair price
provisions require that an interested shareholder pay shareholders the same
amount of cash or the same amount and type of consideration paid by the
interested shareholder when it initially acquired our shares.
26
The fair price provisions are designed to discourage attempts to
acquire control of us in non- negotiated transactions utilizing two-tier pricing
tactics, which typically involve the accumulation of a substantial block of the
target corporation's stock followed by a merger or other reorganization of the
acquired company on terms determined by the purchaser. Due to the difficulties
of complying with the requirements of the fair price provisions, the fair price
provisions generally may discourage attempts to obtain control of us.
North Carolina Shareholder Protection Act.
The North Carolina Shareholder Protection Act requires the affirmative
vote of 95% of our voting shares to approve a business combination with any
person that beneficially owns 25% of the voting shares of the corporation unless
the "fair price" provisions of the Act are satisfied. The statute's intended
effect is similar to the fair price provisions of our Charter.
Preferred Stock
Our Charter authorizes us to issue 5,000,000 shares of preferred stock,
par value $5.00 per share. We may amend our Charter from time to time to
increase the number of authorized shares of preferred stock. Any amendment
requires the approval of the holders of a majority of the outstanding shares of
common stock and the approval of the holders of a majority of the outstanding
shares of all series of preferred stock voting together as a single class
without regard to series. As of the date of this offering memorandum, we had no
shares of preferred stock outstanding.
We will pay dividends and make distributions in the event of our
liquidation, dissolution or winding up first to holders of our preferred stock
and then to holders of our common stock. The Board of Directors' ability to
issue preferred stock, while providing flexibility in connection with possible
acquisitions and other corporate purposes, could, among other things, adversely
affect the voting powers of holders of common stock and, under some
circumstances, may discourage an attempt by others to gain control of us.
27
CERTAIN UNITED STATES FEDERAL INCOME TAX CONSEQUENCES
General
This is a summary of certain United States federal income tax
consequences relevant to holders of LYONs and our common stock issuable upon
conversion or repurchase by us of the LYONs. This summary is based upon laws,
regulations, rulings and decisions now in effect, all of which are subject to
change (possibly with retroactive effect) or possible differing interpretations.
The discussion below deals only with LYONs and common stock held as capital
assets and does not purport to deal with persons in special tax situations, such
as financial institutions, insurance companies, dealers in securities or
currencies, tax-exempt entities, persons holding LYONs or common stock in a tax
deferred or tax- advantaged account, persons who are former citizens or
long-term residents of the United States subject to taxation as expatriates or
persons holding LYONs or common stock as a hedge against currency risks, as a
position in a "straddle" or as part of a "hedging," "constructive sale" or
"conversion" transaction for tax purposes. Furthermore, in general, this
discussion does not address the tax consequences applicable to holders that are
taxed as partnerships or other pass-through entities for United States federal
income tax purposes. We do not address all of the tax consequences that may be
relevant to a U.S. Holder (as defined below). In particular, we do not address:
. the United States federal income tax consequences to shareholders
in, or partners or beneficiaries of, an entity that is a holder
of LYONs or common stock;
. the United States federal estate (except as described below),
gift or alternative minimum tax consequences of the purchase,
ownership or disposition of LYONs or common stock;
. the consequences to persons who hold the LYONs or common stock
whose functional currency is not the United States dollar;
. any state, local or foreign tax consequences of the purchase,
ownership or disposition of LYONs or ownership or disposition of
the common stock issuable upon conversion or repurchase of the
LYONs.
Accordingly, you should consult your own tax advisor regarding the tax
consequences of purchasing, owning and disposing of the LYONs and the common
stock in light of your own tax circumstances.
For purposes of this section, a U.S. Holder is a beneficial owner of
the LYONs who or which is:
. a citizen or individual resident of the United States, as defined
in Section 7701(b) of the Internal Revenue Code of 1986, as
amended (which we refer to as the Code);
. a corporation, including any entity treated as a corporation for
United States federal income tax purposes, created or organized
in or under the laws of the United States, any state thereof or
the District of Columbia:
. an estate if its income is subject to United States federal
income taxation regardless of its source; or
. a trust if (1) a United States court can exercise primary
supervision over its administration and (2) one or more United
States persons have the authority to control all of its
substantial decisions.
28
Notwithstanding the preceding sentence, certain trusts in existence on August
20, 1996, and treated as U.S. Holders prior to such date, may also be treated as
U.S. Holders. A Non-U.S. Holder is a holder of LYONs other than a U.S. Holder.
If a partnership (including for this purpose any entity treated as a
partnership for United States federal income tax purposes) is a beneficial owner
of LYONs or common stock into which LYONs have been converted (or with which
LYONs were repurchased), the treatment of a partner in the partnership will
generally depend upon the status of the partner and upon the activities of the
partnership. If you are a partnership that holds LYONs or common stock or a
partner in such a partnership, we urge you to consult your own tax advisors
regarding the United States federal and other tax consequences to you of the
purchase, ownership and disposition of the LYONs and the common stock.
No statutory or judicial authority directly addresses the treatment of
the LYONs or instruments similar to the LYONs for United States federal income
tax purposes. No rulings have been sought or are expected to be sought from the
Internal Revenue Service (which we refer to as the IRS) with respect to any of
the United States federal income tax consequences discussed below, and no
assurance can be given that the IRS will agree with the tax characterizations
and the tax consequences described below.
We urge holders to consult their own tax advisors with respect to the
tax consequences to them of the ownership and disposition of the LYONs and the
common stock in light of their own particular circumstances, including the tax
consequences under
United States federal, state, local, foreign and other tax laws and the
possible effects of changes in United States federal or other tax laws.
Classification of the LYONs
It is the opinion of counsel to Lowe's, Hunton & Williams, that the
LYONs will be treated as indebtedness for United States federal income tax
purposes.
Tax Event
The modification of the terms of the LYONs by us upon a Tax Event as
described in "Description of LYONS-Optional Conversion to Semiannual Coupon
Notes upon Tax Event," could possibly alter the timing of income recognition by
the holders of LYONs with respect to the semiannual payments of interest due
after the option exercise date. In particular, under applicable Treasury
regulations, following such a modification you may be permitted to report such
payments as interest income as they are paid or accrue in accordance with your
regular method of tax accounting.
U.S. Holders
The following discussion applies to you if you are a U.S. Holder of
LYONs for tax purposes.
Original Issue Discount. We issued the LYONs at a substantial discount
from their principal amount at maturity. For United States federal income tax
purposes, the difference between the issue price and the stated principal amount
at maturity of each LYON constitutes original issue discount ("OD"). You will be
required to include OLD in income periodically over the term of the LYONs before
receipt of the cash or other payment attributable to such income. As described
below, you must take O D into income using an economic accrual method that
reflects semiannual compounding.
The OID you must include in gross income as it accrues is the sum of
the daily portions of O D with respect to the LYON for each day during the
taxable year or portion of a taxable year on which you
29
hold the LYON. The daily portion is determined by allocating to each day of an
accrual period a pro rata portion of an amount equal to the adjusted issue price
of the LYON at the beginning of the accrual period multiplied by the yield to
maturity of the LYON. The accrual period of a LYON may be of any length and may
vary in length over the term of the LYON, provided that each accrual period is
no longer than one year and each scheduled payment of principal or interest
occurs either on the final day of an accrual period or on the first day of an
accrual period. The issue price is the initial offering price to investors at
which a substantial amount of the LYONs were sold (excluding sales to bond
houses, brokers, or similar persons or organizations acting in the capacity of
underwriters, placement agents, or wholesalers). The adjusted issue price of the
LYON at the start of any accrual period is the issue price of the LYON increased
by the accrued original issue discount for each prior accrual period.
Under these rules, you will be required to include in gross income
increasingly greater amounts of OID in each successive accrual period. Any
amount included in income as OID will increase your basis in the LYON.
Market Discount. If you acquire a LYON for an amount that is less than
the original issue price of such LYON plus any accrued OID, the amount of the
difference will be treated as market discount for United States federal income
tax purposes, unless such difference is less than a specified de minimis
amount. Under the market discount rules, you will be required to treat any
principal payment in respect of, or any gain recognized on the sale, exchange
(other than pursuant to a conversion into common stock as to which the market
discount carries over, as described below), retirement or other disposition of
a LYON as ordinary income to the extent of the lesser of (1) the amount of such
principal payment or recognized gain or (2) the accrued, but not previously
taxed, market discount at the time of such payment or disposition. In addition,
you may be required to defer, until the maturity of the LYON or its earlier
disposition in a taxable transaction, the deduction of all or a portion of the
interest expense on any indebtedness incurred or maintained to purchase or
carry such LYON. In the event of a conversion of a LYON into common stock, any
accrued but unrecognized market discount will carry over to the common stock
and, upon the disposition of the common stock, any gain will be treated as
interest income to the extent of the amount of accrued market discount as of
the date of conversion.
Any market discount generally will be considered to accrue ratably
during the period from the date of acquisition to the maturity date of the
LYON, unless you irrevocably elect to accrue such market discount on the basis
of a constant interest rate. In addition, you may elect to include market
discount in income currently as it accrues. If you make such a current
inclusion election, the rule described above regarding deferral of interest
deductions will not apply. Once made, a current inclusion election applies to
all market discount obligations acquired by you on or after the first day of
the first taxable year to which such election applies and may be revoked only
with the consent of the JRS.
Any amount included in income as market discount will increase your
basis in the LYON. You should consult your own tax advisor regarding the
application of the market discount rules to the LYONs.
Sale, Exchange, Conversion or Redemption. A conversion of a LYON into
common stock and the use by us of common stock on a purchase date to repurchase
a LYON (in case you require us to repurchase) will generally not be a taxable
event, except with respect to cash received in lieu of a fractional share. Your
basis in the common stock received will be the same as your basis in the LYON
at the time of conversion less any basis allocable to a fractional share. The
holding period for the common stock received on conversion or repurchase will
include the holding period of the converted or repurchased LYON, assuming each
is held as a capital asset, except that the holding period for common stock
attributable to accrued OID likely may begin no earlier than the date the OID
accrued and may begin as late as on the day following the date of conversion or
repurchase.
30
If you elect to exercise your option to tender a LYON to us on a
purchase date and we satisfy the purchase price in a combination of common stock
and cash (other than cash received in lieu of a fractional share) you will
recognize gain (but not loss) to the extent such gain does not exceed such cash.
Such gain will generally be capital gain, and will be a long-term capital gain
if the tendered LYON is held for more than one year.
If you elect to exercise your option to tender a LYON to us on a
purchase date or a change in control purchase date and we deliver solely cash in
satisfaction of the purchase price or change in control purchase price, you will
recognize gain or loss, measured by the difference between the amount of cash
transferred by us to you and your basis in the tendered LYON. Such gain or loss
will generally be capital gain or loss, and will be long-term capital gain or
loss if the tendered LYON is held for more than one year.
Your basis in the common stock received from us in exchange for a LYON
will be the same as your basis in the LYON less any basis allocable to a
fractional share. However, this basis will be decreased by the amount of cash,
other than cash received in lieu of a fractional share, if any, received in the
exchange and increased by the amount of any gain recognized by you on the
exchange, other than gain with respect to a fractional share. The holding period
for common stock received in the exchange will include the holding period for
the LYON tendered to us in exchange, assuming each is held as a capital asset.
However, the holding period for common stock attributable to accrued OID likely
may begin no earlier than the date the OID accrued and may begin as late as on
the day following the exchange date.
Cash received in lieu of a fractional share upon a tender of a LYON to
us on a purchase date or on conversion should be treated as a payment in
exchange for the fractional share. Accordingly, the receipt of cash in lieu of a
fractional share should generally result in capital gain or loss, if any,
measured by the difference between the cash received for the fractional share
and your basis in the fractional share.
Except as described above with respect to LYONs, gain or loss upon a
sale or exchange of a LYON or of common stock received upon a conversion or a
repurchase of a LYON will generally be capital gain or loss, which capital gain
or loss will be long-term if the LYON or common stock is held for more than one
year.
In the case of individuals, long-term capital gains are generally taxed
at a maximum rate of 20%. The deductibility of capital losses is subject to
limitation.
Your obligation to include in gross income the daily portions of OID
with respect to a LYON will terminate prospectively on the date of conversion or
repurchase of the LYON for common stock or cash or any combination thereof.
Dividends. If you receive common stock in exchange for a LYON,
distributions on the common stock that are paid out of our current or
accumulated earnings and profits generally will constitute dividends taxable as
ordinary income. If a distribution exceeds our current and accumulated earnings
and profits, the excess will be treated as a tax-free return of your investment,
up to your basis in the common stock. Any remaining excess will be treated as
capital gain. If you are a U.S. corporation, you may be able to claim a
deduction equal to a portion of any dividends received.
Constructive Dividend. If at any time we make a distribution of cash or
property to our shareholders that would be taxable to the shareholders as a
dividend for United States federal income tax purposes and, in accordance with
the anti-dilution provisions of the LYONs, the conversion rate of the
31
LYONs is increased, such increase may be deemed to be the payment of a taxable
dividend to holders of the LYONs although they would not actually receive any
cash or other property.
For example, an increase in the conversion rate in the event of a
distribution of our debt obligations or a portion of our assets or an increase
in the conversion rate at our discretion will generally result in deemed
dividend treatment to holders of the LYONs, but generally an increase in the
event of stock dividends or the distribution of rights to subscribe for common
shares will not. See "Description of LYONS--Conversion Rights."
Backup Withholding and Information Reporting. Information reporting
will apply to payments of interest (including accruals of OID) or dividends, if
any, made by us on, or the proceeds of the sale or other disposition of, the
LYONs or shares of common stock with respect to certain non-corporate U.S.
Holders, and backup withholding at a rate of up to 30% may apply unless the
recipient of such payment supplies a correct taxpayer identification number and
other required information or otherwise establishes an exemption from backup
withholding. Backup withholding will also apply if we are notified by the IRS or
a broker that it is required. Any amount withheld under the backup withholding
rules will be allowable as a credit against your United States federal income
tax, provided that the required information is provided to the IRS.
Non-U.S. Holders
The following discussion applies to you if you are a Non-U.S. Holder of
LYONs.
Original Issue Discount and Disposition. In general and subject to the
discussion below under "--Backup Withholding and Information Reporting," you
will not be subject to United States federal income or withholding tax with
respect to interest or OID accrued on LYONs if
. you do not actually or constructively own 10% or more of the
total combined voting power of all classes of our shares entitled
to vote;
. you are not a controlled foreign corporation that is related to
us through stock ownership;
. you are not a bank receiving interest described in Section
881(c)(3)(A) of the Code; and
. you certify your nonresident status by providing an IRS Form
W-8BEN or appropriate substitute form to us or our agent
(provided that if you hold the LYONs through a financial
institution or other agent acting on your behalf, you will be
required to provide appropriate documentation to the agent and
your agent will then be required to provide certification to us
or our paying agent, either directly or through other
intermediaries).
In addition, in general, and subject to the discussion below under
"--Backup Withholding and Information Reporting," you will not be subject to
United States federal income or withholding tax on gain realized upon your
disposition of LYONs or shares of common stock if:
. if an individual, you are not, present in the United States for
183 days or more in the year of the sale, exchange or disposition
of the LYONs or common stock, or you do not have a "tax home" (as
defined in Code Section 91l(d)(3)) in the United States; and
. gain, if any, from a sale, exchange or disposition of the LYONs or
common stock is not effectively connected (or deemed effectively
connected by virtue of Section 897 of the Code, in the unlikely
event we became a United States real property holding corporation,
32
or USRPHC, as described below) with the conduct by you of a
U.S. trade or business. A corporation is generally a USRPHC if
more than 50% of its fair market value consists of U.S. real
property interests. We believe that we are not a USRPHC for
United States federal income tax purposes. Although we
consider it unlikely based on our current business plans and
operations, we may become a USRPHC in the future.
Income that is effectively connected with a U.S. trade or business will
generally be subject to regular United States federal income tax in the same
manner as if it were realized by a U.S. Holder. Moreover, if you are a non-U.S.
corporation, your U.S. trade or business income may be subject to an additional
branch profits tax at a rate of 30% (or such lower rate provided by an
applicable income tax treaty if you establish that you qualify to receive the
benefits of such treaty) of your effectively connected earnings and profits for
the taxable year, subject to certain adjustments.
Dividends paid to you on common stock received in exchange for the
LYONs will generally be subject to U.S. withholding tax at a 30% rate (or such
lower rate provided by an applicable income tax treaty if you establish that
you qualify to receive the benefits of such treaty) unless they are effectively
connected with the conduct by you of a U.S. trade or business and you provide
us with an IRS Form W-8ECI.
United States Federal Estate Tax. A LYON held by an individual who at
the time of death is not a citizen or resident of the United States as defined
for U.S. estate tax purposes will not be includable in the decedent's gross
estate for United States federal estate tax purposes, provided that such holder
or beneficial owner did not at the time of death actually or constructively own
10%or more of the combined voting power of all of our classes of stock entitled
to vote, and provided that, at the time of death, payments with respect to such
LYON (including OID) would not have been effectively connected with the conduct
by such holder of a trade or business within the United States. Our common stock
generally will be included in the taxable estate of an individual who at the
time of death is not a citizen or resident of the United States as defined for
U.S. estate tax purposes. The United States federal estate tax liability of the
estate of such an individual with respect to our common stock may be affected by
a tax treaty between the United States and his or her country of residence.
Backup Withholding and Information Reporting. If the LYONs, or shares
of common stock into which LYONs have been converted, are held by you through a
non-U.S., or non-US. related, broker or financial institution, information
reporting and backup withholding generally would not be required. Information
reporting, and possibly backup withholding, may apply if the LYONs or shares of
common stock are held by you through a U.S., or U.S. related, broker or
financial institution or certain other U.S. related entities and you fail to
certify your nonresident status.
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SELLING SECURITYHOLDERS
The LYONs were originally issued by us and sold by Merrill Lynch,
Pierce, Fenner & Smith Incorporated in a transaction exempt from the
registration requirements of the Securities Act to persons reasonably believed
by Merrill Lynch to be "qualified institutional buyers" (as defined by Rule 144A
under the Securities Act). The selling securityholders (which term includes
their transferees, pledgees, donees or successors) may from time to time offer
and sell pursuant to this prospectus any and all of the LYONs and the shares of
common stock issuable upon conversion and/or redemption of the LYONs.
Set forth below are the names of each selling securityholder, the
principal amount of LYONs that may be offered by such selling securityholder
pursuant to this prospectus and the number of shares of common stock into which
such LYONs are convertible. Unless set forth below, none of the selling
securityholders has had a material relationship with us or any of our
predecessors or affiliates within the past three years.
The following table sets forth certain information received by us on or
prior to May 29, 2002. However, any or all of the LYONs or common stock listed
below may be offered for sale pursuant to this prospectus by the selling
securityholders from time to time. Accordingly, no estimate can be given as to
the amounts of LYONs or common stock that will be held by the selling
securityholders upon consummation of any such sales.
------------------------------------------------------------------------------------------------------------
Aggregate
Principal Amount Common Common
of LYONs at Percentage Stock Owned Stock
Name/(1)(2)/ Maturity that May of LYONs Prior to Registered
be Sold Outstanding Conversion Hereby/(3)/
-----------------------------------------------------------------------------------------------------------
Allstate Insurance Company 500,000 0.05% 0 8,224
--------------------------------------------------------------------------------------------------------
Allstate Life Insurance Company 4,405,000 0.44% 0 72,453
--------------------------------------------------------------------------------------------------------
Arpeggio Fund LP 4,500,000 0.45% 0 74,016
--------------------------------------------------------------------------------------------------------
Associated Electric & Gas Insurance
Services Limited 1,100,000 0.11% 0 18,092
--------------------------------------------------------------------------------------------------------
Bankers Trust Co. Trustee for Daimler
Chrysler Corp Emp#l Pension Plan 4,785,000 0.48% 0 78,703
--------------------------------------------------------------------------------------------------------
Bear Stearns & Co., Inc. 5,333,000 0.53% 0 87,717
--------------------------------------------------------------------------------------------------------
CA State Automobile Assn. Inte-Insurance 1,000,000 0.10% 0 16,448
--------------------------------------------------------------------------------------------------------
California Public Employees' Retirement
System 2,000,000 0.20% 3,114,560 32,896
--------------------------------------------------------------------------------------------------------
Canyon MAC 18 LTD (RMF) 2,000,000 0.20% 0 32,896
--------------------------------------------------------------------------------------------------------
Canyon Value Realization Fund (Cayman) LTD 10,000,000 1.00% 0 164,480
--------------------------------------------------------------------------------------------------------
Canyon Capital Arbitrage Master Hedge
Fund, LTD 5,000,000 0.50% 0 82,240
--------------------------------------------------------------------------------------------------------
Canyon Value Realization Fund L.P. 5,000,000 0.50% 0 82,240
--------------------------------------------------------------------------------------------------------
Cater Allen International Limited 11,500,000 1.14% 0 189,152
--------------------------------------------------------------------------------------------------------
CIBC World Markets 7,000,000 0.70% 0 115,136
--------------------------------------------------------------------------------------------------------
CitySam Fund-Ltd. 11,500,000 1.14% 0 189,152
--------------------------------------------------------------------------------------------------------
Commonwealth Professional Assurance
Company, c/o Income Research & 540,000 0.05% 0 8,881
Management
--------------------------------------------------------------------------------------------------------
34
----------------------------------------------------------------------------------------------------------------------
Aggregate
Principal Amount Common Common
Name/(1)(2)/ of LYONs at Percentage Stock Owned Stock
Maturity that May of LYONs Prior to Registered
be Sold Outstanding Conversion Hereby/(3)/
----------------------------------------------------------------------------------------------------------------------
Conseco Annuity Assurance Company 2,500,000 0.25% 0 41,120
----------------------------------------------------------------------------------------------------------------------
Conseco Fund Group - Conseco Convertible
Securities Fund 250,000 0.02% 0 4,112
----------------------------------------------------------------------------------------------------------------------
Credit Industriel D'Alsace et De Lorraine 9,400,000 0.94% 0 154,611
----------------------------------------------------------------------------------------------------------------------
Credit Suisse First Boston Corporation 200,000 0.02% 0 3,289
----------------------------------------------------------------------------------------------------------------------
Dylan (IMA) Limited 2,500,000 0.25% 0 41,120
----------------------------------------------------------------------------------------------------------------------
EQAT/Alliance Growth Investors 1,565,000 0.16% 0 25,741
----------------------------------------------------------------------------------------------------------------------
Equitable Life Assurance Separate Account
-- Balanced 90,000 0.01% 0 1,480
----------------------------------------------------------------------------------------------------------------------
Equitable Life Assurance Separate Account
-- Convertibles 1,000 0.00% 0 16
----------------------------------------------------------------------------------------------------------------------
Excellus Health Plan; Formerly Blue
Cross/Blue Shield of Rochester, c/o Income
Research and Management 500,000 0.05% 0 8,224
----------------------------------------------------------------------------------------------------------------------
Federated Equity Funds 17,000,000 1.69% 0 279,616
----------------------------------------------------------------------------------------------------------------------
Franklin and Marshall College 275,000 0.03% 0 4,523
----------------------------------------------------------------------------------------------------------------------
Gaia Offshore Master Fund Ltd. 20,000,000 1.99% 0 328,960
----------------------------------------------------------------------------------------------------------------------
GLG Market Neutral Fund 16,000,000 1.59% 0 263,168
----------------------------------------------------------------------------------------------------------------------
Goldman Sachs and Company 485,000 0.05% 0 7,977
----------------------------------------------------------------------------------------------------------------------
IMF Convertible Fund 2,000,000 0.20% 0 32,896
----------------------------------------------------------------------------------------------------------------------
Investcorp Sam Fund Limited 10,800,000 1.07% 0 177,638
----------------------------------------------------------------------------------------------------------------------
KBC Financial Products USA 500,000 0.05% 0 8,224
----------------------------------------------------------------------------------------------------------------------
Lehman Brothers Inc. 350,000 0.03% 0 5,756
----------------------------------------------------------------------------------------------------------------------
Liberty View Fund LLC 500,000 0.05% 0 8,224
----------------------------------------------------------------------------------------------------------------------
Liberty View Funds L.P. 4,500,000 0.45% 0 74,016
----------------------------------------------------------------------------------------------------------------------
Lord Abbett Bond Debenture Fund 10,000,000 1.00% 0 164,480
----------------------------------------------------------------------------------------------------------------------
Lutheran Brotherhood 1,500,000 0.15% 14,160 24,672
----------------------------------------------------------------------------------------------------------------------
Lydian Overseas Partners Master Fund 22,025,000 2.19% 0 362,267
----------------------------------------------------------------------------------------------------------------------
McMahan Securities Co. L.P. 1,150,000 0.11% 0 18,915
----------------------------------------------------------------------------------------------------------------------
Med America Insurance,
c/o Income Research and Management 1,850,000 0.18% 0 30,428
----------------------------------------------------------------------------------------------------------------------
Med American New York Insurance,
c/o Income Research and Management 1,315,000 0.13% 0 21,629
----------------------------------------------------------------------------------------------------------------------
Merrill Lynch, Pierce, Fenner and Smith Inc. 14,123,000 1.41% 0 232,295
----------------------------------------------------------------------------------------------------------------------
Northern Income Equity Fund 4,000,000 0.40% 0 65,792
----------------------------------------------------------------------------------------------------------------------
Oppenheimer Convertible Securities Fund 8,000,000 0.80% 0 131,584
----------------------------------------------------------------------------------------------------------------------
Physicians Life 314,000 0.03% 0 5,164
----------------------------------------------------------------------------------------------------------------------
PIMCO Convertible Fund 1,000,000 0.10% 0 16,448
----------------------------------------------------------------------------------------------------------------------
Principal Investors Fund, Inc. on behalf of its
Partners Large Cap Blend Fund 150,000 0.01% 0 2,467
----------------------------------------------------------------------------------------------------------------------
35
-------------------------------------------------------------------------------------------------------------------------------
Aggregate
Principal Amount Common Common
Name /(1)(2)/ of LYONs at Percentage Stock Owned Stock
Maturity that May of LYONs Prior to Registered
be Sold Outstanding Conversion Hereby/(3)/
-------------------------------------------------------------------------------------------------------------------------------
Principal Investors Fund, Inc. on behalf of its
Principal Partners Large Cap Blend Fund, 160,000 0.02% 0 2,631
Inc.
-------------------------------------------------------------------------------------------------------------------------------
Quattro Fund, Ltd. 1,500,000 0.15% 0 24,672
-------------------------------------------------------------------------------------------------------------------------------
Rhapsody Fund, LP 20,000,000 1.99% 0 328,960
-------------------------------------------------------------------------------------------------------------------------------
Royal Bank of Canada 6,300,000 0.63% 188,711 103,622
-------------------------------------------------------------------------------------------------------------------------------
Salomon Brothers Asset Management, Inc. 550,000 0.05% 0 9,046
-------------------------------------------------------------------------------------------------------------------------------
S.G. Cowen Securities Corp. 5,000,000 0.50% 0 82,240
-------------------------------------------------------------------------------------------------------------------------------
Southern Farm Bureau Life Insurance 870,000 0.09% 0 14,309
-------------------------------------------------------------------------------------------------------------------------------
Starvest Managed Portfolio 65,000 0.01% 0 1,069
-------------------------------------------------------------------------------------------------------------------------------
State of Florida, Division of Treasury 2,255,000 0.22% 0 37,090
-------------------------------------------------------------------------------------------------------------------------------
State of Florida, Office of the Treasurer 3,500,000 0.35% 0 57,568
-------------------------------------------------------------------------------------------------------------------------------
State of Mississippi Health Care Trust Fund 905,000 0.09% 0 14,885
-------------------------------------------------------------------------------------------------------------------------------
State Street Bank Custodian for GE Pension Trust 2,180,000 0.22% 0 35,856
-------------------------------------------------------------------------------------------------------------------------------
Tokai Asia Limited 34,000,000 3.38% 0 559,232
-------------------------------------------------------------------------------------------------------------------------------
Triborough Partners QP, LLC 2,000,000 0.20% 0 32,896
-------------------------------------------------------------------------------------------------------------------------------
Tufts Associated Health Plans, c/o Income
Research & Management 650,000 0.06% 0 10,691
-------------------------------------------------------------------------------------------------------------------------------
UBS Warburg L.L.C. 6,319,000 0.63% 0 103,934
-------------------------------------------------------------------------------------------------------------------------------
University of Massachusetts, c/o Income
Research & Management 130,000 0.01% 0 2,138
-------------------------------------------------------------------------------------------------------------------------------
Vanguard Convertible Securities Fund, Inc. 495,000 0.05% 0 8,141
-------------------------------------------------------------------------------------------------------------------------------
Victory Capital Management as Agent for the
Charitable Income Fund 85,000 0.01% 0 1,398
-------------------------------------------------------------------------------------------------------------------------------
Victory Capital Management as Agent for the
key Trust Fixed Income Fund 130,000 0.01% 0 2,138
-------------------------------------------------------------------------------------------------------------------------------
White River Securities LLC 5,334,000 0.53% 0 87,733
-------------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------------
Total Registered Shares Not Sold 323,434,000 32.18% 0 5,319,842
-------------------------------------------------------------------------------------------------------------------------------
Total Registered Shares Sold 675,347,000 67.20% 0 11,108,107
-------------------------------------------------------------------------------------------------------------------------------
All Other Beneficial Holders 6,219,000 0.62% 0 102,291
-------------------------------------------------------------------------------------------------------------------------------
Total 1,005,000,000 100.00% 0 16,530,240
-------------------------------------------------------------------------------------------------------------------------------
(1) Information about other selling securityholders will be set forth in
prospectus supplements.
(2) Assumes that any other holders of LYONs, or any future transferees,
pledgees, donees or successors of or from any such other holders of LYONs,
do not beneficially own any common stock other than the common stock
issuable upon conversion of the LYONs at the initial conversion rate.
(3) Assumes conversion of all of the holder's LYONs at a conversion rate of
16.4480 shares of common stock per $1,000 principal amount at maturity of
the LYONs. However, this conversion rate will be subject to adjustment as
described under "Description of LYONs -- Conversion Rights." As a result,
the amount of common stock issuable upon conversion of the LYONs may
increase or decrease in the future.
36
The preceding table has been prepared based upon information furnished
to us by the selling securityholders named in the table. From time to time,
additional information concerning ownership of the LYONS and common stock may
rest with certain holders thereof not named in the preceding table, with whom we
believe we have no affiliation. Information about the selling securityholders
may change from time to time.
37
PLAN OF DISTRIBUTION
The LYONs and the common stock are being registered to permit public
secondary trading of these securities by the holders thereof from time to time
after the date of this prospectus. We have agreed, among other things, to bear
all expenses (other than underwriting discounts and selling commissions) in
connection with the registration and sale of the LYONs and the common stock
covered by this prospectus.
We will not receive any of the proceeds from the offering of LYONs or the
common stock by the selling securityholders. We have been advised by the selling
securityholders that the selling securityholders may sell all or a portion of
the LYONS and common stock beneficially owned by them and offered hereby from
time to time on any exchange on which the securities are listed on terms to be
determined at the times of such sales. The selling securityholders may also make
private sales directly or through a broker or brokers. Alternatively, any of the
selling securityholders may from time to time offer the LYONs or the common
stock beneficially owned by them through underwriters, dealers or agents, who
may receive compensation in the form of underwriting discounts, commissions or
concessions from the selling securityholders and the purchasers of the LYONs and
the common stock for whom they may act as agent. The aggregate proceeds to the
selling securityholders from the sale of the LYONs or common stock offering by
them hereby will be the purchase price of such LYONs or common stock less
discounts and commissions, if any.
The LYONs and common stock may be sold from time to time in one or more
transactions at fixed offering prices, which may be changed, or at varying
prices determined at the time of sale or at negotiated prices. These prices will
be determined by the holders of such securities or by agreement between these
holders and underwriters or dealers who may receive fees or commissions in
connection therewith.
These transactions may include block transactions or crosses. Crosses are
transactions in which the same broker acts as an agent on both sides of the
trade.
In connection with sales of the LYONs and the underlying common stock or
otherwise, the selling securityholders may enter into options or other
transactions with broker-dealers. These broker- dealers may in turn engage in
short sales of the LYONs and the underlying common stock in the course of
hedging their positions. The selling securityholders may also sell the LYONs and
underlying common stock short and deliver LYONs and the underlying common stock
to close out short positions, or loan or pledge LYONs and the underlying common
stock to broker-dealers that in turn may sell the LYONs and the underlying
common stock.
To our knowledge, there are currently no plans, arrangements or
understandings between any selling securityholders and any underwriter,
broker-dealer or agent regarding the sale of the LYONs and the underlying common
stock by the selling securityholders. Selling securityholders may elect to not
sell any or all of the LYONs and the underlying common stock offered by them
pursuant to this prospectus. In addition, we cannot assure you that any such
selling securityholder will not transfer, devise or gift the LYONs and the
underlying common stock by other means not described in this prospectus. In
addition, any securities covered by this prospectus which qualify for sale
pursuant to Rule 144 or Rule 144A of the Securities Act may be sold under Rule
144 or Rule 144A rather than pursuant to this prospectus.
Our outstanding common stock is listed for trading on the New York Stock
Exchange.
The selling securityholders and any broker and any broker-dealers, agents
or underwriters that participate with the selling securityholders in the
distribution of the LYONs or the common stock may be
38
deemed to be "underwriters" within the meaning of the Securities Act, in which
event any commission received by such broker-dealers, agents or underwriters and
any profit on the resale of the LYONs or the common stock purchased by them may
be deemed to be underwriting commissions or discounts under the Securities Act.
The LYONs were issued and sold on February 16, 2001 in transactions exempt
from the registration requirements of the Securities Act to persons reasonably
believed by Merrill Lynch to be "qualified institutional buyers" (as defined in
Rule 144A under the Securities Act). We have agreed to indemnify Merrill Lynch
and each selling securityholder, and each selling securityholder had agreed to
indemnify us, Merrill Lynch and each other selling shareholder against certain
liabilities arising under the Securities Act.
The selling securityholders and any other persons participating in such
distribution will be subject to the Exchange Act. The Exchange Act rules
include, without limitation, Regulation M, which may limit the timing of
purchases and sales of the LYONs and the underlying common stock by the selling
securityholders and any other such person. In addition, Regulation M of the
Exchange Act may restrict the ability of any person engaged in the distribution
of the LYONs and the underlying common stock to engage in market-making
activities with respect to the particular LYONs and the underlying common stock
being distributed for a period of up to five business days prior to the
commencement of such distribution. This may affect the marketability of the
LYONs and the underlying common stock and the ability of any person or entity to
engage in market-making activities with respect to the LYONs and the underlying
common stock.
We will use our reasonable efforts to keep the registration statement of
which this prospectus is a part effective until the earlier of (i) the sale
pursuant to the registration statement of all the securities registered
thereunder or (ii) the expiration of the holding period applicable to such
securities held by persons that are not our affiliates under Rule 144(k) under
the Securities Act or any successor provision, subject to certain permitted
exceptions in which case we may prohibit offers and sales of LYONs and common
stock pursuant to the registration statement to which this prospectus relates.
Under the securities laws of certain states, the LYONs may be sold in such
states only through registered or licensed brokers or dealers. In addition, in
certain states the LYONs may not be sold unless the LYONs have been registered
or qualified for sale in such state or an exemption from registration or
qualification is available and is complied with.
39
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. Our SEC
filings are available to the public over the Internet at the SEC's web site at
http://www.sec.gov. You may also read and copy any document we file with the SEC
at the SEC's following public reference facilities:
Public Reference Room Northeast Regional Office Chicago Regional Office
450 Fifth Street, N.W. The Woolworth Building Citicorp Center
Room 1024 233 Broadway 500 West Madison Street
Washington, D.C. 20549 New York, NY 10279 Suite 1400
Chicago, Illinois 60661-2511
You may also obtain copies of the documents at prescribed rates by writing
to the Public Reference Section of the SEC at 450 Fifth Street, N.W., Room 1024,
Washington, D.C. 20549. Please call 1-800-SEC-0330 for further information on
the operations of the public reference facilities. Our SEC filings are also
available at the offices of the New York Stock Exchange, 20 Broad Street, New
York, New York 10005.
This prospectus constitutes part of a registration statement on Form S-3
filed by Lowe's under the Securities Act of 1933. As allowed by SEC rules, this
prospectus does not contain all the information you can find in the registration
statement or the exhibits to the registration statement.
40
INCORPORATION OF INFORMATION FILED WITH THE SEC
The SEC allows us to "incorporate by reference" in this prospectus the
information we file with the SEC, which means:
. incorporated documents are considered part of this prospectus;
. we can disclose important information to you by referring you to those
documents; and
. our filings with the SEC will automatically update and supersede the
information in this prospectus and any information that was previously
incorporated.
The following documents filed by Lowe's with the SEC (file No. 1-7898) are
incorporated herein by reference and made a part hereof: (i) Lowe's Annual
Report on Form 10-K for the fiscal year ended February 1,2002, filed on April
26, 2002; and (ii) the description of Lowe's common stock and preferred stock
purchase rights contained in Lowe's registration statements on Form 8-A filed
under the Securities Exchange Act of 1934, as amended, including any amendment
or report filed for the purpose of updating such description.
You can obtain any of the filings incorporated by reference in this
document through us, or from the SEC through the SEC's web site or at the
addresses listed above. Documents incorporated by reference are available from
us without charge, excluding any exhibits to those documents unless the exhibit
is specifically incorporated by reference as an exhibit in this prospectus. You
can obtain documents incorporated by reference in this prospectus by requesting
them in writing or by telephone from us at the following address:
Marshall A. Croom
Lowe's Companies, Inc.
1605 Curtis Bridge Road
Wilkesboro, North Carolina 28697
Telephone: (336) 658-4000 or (888) 34LOWES
We also incorporate by reference each of the following documents that we
will file with the SEC after the date of the initial filing of the registration
statement and until the termination of the offering of the securities offered by
this prospectus:
. reports filed under Section 13(a) and (c) of the Exchange Act;
. proxy or information statements filed under Section 14 of the Exchange
Act in connection with any subsequent stockholders' meeting; and
. any reports filed under Section 15(d) of the Exchange Act.
Any statement contained in a document incorporated by reference herein
shall be deemed to be modified or superseded for purposes of the prospectus to
the extent that a statement contained herein or in any other subsequently filed
document that is incorporated by reference herein modifies or supersedes such
earlier statement. Any such statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of the
prospectus.
41
LEGAL MATTERS
The validity of the LYONs and the shares of common stock issuable upon
conversion of the LYONs has been passed upon for us by Hunton & Williams,
Richmond, Virginia.
EXPERTS
The financial statements incorporated in this prospectus by reference from
Lowe's Annual Report on Form 10-K for the fiscal year ended February 1, 2002
have been audited by Deloitte & Touche LLP, independent auditors, as stated in
their report, which is incorporated herein by reference, and have been so
incorporated in reliance upon the report of such firm given upon their authority
as experts in accounting and auditing.
42