e424b2
CALCULATION OF REGISTRATION FEE
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Title of Each Class of Securities |
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Aggregate Offering |
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Amount of |
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Offered |
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Price(2) |
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Registration Fee(2)(3) |
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Ordinary Shares, no par value,
offered by Infineon Technologies
Investment B.V.(1) |
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$311,832,058 |
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$9,574 |
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(1) |
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Each American depositary share represents one ordinary
registered share. American depositary shares issuable upon
deposit of the ordinary registered shares registered hereby
have been registered pursuant to separate Registration
Statements on Form F-6 (File No. 333-136068 filed July 27,
2006 and File No. 333-147539 filed November 20, 2007). |
(2) |
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Calculated based on a maximum aggregate
offering price of $15.20 per share in accordance with Rule 457(a). |
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(3) |
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Pursuant to Rule 457(p), the amount of registration fee
payable hereunder has been offset by $61,525 of filing fees
previously paid by Qimonda AG in respect of unsold
securities under the Registration Statement on Form F-1
(File No. 333-135913) filed July 21, 2006. |
Filed Pursuant to Rule 424(b)(2)
Registration No. 333-145983
PROSPECTUS SUPPLEMENT TO PROSPECTUS DATED SEPTEMBER 11, 2007
Qimonda AG
20,515,267 American Depositary Shares
Representing 20,515,267 Ordinary Shares
This prospectus supplement relates to 20,515,267 American Depositary Shares, or ADSs,
representing Ordinary Shares of Qimonda AG, a German stock corporation held by Infineon
Technologies Investment B.V., which we refer to as Infineon Investment. This is the number of ADSs
that may be delivered on exercise of exchangeable notes of Infineon Investment.
Infineon Investment may deliver ADSs upon the exchange of exchangeable notes sold on September
26, 2007 in a private placement exempt from the registration requirements of the Securities Act of
1933, as amended. Infineon Investment may also sell ADSs representing ordinary shares it
beneficially owns that are not covered by the exchangeable notes. We will not receive any proceeds
from any of the sales described in this prospectus.
The ADSs may be evidenced by American Depositary Receipts, or ADRs. Each ADS will represent
one ordinary share.
Our ordinary shares are listed on the New York Stock Exchange under the symbol QI. On
December 26, 2007, the closing sale price of our ADSs was
$7.56 per share.
See
Risk Factors on page S-2 to read about factors you should consider before buying
ADSs.
Neither the Securities and Exchange Commission nor any state securities commission has
approved or disapproved of these securities or passed upon the accuracy or adequacy of this
prospectus supplement or the accompanying prospectus. Any representation to the contrary is a
criminal offense.
The
date of this Prospectus Supplement is December 27, 2007.
You should rely only on the information contained in this document or to which we have
referred you. We have not authorized anyone to provide you with information that is different. This
document may only be used where sale of these securities is legally permitted. The information in this document may only be
accurate on the date of this document.
ABOUT THIS PROSPECTUS SUPPLEMENT
This prospectus supplement and the accompanying prospectus are part of a registration
statement that we filed with the SEC using an automatic shelf registration process for the delayed
offering and sale of securities pursuant to Rule 415 under the Securities Act of 1933, as amended.
Under the shelf registration process, Infineon Investment may, in one or more offerings from time
to time, sell the ADSs described in this prospectus supplement and the accompanying prospectus.
This prospectus supplement supersedes the prospectus to the extent it contains information that is
different from the information in the prospectus.
You should read both this prospectus supplement and the accompanying prospectus together with
the additional information described in Incorporation of Certain Information by Reference.
Infineon Investment may offer our ADSs directly, through agents, or to or through
underwriters. See Plan of Distribution in this prospectus.
S-1
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The SEC allows us to incorporate by reference the information we file with the SEC in other
documents, which means:
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incorporated documents are considered part of this prospectus supplement and the
accompanying prospectus; we can disclose important information to you by referring you
to those documents; and |
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information in this prospectus supplement and the accompanying prospectus
automatically updates and supersedes information in earlier documents that are
incorporated by reference in this prospectus supplement and the accompanying prospectus,
and information that we file with the SEC after the date of this prospectus supplement
automatically updates and supersedes this prospectus supplement. |
We incorporate by reference our Annual Report on Form 20-F for the year ended September 30,
2007, which was filed with the SEC on November 16, 2007, and our Annual Report on Form 20-F/A for
the year ended September 30, 2006, which was filed with the SEC on March 30, 2007. We also
incorporate by reference the section Description of American Depositary Shares in our prospectus
filed pursuant to Rule 424(b)(1) of the Securities Act on August 10, 2006 with respect to the
Registration Statement on Form F-1 (File No. 333-135913).
We also incorporate by reference each of the following documents that we will file with the
SEC after the date of this prospectus from now until we terminate the offering of the securities:
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Annual Reports filed on Form 20-F; and |
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any future reports filed on Form 6-K that indicate that they are incorporated by
reference in this prospectus. |
Upon request, we will provide to each person, including any beneficial owner, to whom a
prospectus is delivered, a copy of any or all of the information that has been incorporated by
reference in the prospectus but not delivered with the prospectus.
You may obtain a copy of any of the documents referred to above at no cost by contacting us at
the following address or telephone number:
Qimonda AG
Gustav-Heinemann-Ring 212
81739 Munich, Germany
+(49)(89) 60088-0
RISK FACTORS
In addition to other information contained in this prospectus supplement and the accompanying
prospectus and any accompanying prospectus supplement, you should carefully consider the risks
incorporated by reference to our most recent Annual Report on Form 20-F in evaluating our company,
our properties and our business before investing in our ordinary shares. These risks are not the
only ones faced by us. Additional risks not presently known or that are currently deemed immaterial
could also materially and adversely affect our financial condition, results of operations, business
and prospects. Any of these risks might cause you to lose all or a part of your investment. Some
statements in this prospectus supplement, the accompanying prospectus and the documents
incorporated by reference constitute forward-looking statements. Please refer to the section
entitled Forward-Looking Statements in the prospectus to which this prospectus supplement
relates.
S-2
USE OF PROCEEDS
Infineon Investment will receive all of the proceeds from the sale of our ADSs under this
prospectus supplement and the accompanying prospectus. We will not receive any proceeds from any of
these sales.
SHARE PRICE
ADSs representing our companys shares have traded on the New York Stock Exchange since August
9, 2006. The table below sets forth, for the periods indicated, the high and low closing sales
prices for the ADSs on the New York Stock Exchange:
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Price per ADS in |
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U.S. dollars |
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High |
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Low |
August 2006 (beginning August 9) |
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$ |
16.28 |
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$ |
13.54 |
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September 2006 |
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$ |
17.91 |
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$ |
15.90 |
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October 2006 |
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$ |
17.05 |
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$ |
13.95 |
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November 2006 |
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$ |
18.85 |
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$ |
14.11 |
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December 2006 |
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$ |
18.65 |
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$ |
17.00 |
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January 2007 |
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$ |
17.45 |
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$ |
15.17 |
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February 2007 |
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$ |
15.60 |
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$ |
14.45 |
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March 2007 |
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$ |
14.93 |
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$ |
13.81 |
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April 2007 |
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$ |
15.68 |
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$ |
14.09 |
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May 2007 |
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$ |
15.16 |
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$ |
14.14 |
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June 2007 |
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$ |
17.00 |
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$ |
14.94 |
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July 2007 |
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$ |
17.04 |
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$ |
14.80 |
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August 2007 |
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$ |
14.81 |
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$ |
12.20 |
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September 2007 |
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$ |
13.42 |
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$ |
10.91 |
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October 2007 |
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$ |
11.37 |
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$ |
9.37 |
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November 2007 |
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$ |
9.64 |
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$ |
6.85 |
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December 2007
(through December 26, 2007) |
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$ |
8.40 |
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$ |
7.34 |
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On
December 26, 2007, the closing sales price per ADS on the New York
Stock Exchange was $7.56.
S-3
CAPITALIZATION
The following table sets forth our actual consolidated capitalization as of September 30,
2007. You should read this table in conjunction with Selected Combined and Consolidated Financial
Data and Managements Discussion and Analysis of Financial Condition and Results of Operations
and our unaudited condensed combined and consolidated financial statements and related notes
included in our Annual Report on Form 20-F filed on November 16, 2007, this prospectus supplement,
the accompanying prospectus and the documents incorporated by reference in the accompanying
prospectus.
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As of September 30, 2007 |
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( in millions) |
Short-term debt and current maturities |
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77 |
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Long-term
debt, excluding current maturities(1) |
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227 |
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Shareholders equity: |
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Ordinary share capital |
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684 |
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Additional paid-in capital |
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3,117 |
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Accumulated
deficit |
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(25 |
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Accumulated other comprehensive loss |
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(259 |
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Total shareholders equity |
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3,517 |
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Total capitalization |
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3,744 |
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(1) |
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As of September 30, 2007, we had a 124 million project-related term loan for our production facility in Portugal, of which 21 million is classified
as current maturity as it is payable in March 2008, a 25 million note payable to a government entity in connection with our Richmond plant and a 156 million
lease related to a sale and leaseback transaction of 200mm equipment. The four-year lease is accounted for as a capital lease in which the present value of the lease payments is
reflected as a capital lease obligation. |
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In December 2007, we entered into two further sale and leaseback transactions covering some of
our manufacturing equipment at our Richmond, Virginia plant. On December 4, 2007 we entered into a four-year lease relating to a portion of our 200mm equipment resulting in net proceeds
of $66 million. On December 21, 2007, we entered into a five-year lease relating to a portion of our 300mm equipment resulting in net proceeds of $125 million.
Our capitalization will remain unaffected upon completion of all of the sales contemplated by
this prospectus supplement, as we will not receive any proceeds from any sale being made by this
prospectus supplement.
S-4
PLAN OF DISTRIBUTION
The following supplements the disclosures in the section entitled Plan of Distribution in
the accompanying prospectus.
On September 26, 2007, Infineon Investment issued its Guaranteed Subordinated Exchangeable
Notes due August 2010, which we refer to as the notes, in transactions it advised us were not
subject to registration under the Securities Act of 1933, as amended, which we refer to as the
Securities Act, pursuant to Regulation S thereunder. The notes are exchangeable into ADSs of our
company in accordance with the terms and conditions of the notes. The terms and conditions of the
notes provide that they are exchangeable during specified periods between November 6, 2007 and
August 17, 2010.
Infineon Investment may also offer and sell ADSs in our company for cash or other
consideration from time to time after the date of this prospectus supplement directly or through
one or more underwriters, broker-dealers or agents. Infineon Investment will be responsible for any
underwriting discounts or commissions or agents commissions. The ADSs may be sold in one or more
transactions at fixed prices, at prevailing market prices at the time of sale, at varying prices
determined at the time of sale, or at negotiated prices. Infineon Investment may use any one or
more of the following methods when selling ADSs (which may involve crosses or block transactions):
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on the New York Stock Exchange or any other national securities exchange or quotation
service on which the ADSs may be listed or quoted at the time of sale, |
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in the over-the-counter market, |
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in transactions other than on these exchanges or systems or in over-the-counter
market, |
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through the writing of options, whether such options are listed on an options exchange
or otherwise, |
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in ordinary brokerage transactions and transactions in which the broker-dealer
solicits purchasers, |
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in block trades in which the broker-dealer will attempt to sell the shares as agent
but may take a position and resell a portion of the block as principal to facilitate the
transaction, |
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in purchases by a broker-dealer as principal and resale by the broker-dealer for its
account, |
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in privately negotiated exchanges, |
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in transactions in which a broker-dealer agrees to sell a specified number of ADSs at
a stipulated price per share, |
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through a combination of any such methods of sale, and |
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by any other method permitted pursuant to applicable law. |
If Infineon Investment sells all of the 20,515,267 ADSs (representing approximately 6% of our
total share capital) offered under this prospectus supplement and the accompanying prospectus,
Infineon AG and Infineon Investment together will hold approximately 71.5% of our outstanding share
capital.
S-5
Qimonda
AG
American
Depositary Shares, representing Ordinary Shares,
including any Ordinary Shares issued upon conversion of Debt
Securities
Debt Securities
Guarantees of Debt Securities
Qimonda
Finance LLC
Debt
Securities Guaranteed by Qimonda AG
This prospectus relates to the offer and sale from time to time
of securities by Qimonda AG, a German stock corporation, and
debt securities of Qimonda Finance LLC, a Delaware limited
liability company, that are guaranteed by Qimonda AG.
In addition, Infineon Technologies AG and Infineon Technologies
Investment B.V., an indirect subsidiary of Infineon Technologies
AG incorporated in The Netherlands, which we refer to as the
selling shareholders, may offer American Depositary Shares, or
ADSs, of Qimonda AG from time to time. This may include share
lending arrangements. The ADSs may be evidenced by American
Depositary Receipts, or ADRs. Each ADS will represent one
ordinary share. We will not receive any proceeds from the sale
of our ADSs by the selling shareholders.
When securities are offered using this prospectus, we will
provide you with a prospectus supplement describing the specific
terms of the specific issue of securities, including the
offering price of the securities. You should carefully read this
prospectus and the prospectus supplement relating to the
specific issue of securities, together with the documents we
incorporate by reference, before you decide to invest in any of
these securities.
Our ADSs are listed on the New York Stock Exchange under the
symbol QI.
Investing in our securities involves risks. See
Risk Factors on page 2 of this prospectus and
Risk Factors included in our most recent annual
report on
Form 20-F,
which is incorporated by reference in this prospectus.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or passed upon the accuracy or adequacy of this
prospectus. Any representation to the contrary is a criminal
offense.
We may, and any selling shareholder may, offer the securities
independently or together in any combination for sale directly
to purchasers or through underwriters, dealers or agents to be
designated at a future date. See Plan of
Distribution. If any underwriters, dealers or agents are
involved in the sale of any of the securities, their names, and
any applicable purchase price, fee, commission or discount
arrangements between or among them, will be set forth, or will
be calculable from the information set forth, in the applicable
prospectus supplement.
Prospectus dated September 11, 2007.
You should rely on the information contained in this document
or to which we have referred you. We have not authorized anyone
to provide you with information that is different. This document
may only be used where sale of these securities is legally
permitted. The information in this document may only be accurate
on the date of this document.
TABLE OF
CONTENTS
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1
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2
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3
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17
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In this prospectus, references to:
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our company refer to Qimonda AG;
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we, us, Qimonda AG or
Qimonda refer to Qimonda AG and, unless the context
otherwise requires, to our subsidiaries and our predecessor, the
former Memory Products segment of Infineon;
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Infineon refer to Infineon Technologies AG, a German
stock corporation and, unless the context otherwise requires, to
its subsidiaries;
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the Infineon Group refer to Infineon and
Infineons subsidiaries, including Qimonda prior to the
carve-out but excluding Qimonda after the carve-out described
herein;
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the selling shareholders refer to Infineon
Technologies AG and Infineon Technologies Investment
B.V.; and
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securities include any security that we or any
selling shareholder might sell under this prospectus or any
prospectus supplement.
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This summary highlights some important information about our
business and this offering. Because it is a summary, it does not
contain all the information you should consider before investing
in our securities. Before making your investment decision, you
should carefully read:
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this entire prospectus, which explains the general terms of the
securities we may offer;
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the accompanying prospectus supplement, which (i) explains
the specific terms of the particular offering and
(ii) updates and changes information in this prospectus;
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the documents referred to below in Incorporation of
Certain Information by Reference; and
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the documents referred to below in Additional
Information.
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Qimonda
AG
We design semiconductor memory technologies and develop,
manufacture, market and sell a large variety of semiconductor
memory products on a chip, component and module level. We began
operations within the Semiconductor Group of Siemens AG, whose
roots in semiconductor R&D and manufacturing date back to
1952, and operated as the Memory Products segment of Infineon
Technologies AG since its carve-out from Siemens AG in 1999. We
were registered in the commercial register of the local court of
Munich on May 25, 2004 as Invot AG, a German stock
corporation and wholly-owned subsidiary of Infineon Technologies
AG, under number HRB 152545. We changed our name to Qimonda
AG on April 6, 2006. Our principal executive offices are
located at Gustav-Heinemann-Ring 212, 81739 Munich, Germany, and
our telephone number is +49-89-60088-0. Our website is
http://www.qimonda.com.
This website address is included in this prospectus as an
inactive textual reference only. The information and other
content appearing on our website are not part of this
prospectus. Our agent for service of process in the United
States is Qimonda North America Corp., Corporation
Trust Center, 1209 Orange Street, Wilmington, County of New
Castle, Delaware 19801.
Qimonda
Finance LLC
Qimonda Finance LLC was formed by us on July 13, 2006
pursuant to the filing of a certificate of formation with the
Secretary of State of the State of Delaware. Qimonda Finance LLC
is our wholly-owned subsidiary formed for the purpose of raising
funds for us.
Qimonda Finance LLCs principal executive office and postal
address is 3000 CentreGreen Way, Cary, North Carolina, 27513
U.S.A., and its telephone number is +1
919-677-2700.
Qimonda Finance LLCs registered agent in the United States
is Qimonda North America Corp., Attn: General Counsel,
Corporation Trust Center, 1209 Orange Street, Wilmington,
County of New Castle, Delaware 19801.
Ratio of
earnings to fixed charges
The following table shows the ratios of earnings to fixed
charges for Qimonda AG for the fiscal years ended
September 30, 2006, 2005, 2004 and 2003 and for the
nine-month period ended June 30, 2007.
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Nine Months
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Ended June 30,
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Year Ended September 30,
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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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5.68
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5.98
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9.06
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2.97
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1.20
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*
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* |
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A ratio for 2002 is not available without undue effort to
properly prepare, compile and verify all of the financial
information needed to calculate the ratio. For more information,
see Selected Combined and Consolidated Financial
Data in our annual report on
Form 20-F
for the year ended September 30, 2006. |
1
Before you invest in our securities, you should carefully
consider the risks involved. Accordingly, you should carefully
consider:
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the information contained in or incorporated by reference into
this prospectus,
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the information contained in or incorporated by reference into
any prospectus supplement relating to specific offerings of
securities,
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the risks described in our Annual Report on
Form 20-F
for our most recent fiscal year and in any Current Report on
Form 6-K,
which we have filed since our most recent Annual Report on
Form 20-F
and which is incorporated by reference into this
prospectus, and
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other risks and other information that may be contained in, or
incorporated by reference from other filings we make with the
SEC, including in any prospectus supplement relating to specific
offerings of securities.
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The discussion of risks related to our business contained in or
incorporated by reference into this prospectus or into any
prospectus supplement are those significant risks, then known
and specific to us, that we believe are relevant to an
investment in our securities. If any of these risks materialize,
our business, financial condition or results of operations could
suffer, the price of our securities could decline and you could
lose part or all of your investment.
2
The following table sets forth our actual consolidated
capitalization as of June 30, 2007. You should read this
table in conjunction with Selected Combined and
Consolidated Financial Data and Managements
Discussion and Analysis of Financial Condition and Results of
Operations and our unaudited condensed combined and
consolidated financial statements and related notes included in
the documents incorporated by reference.
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As of June 30, 2007
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(in millions)
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Current maturities of long-term
debt(1)
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21
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Long-term
debt(1)
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128
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Shareholders equity:
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Ordinary share capital
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684
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Additional paid-in capital
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3,113
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Retained earnings
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240
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Accumulated other comprehensive
loss
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(229
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Total shareholders equity
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3,808
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Total capitalization
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3,936
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(1) |
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As of June 30, 2007, we had a 124 million
project-related term loan for our production facility in
Portugal, of which 21 is classified as current maturity,
as it is payable in March 2008, and a 25 million note
payable to a government entity in connection with our Richmond
plant. Both loans are unsecured. The term loan is unguaranteed. |
3
ADSs representing our companys shares have traded on the
New York Stock Exchange since August 9, 2006. The table
below sets forth, for the periods indicated, the high and low
closing sales prices for the ADSs on the New York Stock Exchange:
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Price per ADS in
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U.S. dollars
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High
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Low
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August 2006 (beginning August 9)
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$
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16.28
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$
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13.54
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September 2006
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$
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17.91
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$
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15.90
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October 2006
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$
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17.05
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$
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13.95
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November 2006
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$
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18.85
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$
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14.11
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December 2006
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$
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18.65
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$
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17.00
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January 2007
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$
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17.45
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$
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15.17
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February 2007
|
|
$
|
15.60
|
|
|
$
|
14.45
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|
March 2007
|
|
$
|
14.93
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|
|
$
|
13.81
|
|
April 2007
|
|
$
|
15.68
|
|
|
$
|
14.09
|
|
May 2007
|
|
$
|
15.16
|
|
|
$
|
14.14
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|
June 2007
|
|
$
|
17.00
|
|
|
$
|
14.94
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|
July 2007
|
|
$
|
17.04
|
|
|
$
|
14.80
|
|
August 2007
|
|
$
|
14.81
|
|
|
$
|
12.20
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|
September 2007 (through
September 10, 2007)
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|
$
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13.42
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|
$
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12.65
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On September 10, 2007, the closing sales price per ADS on
the New York Stock Exchange was $12.87.
4
SPECIAL
NOTE REGARDING
FORWARD-LOOKING STATEMENTS AND MARKET DATA
This prospectus, any accompanying prospectus supplement and the
information incorporated by reference in either document contain
forward-looking statements. These forward-looking statements
include statements regarding our financial position; our
expectations concerning future operations, margins,
profitability, liquidity and capital resources; our business
strategy and other plans and objectives for future operations;
and all other statements that are not historical facts. In some
cases, you can identify forward-looking statements by
terminology such as may, will,
should, expects, intends,
plans, anticipates,
believes, thinks, estimates,
seeks, predicts, potential,
and similar expressions. Although we believe that these
statements are based on reasonable assumptions, they are subject
to numerous factors, risks and uncertainties that could cause
actual outcomes and results to be materially different from
those projected. These factors, risks and uncertainties include
those listed under Risk Factors in our Annual Report
for the year ended September 30, 2006, as amended, and
elsewhere in this prospectus. Those factors, among others, could
cause our actual results and performance to differ materially
from the results and performance projected in, or implied by,
the forward-looking statements. As you read and consider this
prospectus, you should carefully understand that the
forward-looking statements are not guarantees of performance or
results.
These factors expressly qualify all subsequent oral and written
forward-looking statements attributable to us or persons acting
on our behalf. New risks and uncertainties arise from time to
time, and we cannot predict those events or how they may affect
us. Except for any ongoing obligations to disclose material
information as required by the U.S. federal securities
laws, we do not have any intention or obligation to update
forward-looking statements after we distribute this prospectus.
In addition, this prospectus contains information concerning the
semiconductor memory products market generally and the DRAM
market in particular, that is forward-looking in nature and is
based on a variety of assumptions regarding the ways in which
the semiconductor market and the DRAM market in particular will
develop. These assumptions have been derived from independent
market research and industry reports referred to in this
prospectus. Some data are also based on our good faith
estimates, derived from our review of internal surveys and the
independent sources listed above.
If any of the assumptions regarding the market are incorrect,
actual market results may differ from those predicted. Although
we do not know what impact any such differences may have on our
business, our future results of operations and financial
condition and the market price of our securities may be
materially adversely affected.
Unless we state otherwise in a prospectus supplement, the net
proceeds from the sale of securities offered through this
prospectus will be used for general corporate purposes. Net
proceeds received by Qimonda Finance LLC from the sale of
securities offered through this prospectus will be on-lent to
our group companies for their general corporate purposes.
We will not receive any proceeds from the sale of ADSs by the
selling shareholders.
The following is a statement of expenses in connection with this
registration statement. All amounts shown are estimates.
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Amount to be paid
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Legal Fees and Expenses
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$
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75,000
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|
Accounting Fees and Expenses
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|
|
50,000
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Total
|
|
|
125,000
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|
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5
Manufacturing
Alliances
SMIC
In December 2002, we entered into a Product Purchase and
Capacity Reservation Agreement, as most recently amended in
August 2007, with Semiconductor Manufacturing International
Corporation (SMIC), a Chinese foundry. As amended, this
agreement provides us access to additional DRAM manufacturing
capacity. Under the terms of this agreement, SMIC agreed to
manufacture, and we have agreed to purchase, up to 20,000 wafers
per month at SMICs 200mm production facility in Shanghai
at least until 2007 and up to 15,000 wafers per month at
SMICs 300mm production facility in Beijing at least until
2010. The agreement remains in effect until December 31,
2010 and may be extended. We have the unilateral right to
terminate this agreement in the event that one of our
semiconductor competitors acquires 50% of SMICs voting
shares. In addition, either party may terminate the agreement
upon material breach by the other party of any obligation under
this or the ancillary know-how transfer agreement or upon
bankruptcy or insolvency of the other party.
Under the terms of the agreements, Infineon was free to assign
the agreement to us and has done so in connection with the
carve-out.
Winbond
In May 2002, we entered into a Product Purchase and Capacity
Reservation Agreement with Winbond, a Taiwanese foundry. This
agreement provides us access to additional DRAM production
capacity. Under the terms of this agreement, Winbond agreed to
manufacture, and we agreed to purchase, up to 19,000 wafer
starts per month from Winbonds 200mm production facility
in Hsinchu, Taiwan until 2007. We are currently phasing down our
purchases of 200mm wafers from Winbond.
In August 2004, we entered into an extended Product Purchase and
Capacity Reservation Agreement, as most recently amended in
August 2006, with Winbond. This agreement gives us access to
additional DRAM production capacity of up to 18,000 wafers per
month in Winbonds 300mm facility in Taiwan until 2009. We
have exceeded this level from time to time. Under the terms of
this agreement we agreed to provide our 80nm DRAM trench
technology to Winbonds 300mm-wafer facility and Winbond
agreed to manufacture DRAMs for computing applications using
this technology exclusively for us. Under the terms of these
agreements, Infineon was free to assign these agreements to us
and has done so in connection with the carve-out. Each agreement
remains in effect until the last shipment of, and payment for,
products manufactured under the agreement unless it is earlier
terminated for breach.
On June 27, 2007, we signed agreements with Winbond to
expand our existing cooperation with Winbond and our reservation
of capacity at Winbonds facility for up to 24,000 300mm
wafer starts per month. Under the terms of the agreements, we
will provide our 75nm and 58nm DRAM trench technology to
Winbonds 300mm-wafer facility. In return, Winbond will
manufacture DRAMs for computing applications using this
technology exclusively for us.
DESCRIPTION
OF ORDINARY SHARES
For a description of our ordinary shares, see Articles of
Association in our annual report on
Form 20-F
for the year ended September 30, 2006, as amended. See
Incorporation of Certain Information by Reference.
DESCRIPTION
OF AMERICAN DEPOSITARY SHARES WE OR THE SELLING
SHAREHOLDERS MAY OFFER
For a description of our American Depositary Shares, see
Description of American Depositary Shares in our
final prospectus filed pursuant to Rule 424(b)(1) of the
Securities Act on August 10, 2006 with respect to the
Registration Statement on
Form F-1
(File
No. 333-135913).
See Incorporation of Certain Information by
Reference.
6
GENERAL
DESCRIPTION OF DEBT SECURITIES AND GUARANTEES WE MAY
OFFER
The following description of the terms of the debt securities
and guarantees we may offer sets forth certain general terms and
provisions of any debt securities and guarantees to which any
prospectus supplement may relate. Particular terms of debt
securities and guarantees offered by any prospectus supplement
and the extent, if any, to which these general terms and
provisions shall apply to any debt securities so offered will be
described in the prospectus supplement relating to the
applicable debt securities. The applicable prospectus supplement
may also state that any of the terms set forth in this
description are inapplicable to such debt securities. This
description does not purport to be complete.
General
As required by U.S. federal law for debt securities of
companies that are publicly offered, each series of debt
securities will be governed by a document called an indenture.
The material terms of any indenture governing a series of debt
securities will be described in the applicable prospectus
supplement. The indentures will be qualified under the
Trust Indenture Act and filed as exhibits to our
registration statement. See Where You Can Find More
Information for information on how to obtain a copy.
In addition to Qimonda AG and, if applicable, Qimonda Finance
LLC, a trustee will also be a party to each indenture. The
trustee has two main roles:
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First, it can enforce your rights against us if we default.
There are some limitations on the extent to which the trustee
acts on your behalf, which will be described in the applicable
prospectus supplement.
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Second, the trustee performs administrative duties for us, such
as sending you interest payments, transferring your debt
securities to a new buyer if you sell and sending you notices.
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We will describe in any applicable prospectus supplement the
terms relating to a series of debt securities, including:
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the title,
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any limit on the amount that may be issued,
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whether or not we will issue the series of debt securities in
global form,
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whether or not the series of debt securities will be convertible
or exchangeable for our common stock or other securities as
described below,
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the material terms of the indenture and who the trustee will be,
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the maturity date,
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the annual interest rate, which may be fixed or floating, or the
method for determining the rate and the date interest will begin
to accrue, the dates interest will be payable and the regular
record dates for interest payment dates or the method for
determining such dates,
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whether or not the debt securities will be secured or unsecured,
and the terms of any secured debt securities,
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the terms of the subordination of any series of subordinated
debt securities,
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the place where payments will be payable,
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our right, if any, to defer payment of interest and the maximum
length of any such deferral period,
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the date, if any, after which, and the price at which, we may,
at our option, redeem the series of notes pursuant to any
optional redemption provisions,
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the date, if any, on which, and the price at which we are
obligated, pursuant to any mandatory sinking fund provisions or
otherwise, to redeem, or at the holders option to
purchase, the series of notes,
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whether the indenture will restrict our ability to pay
dividends, or will require us to maintain any asset ratios or
reserves,
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7
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whether we will be restricted from incurring any additional
indebtedness,
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a discussion on any material or special United States federal
income tax considerations applicable to the debt securities,
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if other than U.S. dollars, the currency in which the debt
securities of the series will be denominated or in which the
principal of or any premium or interest on the debt securities
of the series will be payable;
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the denominations in which we will issue the series of debt
securities, if other than denominations of $1,000 and any
integral multiple thereof, and
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any other specific terms, preferences, rights or limitations of,
or restrictions on, the debt securities.
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Fixed
rate debt securities
Fixed rate debt securities typically bear interest at a fixed
rate. However, fixed rate debt securities include zero coupon
notes, which bear no interest and are instead issued at a price
lower than the principal amount. Any interest will be paid on
fixed rate debt securities on dates specified in the applicable
prospectus supplement.
Floating
rate debt securities
Floating rate debt securities provide an interest rate
determined, and adjusted periodically, by reference to any of
the following interest rate bases or formulae: Commercial Paper
Rate, LIBOR, EURIBOR, Prime Rate, Treasury Rate, CD Rate, CMT
Rate, CMS Rate, Federal Funds Rate or any other rate specified
in any applicable prospectus supplement. Interest will be paid
on floating rate debt securities on dates determined at the time
of issuance and as specified in any applicable prospectus
supplement.
Conversion
or Exchange of Debt Securities
If any debt securities are issued that may be converted or
exchanged into our common stock or other securities, the
applicable prospectus supplement will also describe the terms on
which the debt securities may be converted or exchanged. These
terms will include whether the conversion or exchange is
mandatory, is at our option or is at the option of the holder.
The applicable prospectus supplement will also describe how the
number of shares of common stock or other securities or property
to be received will be calculated.
Mandatory
conversion or exchange
At maturity, if any, or another time described in the applicable
prospectus supplement, the holder of a mandatorily convertible
or exchangeable debt security must exchange the security for the
underlying security or securities at a specified rate of
conversion or exchange. Therefore, depending upon the value of
the underlying securities at maturity, if any, or such other
time, the holder of a mandatorily convertible or exchangeable
debt security may receive less than the principal amount of the
debt security. If so indicated in the applicable prospectus
supplement, the specified rate at which a mandatorily
convertible or exchangeable debt security may be converted or
exchanged may vary depending on the value of the underlying
securities so that, upon conversion or exchange, the holder
participates in a percentage, which may be less than, equal to,
or greater than 100% of, the change in value of the underlying
securities. Mandatorily convertible or exchangeable debt
securities may include securities where we have the right, but
not the obligation, to require holders of the debt securities to
exchange their debt securities for the underlying securities.
Optional
conversion or exchange
The holder of an optionally convertible or exchangeable debt
security may, during a period, or at a specific time or times,
convert or exchange the debt security for the underlying
securities at a specified rate of conversion or exchange as set
forth in the applicable prospectus supplement. If specified in
the applicable prospectus supplement, we will have the option to
redeem the optionally convertible or exchangeable note prior to
maturity, if any. If the holder of an optionally convertible or
exchangeable debt security does not elect to exchange the
security prior to
8
maturity, if any, or any applicable redemption date, the holder
will receive the principal amount of the security plus any
accrued interest at maturity, if any, or upon redemption.
Payments
upon conversion or exchange
The applicable prospectus supplement will specify whether upon
conversion or exchange, at maturity, if any, or otherwise, the
holder of a convertible or exchangeable security may receive, at
the specified exchange rate, either the underlying securities or
the cash value of the underlying securities or a combination of
both. The convertible or exchangeable debt securities may or may
not provide for protection against fluctuations in the exchange
rate between the currency in which that security is denominated
and the currency or currencies in which the market prices of the
underlying security or securities are quoted.
Other
terms
Convertible or exchangeable debt securities may have other
terms, which will be specified in the applicable pricing
supplement or product supplement.
Guarantees
Qimonda AG will be the guarantor of debt securities issued by
Qimonda Finance LLC. Qimonda AG will fully, unconditionally and
irrevocably guarantee the payment of the principal of, premium,
if any, and interest on the debt securities issued by Qimonda
Finance LLC, including any additional amounts which may be
payable by Qimonda Finance LLC in respect of its debt
securities, as described in the applicable prospectus
supplement. Qimonda AG will guarantee the payment of such
amounts when such amounts become due and payable, whether at the
stated maturity of the debt securities, by declaration or
acceleration, call for redemption or otherwise.
In the distribution of the assets of any subsidiary of Qimonda
AG upon the subsidiarys liquidation or reorganization, any
creditor of the subsidiary will have a right to participate in
the distribution before the creditors of Qimonda AG, including
holders of debt securities issued by Qimonda Finance LLC. The
guarantees will be unsecured obligations of Qimonda AG.
Additional information about the guarantees, if any, will be
described in the applicable prospectus supplement.
Consolidation,
Merger or Sale
The indentures do not contain any covenant that restricts our
ability to merge or consolidate, or sell, convey, transfer or
otherwise dispose of all or substantially all of our assets.
However, any successor to or acquirer of such assets must assume
all of our obligations under the indentures or the debt
securities, as appropriate.
Events of
Default under the Indenture
The following are events of default under the indentures with
respect to any series of debt securities that we may issue:
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if we fail to pay interest when due and our failure continues
for 90 days and the time for payment has not been extended
or deferred;
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if we fail to pay the principal, or premium, if any, when due
and the time for payment has not been extended or delayed;
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if we fail to observe or perform any other covenant contained in
the notes or the indentures, other than a covenant specifically
relating to another series of notes, and our failure continues
for 90 days after we receive notice from the trustee or
holders of at least 25% in aggregate principal amount of the
outstanding notes of the applicable series; and
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if specified events of bankruptcy, insolvency or reorganization
occur to us.
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If an event of default with respect to debt securities of any
series occurs and is continuing, the trustee or the holders of
at least 25% in aggregate principal amount of the outstanding
debt securities of that series, by notice to us
9
in writing, and to the trustee if notice is given by such
holders, may declare the unpaid principal of, premium, if any,
on and accrued interest, if any, on the debt securities due and
payable immediately.
The holders of a majority in principal amount of the outstanding
debt securities of an affected series may waive any default or
event of default with respect to the series and its
consequences, except defaults or events of default regarding
payment of principal, premium, if any, or interest, unless we
have cured the default or event of default in accordance with
the indentures. Any waiver shall cure the default or event of
default.
Subject to the terms of the indentures, if an event of default
under the indenture shall occur and be continuing, the trustee
will be under no obligation to exercise any of its rights or
powers under the indentures at the request or direction of any
of the holders of the applicable series of debt securities,
unless such holders have offered the trustee reasonable
indemnity. The holders of a majority in principal amount of the
outstanding debt securities of any series 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 of that series, provided that:
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the direction so given by the holder is not in conflict with any
law or the applicable indenture; and
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subject to its duties under the Trust Indenture Act, the
trustee need not take any action that might involve it in
personal liability or might be unduly prejudicial to the holders
not involved in the proceeding.
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A holder of the debt securities of any series will only have the
right to institute a proceeding under the applicable indenture
or to appoint a receiver or trustee, or to seek other remedies,
if:
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the holder has given written notice to the trustee of a
continuing event of default with respect to that series;
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the holders of at least 25% in aggregate principal amount of the
outstanding debt security of that series have made written
request, and such holders have offered reasonable indemnity to
the trustee to institute the proceeding as trustee; and
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the trustee does not institute the proceeding, and does not
receive from the holders of a majority in aggregate principal
amount of the outstanding debt securities of that series other
conflicting directions within 60 days after the notice,
request and offer.
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These limitations do not apply to a suit instituted by a holder
of debt securities if we default in the payment of the
principal, premium, if any, or interest on, the debt securities.
We will periodically file statements with the trustee regarding
our compliance with specified covenants in the indenture.
Modification
of Indenture; Waiver
We and the trustee may change an indenture without the consent
of any holders with respect to specific matters, including:
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to fix any ambiguity, defect or inconsistency in the
indenture; and
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to change anything that does not materially adversely affect the
interests of any holder of debt securities of any series.
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In addition, under the indenture, the rights of holders of a
series of debt securities may be changed by us and the trustee
with the written consent of the holders of at least a majority
in aggregate principal amount of the outstanding debt securities
of each series that is affected. However, we and the trustee may
only make the following changes with the consent of each holder
of any outstanding debt securities affected:
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extending the fixed maturity of the series of the debt
securities;
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reducing the principal amount, reducing the rate of interest, or
reducing any premium payable upon the redemption of any debt
securities; or
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10
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reducing the minimum percentage of debt securities, the holders
of which are required to consent to any amendment.
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Discharge
The indenture provides that we may elect to be discharged from
our obligations with respect to one or more series of debt
securities, except for obligations to:
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register the transfer or exchange of debt securities of the
series;
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replace stolen, lost or mutilated debt securities of the series;
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maintain paying agencies;
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hold monies for payment in trust;
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compensate and indemnify the trustee; and
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appoint any successor trustee.
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In order to exercise our rights to be discharged, we must
deposit with the trustee money or government obligations
sufficient to pay all the principal of, any premium, if any, and
interest on, the debt securities of the series on the dates
payments are due.
Form,
Exchange and Transfer
We will issue the debt securities of each series only in fully
registered form without coupons and, unless we otherwise specify
in the applicable prospectus supplement, in denominations of
$1,000 and any integral multiple thereof. The indentures provide
that we may issue debt securities of a series in temporary or
permanent global form and as book-entry securities that will be
deposited with, or on behalf of, The Depository
Trust Company or another depository named by us and
identified in a prospectus supplement with respect to that
series.
At the option of the holder, subject to the terms of the
applicable indentures and the limitations applicable to global
securities described in the applicable prospectus supplement,
the holder of the debt securities of any series can exchange the
securities for other securities of the same series, in any
authorized denomination and of like tenor and aggregate
principal amount.
Subject to the terms of the applicable indenture and the
limitations applicable to global securities set forth in the
applicable prospectus supplement, holders of the debt securities
may present the notes for exchange or for registration of
transfer, duly endorsed or with the form of transfer endorsed
thereon duly executed if so required by us or the security
registrar, at the office of the security registrar or at the
office of any transfer agent designated by us for this purpose.
Unless otherwise provided in the debt securities that the holder
presents for transfer or exchange, we will not require any
payment for any registration of transfer or exchange, but we may
require payment of any taxes or other governmental charges.
We will name in the applicable prospectus supplement the
security registrar, and any transfer agent in addition to the
security registrar, that we initially designate for any debt
securities. We may at any time designate additional transfer
agents or rescind the designation of any transfer agent or
approve a change in the office through which any transfer agent
acts, except that we will be required to maintain a transfer
agent in each place of payment for the notes of each series.
If we elect to redeem the debt securities of any series, we will
not be required to:
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issue, register the transfer of, or exchange any debt securities
of that series during a period beginning at the opening of
business 15 days before the day of mailing of a notice of
redemption of any debt securities that may be selected for
redemption and ending at the close of business on the day of the
mailing; or
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register the transfer of or exchange any debt securities so
selected for redemption, in whole or in part, except the
unredeemed portion of any debt securities we are redeeming in
part.
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11
Information
concerning the trustee
The trustee, other than during the occurrence and continuance of
an event of default under an indenture, undertakes to perform
only those duties as are specifically set forth in the
applicable indenture. Upon an event of default under an
indenture, the trustee must use the same degree of care as a
prudent person would exercise or use in the conduct of his or
her own affairs. Subject to this provision, the trustee is under
no obligation to exercise any of the powers given it by the
relevant indenture at the request of any holder of debt
securities unless it is offered reasonable security and
indemnity against the costs, expenses and liabilities that it
might incur.
Payment
and Paying Agents
Unless we otherwise indicate in the applicable prospectus
supplement, we will make payment of the interest on any debt
securities on any interest payment date to the person in whose
name the securities, or one or more predecessor securities, are
registered at the close of business on the regular record date
for the interest payment.
We will pay principal of and any premium and interest on the
debt securities of a particular series at the office of the
paying agents designated by us, except that unless we otherwise
indicate in the applicable prospectus supplement, we will make
interest payments by check which we will mail to the holder.
Unless we otherwise indicate in a prospectus supplement, we will
designate the corporate trust office of the trustee in New York
City as our sole paying agent for payments with respect to debt
securities of each series. We will name in the applicable
prospectus supplement any other paying agents that we initially
designate for the debt securities of a particular series. We
will maintain a paying agent in each place of payment for the
debt securities of a particular series.
All money we pay to a paying agent or the trustee for the
payment of the principal of or any premium or interest on any
debt securities which remains unclaimed at the end of two years
after such principal, premium or interest has become due and
payable will be repaid to us, and the holder of the security
thereafter may look only to us for payment thereof.
Governing
Law
The indentures and the debt securities will be governed by and
construed in accordance with the laws of the State of New York,
except to the extent that the Trust Indenture Act is
applicable.
12
We are registering the shares of common stock covered by this
prospectus to permit us to offer and sell ADSs representing new
shares we may issue as well as to permit the selling
shareholders to conduct public secondary offerings of ADSs from
time to time after the date of this prospectus. A selling
shareholder may offer the shares of common stock for cash or
other consideration, including in an exchange for other
securities issued by a selling shareholder.
All of the shares offered in this offering will be delivered in
the form of ADSs.
We may, and any selling shareholder may, sell all or a portion
of the securities from time to time:
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directly; or
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through underwriters, dealers or agents, who may receive
compensation in the form of underwriting discounts or
commissions or agents commissions from the selling
shareholder or from the purchasers of the securities for whom
they may act as agent.
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Underwriters, dealers and agents may be entitled under
agreements with us to indemnification by us against some civil
liabilities, including liabilities under the Securities Act. In
addition, underwriters, dealers and agents may be customers of,
engage in transactions with, or perform services for, us in the
ordinary course of business.
Underwriters
If we, or any selling shareholder, use underwriters for the sale
of securities, they will acquire the securities for their own
account. The underwriters may resell the securities from time to
time in one or more transactions, including negotiated
transactions, at a fixed public offering price or at varying
prices determined at the time of sale. Unless we otherwise state
in the applicable prospectus supplement, various conditions will
apply to the underwriters obligation to purchase the
securities, and the underwriters will be obligated to purchase
all of the securities contemplated in an offering if they
purchase any of such securities. Any initial public offering
price and any discounts or concessions allowed or reallowed or
paid to dealers may be changed from time to time.
Dealers
If we, or any selling shareholder, use dealers in connection
with the sale of securities, unless we otherwise indicate in the
applicable prospectus supplement, we, or any selling
shareholder, will sell the securities to the dealers as
principals. The dealers may then resell the securities to the
public at varying prices that the dealers may determine at the
time of resale.
Agents
We or any selling shareholder may designate agents who agree to
use their reasonable efforts to solicit purchases of the
securities during the term of their appointment to sell
securities on a continuing basis.
Direct
Sales
We or any selling shareholder may also sell securities directly
without using underwriters, dealers or agents.
Loans of
Securities
In addition, we or a selling shareholder may loan or pledge
securities to a financial institution or other third party that
in turn may sell the securities using this prospectus and an
applicable prospectus supplement. Such financial institution or
third party may transfer its short position in our securities to
investors.
Selling
Restrictions
In any EEA Member State that has implemented Directive
2003/71/EC (together with any applicable implementing measures
in any Member State, the Prospectus Directive), this
communication is only addressed to and is only directed at
qualified investors in that Member State within the meaning of
the Prospectus Directive.
This prospectus has been prepared on the basis that all offers
of the securities will be made pursuant to an exemption under
the Prospectus Directive, as implemented in member states of the
European Economic Area (EEA), from the requirement
to produce a prospectus for offers of the securities.
Accordingly any person making or intending to make any offer
within the EEA of the securities which are the subject of the
placement contemplated
13
in this prospectus should only do so in circumstances in which
no obligation arises for us or any of the underwriters to
produce a prospectus for such offer. Neither we nor any of the
underwriters have authorized, nor do we or they authorize, the
making of any offer of the securities through any financial
intermediary, other than offers made by the underwriters which
constitute the final placement of the securities contemplated in
this prospectus.
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 securities which are the subject of the offering
contemplated by this 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 43,000,000 and (3) an annual net turnover
of more than 50,000,000, as shown in its last annual
or consolidated accounts;
(c) by the underwriters to fewer than 100 natural or legal
persons (other than qualified investors as defined in the
Prospectus Directive); or
(d) in any other circumstances falling within
Article 3(2) of the Prospectus Directive,
provided that no such offer of Securities shall result in a
requirement for the publication by us 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 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.
This communication is only being distributed to and is only
directed at (i) persons who are outside the
United Kingdom or (ii) investment professionals
falling within Article 19(5) of the Financial Services and
Markets Act 2000 (Financial Promotion) Order 2005 (the
Order) or (iii) high net worth companies, and
other persons to whom it may lawfully be communicated, falling
within Article 49(2)(a) to (d) of the Order (all such
persons together being referred to as relevant
persons). The Securities are only available to, and any
invitation, offer or agreement to subscribe, purchase or
otherwise acquire such Securities will be engaged in only with,
relevant persons. Any person who is not a relevant person should
not act or rely on this document or any of its contents.
This prospectus is not being distributed pursuant to a public
offer in France within the meaning of
Article L. 411-1
of the French Monetary and Financial Code (Code
monétaire et financier), and as a result this
prospectus has not been and will not be submitted to the
Autorité des Marchés Financiers for approval in
France. The Securities offered have not been offered or sold,
and will not be offered or sold, directly or indirectly, to the
public in France, and this prospectus and any other offering
related material has not been distributed and will not be
distributed to the public in France. Any offers, sales and
distributions have only been and will only be made in France to
qualified investors (investisseurs qualifiés), to a
restricted group of investors (cercle restreint
dinvestisseurs) or to people providing portfolio
management services for third party accounts (personnes
fournissant le service dinvestissement de gestion de
portefeuille pour compte de tiers). In each case,
acting for their own account, all as defined in, and in
accordance with, Articles L.
411-1, L.
411-2, D.
411-1 and D.
411-2 of the
French Monetary and Financial Code. This prospectus is not to be
further distributed or reproduced (in whole or in part) in
France by the recipients hereof and this prospectus will be
distributed on the understanding that any recipients will only
participate in the issue or sale of the Securities for their own
account and undertake not to transfer, directly or indirectly,
the shares to the public in France, other than in compliance
with all applicable laws and regulations and in particular with
Articles L.
411-1 and L.
411-2 of the
French Monetary and Financial Code.
The Securities offered by this prospectus have not been and will
not be offered to the public within the meaning of the German
Sales Prospectus Act (Verkaufsprospektgesetz) or the
German Investment Act (Investmentgesetz). Neither our
shares nor the Securities have been or will be listed on a
German exchange. No sales prospectus
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pursuant to the German Sales Prospectus Act has been or will be
published or circulated in Germany or filed with the German
Federal Financial Supervisory Authority (Bundesanstalt
für Finanzdienstleistungsaufsicht) or any other
governmental or regulatory authority in Germany. This prospectus
does not constitute an offer to the public in Germany and it
does not serve for public distribution of the Securities or
shares in Germany. Neither this prospectus, nor any other
document issued in connection with this offering, may be issued
or distributed to any person in Germany except under
circumstances which do not constitute an offer to the public
within the meaning of the German Sales Prospectus Act or the
German Investment Act.
This offering has not been registered with the Commissione
Nationale per la Società e la Borsa (CONSOB) pursuant
to Italian securities legislation. The securities offered by
this prospectus may not be offered or sold, nor may the
prospectus or any other offering materials be distributed in the
Republic of Italy unless such offer, sale or distribution is:
(a) made by an investment firm, bank or financial
intermediary permitted to conduct such activities in the
Republic of Italy in accordance with Legislative Decree
No. 385 of September 1, 1993 (Decree No. 385),
Legislative Decree No. 58 of February 24, 1998, CONSOB
Regulation No. 11971 of May 14, 1999 and any
other applicable laws and regulations;
(b) made (i) to professional investors (operatori
qualificati) as defined in Article 31, second paragraph
of CONSOB Regulation No. 11422 of July 1, 1998,
as amended, or Regulation No, 11522, (ii) in
circumstances where an exemption from the rules governing
solicitations to the public at large applies pursuant to
Article 100 of Legislative Decree No. 58 of
February 24, 1998 and Article 33, first paragraph, of
CONSOB Regulation No. 11971 of May 14, 1999, as
amended or (iii) to persons located in the Republic of
Italy who submit an unsolicited request to purchase the
securities; and (c) in compliance with all relevant Italian
securities and tax laws and regulations.
The underwriters will not offer or sell any of our Securities
directly or indirectly in Japan or to, or for the benefit of any
Japanese person or to others, for re-offering or re-sale
directly or indirectly in Japan or to any Japanese person,
except in each case pursuant to an exemption from the
registration requirements of, and otherwise in compliance with,
the Securities and Exchange Law of Japan and any other
applicable laws and regulations of Japan. For purposes of this
paragraph, Japanese person means any person resident
in Japan, including any corporation or other entity organized
under the laws of Japan.
The underwriters and each of their affiliates have not
(i) offered or sold, and will not offer or sell, in Hong
Kong, by means of any document, our Securities other than
(a) to professional investors as defined in the
Securities and Futures Ordinance (Cap.571) of Hong Kong and any
rules made under that Ordinance or (b) 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 or (ii) 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 any advertisement, invitation
or document relating to our Securities which is directed at, or
the contents of which are likely to be accessed or read by, the
public in Hong Kong (except if permitted to do so under the
securities laws of Hong Kong) other than with respect to our
Securities which are or are intended to be disposed of only to
persons outside Hong Kong or only to professional
investors as defined in the Securities and Futures
Ordinance and any rules made under that Ordinance. The contents
of this document have not been reviewed by any regulatory
authority in Hong Kong. You are advised to exercise caution in
relation to the offer. If you are in any doubt about any of the
contents of this document, you should obtain independent
professional advice.
This prospectus or any other offering material relating to our
Securities has not been and will not be registered as a
prospectus with the Monetary Authority of Singapore, and the
Securities will be offered in Singapore pursuant to exemptions
under Section 274 and Section 275 of the Securities
and Futures Act, Chapter 289 of Singapore (the
Securities and Futures Act). Accordingly our
Securities may not be offered or sold, or be the subject of an
invitation for subscription or purchase, nor may this prospectus
or any other offering material relating to our Securities be
circulated or distributed, whether directly or indirectly, to
the public or any member of the public in Singapore other than
(a) to an institutional investor or other person specified
in Section 274 of the Securities and Futures Act,
(b) to a sophisticated investor, and in accordance with the
conditions specified in Section 275 of the
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Securities and Futures Act or (c) otherwise pursuant to,
and in accordance with the conditions of, any other applicable
provision of the Securities and Futures Act.
ENFORCING
CIVIL LIABILITIES
Qimonda AG is a German stock corporation. The executive offices
and a substantial portion of the assets of Qimonda AG are
located outside the United States. In addition, the members of
the Supervisory and Management Boards of Qimonda AG and the
experts named herein may be residents of Germany and other
jurisdictions other than the United States. As a result, it may
be difficult for investors to effect service within the United
States upon Qimonda AG, members of their Supervisory or
Management Boards or experts or to enforce outside the
United States judgments obtained against such persons in
United States courts, or to enforce in United States courts
judgments obtained against such persons in courts in
jurisdictions outside the United States, in any action,
including actions predicated upon the civil liability provisions
of the U.S. securities laws. In addition, it may be
difficult for investors to enforce, in original actions brought
in courts in jurisdictions located outside the
United States, liabilities predicated upon the
U.S. securities laws.
The validity of the securities and certain other legal matters
with respect to German, U.S. federal and New York law will
be passed upon by Cleary Gottlieb Steen & Hamilton
LLP, German and U.S. counsel to the selling shareholders,
Qimonda AG and Qimonda Finance LLC.
Certain other legal matters with respect to Delaware law will be
passed upon by Richards, Layton, & Finger, P.A., special
Delaware counsel to Qimonda Finance LLC.
The combined and consolidated financial statements of Qimonda AG
and subsidiaries as of September 30, 2005 and 2006, and for
each of the years in the three-year period ended
September 30, 2006, have been incorporated by reference
herein in reliance upon the report of KPMG Deutsche
Treuhand-Gesellschaft Aktiengesellschaft
Wirtschaftsprüfungsgesellschaft, independent registered
public accounting firm, Ganghoferstrasse 29, 80339 Munich,
Germany, incorporated by reference herein, and upon the
authority of that firm as experts in accounting and auditing. To
the extent that KPMG Deutsche Treuhand-Gesellschaft
Aktiengesellschaft Wirtschaftsprüfungsgesellschaft audits
and reports on financial statements of Qimonda AG issued at
future dates, and consents to the use of its report thereon,
such financial statements also will be incorporated by reference
in the registration statement in reliance upon its report and
said authority.
The financial statements of Inotera Memories, Inc. as of and for
the years ended December 31, 2004, 2005 and 2006 have been
incorporated by reference herein in reliance upon the reports of
KPMG Certified Public Accountants, independent registered public
accounting firm, 6F, Sec. 3 Misheng E. Road, Songshon District,
Taipei City 105, Taiwan, R.O.C., incorporated by reference
herein, and upon the authority of that firm as experts in
accounting and auditing. To the extent that KPMG Certified
Public Accountants audits and reports on financial statements of
Inotera Memories, Inc. issued at future dates, and consents to
the use of its report thereon, such financial statements also
will be incorporated by reference in the registration statement
in reliance upon its report and said authority.
We have filed with the Securities and Exchange Commission a
registration statement on
Form F-3
under the Securities Act. This prospectus does not contain all
of the information set forth in the registration statement, and
some parts have been omitted in accordance with the rules and
regulations of the SEC. For further information about us and the
securities, please refer to the registration statement, which
you may access at the SECs website, www.sec.gov, or
inspect in person, without charge, at the SECs Public
Reference Room as described below.
We are subject to the informational requirements of the
Securities Exchange Act of 1934 and file reports and other
information with the Commission. Such reports and other
information can be inspected and copied at the public reference
facilities of the SEC located at the SECs Public Reference
Room at 100 F Street, N.E., Washington, D.C.
20549. The public may obtain information on the operation of the
SECs Public Reference Room by calling the SEC in
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the United States at
1-800-SEC-0330.
The SEC also maintains a web site at
http://www.sec.gov
that contains reports and other information regarding
registrants that file electronically with the SEC.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors,
officers or persons controlling the registrant pursuant to the
foregoing provisions, the registrant has been informed that in
the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act
and is therefore unenforceable.
INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
The SEC allows us to incorporate by reference the
information we file with the SEC in other documents, which means:
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incorporated documents are considered part of this prospectus;
we can disclose important information to you by referring you to
those documents; and
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information in this prospectus automatically updates and
supersedes information in earlier documents that are
incorporated by reference in this prospectus, and information
that we file with the SEC after the date of this prospectus
automatically updates and supersedes this prospectus.
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We incorporate by reference our Annual Report on
Form 20-F
for the year ended September 30, 2006, which was filed with
the SEC on November 21, 2006 and our Annual Report on
Form 20-F/A
for the year ended September 30, 2006, which was filed with
the SEC on March 30, 2007. We incorporate by reference our
report on
Form 6-K
dated July 27, 2007. We also incorporate by reference the
section Description of American Depositary Shares in
our prospectus filed pursuant to Rule 424(b)(1) of the
Securities Act on August 10, 2006 with respect to the
Registration Statement on
Form F-1
(File
No. 333-135913).
We also incorporate by reference each of the following documents
that we will file with the SEC after the date of this prospectus
from now until we terminate the offering of the debt securities:
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Annual Reports filed on
Form 20-F; and
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any future reports filed on
Form 6-K
that indicate that they are incorporated by reference in this
prospectus.
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Upon request, we will provide to each person, including any
beneficial owner, to whom a prospectus is delivered, a copy of
any or all of the information that has been incorporated by
reference in the prospectus but not delivered with the
prospectus.
You may obtain a copy of any of the documents referred to above
at no cost by contacting us at the following address or
telephone number:
Qimonda AG
Gustav-Heinemann-Ring 212
81739 Munich, Germany
+(49)(89)
60088-0
Qimonda
Finance LLC
Qimonda Finance LLC is our wholly-owned, consolidated
subsidiary. Qimonda Finance LLC does not, and will not, file
separate reports with the SEC.
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