Permitted Holders means (i)
us, (ii) one or more of our Controlled Subsidiaries, (iii) Our Employees, and (iv) a voting trust having a majority of its trustees who are Our
Employees and a majority of holders of its trust certificates or holders of uncertificated interests in such voting trust who are Our
Employees.
Rating Agency
means:
(1) |
|
each of Moodys and S&P; and |
(2) |
|
if either of Moodys or S&P ceases to rate the notes or
fails to make a rating of the notes publicly available for reasons outside of our control, a nationally recognized statistical rating
organization within the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act selected by us as a replacement agency for Moodys or
S&P, or both, as the case may be. |
S&P means Standard
& Poors Ratings Services, a division of McGraw-Hill, Inc., or any successor thereto.
Voting Stock as applied to
stock of any person, means shares, interests, participations or other equivalents in the equity interest (however designated) in such person having
ordinary voting power for the election of a majority of the directors (or the equivalent) of such person, other than shares, interests, participations
or other equivalents having such power only by reason of the occurrence of a contingency.
Optional Redemption of Notes
The notes will be redeemable as a whole
or in part, at our option at any time, at a redemption price equal to the greater of (i) 100% of the principal amount of the notes and (ii) the sum of
the present values of the remaining scheduled payments of principal and interest thereon (exclusive of interest accrued to the date of redemption)
discounted to the redemption date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 30 basis
points, plus accrued interest thereon to the date of redemption.
Treasury Rate means, with
respect to any redemption date, the rate per annum equal to the semiannual equivalent yield to maturity or interpolated (on a day count basis) of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such redemption date.
Comparable Treasury Issue
means the United States Treasury security or securities selected by an Independent Investment Banker as having an actual or interpolated maturity
comparable to the remaining term the notes to be redeemed that would be utilized, at the time of selection and in accordance with customary financial
practice, in pricing new issues of corporate debt securities of a comparable maturity to the remaining term of such notes.
Independent Investment
Banker means one of the Reference Treasury Dealers appointed by the trustee after consultation with us.
Comparable Treasury Price
means, with respect to any redemption date, (A) the average of the Reference Treasury Dealer Quotations for such redemption date, after excluding the
highest and lowest such Reference Treasury Dealer Quotations, or (B) if the trustee obtains fewer than four such Reference Treasury Dealer Quotations,
the average of all such quotations.
Reference Treasury Dealer
Quotations means, with respect to each Reference Treasury Dealer and any redemption date, the average, as determined by the trustee, of the bid
and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Trustee by
such Reference Treasury Dealer at 3:30 p.m. New York time on the third business day preceding such redemption date.
Reference Treasury Dealer
means each of Citigroup Global Markets, Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated, UBS Securities LLC, Banc of America Securities
LLC, J.P. Morgan Securities Inc. and Wachovia Capital Markets, LLC, or their affiliates which are primary U.S. Government securities dealers, and their
respective successors; provided, however, that if any of the foregoing or their affiliates shall
S-14
cease to be a primary U.S.
Government securities dealer in The City of New York (a Primary Treasury Dealer), the Company shall substitute therefor another Primary
Treasury Dealer.
Notice of any redemption will be mailed
at least 30 days but not more than 60 days before the redemption date to each holder of notes.
Unless we default in payment of the
redemption price, on and after the redemption date interest will cease to accrue on the notes or portions thereof called for
redemption.
Ranking
The notes are our obligations
exclusively, and are not obligations of our subsidiaries. We are a holding company and, accordingly, substantially all of our operations are conducted
through our subsidiaries. As a result, our cash flow and our ability to service our debt, including the notes, depend upon the earnings of our
subsidiaries. In addition, we depend on the distribution of earnings, loans or other payments by our subsidiaries to us.
Our subsidiaries are separate and
distinct legal entities. Our subsidiaries have no obligation to pay any amounts due on the notes or to provide us with funds for our payment
obligations. In addition, any payment of dividends, distributions, loans or advances by our subsidiaries to us could be subject to statutory or
contractual restrictions. Payments due to us by our subsidiaries will also be contingent upon our subsidiaries earnings and business
considerations.
Our right to receive any assets of any
of our subsidiaries, as an equity holder of such subsidiaries, upon their liquidation or reorganization, and therefore the right of the holders of the
notes to participate in those assets, would be structurally subordinated to the claims of that subsidiarys creditors, including trade creditors.
The notes do not restrict the ability of our subsidiaries to incur additional indebtedness. In addition, the notes are unsecured. Thus, even if we were
a creditor of any of our subsidiaries, our rights as a creditor would be subordinate to any security interest in the assets of our subsidiaries and any
indebtedness of our subsidiaries senior to that held by us.
Limitations on Liens
The indenture will provide that we will
not, and will not cause or permit any subsidiary to, create, assume, incur or guarantee any indebtedness for money borrowed that is secured by a
pledge, mortgage or other lien on any voting stock or profit participating equity interests of our subsidiaries or any entity that succeeds (whether by
merger, consolidation, sale of assets or otherwise) to all or any substantial part of the business of our subsidiaries, without providing that the
notes (together with, if we shall so determine, any other indebtedness of, or guarantee by, us ranking equally with the notes and existing as of the
closing of the offering of the notes or thereafter created) will be secured equally and ratably with or prior to all other indebtedness secured by such
pledge, mortgage or other lien on the voting stock or profit participating equity interests of our subsidiaries. This restriction will not apply to
permitted liens, including liens on voting stock or profit participating equity interests of any subsidiary existing at the time such entity becomes a
subsidiary of Eaton Vance or is merged into a subsidiary of Eaton Vance, and statutory liens, liens for taxes or assessments or governmental charges or
levies not yet due or delinquent or which can be paid without penalty or are being contested in good faith, and other liens of a similar nature as
those described above.
This covenant will not limit our
ability or the ability of our subsidiaries to incur indebtedness or other obligations secured by liens on assets other than the voting stock or profit
participating equity interests of our subsidiaries.
Events of Default
The notes contain customary events of
default, including in the non-payment of interest or principal and certain events of bankruptcy. See Description of the Notes Events of
Default in the accompanying base prospectus. In addition, an event of default with respect to the notes shall occur upon a default under any debt
for money borrowed by Eaton Vance or any subsidiary that results in the acceleration of the maturity of such
S-15
debt, or failure to pay any such
debt at maturity, in an aggregate amount greater than $50.0 million or its foreign currency equivalent at the time and such acceleration has not been
rescinded or annulled, or debt paid, within 30 days after notice to us by the trustee or holders of 25% or more of the then outstanding
notes.
Book-Entry System; Delivery and Form
The notes will be issued in the form of
one or more fully registered global securities which will be deposited with, or on behalf of, The Depository Trust Company, New York, New York, which
we refer to as DTC, and registered in the name of Cede & Co., DTCs nominee. We will not issue notes in certificated form. Beneficial
interests in the global securities will be represented through book-entry accounts of financial institutions acting on behalf of beneficial owners as
direct and indirect participants in DTC. Investors may elect to hold interests in the global securities through either DTC in the United States, or
Clearstream Banking, S.A. or Euroclear Bank S.A./N.V., as operator of the Euroclear System in Europe, referred to as Clearstream and Euroclear, if they
are participants of those systems, or, indirectly, through organizations that are participants in those systems. Clearstream and Euroclear will hold
interests on behalf of their participants through customers securities accounts in Clearstreams and Euroclears names on the books of
their respective depositories, which in turn will hold such interests in customers securities accounts in the depositories names on the
books of DTC. Beneficial interests in the global securities will be held in denominations of $1,000 and integral multiples thereof. Except as set forth
below, the global securities may be transferred, in whole but not in part, only to another nominee of DTC or to a successor to DTC or its
nominee.
DTC, the worlds largest
depository, is a limited-purpose trust company organized under the New York Banking Law, a banking organization within the meaning of the New York
Banking Law, a member of the Federal Reserve System, a clearing corporation within the meaning of the New York Uniform Commercial Code, and a clearing
agency registered pursuant to the provisions of Section 17A of the Exchange Act. DTC holds and provides asset servicing for issues of U.S. and non-U.S.
equity issues, corporate and municipal debt issues, and money market instruments that DTCs participants, which we refer to as direct
participants, deposit with DTC. DTC also facilitates the post-trade settlement among direct participants of sales and other securities transactions in
deposited securities through electronic computerized book-entry transfers and pledges between direct participants accounts. This eliminates the
need for physical movement of securities certificates. Direct participants include both U.S. and non-U.S. securities brokers and dealers, banks, trust
companies, clearing corporations, and certain other organizations. Access to the DTC system also is available to others, such as U.S. and non-U.S.
securities brokers and dealers, banks, trust companies, and clearing corporations, that clear through or maintain a custodial relationship with a
direct participant, either directly or indirectly. We refer to those entities as indirect participants.
Purchases of notes under the DTC system
must be made by or through direct participants, who receive a credit for the notes on DTCs records. The ownership interest of each actual
purchaser of each note, who we refer to as a beneficial owner, is in turn recorded on the direct and indirect participants records. Beneficial
owners will not receive written confirmation from DTC of their purchase. Beneficial owners are, however, expected to receive written confirmations
providing details of the transaction, as well as periodic statements of their holdings, from the direct or indirect participants through which the
beneficial owner entered into the transaction. Transfers of ownership interests in the notes will be accomplished by entries made on the books of
direct and indirect participants acting on behalf of beneficial owners. Beneficial owners will not receive certificates representing their ownership
interests in the notes, except in the event that use of the book entry system for the notes is discontinued.
To facilitate subsequent transfers, all
notes deposited by direct participants with DTC are registered in the name of DTCs partnership nominee, Cede & Co., or such other name as may
be requested by an authorized representative of DTC. The deposit of notes with DTC and their registration in the name of Cede & Co. or another DTC
nominee do not effect any change in beneficial ownership. DTC has no knowledge of the actual beneficial owners of the notes. DTCs records reflect
only the identity of the direct participants to whose accounts the notes are credited, which may or may not be the beneficial owners. The direct and
indirect participants remain responsible for keeping account of their holdings on behalf of their customers.
S-16
Conveyance of notices and other
communications by DTC to direct participants, by direct participants to indirect participants, and by direct participants and indirect participants to
beneficial owners will be governed by arrangements among them, subject to any statutory or regulatory requirements as may be in effect from time to
time.
Redemption notices will be sent to DTC.
If less than all of the notes are being redeemed, DTCs practice is to determine by lot the amount of the interest of each direct participant in
the notes to be redeemed.
Neither DTC, Cede & Co. nor any
other DTC nominee will consent or vote with respect to the notes unless authorized by a direct participant in accordance with DTCs procedures.
Under its usual procedures, DTC mails an omnibus proxy to us as soon as possible after the record date. The omnibus proxy assigns Cede & Co.s
consenting or voting rights to those direct participants to whose accounts notes are credited on the record date.
Redemption proceeds, distributions and
interest payments on the notes will be made to Cede & Co., or such other nominee as may be requested by an authorized representative of DTC.
DTCs practice is to credit direct participants accounts upon DTCs receipt of funds and corresponding detail information from us or
the exchange agent on the payable date in accordance with their respective holdings shown on DTCs records. Payments by participants to beneficial
owners will be governed by standing instructions and customary practices, as is the case with securities held for the accounts of customers in bearer
form or registered in street name, and will be the responsibility of such participant and not of DTC or its nominee, us, the trustee or the exchange
agent, subject to any statutory or regulatory requirements in effect from time to time. Payment of redemption proceeds, distributions, and dividend
payments to Cede & Co., or such other nominee as may be requested by an authorized representative of DTC, is the responsibility of us or the
exchange agent. Disbursement of such payments to direct participants will be the responsibility of DTC, and disbursement of such payments to the
beneficial owners will be the responsibility of direct and indirect participants.
DTC may discontinue providing its
services as depository with respect to the notes at any time by giving reasonable notice to us or the exchange agent. Under such circumstances, in the
event that a successor depository is not obtained, certificates representing the affected notes are required to be printed and delivered. In addition,
we may decide to discontinue use of the system of book-entry transfers through DTC or a successor securities depository with respect to the notes. In
that event, certificates representing the notes will be printed and delivered.
Similar to DTC, Euroclear and
Clearstream hold securities for participating organizations. They also facilitate the clearance and settlement of securities transactions between their
respective participants through electronic book-entry changes in the accounts of such participants. Euroclear and Clearstream provide various services
to their participants, including the safekeeping, administration, clearance, settlement, lending and borrowing of internationally traded securities.
Euroclear and Clearstream interface with domestic securities markets. Euroclear and Clearstream participants are financial institutions such as
underwriters, securities brokers and dealers, banks, trust companies and certain other organizations. Indirect access to Euroclear and Clearstream is
also available to others such as banks, brokers, dealers and trust companies that clear through or maintain a custodial relationship with a Euroclear
and Clearstream participant, either directly or indirectly.
Distributions with respect to notes
held beneficially through Euroclear or Clearstream will be credited to the cash accounts of participants in Euroclear or Clearstream, as the case may
be, in accordance with their respective procedures, to the extent received by the U.S. depositary for Euroclear or Clearstream.
The information in this section
concerning DTC, Euroclear and Clearstream have been obtained from sources that we believe to be reliable, but neither we nor the trustee take any
responsibility for the accuracy of the information.
Global Clearance and Settlement
Procedures
Initial settlement for the notes will
be made in immediately available funds. Secondary market trading between participants will occur in the ordinary way in accordance with DTCs
rules and will be settled in immediately available funds using DTCs Same-Day Funds Settlement System. Secondary market trading
S-17
between Clearstream participants
and Euroclear participants will occur in the ordinary way in accordance with the applicable rules and operating procedures of Clearstream and Euroclear
and will be settled using the procedures applicable to conventional eurobonds in immediately available funds.
Cross-market transfers between persons
holding directly or indirectly through DTC on the one hand, and directly or indirectly through Clearstream or Euroclear participants, on the other,
will be effected within DTC in accordance with DTCs rules on behalf of the relevant European international clearing system by its U.S.
depository; however, such cross-market transactions will require delivery of instructions to the relevant European international clearing system by the
participant in such system in accordance with its rules and procedures and within its established deadlines. The relevant European international
clearing system will, if the transaction meets its settlement requirements, deliver instructions to its U.S. depository to take action to effect final
settlement on its behalf by delivering or receiving notes in DTC, and making or receiving payment in accordance with normal procedures for same-day
funds settlement applicable to DTC. Clearstream participants and Euroclear participants may not deliver instructions directly to their respective U.S.
depositories. Because of time-zone differences, credits of notes received in Clearstream or Euroclear as a result of a transaction with a DTC
participant will be made during subsequent securities settlement processing and dated the business day following the DTC settlement date. Such credits,
or any transactions in the notes settled during such processing, will be reported to the relevant Euroclear participants or Clearstream participants on
that business day. Cash received in Clearstream or Euroclear as a result of sales of notes by or through a Clearstream participant or a Euroclear
participant to a DTC participant will be received with value on the business day of settlement in DTC but will be available in the relevant Clearstream
or Euroclear cash account only as of the business day following DTC settlement in DTC.
Although DTC, Clearstream and Euroclear
have agreed to the foregoing procedures in order to facilitate transfers of securities among participants of DTC, Clearstream and Euroclear, they are
under no obligation to perform or continue to perform such procedures and they may discontinue the procedures at any time.
S-18
CERTAIN ERISA CONSIDERATIONS
The Employee Retirement Income Security
Act of 1974, as amended (ERISA), and the Internal Revenue Code of 1986, as amended (the Code), impose certain restrictions on
(a) employee benefit plans (as defined in Section 3(3) of ERISA) subject to ERISA, (b) plans described in Section 4975(e)(1) of the Code, including
individual retirement accounts or Keogh plans, (c) any entities whose underlying assets include plan assets under the Plan Asset Regulation
(29 C.F.R. Section 2510.3-101), as modified by Section 3(42) of ERISA, (each, a Plan) and (d) persons and entities who have certain
specified relationships to such Plans (each, a Party-in-Interest under ERISA and Disqualified Person under the Code). A Plan
fiduciary considering a purchase of the notes should consider whether such purchase might constitute or result in a prohibited transaction under ERISA
or Section 4975 of the Code, for which no exemption is available.
By purchasing and holding the notes,
the purchaser and any fiduciary of the purchaser advising its purchase and holding of the notes will be deemed to represent and warrant on each day the
purchaser holds the notes that its acquisition, holding and disposition of the notes will not constitute or result in a prohibited transaction under
Section 406 of ERISA or Section 4975 of the Code (or in a violation of any similar laws), unless an exemption is available and all its conditions have
been satisfied.
CERTAIN U.S. FEDERAL INCOME
TAX CONSEQUENCES TO
NON-U.S. HOLDERS
The following is a general discussion
of certain U.S. federal income tax consequences of the purchase, ownership and disposition of the notes by an initial holder of the notes who is a
non-U.S. holder (as defined below) that acquires the notes pursuant to this sale at the initial sale price and holds the notes as capital assets for
U.S. federal income tax purposes. This discussion is based upon the Code, U.S. Treasury Regulations and judicial decisions and administrative
interpretations thereof, all as of the date hereof and all of which are subject to change, possibly with retroactive effect. This discussion does not
address all aspects of U.S. federal income taxation that may be applicable to investors in light of their particular circumstances, or to investors
subject to special treatment under U.S. federal income tax law, such as financial institutions, insurance companies, tax-exempt organizations, entities
that are treated as partnerships for U.S. federal income tax purposes, dealers in securities or currencies, expatriates, persons deemed to sell the
notes under the constructive sale provisions of the Code and persons that hold the notes as part of a straddle, hedge, conversion transaction or other
integrated investment. Furthermore, this discussion does not address any U.S. federal estate or gift tax laws or any state, local or foreign tax
laws.
Prospective investors are urged to
consult their tax advisors regarding the U.S. federal, state, local and foreign income and other tax consequences of the purchase, ownership and
disposition of the notes.
For purposes of this summary, the term
non-U.S. holder means a beneficial owner of a note that, for U.S. federal income tax purposes, is (i) an individual that is not a citizen
or resident of the United States, (ii) a corporation or other entity treated as a corporation for U.S. federal income tax purposes that is not created
or organized under the laws of the United States, any states thereof or the District of Columbia, (iii) an estate the income of which is not subject to
U.S. federal income taxation, or (iv) a trust if (A) no court within the United States is able to exercise primary control over its administration or
no United States persons (as defined in the Code) have the authority to control all substantial decisions of such trust, and (B) the trust has not made
an election under the applicable Treasury regulations to be treated as a United States person.
If a partnership (including any entity
or arrangement treated as a partnership for U.S. federal income tax purposes) owns the notes, the tax treatment of a partner in the partnership will
depend upon the status of the partner and the activities of the partnership. Partners in a partnership that owns the notes should consult their tax
advisors as to the particular U.S. federal income tax consequences applicable to them.
Interest
A non-U.S. holder generally will not be
subject to U.S. federal income or withholding tax on payments of interest on the notes provided that (i) such interest is not effectively connected
with the conduct of a trade
S-19
or business within the United
States by the non-U.S. holder and (ii) the non-U.S. holder (A) does not actually or constructively own 10 percent or more of the total combined voting
power of all classes of our voting stock, (B) is not a controlled foreign corporation related to us directly or constructively through stock ownership,
and (C) satisfies certain certification requirements. Such certification requirements will be met if (x) the non-U.S. holder provides its name and
address, and certifies on an Internal Revenue Service (IRS) Form W-8BEN (or a substantially similar form), under penalties of perjury, that
it is not a United States person or (y) a securities clearing organization or certain other financial institutions holding the note on behalf of the
non-U.S. holder certifies on IRS Form W-8IMY (or a substantially similar form), under penalties of perjury, that such certification has been received
by it and furnishes us or our paying agent with a copy thereof. In addition, we or our paying agent must not have actual knowledge or reason to know
that the beneficial owner of the notes is a United States person.
If interest on the notes is not
effectively connected with the conduct of a trade or business in the United States by a non-U.S. holder but such non-U.S. holder cannot satisfy the
other requirements outlined in the preceding paragraph, interest on the notes generally will be subject to U.S. withholding tax at a 30 percent rate
(or a lower applicable treaty rate).
If interest on the notes is effectively
connected with the conduct of a trade or business within the United States by a non-U.S. holder, and, if certain tax treaties apply, is attributable to
a permanent establishment or fixed base within the United States, then the non-U.S. holder generally will be subject to U.S. federal income tax on such
interest in the same manner as if such holder were a United States person and, in the case of a non-U.S. holder that is a foreign corporation, may also
be subject to the branch profits tax at a rate of 30 percent (or a lower applicable treaty rate). Any such interest will not also, however, be subject
to withholding tax if the non-U.S. holder delivers to us a properly executed IRS Form W-8ECI (or a substantially similar form) in order to claim an
exemption from withholding tax.
Disposition of the Notes
A non-U.S. holder generally will not be
subject to U.S. federal withholding tax with respect to gain, if any, recognized on the disposition of the notes. A non-U.S. holder will also generally
not be subject to U.S. federal income tax with respect to such gain unless (i) the gain is effectively connected with the conduct of a trade or
business within the United States by the non-U.S. holder and, if certain tax treaties apply, is attributable to a permanent establishment or fixed base
within the United States, or (ii) in the case of a non-U.S. holder that is a nonresident alien individual, such holder is present in the United States
for 183 or more days in the taxable year and certain other conditions are satisfied. In the case described in (i) above, gain or loss recognized on the
disposition of such notes generally will be subject to U.S. federal income taxation in the same manner as if such gain or loss were recognized by a
United States person, and, in the case of a non-U.S. holder that is a foreign corporation, may also be subject to the branch profits tax at a rate of
30 percent (or a lower applicable treaty rate). In the case described in (ii) above, the non-U.S. holder generally will be subject to a 30 percent tax
on any capital gain recognized on the disposition of the notes (after being offset by certain U.S. source capital losses).
Information Reporting and Backup
Withholding
A non-U.S. holder generally will be
required to comply with certain certification procedures to establish that such holder is not a United States person in order to avoid backup
withholding with respect to payments of principal and interest on or the proceeds of a disposition of the notes. In addition, we must report annually
to the IRS and to each non-U.S. holder the amount of any interest paid to such non-U.S. holder regardless of whether any tax was actually withheld.
Copies of the information returns reporting such interest payments and the amount of any tax withheld also may be made available to the tax authorities
in the country in which a non-U.S. holder resides under the provisions of an applicable income tax treaty. Any amounts withheld under the backup
withholding rules will be allowed as a refund or credit against a non-U.S. holders U.S. federal income tax liability, provided the required
information is provided to the IRS.
S-20
UNDERWRITING
Citigroup Global Markets Inc. and
Merrill Lynch, Pierce, Fenner & Smith Incorporated are acting as joint book-running managers of the offering and as representatives of the
underwriters named below.
Subject to the terms and conditions
stated in the underwriting agreement dated the date of this prospectus supplement, each underwriter named below has agreed to purchase, and we have
agreed to sell to that underwriter, the principal amount of notes set forth opposite the underwriters name.
Underwriter
|
|
|
|
Principal Amount of Notes
|
Citigroup
Global Markets Inc. |
|
|
|
$ |
200,000,000 |
|
Merrill
Lynch, Pierce, Fenner & Smith Incorporated |
|
|
|
|
200,000,000 |
|
UBS
Securities LLC |
|
|
|
|
40,000,000 |
|
Banc of
America Securities LLC |
|
|
|
|
20,000,000 |
|
J.P. Morgan
Securities Inc. |
|
|
|
|
20,000,000 |
|
Wachovia
Capital Markets, LLC |
|
|
|
|
20,000,000 |
|
Total
|
|
|
|
$ |
500,000,000 |
|
The underwriting agreement provides
that the obligations of the underwriters to purchase the notes included in this offering are subject to approval of legal matters by counsel and to
other conditions. The underwriters are obligated to purchase all the notes if they purchase any of the notes.
The underwriters propose to offer some
of the notes directly to the public at the public offering price set forth on the cover page of this prospectus supplement and some of the notes to
dealers at the public offering price less a concession not to exceed 0.40% of the principal amount of the notes. The underwriters may allow, and
dealers may reallow a concession not to exceed 0.25% of the principal amount of the notes on sales to other dealers. After the initial offering of the
notes to the public, the representatives may change the public offering price and concessions.
The following table shows the
underwriting discounts and commissions that we are to pay to the underwriters in connection with this offering (expressed as a percentage of the
principal amount of notes).
|
|
|
|
Paid by Eaton Vance
|
Per note
|
|
|
|
|
0.65 |
% |
In connection with the offering of
notes, the joint book-running managers on behalf of the underwriters may purchase and sell notes in the open market. These transactions may include
over-allotment, syndicate covering transactions and stabilizing transactions. Over-allotment involves syndicate sales of notes in excess of the
principal amount of notes to be purchased by the underwriters in the offering, which creates a syndicate short position. Syndicate covering
transactions involve purchases of the notes in the open market after the distribution has been completed in order to cover syndicate short positions.
Stabilizing transactions consist of certain bids or purchases of notes made for the purpose of preventing or retarding a decline in the market price of
the notes while the offering is in progress.
The underwriters also may impose a
penalty bid. Penalty bids permit the underwriters to reclaim a selling concession from a syndicate member when the joint book-running managers, in
covering syndicate short positions or making stabilizing purchases, repurchase notes originally sold by that syndicate member.
Any of these activities may have the
effect of preventing or retarding a decline in the market price of the notes. They may also cause the price of the notes to be higher than the price
that otherwise would exist in the open market in the absence of these transactions. The underwriters may conduct these transactions in the
over-the-counter market or otherwise. If the underwriters commence any of these transactions, they may discontinue them at any time.
We estimate that our total expenses for
this offering will be $835,000.
S-21
The underwriters have performed
investment banking and advisory services for us and for certain of the Eaton Vance funds from time to time in the ordinary course, for which they have
received customary fees and expenses. These services have included acting as underwriters and distributors for certain of the Eaton Vance funds and
providing financing to us and to those funds. The underwriters may, from time to time, engage in other transactions with and perform services for us in
the ordinary course of their business.
A prospectus in electronic format may
be made available on the websites maintained by one or more of the underwriters. The representatives may agree to allocate a number of notes to
underwriters for sale to their online brokerage account holders. The representatives will allocate notes to underwriters that may make Internet
distributions on the same basis as other allocations. In addition, notes may be sold by the underwriters to securities dealers who resell notes to
online brokerage account holders.
We have agreed to indemnify the
underwriters against certain liabilities, including liabilities under the Securities Act of 1933, or to contribute to payments the underwriters may be
required to make because of any of those liabilities.
European Economic Area
In relation to each Member State of the
European Economic Area which has implemented the Prospectus Directive (each, a Relevant Member State), an offer to the public of any notes
which are the subject of the offering contemplated by this prospectus supplement and the accompanying prospectus (the Securities) may not
be made in that Relevant Member State except that an offer to the public in that Relevant Member State of any Securities may be made at any time under
the following exemptions under the Prospectus Directive, if they have been implemented in that Relevant Member State:
(a) |
|
to legal entities which are authorized or regulated to operate
in the financial markets or, if not so authorized or regulated, whose corporate purpose is solely to invest in securities; |
(b) |
|
to any legal entity which has two or more of (1) an average of
at least 250 employees during the last financial year; (2) a total balance sheet of more than e43,000,000 and (3) an annual net turnover of more than
e50,000,000, as shown in its last annual or consolidated accounts; |
(c) |
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by the underwriters to fewer than 100 natural or legal persons
(other than qualified investors as defined in the Prospectus Directive) subject to obtaining the prior consent of the joint book-running underwriters
for any such offer; or |
(d) |
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in any other circumstances which do not require the publication
by the issuer of a prospectus pursuant to Article 3(2) of the Prospectus Directive; |
provided that no such offer of Securities shall result in a
requirement for the publication by the issuer or any underwriter of a prospectus pursuant to Article 3 of the Prospectus Directive.
For the purposes of this provision, the
expression an offer to the public in relation to any Securities in any Relevant Member State means the communication in any form and by any
means of sufficient information on the terms of the offer and any Securities to be offered so as to enable an investor to decide to purchase or
subscribe any Securities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, and
the expression Prospectus Directive means Directive 2003/71/EC and includes any relevant implementing measure in each Relevant Member
State.
The EEA selling restriction is in
addition to any other selling restrictions set out below.
United Kingdom
Each underwriter:
(a) |
|
has only communicated or caused to be communicated and will only
communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial
Services and Markets Act 2000 (the FSMA)) received by it in |
S-22
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connection with the issue or sale of the Securities in
circumstances in which Section 21(1) of the FSMA does not apply to the Issuer; and |
(b) |
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has complied and will comply with all applicable provisions of
the FSMA with respect to anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom. |
France
No prospectus (including any amendment,
supplement or replacement thereto) has been prepared in connection with the offering of the Securities that has been approved by the Autorité
des marchés financiers or by the competent authority of another State that is a contracting party to the Agreement on the European Economic
Area and notified to the Autorité des marchés financiers; no Securities have been offered or sold nor will be offered or sold,
directly or indirectly, to the public in France; the prospectus or any other offering material relating to the Securities have not been distributed or
caused to be distributed and will not be distributed or caused to be distributed to the public in France; such offers, sales and distributions have
been and shall only be made in France to persons licensed to provide the investment service of portfolio management for the account of third parties,
qualified investors (investisseurs qualifiés) and/or a restricted circle of investors (cercle restreint dinvestisseurs), in
each case investing for their own account, all as defined in Articles L. 411-2, D. 411-1, D. 411-2, D. 411-4, D. 734-1, D. 744-1, D. 754-1 and D. 764-1
of the Code monétaire et financier. The direct or indirect distribution to the public in France of any so acquired Securities may be made
only as provided by Articles L. 411-1, L. 411-2, L. 412-1 and L. 621-8 to L. 621-8-3 of the Code monétaire et financier and applicable
regulations thereunder.
Italy
Each underwriter has not and will not
publish a prospectus in Italy in connection with the offering of the Securities. Such offering has not been cleared by the Italian Securities Exchange
Commission (Commissione Nazionale per le Societ|$$|Aga e la Borsa, the CONSOB) pursuant to Italian securities legislation and, accordingly,
the Securities may not and will not be offered, sold or delivered, nor may or will copies of the Prospectus or any other documents relating to the
Securities be distributed in Italy, except (i) to professional investors (operatori qualificati), as defined in Article 31, second paragraph, of
CONSOB Regulation No. 11522 of July 1, 1998, as amended, (the Regulation No. 11522), or (ii) in other circumstances which are exempted from
the rules governing offers of securities to the public pursuant to Article 100 of Legislative Decree No. 58 of February 24, 1998 (the Italian
Finance Law) and Article 33, first paragraph, of CONSOB Regulation No. 11971 of May 14, 1999, as amended.
Any offer, sale or delivery of the
Securities or distribution of copies of the prospectus supplement, the accompanying prospectus, or any other document relating to the Securities in
Italy may and will be effected in accordance with all Italian securities, tax, exchange control and other applicable laws and regulations, and, in
particular, will be: (i) made by an investment firm, bank or financial intermediary permitted to conduct such activities in Italy in accordance with
the Italian Finance Law, Legislative Decree No. 385 of September 1, 1993, as amended (the Italian Banking Law), Regulation No. 11522, and
any other applicable laws and regulations; (ii) in compliance with Article 129 of the Italian Banking Law and the implementing guidelines of the Bank
of Italy; and (iii) in compliance with any other applicable notification requirement or limitation which may be imposed by CONSOB or the Bank of
Italy.
Any investor purchasing the Securities
in the offering is solely responsible for ensuring that any offer or resale of the Securities it purchased in the offering occurs in compliance with
applicable Italian laws and regulations.
The prospectus supplement and the
accompanying prospectus and the information contained therein are intended only for the use of its recipient and, unless in circumstances which are
exempted from the rules governing offers of securities to the public pursuant to Article 100 of the Italian Finance Law and Article 33, first
paragraph, of CONSOB Regulation No. 11971 of May 14, 1999, as amended, is not to be distributed, for any reason, to any third party resident or located
in Italy. No person resident or located in Italy other than the original recipients of this document may rely on it or its content.
S-23
Italy has only partially implemented
the Prospectus Directive, the provisions under the heading European Economic Area above shall apply with respect to Italy only to the
extent that the relevant provisions of the Prospectus Directive have already been implemented in Italy.
Insofar as the requirements above are
based on laws which are superseded at any time pursuant to the implementation of the Prospectus Directive in Italy, such requirements shall be replaced
by the applicable requirements under the relevant implementing measures of the Prospectus Directive in Italy.
Hong Kong
Each underwriter:
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has not offered or sold and will not offer or sell in Hong Kong,
by means of any document, any Securities other than to (i) professional investors as defined in the Securities and Futures Ordinance (Cap.
571) of Hong Kong and any rules made under that Ordinance; or (ii) in other circumstances which do not result in the document being a
prospectus as defined in the Companies Ordinance (Cap. 32) of Hong Kong or which do not constitute an offer to the public within the
meaning of that Ordinance; and |
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has not issued or had in its possession for the purposes of
issue, and will not issue or have in its possession for the purposes of issue, whether in Hong Kong or elsewhere, this prospectus supplement, the
accompanying prospectus, any other offering material or any advertisement, invitation or document relating to the Securities, which is directed at, or
the contents of which are or are likely to be accessed or read by, the public in Hong Kong (except if permitted to do so under securities laws of Hong
Kong) other than with respect to Securities which are or are intended to be disposed of only to persons outside Hong Kong or only to professional
investors within the meaning of the Securities and Futures Ordinance (Cap. 571) of Hong Kong and any rules made under that Ordinance. |
Japan
The Securities have not been and will
not be registered under the Securities and Exchange Law of Japan. The underwriters will not offer or sell, directly or indirectly, any of the
Securities in Japan or to, or for the account or benefit of, any resident of Japan or to, or for the account or benefit of, any resident for reoffering
or resale, directly or indirectly, in Japan or to, or for the account or benefit of, any resident of Japan, which includes any corporation or other
entity organized under the laws of Japan, or to others for re-offering or resale, directly or indirectly, in Japan or for the account of any resident
of Japan, except (i) pursuant to an exemption from the registration requirements of, or otherwise in compliance with, the Securities and Exchange Law
of Japan and (ii) in compliance with the other relevant laws and regulations of Japan.
Singapore
This prospectus supplement and the
accompanying prospectus have not been and will not be registered as a prospectus with the Monetary Authority of Singapore under the Securities and
Futures Act (Chapter 289 of Singapore) (the SFA). Accordingly, each Underwriter has not offered or sold any Securities or caused the
Securities to be made the subject of an invitation for subscription or purchase and will not offer or sell any Securities or cause the Securities to be
made the subject of an invitation for subscription or purchase, and has not circulated or distributed, nor will it circulate or distribute, this
prospectus supplement or the accompanying prospectus or any other document or material in connection with the offer or sale, or invitation for
subscription or purchase, of the Securities, whether directly or indirectly, to persons in Singapore other than (i) to an institutional investor under
Section 274 of the SFA, (ii) to a relevant person, or any person pursuant to Section 275(1A), and in accordance with the conditions, specified in
Section 275 of the SFA or (iii) otherwise pursuant to, and in accordance with the conditions of, any other applicable provision of the
SFA.
S-24
Each underwriter will notify (whether
through the distribution of this prospectus supplement and the accompanying prospectus or otherwise) each of the following relevant persons specified
in Section 275 of the SFA which has subscribed or purchased Securities from or through that underwriter, namely a person which is:
(a) |
|
a corporation (which is not an accredited investor) the sole
business of which is to hold investments and the entire share capital of which is owned by one or more individuals, each of whom is an accredited
investor; or |
(b) |
|
a trust (where the trustee is not an accredited investor) whose
sole purpose is to hold investments and each beneficiary is an accredited investor, |
that shares, debentures and units of shares and debentures of
that corporation or the beneficiaries rights and interest in that trust shall not be transferable for 6 months after that corporation or that
trust has acquired the Securities under Section 275 of the SFA except:
(1) |
|
to an institutional investor under Section 274 of the SFA or to
a relevant person, or any person pursuant to Section 275(1A) of the SFA, and in accordance with the conditions, specified in Section 275 of the
SFA; |
(2) |
|
where no consideration is given for the transfer; or |
S-25
LEGAL MATTERS
Certain legal matters regarding the
notes will be passed upon for Eaton Vance by Alan R. Dynner, Vice President, Secretary and Chief Legal Officer of Eaton Vance and by Nixon Peabody LLP,
special counsel to Eaton Vance. In addition to serving as Vice President, Secretary and Chief Legal Officer of Eaton Vance, Mr. Dynner is a voting
trustee of the voting trust that owns all outstanding shares of Eaton Vances voting common stock and may be deemed to be the beneficial owner of
all of the Companys outstanding voting common stock by virtue of Rule 13d-3(a)(1) under the Securities Exchange Act of 1934, although the voting
trust agreement provides that the voting trustees shall act by a majority if there are six or more voting trustees. See Security Ownership of
Certain Beneficial Owners and Management and Related Stockholder Matters Common Stock in our Annual Report on Form 10-K, which is
incorporated by reference herein, for a general discussion of our voting trust arrangement. Certain legal matters regarding the notes will be passed
upon for the underwriters by Cleary Gottlieb Steen & Hamilton LLP.
EXPERTS
The financial statements and
managements report on the effectiveness of internal control over financial reporting incorporated in this prospectus supplement by reference from
the Companys Annual Report on Form 10-K for the year ended October 31, 2006 have been audited by Deloitte & Touche LLP, an independent
registered public accounting firm, as stated in their reports, which are incorporated herein by reference, and have been so incorporated in reliance
upon the reports of such firm given upon their authority as experts in accounting and auditing.
S-26
EATON VANCE CORP.
NON-VOTING COMMON STOCK
DEBT SECURITIES
DEPOSITARY
SHARES
WARRANTS
STOCK PURCHASE CONTRACTS
STOCK PURCHASE UNITS
We may offer, issue and sell from time
to time, together or separately, the types of securities listed above.
This prospectus provides you with a
general description of the securities we may offer. Each time we offer securities for sale, we will provide a supplement to this prospectus that
contains specific information about the offering and the terms of the securities being offered. A prospectus supplement may also add to or update
information contained in this prospectus. You should read this prospectus and any accompanying prospectus supplement carefully before you make your
investment decision.
We may offer and sell the securities
directly to you, through agents we select or through underwriters or dealers we select. If we use agents, underwriters or dealers to sell the
securities, we will name them and describe their compensation in a prospectus supplement. The net proceeds we expect to receive from such sales will be
set forth in the prospectus supplement.
Our non-voting common stock is listed
on the New York Stock Exchange, or NYSE, under the trading symbol EV. Each prospectus supplement will indicate if the securities offered
thereby will be listed on any securities exchange.
Investing in our securities involves
risks, including the risks described in our Annual Report on Form 10-K for the fiscal year ended October 31, 2006, filed with the Securities and
Exchange Commission, or the SEC, on January 12, 2007, the risk factors described under the caption Risk Factors in any applicable
prospectus supplement and/or risk factors, if any, set forth in our other filings with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934, as amended, or the Exchange Act, as referenced on page 1 of this prospectus.
Neither the Securities and Exchange
Commission nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of the
prospectus. Any representation to the contrary is a criminal offense.
The date of this prospectus is September 25,
2007.
TABLE OF CONTENTS
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Page
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ABOUT THIS
PROSPECTUS |
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1 |
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RISK FACTORS
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1 |
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WHERE YOU CAN
FIND MORE INFORMATION |
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1 |
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FORWARD-LOOKING
INFORMATION |
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3 |
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USE OF PROCEEDS
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4 |
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RATIO OF
EARNINGS TO FIXED CHARGES |
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5 |
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DESCRIPTION OF
DEBT SECURITIES |
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6 |
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DESCRIPTION OF
CAPITAL STOCK |
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15 |
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DESCRIPTION OF
OTHER SECURITIES |
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15 |
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PLAN OF
DISTRIBUTION |
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16 |
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LEGAL MATTERS
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19 |
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EXPERTS
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20 |
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In this prospectus, we,
us, our, and Eaton Vance refer to Eaton Vance Corp. and its subsidiaries, unless otherwise
specified.
In this prospectus, we sometimes refer
to the common stock, debt securities, depositary shares, warrants, stock purchase contracts and stock purchase units collectively as offered
securities.
i
ABOUT THIS PROSPECTUS
This prospectus is part of a
registration statement that we filed with the SEC using a shelf registration process. Under this shelf process, we may, from time to time,
sell any combination of the securities in one or more offerings described in this prospectus. This prospectus provides you with a general description
of the securities we may offer. Each time we offer securities, we will provide a prospectus supplement that will contain specific information about the
terms of that offering. The prospectus supplement may also add to, update or change information contained in this prospectus and, accordingly, to the
extent inconsistent, the information in this prospectus is superseded by the information in the prospectus supplement. You should read this prospectus,
the applicable prospectus supplement and the additional information incorporated by reference in this prospectus described below under Where You
Can Find More Information before making an investment in our securities.
The prospectus supplement will
describe: the terms of the securities offered, any initial public offering price, the price paid to us for the securities, the net proceeds to us, the
manner of distribution and any underwriting compensation and the other specific material terms related to the offering of these securities. The
prospectus supplement may also contain information, where applicable, about material U.S. federal income tax considerations relating to the securities.
For more detail on the terms of the securities, you should read the exhibits filed with or incorporated by reference in our registration statement of
which this prospectus forms a part.
This prospectus contains summaries of
certain provisions contained in some of the documents described herein, but reference is made to the actual documents for complete information. All of
the summaries are qualified in their entirety by the actual documents. Copies of the documents referred to herein have been filed, or will be filed or
incorporated by reference as exhibits to the registration statement of which this prospectus is a part, and you may obtain copies of those documents as
described below under Where You Can Find More Information.
You should rely only on the information
contained or incorporated by reference in this prospectus and any prospectus supplement. We have not authorized anyone else to provide you with
different information. If anyone provides you with different information, you should not rely on it. We are not making an offer to sell these
securities in any jurisdiction where the offer or sale is not permitted. You should assume that the information appearing in this prospectus and any
prospectus supplement, or any documents incorporated by reference therein, is accurate only as of the date on the front cover of the applicable
document. Our business, financial condition, results of operations and prospects may have changed since that date.
RISK FACTORS
You should carefully consider the
specific risks described in our Annual Report on Form 10-K for the fiscal year ended October 31, 2006, the risk factors described under the caption
Risk Factors in any applicable prospectus supplement, and any risk factors set forth in our other filings with the SEC pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act before making an investment decision. See Where You Can Find More
Information.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current
reports and other information, with the SEC. These reports and other information can be read and copied upon payment of a duplication fee at the
SECs Public Reference Room located at Station Place, 100 F Street, N.E., Washington, DC 20549. Please call the SEC at 1-800-SEC-0330 for further
information on the operation of the Public Reference Room in Washington D.C. and other locations. The SEC maintains a website (http://www.sec.gov) that
contains reports and other information regarding companies that file electronically with the SEC, including us. These reports and other information can
also be read at the offices of the NYSE, 20 Broad Street, New York, New York 10005 or through our website (http://www.eatonvance.com). Information on
our website is not incorporated into this prospectus or our other SEC filings and is not a part of this prospectus or those filings.
1
The SEC allows us to incorporate
by reference the information we file with the SEC. This permits us to disclose important information to you by referencing these filed documents.
Any statement contained or incorporated by reference in this prospectus shall be deemed to be modified or superseded for purposes of this prospectus to
the extent that a statement contained herein, or in any subsequently filed document which also is incorporated by reference herein, modifies or
supersedes such earlier statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a
part of this prospectus.
The following documents have been filed
by us (File No. 001-08100) with the SEC and are incorporated by reference into this prospectus (excluding any portions of such documents that have been
furnished but not filed for purposes of the Exchange Act):
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Annual Report on Form 10-K for the year ended October 31, 2006,
filed with the SEC on January 12, 2007, as amended by the Form 10-K/A filed with the SEC on September 25, 2007; |
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Quarterly Reports on Form 10-Q for the quarters ended January
31, 2007, April 30, 2007 and July 31, 2007, filed with the SEC on March 9, 2007, June 7, 2007 and September 7, 2007, respectively; |
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Current Reports on Form 8-K filed with the SEC on November 21,
2006, February 28, 2007, May 23, 2007, July 26, 2007, August 15, 2007 and August 22, 2007; and |
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The description of our non-voting common stock set forth in our
Registration Statement on Form 8-B, filed on February 4, 1981 (File No. 001-08100), including any amendments or reports filed for the purpose of
updating such information. |
All documents we file pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this prospectus and before all of the securities offered by this prospectus are
sold are incorporated by reference in this prospectus from the date of filing of the documents, except for information furnished under Item
2.02 and Item 7.01 of Form 8-K or other information furnished to the SEC, which is not deemed filed and not incorporated by reference
herein. Information that we file with the SEC will automatically update and may replace information in this prospectus and information previously filed
with the SEC.
We will provide without charge to each
person, including any beneficial owner, to whom this prospectus is delivered, upon written or oral request, a copy of any or all of the foregoing
documents, and any other documents that are, incorporated herein by reference (other than exhibits unless such exhibits are specifically incorporated
by reference in such documents). Requests for such documents should be directed to our principal executive office, located at: The Eaton Vance
Building, 255 State Street, Boston, Massachusetts 02109, (617) 482-8260, Attention: Investor Relations.
2
FORWARD-LOOKING INFORMATION
Certain information included or
incorporated by reference in this document may be deemed to be forward looking statements within the meaning of the Private Securities
Litigation Reform Act of 1995. In addition, we may make other written and oral communications from time to time that contain such statements.
Forward-looking statements include statements as to industry trends and our future expectations and other matters that do not relate strictly to
historical facts and are based on certain assumptions by our management. These statements are often identified by the use of words such as
may, will, expect, believe, anticipate, intend, could,
should, estimate or continue, and similar expressions or variations. These statements are based on the beliefs and
assumptions of our management based on information currently available to our management. Such forward-looking statements are subject to risks,
uncertainties and other factors that could cause actual results to differ materially from future results expressed or implied by such forward-looking
statements. Important factors that could cause actual results to differ materially from the forward-looking statements include, among others, the risks
described in our Annual Report on Form 10-K for the fiscal year ended October 31, 2006, the risks described under the caption Risk Factors
in any applicable prospectus supplement and any risk set forth in our other filings with the SEC that are incorporated by reference into this
prospectus or any applicable prospectus supplement. You should carefully consider these factors before investing in our securities. Such
forward-looking statements speak only as of the date they are made, and except for our ongoing obligations under the U.S. federal securities laws, we
undertake no obligation to publicly update any forward-looking statements, whether as a result of new information, future events or
otherwise.
3
USE OF PROCEEDS
Unless otherwise indicated in the
applicable prospectus supplement, we intend to use the net proceeds of any securities sold for general corporate purposes.
4
RATIO OF EARNINGS TO FIXED CHARGES
Our ratio of earnings to fixed charges
for each of the periods indicated is as follows:
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Nine Months Ended July 31,
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Year Ended October 31,
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2007
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2006
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2005
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2004
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2003
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2002
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Ratio of
earnings to fixed charges |
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561%* |
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492 |
% |
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447 |
% |
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321 |
% |
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262 |
% |
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289 |
% |
These ratios include
Eaton Vance and its subsidiaries. For purposes of calculating the ratio of earnings to fixed charges, earnings consist of pretax income less equity in
earnings of unconsolidated affiliates plus fixed charges and distributed earnings of unconsolidated affiliates. Fixed charges include gross interest
expense, amortization of deferred financing expenses and an amount equivalent to interest included in rental charges. We have assumed that one-third of
rental expense is representative of the interest factor.
5
DESCRIPTION OF DEBT SECURITIES
We may issue debt securities from time
to time in one or more series. The following description summarizes the general terms and provisions of the debt securities that we may offer pursuant
to this prospectus that are common to all series. The description is not complete. The specific terms relating to any series of our debt securities
that we offer will be described in a prospectus supplement, which you should read. Because the terms of specific series of debt securities offered may
differ from the general information that we have provided below, you should rely on information in the applicable prospectus supplement that may modify
or replace any information below. If there are differences between the applicable prospectus supplement and this prospectus, the prospectus supplement
will control.
As required by federal law for all
bonds and notes of companies that are publicly offered, the debt securities will be governed by a document called an indenture. An
indenture is a contract between a financial institution, acting on your behalf as trustee of the debt securities offered, and us. The trustee has two
main roles. First, subject to certain limitations on the extent to which the trustee can act on your behalf, the trustee can enforce your rights
against us if we default on our obligations under the indenture. Second, the trustee performs certain administrative duties for us with respect to the
debt securities. When we refer to the indenture in this prospectus, we are referring to the indenture under which your debt securities will
be issued, a form of which is attached as an exhibit to the registration statement of which this prospectus forms a part. Such indenture may be amended
or supplemented from time to time.
Unless otherwise provided in any
applicable prospectus supplement, the following section is a summary of the principal terms and provisions that will be included in the indenture. This
summary is not complete and is subject to, and qualified in its entirety by reference to, the terms and provisions of the indenture, and the provisions
of the Trust Indenture Act of 1939, as amended (the TIA). If we refer to particular provisions in the indenture, such provisions, including
the definition of terms, are incorporated by reference in this prospectus as part of this summary. We urge you to read the applicable indenture and any
supplement thereto because these documents, and not this section, define your rights as a holder of debt securities. In this description, the words
we, us, our and Eaton Vance refer only to Eaton Vance Corp. and not to any of Eaton Vance Corp.s
subsidiaries.
General
You should read the applicable
prospectus supplement for the terms of the series of debt securities offered. The terms of the debt securities described in such prospectus supplement
will be set forth in the applicable indenture, in a supplemental indenture, a board resolution or in an officers certificate (as permitted by the
indenture) and may include the following, as applicable to the series of debt securities offered thereby:
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the title of the debt securities; |
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whether the debt securities will be senior debt securities or
subordinated debt securities of Eaton Vance; |
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the aggregate principal amount of the debt securities and
whether there is any limit on such aggregate principal amount; |
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whether we may reopen the series of debt securities for
issuances of additional debt securities of such series; |
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the date or dates, or how the date or dates will be determined,
when the principal amount of the debt securities will be payable; |
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the amount payable upon acceleration of the maturity of the debt
securities or how this amount will be determined; |
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the interest rate or rates, which may be fixed or variable, that
the debt securities will bear, if any, or how such interest rate or rates will be determined; |
6
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the basis upon which interest will be calculated if other than
that of a 360-day year of twelve 30-day months; |
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the date or dates from which any interest will accrue or how
such date or dates will be determined; |
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the interest payment dates and the record dates for these
interest payments; |
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whether the debt securities are redeemable at our
option; |
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whether there are any sinking fund or other provisions that
would obligate us to purchase or otherwise redeem the debt securities; |
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the currency or currencies of the debt securities; |
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whether the amount of payments of principal, premium or
interest, if any, on the debt securities will be determined with reference to an index, formula or other method (which could be based on one or more
currencies, commodities, equity indices or other indices) and how these amounts will be determined; |
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the place or places, if any, other than or in addition to the
City of New York, for payment, transfer, conversion and/or exchange of the debt securities; |
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the denominations in which the offered debt securities will be
issued; |
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the applicability of the provisions of the applicable indenture
described under defeasance and any provisions in modification of, in addition to or in lieu of any of these provisions; |
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material federal income tax considerations that are specific to
the series of debt securities offered; |
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any provisions granting special rights to the holders of the
debt securities upon the occurrence of specified events; |
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whether the applicable indenture contains any changes or
additions to the events of default or covenants described in this prospectus; |
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whether the debt securities will be convertible into or
exchangeable for any other securities and the applicable terms and conditions for such conversion or exchange; and |
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any other terms specific to the series of debt securities
offered. |
Redemption
If the debt securities are redeemable,
the applicable prospectus supplement will set forth the terms and conditions for such redemption, including:
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the redemption prices (or method of calculating the
same); |
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the redemption period (or method of determining the
same); |
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whether such debt securities are redeemable in whole or in part
at our option; and |
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any other provisions affecting the redemption of such debt
securities. |
Conversion and Exchange
If any series of the debt securities
offered are convertible into or exchangeable for shares of our common stock or other securities, the applicable prospectus supplement will set forth
the terms and conditions for such conversion or exchange, including:
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the conversion price or exchange ratio (or the method of
calculating the same); |
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the conversion or exchange period (or the method of determining
the same); |
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whether conversion or exchange will be mandatory, or at our
option or at the option of the holder; |
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the events requiring an adjustment of the conversion price or
the exchange ratio; and |
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any other provisions affecting conversion or exchange of such
debt securities. |
Form and Denomination
The debt securities may be issued in
fully registered form without coupons and, unless otherwise specified in the prospectus supplement, denominated in U.S. dollars in denominations of
$1,000 or any integral multiple thereof. If debt securities are issued in bearer form, we may modify the form of debt security, payment procedures and
other related matters, as appropriate. The prospectus supplement will indicate whether the debt securities will be in registered or bearer form, the
denominations to be issued, the procedures for payment of interest and principal thereon and other matters.
Subject to the limitations provided in
the indenture and in the prospectus supplement, debt securities which are issued in registered form may be transferred or exchanged at the principal
corporate trust office of the trustee. No service charge will be made for any transfer or exchange of the debt securities, but either we or the trustee
may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
Global Securities
The debt securities of a series may be
issued in whole or in part in the form of one or more global securities that will be deposited with, or on behalf of, a depositary (the
depositary) identified in the prospectus supplement. Global securities will be issued in registered form and in either temporary or
definitive form, and will initially be deposited with the trustee as custodian for the depositary. Unless and until it is exchanged in whole or in part
for the individual debt securities, a global security may not be transferred except as a whole by the depositary for such global security to a nominee
of such depositary or by a nominee of such depositary to such depositary or another nominee of such depositary or by such depositary or any such
nominee to a successor of such depositary or a nominee of such successor.
The specific terms of the depositary
arrangement with respect to any debt securities of a series and the rights of and limitations upon owners of beneficial interests in a global security
will be described in the prospectus supplement. We expect that the following provisions will generally apply to depositary
arrangements.
Upon the issuance of a global security,
the depositary for such global security or its nominee will credit, on its book-entry registration and transfer system, the respective principal
amounts of the individual debt securities represented by such global security to the accounts of persons that have accounts with such depositary. Such
accounts shall be designated by the dealers, underwriters or agents with respect to the debt securities or by us if such debt securities are offered
and sold directly by us. Ownership of beneficial interests in a global security will be limited to persons that have accounts with the applicable
depositary (participants) or persons that may hold interests through participants. Ownership of beneficial interests in such global
security will be shown on, and the transfer of that ownership will be effected only through, records maintained by the applicable depositary or its
nominee with respect to interests of participants and the records of participants with respect to interests of persons other than participants. The
laws of some states require that certain purchasers of securities take physical delivery of such securities in definitive form. Such limits and such
laws may impair the ability to transfer beneficial interests in a global security.
So long as the depositary for a global
security, or its nominee, is the registered owner of a global security, such depositary or such nominee, as the case may be, will be considered the
sole owner or holder of the debt securities represented by that global security for all purposes under the indenture governing those debt securities.
Except as provided below, owners of beneficial interests in a global security will not be entitled to have any of the individual debt securities of the
series represented by that global security registered in their names, will not receive or be entitled to receive physical delivery of any debt
securities of such series in definitive form and will not be considered the owners or holders thereof under the indenture governing such debt
securities.
8
Payments of principal, premium, if any,
and interest, if any, on individual debt securities represented by a global security registered in the name of a depositary or its nominee will be made
to the depositary or its nominee, as the case may be, as the registered owner of the global security representing the debt securities. None of Eaton
Vance, the trustee for the debt securities, any paying agent, or the registrar for the debt securities will have any responsibility or liability for
any aspect of the records relating to or payments made by the depositary or any participants on account of beneficial ownership interests of the global
security for the debt securities or for maintaining, supervising or reviewing any records relating to such beneficial ownership
interests.
We expect that the depositary for a
series of debt securities or its nominee, upon receipt of any payment of principal, premium or interest in respect of a permanent global security
representing the debt securities, immediately will credit participants accounts with payments in amounts proportionate to their respective
beneficial interests in the principal amount of such global security for the debt securities as shown on the records of the depositary or its nominee.
We also expect that payments by participants to owners of beneficial interests in a global security held through such participants will be governed by
standing instructions and customary practices, as is now the case with securities held for the accounts of customers in bearer form or registered in
street name. Such payments will be the responsibility of such participants.
If the depositary for a series of debt
securities is at any time unwilling, unable or ineligible to continue as depositary and a successor depositary is not appointed by us within 90 days,
we will issue definitive debt securities of that series in exchange for the global security or securities representing that series of debt securities.
In addition, we may at any time and in our sole discretion, subject to any limitations described in the prospectus supplement relating to the debt
securities, determine not to have any debt securities of a series represented by one or more global securities, and, in such event, will issue
definitive debt securities of that series in exchange for the global security or securities representing that series of debt securities. If definitive
debt securities are issued, an owner of a beneficial interest in a global security will be entitled to physical delivery of definitive debt securities
of the series represented by that global security equal in principal amount to that beneficial interest and to have the debt securities registered in
its name.
The covenants, if any, that will apply
to a particular series of debt securities will be set forth in the indenture relating to such series of debt securities and described in a prospectus
supplement.
Merger, Consolidation or Sale of Assets
Unless otherwise provided for a
particular series of debt securities by a board resolution, supplemental indenture or an officers certificate, Eaton Vance shall not merge or
consolidate with or into any other person (other than a merger of a wholly owned subsidiary into Eaton Vance) or sell, transfer, lease, convey or
otherwise dispose of all or substantially all its property in any one transaction or series of related transactions unless:
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Eaton Vance shall be the surviving person (the Surviving
Person) or the Surviving Person (if other than Eaton Vance) formed by such merger or consolidation or to which such sale, transfer, lease,
conveyance or disposition is made shall be a corporation or limited liability company organized and existing under the laws of the United States of
America or any state or territory thereof, Bermuda or the United Kingdom; |
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the Surviving Person (if other than Eaton Vance) expressly
assumes, by supplemental indenture in form satisfactory to the trustee, executed and delivered to the trustee by such Surviving Person, the due and
punctual payment of the principal of, and premium, if any, and interest on, all the debt securities, according to their tenor, and the due and punctual
performance and observance of all the covenants and conditions of the indenture to be performed by Eaton Vance; |
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in the case of a sale, transfer, lease, conveyance or other
disposition of all or substantially all the property of Eaton Vance, such property shall have been transferred as an entirety or virtually as an
entirety to one person and/or such persons subsidiaries; |
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immediately before and immediately after giving effect to such
transaction or series of related transactions, no default or event of default shall have occurred and be continuing; |
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Eaton Vance shall deliver, or cause to be delivered, to the
trustee, an officers certificate and an opinion of counsel, each stating that such transaction and the supplemental indenture, if any, in respect
thereto comply with this covenant and that all conditions precedent in the indenture relating to such transaction have been complied with;
and |
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Eaton Vance shall have delivered to the trustee an opinion of
counsel to the effect that the holders will not recognize income, gain or loss for U.S. Federal income tax purposes as a result of such transaction or
series of transactions and will be subject to U.S. Federal income tax on the same amounts, in the same manner and at the same times as would have been
the case if such transaction or series of transactions had not occurred. |
For the purposes of this covenant, the
sale, transfer, lease, conveyance or other disposition of all the property of one or more subsidiaries of Eaton Vance, which property, if held by Eaton
Vance instead of such subsidiaries, would constitute all or substantially all the property of Eaton Vance on a consolidated basis, shall be deemed to
be the transfer of all or substantially all the property of Eaton Vance.
Additional Amounts
If, following a transaction to which
the provisions of the indenture described above under Merger, Consolidation or Sale of Assets applies, the Surviving Person is
organized other than under the laws of the U.S., any state thereof or the District of Columbia, all payments made by the Surviving Person under, or
with respect to, the debt securities will be made free and clear of, and without withholding or deduction for or on account of, any present or future
tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto), which we
collectively refer to in this prospectus as the Taxes, imposed or levied by or on behalf of the jurisdiction of organization of the
Surviving Person or any political subdivision thereof or taxing authority therein, which we refer to in this prospectus as a Taxing
Jurisdiction, unless the Surviving Person is required to withhold or deduct Taxes by law or by the official interpretation or administration
thereof.
If the Surviving Person is so required
to withhold or deduct any amount for, or on account of, such Taxes from any payment made under or with respect to the debt securities, the Surviving
Person will pay such additional amounts, which we refer to in this prospectus as Additional Amounts, as may be necessary so that the net
amount received by each holder (including Additional Amounts) after such withholding or deduction will not be less than the amount such holder would
have received if such Taxes had not been required to be withheld or deducted.
The foregoing provisions will survive
any termination or discharge of the indenture and any defeasance of the debt securities.
Events Of Default
Unless otherwise provided for a
particular series of securities by a board resolution, supplemental indenture or an officers certificate, each of the following constitutes an
event of default with respect to a series of debt securities:
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a default in payment of the principal amount, premium, if any,
or redemption price with respect to any debt security when such amount becomes due and payable; |
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our failure to pay interest (including additional interest, if
applicable) on any debt security within 30 days of when such amount becomes due and payable; |
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our failure to deposit any sinking fund payment, if applicable,
with respect to the debt securities on its due date; |
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our failure to comply with any of our covenants or agreements in
the indenture or the debt securities (other than a failure that is subject to the foregoing three bullet points) and our failure to cure (or obtain a
waiver of) such default and such failure continues for 60 days after written notice is given to us as provided below; |
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certain events of bankruptcy, insolvency or reorganization
affecting us; and |
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any other event of default specified with respect to debt
securities of such series then outstanding. |
Notwithstanding the foregoing, the
indenture will provide that the sole remedy for an event of default relating to the failure to comply with the reporting provisions of the indenture
and for any failure to comply with the requirements of Section 314(a)(1) of the TIA (which relates to the provision of reports), will for the first 270
days after the occurrence of such an event of default consist exclusively of the right to receive additional interest on the debt securities of a
series at an annual rate of 0.05% of the principal amount of the debt securities of that series. This additional interest will be payable in the same
manner and on the same dates as the stated interest payable on the debt securities. The additional interest will accrue on all outstanding debt
securities from and including the date on which an event of default relating to a failure to comply with the requirements of Section 314(a)(1) of the
TIA first occurs to but not including the 270th day thereafter (or such earlier date on which the event of default relating to the reporting
obligations shall have been cured or waived). Thereafter, such additional interest will cease to accrue and the debt securities will be subject to
acceleration as provided above if the event of default is continuing. The provisions of the indenture described in this paragraph will not affect the
rights of the holders of debt securities in the event of the occurrence of any other event of default.
A default under the fourth bullet point
above is not an event of default until the trustee or the holders of not less than 25% in aggregate principal amount of the debt securities of such
series then outstanding notify us of the default and we do not cure such default within the time specified after receipt of such notice. Such notice
must specify the default, demand that it be remedied and state that such notice is a Notice of Default.
We will deliver to the trustee, within
30 days after the occurrence thereof, written notice in the form of an officers certificate of any event that with the giving of notice or the
lapse of time or both would become an event of default, its status and what action we are taking or propose to take with respect
thereto.
If an event of default (other than an
event of default resulting from certain events involving bankruptcy, insolvency or reorganization with respect to us) shall have occurred and be
continuing, the trustee or the registered holders of not less than 25% in aggregate principal amount of the debt securities of such series then
outstanding may declare, by notice to us in writing (and to the trustee, if given by holders of such debt securities) specifying the event of default,
to be immediately due and payable the principal amount of all the debt securities in such series then outstanding, plus accrued but unpaid interest to
the date of acceleration. In case an event of default resulting from certain events of bankruptcy, insolvency or reorganization with respect to us
shall occur, such amount with respect to all the debt securities shall be due and payable immediately without any declaration or other act on the part
of the trustee or the holders of the debt securities. After any such acceleration, but before a judgment or decree based on acceleration is obtained by
the trustee, the registered holders of a majority in aggregate principal amount of the debt securities of such series then outstanding may, under
certain circumstances, rescind and annul such acceleration and waive such event of default if all events of default, other than the nonpayment of
accelerated principal, premium or interest, have been cured or waived as provided in the indenture.
Subject to the provisions of the
indenture relating to the duties of the trustee, in case an event of default shall occur and be continuing, the trustee will be under no obligation to
exercise any of its rights or powers under the indenture at the request or direction of any of the holders of the debt securities, unless such holders
shall have offered to the trustee indemnity or security satisfactory to it against any loss, liability or expense. Subject to such provisions for the
indemnification of the trustee, the holders of a majority in aggregate
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principal amount of the debt
securities then outstanding will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the
trustee or exercising any trust or power conferred on the trustee with respect to the debt securities.
No holder of debt securities will have
any right to institute any proceeding with respect to the indenture, or for the appointment of a receiver or trustee, or for any remedy thereunder,
unless:
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such holder has previously given to the trustee written notice
of a continuing event of default; |
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the registered holders of at least 25% in aggregate principal
amount of the debt securities of such series then outstanding have made a written request and offered indemnity to the trustee satisfactory to it to
institute such proceeding as trustee; and |
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within 60 days after receipt of the request and offer of
indemnity the trustee shall not have received from the registered holders of a majority in aggregate principal amount of the debt securities of such
series then outstanding a direction inconsistent with such request and the trustee shall have failed to institute such proceeding with such 60 day
period. |
However, such limitations do not apply
to a suit instituted by a holder of any debt security for enforcement of payment of the principal of, and premium, if any, or interest on, such debt
security on or after the respective due dates expressed in such debt security.
If a default with respect to the debt
securities occurs and is continuing and is known to the trustee, the trustee must mail to each holder notice of the default within 90 days after it
occurs. The trustee may withhold the notice if and so long as a committee of its trust officers in good faith determines that withholding notice is in
the interest of the holders of the debt securities.
We are required to furnish to the
trustee, within 120 days after the end of each fiscal year, a statement of an officer regarding compliance with the indenture. Within 30 days after the
occurrence of any default or event of default, we are required to deliver to the trustee written notice in the form of an officers certificate
specifying our status and what actions we are taking or propose to take with respect thereto.
Defeasance
We may terminate at any time all our
obligations with respect to any series of debt securities and the applicable indenture, which we refer to in this prospectus as legal
defeasance, except for certain obligations, including those respecting the defeasance trust, to replace mutilated, destroyed, lost or stolen debt
securities and to maintain a registrar and paying agent in respect of the debt securities. In addition, we may also terminate at any time our
obligations with respect to any series of debt securities with respect to certain covenants that are described in the applicable indenture, which we
refer to in this prospectus as covenant defeasance, except for certain covenants, including the covenant to make payments in respect of the
principal, premium, if any, and interest on the debt securities. In the event covenant defeasance occurs, certain events (not including nonpayment,
bankruptcy, receivership, reorganization and insolvency events) described under Events of Default will no longer constitute events of
default with respect to the debt securities. We may exercise the legal defeasance option notwithstanding our prior exercise of the covenant defeasance
option.
If we exercise our legal defeasance
option with respect to a series of debt securities, payment of such debt securities may not be accelerated because of an event of default with respect
thereto. If we exercise the covenant defeasance option with respect to a series of debt securities, payment of such debt securities may not be
accelerated because of an event of default specified in the fourth bullet point under Events of Default.
The legal defeasance option or the
covenant defeasance option with respect to a series of debt securities may be exercised only if:
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we irrevocably deposit in trust with the trustee money or U.S.
Government obligations or a combination thereof for the payment of principal of, premium, if any, on and interest on such debt securities of such
series to stated maturity or redemption, as the case may be; |
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we deliver to the trustee a certificate from a nationally
recognized firm of independent registered public accountants expressing their opinion that the payments of principal and interest when due on the
deposited U.S. Government obligations plus any deposited money without investment will provide cash at such times and in such amounts as will be
sufficient to pay principal and interest when due on all the debt securities of such series to stated maturity or redemption, as the case may
be; |
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123 days pass after the deposit is made and during the 123-day
period no default described in the fifth bullet point under Events of Default occurs with respect to Eaton Vance or any other person
making such deposit which is continuing at the end of the period; |
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no default or event of default with respect to that series of
debt securities has occurred and is continuing on the date of such deposit; |
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such deposit does not constitute a default under any other
agreement or instrument binding us; |
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we deliver to the trustee an opinion of counsel to the effect
that the trust resulting from the deposit does not require registration under the Investment Company Act of 1940; |
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in the case of the legal defeasance option, we deliver to the
trustee an opinion of counsel stating that: |
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we have received from the IRS a ruling, or |
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since the date of the indenture there has been a change in the
applicable U.S. Federal income tax law, to the effect, in either case, that, and based thereon such opinion of counsel shall confirm that, the holders
of such debt securities will not recognize income, gain or loss for U.S. Federal income tax purposes as a result of such defeasance and will be subject
to U.S. Federal income tax on the same amounts, in the same manner and at the same time as would have been the case if such defeasance has not
occurred; |
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in the case of the covenant defeasance option, we deliver to the
trustee an opinion of counsel to the effect that the holders of such debt securities will not recognize income, gain or loss for U.S. Federal income
tax purposes as a result of such covenant defeasance and will be subject to U.S. Federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if such covenant defeasance had not occurred; and |
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we deliver to the trustee an officers certificate and an
opinion of counsel, each stating that all conditions precedent to the defeasance and discharge of such debt securities have been complied with as
required by the indenture. |
When (i) we deliver to the trustee all
outstanding debt securities of a series (other than debt securities replaced because of mutilation, loss, destruction or wrongful taking) for
cancellation or (ii) all outstanding debt securities of a series have become due and payable, whether at maturity or as a result of the mailing of a
notice of redemption, and we irrevocably deposit with the trustee funds sufficient to pay at maturity or upon redemption all outstanding debt
securities of a series, including interest thereon, and if in either case we pay all other sums related to such debt securities payable under the
indenture by us, then the indenture shall, subject to certain surviving provisions, cease to be of further effect as to all outstanding debt securities
of such series. The trustee shall acknowledge satisfaction and discharge of the indenture with respect to such series of debt securities on our demand
accompanied by an officers certificate and an opinion of counsel of Eaton Vance.
Regarding the Trustee
Except during the continuance of an
event of default, the trustee will perform only such duties as are specifically set forth in the indenture. During the existence of an event of
default, the trustee will exercise such rights and powers vested in it under the indenture and use the same degree of care and skill in its exercise as
a prudent person would exercise under the circumstances in the conduct of such persons own affairs.
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The indenture and provisions of the TIA
that are incorporated by reference therein contain limitations on the rights of the trustee, should it become one of our creditors, to obtain payment
of claims in certain cases or to realize on certain property received by it in respect of any such claim as security or otherwise. The trustee is
permitted to engage in other transactions with us or any of our affiliates; provided, however, that if it acquires any conflicting interest (as defined
in the indenture or in the TIA), it must eliminate such conflict or resign.
Governing Law
The indenture and the debt securities
will be governed by and construed in accordance with the laws of the State of New York, without regard to conflicts of laws principles
thereof.
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DESCRIPTION OF CAPITAL STOCK
The following description of our
non-voting common stock, together with the additional information we include in any applicable prospectus supplement, summarizes the material terms and
provisions of the non-voting common stock that we may offer from time to time pursuant to this prospectus. We will not offer pursuant to this
prospectus any of our voting common stock. While the terms we have summarized below will apply generally to any future non-voting common stock that we
may offer, we will describe the particular terms of any class or series of such common stock in more detail in the applicable prospectus supplement. If
there are differences between the applicable prospectus supplement and this prospectus, the prospectus supplement will control. The summary below and
that contained in any prospectus supplement is qualified in its entirety by reference to our articles of incorporation and bylaws, which have been
publicly filed with the SEC. The terms of these securities may also be affected by the General Corporation Law of the State of
Maryland.
Our capital stock consists
of:
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1,280,000 authorized shares of voting common stock, $0.00390625
par value per share, of which 371,386 shares were outstanding as of July 31, 2007; |
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190,720,000 authorized shares of non-voting common stock,
$0.00390625 par value per share, of which 123,223,109 shares were outstanding as of July 31, 2007. |
Non-Voting Common Stock
Our non-voting common stock is listed
on the New York Stock Exchange, Inc. and has a par value of $0.00390625 per share.
Voting
The holders of
non-voting common stock have no voting rights under any circumstances.
Conversion
The non-voting common
stock is neither redeemable nor convertible, and the holders of non-voting common stock have no preemptive rights to purchase any of our
securities.
Dividends and Other Distributions
Shares of non-voting common stock and
voting common stock are equal in respect of dividends and other distributions in cash, stock or property, including distributions in the event of the
liquidation, dissolution or winding up of Eaton Vance Corp. Dividends that may be declared on the non-voting common stock will be paid in an equal
amount to the holder of each share.
Transfer Agent
The transfer agent and registrar of our
common stock is Computershare Limited.
DESCRIPTION OF OTHER SECURITIES
We will set forth in the applicable
prospectus supplement a description of any warrants, depositary shares, purchase contracts or stock purchase units.
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PLAN OF DISTRIBUTION
We may sell the securities covered by
this prospectus in one or more of the following ways from time to time:
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to or through underwriters or dealers for resale to purchasers;
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directly to purchasers; |
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through agents or dealers to purchasers; or |
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through a combination of any of these methods of
sale. |
In addition, we may enter into
derivative or other hedging transactions with third parties, or sell securities not covered by this prospectus to third parties in privately negotiated
transactions. If the applicable prospectus supplement indicates, in connection with those derivatives, the third parties may sell securities covered by
this prospectus and the applicable prospectus supplement, including in short sale transactions. If so, the third party may use securities pledged by us
or borrowed from us or others to settle those sales or to close out any related open borrowings of stock, and may use securities received from us in
settlement of those derivatives to close out any related open borrowings of stock. The third party in such sale transactions will be an underwriter
and, if applicable, will be identified in the applicable prospectus supplement (or a post-effective amendment).
A prospectus supplement with respect to
each series of securities will include, to the extent applicable:
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the terms of the offering; |
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the name or names of any underwriters, dealers, remarketing
firms or agents and terms of any agreement with such parties including the compensation, fees or commissions received by and the amount of securities
underwritten, purchased or remarketed by each of them, if any; |
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the public offering price or purchase price of the securities
and an estimate of the net proceeds to be received by us, as applicable, from any such sale; |
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any underwriting discounts or agency fees and other items
constituting underwriters or agents compensation; |
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the anticipated delivery date of the securities, including any
delayed delivery arrangements, and any commissions we may pay for solicitation of any such delayed delivery contracts; |
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that the securities are being solicited and offered directly to
institutional investors or others; |
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any discounts or concessions to be allowed or reallowed or to be
paid to agents or dealers; and |
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any securities exchange on which the securities may be
listed. |
Any offer and sale of the securities
described in this prospectus by us, any underwriters or other third parties described above may be effected from time to time in one or more
transactions, including, without limitation, privately negotiated transactions, either:
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at a fixed public offering price or prices, which may be
changed; |
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at market prices prevailing at the time of sales; |
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at prices related to prevailing market prices at the time of
sale; or |
Offerings of securities covered by this
prospectus may also be made into an existing trading market for such securities in transactions at other than a fixed price, either:
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on or through the facilities of the NYSE or any other securities
exchange or quotation or trading service on which such securities may be listed, quoted or traded at the time of sale; and/or |
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to or through a market maker otherwise than on the NYSE or such
other securities exchanges or quotation or trading services. |
Such at-the-market offerings, if any,
will be conducted by underwriters acting as our principal or agent, who may also be third-party sellers of securities as described
above.
In addition, we may sell some or all of
the securities covered by this prospectus through:
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purchases by a dealer, as principal, who may then resell those
securities to the public for its account at varying prices determined by the dealer at the time of resale or at a fixed price agreed to with us at the
time of sale; |
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block trades in which a dealer will attempt to sell as agent,
but may position or resell a portion of the block, as principal, in order to facilitate the transaction; and/or |
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ordinary brokerage transactions and transactions in which a
broker-dealer solicits purchasers. |
Any dealer may be deemed to be an
underwriter, as that term is defined in the Securities Act of 1933, as amended, or the Securities Act, of the securities so offered and
sold.
In connection with offerings made
through underwriters or agents, we may enter into agreements with such underwriters or agents pursuant to which we receive our outstanding securities
in consideration for the securities being offered to the public for cash. In connection with these arrangements, the underwriters or agents may also
sell securities covered by this prospectus to hedge their positions in any such outstanding securities, including in short sale transactions. If so,
the underwriters or agents may use the securities received from us under these arrangements to close out any related open borrowings of
securities.
We may loan or pledge securities to a
financial institution or other third party that in turn may sell the loaned securities or, in any event of default in the case of a pledge, sell the
pledged securities using this prospectus and the applicable prospectus supplement. Such financial institution or third party may transfer its short
position to investors in our securities or in connection with a simultaneous offering of other securities covered by this prospectus.
Any offers to purchase the securities
covered by this prospectus may be solicited, and any sales of the securities may be made, by us of those securities directly to institutional investors
or others, who may be deemed to be underwriters within the meaning of the Securities Act with respect to any resales of the
securities.
The securities may also be offered and
sold, if so indicated in a prospectus supplement, in connection with a remarketing upon their purchase, in accordance with a redemption or repayment
pursuant to their terms, or otherwise, by one or more remarketing firms, acting as principals for their own accounts or as agents for
us.
If indicated in the applicable
prospectus supplement, we may sell the securities through agents from time to time. We generally expect that any agent will be acting on a best efforts
basis for the period of its appointment.
As one of the means of direct issuance
of securities, we may utilize the service of an entity through which we may conduct an electronic dutch auction or similar offering of the
offered securities among potential purchasers who are eligible to participate in the action or offering of such offered securities, if so described in
the applicable prospectus supplement.
We may authorize underwriters, dealers
or agents to solicit offers by certain purchasers to purchase the securities from us at the public offering price set forth in the applicable
prospectus supplement pursuant to delayed delivery contracts providing for payment and delivery on a specified date in the future. The delayed delivery
contracts will be subject only to those conditions set forth in the applicable prospectus supplement.
If underwriters are used in any sale of
any securities, the securities may be either offered to the public through underwriting syndicates represented by managing underwriters, or directly by
underwriters. Unless
17
otherwise stated in a prospectus
supplement, the obligations of the underwriters to purchase any securities will be conditioned on customary closing conditions and the underwriters
will be obligated to purchase all of such series of securities, if any are purchased.
Underwriters, dealers, agents and
remarketing firms may at the time of any offering of securities be entitled under agreements entered into with us to indemnification by us against
certain civil liabilities, including liabilities under the Securities Act, or to contribution with respect to payments which the underwriters, dealers,
agents and remarketing firms may be required to make. Underwriters, dealers, agents and remarketing agents may be customers of, engage in transactions
with, or perform services in the ordinary course of business for us and/or our affiliates.
Each series of securities will be a new
issue of securities and will have no established trading market other than our non-voting common stock, which is listed on the NYSE. We intend that any
non-voting common stock sold pursuant to this prospectus will be listed on the NYSE, upon official notice of issuance. The securities, other than our
non-voting common stock, may or may not be listed on a national securities exchange or foreign securities exchange. No assurance can be given as to the
liquidity or activity of any trading in the offered securities.
Any underwriters to whom securities
covered by this prospectus are sold by us for public offering and sale, if any, may make a market in the securities, but such underwriters will not be
obligated to do so and may discontinue any market making at any time without notice.
In compliance with the guidelines of
the Financial Industry Regulatory Authority, or the FINRA, the aggregate maximum discount, commission or agency fees or other items constituting
underwriting compensation to be received by any FINRA member or independent broker-dealer will not exceed 8% of any offering pursuant to this
prospectus and any applicable prospectus supplement; however, we anticipate that the maximum commission or discount to be received in any particular
offering of securities will be significantly less than this amount.
If more than 10% of the net proceeds of
any offering of securities made under this prospectus will be received by FINRA members participating in the offering or affiliates or associated
persons of such FINRA members, the offering will be conducted in accordance with NASD Conduct Rule 2710(h).
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LEGAL MATTERS
Unless otherwise specified in the
applicable prospectus supplement, the validity of the securities covered by this prospectus will be passed upon for us by Nixon Peabody LLP. If legal
matters in connection with offerings made by this prospectus are passed on by counsel for the underwriters, dealers or agents, if any, that counsel
will be named in the applicable prospectus supplement.
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EXPERTS
The financial statements and
managements report on the effectiveness of internal control over financial reporting incorporated in this prospectus by reference to the
Companys Annual Report on Form 10-K for the year ended October 31, 2006 have been audited by Deloitte & Touche LLP, an independent registered
public accounting firm, as stated in their reports, which are incorporated herein by reference, and have been so incorporated in reliance upon the
reports of such firm given upon their authority as experts in accounting and auditing.
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$500,000,000 6.500% Notes due 2017
Merrill Lynch & Co.
UBS Investment Bank
Banc of America Securities LLC
JPMorgan
Wachovia Securities