<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported) FEBRUARY 9, 2000
AMAZON.COM, INC.
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(Exact name of registrant as specified in its charter)
DELAWARE 000-22513 91-1646860
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(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
1200 - 12TH AVENUE SOUTH, SUITE 1200, SEATTLE, WASHINGTON 98144
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (206) 266-1000
N/A
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(Former name and former address, if changed since last report.)
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ITEM 5. OTHER EVENTS.
On Febuary 9, 2000, the Board of Directors of Amazon.com, Inc., a
Delaware corporation ("Amazon.com"), approved an amendment to Section 2.1 of
the Bylaws of Amazon.com which allows the Board of Directors to set its annual
meeting on a date prior to as well as later than the second Thursday in May. The
Bylaws are filed as Exhibit 3.1 to this Current Report.
On Febuary 16, 2000, Amazon.com completed a public offering of
E690,000,000 in principal amount of Euro Denominated Convertible
Subordinated Notes due 2010. The forms of the Notes issued in connection with
such offering are filed as Exhibits 4.1 and 4.2 to this Current Report.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(c) Exhibits.
3.1 Bylaws of Amazon.com
4.1 Form of 6 7/8% Convertible Subordinated Note due 2010 in the
principal amount of E400,000,000.
4.2 Form of 6 7/8% Convertible Subordinated Note due 2010 in the
principal amount of E290,000,000.
2
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Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
AMAZON.COM, INC.
Dated: February 28, 2000 By: /s/ L. Michelle Wilson
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L. Michelle Wilson
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EXHIBIT 3.1
BYLAWS
OF
AMAZON.COM, INC.
Originally adopted on May 28, 1996
Amendments are listed on p. i
<PAGE> 2
AMAZON.COM, INC.
AMENDMENTS
<TABLE>
<CAPTION>
Date of
Section Effect of Amendment Amendment
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<S> <C> <C>
6.4 Add paragraph regarding Regulation S 4/24/98
2.1 Allow Board to set the annual meeting on a date prior 2/9/00
to as well as later than the 2nd Thursday in May
</TABLE>
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CONTENTS
<TABLE>
<S> <C> <C>
SECTION 1. OFFICES ................................................. 1
SECTION 2. STOCKHOLDERS ............................................ 1
2.1 Annual Meeting .......................................... 1
2.2 Special Meetings ........................................ 1
2.3 Place of Meeting ........................................ 1
2.4 Notice of Meeting ....................................... 2
2.5 Business for Stockholders' Meetings ..................... 2
2.5.1 Business at Annual Meetings .................. 2
2.5.2 Business at Special Meetings ................. 3
2.5.3 Notice to Corporation ........................ 3
2.6 Waiver of Notice ........................................ 3
2.6.1 Waiver in Writing ............................ 3
2.6.2 Waiver by Attendance ......................... 3
2.7 Fixing of Record Date for Determining Stockholders ...... 4
2.7.1 Meetings ..................................... 4
2.7.2 Consent to Corporate Action Without a
Meeting ...................................... 4
2.7.3 Dividends, Distributions and Other Rights .... 4
2.8 Voting List ............................................. 5
2.9 Quorum .................................................. 5
2.10 Manner of Acting ........................................ 5
2.11 Proxies ................................................. 6
2.11.1 Appointment .................................. 6
2.11.2 Delivery to Corporation; Duration ............ 6
2.12 Voting of Shares ........................................ 6
2.13 Voting for Directors .................................... 6
2.14 Action by Stockholders Without a Meeting ................ 7
2.15 Inspectors of Election .................................. 7
2.15.1 Appointment .................................. 7
2.15.2 Duties ....................................... 8
SECTION 3. BOARD OF DIRECTORS ...................................... 8
3.1 General Powers .......................................... 8
3.2 Number and Tenure ....................................... 8
3.3 Nomination and Election. ................................ 9
3.3.1 Nomination ................................... 9
3.3.2 Election ..................................... 10
3.4 Annual and Regular Meetings ............................. 10
3.5 Special Meetings ........................................ 10
3.6 Meetings by Telephone ................................... 10
</TABLE>
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<TABLE>
<S> <C> <C>
3.7 Notice of Special Meetings .............................. 10
3.7.1 Personal Delivery ............................ 10
3.7.2 Delivery by Mail ............................. 11
3.7.3 Delivery by Private Carrier .................. 11
3.7.4 Facsimile Notice ............................. 11
3.7.5 Delivery by Telegraph ........................ 11
3.7.6 Oral Notice .................................. 11
3.8 Waiver of Notice ........................................ 11
3.8.1 In Writing ................................... 11
3.8.2 By Attendance ................................ 12
3.9 Quorum .................................................. 12
3.10 Manner of Acting ........................................ 12
3.11 Presumption of Assent ................................... 12
3.12 Action by Board or Committees Without a Meeting ......... 12
3.13 Resignation ............................................. 12
3.14 Removal ................................................. 13
3.15 Vacancies ............................................... 13
3.16 Committees .............................................. 13
3.16.1 Creation and Authority of Committees ......... 13
3.16.2 Audit Committee .............................. 14
3.16.3 Compensation Committee ....................... 14
3.16.4 Nominating and Organization Committee ........ 14
3.16.5 Minutes of Meetings .......................... 15
3.16.6 Quorum and Manner of Acting .................. 15
3.16.7 Resignation .................................. 15
3.16.8 Removal ...................................... 15
3.17 Compensation ............................................ 15
SECTION 4. OFFICERS ................................................ 16
4.1 Number .................................................. 16
4.2 Election and Term of Office ............................. 16
4.3 Resignation ............................................. 16
4.4 Removal ................................................. 16
4.5 Vacancies ............................................... 16
4.6 Chairman of the Board ................................... 17
4.7 Chief Executive Officer ................................. 17
4.8 President ............................................... 17
4.9 Vice President .......................................... 17
4.10 Secretary ............................................... 18
4.11 Treasurer ............................................... 18
4.12 Salaries ................................................ 18
SECTION 5. CONTRACTS, LOANS, CHECKS AND DEPOSITS ................... 18
5.1 Contracts ............................................... 18
</TABLE>
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<TABLE>
<S> <C> <C>
5.2 Loans to the Corporation ................................ 18
5.3 Checks, Drafts, Etc. .................................... 18
5.4 Deposits ................................................ 19
SECTION 6. CERTIFICATES FOR SHARES AND THEIR TRANSFER .............. 19
6.1 Issuance of Shares ...................................... 19
6.2 Certificates for Shares ................................. 19
6.3 Stock Records ........................................... 19
6.4 Restriction on Transfer ................................. 20
6.5 Transfer of Shares ...................................... 20
6.6 Lost or Destroyed Certificates .......................... 20
6.7 Shares of Another Corporation ........................... 21
SECTION 7. BOOKS AND RECORDS ....................................... 21
SECTION 8. ACCOUNTING YEAR ......................................... 21
SECTION 9. SEAL .................................................... 21
SECTION 10. INDEMNIFICATION ......................................... 21
10.1 Right to Indemnification ................................ 21
10.2 Right of Indemnitee to Bring Suit ....................... 22
10.3 Nonexclusivity of Rights ................................ 23
10.4 Insurance, Contracts and Funding ........................ 23
10.5 Indemnification of Employees and Agents of the
Corporation ............................................. 23
10.6 Persons Serving Other Entities .......................... 23
10.7 Procedures for the Submission of Claims ................. 24
SECTION 11. AMENDMENTS OR REPEAL .................................... 24
</TABLE>
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BYLAWS
OF
AMAZON.COM, INC.
SECTION 1. OFFICES
The principal office of the corporation shall be located at its principal
place of business or such other place as the Board of Directors (the "Board")
may designate. The corporation may have such other offices, either within or
without the state of Delaware, as the Board may designate or as the business of
the corporation may require from time to time.
SECTION 2. STOCKHOLDERS
2.1 ANNUAL MEETING
The annual meeting of the stockholders shall be held the second Thursday
of May in each year at the principal office of the corporation or such other
place designated by the Board for the purpose of electing Directors and
transacting such other business as may properly come before the meeting. If the
day fixed for the annual meeting is a legal holiday at the place of the meeting,
the meeting shall be held on the next succeeding business day. If the annual
meeting is not held on the date designated therefor, the Board shall cause the
meeting to be held on such other date as is convenient. At any time prior to the
commencement of the annual meeting, the Board may postpone the annual meeting
for a period of up to 120 days from the date fixed for such meeting in
accordance with this subsection 2.1.
2.2 SPECIAL MEETINGS
The Chairman of the Board, the President, the Board or the holders of not
less than 30 percent of all the outstanding shares of the corporation entitled
to vote on any issue proposed to be considered at the meeting may call special
meetings of the stockholders for any purpose.
2.3 PLACE OF MEETING
All meetings shall be held at the principal office of the corporation or
at such other place within or without the State of Delaware designated by the
Board, by any persons entitled to call a meeting hereunder or in a waiver of
notice signed by all of the stockholders entitled to notice of the meeting.
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2.4 NOTICE OF MEETING
The Chairman of the Board, the President, the Secretary, the Board, or
stockholders calling an annual or special meeting of stockholders as provided
for herein, shall cause to be delivered to each stockholder entitled to notice
of or to vote at the meeting either personally or by mail, not less than 10 nor
more than 60 days before the meeting, written notice stating the place, day and
hour of the meeting and, in the case of a special meeting, the purpose or
purposes for which the meeting is called. Upon written request by the holders of
not less than the number of outstanding shares of the corporation specified in
subsection 2.2 hereof and entitled to vote at the meeting, it shall be the duty
of the Secretary to give notice of a special meeting of stockholders to be held
on such date and at such place and hour as the Secretary may fix, not less than
10 nor more than 60 days after receipt of said request, and if the Secretary
shall neglect or refuse to issue such notice, the person making the request may
do so and may fix the date for such meeting. If such notice is mailed, it shall
be deemed delivered when deposited in the official government mail properly
addressed to the stockholder at such stockholder's address as it appears on the
stock transfer books of the corporation with postage prepaid. If the notice is
telegraphed, it shall be deemed delivered when the content of the telegram is
delivered to the telegraph company. Notice given in any other manner shall be
deemed delivered when dispatched to the stockholder's address, telephone number
or other number appearing on the stock transfer records of the corporation.
2.5 BUSINESS FOR STOCKHOLDERS' MEETINGS
2.5.1 BUSINESS AT ANNUAL MEETINGS
In addition to the election of directors, other proper business may be
transacted at an annual meeting of stockholders, provided that such business
must be properly brought before such meeting. To be properly brought before an
annual meeting, business must be (a) brought by or at the direction of the Board
or (b) brought before the meeting by a stockholder pursuant to written notice
thereof, in accordance with subsection 2.5.3 hereof, and received by the
Secretary not fewer than 60 nor more than 90 days prior to the date specified in
subsection 2.1 hereof for such annual meeting (or if less than 60 days' notice
or prior public disclosure of the date of the annual meeting is given or made to
the stockholders, not later than the tenth day following the day on which the
notice of the date of the annual meeting was mailed or such public disclosure
was made). No business shall be conducted at any annual meeting of stockholders
except in accordance with this subsection 2.5.1, unless the application of this
subsection 2.5.1 to a particular matter is waived in writing by the Board of
Directors. If the facts warrant, the Board, or the chairman of an annual meeting
of stockholders, may determine and declare that (a) a proposal does not
constitute proper business to be transacted at the meeting or (b) business was
not properly brought before the meeting in accordance with the provisions of
this subsection 2.5.1 and, if, it is so determined in either case, any such
business shall not be transacted. The procedures set forth in this subsection
2.5.1 for business to be properly
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brought before an annual meeting by a stockholder are in addition to, and not in
lieu of, the requirements set forth in Rule 14a-8 under Section 14 of the
Securities Exchange Act of 1934, as amended, or any successor provision.
2.5.2 BUSINESS AT SPECIAL MEETINGS
At any special meeting of the stockholders, only such business as is
specified in the notice of such special meeting given by or at the direction of
the person or persons calling such meeting, in accordance with subsection 2.4
hereof, shall come before such meeting.
2.5.3 NOTICE TO CORPORATION
Any written notice required to be delivered by a stockholder to the
corporation pursuant to subsection 2.2, subsection 2.4, subsection 2.5.1 or
subsection 2.5.2 hereof must be given, either by personal delivery or by
registered or certified mail, postage prepaid, to the Secretary at the
corporation's executive offices. Any such stockholder notice shall set forth (i)
the name and address of the stockholder proposing such business; (ii) a
representation that the stockholder is entitled to vote at such meeting and a
statement of the number of shares of the corporation that are beneficially owned
by the stockholder; (iii) a representation that the stockholder intends to
appear in person or by proxy at the meeting to propose such business; and (iv)
as to each matter the stockholder proposes to bring before the meeting, a brief
description of the business desired to be brought before the meeting, the
reasons for conducting such business at the meeting, the language of the
proposal (if appropriate), and any material interest of the stockholder in such
business.
2.6 WAIVER OF NOTICE
2.6.1 WAIVER IN WRITING
Whenever any notice is required to be given to any stockholder under the
provisions of these Bylaws, the Certificate of Incorporation or the General
Corporation Law of the State of Delaware, as now or hereafter amended (the
"DGCL"), a waiver thereof in writing, signed by the person or persons entitled
to such notice, whether before or after the time stated therein, shall be deemed
equivalent to the giving of such notice.
2.6.2 WAIVER BY ATTENDANCE
The attendance of a stockholder at a meeting shall constitute a waiver of
notice of such meeting, except when a stockholder attends a meeting for the
express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened.
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2.7 FIXING OF RECORD DATE FOR DETERMINING STOCKHOLDERS
2.7.1 MEETINGS
For the purpose of determining stockholders entitled to notice of and to
vote at any meeting of stockholders or any adjournment thereof, the Board may
fix a record date, which record date shall not precede the date upon which the
resolution fixing the record date is adopted by the Board, and which record date
shall not be more than 60 (or the maximum number permitted by applicable law)
nor less than 10 days before the date of such meeting. If no record date is
fixed by the Board, the record date for determining stockholders entitled to
notice of and to vote at a meeting of stockholders shall be at the close of
business on the day next preceding the day on which notice is given, or, if
notice is waived, at the close of business on the day next preceding the day on
which the meeting is held. A determination of stockholders of record entitled to
notice of and to vote at the meeting of stockholders shall apply to any
adjournment of the meeting; provided, however, that the Board may fix a new
record date for the adjourned meeting.
2.7.2 CONSENT TO CORPORATE ACTION WITHOUT A MEETING
For the purpose of determining stockholders entitled to consent to
corporate action in writing without a meeting, the Board may fix a record date,
which record date shall not precede the date upon which the resolution fixing
the record date is adopted by the Board, and which date shall not be more than
10 (or the maximum number permitted by applicable law) days after the date upon
which the resolution fixing the record date is adopted by the Board. If no
record date has been fixed by the Board, the record date for determining
stockholders entitled to consent to corporate action in writing without a
meeting, when no prior action by the Board is required by Chapter 1 of the DGCL,
shall be the first date on which a signed written consent setting forth the
action taken or proposed to be taken is delivered to the corporation by delivery
to its registered office in the State of Delaware, its principal place of
business, or an officer or agent of the corporation having custody of the book
in which proceedings of meetings of stockholders are recorded. Delivery made to
the corporation's registered office shall be by hand or by certified or
registered mail, return receipt requested. If no record date has been fixed by
the Board and prior action by the Board is required by Chapter 1 of the DGCL,
the record date for determining stockholders entitled to consent to corporate
action in writing without a meeting shall be at the close of business on the day
on which the Board adopts the resolution taking such prior action.
2.7.3 DIVIDENDS, DISTRIBUTIONS AND OTHER RIGHTS
For the purpose of determining stockholders entitled to receive payment of
any dividend or other distribution or allotment of any rights or the
stockholders entitled to exercise any rights in respect of any change,
conversion or exchange of stock, or for the purpose of any other lawful action,
the Board may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted, and which record
date shall be not more than 60 (or the maximum number permitted by
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applicable law) days prior to such action. If no record date is fixed, the
record date for determining stockholders for any such purpose shall be at the
close of business on the day on which the Board adopts the resolution relating
thereto.
2.8 VOTING LIST
At least 10 days before each meeting of stockholders, a complete list of
the stockholders entitled to vote at such meeting, or any adjournment thereof,
shall be made, arranged in alphabetical order, with the address of and number of
shares held by each stockholder. This list shall be open to examination by any
stockholder, for any purpose germane to the meeting, during ordinary business
hours, for a period of 10 days prior to the meeting, either at a place within
the city where the meeting is to be held, which place shall be specified in the
notice of the meeting, or, if not so specified, at the place where the meeting
is to be held. This list shall also be produced and kept at such meeting for
inspection by any stockholder who is present.
2.9 QUORUM
A majority of the outstanding shares of the corporation entitled to vote,
present in person or represented by proxy at the meeting, shall constitute a
quorum at a meeting of the stockholders; provided, that where a separate vote by
a class or classes is required, a majority of the outstanding shares of such
class or classes, present in person or represented by proxy at the meeting,
shall constitute a quorum entitled to take action with respect to that vote on
that matter. If less than a majority of the outstanding shares entitled to vote
are represented at a meeting, a majority of the shares so represented may
adjourn the meeting from time to time without further notice. If a quorum is
present or represented at a reconvened meeting following such an adjournment,
any business may be transacted that might have been transacted at the meeting as
originally called. The stockholders present at a duly organized meeting may
continue to transact business until adjournment, notwithstanding the withdrawal
of enough stockholders to leave less than a quorum.
2.10 MANNER OF ACTING
In all matters other than the election of Directors, if a quorum is
present, the affirmative vote of the majority of the outstanding shares present
in person or represented by proxy at the meeting and entitled to vote on the
subject matter shall be the act of the stockholders, unless the vote of a
greater number is required by these Bylaws, the Certificate of Incorporation or
the DGCL. Where a separate vote by a class or classes is required, if a quorum
of such class or classes is present, the affirmative vote of the majority of
outstanding shares of such class or classes present in person or represented by
proxy at the meeting shall be the act of such class or classes, unless the vote
of a greater number is required by these Bylaws, the Certificate of
Incorporation or the DGCL. Directors shall be elected by a plurality of the
votes of the shares present in person or represented by proxy at the meeting and
entitled to vote on the election of Directors.
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2.11 PROXIES
2.11.1 APPOINTMENT
Each stockholder entitled to vote at a meeting of stockholders or to
express consent or dissent to corporate action in writing without a meeting may
authorize another person or persons to act for such stockholder by proxy. Such
authorization may be accomplished by (a) the stockholder or such stockholder's
authorized officer, director, employee or agent executing a writing or causing
his or her signature to be affixed to such writing by any reasonable means,
including facsimile signature or (b) by transmitting or authorizing the
transmission of a telegram, cablegram or other means of electronic transmission
to the intended holder of the proxy or to a proxy solicitation firm, proxy
support service or similar agent duly authorized by the intended proxy holder to
receive such transmission; provided, that any such telegram, cablegram or other
electronic transmission must either set forth or be accompanied by information
from which it can be determined that the telegram, cablegram or other electronic
transmission was authorized by the stockholder. Any copy, facsimile
telecommunication or other reliable reproduction of the writing or transmission
by which a stockholder has authorized another person to act as proxy for such
stockholder may be substituted or used in lieu of the original writing or
transmission for any and all purposes for which the original writing or
transmission could be used, provided that such copy, facsimile telecommunication
or other reproduction shall be a complete reproduction of the entire original
writing or transmission.
2.11.2 DELIVERY TO CORPORATION; DURATION
A proxy shall be filed with the Secretary before or at the time of the
meeting or the delivery to the corporation of the consent to corporate action in
writing. A proxy shall become invalid three years after the date of its
execution unless otherwise provided in the proxy. A proxy with respect to a
specified meeting shall entitle the holder thereof to vote at any reconvened
meeting following adjournment of such meeting but shall not be valid after the
final adjournment thereof.
2.12 VOTING OF SHARES
Each outstanding share entitled to vote with respect to the subject matter
of an issue submitted to a meeting of stockholders shall be entitled to one vote
upon each such issue.
2.13 VOTING FOR DIRECTORS
Each stockholder entitled to vote at an election of Directors may vote, in
person or by proxy, the number of shares owned by such stockholder for as many
persons as there are Directors to be elected and for whose election such
stockholder has a right to vote; provided, however, that no cumulative voting
shall be permitted in the election of Directors.
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2.14 ACTION BY STOCKHOLDERS WITHOUT A MEETING
Subject to the following paragraph, any action that is properly brought
before the stockholders by or at the direction of the Board of Directors and
that could be taken at an annual or special meeting of stockholders may be taken
without a meeting, without prior notice and without a vote, if a consent or
consents in writing, setting forth the action so taken, shall (a) be signed by
the holders of outstanding shares of capital stock entitled to be voted with
respect to the subject matter thereof having not less than the minimum number of
votes that would be necessary to authorize or take such action at a meeting at
which all shares entitled to vote thereon were present and voted (as determined
in accordance with subsection 2.6.2 hereof) and (b) be delivered to the
corporation by delivery to its registered office in the State of Delaware, its
principal place of business, or an officer or agent of the corporation having
custody of the records of proceedings of meetings of stockholders. Delivery made
to the corporation's registered office shall be by hand or by certified mail or
registered mail, return receipt requested. Every written consent shall bear the
date of signature of each stockholder who signs the consent, and no written
consent shall be effective to take the corporate action referred to therein
unless written consents signed by the requisite number of stockholders entitled
to vote with respect to the subject matter thereof are delivered to the
corporation, in the manner required by this Section 2, within 60 (or the maximum
number permitted by applicable law) days of the earliest dated consent delivered
to the corporation in the manner required by this Section 2. The validity of any
consent executed by a proxy for a stockholder pursuant to a telegram, cablegram
or other means of electronic transmission transmitted to such proxy holder by or
upon the authorization of the stockholder shall be determined by or at the
direction of the Secretary. A written record of the information upon which the
person making such determination relied shall be made and kept in the records of
the proceedings of the stockholders. Prompt notice of the taking of the
corporate action without a meeting by less than unanimous written consent shall
be given to those stockholders who have not consented in writing. Any such
consent shall be inserted in the minute book as if it were the minutes of a
meeting of the stockholders.
2.15 INSPECTORS OF ELECTION
2.15.1 APPOINTMENT
In advance of any meeting of stockholders after this corporation has
become a Public Company (as defined below), the Board shall appoint one or more
persons to act as inspectors of election at such meeting and to make a written
report thereof. The Board may designate one or more persons to serve as
alternate inspectors to serve in place of any inspector who is unable or fails
to act. If no inspector or alternate is able to act at a meeting of
stockholders, the chairman of such meeting shall appoint one or more persons to
act as inspector of elections at such meeting. This corporation shall be a
"Public Company" upon the earliest of (a) a vote by the Board of Directors of
the corporation designating the corporation a Public Company, (b) when a
registration statement filed by
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the corporation under the Securities Act of 1933, as amended, in connection with
an offering of the corporation's securities to the public first becomes
effective or (c) upon the effective date of the registration of the
corporation's securities pursuant to Section 12 of the Securities Exchange Act
of 1934, as amended.
2.15.2 DUTIES
The inspectors of election shall:
(a) ascertain the number of shares of the corporation
outstanding and the voting power of each such share;
(b) determine the shares represented at the meeting and the
validity of proxies and ballots;
(c) count all votes and ballots;
(d) determine and retain for a reasonable period of time a
record of the disposition of any challenges made to any determination by
them; and
(e) certify their determination of the number of shares
represented at the meeting and their count of the votes and ballots.
The validity of any proxy or ballot shall be determined by the inspectors
of election in accordance with the applicable provisions of these Bylaws and the
DGCL as then in effect. In determining the validity of any proxy transmitted by
telegram, cablegram or other electronic transmission, the inspectors shall
record in writing the information upon which they relied in making such
determination. Each inspector of elections shall, before entering upon the
discharge of his or her duties, take and sign an oath to faithfully execute the
duties of inspector with strict impartiality and according to the best of his or
her ability. The inspectors of election may appoint or retain other persons or
entities to assist them in the performance of their duties.
SECTION 3. BOARD OF DIRECTORS
3.1 GENERAL POWERS
The business and affairs of the corporation shall be managed by the Board.
3.2 NUMBER AND TENURE
The Board shall be composed of not less than one nor more than nine
Directors, the specific number to be set by resolution of the Board. No decrease
in the number of Directors shall have the effect of shortening the term of any
incumbent Director. Each Director shall serve for the term he or she was
elected, or until his or her successor shall have been elected and qualified, or
until his or her death, resignation or removal from
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office. Directors need not be stockholders of the corporation or residents of
the State of Delaware.
3.3 NOMINATION AND ELECTION.
3.3.1 NOMINATION
Only persons who are nominated in accordance with the following procedures
shall be eligible for election as Directors. Nominations for the election of
Directors may be made (a) by or at the direction of the Board or (b) by any
stockholder of record entitled to vote for the election of Directors at such
meeting; provided, however, that a stockholder may nominate persons for election
as Directors only if written notice (in accordance with subsection 2.5.3 hereof)
of such stockholder's intention to make such nominations is received by the
Secretary not later than (i) with respect to an election to be held at an annual
meeting of stockholders, not fewer than 60 nor more than 90 days prior to the
date specified in subsection 2.1 hereof for such annual meeting (or if less than
60 days' notice or prior public disclosure of the date of the annual meeting is
given or made to the stockholders, not later than the tenth day following the
day on which such notice of the date of the annual meeting was mailed or such
public disclosure was made) and (ii) with respect to an election to be held at a
special meeting of stockholders for the election of Directors, the close of
business on the seventh business day following the date on which notice of such
meeting is first given to stockholders. Any such stockholder's notice shall set
forth (a) the name and address of the stockholder who intends to make a
nomination; (b) a representation that the stockholder is entitled to vote at
such meeting and a statement of the number of shares of the corporation that are
beneficially owned by the stockholder; (c) a representation that the stockholder
intends to appear in person or by proxy at the meeting to nominate the person or
persons specified in the notice; (d) as to each person the stockholder proposes
to nominate for election or re-election as a Director, the name and address of
such person and, if the corporation is then a Public Company, such other
information regarding such nominee as would be required in a proxy statement
filed pursuant to the proxy rules of the Securities and Exchange Commission had
such nominee been nominated by the Board, and a description of any arrangements
or understandings, between the stockholder and such nominee and any other
persons (including their names), pursuant to which the nomination is to be made;
and (e) the consent of each such nominee to serve as a Director if elected. If
the facts warrant, the Board, or the chairman of a stockholders' meeting at
which Directors are to be elected, may determine and declare that a nomination
was not made in accordance with the foregoing procedure and, if it is so
determined, the defective nomination shall be disregarded. The procedures set
forth in this subsection 3.3 for nomination for the election of Directors by
stockholders are in addition to, and not in limitation of, any procedures now in
effect or hereafter adopted by or at the direction of the Board or any committee
thereof.
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3.3.2 ELECTION
At each election of Directors, the persons receiving the greatest number
of votes shall be the Directors.
3.4 ANNUAL AND REGULAR MEETINGS
An annual Board meeting shall be held without notice immediately after and
at the same place as the annual meeting of stockholders. By resolution, the
Board or any committee designated by the Board may specify the time and place
either within or without the State of Delaware for holding regular meetings
thereof without other notice than such resolution.
3.5 SPECIAL MEETINGS
Special meetings of the Board or any committee appointed by the Board may
be called by or at the request of the Chairman of the Board, the Chief Executive
Officer, the President, the Secretary or, in the case of special Board meetings,
any Director, and, in the case of any special meeting of any committee appointed
by the Board, by the Chairman thereof. The person or persons authorized to call
special meetings may fix any place either within or without the State of
Delaware as the place for holding any special meeting called by them.
3.6 MEETINGS BY TELEPHONE
Members of the Board or any committee designated by the Board may
participate in a meeting of such Board or committee by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other. Participation by such means
shall constitute presence in person at a meeting.
3.7 NOTICE OF SPECIAL MEETINGS
Notice of a special Board or committee meeting stating the place, day and
hour of the meeting shall be given to a Director in writing or orally by
telephone or in person. Neither the business to be transacted at, nor the
purpose of, any special meeting need be specified in the notice of such meeting.
3.7.1 PERSONAL DELIVERY
If notice is given by personal delivery, the notice shall be effective if
delivered to a Director at least two days before the meeting.
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3.7.2 DELIVERY BY MAIL
If notice is delivered by mail, the notice shall be deemed effective if
deposited in the official government mail properly addressed to a Director at
his or her address shown on the records of the corporation with postage prepaid
at least five days before the meeting.
3.7.3 DELIVERY BY PRIVATE CARRIER
If notice is given by private carrier, the notice shall be deemed
effective when dispatched to a Director at his or her address shown on the
records of the corporation at least three days before the meeting.
3.7.4 FACSIMILE NOTICE
If notice is delivered by wire or wireless equipment that transmits a
facsimile of the notice, the notice shall be deemed effective when dispatched at
least two days before the meeting to a Director at his or her telephone number
or other number appearing on the records of the corporation.
3.7.5 DELIVERY BY TELEGRAPH
If notice is delivered by telegraph, the notice shall be deemed effective
if the content thereof is delivered to the telegraph company at least two days
before the meeting for delivery to a Director at his or her address shown on the
records of the corporation.
3.7.6 ORAL NOTICE
If notice is delivered orally, by telephone or in person, the notice shall
be deemed effective if personally given to the Director at least two days before
the meeting.
3.8 WAIVER OF NOTICE
3.8.1 IN WRITING
Whenever any notice is required to be given to any Director under the
provisions of these Bylaws, the Certificate of Incorporation or the DGCL, a
waiver thereof in writing, signed by the person or persons entitled to such
notice, whether before or after the time stated therein, shall be deemed
equivalent to the giving of such notice. Neither the business to be transacted
at, nor the purpose of, any regular or special meeting of the Board or any
committee appointed by the Board need be specified in the waiver of notice of
such meeting.
3.8.2 BY ATTENDANCE
The attendance of a Director at a Board or committee meeting shall
constitute a waiver of notice of such meeting, except when a Director attends a
meeting for the express
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purpose of objecting, at the beginning of the meeting, to the transaction of any
business because the meeting is not lawfully called or convened.
3.9 QUORUM
A majority of the total number of Directors fixed by or in the manner
provided in these Bylaws or, if vacancies exist on the Board, a majority of the
total number of Directors then serving on the Board, provided, however, that
such number may be not less than one-third of the total number of Directors
fixed by or in the manner provided in these Bylaws, shall constitute a quorum
for the transaction of business at any Board meeting. If less than a majority
are present at a meeting, a majority of the Directors present may adjourn the
meeting from time to time without further notice.
3.10 MANNER OF ACTING
The act of the majority of the Directors present at a Board or committee
meeting at which there is a quorum shall be the act of the Board or committee,
unless the vote of a greater number is required by these Bylaws, the Certificate
of Incorporation or the DGCL.
3.11 PRESUMPTION OF ASSENT
A Director of the corporation present at a Board or committee meeting at
which action on any corporate matter is taken shall be presumed to have assented
to the action taken unless his or her dissent is entered in the minutes of the
meeting, or unless such Director files a written dissent to such action with the
person acting as the secretary of the meeting before the adjournment thereof, or
forwards such dissent by registered mail to the Secretary of the corporation
immediately after the adjournment of the meeting. A Director who voted in favor
of such action may not dissent.
3.12 ACTION BY BOARD OR COMMITTEES WITHOUT A MEETING
Any action that could be taken at a meeting of the Board or of any
committee appointed by the Board may be taken without a meeting if a written
consent setting forth the action so taken is signed by each of the Directors or
by each committee member. Any such written consent shall be inserted in the
minute book as if it were the minutes of a Board or a committee meeting.
3.13 RESIGNATION
Any Director may resign at any time by delivering written notice to the
Chairman of the Board, the Chief Executive Officer, the President, the Secretary
or the Board, or to the registered office of the corporation. Any such
resignation shall take effect at the time specified therein, or if the time is
not specified, upon delivery thereof and, unless otherwise specified therein,
the acceptance of such resignation shall not be necessary to make it effective.
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3.14 REMOVAL
At a meeting of stockholders called expressly for that purpose, or without
a meeting pursuant to Section 2.14 of these Bylaws, one or more members of the
Board (including the entire Board) may be removed, with or without cause, by the
holders of not less than a majority of the shares entitled to elect the Director
or Directors whose removal is sought in the manner provided by these Bylaws.
3.15 VACANCIES
Any vacancy occurring on the Board may be filled only by the affirmative
vote of a majority of the remaining Directors, whether or not they constitute a
quorum of the Board. A Director elected to fill a vacancy shall be elected for
the unexpired term of his or her predecessor in office, if any. Any directorship
to be filled by reason of an increase in the number of Directors may be filled
by the Board for a term of office continuing only until the next election of
Directors, and until his or her successor shall be elected and qualify.
3.16 COMMITTEES
3.16.1 CREATION AND AUTHORITY OF COMMITTEES
The Board may, by resolution passed by a majority of the number of
Directors fixed by or in the manner provided in these Bylaws, appoint standing
or temporary committees, each committee to consist of one or more Directors of
the corporation. The Board may designate one or more Directors as alternate
members of any committee, who may replace any absent or disqualified member at
any meeting of the committee. In the absence or disqualification of a member of
a committee, the member or members thereof present at any meeting and not
disqualified from voting, whether or not such member or members constitute a
quorum, may unanimously appoint another member of the Board to act at the
meeting in the place of any such absent or disqualified member. Any such
committee, to the extent provided in the resolution of the Board establishing
such committee or as otherwise provided in these Bylaws, shall have and may
exercise all the powers and authority of the Board in the management of the
business and affairs of the corporation, and may authorize the seal of the
corporation to be affixed to all papers that require it; but no such committee
shall have the power or authority in reference to (a) amending the Certificate
of Incorporation (except that a committee may, to the extent authorized in the
resolution or resolutions providing for the issuance of shares of stock adopted
by the Board as provided in Section 151(a) of the DGCL, fix the designations,
preferences or rights of such shares to the extent permitted under Section 141
of the DGCL), (b) adopting an agreement of merger or consolidation under
Sections 251 or 252 of the DGCL, (c) recommending to the stockholders the sale,
lease or exchange or other disposition of all or substantially all of the
property and assets of the corporation, (d) recommending to the stockholders a
dissolution of the corporation or a revocation of a dissolution, or (e) amending
these Bylaws; and, unless expressly provided by resolution of the Board, no such
committee shall have the power or authority to declare a dividend, to authorize
the
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issuance of stock or to adopt a certificate of ownership and merger pursuant to
Section 253 of the DGCL.
3.16.2 AUDIT COMMITTEE
In addition to any committees appointed pursuant to this subsection 3.16,
no later than such time as this corporation may become a Public Company there
shall be an Audit Committee, appointed annually by the Board, consisting of at
least two Directors who are not members of management. It shall be the
responsibility of the Audit Committee, if and when appointed, to review the
scope and results of the annual independent audit of books and records of the
corporation, to review compliance with all corporate policies which have been
approved by the Board and to discharge such other responsibilities as may from
time to time be assigned to it by the Board. The Audit Committee shall meet at
such times and places as the members deem advisable, and shall make such
recommendations to the Board as they consider appropriate.
3.16.3 COMPENSATION COMMITTEE
The Board may, in its discretion, designate a Compensation Committee
consisting of one or more Directors as it may from time to time determine. The
duties of the Compensation Committee shall consist of the following: (a) to
establish and review periodically, but not less than annually, the compensation
of the officers of the corporation and to make recommendations concerning such
compensation to the Board; (b) to consider incentive compensation plans for the
employees of the corporation; (c) to carry out the duties assigned to the
Compensation Committee under any stock option plan or other plan approved by the
corporation; (d) to consult with the Chief Executive Officer or the President
concerning any compensation matters deemed appropriate by the Chief Executive
Officer or the President or the Compensation Committee; and (e) to perform such
other duties as shall be assigned to the Compensation Committee by the Board.
3.16.4 NOMINATING AND ORGANIZATION COMMITTEE
The Board may, in its discretion, designate a Nominating and Organization
Committee consisting of one or more Directors as it may from time to time
determine. The duties of the Nominating and Organization Committee shall consist
of the following: (a) to report and make recommendations to the Board on the
size and composition of the Board and nominees for Directors; (b) to evaluate
the performance of the officers of the corporation and together with management,
select and recommend to the Board appropriate individuals for election,
appointment and promotion as officers of the corporation and ensure the
continuity of capable management; (c) to report and make recommendations to the
Board on the organization of the corporation; and (d) to perform such other
duties as shall be assigned to the Nominating and Organization Committee by the
Board.
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3.16.5 MINUTES OF MEETINGS
All committees so appointed shall keep regular minutes of their meetings
and shall cause them to be recorded in books kept for that purpose.
3.16.6 QUORUM AND MANNER OF ACTING
A majority of the number of Directors composing any committee of the
Board, as established and fixed by resolution of the Board, shall constitute a
quorum for the transaction of business at any meeting of such committee but, if
less than a majority are present at a meeting, a majority of such Directors
present may adjourn the meeting from time to time without further notice. The
act of a majority of the members of a committee present at a meeting at which a
quorum is present shall be the act of such committee.
3.16.7 RESIGNATION
Any member of any committee may resign at any time by delivering written
notice to the Chairman of the Board, the Chief Executive Officer, the President,
the Secretary, the Board or the Chairman of such committee. Any such resignation
shall take effect at the time specified therein or, if the time is not
specified, upon delivery thereof and, unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective.
3.16.8 REMOVAL
The Board may remove from office any member of any committee elected or
appointed by it, but only by the affirmative vote of not less than a majority of
the number of Directors fixed by or in the manner provided in these Bylaws.
3.17 COMPENSATION
By Board resolution, Directors and committee members may be paid their
expenses, if any, of attendance at each Board or committee meeting, a fixed sum
for attendance at each Board or committee meeting, or a stated salary as
Director or a committee member, or a combination of the foregoing. No such
payment shall preclude any Director or committee member from serving the
corporation in any other capacity and receiving compensation therefor.
SECTION 4. OFFICERS
4.1 NUMBER
The officers of the corporation shall be a Chief Executive Officer, a
President, a Secretary and a Treasurer, each of whom shall be elected by the
Board. One or more Vice Presidents and such other officers and assistant
officers, including a Chairman of the Board, may be elected or appointed by the
Board, such officers and assistant officers to
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hold office for such period, have such authority and perform such duties as are
provided in these Bylaws or as may be provided by resolution of the Board. Any
officer may be assigned by the Board any additional title that the Board deems
appropriate. The Board may delegate to any officer or agent the power to appoint
any such subordinate officers or agents and to prescribe their respective terms
of office, authority and duties. Any two or more offices may be held by the same
person.
4.2 ELECTION AND TERM OF OFFICE
The officers of the corporation shall be elected annually by the Board at
the Board meeting held after the annual meeting of the stockholders. If the
election of officers is not held at such meeting, such election shall be held as
soon thereafter as a Board meeting conveniently may be held. Unless an officer
dies, resigns or is removed from office, he or she shall hold office until the
next annual meeting of the Board or until his or her successor is elected.
4.3 RESIGNATION
Any officer may resign at any time by delivering written notice to the
Chairman of the Board, the Chief Executive Officer, the President, a Vice
President, the Secretary or the Board. Any such resignation shall take effect at
the time specified therein or, if the time is not specified, upon delivery
thereof and, unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
4.4 REMOVAL
Any officer or agent elected or appointed by the Board may be removed by
the Board whenever in its judgment the best interests of the corporation would
be served thereby, but such removal shall be without prejudice to the contract
rights, if any, of the person so removed.
4.5 VACANCIES
A vacancy in any office because of death, resignation, removal,
disqualification, creation of a new office or any other cause may be filled by
the Board for the unexpired portion of the term, or for a new term established
by the Board.
4.6 CHAIRMAN OF THE BOARD
If elected, the Chairman of the Board shall perform such duties as shall
be assigned to him or her by the Board from time to time and shall preside over
meetings of the Board and stockholders unless another officer is appointed or
designated by the Board as chairman of such meeting.
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4.7 CHIEF EXECUTIVE OFFICER
The Chief Executive Officer shall be the chief executive officer of the
corporation, shall preside over meetings of the Board and stockholders in the
absence of a Chairman of the Board and, subject to the Board's control, shall
supervise and control all of the assets, business and affairs of the
corporation. The Chief Executive Officer may sign certificates for shares of the
corporation, deeds, mortgages, bonds, contracts or other instruments, except
when the signing and execution thereof have been expressly delegated by the
Board or by these Bylaws to some other officer or agent of the corporation or
are required by law to be otherwise signed or executed by some other officer or
in some other manner. In general, the Chief Executive Officer shall perform all
duties incident to the office of Chief Executive Officer and such other duties
as are prescribed by the Board from time to time.
4.8 PRESIDENT
In the event of the death of the Chief Executive Officer or his inability
to act, the President shall perform the duties of the Chief Executive Officer,
except as may be limited by resolution of the Board, with all the powers of and
subject to all the restrictions upon the Chief Executive Officer. The President
may sign with the Secretary or any Assistant Secretary certificates for shares
of the corporation. The President shall have, to the extent authorized by the
Chief Executive Officer or the Board, the same powers as the Chief Executive
Officer to sign deeds, mortgages, bonds, contracts or other instruments. The
President shall perform such other duties as from time to time may be assigned
to him or her by the Chief Executive Officer or the Board.
4.9 VICE PRESIDENT
In the event of the death of the President or his or her inability to act,
the Vice President (or if there is more than one Vice President, the Vice
President who was designated by the Board as the successor to the President, or
if no Vice President is so designated, the Vice President first elected to such
office) shall perform the duties of the President, except as may be limited by
resolution of the Board, with all the powers of and subject to all the
restrictions upon the President. Any Vice President may sign with the Secretary
or any Assistant Secretary certificates for shares of the corporation. Vice
Presidents shall have, to the extent authorized by the President or the Board,
the same powers as the President to sign deeds, mortgages, bonds, contracts or
other instruments. Vice Presidents shall perform such other duties as from time
to time may be assigned to them by the President or the Board.
4.10 SECRETARY
The Secretary shall be responsible for preparation of minutes of meetings
of the Board and stockholders, maintenance of the corporation's records and
stock registers, and authentication of the corporation's records and shall in
general perform all duties incident to the office of Secretary and such other
duties as from time to time may be assigned to him
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or her by the President or the Board. In the absence of the Secretary, an
Assistant Secretary may perform the duties of the Secretary.
4.11 TREASURER
The Treasurer shall have charge and custody of and be responsible for all
funds and securities of the corporation; receive and give receipts for moneys
due and payable to the corporation from any source whatsoever, and deposit all
such moneys in the name of the corporation in banks, trust companies or other
depositories selected in accordance with the provisions of these Bylaws; sign
certificates for shares of the corporation; and in general perform all of the
duties incident to the office of Treasurer and such other duties as from time to
time may be assigned to him or her by the President or by the Board. In the
absence of the Treasurer, an Assistant Treasurer may perform the duties of the
Treasurer.
4.12 SALARIES
The salaries of the officers shall be fixed from time to time by the Board
or by any person or persons to whom the Board has delegated such authority. No
officer shall be prevented from receiving such salary by reason of the fact that
he or she is also a Director of the corporation.
SECTION 5. CONTRACTS, LOANS, CHECKS AND DEPOSITS
5.1 CONTRACTS
The Board may authorize any officer or officers, or agent or agents, to
enter into any contract or execute and deliver any instrument in the name of and
on behalf of the corporation. Such authority may be general or confined to
specific instances.
5.2 LOANS TO THE CORPORATION
No loans for borrowed money shall be contracted on behalf of the
corporation and no evidences of indebtedness for borrowed money shall be issued
in its name unless authorized by a resolution of the Board. Such authority may
be general or confined to specific instances.
5.3 CHECKS, DRAFTS, ETC.
All checks, drafts or other orders for the payment of money, notes or
other evidences of indebtedness issued in the name of the corporation shall be
signed by such officer or officers, or agent or agents, of the corporation and
in such manner as is from time to time determined by resolution of the Board.
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5.4 DEPOSITS
All funds of the corporation not otherwise employed shall be deposited
from time to time to the credit of the corporation in such banks, trust
companies or other depositories as the Board may select.
SECTION 6. CERTIFICATES FOR SHARES AND THEIR TRANSFER
6.1 ISSUANCE OF SHARES
No shares of the corporation shall be issued unless authorized by the
Board, which authorization shall include the maximum number of shares to be
issued and the consideration to be received for each share.
6.2 CERTIFICATES FOR SHARES
Certificates representing shares of the corporation shall be signed by the
Chief Executive Officer or the President, or a Vice President, and by the
Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary,
any of whose signatures may be a facsimile. The Board may in its discretion
appoint responsible banks, trust companies or other professionals from time to
time to act as transfer agents and registrars of the stock of the corporation;
and, when such appointments shall have been made, no stock certificate shall be
valid until countersigned by one of such transfer agents and registered by one
of such registrars. In case any officer, transfer agent or registrar who has
signed or whose facsimile signature has been placed upon a certificate shall
have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the corporation with the same effect
as if such person was such officer, transfer agent or registrar at the date of
issue. All certificates shall include on their face written notice of any
restrictions that may be imposed on the transferability of such shares and shall
be consecutively numbered or otherwise identified.
6.3 STOCK RECORDS
The stock transfer books shall be kept at the registered office or
principal place of business of the corporation or at the office of the
corporation's transfer agent or registrar. The name and address of each person
to whom certificates for shares are issued, together with the class and number
of shares represented by each such certificate and the date of issue thereof,
shall be entered on the stock transfer books of the corporation. The person in
whose name shares stand on the books of the corporation shall be deemed by the
corporation to be the owner thereof for all purposes.
6.4 RESTRICTION ON TRANSFER
Except to the extent that the corporation has obtained an opinion of
counsel acceptable to the corporation that transfer restrictions are not
required under applicable
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securities laws, or has otherwise satisfied itself that such transfer
restrictions are not required, all certificates representing shares of the
corporation shall bear a legend on the face of the certificate, or on the
reverse of the certificate if a reference to the legend is contained on the
face, that reads substantially as follows:
"The securities evidenced by this certificate have not been registered
under the Securities Act of 1933 or any applicable state law, and no
interest therein may be sold, distributed, assigned, offered, pledged or
otherwise transferred unless (a) there is an effective registration
statement under such Act and applicable state securities laws covering any
such transaction involving said securities or (b) this corporation
receives an opinion of legal counsel for the holder of these securities
(concurred in by legal counsel for this corporation) stating that such
transaction is exempt from registration or this corporation otherwise
satisfies itself that such transaction is exempt from registration.
Neither the offering of the securities nor any offering materials have
been reviewed by any administrator under the Securities Act of 1933 or any
applicable state law."
[AMENDMENT ADOPTED BY THE BOARD ON APRIL 24, 1998] If any securities of
the corporation are issued pursuant to Regulation S ("Regulation S") of the
Securities Act of 1933, as amended (the "1933 Act"), the corporation will refuse
to register any subsequent transfer of such securities if such transfer is not
made in accordance with Regulation S, pursuant to registration under the 1933
Act or pursuant to an available exemption from registration under the 1933 Act.
6.5 TRANSFER OF SHARES
The transfer of shares of the corporation shall be made only on the stock
transfer books of the corporation pursuant to authorization or document of
transfer made by the holder of record thereof or by his or her legal
representative, who shall furnish proper evidence of authority to transfer, or
by his or her attorney-in-fact authorized by power of attorney duly executed and
filed with the Secretary of the corporation. All certificates surrendered to the
corporation for transfer shall be canceled and no new certificate shall be
issued until the former certificates for a like number of shares shall have been
surrendered and canceled.
6.6 LOST OR DESTROYED CERTIFICATES
In the case of a lost, destroyed or mutilated certificate, a new
certificate may be issued therefor upon such terms and indemnity to the
corporation as the Board may prescribe.
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6.7 SHARES OF ANOTHER CORPORATION
Shares owned by the corporation in another corporation, domestic or
foreign, may be voted by such officer, agent or proxy as the Board may determine
or, in the absence of such determination, by the Chief Executive Officer, the
President or any Vice President of the corporation.
SECTION 7. BOOKS AND RECORDS
The corporation shall keep correct and complete books and records of
account, stock transfer books, minutes of the proceedings of its stockholders
and Board and such other records as may be necessary or advisable.
SECTION 8. ACCOUNTING YEAR
The accounting year of the corporation shall be the calendar year,
provided that if a different accounting year is at any time selected for
purposes of federal income taxes, the accounting year shall be the year so
selected.
SECTION 9. SEAL
The seal of the corporation, if any, shall consist of the name of the
corporation, the state of its incorporation and the year of its incorporation.
SECTION 10. INDEMNIFICATION
10.1 RIGHT TO INDEMNIFICATION
Each person who was or is made a party or is threatened to be made a party
to or is otherwise involved (including, without limitation, as a witness) in any
actual or threatened action, suit or proceeding, whether civil, criminal,
administrative or investigative (hereinafter a "proceeding"), by reason of the
fact that he or she is or was a Director or officer of the corporation or that,
being or having been such a Director or officer of the corporation, he or she is
or was serving at the request of the corporation as a Director, officer,
employee or agent of another corporation or of a partnership, joint venture,
trust or other enterprise, including service with respect to an employee benefit
plan (hereinafter an "indemnitee"), whether the basis of such proceeding is
alleged action in an official capacity as such a Director or officer or in any
other capacity while serving as such a Director or officer, shall be indemnified
and held harmless by the corporation to the full extent permitted by the General
Corporation Law of the State of Delaware, as the same exists or may hereafter be
amended (but, in the case of any such amendment, only to the extent that such
amendment permits the corporation to provide broader indemnification rights than
permitted prior thereto), or by other applicable law as then in effect, against
all expense, liability and loss (including attorneys' fees, judgments, fines,
ERISA excise taxes or penalties and amounts paid in settlement) actually and
reasonably incurred or suffered by
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such indemnitee in connection therewith and such indemnification shall continue
as to an indemnitee who has ceased to be a Director or officer and shall inure
to the benefit of the indemnitee's heirs, executors and administrators;
provided, however, that except as provided in subsection 10.2 hereof with
respect to proceedings seeking to enforce rights to indemnification, the
corporation shall indemnify any such indemnitee in connection with a proceeding
(or part thereof) initiated by such indemnitee only if such proceeding (or part
thereof) was authorized or ratified by the Board. The right to indemnification
conferred in this subsection 10.1 shall be a contract right and shall include
the right to be paid by the corporation the expenses incurred in defending any
such proceeding in advance of its final disposition (hereinafter an "advancement
of expenses"); provided, however, that if the DGCL requires, an advancement of
expenses incurred by an indemnitee in his or her capacity as a Director or
officer (and not in any other capacity in which service was or is rendered by
such indemnitee, including, without limitation, service to an employee benefit
plan) shall be made only upon delivery to the corporation of an undertaking
(hereinafter an "undertaking"), by or on behalf of such indemnitee, to repay all
amounts so advanced if it shall ultimately be determined by final judicial
decision from which there is no further right to appeal that such indemnitee is
not entitled to be indemnified for such expenses under this subsection 10.1 or
otherwise.
10.2 RIGHT OF INDEMNITEE TO BRING SUIT
If a claim under subsection 10.1 hereof is not paid in full by the
corporation within 60 days after a written claim has been received by the
corporation, except in the case of a claim for an advancement of expenses, in
which case the applicable period shall be 20 days, the indemnitee may at any
time thereafter bring suit against the corporation to recover the unpaid amount
of the claim. If successful in whole or in part in any such suit, or in a suit
brought by the corporation to recover an advancement of expenses pursuant to the
terms of an undertaking, the indemnitee shall be entitled to be paid also the
expense of prosecuting or defending such suit. The indemnitee shall be presumed
to be entitled to indemnification under this Section 10 upon submission of a
written claim (and, in an action brought to enforce a claim for an advancement
of expenses, where the required undertaking, if any is required, has been
tendered to the corporation), and thereafter the corporation shall have the
burden of proof to overcome the presumption that the indemnitee is not so
entitled. Neither the failure of the corporation (including its Board,
independent legal counsel or its stockholders) to have made a determination
prior to the commencement of such suit that indemnification of the indemnitee is
proper in the circumstances nor an actual determination by the corporation
(including its Board, independent legal counsel or its stockholders) that the
indemnitee is not entitled to indemnification shall be a defense to the suit or
create a presumption that the indemnitee is not so entitled.
10.3 NONEXCLUSIVITY OF RIGHTS
The rights to indemnification and to the advancement of expenses conferred
in this Section 10 shall not be exclusive of any other right that any person may
have or hereafter
-22-
<PAGE> 28
acquire under any statute, agreement, vote of stockholders or disinterested
Directors, provisions of the Certificate of Incorporation or Bylaws of the
corporation or otherwise. Notwithstanding any amendment to or repeal of this
Section 10, any indemnitee shall be entitled to indemnification in accordance
with the provisions hereof with respect to any acts or omissions of such
indemnitee occurring prior to such amendment or repeal.
10.4 INSURANCE, CONTRACTS AND FUNDING
The corporation may maintain insurance, at its expense, to protect itself
and any Director, officer, employee or agent of the corporation or another
corporation, partnership, joint venture, trust or other enterprise against any
expense, liability or loss, whether or not the corporation would have the power
to indemnify such person against such expense, liability or loss under the DGCL.
The corporation, without further stockholder approval, may enter into contracts
with any Director, officer, employee or agent in furtherance of the provisions
of this Section 10 and may create a trust fund, grant a security interest or use
other means (including, without limitation, a letter of credit) to ensure the
payment of such amounts as may be necessary to effect indemnification as
provided in this Section 10.
10.5 INDEMNIFICATION OF EMPLOYEES AND AGENTS OF THE CORPORATION
The corporation may, by action of the Board, grant rights to
indemnification and advancement of expenses to employees or agents or groups of
employees or agents of the corporation with the same scope and effect as the
provisions of this Section 10 with respect to the indemnification and
advancement of expenses of Directors and officers of the corporation; provided,
however, that an undertaking shall be made by an employee or agent only if
required by the Board.
10.6 PERSONS SERVING OTHER ENTITIES
Any person who is or was a Director or officer of the corporation who is
or was serving (a) as a Director or officer of another corporation of which a
majority of the shares entitled to vote in the election of its Directors is held
by the corporation or (b) in an executive or management capacity in a
partnership, joint venture, trust or other enterprise of which the corporation
or a wholly owned subsidiary of the corporation is a general partner or has a
majority ownership shall be deemed to be so serving at the request of the
corporation and entitled to indemnification and advancement of expenses under
subsection 10.1 hereof.
10.7 PROCEDURES FOR THE SUBMISSION OF CLAIMS
The Board may establish reasonable procedures for the submission of claims
for indemnification pursuant to this Section 10, determination of the
entitlement of any person thereto and review of any such determination. Such
procedures shall be set forth in an appendix to these Bylaws and shall be deemed
for all purposes to be a part hereof.
-23-
<PAGE> 29
SECTION 11. AMENDMENTS OR REPEAL
The Board of Directors shall have the power to adopt, amend or repeal the
Bylaws of this corporation; provided, however, the Board of Directors may not
repeal or amend any bylaw that the stockholders have expressly provided may not
be amended or repealed by the Board of Directors. The stockholders shall also
have the power to adopt, amend or repeal the Bylaws of this corporation.
Notwithstanding any amendment to Section 10 hereof or repeal of these
Bylaws, or of any amendment or repeal of any of the procedures that may be
established by the Board pursuant to Section 10 hereof, any indemnitee shall be
entitled to indemnification in accordance with the provisions hereof and thereof
with respect to any acts or omissions of such indemnitee occurring prior to such
amendment or repeal.
The foregoing Bylaws were adopted by the Board of Directors on May 28,
1996 and amended by the Board on April 24, 1998 and February 9, 2000.
-24-
<PAGE> 1
EXHIBIT 4.1
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY OR SUCH OTHER REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER
USE FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN
PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S
NOMINEE AND TRANSFERS OF PORTIONS OF THE GLOBAL NOTE SHALL BE LIMITED TO
TRANSFERS MADE IN ACCORDANCE WITH THE PROVISIONS OF SECTION 2.5 OF THE
INDENTURE.
<PAGE> 2
2
AMAZON.COM, INC.
6 7/8% CONVERTIBLE SUBORDINATED NOTES DUE 2010
CUSIP: 023135AG1
ISIN: US023135AG10
Common Code: 010795141
No. P-1 E400,000,000
Amazon.com, Inc., a corporation duly organized and validly existing
under the laws of the State of Delaware (herein called the "Company", which term
includes any successor corporation under the Indenture referred to on the
reverse hereof), for value received hereby promises to pay to CEDE & CO., or
registered assigns, the principal sum of four hundred million euros
(E400,000,000) on February 16, 2010, at the office or agency of the Company
maintained for that purpose in accordance with the terms of the Indenture, or,
at the option of the holder of this Note, at the Corporate Trust Office, in
euros or such coin or currency of the European Union as at the time of payment
shall be legal tender for the payment of public and private debts, and to pay
interest, annually on February 16 of each year, commencing February 16, 2001, on
said principal sum at said office or agency, in like coin or currency, at the
rate per annum of 6 7/8%, from February 16 next preceding the date of this Note
to which interest has been paid or duly provided for, unless the date hereof is
a date to which interest has been paid or duly provided for, in which case from
the date of this Note, or unless no interest has been paid or duly provided for
on the Notes, in which case from February 16, 2000, until payment of said
principal sum has been made or duly provided for. Notwithstanding the foregoing,
if the date hereof is after any February 1 and before the following February 16,
this Note shall bear interest from such February 16; provided, however, that if
the Company shall default in the payment of interest due on such February 16,
then this Note shall bear interest from the next preceding February 16, to which
interest has been paid or duly provided for or, if no interest has been paid or
duly provided for on such Note, from February 16, 2000. The interest payable on
the Note pursuant to the Indenture on any February 16 will be paid to the Person
entitled thereto as it appears in the Note register at the close of business on
the record date, which shall be the February 1 (whether or not a Business Day)
next preceding such February 16, as provided in the Indenture; provided that any
such interest not punctually paid or duly provided for shall be payable as
provided in the Indenture. Interest may, at the option of the Company, be paid
either (i) by check mailed to the registered address of such Person (provided
that the holder of Notes with an aggregate principal amount in excess of
E10,000,000 shall, at the written election of such holder, be paid by wire
transfer of immediately available funds) or (ii) by transfer to an account
maintained by such Person located in the United States; provided, however, that
payments to the Depositary will be made by wire transfer of immediately
available funds to the account of the Depositary or its nominee.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, including, without limitation, provisions subordinating the
payment of principal of and premium,
<PAGE> 3
3
if any, and interest on the Notes to the prior payment in full of all Senior
Indebtedness, as defined in the Indenture, and provisions giving the holder of
this Note the right to convert this Note into Common Stock of the Company on the
terms and subject to the limitations referred to on the reverse hereof and as
more fully specified in the Indenture. Such further provisions shall for all
purposes have the same effect as though fully set forth at this place.
This Note shall be deemed to be a contract made under the laws of the
State of New York, and for all purposes shall be construed in accordance with
and governed by the laws of said State.
This Note shall not be valid or become obligatory for any purpose until
the certificate of authentication hereon shall have been manually signed by the
Trustee or a duly authorized authenticating agent under the Indenture.
<PAGE> 4
4
IN WITNESS WHEREOF, the Company has caused this Note to be duly
executed by its authorized officer(s).
AMAZON.COM, INC.
By:
-----------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
Attest:
-----------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
Dated:
<PAGE> 5
5
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes described in the within-named Indenture.
THE BANK OF NEW YORK, as Trustee
By:
-----------------------------------
Authorized Signatory
By:
-----------------------------------
As Authenticating Agent
(if different from Trustee)
<PAGE> 6
6
This Note is one of a duly authorized issue of Notes of the Company,
designated as its 6 7/8% Convertible Subordinated Notes due 2010 (herein called
the "Notes"), limited to the aggregate principal amount of E690,000,000 all
issued or to be issued under and pursuant to an indenture dated as of February
16, 2000 (herein called the "Indenture"), between the Company and The Bank of
New York, as trustee (herein called the "Trustee"), to which Indenture and all
indentures supplemental thereto reference is hereby made for a description of
the rights, limitations of rights, obligations, duties and immunities thereunder
of the Trustee, the Company and the holders of the Notes.
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of, premium, if any, and accrued
interest on all Notes may be declared, and upon said declaration shall become,
due and payable, in the manner, with the effect and subject to the conditions
provided in the Indenture.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the holders of not less than a majority in
aggregate principal amount of the Notes at the time outstanding, evidenced as in
the Indenture provided, to execute supplemental indentures adding any provisions
to or changing in any manner or eliminating any of the provisions of the
Indenture or of any supplemental indenture or modifying in any manner the rights
of the holders of the Notes; provided, however, that no such supplemental
indenture shall (i) extend the fixed maturity of any Note, or reduce the rate or
extend the time of payment of interest thereon, or reduce the principal amount
thereof or premium, if any, thereon, or reduce any amount payable on redemption
thereof, or impair the right of any Noteholder to institute suit for the payment
thereof, or make the principal thereof or interest or premium, if any, thereon
payable in any coin or currency other than that provided in the Note, or modify
the provisions of the Indenture with respect to the subordination of the Notes
in a manner adverse to the Noteholders in any material respect, or change the
obligation of the Company to make redemption of any Note upon the happening of a
Fundamental Change (as defined in the Indenture) in a manner adverse to the
holder of the Notes, or impair the right to convert the Notes into Common Stock
subject to the terms set forth in the Indenture, including Section 15.7 thereof,
without the consent of the holder of each Note so affected or (ii) reduce the
aforesaid percentage of Notes, the holders of which are required to consent to
any such supplemental indenture, without the consent of the holders of all Notes
then outstanding. Subject to the provisions of the Indenture, the holders of a
majority in aggregate principal amount of the Notes at the time outstanding may
on behalf of the holders of all of the Notes waive any past default or Event of
Default under the Indenture and its consequences except a default in the payment
of interest, Make-Whole Payment or the principal of any of the Notes, a default
in the payment of redemption price pursuant to Article III or a failure by the
Company to convert any Notes into Common Stock of the Company or a default in
respect of a covenant or provisions hereof which under Article XI cannot be
modified without the consent of the holders of each or all Notes then
outstanding or affected thereby. Any such consent or waiver by the holder of
this Note (unless revoked as provided in the Indenture) shall be conclusive and
binding upon such holder and upon all future holders and owners of this Note and
any Notes which may be issued in exchange or substitute hereof, irrespective of
whether or not any notation thereof is made upon this Note or such other Notes.
<PAGE> 7
7
The indebtedness evidenced by the Notes is, to the extent and in the
manner provided in the Indenture, expressly subordinate and subject in right of
payment to the prior payment in full of all Senior Indebtedness of the Company,
as defined in the Indenture, whether outstanding at the date of the Indenture or
thereafter incurred, and this Note is issued subject to the provisions of the
Indenture with respect to such subordination. The indebtedness evidenced by the
Notes will rank equally with the Company's 4 3/4% Convertible Subordinated Notes
due 2009. Each holder of this Note, by accepting the same, agrees to and shall
be bound by such provisions and authorizes the Trustee on its behalf to take
such action as may be necessary or appropriate to effectuate the subordination
so provided and appoints the Trustee his attorney-in-fact for such purpose.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and any premium and interest
on this Note at the place, at the respective times, at the rate and in the coin
or currency herein prescribed.
Interest on the Notes shall be computed on the basis of a 365-day year
and the actual number of days elapsed.
The Notes are issuable in fully registered form without coupons in
denominations of E1,000 and any integral multiple of E1,000. At the
office or agency of the Company referred to on the face hereof, and in the
manner and subject to the limitations provided in this Indenture, without
payment of any service charge but with payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any
registration or exchange of Notes, Notes may be exchanged for a like aggregate
principal amount of Notes of other authorized denominations.
The Company may withdraw the rights of Noteholders to convert the Notes
into shares of Common Stock at any time prior to February 20, 2003, if the
closing price of the Common Stock shall have exceeded 160% of the initial
conversion price (or E167.915) for at least 20 trading days in any
consecutive 30-trading day period. The Company shall give notice of its
withdrawal of conversion rights at least 30 days and no more than 60 days, prior
to the date of such withdrawal, and such notice shall be given no later than 5
Business Days after the last day on which such event occurred or was continuing
prior to the date of such withdrawal. If the Company withdraws the Noteholders'
conversion rights, the Company shall make Make-Whole Payment to the Noteholders
as set forth in the Indenture.
If the Company withdraws the Noteholders' conversion rights in the time
frame discussed above, it will pay to the Noteholders an additional amount in
cash with respect to each of their Notes equal to E206.25 per E1,000
Note, less the amount of any interest actually paid on such Note prior to the
date on which the Company gives the Noteholders notice as described above. The
Company will make this Make-Whole Payment to the Noteholders on the date on
which the withdrawal of their conversion right is effective.
<PAGE> 8
8
At any time on or after February 20, 2003, and prior to maturity, the
Notes may be redeemed at the option of the Company, in whole or in part, upon
mailing a notice of such redemption not more than 60 days nor less than 30 days
before the date fixed for redemption to the holders of Notes at their last
registered addresses, all as provided in the Indenture, at the principal amount,
together in each case with accrued and unpaid interest to, but excluding, the
date fixed for redemption.
The Company shall not give notice of any redemption if a default in the
payment of interest on the Notes has occurred and is continuing.
The Notes are not subject to redemption through the operation of any
sinking fund.
If a Fundamental Change occurs at any time prior to maturity of the
Notes, the Notes will be redeemable on the 30th day after notice thereof at the
option of the holder at a redemption price equal to 100% of the principal amount
thereof, together with accrued interest to (but excluding) the date of
redemption; provided that, if such Repurchase Date is February 16, the interest
payable on such date shall be paid to the holder of record of the Notes on the
preceding February 1. The Notes will be redeemable in multiples of E1,000
principal amount. The Company shall mail to all holders of record of the Notes a
notice of the occurrence of a Fundamental Change and of the redemption right
arising as a result thereof on or before the 10th day after the occurrence of
such Fundamental Change. For a Note to be so repaid at the option of the holder,
the Company must receive at the office or agency of the Company maintained for
that purpose in accordance with the terms of the Indenture, such Note with the
form entitled "Option to Elect Repayment Upon a Fundamental Change" on the
reverse thereof duly completed, together with such Notes duly endorsed for
transfer, on or before the 30th day after the date of such notice (or if such
30th day is not a Business Day, the immediately preceding Business Day).
Subject to the provisions of the Indenture, the holder hereof has the
right, at its option, at any time after the original issuance of any Notes
through the close of business on the final maturity date of the Notes, or, as to
all or any portion hereof called for redemption, prior to the close of business
on the Business Day immediately preceding the date fixed for redemption (unless
the Company shall default in payment due upon redemption thereof), to convert
the principal hereof or any portion of such principal which is E1,000 or an
integral multiple thereof into that number of shares of the Company's Common
Stock, as said shares shall be constituted at the date of conversion, obtained
by dividing the principal amount of this Note or portion thereof to be converted
by the Conversion Price of E104.947 or such Conversion Price as shall be
reset on February 16, 2001 and February 16, 2002 and as adjusted from time to
time, as provided in the Indenture, upon surrender of this Note, together with a
conversion notice as provided in the Indenture, to the Company at the office or
agency of the Company maintained for that purpose in accordance with the terms
of the Indenture, or at the option of such holder, the Corporate Trust Office,
and, unless the shares issuable on conversion are to be issued in the same
<PAGE> 9
9
name as this Note, duly endorsed by, or accompanied by instruments of transfer
in form satisfactory to the Company duly executed by, the holder or by his duly
authorized attorney. No adjustment in respect of interest or dividends will be
made upon any conversion; provided, however, that if this Note shall be
surrendered for conversion during the period from the close of business on any
record date for the payment of interest to the close of business on the Business
Day preceding the interest payment date, this Note (unless it or the portion
being converted shall have been called for redemption during the period from the
close of business on any record date for the payment of interest to the close of
business on the Business Day preceding the interest payment date) must be
accompanied by an amount, in New York Clearing House funds or other funds
acceptable to the Company, equal to the interest payable on such interest
payment date on the principal amount being converted. No fractional shares will
be issued upon any conversion, but an adjustment in cash will be made, as
provided in the Indenture, in respect of any fraction of a share which would
otherwise be issuable upon the surrender of any Note or Notes for conversion. A
Note in respect of which a holder is exercising its right to require redemption
upon a Fundamental Change may be converted only if such holder withdraws its
election to exercise such right in accordance with the terms of the Indenture.
Upon due presentment for registration of transfer of this Note at the
office or agency of the Company maintained for that purpose in accordance with
the terms of the Indenture, or at the option of the holder of this Note, at the
Corporate Trust Office, a new Note or Notes of authorized denominations for an
equal aggregate principal amount will be issued to the transferee in exchange
thereof; subject to the limitations provided in the Indenture, without charge
except for any tax or other governmental charge imposed in connection therewith.
The Company, the Trustee, any authenticating agent, any paying agent,
any conversion agent and any Note registrar may deem and treat the registered
holder hereof as the absolute owner of this Note (whether or not this note shall
be overdue and notwithstanding any notation of ownership or other writing hereon
made by anyone other than the Company or any Note registrar), for the purpose of
receiving payment hereof, or on account hereof, for the conversion hereof and
for all other purposes, and neither the Company nor the Trustee nor any other
authenticating agent nor any paying agent nor other conversion agent nor any
Note registrar shall be affected by any notice to the contrary. All payments
made to or upon the order of such registered holder shall, to the extent of the
sum or sums paid, satisfy and discharge liability for monies payable on this
Note.
No recourse for the payment of the principal of or any premium or
interest on this Note, or for any claim based hereon or otherwise in respect
hereof; and no recourse under or upon any obligation, covenant or agreement of
the Company in the Indenture or any indenture supplemental thereto or in any
Note, or because of the creation of any indebtedness represented thereby, shall
be had against any incorporator, stockholder, employee, agent, officer or
director or subsidiary, as such, past, present or future, of the Company or of
any successor Person, either directly or through the Company or any successor
Person, whether by virtue of any constitution, statute or rule of law or by the
enforcement of any assessment or penalty or otherwise, all such
<PAGE> 10
10
liability being, by acceptance hereof and as part of the consideration for the
issue hereof, expressly waived and released.
This Note shall be deemed to be a contract made under the laws of New
York, and for all purposes shall be construed in accordance with the laws of New
York, without regard to principles of conflicts of laws.
Terms used in this Note and defined in the Indenture are used herein as
therein defined.
<PAGE> 11
11
ABBREVIATIONS
The following abbreviations, when used in the inscription of the face
of this Note, shall be construed as though they were written out in full
according to applicable laws or regulations.
TEN COM - as tenants in common UNIF GIFT MIN ACT - _____ Custodian _______
TEN ENT - as tenant by the entireties ______________________________________
(Cust) (Minor)
JT TEN - as joint tenants with right under Uniform Gifts to Minors Act
of survivorship and not as
tenants in common _________________________________________________
(State)
Additional abbreviations may also be used
though not in the above list.
<PAGE> 12
12
CONVERSION NOTICE
TO: AMAZON.COM, INC.
The undersigned registered owner of this Note hereby irrevocable
exercises the option to convert this Note, or the portion thereof (which is
E1,000 or an integral multiple thereof) below designated, into shares of Common
Stock of Amazon.com, Inc. in accordance with the terms of the Indenture referred
to in this Note, and directs that the shares issuable and deliverable upon such
conversion, together with any check in payment for fractional shares and any
Notes representing any unconverted principal amount hereof, be issued and
delivered to the registered holder hereof unless a different name has been
indicated below. If shares or any portion of this Note not converted are to be
issued in the name of a person other than the undersigned, the undersigned will
provide the appropriate information below and pay all transfer taxes payable
with respect thereto. Any amount required to be paid to the undersigned on
account of interest accompanies this Note.
Dated:____________________________
____________________________________________
____________________________________________
Signature(s)
Signature(s) must be guaranteed by an
"eligible guarantor institution" meeting the
requirements of the Note registrar, which
requirements include membership or
participation in the Security Transfer Agent
Medallion Program ("STAMP") or such other
"signature guarantee program" as may be
determined by the Note registrar in addition
to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act
of 1934, as amended.
____________________________________________
Signature Guarantee
<PAGE> 13
13
Fill in the registration of shares of Common Stock if to be issued, and Notes if
to be delivered, other than to and in the name of the registered holder:
____________________________________
(Name)
____________________________________
(Street Address)
____________________________________
(City, State and Zip Code)
Please print name and address
Principal amount to be converted
(if less than all):_________________
Social Security or Other Taxpayer
Identification Number: _____________
<PAGE> 14
14
OPTION TO ELECT REPAYMENT
UPON A FUNDAMENTAL CHANGE
TO: AMAZON.COM, INC.
The undersigned registered owner of this Note hereby irrevocably
acknowledges receipt of a notice from Amazon.com, Inc. (the "Company") as to the
occurrence of a Fundamental Change with respect to the Company and requests and
instructs the Company to repay the entire principal amount of this Note, or the
portion thereof (which is E1,000 or an integral multiple thereof) below
designated, in accordance with the terms of the Indenture referred to in this
Note at the redemption price, together with accrued interest to, but excluding,
such date, to the registered holder hereof.
Date: ___________________________ ______________________________________
____________________________________________
Signature(s)
NOTICE: The above signatures of the
holder(s) hereof must correspond with the
name as written upon the face of the Note in
every particular without alteration or
enlargement or any change whatever.
Principal amount to be repaid (if less than
all):
E_______________
____________________________________________
Social Security or Other Taxpayer
Identification Number
<PAGE> 15
FORM OF ASSIGNMENT
For value received _________________________ hereby sell(s), assign(s)
and transfer(s) unto _________________________ (Please insert social security or
other Taxpayer Identification Number of assignee) the within Note, and hereby
irrevocably constitutes and appoints _________________________ attorney to
transfer the said Note on the books of the Company, with full power of
substitution in the premises.
Dated: _________________________ ____________________________________________
____________________________________________
Signature(s)
Signature(s) must be guaranteed by an
"eligible guarantor institution" meeting the
requirements of the Note registrar, which
requirements include membership or
participation in the Security Transfer Agent
Medallion Program ("STAMP") or such other
"signature guarantee program" as may be
determined by the Note registrar in addition
to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act
of 1934, as amended.
____________________________________________
Signature Guarantee
NOTICE: The signature of the conversion notice, the option to elect repayment
upon a Fundamental Change or the assignment must correspond with the name as
written upon the face of the Note in every particular without alteration or
enlargement or any change whatever.
<PAGE> 1
EXHIBIT 4.2
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY OR SUCH OTHER REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER
USE FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN
PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S
NOMINEE AND TRANSFERS OF PORTIONS OF THE GLOBAL NOTE SHALL BE LIMITED TO
TRANSFERS MADE IN ACCORDANCE WITH THE PROVISIONS OF SECTION 2.5 OF THE
INDENTURE.
<PAGE> 2
2
AMAZON.COM, INC.
6 7/8% CONVERTIBLE SUBORDINATED NOTES DUE 2010
CUSIP: 023135AG1
ISIN: US023135AG10
Common Code: 010795141
No. P-2 E290,000,000
Amazon.com, Inc., a corporation duly organized and validly existing
under the laws of the State of Delaware (herein called the "Company", which term
includes any successor corporation under the Indenture referred to on the
reverse hereof), for value received hereby promises to pay to CEDE & CO., or
registered assigns, the principal sum of four hundred million euros
(E290,000,000) on February 16, 2010, at the office or agency of the Company
maintained for that purpose in accordance with the terms of the Indenture, or,
at the option of the holder of this Note, at the Corporate Trust Office, in
euros or such coin or currency of the European Union as at the time of payment
shall be legal tender for the payment of public and private debts, and to pay
interest, annually on February 16 of each year, commencing February 16, 2001, on
said principal sum at said office or agency, in like coin or currency, at the
rate per annum of 6 7/8%, from February 16 next preceding the date of this Note
to which interest has been paid or duly provided for, unless the date hereof is
a date to which interest has been paid or duly provided for, in which case from
the date of this Note, or unless no interest has been paid or duly provided for
on the Notes, in which case from February 16, 2000, until payment of said
principal sum has been made or duly provided for. Notwithstanding the foregoing,
if the date hereof is after any February 1 and before the following February 16,
this Note shall bear interest from such February 16; provided, however, that if
the Company shall default in the payment of interest due on such February 16,
then this Note shall bear interest from the next preceding February 16, to which
interest has been paid or duly provided for or, if no interest has been paid or
duly provided for on such Note, from February 16, 2000. The interest payable on
the Note pursuant to the Indenture on any February 16 will be paid to the Person
entitled thereto as it appears in the Note register at the close of business on
the record date, which shall be the February 1 (whether or not a Business Day)
next preceding such February 16, as provided in the Indenture; provided that any
such interest not punctually paid or duly provided for shall be payable as
provided in the Indenture. Interest may, at the option of the Company, be paid
either (i) by check mailed to the registered address of such Person (provided
that the holder of Notes with an aggregate principal amount in excess of
E10,000,000 shall, at the written election of such holder, be paid by wire
transfer of immediately available funds) or (ii) by transfer to an account
maintained by such Person located in the United States; provided, however, that
payments to the Depositary will be made by wire transfer of immediately
available funds to the account of the Depositary or its nominee.
<PAGE> 3
3
Reference is made to the further provisions of this Note set forth on
the reverse hereof, including, without limitation, provisions subordinating the
payment of principal of and premium, if any, and interest on the Notes to the
prior payment in full of all Senior Indebtedness, as defined in the Indenture,
and provisions giving the holder of this Note the right to convert this Note
into Common Stock of the Company on the terms and subject to the limitations
referred to on the reverse hereof and as more fully specified in the Indenture.
Such further provisions shall for all purposes have the same effect as though
fully set forth at this place.
This Note shall be deemed to be a contract made under the laws of the
State of New York, and for all purposes shall be construed in accordance with
and governed by the laws of said State.
This Note shall not be valid or become obligatory for any purpose until
the certificate of authentication hereon shall have been manually signed by the
Trustee or a duly authorized authenticating agent under the Indenture.
<PAGE> 4
4
IN WITNESS WHEREOF, the Company has caused this Note to be duly
executed by its authorized officer(s).
AMAZON.COM, INC.
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
Attest:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
Dated:
<PAGE> 5
5
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes described in the within-named Indenture.
THE BANK OF NEW YORK, as Trustee
By: ____________________________________________
Authorized Signatory
By: ____________________________________________
As Authenticating Agent
(if different from Trustee)
<PAGE> 6
6
This Note is one of a duly authorized issue of Notes of the Company,
designated as its 6 7/8% Convertible Subordinated Notes due 2010 (herein called
the "Notes"), limited to the aggregate principal amount of E690,000,000 all
issued or to be issued under and pursuant to an indenture dated as of February
16, 2000 (herein called the "Indenture"), between the Company and The Bank of
New York, as trustee (herein called the "Trustee"), to which Indenture and all
indentures supplemental thereto reference is hereby made for a description of
the rights, limitations of rights, obligations, duties and immunities thereunder
of the Trustee, the Company and the holders of the Notes.
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of, premium, if any, and accrued
interest on all Notes may be declared, and upon said declaration shall become,
due and payable, in the manner, with the effect and subject to the conditions
provided in the Indenture.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the holders of not less than a majority in
aggregate principal amount of the Notes at the time outstanding, evidenced as in
the Indenture provided, to execute supplemental indentures adding any provisions
to or changing in any manner or eliminating any of the provisions of the
Indenture or of any supplemental indenture or modifying in any manner the rights
of the holders of the Notes; provided, however, that no such supplemental
indenture shall (i) extend the fixed maturity of any Note, or reduce the rate or
extend the time of payment of interest thereon, or reduce the principal amount
thereof or premium, if any, thereon, or reduce any amount payable on redemption
thereof, or impair the right of any Noteholder to institute suit for the payment
thereof, or make the principal thereof or interest or premium, if any, thereon
payable in any coin or currency other than that provided in the Note, or modify
the provisions of the Indenture with respect to the subordination of the Notes
in a manner adverse to the Noteholders in any material respect, or change the
obligation of the Company to make redemption of any Note upon the happening of a
Fundamental Change (as defined in the Indenture) in a manner adverse to the
holder of the Notes, or impair the right to convert the Notes into Common Stock
subject to the terms set forth in the Indenture, including Section 15.7 thereof,
without the consent of the holder of each Note so affected or (ii) reduce the
aforesaid percentage of Notes, the holders of which are required to consent to
any such supplemental indenture, without the consent of the holders of all Notes
then outstanding. Subject to the provisions of the Indenture, the holders of a
majority in aggregate principal amount of the Notes at the time outstanding may
on behalf of the holders of all of the Notes waive any past default or Event of
Default under the Indenture and its consequences except a default in the payment
of interest, Make-Whole Payment or the principal of any of the Notes, a default
in the payment of redemption price pursuant to Article III or a failure by the
Company to convert any Notes into Common Stock of the Company or a default in
respect of a covenant or provisions hereof which under Article XI cannot be
modified without the consent of the holders of each or all Notes then
outstanding or affected thereby. Any such consent or waiver by the holder of
this Note (unless revoked as provided in the Indenture) shall be conclusive and
binding upon such holder and upon all future holders and owners of this Note
<PAGE> 7
7
and any Notes which may be issued in exchange or substitute hereof, irrespective
of whether or not any notation thereof is made upon this Note or such other
Notes.
The indebtedness evidenced by the Notes is, to the extent and in the
manner provided in the Indenture, expressly subordinate and subject in right of
payment to the prior payment in full of all Senior Indebtedness of the Company,
as defined in the Indenture, whether outstanding at the date of the Indenture or
thereafter incurred, and this Note is issued subject to the provisions of the
Indenture with respect to such subordination. The indebtedness evidenced by the
Notes will rank equally with the Company's 4 3/4% Convertible Subordinated Notes
due 2009. Each holder of this Note, by accepting the same, agrees to and shall
be bound by such provisions and authorizes the Trustee on its behalf to take
such action as may be necessary or appropriate to effectuate the subordination
so provided and appoints the Trustee his attorney-in-fact for such purpose.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and any premium and interest
on this Note at the place, at the respective times, at the rate and in the coin
or currency herein prescribed.
Interest on the Notes shall be computed on the basis of a 365-day year
and the actual number of days elapsed.
The Notes are issuable in fully registered form without coupons in
denominations of E1,000 and any integral multiple of E1,000. At the
office or agency of the Company referred to on the face hereof, and in the
manner and subject to the limitations provided in this Indenture, without
payment of any service charge but with payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any
registration or exchange of Notes, Notes may be exchanged for a like aggregate
principal amount of Notes of other authorized denominations.
The Company may withdraw the rights of Noteholders to convert the Notes
into shares of Common Stock at any time prior to February 20, 2003, if the
closing price of the Common Stock shall have exceeded 160% of the initial
conversion price (or E167.915) for at least 20 trading days in any
consecutive 30-trading day period. The Company shall give notice of its
withdrawal of conversion rights at least 30 days and no more than 60 days, prior
to the date of such withdrawal, and such notice shall be given no later than 5
Business Days after the last day on which such event occurred or was continuing
prior to the date of such withdrawal. If the Company withdraws the Noteholders'
conversion rights, the Company shall make Make-Whole Payment to the Noteholders
as set forth in the Indenture.
If the Company withdraws the Noteholders' conversion rights in the time
frame discussed above, it will pay to the Noteholders an additional amount in
cash with respect to each of their Notes equal to E206.25 per E1,000
Note, less the amount of any interest actually paid on such Note prior to the
date on which the Company gives the Noteholders notice as described above.
<PAGE> 8
8
The Company will make this Make-Whole Payment to the Noteholders on the date on
which the withdrawal of their conversion right is effective.
At any time on or after February 20, 2003, and prior to maturity, the
Notes may be redeemed at the option of the Company, in whole or in part, upon
mailing a notice of such redemption not more than 60 days nor less than 30 days
before the date fixed for redemption to the holders of Notes at their last
registered addresses, all as provided in the Indenture, at the principal amount,
together in each case with accrued and unpaid interest to, but excluding, the
date fixed for redemption.
The Company shall not give notice of any redemption if a default in the
payment of interest on the Notes has occurred and is continuing.
The Notes are not subject to redemption through the operation of any
sinking fund.
If a Fundamental Change occurs at any time prior to maturity of the
Notes, the Notes will be redeemable on the 30th day after notice thereof at the
option of the holder at a redemption price equal to 100% of the principal amount
thereof, together with accrued interest to (but excluding) the date of
redemption; provided that, if such Repurchase Date is February 16, the interest
payable on such date shall be paid to the holder of record of the Notes on the
preceding February 1. The Notes will be redeemable in multiples of E1,000
principal amount. The Company shall mail to all holders of record of the Notes a
notice of the occurrence of a Fundamental Change and of the redemption right
arising as a result thereof on or before the 10th day after the occurrence of
such Fundamental Change. For a Note to be so repaid at the option of the holder,
the Company must receive at the office or agency of the Company maintained for
that purpose in accordance with the terms of the Indenture, such Note with the
form entitled "Option to Elect Repayment Upon a Fundamental Change" on the
reverse thereof duly completed, together with such Notes duly endorsed for
transfer, on or before the 30th day after the date of such notice (or if such
30th day is not a Business Day, the immediately preceding Business Day).
Subject to the provisions of the Indenture, the holder hereof has the
right, at its option, at any time after the original issuance of any Notes
through the close of business on the final maturity date of the Notes, or, as to
all or any portion hereof called for redemption, prior to the close of business
on the Business Day immediately preceding the date fixed for redemption (unless
the Company shall default in payment due upon redemption thereof), to convert
the principal hereof or any portion of such principal which is E1,000 or an
integral multiple thereof into that number of shares of the Company's Common
Stock, as said shares shall be constituted at the date of conversion, obtained
by dividing the principal amount of this Note or portion thereof to be converted
by the Conversion Price of E104.947 or such Conversion Price as shall be
reset on February 16, 2001 and February 16, 2002 and as adjusted from time to
time, as provided in the Indenture, upon surrender of this Note, together with a
conversion notice as provided in the Indenture, to the Company at the office or
agency of the Company maintained for that
<PAGE> 9
9
purpose in accordance with the terms of the Indenture, or at the option of such
holder, the Corporate Trust Office, and, unless the shares issuable on
conversion are to be issued in the same name as this Note, duly endorsed by, or
accompanied by instruments of transfer in form satisfactory to the Company duly
executed by, the holder or by his duly authorized attorney. No adjustment in
respect of interest or dividends will be made upon any conversion; provided,
however, that if this Note shall be surrendered for conversion during the period
from the close of business on any record date for the payment of interest to the
close of business on the Business Day preceding the interest payment date, this
Note (unless it or the portion being converted shall have been called for
redemption during the period from the close of business on any record date for
the payment of interest to the close of business on the Business Day preceding
the interest payment date) must be accompanied by an amount, in New York
Clearing House funds or other funds acceptable to the Company, equal to the
interest payable on such interest payment date on the principal amount being
converted. No fractional shares will be issued upon any conversion, but an
adjustment in cash will be made, as provided in the Indenture, in respect of any
fraction of a share which would otherwise be issuable upon the surrender of any
Note or Notes for conversion. A Note in respect of which a holder is exercising
its right to require redemption upon a Fundamental Change may be converted only
if such holder withdraws its election to exercise such right in accordance with
the terms of the Indenture.
Upon due presentment for registration of transfer of this Note at the
office or agency of the Company maintained for that purpose in accordance with
the terms of the Indenture, or at the option of the holder of this Note, at the
Corporate Trust Office, a new Note or Notes of authorized denominations for an
equal aggregate principal amount will be issued to the transferee in exchange
thereof; subject to the limitations provided in the Indenture, without charge
except for any tax or other governmental charge imposed in connection therewith.
The Company, the Trustee, any authenticating agent, any paying agent,
any conversion agent and any Note registrar may deem and treat the registered
holder hereof as the absolute owner of this Note (whether or not this note shall
be overdue and notwithstanding any notation of ownership or other writing hereon
made by anyone other than the Company or any Note registrar), for the purpose of
receiving payment hereof, or on account hereof, for the conversion hereof and
for all other purposes, and neither the Company nor the Trustee nor any other
authenticating agent nor any paying agent nor other conversion agent nor any
Note registrar shall be affected by any notice to the contrary. All payments
made to or upon the order of such registered holder shall, to the extent of the
sum or sums paid, satisfy and discharge liability for monies payable on this
Note.
No recourse for the payment of the principal of or any premium or
interest on this Note, or for any claim based hereon or otherwise in respect
hereof; and no recourse under or upon any obligation, covenant or agreement of
the Company in the Indenture or any indenture supplemental thereto or in any
Note, or because of the creation of any indebtedness represented thereby, shall
be had against any incorporator, stockholder, employee, agent, officer or
director or subsidiary, as such, past, present or future, of the Company or of
any successor Person, either directly or through the Company or any successor
Person, whether by virtue of any constitution,
<PAGE> 10
10
statute or rule of law or by the enforcement of any assessment or penalty or
otherwise, all such liability being, by acceptance hereof and as part of the
consideration for the issue hereof, expressly waived and released.
This Note shall be deemed to be a contract made under the laws of New
York, and for all purposes shall be construed in accordance with the laws of New
York, without regard to principles of conflicts of laws.
Terms used in this Note and defined in the Indenture are used herein as
therein defined.
<PAGE> 11
11
ABBREVIATIONS
The following abbreviations, when used in the inscription of the face
of this Note, shall be construed as though they were written out in full
according to applicable laws or regulations.
TEN COM - as tenants in common UNIF GIFT MIN ACT - _____ Custodian _______
TEN ENT - as tenant by the entireties ______________________________________
(Cust) (Minor)
JT TEN - as joint tenants with right under Uniform Gifts to Minors Act
of survivorship and not as
tenants in common ________________________________________________
(State)
Additional abbreviations may also be used
though not in the above list.
<PAGE> 12
12
CONVERSION NOTICE
TO: AMAZON.COM, INC.
The undersigned registered owner of this Note hereby irrevocable
exercises the option to convert this Note, or the portion thereof (which is
E1,000 or an integral multiple thereof) below designated, into shares of Common
Stock of Amazon.com, Inc. in accordance with the terms of the Indenture referred
to in this Note, and directs that the shares issuable and deliverable upon such
conversion, together with any check in payment for fractional shares and any
Notes representing any unconverted principal amount hereof, be issued and
delivered to the registered holder hereof unless a different name has been
indicated below. If shares or any portion of this Note not converted are to be
issued in the name of a person other than the undersigned, the undersigned will
provide the appropriate information below and pay all transfer taxes payable
with respect thereto. Any amount required to be paid to the undersigned on
account of interest accompanies this Note.
Dated:____________________________
____________________________________________
____________________________________________
Signature(s)
Signature(s) must be guaranteed by an
"eligible guarantor institution" meeting the
requirements of the Note registrar, which
requirements include membership or
participation in the Security Transfer Agent
Medallion Program ("STAMP") or such other
"signature guarantee program" as may be
determined by the Note registrar in addition
to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act
of 1934, as amended.
____________________________________________
Signature Guarantee
<PAGE> 13
13
Fill in the registration of shares of Common Stock if to be issued, and Notes if
to be delivered, other than to and in the name of the registered holder:
____________________________________
(Name)
____________________________________
(Street Address)
____________________________________
(City, State and Zip Code)
Please print name and address
Principal amount to be converted
(if less than all):_________________
Social Security or Other Taxpayer
Identification Number: _____________
<PAGE> 14
14
OPTION TO ELECT REPAYMENT
UPON A FUNDAMENTAL CHANGE
TO: AMAZON.COM, INC.
The undersigned registered owner of this Note hereby irrevocably
acknowledges receipt of a notice from Amazon.com, Inc. (the "Company") as to the
occurrence of a Fundamental Change with respect to the Company and requests and
instructs the Company to repay the entire principal amount of this Note, or the
portion thereof (which is E1,000 or an integral multiple thereof) below
designated, in accordance with the terms of the Indenture referred to in this
Note at the redemption price, together with accrued interest to, but excluding,
such date, to the registered holder hereof.
Date: ___________________________ ______________________________________
____________________________________________
Signature(s)
NOTICE: The above signatures of the
holder(s) hereof must correspond with the
name as written upon the face of the Note in
every particular without alteration or
enlargement or any change whatever.
Principal amount to be repaid (if less than
all):
E_______________
____________________________________________
Social Security or Other Taxpayer
Identification Number
<PAGE> 15
FORM OF ASSIGNMENT
For value received _________________________ hereby sell(s), assign(s)
and transfer(s) unto _________________________ (Please insert social security or
other Taxpayer Identification Number of assignee) the within Note, and hereby
irrevocably constitutes and appoints _________________________ attorney to
transfer the said Note on the books of the Company, with full power of
substitution in the premises.
Dated: _________________________ ____________________________________________
____________________________________________
Signature(s)
Signature(s) must be guaranteed by an
"eligible guarantor institution" meeting the
requirements of the Note registrar, which
requirements include membership or
participation in the Security Transfer Agent
Medallion Program ("STAMP") or such other
"signature guarantee program" as may be
determined by the Note registrar in addition
to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act
of 1934, as amended.
____________________________________________
Signature Guarantee
NOTICE: The signature of the conversion notice, the option to elect repayment
upon a Fundamental Change or the assignment must correspond with the name as
written upon the face of the Note in every particular without alteration or
enlargement or any change whatever.
