AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 1, 1994
REGISTRATION NO. 33-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ADVANCED MICRO DEVICES, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE One AMD Place 94-1692300
(State or other Sunnyvale, California 94088-3453 (I.R.S. Employer
jurisdiction of (408) 732-2400 Identification Number)
incorporation) (Address, including zip code, and
telephone number, including
area code, of Registrant's principal
executive offices)
MARVIN D. BURKETT
Senior Vice President
Chief Administrative Officer and Secretary
Chief Financial Officer and Treasurer
One AMD Place
Sunnyvale, California 94088-3453
(408) 732-2400
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
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The Commission is requested to send copies of all communications to:
VICTOR J. BACIGALUPI, ESQ. RICHARD H. LOVGREN, ESQ.
Bronson, Bronson & McKinnon Acting General Counsel
505 Montgomery Street Advanced Micro Devices, Inc.
San Francisco, California 94111 One AMD Place, P.O. Box 3453
(415) 986-4200 Sunnyvale, California 94088-3453
(408) 749-2343
Approximate date of commencement of proposed sale to the public:
As soon as practicable after the effective date of this Registration Statement.
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If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. / /
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. / X /
---------
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
===========================================================================================
Proposed Proposed
Title of Maximum Maximum
Each Class of Amount Offering Aggregate Amount of
Securities to be Price Offering Registration
to be Registered Registered Per Unit Price(1) Fee
- -------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities......................
Preferred Stock, $0.10 par value.....
Depositary Shares....................
Common Stock, $0.01 par value(2) ...
Warrants to Purchase Common
Stock ..............................
Total.............................. (3) (3) $400,000,000 $137,931.03
=============================================================================================
<FN>
(1) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(o).
(2) Includes Preferred Stock Purchase Rights, which prior to the occurrence of
certain events will not be exercisable or evidenced separately from the
Common Stock.
(3) Not applicable pursuant to General Instruction II(D) to Form S-3 under the
Securities Act of 1933.
</TABLE>
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING
PURSUANT TO SECTION 8(A), MAY DETERMINE.
===============================================================================
<PAGE>
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
SUBJECT TO COMPLETION, DATED APRIL 1, 1994
PROSPECTUS [logo]
ADVANCED MICRO DEVICES, INC.
DEBT SECURITIES
PREFERRED STOCK
DEPOSITARY SHARES
COMMON STOCK
WARRANTS TO PURCHASE COMMON STOCK
----------
Advanced Micro Devices, Inc. (the "Company"), directly or through
agents, dealers or underwriters designated from time to time, may offer,
issue and sell, together or separately, up to $400,000,000 in the aggregate of
(a) secured or unsecured debt securities (the "Debt Securities") of the
Company, which may be either senior debt securities (the "Senior Debt
Securities"), senior subordinated debt securities (the "Senior Subordinated
Debt Securities") or subordinated debt securities (the "Subordinated Debt
Securities"), (b) shares of preferred stock, par value $0.10 per share (the
"Preferred Stock"), of the Company in one or more series, (c) depositary
shares of the Company (the "Depositary Shares") evidencing fractions of
shares of Preferred Stock, (d) shares of common stock, par value $0.01 per
share (the "Common Stock"), of the Company accompanied by preferred
stock purchase rights ("Rights"), and (e) warrants to purchase Common
Stock (the "Warrants"), or any combination of the foregoing, either
individually or as units consisting of one or more of the foregoing, each on
terms to be determined at the time of sale. The Debt Securities may be
issued as exchangeable and/or convertible Debt Securities exchangeable for
or convertible into shares of Common Stock, Preferred Stock or any other
Security. The Preferred Stock may also be exchangeable for and/or
convertible into shares of Common Stock, Preferred Stock or any other
Security. The Debt Securities, the Preferred Stock, the Depositary Shares,
the Common Stock and the Warrants are collectively referred to herein as
the "Securities."
When a particular series of Securities is offered, a supplement to this
Prospectus (each a "Prospectus Supplement") will be delivered with this
Prospectus. For Debt Securities, the Prospectus Supplement will set forth
with respect to such series (the "Offered Debt Securities"): the designation
(including whether senior, senior subordinated or subordinated and whether
convertible or exchangeable); the nature and terms of the security for any
secured Offered Debt Securities; aggregate principal amount; authorized
denominations; maturity; rate or rates (or method of determining the same)
and the time or times of payment of any interest; the purchase price; any
optional or mandatory redemption provisions; any sinking fund provisions;
provisions relating to any conversion or exchange feature of the Offered
Debt Securities; and any other specific terms of the Offered Debt Securities.
For Preferred Stock and Depositary Shares, the Prospectus Supplement will
set forth with respect to such series (the "Offered Preferred Stock" or the
"Offered Depositary Shares"): aggregate number of shares offered; the
public offering price; designation, rights, preferences and limitations,
including rate or rates (or method of determining the same) and the time or
times of payment of dividends; voting rights, if any; liquidation preference;
any conversion, exchange, redemption or sinking fund provisions; and any
other specific terms of the Offered Preferred Stock or the Offered
Depositary Shares. In addition, with respect to the Offered Depositary
Shares, the Prospectus Supplement will set forth the fraction of a share of
Preferred Stock represented by each of the Offered Depositary Shares. For
Common Stock, the Prospectus Supplement will set forth the terms of the
offering and sale. For Warrants, the Prospectus Supplement will set forth
with respect to such series (the "Offered Warrants"): offering price, exercise
price, duration, detachability, call provisions and any other specific terms of
the Offered Warrants.
SEE "INVESTMENT CONSIDERATIONS" FOR A DISCUSSION OF CERTAIN FACTORS THAT
SHOULD BE CONSIDERED BY EACH PROSPECTIVE INVESTOR.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
The Securities may be sold directly by the Company, through agents
designated from time to time or to or through underwriters or dealers. The
Company reserves the sole right to accept, and together with its agents,
from time to time, to reject in whole or in part any proposed purchase of
Securities to be made directly or through agents. See "Plan of Distribution."
If any such agents or underwriters are involved in the sale of any Securities,
the names of such agents or underwriters and any applicable fees,
commissions or discounts will be set forth in the applicable Prospectus
Supplement.
This Prospectus may not be used to consummate sales of Securities
unless accompanied by the applicable Prospectus Supplement.
The date of this Prospectus is , 1994.
<PAGE>
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR EFFECT
TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE SECURITIES AT
LEVELS ABOVE THOSE WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH
TRANSACTIONS MAY BE EFFECTED ON THE NEW YORK STOCK EXCHANGE, IN THE
OVER-THE-COUNTER MARKET, OR OTHERWISE. SUCH STABILIZING, IF COMMENCED, MAY BE
DISCONTINUED AT ANY TIME.
AVAILABLE INFORMATION
Advanced Micro Devices, Inc. (the "Company") is subject to the
informational requirements of the Securities Exchange Act of 1934 (the
"Exchange Act") and, in accordance therewith, files reports, proxy
statements and other information with the Securities and Exchange
Commission (the "Commission"). Such reports, proxy statements and other
information can be inspected and copied at the public reference room of the
Commission at Judiciary Plaza, 450 Fifth Street, N.W., Room 1024,
Washington, D.C. 20549, and the public reference facilities in the New York
Regional Office, Seven World Trade Center, 13th Floor, New York, New
York 10048, and Chicago Regional Office, Northwestern Atrium Center, 500
West Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of such
material can be obtained at prescribed rates by writing to the Securities and
Exchange Commission, Public Reference Section, Judiciary Plaza, 450 Fifth
Street, N.W., Washington, D.C. 20549. Such material can also be inspected
at the New York Stock Exchange, 20 Broad Street, New York, New York
10005.
This Prospectus constitutes a part of a registration statement on Form
S-3 (herein, together with all amendments and exhibits, referred to as the
"Registration Statement") filed by the Company under the Securities Act of
1933, as amended, with respect to the Securities offered hereby. This
Prospectus does not contain all the information included in such Registration
Statement, certain items of which are omitted in accordance with the rules
and regulations of the Commission. For further information with respect to
the Company and the Securities offered hereby, reference is made to the
Registration Statement and the exhibits thereto.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents heretofore filed by the Company with the Commission
are incorporated herein by reference: (a) Annual Report on Form 10-K for the
fiscal year ended December 26, 1993, filed pursuant to Section 13 of the
Exchange Act; (b) Current Reports on Form 8-K dated February 10 and March 10,
1994, filed pursuant to Section 13 of the Exchange Act; (c) the description of
the Company's Common Stock contained in the Company's Registration Statement on
Form 8-A filed September 14, 1979; (d) the description of the Company's
Depositary Convertible Exchangeable Preferred Shares, each representing 1/10th
share of $30.00 Convertible Exchangeable Preferred Stock, $0.10 par value,
contained in the Company's Registration Statement on Form 8-A filed February 18,
1987, and Amendment No. 1 thereto filed March 25, 1987; and (e) the description
of the Company's Series A Junior Participating Preferred Stock, $0.10 par value,
and shareholder rights plan contained in the Company's Registration Statement on
Form 8-A filed February 21, 1990.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
or 15(d) of the Exchange Act after the date of this Prospectus and prior to
the termination of the offering covered by this Prospectus shall be deemed
to be incorporated by reference in this Prospectus and to be a part hereof
from the date of filing of such documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference herein, or
contained in this Prospectus, shall be deemed to be modified or superseded
for purposes of the Registration Statement or this Prospectus to the extent
that a statement contained herein or in any other document subsequently
filed with the Commission which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such statement
so modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of the Registration Statement or this
Prospectus.
The Company will provide without charge to each person to whom this
Prospectus is delivered, upon the written or oral request of any such person,
a copy of any or all of the foregoing documents incorporated herein by
reference other than exhibits to such documents (unless such exhibits are
specifically incorporated by reference in such documents). Requests should
be directed to: Corporate Secretary, Advanced Micro Devices, Inc., One
AMD Place, Sunnyvale, California 94088-3453 (telephone: (408) 732-2400).
The information relating to the Company contained in this Prospectus does
not purport to be comprehensive and should be read together with the
information contained in the documents incorporated or deemed to be
incorporated by reference herein.
<PAGE>
THE COMPANY
Advanced Micro Devices, Inc. ("AMD" or the "Company"), a Delaware
corporation, was founded in 1969, became a publicly held company in 1972
and since 1979 has been listed on the New York Stock Exchange ("NYSE")
with the trading symbol of AMD. The Company designs, develops,
manufactures and markets complex monolithic integrated circuits for use by
manufacturers of a broad range of electronic equipment and systems.
The Company has sales offices worldwide, and has manufacturing or
testing facilities in Sunnyvale and Santa Clara, California; Austin, Texas;
Atsugi, Japan; Bangkok, Thailand; Penang, Malaysia; Singapore; and
Basingstoke, England. The Company employs approximately 11,895 people
worldwide. Its executive offices and corporate headquarters are located at
One AMD Place, Sunnyvale, California 94088-3453, and its telephone number
is (408) 732-2400.
INVESTMENT CONSIDERATIONS
Potential investors are encouraged to consider information concerning
the Company's on-going legal proceedings and litigation, including the
litigation with Intel Corporation ("Intel"), described in the Company's
Current Report on Form 8-K dated March 10, 1994, and the factors
described under "Factors That May Affect Future Results of Operations and
Financial Condition" in "Management's Discussion and Analysis of Results of
Operations and Financial Condition" contained in Exhibit 13 to the
Company's Annual Report on Form 10-K for the fiscal year ended December
26, 1993 (the "1993 10-K"), all as modified and superseded by any document
filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Exchange Act after the date of this Prospectus.
The Company is dependent upon a foundry arrangement with Digital
Equipment Corporation ("DEC") to provide sufficient production capacity to
meet the expected demand in 1995 for its Am486TM microprocessor products.
The Company has entered into a strategic alliance with Hewlett-Packard
Corporation ("HP") to collaborate on the development of advanced process
technology to enable the Company to produce microprocessors and logic
devices with 0.35 micron CMOS logic technology, and the Company is
dependent upon this alliance with respect to the development of this
technology. Additional information concerning the Company's relationships
with DEC and HP is set forth under "Business-Process Technology and
Manufacturing" in the 1993 10-K. The Company has entered into a joint
venture relationship with Fujitsu Limited for the development and
manufacturing of EPROMS and Flash memory devices and is dependent on
this relationship with respect to such devices. For additional information
concerning this joint venture, see "Business- Products-Joint Venture with
Fujitsu Limited" in the 1993 10-K.
The Company is currently developing its next generation of central
processing unit ("CPU") microprocessor products, known as the "K series."
The CPU microprocessor products currently produced by the Company
primarily for use in personal computers and workstations are based on the
iAPX architecture originally developed by Intel. The K series products,
however, will be based on superscalar RISC-type architecture. The K series
will face competition not only from iAPX products but also from products
based upon an increased number of different architectures which have been
developed or are under development by HP, IBM Corporation, Motorola,
Inc., Sun Microsystems, Inc. and other manufacturers of integrated circuits. No
assurance can be given that the Company's K series products will achieve market
acceptance. See "Business-Products-Microprocessors" in the 1993 10-K.
USE OF PROCEEDS
Except as otherwise provided in the Prospectus Supplement, the net
proceeds from the sale of Securities offered hereby will be used for general
corporate purposes, which may include the reduction of outstanding
indebtedness, working capital increases and capital expenditures.
RATIOS OF EARNINGS TO FIXED CHARGES AND EARNINGS TO
COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
Ratio of Earnings to Fixed Charges:
The following table sets forth the ratios of earnings to fixed charges for
the Company for the periods indicated.
Fiscal Year Ended
- -----------------------------------------------------------------------------
December 31, December 30, December 29, December 27, December 26,
1989 1990 1991 1992 1993
- ----------- ---------- ---------- ---------- ----------
2.71 x (a) 5.11 x 9.43 x 18.59 x
- ----------
(a) The amount of additional earnings required to cover fixed charges in the
fiscal year ended December 30, 1990, was $63,731,000.
Ratio of Earnings to Combined Fixed Charges and Preferred Stock Dividends:
The following table sets forth the ratios of earnings to combined fixed
charges and preferred stock dividends for the periods indicated.
Fiscal Year Ended
- -----------------------------------------------------------------------------
December 31, December 30, December 29, December 27, December 26,
1989 1990 1991 1992 1993
- ----------- ---------- ---------- ---------- ----------
1.94 x (a) 3.94 x 6.93 x 10.30 x
- ----------
(a) The amount of additional earnings required to cover fixed charges and
preferred stock dividends in the fiscal year ended December 30, 1990,
was $74,081,000.
The ratio of earnings to fixed charges has been computed by dividing
earnings by fixed charges. The ratio of earnings to fixed charges and
preferred stock dividends has been computed by dividing earnings by the
sum of fixed charges and preferred stock dividend requirements. Earnings
consist of income before income taxes, amortization of capitalized interest
plus fixed charges other than capitalized interest. Fixed charges consist of
interest on all indebtedness, amortization of debt issuance costs and the
portion of rental expense representative of interest.
GENERAL DESCRIPTION OF SECURITIES
The Company, directly or through agents, dealers or underwriters
designated from time to time, may offer, issue and sell, together or
separately, up to $400,000,000 in the aggregate of (a) secured or unsecured
debt securities (the "Debt Securities") of the Company, which may be senior
debt securities (the "Senior Debt Securities"), senior subordinated debt
securities (the "Senior Subordinated Debt Securities") or subordinated debt
securities (the "Subordinated Debt Securities"), (b) shares of preferred
stock, par value $0.10 per share (the "Preferred Stock"), of the Company in
one or more series, (c) depositary shares of the Company (the "Depositary
Shares") evidencing fractions of shares of Preferred Stock, (d) shares of
common stock, par value $0.01 per share (the "Common Stock") of the
Company, accompanied by preferred stock purchase rights ("Rights"), and
(e) warrants to purchase Common Stock (the "Warrants"), or any
combination of the foregoing, either individually or as units consisting of one
or more of the foregoing, each on terms to be determined at the time of sale.
The Debt Securities may be issued as exchangeable and/or convertible Debt
Securities exchangeable for or convertible into shares of Common Stock,
Preferred Stock or any other Security. The Preferred Stock may also be
exchangeable for and/or convertible into shares of Common Stock, Preferred
Stock or any other Security. The Debt Securities, the Preferred Stock, the
Depositary Shares, the Common Stock and the Warrants are collectively
referred to herein as the "Securities."
DESCRIPTION OF DEBT SECURITIES
The following description sets forth certain general terms and provisions
of the Debt Securities to which any Prospectus Supplement may relate. The
particular terms of the Debt Securities offered by any Prospectus
Supplement and the extent, if any, to which such general provisions do not
apply to the Debt Securities so offered will be described in the Prospectus
Supplement relating to such Debt Securities.
Debt Securities may be issued from time to time in series under an
indenture, and one or more indentures supplemental thereto (collectively,
the "Indenture"), between the Company and a trustee to be identified in the
applicable Prospectus Supplement (the "Trustee"). The terms of the Debt
Securities will include those stated in the Indenture and those made part of
the Indenture by reference to the Trust Indenture Act of 1939 (the "TIA")
as in effect on the date of the Indenture. The Debt Securities will be subject
to all such terms, and potential investors in the Debt Securities are referred
to the Indenture and the TIA for a statement thereof. The following
summary of certain provisions of the Indenture does not purport to be
complete and is qualified in its entirety by reference to the Indenture,
including the definitions therein of certain terms used below. A copy of the
proposed form of Indenture has been filed as an exhibit to the Registration
Statement of which this Prospectus is a part. As used under this caption,
unless the context otherwise requires, Offered Debt Securities shall mean
the Debt Securities offered by this Prospectus and the accompanying
Prospectus Supplement.
GENERAL
The Indenture will provide for the issuance of Debt Securities in series
and will not limit the principal amount of Debt Securities which may be
issued thereunder.
The applicable Prospectus Supplement or Prospectus Supplements will
describe the following terms of the series of Offered Debt Securities in
respect of which this Prospectus is being delivered: (1) the title of the
Offered Debt Securities; (2) whether the Offered Debt Securities are Senior
Debt Securities, Senior Subordinated Debt Securities or Subordinated Debt
Securities or any combination thereof; (3) any limit upon the aggregate
principal amount of the Offered Debt Securities; (4) the date or dates on
which the principal of the Offered Debt Securities is payable; (5) the rate or
rates at which the Offered Debt Securities will bear interest, if any, or the
manner in which such rate or rates are determined; (6) the date or dates
from which any such interest will accrue, the interest payment dates on
which any such interest on the Offered Debt Securities will be payable and
the record dates for the determination of holders to whom interest is
payable; (7) the obligation of the Company, if any, to redeem, purchase or
repay the Offered Debt Securities, in whole or in part, pursuant to any
sinking fund or analogous provisions or at the option of the holders and the
price or prices at which and the period and periods within which and the
terms and conditions upon which the Offered Debt Securities shall be
redeemed, purchased or repaid pursuant to such obligation; (8) the place or
places where the principal of and any interest on the Offered Debt Securities
will be payable; (9) the denominations in which any Offered Debt Securities
will be issuable, if other than denominations of U.S. $1,000 and any integral
multiple thereof; (10) if other than the principal amount thereof, the portion
of the principal amount of the Offered Debt Securities of the series which
will be payable upon declaration of the acceleration of the maturity thereof;
(11) any addition to or change in the covenants which apply to the Offered
Debt Securities; (12) any Events of Default with respect to the Offered Debt
Securities, if not otherwise set forth under "Events of Default;" (13) whether
the Offered Debt Securities will be issued in whole or in part in global form;
the terms and conditions, if any, upon which such global Offered Debt
Securities may be exchanged in whole or in part for other individual
securities, and the depositary for such Offered Debt Securities; (14) the
terms and conditions, if any, upon which the Offered Debt Securities may be
exchanged for or converted into other securities or property; (15) the nature
and terms of the security for any secured Offered Debt Securities; and (16)
any other terms of the Offered Debt Securities, which terms shall not be
inconsistent with the provisions of the Indenture.
Debt Securities may be issued at a discount from their principal amount
("Original Issue Discount Securities"). Federal income tax considerations and
other special considerations applicable to any such Original Issue Discount
Securities will be described in the applicable Prospectus Supplement.
Debt Securities may be issued in bearer form, with or without coupons.
Federal income tax considerations and other special considerations applicable
to bearer securities will be described in the applicable Prospectus
Supplement.
Unless otherwise indicated in this Prospectus or a Prospectus
Supplement, the Debt Securities will be unsecured and will not have the
benefit of any covenants that limit or restrict the Company's business or
operations, the pledging of the Company's assets or the incurrence of
indebtedness by the Company.
STATUS OF DEBT SECURITIES
The Senior Debt Securities will be unsubordinated obligations of the
Company and will rank on a parity with all other unsecured and
unsubordinated indebtedness of the Company.
The obligations of the Company pursuant to Senior Subordinated Debt
Securities will be subordinate and junior in right of payment, to the extent
and in the manner set forth in the Indenture, to all Senior Indebtedness of
the Company. Except to the extent set forth in the Prospectus Supplement,
"Senior Indebtedness" of the Company is defined to mean the principal of,
and premium, if any, and any interest (including interest accruing
subsequent to the commencement of any proceeding for the bankruptcy or
reorganization of the Company under any applicable bankruptcy, insolvency
or similar law now or hereafter in effect) on (a) all indebtedness of the
Company whether heretofore or hereafter incurred (i) for borrowed money
or (ii) incurred in connection with the acquisition by the Company or a
subsidiary of assets other than in the ordinary course of business, for the
payment of which the Company is liable directly or indirectly by guarantee,
letter of credit, obligation to purchase or acquire or otherwise, or the
payment of which is secured by a lien, charge or encumbrance on assets
acquired by the Company, (b) amendments, modifications, renewals,
extensions and deferrals of any such indebtedness, and (c) any indebtedness
issued in exchange for any such indebtedness (clauses (a) through (c) hereof
being collectively referred to herein as "Debt"); provided, however, that the
following will not constitute Senior Indebtedness with respect to Senior
Subordinated Debt Securities: (1) any Debt as to which, in the instrument
evidencing such Debt or pursuant to which such Debt was issued, it is
expressly provided that such Debt is subordinate in right of payment to all
Debt of the Company not expressly subordinated to such Debt; (2) any Debt
which by its terms refers explicitly to the Senior Subordinated Debt
Securities and states that such Debt shall not be senior in right of payment;
and (3) any Debt of the Company in respect of the Senior Subordinated Debt
Securities or any Subordinated Debt Securities. The Company will not issue
Debt which is subordinated in right of payment to any other Debt of the
Company and which is not expressly made pari passu with, or subordinate
and junior in right of payment to, the Senior Subordinated Debt Securities.
The obligations of the Company pursuant to Subordinated Debt
Securities will be subordinate in right of payment to all Senior Indebtedness
of the Company and to any Senior Subordinated Debt Securities; provided,
however, that the following will not constitute Senior Indebtedness with
respect to Subordinated Debt Securities: (1) any Debt as to which, in the
instrument evidencing such Debt or pursuant to which such Debt was
issued, it is expressly provided that such Debt is subordinate in right of
payment to all Debt of the Company not expressly subordinated to such
Debt; and (2) any Debt of the Company in respect of Subordinated Debt
Securities and any Debt which by its terms refers explicitly to the
Subordinated Debt Securities and states that such Debt shall not be senior
in right of payment.
No payment pursuant to the Senior Subordinated Debt Securities or the
Subordinated Debt Securities, as the case may be, may be made unless all
amounts of principal, premium, if any, and interest then due on all applicable
Senior Indebtedness of the Company shall have been paid in full or if there
shall have occurred and be continuing beyond any applicable grace period a
default in any payment with respect to any such Senior Indebtedness, or if
there shall have occurred any event of default with respect to any such
Senior Indebtedness permitting the holders thereof to accelerate the
maturity thereof, or if any judicial proceeding shall be pending with respect
to any such default. However, the Company may make payments pursuant
to the Senior Subordinated Debt Securities or the Subordinated Debt
Securities, as the case may be, if a default in payment or an event of default
with respect to the Senior Indebtedness permitting the holder thereof to
accelerate the maturity thereof has occurred and is continuing and judicial
proceedings with respect thereto have not been commenced within a certain
number of days of such default in payment or event of default. Upon any
distribution of the assets of the Company upon dissolution, winding-up,
liquidation or reorganization, the holders of Senior Indebtedness of the
Company will be entitled to receive payment in full of principal, premium, if
any, and interest (including interest accruing subsequent to the
commencement of any proceeding for the bankruptcy or reorganization of
the Company under any applicable bankruptcy, insolvency or similar law
now or hereafter in effect) before any payment is made on the Senior
Subordinated Debt Securities or Subordinated Debt Securities, as applicable.
By reason of such subordination, in the event of insolvency of the Company,
holders of Senior Indebtedness of the Company may receive more, ratably,
and holders of the Senior Subordinated Debt Securities or Subordinated
Debt Securities, as applicable, having a claim pursuant to the Senior
Subordinated Debt Securities or Subordinated Debt Securities, as applicable,
may receive less, ratably, than the other creditors of the Company. Such
subordination will not prevent the occurrence of any Event of Default in
respect of the Senior Subordinated Debt Securities or the Subordinated
Debt Securities.
CONVERSION RIGHTS
The terms, if any, on which Debt Securities of a series may be
exchanged for or converted into shares of Common Stock, Preferred Stock
or any other Security will be set forth in the Prospectus Supplement
relating thereto.
EXCHANGE, REGISTRATION, TRANSFER AND PAYMENT
Unless otherwise specified in the applicable Prospectus Supplement,
payment of principal, premium, if any, and any interest on the Debt
Securities will be payable, and the exchange of and the transfer of Debt
Securities will be registrable, at the office of the Trustee or at any other
office or agency maintained by the Company for such purpose subject to the
limitations of the Indenture. Unless otherwise indicated in the applicable
Prospectus Supplement, the Debt Securities will be issued in denominations
of U.S. $1,000 or integral multiples thereof. No service charge will be made
for any registration of transfer or exchange of the Debt Securities, but the
Company may require payment of a sum sufficient to cover any transfer tax
or similar governmental charge imposed in connection therewith.
SECURED DEBT SECURITIES
The terms, if any, on which Debt Securities of a series may be secured
will be set forth in the Prospectus Supplement relating thereto. The terms
of the Company's current credit agreements generally prohibit the Company
from encumbering its assets. With certain limited exceptions, so long as
these provisions are in effect, the Company may not issue secured Debt
Securities without having first obtained modifications or waivers of these
provisions.
BOOK-ENTRY DEBT SECURITIES
The Debt Securities of a series may be issued in the form of one or more
Global Securities that will be deposited with a depositary or its nominee
identified in the applicable Prospectus Supplement. In such a case, one or
more Global Securities will be issued in a denomination or aggregate
denominations equal to the portion of the aggregate principal amount of
Outstanding Debt Securities of the series to be represented by such Global
Security or Securities. Each Global Security will be deposited with such
depositary or nominee or a custodian therefor and will bear a legend
regarding the restrictions on exchanges and registration of transfer thereof
referred to below and any such other matters as may be provided for
pursuant to the applicable Indenture.
Notwithstanding any provision of the Indenture or any Debt Security
described herein, no Global Security may be transferred to, or registered or
exchanged for Debt Securities registered in the name of, any Person other
than the depositary for such Global Security or any nominee of such
depositary, and no such transfer may be registered, unless (i) the depositary
has notified the Company that it is unwilling or unable to continue as
depositary for such Global Security or has ceased to be qualified to act as
such as required by the applicable Indenture, (ii) the Company executes and
delivers to the Trustee an order that such Global Security shall be so
transferable, registrable and exchangeable, and such transfers shall be
registrable, or (iii) there shall exist such circumstances, if any, as may be
described in the applicable Prospectus Supplement. All Debt Securities
issued in exchange for a Global Security or any portion thereof will be
registered in such names as the depositary may direct.
The specific terms of the depositary arrangement with respect to any
portion of a series of Debt Securities to be represented by a Global Security
will be described in the applicable Prospectus Supplement. The Company
expects that the following provisions will apply to depositary arrangements.
Unless otherwise specified in the applicable Prospectus Supplement,
Debt Securities which are to be represented by a Global Security to be
deposited with or on behalf of a depositary will be represented by a Global
Security registered in the name of such depositary or its nominee. Upon the
issuance of such Global Security, and the deposit of such Global Security
with or on behalf of the depositary for such Global Security, the depositary
will credit, on its book-entry registration and transfer system, the respective
principal amounts of the Debt Securities represented by such Global
Security to the accounts of institutions that have accounts with such
depositary or its nominee ("participants"). The accounts to be credited will
be designated by the underwriters or agents of such Debt Securities or by
the Company, if such Debt Securities are offered and sold directly by the
Company. Ownership of beneficial interests in such Global Security will be
limited to participants or persons that may hold interests through
participants. Ownership of beneficial interests by participants in such Global
Security will be shown on, and the transfer of that ownership interest will
be effected only through, records maintained by the depositary or its
nominee for such Global Security. Ownership of beneficial interests in such
Global Security by persons that hold through participants will be shown on,
and the transfer of that ownership interest within such participant will be
effected only through, records maintained by such participant. The laws of
some jurisdictions require that certain purchasers of securities take physical
delivery of such securities in certificated form. The foregoing limitations and
such laws may impair the ability to transfer beneficial interests in such
Global Securities.
So long as the depositary for a Global Security, or its nominee, is the
registered owner of such Global Security, such depositary or such nominee,
as the case may be, will be considered the sole owner or holder of the Debt
Securities represented by such Global Security for all purposes under the
Indenture. Unless otherwise specified in the applicable Prospectus
Supplement, owners of beneficial interests in such Global Security will not
be entitled to have Debt Securities of the series represented by such Global
Security registered in their names, will not receive or be entitled to receive
physical delivery of Debt Securities of such series in certified form and will
not be considered the holders thereof for any purposes under the Indenture.
Accordingly, each person owning a beneficial interest in such Global Security
must rely on the procedures of the depositary and, if such person is not a
participant, on the procedures of the participant through which such person
owns its interest, to exercise any rights of a holder under the Indenture.
The Company understands that under existing industry practices, if the
Company requests any action of holders or an owner of a beneficial interest
in such Global Security desires to give any notice or take any action a holder
is entitled to give or take under the Indenture, the depositary would
authorize the participants to give such notice or take such action, and
participants would authorize beneficial owners owning through such
participants to give such notice or take such action or would otherwise act
upon the instructions of beneficial owners owning through them.
Notwithstanding any other provisions to the contrary in the Indenture,
the rights of the beneficial owners of the Debt Securities to receive payment
of the principal and premium, if any, of and interest on such Debt Securities,
on or after the respective due dates expressed in such Debt Securities, or to
institute suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the consent of the
beneficial owners.
Principal of and any interest on a Global Security will be payable in the
manner described in the applicable Prospectus Supplement.
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Company, without the consent of a percentage of the holders of
outstanding Debt Securities, may not consolidate with or merge into, or sell,
assign, transfer, lease, convey or otherwise dispose of all or substantially all
of its property or assets to any person unless (a) the Company is the
surviving corporation or the entity or the person formed by or surviving any
such consolidation or merger (if other than the Company) or to which such
sale, assignment, transfer, lease, conveyance or other disposition shall have
been made is a corporation organized and existing under the laws of the
United States, any state thereof or the District of Columbia; (b) the entity
or person formed by or surviving any such consolidation or merger (if other
than the Company) or the entity or person to which such sale, assignment,
transfer, lease, conveyance or other disposition shall have been made
assumes all the obligations of the Company under the Debt Securities and
the Indenture; and (c) immediately prior to and after the transaction no
Default or Event of Default exists.
COVENANTS OF THE COMPANY
The applicable Prospectus Supplement will describe any material
covenants in respect of a series of Offered Debt Securities. Other than the
covenants of the Company included in the Indenture as described above or
as described in the applicable Prospectus Supplement, there are no
covenants or provisions in the Indenture that may afford holders protection
in the event of a highly leveraged transaction or leveraged buyout involving
the Company.
EVENTS OF DEFAULT
Unless otherwise specified in the applicable Prospectus Supplement, the
following will constitute Events of Default under the Indenture with respect
to Debt Securities of any series:(a) failure to pay any interest on any Debt
Security of that series when due, and the Default continues for 30 days; (b)
failure to pay principal of any Debt Security of that series when due and
payable at maturity, upon redemption or otherwise; (c) an Event of Default,
as defined in the Debt Securities of that series, occurs and is continuing, or
the Company fails to comply with any of its other agreements in the Debt
Securities of that series or in the Indenture with respect to that series and
the Default continues for the period and after the notice provided therein;
and (d) certain events of bankruptcy, insolvency or reorganization. If an
Event of Default with respect to outstanding Debt Securities of any series
(other than an Event or Default relating to certain events of bankruptcy,
insolvency or reorganization) shall occur and be continuing, either the
Trustee or the holders of at least 25% in principal amount of the outstanding
Debt Securities of that series by notice to the Company and the Trustee, as
provided in the Indenture, may declare the unpaid principal amount (or, if
the Debt Securities of that series are Original Issue Discount Securities,
such lesser amount as may be specified in the terms of that series) of and
any accrued interest on all Debt Securities of that series to be due and
payable immediately. However, at any time after a declaration of
acceleration with respect to Debt Securities of any series has been made,
but before a judgment or decree based on such acceleration has been
obtained, the holders of a majority in principal amount of the outstanding
Debt Securities of that series may, under certain circumstances, rescind and
annul such acceleration. For information as to waiver of defaults, see
"Modification and Waiver" below.
The Indenture will provide that, subject to the duty of the Trustee
during an Event of Default to act with the required standard of care, the
Trustee will be under no obligation to exercise any of its rights or powers
under the applicable Indenture at the request or direction of any of the
holders, unless such holders shall have offered to the Trustee reasonable
security or indemnity. Subject to certain provisions, including those
requiring security or indemnification of the Trustee, the holders of a
majority in principal amount of the outstanding Debt Securities of any series
will have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust
or power conferred on the Trustee, with respect to the Debt Securities of
that series.
The Company will be required to furnish to the Trustee under the
Indenture annually a statement as to the performance by the Company of its
obligations under that Indenture and as to any default in such performance.
MODIFICATION AND WAIVER
Subject to certain exceptions, the Company and the Trustee may
supplement or amend the Indenture or the Debt Securities with the written
consent of the holders of a majority in principal amount of the then
outstanding Debt Securities of each series affected by the amendment with
each series voting as a separate class. The holders of a majority in principal
amount of the then outstanding Debt Securities of any series may also waive
compliance in a particular instance by the Company with any provision of
the Indenture with respect to the Debt Securities of that series; provided,
however, that without the consent of each holder of Debt Securities affected,
an amendment or waiver may not (i) reduce the percentage of the principal
amount of Debt Securities whose holders must consent to an amendment or
waiver; (ii) reduce the rate or change the time for payment of interest on
any Debt Security; (iii) reduce the principal of or change the fixed maturity
of any Debt Security, or alter the redemption provisions with respect
thereto; (iv) make any Debt Security payable in money other than that
stated in the Debt Security; (v) make any change in the provisions
concerning waivers of Default or Events of Default by holders or the rights
of holders to recover the principal of or interest on any Debt Security; or
(vi) waive a default in the payment of the principal of, or interest on, any
Debt Security, except as otherwise provided in the Indenture. The Company
and the Trustee may amend the Indenture or the Debt Securities without
notice to or the consent of any holder of a Debt Security: (i) to cure any
ambiguity, defect or inconsistency; (ii) to comply with the Indenture's
provisions with respect to successor corporations; (iii) to comply with any
requirements of the Commission in connection with the qualification of the
Indenture under the TIA; (iv) to provide for Debt Securities in addition to
or in place of certificated Debt Securities; (v) to add to, change or eliminate
any of the provisions of the Indenture in respect of one of more series of
Debt Securities, provided, however, that any such addition, change or
elimination (A) shall neither (1) apply to any Debt Security of any series
created prior to the execution of such amendment and entitled to the benefit
of such provision, nor (2) modify the rights of a holder of any such Debt
Security with respect to such provision, or (B) shall become effective only
when there is no outstanding Debt Security of any series created prior to
such amendment and entitled to the benefit of such provision; (vi) to make
any change that does not adversely affect in any material respect the
interests of the holders of any series of Debt Securities; or (vii) to establish
additional series of Debt Securities as permitted by the Indenture.
Subject to certain exceptions, the holders of a majority in principal
amount of the then outstanding Debt Securities of any series, by notice to
the Trustee, may waive an existing Default or Event of Default and its
consequences with respect to the Debt Securities of that series except a
Default or Event of Default in the payment of the principal of or interest on
any Debt Security.
TERMINATION OF THE COMPANY'S OBLIGATIONS UNDER THE DEBT SECURITIES AND THE
INDENTURE
Except as otherwise described below, the Company may terminate its
obligations under the Debt Securities of any series and the Indenture with
respect to that series if:
(a) all Debt Securities of that series previously authenticated and
delivered (other than destroyed, lost or stolen Debt Securities which
have been replaced or Debt Securities of that series which are paid or
Debt Securities of that series for whose payment money or securities has
theretofore been held in trust and thereafter repaid to the Company)
have been delivered to the Trustee for cancellation and the Company has
paid all sums payable by it under the Indenture with respect to such
series; or
(b) (1) the Debt Securities of that series mature within one year or
all of them are to be called for redemption within one year after
arrangements satisfactory to the Trustee for giving notice of redemption;
and
(2) the Company irrevocably deposits in trust with the Trustee
during such one-year period, under the terms of an irrevocable trust
agreement in form and substance satisfactory to the Trustee, as trust
funds solely for the benefit of the holders of Debt Securities of that
series for that purpose, money or U.S. Government Obligations, or a
combination thereof, with the U.S. Government Obligations maturing as
to principal and interest in such amounts and at such times as are
sufficient, without consideration of any reinvestment of such interest, to
pay principal of and interest on the Debt Securities of that series to
maturity or redemption, as the case may be, and to pay all other sums
payable by it under the Indenture; or
(c) (1) the Company irrevocably deposits in trust with the Trustee
under the terms of an irrevocable trust agreement in form and substance
satisfactory to the Trustee, as trust funds solely for the benefit of the
holders of Debt Securities of that series for that purpose, money or U.S.
Government Obligations, or a combination thereof, with the U.S.
Government Obligations maturing as to principal and interest in such
amounts and at such times as are sufficient, without consideration of any
reinvestment of such interest, to pay principal of and interest on the
Debt Securities of that series to maturity or redemption, as the case may
be;
(2) The Company shall have delivered to the Trustee either (A)
a ruling directed to the Trustee received from the Internal Revenue
Service to the effect that the holders of the Debt Securities of that series
will not recognize income, gain or loss for federal income tax purposes as
a result of the Company's exercise of its option under this clause (c) and
will be subject to federal income tax on the same amount and in the
same manner and at the same times as would have been the case if such
option had not been exercised, or (B) an opinion of counsel to the same
effect as the ruling described in subclause (A) above accompanied by a
ruling to that effect published by the Internal Revenue Service, unless
there has been a change in the applicable federal income tax law since
the date of the Indenture such that a ruling from the Internal Revenue
Service is no longer required;
(3) The Company has paid or caused to be paid all sums then
payable by the Company under the Indenture; and
(4) the Company has delivered to the Trustee an officers'
certificate and an opinion of counsel, each stating that all conditions
precedent provided for in this clause (c) relating to termination of
obligations of the Company have been complied with.
The Company's obligations under sections of the Indenture relating to
the registrar and the paying agent, their obligations, the maintenance of a
list of holders, transfers of Debt Securities, replacement of securities,
payment (together with payment obligations under the Debt Securities of
that series), compensation and indemnity of the Trustee (Section 7.07),
replacement of the Trustee and repayment to the Company of excess money
held by the Trustee or the paying Agent (Section 8.03), shall survive until
the Debt Securities of that series are no longer outstanding. Thereafter, and
after any discharge pursuant to clause (a) above, only the Company's
obligations in Sections 7.07 and 8.03 of the Indenture shall survive. If the
ruling from the Internal Revenue Service or opinion of counsel referred to in
clause (c)(2) above is based on or assumes that the Company's payment
obligations under the Indenture or its payment obligations under the Debt
Securities will continue (or is silent with respect thereto), then such
discharge shall constitute only a "covenant defeasance" and, consequently,
the Company shall remain liable for the payment of the Debt Securities of
that series. However, if and when a ruling from the Internal Revenue
Service or opinion of counsel referred to in clause (c)(2) above is able to be
provided specifically without regard to, and not in reliance upon, the
continuance of the Company's payment obligations under the Indenture and
its payment obligations under the Debt Securities of that series, then the
Company's payment obligations under the Indenture and the Debt Securities
of that series shall cease upon delivery to the Trustee of such ruling or
opinion of counsel and compliance with the other conditions precedent
provided for in clause (c) above relating to the satisfaction and discharge of
the Indenture. In such a case (a "legal defeasance") holders would be able to
look only to the trust fund for payment of principal or interest on the Debt
Securities.
REGARDING THE TRUSTEES
The Company intends that the Trustee with respect to the first series of
Debt Securities will be United States Trust Company of New York, and its
address is 114 West 47th Street, New York, New York 10036. Other
Trustees may be designated for any subsequent series of Debt Securities.
The Indenture and provisions of the TIA incorporated by reference therein
contain certain limitations on the rights of the Trustee, should it become a
creditor of the Company, to obtain payment of claims in certain cases, or to
realize on certain property received in respect of any such claim, as security
or otherwise. The Trustee and its affiliates engage in, and will be permitted
to continue to engage in, other transactions with the Company and its
affiliates; provided, however, that if it acquires any conflicting interest (as
defined), it must eliminate such conflict or resign.
The holders of a majority in principal amount of the then outstanding
Debt Securities of any series will have the right to direct the time, method
and place of conducting any proceeding for exercising any remedy available
to the Trustee. The TIA and the Indenture provide that in case an Event of
Default shall occur (and be continuing), the Trustee will be required, in the
exercise of its rights and powers, to use the degree of care and skill of a
prudent man in the conduct of his own affairs. Subject to such provision, the
Trustee will be under no obligation to exercise any of its rights or powers
under the Indenture at the request of any of the holders of the Debt
Securities of any series issued thereunder, unless they have offered to the
Trustee indemnity satisfactory to it.
DESCRIPTION OF PREFERRED STOCK
The following description of the terms of the Preferred Stock sets forth
certain general terms and provisions of the Preferred Stock to which any
Prospectus Supplement may relate. Certain other terms of any series of the
Preferred Stock offered by any Prospectus Supplement will be described in
such Prospectus Supplement. The description of certain provisions of the
Preferred Stock set forth below and in any Prospectus Supplement does not
purport to be complete and is subject to and qualified in its entirety by
reference to the Company's Certificate of Incorporation (the "Certificate of
Incorporation"), and the certificate of designations (a "Certificate of
Designations") relating to each series of the Preferred Stock which will be
filed with the Commission and incorporated by reference in the Registration
Statement of which this Prospectus is a part at or prior to the time of the
issuance of such series of the Preferred Stock.
GENERAL
The authorized capital stock of the Company consists of 250,000,000 shares of
Common Stock, $0.01 par value per share, and 1,000,000 shares of preferred
stock, $0.10 par value per share ("preferred stock of the Company," which term,
as used herein, includes the Preferred Stock offered hereby). As of March 30,
1994, the Company had 92,979,749 shares of Common Stock and 344,975 shares of
preferred stock outstanding, of which 171,085 shares of Common Stock were owned
by the Company as treasury stock, and has authorized the issuance of up to
150,000 additional shares of preferred stock pursuant to its shareholder rights
plan. See "-Outstanding Preferred Stock" and "Description of Common Stock."
Under the Certificate of Incorporation, the Board of Directors of the
Company is authorized without further stockholder action to provide for the
issuance of up to 505,000 shares of preferred stock of the Company, in one
or more series, with such voting powers, full or limited, and with such
designations, preferences and relative participating, optional or other special
rights, and qualifications, limitations or restrictions thereof, as shall be
stated in the resolution or resolutions providing for the issue of a series of
such stock adopted, at any time or from time to time, by the Board of
Directors of the Company (as used herein the term "Board of Directors of
the Company" includes any duly authorized committee thereof). Under the
terms of the Company's currently outstanding $30.00 Convertible
Exchangeable Preferred Stock, the Company may not issue Preferred Stock
which by its terms is expressly made senior to the $30.00 Convertible
Exchangeable Preferred Stock either as to dividends or as to the
distribution of assets on any voluntary or involuntary liquidation of the
Company.
As described under "Description of Depositary Shares," the Company
may, at its option, elect to offer Depositary Shares evidenced by depositary
receipts (the "Depositary Receipts"), each representing a fraction (to be
specified in the Prospectus Supplement relating to the particular series of
the Preferred Stock) of a share of the particular series of the Preferred
Stock issued and deposited with a depositary, in lieu of offering full shares of
such series of the Preferred Stock.
The Preferred Stock shall have the dividend, liquidation, redemption and
voting rights set forth below unless otherwise provided in a Prospectus
Supplement relating to a particular series of the Preferred Stock. Reference
is made to the Prospectus Supplement relating to the particular series of the
Preferred Stock offered thereby for specific terms, including: (i) the
designation and stated value per share of such Preferred Stock and the
number of shares offered; (ii) the amount of liquidation preference per share;
(iii) the initial public offering price at which such Preferred Stock will be
issued; (iv) the dividend rate (or method of calculation), the dates on which
dividends shall be payable and the dates from which dividends shall
commence to cumulate, if any; (v) any redemption or sinking fund provisions;
(vi) any conversion or exchange rights; (vii) whether the Company has
elected to offer Depositary Shares as described below under "Description of
Depositary Shares;" and (viii) any additional voting, dividend, liquidation,
redemption, sinking fund and other rights, preferences, privileges,
limitations and restrictions.
The Preferred Stock will, when issued, be fully paid and nonassessable
and will have no preemptive rights. The rights of the holders of each series
of the Preferred Stock will be subordinate to those of the Company's general
creditors.
DIVIDEND RIGHTS
Holders of the Preferred Stock of each series will be entitled to receive,
when, as and if declared by the Board of Directors of the Company, out of funds
of the Company legally available therefor, cash dividends on such dates and at
such rates as are set forth in, or as are determined by the method described in,
the Prospectus Supplement relating to such series of the Preferred Stock. Such
rate may be fixed or variable or both. Each such dividend will be payable to the
holders of record as they appear on the stock books of the Company (or, if
applicable, the records of the Depositary (as hereinafter defined) referred to
under "Description of Depositary Shares") on such record dates, fixed by the
Board of Directors of the Company, as specified in the Prospectus Supplement
relating to such series of Preferred Stock.
Such dividends may be cumulative or noncumulative, as provided in the
Prospectus Supplement relating to such series of Preferred Stock. If the
Board of Directors of the Company fails to declare a dividend payable on a
dividend payment date on any series of Preferred Stock for which dividends
are noncumulative, then the right to receive a dividend in respect of the
dividend period ending on such dividend payment date will be lost, and the
Company will have no obligation to pay any dividend for such period,
whether or not dividends on such series are declared payable on any future
dividend payment dates. Dividends on the shares of each series of Preferred
Stock for which dividends are cumulative will accrue from the date on which
the Company initially issues shares of such series.
The terms of the Company's current credit agreement prohibit the
Company from paying cash dividends on its capital stock, other than
mandatory current dividend payments to the holders of the shares of
Preferred Stock which are currently outstanding. So long as the provision is
in effect, the Company may not offer Preferred Stock with dividend rights
without having first obtained a modification or waiver of this provision.
Unless otherwise specified in the applicable Prospectus Supplement, so
long as the shares of any series of the Preferred Stock are outstanding,
unless (i) full dividends (including if such Preferred Stock is cumulative,
dividends for prior dividend periods) have been paid or declared and set
apart for payment on all outstanding shares of the Preferred Stock of such
series and all other classes and series of preferred stock of the Company
(other than Junior Stock, as defined below) and (ii) the Company is not in
default or in arrears with respect to the mandatory or optional redemption
or mandatory repurchase or other mandatory retirement of, or with respect
to any sinking or other analogous funds for, any shares of Preferred Stock of
such series or any shares of any other preferred stock of the Company of
any class or series (other than Junior Stock, as defined below), the Company
may not declare any dividends on any shares of Common Stock of the
Company or any other stock of the Company ranking as to dividends or
distributions of assets junior to such series of Preferred Stock (the Common
Stock and any such other stock being herein referred to as "Junior Stock"),
or make any payment on account of, or set apart money for, the purchase,
redemption or other retirement of, or for a sinking or other analogous fund
for, any shares of Junior Stock or make any distribution in respect thereof,
whether in cash or property or in obligations of stock of the Company, other
than in Junior Stock which is neither convertible into, nor exchangeable or
exercisable for, any securities of the Company other than Junior Stock.<PAGE>
LIQUIDATION PREFERENCES
Unless otherwise specified in the applicable Prospectus Supplement, in
the event of any liquidation, dissolution or winding up of the Company,
whether voluntary or involuntary, the holders of each series of the Preferred
Stock will be entitled to receive out of the assets of the Company available
for distribution to stockholders, before any distribution of assets is made to
the holders of Common Stock or any other shares of stock of the Company
ranking junior as to such distribution to such series of the Preferred Stock,
the amount set forth in the Prospectus Supplement relating to such series of
the Preferred Stock. If, upon any voluntary or involuntary liquidation,
dissolution or winding up of the Company, the amounts payable with respect
to the Preferred Stock of any series and any other shares of preferred stock
of the Company (including any other series of the Preferred Stock) ranking
as to any such distribution on a parity with such series of the Preferred
Stock are not paid in full, the holders of the Preferred Stock of such series
and of such other shares of preferred stock of the Company will share
ratably in any such distribution of assets of the Company in proportion to
the full respective preferential amounts to which they are entitled. After
payment to the holders of the Preferred Stock of each series of the full
preferential amounts of the liquidating distribution to which they are
entitled, unless otherwise provided in the applicable Prospectus Supplement,
the holders of each such series of the Preferred Stock will be entitled to no
further participation in any distribution of assets by the Company.
REDEMPTION
A series of the Preferred Stock may be redeemable, in whole or from
time to time in part, at the option of the Company, and may be subject to
mandatory redemption pursuant to a sinking fund or otherwise, in each case
upon terms, at the times and at the redemption prices set forth in the
Prospectus Supplement relating to such series. Shares of the Preferred
Stock redeemed by the Company will be restored to the status of authorized
but unissued shares of preferred stock of the Company.
In the event that fewer than all of the outstanding shares of a series of
the Preferred Stock are to be redeemed, whether by mandatory or optional
redemption, the number of shares to be redeemed will be determined by lot
or pro rata (subject to rounding to avoid fractional shares) as may be
determined by the Company or by any other method as may be determined
by the Company in its sole discretion to be equitable. From and after the
redemption date (unless default is made by the Company in providing for the
payment of the redemption price plus accumulated and unpaid dividends, if
any) dividends will cease to accumulate on the shares of the Preferred Stock
called for redemption and all rights of the holders thereof (except the right
to receive the redemption price plus accumulated and unpaid dividends, if
any) will cease.
Unless otherwise specified in the applicable Prospectus Supplement, so long
as any dividends on shares of any series of the Preferred Stock or any other
series of preferred stock of the Company ranking on a parity as to dividends and
distribution of assets with such series of the Preferred Stock are in arrears,
no shares of any such series of the Preferred Stock or such other series of
preferred stock of the Company will be redeemed (whether by mandatory or
optional redemption) unless all such shares are simultaneously redeemed, and the
Company will not purchase or otherwise acquire any such shares; provided,
however, that the foregoing will not prevent the purchase or acquisition of such
shares pursuant to a purchase or exchange offer made on the same terms to
holders of all such shares outstanding.
CONVERSION AND EXCHANGE RIGHTS
The terms, if any, on which shares of Preferred Stock of any series may
be exchanged for or converted into shares of Common Stock, or another
series of Preferred Stock, or any other Security will be set forth in the
Prospectus Supplement relating thereto. Such terms may include provisions
for conversion, either mandatory, at the option of the holder, or at the
option of the Company, in which case the number of shares of Common
Stock, the shares of another series of Preferred Stock or the amount of any
other securities to be received by the holders of Preferred Stock would be
calculated as of a time and in the manner stated in the Prospectus
Supplement.
VOTING RIGHTS
Except as indicated in a Prospectus Supplement relating to a particular
series of the Preferred Stock, or except as required by applicable law, the
holders of the Preferred Stock will not be entitled to vote for any purpose.
OUTSTANDING PREFERRED STOCK
As of the date hereof, the Company has issued and outstanding 344,975
shares of $30.00 Convertible Exchangeable Preferred Stock which are fully
paid and nonassessable. The Company has also authorized up to 150,000
shares of Series A Junior Participating Preferred Stock in connection with
its preferred stock purchase rights plan. See "Description of Common
Stock-Rights Agreement."
The $30.00 Convertible Exchangeable Preferred Stock bears a
cumulative dividend of $30.00 per share per annum. It is senior to the
Common Stock and to any Series A Junior Participating Cumulative
Preferred Stock which may be issued, as to the payment of dividends and
distributions of assets on liquidation, dissolution and winding up of the
Company. Shares of the $30.00 Convertible Exchangeable Preferred Stock
provide for a liquidation preference of $500.00 per share, plus accrued and
unpaid dividends.
Holders of $30.00 Convertible Exchangeable Preferred Stock have no
general voting rights but have the right to vote in certain events. Whenever
dividends have not been paid on such shares or any other class or series of
stock on a parity with such shares both as to dividends and as to the
distribution of assets upon liquidation ("Parity Shares") in an aggregate
amount equal to six quarterly dividends (whether or not consecutive), the
number of members of the Company's Board of Directors will be increased
by two, and the holders of such shares, voting separately as a class with the
holders of such Parity Shares, will be entitled to elect such two additional
directors. Such voting rights will continue until all dividends in default have
been paid in full.
Each holder of $30.00 Convertible Exchangeable Preferred Stock has the
right, at the holder's option, to convert any or all such shares into Common
Stock at any time at a ratio (subject to adjustment) of 19.873 shares of
Common Stock for each share of $30.00 Convertible Exchangeable Preferred
Stock. The $30.00 Convertible Exchangeable Preferred Stock is
exchangeable at the option of the Company, in whole but not in part, on any
dividend payment date for 6% Convertible Subordinated Debentures due
2012 at the rate of $500 principal amount of debentures for each preferred
share. If exchanged, commencing the first March 15 following the date of
initial issuance of the debentures, the Company is required to make annual
payments into a sinking fund in the amount of 5% of the aggregate principal
amount of debentures issued to provide for the redemption of the
debentures.
The $30.00 Convertible Exchangeable Preferred Stock is redeemable for
cash at any time at the option of the Company, in whole or in part. The
redemption price declines from the current redemption price of $509 per share
to $500 per share on and after March 15, 1997, plus unpaid dividends.
The $30.00 Convertible Exchangeable Preferred Stock is held by The
First National Bank of Boston, as depositary, and 3,450,000 depositary
shares have been issued of which 3,449,750 are outstanding and are listed on
the New York Stock Exchange. Each depositary share represents one-tenth
of a preferred share, with the holder entitled, proportionately, to all the
rights and preferences of the underlying preferred stock.<PAGE>
DESCRIPTION OF DEPOSITARY SHARES
The following description sets forth certain general terms and provisions
of the Depositary Shares to which any Prospectus Supplement may relate.
The particular terms of the Depositary Shares offered by any Prospectus
Supplement and the extent, if any, to which such general provisions do not
apply to the Depositary Shares so offered will be described in the
Prospectus Supplement relating to such Depositary Shares.
Depositary Shares may be issued from time to time under a Deposit Agreement
(the "Deposit Agreement") between the Company and a depositary (the
"Depositary") to be identified in the applicable prospectus supplement. The
terms of the Depositary Shares will be stated in the Deposit Agreement. A copy
of the proposed form of Deposit Agreement has been filed as an exhibit to the
Registration Statement of which this Prospectus is a part.
GENERAL
The Company may, at its option, elect to offer fractional shares of
Preferred Stock rather than full shares of Preferred Stock. In the event
such option is exercised, the Company will issue to the public receipts for
Depositary Shares ("Depositary Receipts"), each of which will represent a
fraction (to be set forth in the Prospectus Supplement relating to a
particular series of the Preferred Stock) of a share of a particular series of
the Preferred Stock as described below.
The shares of any series of the Preferred Stock represented by
Depositary Shares will be deposited under the Deposit Agreement which will
be a separate agreement among the Company, a bank or trust company
selected by the Company to act as the Depositary and the holders from time to
time of the Depositary Receipts. Subject to the terms of the Deposit
Agreement, each owner of a Depositary Share will in general be entitled to
all the rights and preferences of the Preferred Stock represented thereby
(including dividend, voting, redemption and liquidation rights), in proportion
to the applicable fraction of a share of Preferred Stock represented by such
Depositary Share.
The Depositary Shares relating to any series of the Preferred Stock will
be evidenced by Depositary Receipts issued pursuant to the related Deposit
Agreement. Depositary Receipts will be distributed to those persons
purchasing such Depositary Shares in accordance with the terms of the
offering made by the related Prospectus Supplement.
Upon surrender of Depositary Receipts at the office of the Depositary
and upon payment of the charges provided in the Deposit Agreement and
subject to the terms thereof, a holder of Depositary Receipts is entitled to
have the Depositary deliver to such holder the whole shares of Preferred
Stock and any money or other property represented by the Depositary
Shares evidenced by the surrendered Depositary Receipts. Owners of
Depositary Shares will be entitled to receive only whole shares of Preferred
Stock. In no event will fractional shares of Preferred Stock be distributed by
the Depositary.
DIVIDENDS AND OTHER DISTRIBUTIONS
The Depositary will distribute all cash dividends or other cash
distributions received in respect of the Preferred Stock to the record holders
of Depositary Receipts relating to such Preferred Stock in proportion,
insofar as practicable, to the respective numbers of Depositary Shares
evidenced by such Depositary Receipts held by such holders on the relevant
record date. The Depositary will distribute only such amount, however, as
can be distributed without attributing to any holder of Depositary Receipts a
fraction of one cent, and any balance not so distributed will be added to and
treated as part of the next sum received by the Depositary for distribution
to record holders of Depositary Receipts then outstanding.
In the event of a distribution other than in cash, the Depositary will
distribute such amounts of the securities or property received by it as are,
as nearly as practicable, in proportion to the respective numbers of
Depositary Shares evidenced by the Depositary Receipts held by such
holders on the relevant record date, unless the Depositary determines that it
is not feasible to make such distribution, in which case the Depositary may,
with the approval of the Company, adopt such method as it deems equitable
and practicable for the purpose of effecting such distribution, including the
sale of such securities or property and distribution of the net proceeds from
such sale to such holders.
The Deposit Agreement will also contain provisions relating to the
manner in which any subscription or similar rights offered by the Company
to holders of the Preferred Stock shall be made available to holders of
Depositary Receipts.
The amount distributed in all of the foregoing cases will be reduced by
any amounts required to be withheld by the Company or the Depositary on
account of taxes and governmental charges.
REDEMPTION OF DEPOSITARY SHARES
If a series of the Preferred Stock represented by Depositary Shares is
subject to redemption, the Depositary Shares will be redeemed from the
proceeds received by the Depositary resulting from the redemption, in whole
or in part, of such series of the Preferred Stock held by the Depositary. The
Depositary will mail notice of redemption within a specified period prior to
the date fixed for redemption to the record holders of the Depositary
Receipts evidencing the Depositary Shares to be so redeemed at their
respective addresses appearing in the Depositary's books. The redemption
price per Depositary Share will be equal to the applicable fraction of the
redemption price per share payable with respect to such series of the
Preferred Stock plus all money and other property, if any, payable with
respect to such Depositary Share, including all amounts payable by the
Company in respect of any accumulated but unpaid dividends. Whenever the
Company redeems shares of Preferred Stock held by the Depositary, the
Depositary will redeem as of the same redemption date the number of
Depositary Shares representing the shares of Preferred Stock so redeemed.
If less than all the Depositary Shares are to be redeemed, the Depositary
Shares to be redeemed will be selected by lot or pro rata as may be
determined by the Depositary.
After the date fixed for redemption, the Depositary Shares so called for
redemption will no longer be deemed to be outstanding and all rights of the
holders of Depositary Receipts evidencing such Depositary Shares will
cease, except the right to receive the moneys payable upon such redemption
and any money or other property to which such holders were entitled upon
such redemption upon surrender to the Depositary of the Depositary
Receipts evidencing such Depositary Shares.
VOTING THE PREFERRED STOCK
Upon receipt of notice of any meeting at which the holders of the
Preferred Stock are entitled to vote, the Depositary will mail the
information contained in such notice of meeting to the record holders of the
Depositary Receipts evidencing the Depositary Shares relating to such
Preferred Stock. Each record holder of such Depositary Receipts on the
record date (which will be the same date as the record date for the
Preferred Stock) will be entitled to instruct the Depositary as to the
exercise of the voting rights pertaining to the number of shares of the
Preferred Stock represented by the Depositary Shares evidenced by such
holder's Depositary Receipts. The Depositary will endeavor, insofar as
practicable, to vote the number of shares of the Preferred Stock represented
by all Depositary Shares as to which any particular voting instructions are
received, and the Company will agree to take all action which may be
deemed necessary by the Depositary in order to enable the Depositary to do
so. The Depositary will abstain from voting shares of the Preferred Stock to
the extent it does not receive specific instructions from the holders of
Depositary Receipts evidencing Depositary Shares representing such
Preferred Stock.
AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT
The form of Depositary Receipt evidencing the Depositary Shares
relating to any series of Preferred Stock and any provision of the related
Deposit Agreement may at any time and from time to time be amended by
agreement between the Company and the Depositary. However, any
amendment which imposes or increases any fees, taxes or charges upon
holders of Depositary Shares or Depositary Receipts relating to any series of
Preferred Stock (other than taxes and other governmental charges, fees and
other expenses payable by such holders as stated in the relevant Prospectus
Supplement) or which otherwise prejudices any substantial existing right of
such holders will not take effect as to outstanding Depositary Shares until
the expiration of 90 days after notice of such amendment has been mailed to
the record holders of outstanding Depositary Shares.
Whenever directed by the Company, the Depositary will terminate the
Deposit Agreement by mailing notice of such termination to the owners of
all outstanding Depositary Shares at least 60 days prior to the date of
termination. The Depositary may likewise terminate the Deposit Agreement
at any time 60 days after the Depositary shall have delivered to the
Company a written notice of its election to resign and if a successor
depositary shall not theretofore have been appointed and accepted its
appointment. If any Depositary Shares remain outstanding after the date of
termination, the Depositary thereafter will discontinue the transfer of
Depositary Receipts, will suspend the distribution of dividends to the
owners thereof, and will not give any further notices (other than notice of
such termination) or perform any further acts under the Deposit Agreement
except that the Depositary will continue (i) to collect dividends on the
Preferred Shares and any other distributions with respect thereto and (ii) to
deliver Preferred Shares together with such dividends and distributions, and
the net proceeds of any sales of rights, preferences, privileges or other
property, without liability for interest, in exchange for Depositary Shares
surrendered. At any time after the expiration of two years from the date of
termination, the Depositary may sell the Preferred Shares then held by it,
at public or private sales, at such place or places and upon such terms as it
deems proper and may thereafter hold the net proceeds of any such sale,
together with any money and other property then held by it, without
liability for interest, for the pro rata benefit of the owners of Depositary
Shares which shall not theretofore have been surrendered. The Company
does not intend to terminate the Deposit Agreement or to permit the
resignation of the Depositary without appointing a successor depositary.
GENERAL
The Depositary will make available for inspection by holders of
Depositary Shares all reports and communications from the Company which
are delivered to the Depositary and made generally available to the holders
of Preferred Shares.
The Company will pay all transfer and other taxes and governmental
charges arising solely from the existence of the depositary arrangements.
The Company will pay charges of the Depositary in connection with the
initial deposit of the Preferred Stock and the initial issuance of the
Depositary Receipts evidencing the Depositary Shares, any redemption of
the Preferred Stock and any withdrawals of Preferred Stock by the holders
of Depositary Shares. Holders of Depositary Shares will pay transfer and
other taxes and governmental charges and such other charges as are
expressly provided in the Deposit Agreement to be for their accounts.
The Deposit Agreement will contain provisions relating to adjustments in
the fraction of a share of Preferred Stock represented by a Depositary Share
in the event of a change in stated value, split-up, combination or other
reclassification of the Preferred Stock or upon any recapitalization, merger
or sale of substantially all of the assets of the Company.
Neither the Depositary nor the Company will be liable if it is prevented
or delayed by law or any circumstance beyond its control in performing its
obligations under the Deposit Agreement. The obligations of the Company
and the Depositary under the Deposit Agreement are limited to performance
in good faith of their duties thereunder and they are not obligated to
prosecute or defend any legal proceeding in respect of any Depositary
Shares or Preferred Shares unless satisfactory indemnity is furnished. They
may rely upon advice of or information from counsel, accountants or other
persons believed to be competent and on documents believed to be genuine.
The Depositary and the Depositary's agents may own and deal in any
class of securities of the Company and its affiliates and in Depositary
Shares. The Depositary may also act as transfer agent or registrar of any of
the securities of the Company and its affiliates, may loan money to the
Company and its affiliates and may engage in any other business with or for
the Company and its affiliates.
The Depositary may at any time resign or be removed by the Company,
effective upon the acceptance by its successor of its appointment.
DESCRIPTION OF COMMON STOCK
The Company has authority to issue 250,000,000 shares of Common Stock, par
value $0.01 per share, and 1,000,000 shares of preferred stock, $0.10 par value
per share. As of March 30, 1994, the Company had 92,979,749 shares of Common
Stock and 344,975 shares of Preferred Stock outstanding, of which 171,085 shares
of Common Stock were owned by the Company as treasury stock. See "Description of
Preferred Stock." The holders of Common Stock are entitled to one vote per share
on all matters to be voted on by shareholders, including the election of
directors. Shareholders are not entitled to cumulative voting rights, and,
accordingly, the holders of a majority of the shares voting for the election of
directors can elect the entire Board if they choose to do so and, in that event,
the holders of the remaining shares will not be able to elect any person to the
Board of Directors.
The holders of Common Stock are entitled to receive such dividends, if
any, as may be declared from time to time by the Board of Directors, in its
discretion, from funds legally available therefor and subject to prior dividend
rights of holders of any shares of preferred stock which may be outstanding.
However, the terms of the Company's current credit agreement prohibit the
Company from paying cash dividends on its Common Stock. Upon liquidation
or dissolution of the Company subject to prior liquidation rights of the
holders of preferred stock, the holders of Common Stock are entitled to
receive on a pro rata basis the remaining assets of the Company available
for distribution. Holders of Common Stock have no preemptive or other
subscription rights, and there are no conversion rights or redemption or
sinking fund provisions with respect to such shares. All outstanding shares
of Common Stock are, and all shares being offered by this Prospectus will
be, fully paid and not liable to further calls or assessment by the Company.
RIGHTS AGREEMENT
The Company adopted a stockholder rights plan (the "Rights Plan") in
February 1990. The plan is intended to enhance long term stockholder value
and to protect stockholders from unfair or coercive takeover practices. In
accordance with this plan, the Company paid a dividend of one preferred
stock purchase right on each outstanding share of Common Stock pursuant
to a Rights Agreement (the "Rights" and the "Rights Agreement"). Each
Right entitles the registered holder to purchase from the Company one
one-thousandth of a share of Series A Junior Participating Preferred Stock,
$0.10 par value, for a price of $65.00, subject to adjustment. Although the
Rights are not intended to prevent a takeover of the Company at a full and
fair price, they may have certain anti-takeover effects. They may deter an
attempt to acquire the Company in a manner which seeks to deprive the
Company's stockholders of the full and fair value of their investment and
may deter attempts by significant stockholders to take advantage of the
Company and its stockholders through certain selfdealing transactions. The
Rights may cause substantial dilution to a person or group that acquires or
attempts to acquire the Company unless the Rights are redeemed by the
Board of Directors. Accordingly, the Rights should encourage any potential
acquiror to seek to negotiate with the Board of Directors of the Company.
Unless the approval is first obtained from the Board of Directors, the Rights
may deter transactions, including tender offers, which the majority of
stockholders may believe are beneficial to them. The Rights are redeemable
by the Company and expire on December 31, 2000. Under the Rights
Agreement, one Right will be issued with each share of Common Stock
issued by the Company.
A stockholder of the Company has notified the Company that it intends
to offer a proposal regarding the Rights Plan for consideration and approval
by the stockholders of the Company at its Annual Meeting of Stockholders
to be held on April 27, 1994. The proposal, if approved by the affirmative
vote of a majority of the shares present in person or represented by proxy
and entitled to vote on the matter, would request the Board of Directors of
the Company to redeem the Rights unless their issuance is approved by a
binding vote of the stockholders. The Board of Directors of the Company has
recommended that stockholders vote against the proposal. Even if approved,
the proposal would not, by its terms, require the Company to redeem the
Rights or cause them to be redeemed, but would request that the
Board of Directors redeem the Rights unless their issuance is approved by a
binding vote of the stockholders.
DESCRIPTION OF WARRANTS
The following description sets forth certain general terms and provisions
of the Warrants to which any Prospectus Supplement may relate. The
particular terms of the Warrants offered by any Prospectus Supplement
and the extent, if any, to which such general provisions do not apply
to the Warrants so offered will be described in the Prospectus
Supplement relating to such warrants.
Any Warrants offered pursuant to this Prospectus will be warrants to
purchase shares of Common Stock. The following statements with respect to
the Warrants are summaries of, and subject to, the detailed provisions of a
warrant agent agreement ("Warrant Agent Agreement") to be entered into
by the Company and a warrant agent to be selected at the time of issue (the
"Warrant Agent") which Warrant Agent Agreement may include or
incorporate by reference standard warrant provisions substantially in the
form of the Standard Common Stock Warrant Agent Provisions filed as an
exhibit to the Registration Statement.
GENERAL
The Warrants, evidenced by warrant certificates (the "Warrant
Certificates"), may be issued under the Warrant Agent Agreement
independently or together with any other Securities offered by any
Prospectus Supplement and may be attached to or separate from such other
Securities. If Warrants are offered, the related Prospectus Supplement will
describe the terms of the Warrants, including the following: (1) the offering
price, if any; (2) the number of shares of Common Stock purchasable upon
exercise of one Warrant and the initial price at which such shares may be
purchased upon exercise; (3) the date on which the right to exercise the
Warrants shall commence and the date on which such right shall expire; (4)
federal income tax consequences; (5) call provisions, if any; (6) the
antidilution provisions of the Warrants; and (7) any other terms of the
Warrants. The shares of Common Stock issuable upon exercise of the
Warrants will, when issued in accordance with the Warrant Agent
Agreement, be fully paid and nonassessable.
EXERCISE OF WARRANTS
Warrants may be exercised by surrendering to the Warrant Agent the
Warrant Certificate signed by the warrantholder, or its duly authorized
agent, indicating the warrantholder's election to exercise all or a portion of
the Warrants evidenced by the Warrant Certificate. Surrendered Warrant
Certificates shall be accompanied by payment of the aggregate exercise price
of the Warrants to be exercised, as set forth in the related Prospectus
Supplement, which payment may be made in the form of cash or a check
equal to the exercise price. A certificate or certificates evidencing duly
exercised Warrants will be delivered by the Warrant Agent to the transfer
agent for the Common Stock. Upon receipt thereof, the transfer agent shall
deliver or cause to be delivered to, or upon the written order of, the
exercising warrantholder, a certificate representing the number of shares of
Common Stock purchased. If fewer than all of the Warrants evidenced by
any Warrant Certificate are exercised, the Warrant Agent shall deliver to
the exercising warrantholder a new Warrant Certificate or Warrant
Certificates representing the unexercised Warrants.
ANTIDILUTION PROVISIONS
The exercise price payable and the number of shares of Common Stock
purchasable upon the exercise of each Warrant will be subject to adjustment
in certain events, including the issuance of a stock dividend to holders of
Common Stock or a stock split, reverse stock split, combination, subdivision
or reclassification of Common Stock. In lieu of adjusting the number of
shares of Common Stock purchasable upon exercise of each Warrant, the
Company may elect to adjust the number of Warrants. No adjustments in
the number of shares purchasable upon exercise of the Warrants will be
required until cumulative adjustments require an adjustment of at least 1%
thereof. The Company may, at its option, reduce the exercise price at any
time. No fractional shares will be issued upon exercise of Warrants, but the
Company will pay the cash value of any fractional shares otherwise issuable.
Notwithstanding the foregoing, in case of any consolidation, merger, or sale
or conveyance of the property of the Company as an entirety or
substantially as an entirety, the holder of each outstanding Warrant shall
have the right to the kind and amount of shares of stock and other securities
and property (including cash) receivable by a holder of the number of shares
of Common Stock into which such Warrants were exercisable immediately
prior thereto.
NO RIGHTS AS STOCKHOLDERS
Holders of Warrants will not be entitled, by virtue of being such holders,
to vote, to consent, to receive dividends, to receive notice as stockholders
with respect to any meeting of stockholders for the election of directors of
the Company or any other matter, or to exercise any rights whatsoever as
stockholders of the Company.
PLAN OF DISTRIBUTION
The Company may sell the Securities to one or more underwriters for
public offering and sale by them or may sell the Securities to investors
directly or through agents. Any such underwriter or agent involved in the
offer and sale of Securities will be named in the applicable Prospectus
Supplement. The Company has reserved the right to sell Securities directly
to investors on its own behalf in those jurisdictions where and in such
manner as it is authorized to do so.
Underwriters may offer and sell Securities at a fixed price or prices,
which may be changed, at market prices prevailing at the time of sale, at
prices related to such prevailing market prices or at negotiated prices. The
Company or underwriters also may offer and sell Securities in exchange for
one or more of its outstanding issues of the Securities or other securities.
The Company also may, from time to time, authorize dealers, acting as the
Company's agents, to offer and sell Securities upon the terms and conditions
as are set forth in the applicable Prospectus Supplement. In connection with
the sale of Securities, underwriters may receive compensation from the
Company in the form of underwriting discounts or commissions and may also
receive commissions from purchasers of the Securities for whom they may
act as agent. Underwriters may sell Securities to or through dealers, and
such dealers may receive compensation in the form of discounts, concessions
or commissions from the underwriters and/or commissions from the
purchasers for whom they may act as agent.
Any underwriting compensation paid by the Company to underwriters or
agents in connection with the offering of Securities, and any discounts,
concessions or commissions allowed by underwriters to participating dealers,
will be set forth in the applicable Prospectus Supplement. Dealers and
agents participating in the distribution of Securities may be deemed to be
underwriters, and any discounts and commissions received by them and any
profit realized by them on resale of the Securities may be deemed to be
underwriting discounts and commissions. Underwriters, dealers and agents
may be entitled, under agreements entered into with the Company, to
indemnification against and contribution toward certain civil liabilities
including liabilities under the Securities Act of 1933.
Securities may also be offered and sold, if so indicated in the Prospectus
Supplement, in connection with a remarketing upon their purchase, in
accordance with a redemption or repayment pursuant to their terms, or
otherwise, by one or more firms ("remarketing firms"), acting as principals
for their own accounts or as agents for the Company. Any remarketing firm
will be identified and the terms of its agreement, if any, with the Company
and its compensation will be described in the Prospectus Supplement.
Remarketing firms may be entitled under agreements which may be entered
into with the Company to indemnification against and contribution toward
certain liabilities, including liabilities under the Securities Act of 1933, and
may be customers of, engage in transactions with or perform services for the
Company in the ordinary course of business.
If so indicated in the Prospectus Supplement, the Company will
authorize dealers acting as the Company's agents to solicit offers by certain
institutions to purchase the Securities from the Company at the public
offering price set forth in the applicable Prospectus Supplement pursuant to
delayed delivery contracts ("Contracts") providing for payment and delivery
on the date or dates stated in such Prospectus Supplement. Each Contract
will be for an amount not less than, and the aggregate principal amount of
the Securities sold pursuant to Contracts shall not be less nor more than,
the respective amounts stated in the applicable Prospectus Supplement.
Institutions with whom Contracts, when authorized, may be made include
commercial and savings banks, insurance companies, pension funds,
investment companies, educational and charitable institutions, and other
institutions but will in all cases be subject to the approval of the Company.
Contracts will not be subject to any conditions except (i) the purchase by an
institution of the Securities covered by its Contract shall not at the time of
delivery be prohibited under the laws of any jurisdiction in the United
States to which such institution is subject, and (ii) if the Securities are
being sold to underwriters, the Company shall have sold to such underwriters
the total principal amount of such Securities less the principal amount
thereof covered by Contracts.
LEGAL MATTERS
Certain legal matters with respect to the Offered Securities will be
passed upon by Bronson, Bronson & McKinnon, San Francisco, California,
counsel for the Company, and for any agents or underwriters by Latham &
Watkins, San Francisco, California.
EXPERTS
The consolidated financial statements and related schedules of Advanced
Micro Devices, Inc. incorporated by reference in the Company's Annual
Report (Form 10-K) for the year ended December 26, 1993, have been
audited by Ernst & Young, independent auditors, as set forth in their report
thereon (which contains an explanatory paragraph with respect to the
lawsuits mentioned in Note 12 to the consolidated financial statements)
included therein and incorporated herein by reference. Such consolidated
financial statements are incorporated herein by reference in reliance upon
such report given upon the authority of such firm as experts in accounting
and auditing.
<PAGE>
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NO DEALER, SALESPERSON OR OTHER INDIVIDUAL PERSON HAS BEEN AUTHORIZED TO
GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATIONS NOT CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS, AND, IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED BY THE COMPANY OR ANY AGENT, DEALER OR UNDERWRITER. THIS
PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO
BUY, TO ANY PERSON IN ANY JURISDICTION WHERE SUCH OFFER OR SOLICITATION WOULD
BE UNLAWFUL. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE
HEREUNDER SHALL CREATE ANY IMPLICATION THAT THE INFORMATION CONTAINED HEREIN
IS CORRECT AS OF ANY TIME SUBSEQUENT TO ITS DATE.
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TABLE OF CONTENTS
PAGE
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PROSPECTUS
Available Information ................. 2
Incorporation of Certain Documents
by Reference ........................ 2
The Company ........................... 3
Investment Considerations ............ 3
Use of Proceeds ....................... 4
Ratios of Earnings to Fixed Charges
and Earnings to Combined Fixed
Charges and Preferred Stock
Dividends .......................... 4
General Description of Securities .... 4
Description of Debt Securities ........ 5
Description of Preferred Stock ....... 11
Description of Depositary Shares .... 14
Description of Common Stock ......... 17
Description of Warrants ............... 18
Plan of Distribution .................. 19
Legal Matters ......................... 20
Experts ............................... 20
$ 400,000,000
ADVANCED MICRO DEVICES, INC.
DEBT SECURITIES
PREFERRED STOCK
DEPOSITARY SHARES
COMMON STOCK
WARRANTS TO PURCHASE COMMON STOCK
RRANTS TO PURCHASE COMMON STOCK
---------------------
PROSPECTUS
---------------------
, 1994
<PAGE>
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Securities and Exchange Commission Registration Fee .... $137,931.03
*Rating Agency Fees...................................... 150,000.00
*Printing Expenses ...................................... 28,000.00
*Blue Sky Fees and Expenses (including legal fees) ...... 5,000.00
*Trustee Fees and Expenses ............................. 35,000.00
*Fees of Depositary and Transfer Agent .................. 4,000.00
*Legal Fees ............................................. 175,000.00
*Accountants' Fees ...................................... 80,000.00
*Miscellaneous........................................... 15,000.00
----------
Total ................................................. $629,931.03
- ----------
* Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Delaware Corporation Law provides for the indemnification of
directors and officers under certain conditions. The By-Laws of the
Company permit indemnification to the maximum extent permitted by
Delaware law. In addition, the Company is bound by agreements with
certain of its directors and officers which obligate the Company to indemnify
such persons in various circumstances. Insofar as indemnification for
liabilities arising under the Securities Act of 1933, as amended (the "Act"),
may be permitted to directors, officers and controlling persons of the
Company pursuant to the foregoing provisions, or otherwise, the Company
has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Company of expenses incurred or paid by a director, officer or controlling
person of the Company in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Company will, unless in
the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act
and will be governed by the final adjudication of such issue.
The Company has in effect a directors and officers liability insurance
policy indemnifying the directors and officers of the Company and the
directors and officers of the Company's subsidiaries within a specific limit for
certain liabilities incurred by them, including liabilities under the Act. The
Company pays the entire premium of this policy.
The Company's Certificate of Incorporation contains a provision which
eliminates the personal liability of directors of the Company for monetary
damages for certain breaches of fiduciary duty, as permitted by Section
102(b)(7) of the General Corporation Law of Delaware.
<PAGE>
ITEM 16. EXHIBITS
EXHIBIT
NUMBER
- --------
4.1....Certificate of Incorporation, as amended, filed as Exhibit 3.1 to the
Company's Annual Report on Form 10-K for the fiscal period ended
December 27, 1987, is hereby incorporated herein by reference.
4.2....Certificate of Designations for Series A Junior Participating Preferred
Stock, filed as Exhibit 3.3 to the Company's Annual Report on Form 10-K
for the fiscal period ended December 31, 1989, is hereby incorporated
herein by reference.
4.3....By-Laws, as amended, filed as Exhibit 3.4 to the Company's Annual Report
on Form 10-K for the fiscal period ended December 27, 1987, are hereby
incorporated herein by reference.
4.4....Rights Agreement, dated as of February 7, 1990, between the Company and
Bank of America N.T. & S.A., filed as Exhibit 1 to the Company's
Registration Statement on Form 8-A filed on February 21, 1990, is hereby
incorporated herein by reference.
4.5....Rights Certificate relating to the Company's shareholder rights plan
(attached as Exhibit B to Exhibit 4.4 hereto).
4.6 ...Form of Indenture Agreement.
4.7 ...Form of Deposit Agreement.
4.8 ...Form of Depositary Receipt (attached as Exhibit A to Deposit Agreement
included as Exhibit 4.7 hereto).
4.9 ...Standard Common Stock Warrant Agent Provisions.
5 .....Opinion of Bronson, Bronson & McKinnon.
12.....Statement of Computation of Ratios of Earnings to Fixed Charges and
Earnings to Fixed Charges and Preferred Stock Dividends.
23.1...Consent of Bronson, Bronson & McKinnon (included in its opinion filed as
Exhibit 5 hereto).
23.2...Consent of Ernst & Young.
24.....Powers of Attorney (See page II-4).
25.....Statement of Eligibility and Qualification of Trustee under Trust
Indenture Act of 1939.
ITEM 17. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set
forth in the registration statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
provided, however, that the information required to be included in a
post-effective amendment by paragraphs (a)(1)(i) and (a)(1)(ii) above may be
contained in periodic reports filed by the registrant pursuant to Section 13
or 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(4) That, for the purpose of determining any liability under the
Securities Act of 1933, each filing of the Registrant's annual report
pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act
of 1934 (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Securities Exchange Act
of 1934) that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof;
(5) That, for the purpose of determining any liability under the
Securities Act of 1933, the information omitted from the form of
prospectus filed as part of this Registration Statement in reliance upon
Rule 430A and contained in the form of prospectus filed by the registrant
pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act of
1933 shall be deemed to be part of this Registration Statement as of the
time it was declared effective;
(6) That, for the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that contains a
form of prospectus shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof; and
(7) To file an application for the purpose of determining the eligibility
of the trustee to act under Subsection (a) of Section 310 of the Trust
Indenture Act (the "Act") in accordance with the rules and regulations
prescribed by the Commission under Section 305(b)(2) of the Act.
(b) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant, pursuant to the provisions referred to above at Item 15, or
otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act of 1933 and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act of 1933 and will be
governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Sunnyvale and the State of California, on this 31st
day of March, 1994. ADVANCED MICRO DEVICES, INC.
By /s/ Marvin D. Burkett
------------------------------------
MARVIN D. BURKETT
Senior Vice President
Chief Administrative Officer and Secretary
Chief Financial Officer and Treasurer
POWER OF ATTORNEY
Know All Men By These Presents, that each person whose signature appears
below constitutes and appoints W.J. Sanders III and Marvin D. Burkett, and each
of them, his true and lawful attorneys-in-fact, and agents, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement and to file the same, with all
exhibits thereto and documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each
of them, full power and authority to do and to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them, or their or his substitute or substitutes, may lawfully
do so or cause to be done by virtue hereof.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED:
SIGNATURE TITLE DATE
--------- ----- ----
/s/ W.J. SANDERS III Chairman of the Board and Chief March 31, 1994
- ------------------------ Executive Officer (Principal
(W.J. SANDERS III) Executive Officer)
/s/ ANTHONY B. HOLBROOK Vice Chairman and Chief Technical March 31, 1994
- ------------------------ Officer
(ANTHONY B. HOLBROOK)
/s/ RICHARD PREVITE Director, President and Chief March 31, 1994
- ------------------------ Operating Officer
(RICHARD PREVITE)
/s/ CHARLES M. BLALACK Director March 31, 1994
- -------------------------
(CHARLES M. BLALACK)
/s/ R. GENE BROWN Director March 31, 1994
- -------------------------
(R. GENE BROWN)
/s/ JOE L. ROBY Director March 31, 1994
- -------------------------
(JOE L. ROBY)
/s/ MARVIN D. BURKETT Senior Vice President, Chief March 31, 1994
- ------------------------- Administrative Officer and
(MARVIN D. BURKETT) Secretary, Chief Financial
Officer and Treasurer
(Principal Financial Officer)
/s/ LARRY R. CARTER Vice President and Corporate March 31, 1994
- ------------------------- Controller (Principal Accounting
(LARRY R. CARTER) Officer)
<PAGE>
CONSENT OF NOMINEE FOR DIRECTOR
The undersigned has been nominated for election as a Director of
Advanced Micro Devices, Inc. (the "Corporation") and is named as a
nominee for Director in the Proxy Statement of the Corporation with
respect to its Annual Meeting of stockholders to be held April 27, 1994. The
Proxy Statement is incorporated by reference in the Registration Statement
(Form S-3) and related Prospectus of the Corporation. The undersigned
consents to the reference to him as a nominee for Director contained in the
Registration Statement and the related Prospectus of the Corporation by
means of the incorporation by reference therein of the Proxy Statement.
/s/ Friedrich Baur
-------------------------------
FRIEDRICH BAUR
March 31, 1994
<PAGE>
CONSENT OF NOMINEE FOR DIRECTOR
The undersigned has been nominated for election as a Director of
Advanced Micro Devices, Inc. (the "Corporation") and is named as a
nominee for Director in the Proxy Statement of the Corporation with
respect to its Annual Meeting of stockholders to be held April 27, 1994. The
Proxy Statement is incorporated by reference in the Registration Statement
(Form S-3) and related Prospectus of the Corporation. The undersigned
consents to the reference to him as a nominee for Director contained in the
Registration Statement and the related Prospectus of the Corporation by
means of the incorporation by reference therein of the Proxy Statement.
/s/ Leonard Silverman
----------------------------------
LEONARD SILVERMAN
March 31, 1994
<PAGE>
<TABLE>
INDEX TO EXHIBITS
<CAPTION>
Sequentially
Numbered
Number Exhibit Page
------ ---------- ----------
<S> <C> <C>
4.1....Certificate of Incorporation, as amended, filed as Exhibit 3.1 to the
Company's Annual Report on Form 10-K for the fiscal period ended
December 27, 1987, is hereby incorporated herein by reference.
4.2....Certificate of Designations for Series A Junior Participating Preferred
Stock, filed as Exhibit 3.3 to the Company's Annual Report on Form 10-K
for the fiscal period ended December 31, 1989, is hereby incorporated
herein by reference.
4.3....By-Laws, as amended, filed as Exhibit 3.4 to the Company's Annual
Report on Form 10-K for the fiscal period ended December 27, 1987, are
hereby incorporated herein by reference.
4.4....Rights Agreement, dated as of February 7, 1990, between the Company and
Bank of America N.T. & S.A., filed as Exhibit 1 to the Company's
Registration Statement on Form 8-A filed on February 21, 1990, is
hereby incorporated herein by reference.
4.5....Rights Certificate relating to the Company's shareholder rights plan
(attached as Exhibit B to Exhibit 4.4 hereto).
4.6....Form of Indenture Agreement.
4.7....Form of Deposit Agreement.
4.8....Form of Depositary Receipt (attached as Exhibit A to Deposit Agreement
included as Exhibit 4.7 hereto).
4.9 ...Standard Common Stock Warrant Agent Provisions.
5......Opinion of Bronson, Bronson & McKinnon.
12......Statement of Computation of Ratios of Earnings to Fixed Charges and
Earnings to Fixed Charges and Preferred Stock Dividends.
23.1 ...Consent of Bronson, Bronson & McKinnon (included in its opinion filed
as Exhibit 5 hereto).
23.2....Consent of Ernst & Young.
24......Powers of Attorney (See page II-4).
25......Statement of Eligibility and Qualification of Trustee under Trust
Indenture Act of 1939.
</TABLE>
ADVANCED MICRO DEVICES, INC.,
as Issuer
and
[ ],
as Trustee
-----------------------------
INDENTURE
dated as of ___________, 1994
-----------------------------
<PAGE>
CROSS-REFERENCE TABLE*
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
- --------------- ------------------
310(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(b) . . . . . . . . . . . . . . . . . . . . . . 7.08; 7.10
(c) . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
311(a) . . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(c) . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
312(a) . . . . . . . . . . . . . . . . . . . . . . . . . 2.05
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 10.03
(c) . . . . . . . . . . . . . . . . . . . . . . . . . 10.03
313(a) . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
(c) . . . . . . . . . . . . . . . . . . . . . . 7.06; 10.02
(d) . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
314(a) . . . . . . . . . . . . . . . . . . . . . . 4.03; 10.02
(b) . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . 10.04
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . 10.04
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . N.A.
(d) . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(e) . . . . . . . . . . . . . . . . . . . . . . . . . 10.05
(f) . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
315(a) . . . . . . . . . . . . . . . . . . . . . . 7.01(b)(ii)
(b) . . . . . . . . . . . . . . . . . . . . . . 7.05; 10.02
(c) . . . . . . . . . . . . . . . . . . . . . . . . 7.01(a)
(d) . . . . . . . . . . . . . . . . . . . . . . . . 7.01(d)
(e) . . . . . . . . . . . . . . . . . . . . . . . . . 6.11
316(a)(last sentence) . . . . . . . . . . . . . . . . . 2.09
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . 6.05
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . 6.04
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . N.A.
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 6.07
(c) . . . . . . . . . . . . . . . . . . . . . . 2.13; 9.03
317(a)(1) . . . . . . . . . . . . . . . . . . . . . . . 6.08
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . 6.09
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 2.04
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . 10.01
(b) . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(c) . . . . . . . . . . . . . . . . . . . . . . . . . 10.01
N.A. means not applicable.
____________________________
*THIS CROSS-REFERENCE TABLE IS NOT PART OF THE INDENTURE.
<PAGE>
TABLE OF CONTENTS
Page
-----
ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE . . . 1
Section 1.01. Certain Definitions. . . . . . . . 1
Section 1.02. Other Definitions. . . . . . . . . 4
Section 1.03. Incorporation by Reference of
Trust Indenture Act. . . . . . . . 4
Section 1.04. Rules of Construction. . . . . . . 4
ARTICLE 2 THE SECURITIES . . . . . . . . . . . . . . . . . 5
Section 2.01. Unlimited In Amount, Issuable In
Series, Form and
Dating. . . . . . . . . . . . . . 5
Section 2.02. Execution and Authentication . . . 7
Section 2.03. Registrar and Paying Agent . . . . 7
Section 2.04. Paying Agent to Hold Money in
Trust . . . . . . . . . . . . . . . . . . . . . . 8
Section 2.05. Securityholder Lists . . . . . . . 8
Section 2.06. Transfer and Exchange . . . . . . 9
Section 2.07. Replacement Securities . . . . . . 9
Section 2.08. Outstanding Securities . . . . . 10
Section 2.09. Treasury Securities . . . . . . . 10
Section 2.10. Temporary Securities. . . . . . . 10
Section 2.11. Cancellation . . . . . . . . . . . 11
Section 2.12. Defaulted Interest . . . . . . . . 11
Section 2.13. Special Record Dates. . . . . . . 11
ARTICLE 3 REDEMPTION . . . . . . . . . . . . . . . . . . . 12
Section 3.01. Notices to Trustee . . . . . . . . 12
Section 3.02. Selection of Securities to Be
Redeemed . . . . . . . . . . . . . . . . . . . . 12
Section 3.03. Notice of Redemption . . . . . . . 13
Section 3.04. Effect of Notice of Redemption . . 14
Section 3.05. Deposit of Redemption Price . . . 14
Section 3.06. Securities Redeemed in Part . . . 14
ARTICLE 4 COVENANTS . . . . . . . . . . . . . . . . . . . . 14
Section 4.01. Payment of Securities . . . . . . 14
Section 4.02. Maintenance of Office or Agency. . 15
Section 4.03. Commission Reports . . . . . . . . 15
Section 4.04. Compliance Certificate . . . . . . 16
Section 4.05. Taxes . . . . . . . . . . . . . . 16
Section 4.06. Stay, Extension and Usury Laws . . 16
Section 4.07. Corporate Existence . . . . . . . 16
Section 4.08. Payments for Consent . . . . . . . 17
i<PAGE>
ARTICLE 5 SUCCESSORS . . . . . . . . . . . . . . . . . . . 17
Section 5.01. When Company May Merge, etc. . . . 17
Section 5.02. Successor Corporation Substituted . 18
ARTICLE 6 DEFAULTS AND REMEDIES . . . . . . . . . . . . . . 18
Section 6.01. Events of Default . . . . . . . . 18
Section 6.02. Acceleration . . . . . . . . . . . 19
Section 6.03. Other Remedies. . . . . . . . . . 20
Section 6.04. Waiver of Past Defaults. . . . . . 20
Section 6.05. Control by Majority. . . . . . . . 20
Section 6.06. Limitation on Suits. . . . . . . . 21
Section 6.07. Rights of Holders to Receive
Payment . . . . . . . . . . . . . . . . . . . . . 21
Section 6.08. Collection Suit by Trustee. . . . 21
Section 6.09. Trustee May File Proofs of
Claim. . . . . . . . . . . . . . . . . . . . . . 22
Section 6.10. Priorities. . . . . . . . . . . . 22
Section 6.11. Undertaking for Costs. . . . . . . 23
ARTICLE 7 TRUSTEE . . . . . . . . . . . . . . . . . . . . . 24
Section 7.01. Duties of Trustee. . . . . . . . . 24
Section 7.02. Rights of Trustee. . . . . . . . . 25
Section 7.03. Individual Rights of Trustee. . . 25
Section 7.04. Trustee's Disclaimer. . . . . . . 26
Section 7.05. Notice of Defaults. . . . . . . . 26
Section 7.06. Reports by Trustee to Holders . . 26
Section 7.07. Compensation and Indemnity . . . . 26
Section 7.08. Replacement of Trustee. . . . . . 27
Section 7.09. Successor Trustee by Merger, etc . 29
Section 7.10. Eligibility; Disqualification. . . 29
Section 7.11. Preferential Collection of Claims
Against Company. . . . . . . . . . . . . . . . . 29
ARTICLE 8 DISCHARGE OF INDENTURE . . . . . . . . . . . . . 29
Section 8.01. Termination of Company's
Obligations . . . . . . . . . . . . . . . . . . . 29
Section 8.02. Application of Trust Money . . . . 31
Section 8.03. Repayment to Company . . . . . . . 31
ARTICLE 9 SUPPLEMENTS, AMENDMENTS AND WAIVERS . . . . . . . 32
Section 9.01. Without Consent of Holders . . . . 32
Section 9.02. With Consent of Holders . . . . . 32
Section 9.03. Revocation and Effect of
Consents . . . . . . . . . . . . . . . . . . . . 33
Section 9.04. Notation on or Exchange of
Securities. . . . . . . . . . . . 34
Section 9.05. Trustee To Sign Amendments, etc. . 34
ii<PAGE>
ARTICLE 10 MISCELLANEOUS . . . . . . . . . . . . . . . 34
Section 10.01. Indenture Subject to Trust
Indenture Act. . . . . . . . . . . 34
Section 10.02. Notices . . . . . . . . . . . . . 34
Section 10.03. Communication By Holders With
Other Holders. . . . . . . . . . . 35
Section 10.04. Certificate and Opinion as to
Conditions Precedent. . . . . . . 35
Section 10.05. Statements Required in
Certificate or Opinion . . . . . . 36
Section 10.06. Rules by Trustee and Agents . . . 36
Section 10.07. Legal Holidays . . . . . . . . . . 36
Section 10.08. No Recourse Against Others. . . . 37
Section 10.09. Counterparts. . . . . . . . . . . 37
Section 10.10. Governing Law. . . . . . . . . . . 37
Section 10.11. Severability. . . . . . . . . . . 37
Section 10.12. Effect of Headings, Table of
Contents, etc. . . . . . . . . . . . . . . . . . 37
Section 10.13. Successors and Assigns. . . . . . 37
Section 10.14. No Interpretation of Other
Agreements . . . . . . . . . . . . . . . . . . . 37
iii<PAGE>
INDENTURE dated as of _____________, 1994 between Advanced Micro Devices,
Inc., a Delaware corporation (the "Company"), and ____________________________,
a ______________________, as Trustee (the "Trustee").
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness to be issued in one or more
series (the "Securities"), as herein provided, up to such principal amount as
may from time to time be authorized in or pursuant to one or more resolutions of
the Board of Directors or by supplemental indenture.
Each party agrees as follows for the benefit of the other party and for the
equal and ratable benefit of the Holders of each series of the Securities:
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01. Certain Definitions.
- -----------------------------------
"Affiliate" means any Person directly or indirectly controlling or
---------
controlled by or under direct or indirect common control with the Company. For
purposes of this definition, "control" (including, with correlative meanings,
the terms "controlling," "controlled by" and "under common control with"), as
used with respect to any Person, shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of such Person, whether through the ownership of voting stock, by
agreement or otherwise; provided, however, that beneficial ownership of 20% or
-----------------
more of the voting stock of a Person shall be deemed to be control.
"Agent" means any Registrar, Paying Agent, authenticating agent or
-----
co-Registrar.
"Board of Directors" means the Board of Directors of the Company or any
------------------
authorized committee thereof.
"Board Resolution" means a copy of a resolution certified by the Secretary
----------------
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification (and delivered to the Trustee, if appropriate).
"Commission" means the Securities and Exchange Commission.
----------
"Company" means the party named as such above until a successor replaces it
-------
pursuant to this Indenture and thereafter means the successor.
1<PAGE>
"Default" means any event that is, or with the passage of time or the
-------
giving of notice or both would be, an Event of Default.
"Exchange Act" means the Securities Exchange Act of 1934, as amended from
------------
time to time.
"GAAP" means generally accepted accounting principles set forth in the
----
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession, which are in effect from time to time.
"Global Security" shall mean a Security issued to evidence all or a part of
---------------
any series of Securities that is executed by the Company and authenticated and
delivered by the Trustee to a depositary or pursuant to such depositary's
instructions, all in accordance with this Indenture and pursuant to an Officer's
Certificate, which shall be registered as to principal and interest in the name
of such depositary or its nominee.
"Holder" or "Securityholder" means a Person in whose name a Security is
------ --------------
registered in the register of Securities kept by the Registrar.
"Indenture" means this Indenture, as amended or supplemented from time to
---------
time.
"Interest," when used with respect to an Original Issue Discount Security
--------
which by its terms bears interest only after maturity, means interest payable
after maturity.
"Officer" means the Chairman of the Board, the Chief Executive Officer,
-------
the President, the Chief Operating Officer, the Chief Financial Officer, any
Vice-President, the Treasurer, the Controller, the Secretary, any Assistant
Treasurer or any Assistant Secretary of the Company.
"Officers' Certificate" means a certificate signed by two Officers, one of
---------------------
whom must be the Chief Executive Officer, the President, the Chief Financial
Officer, the Treasurer or principal accounting officer of the Company.
"Opinion of Counsel" means a written opinion from legal counsel who is
------------------
reasonably acceptable to the Trustee. The counsel may be an employee of or
counsel to the Company or the Trustee.
"Original Issue Discount Security" means any Security which provides that
--------------------------------
an amount less than its principal amount is due and payable upon acceleration
after an Event of Default.
2<PAGE>
"Person" means any individual, corporation, partnership, joint venture,
------
association, limited liability company, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"principal" of a Security means the principal amount due on the stated
---------
maturity of the Security plus the premium, if any, on the Security.
"Securities" means the Securities authenticated and delivered under this
----------
Indenture.
"Securities Act" means the Securities Act of 1933, as amended from time to
--------------
time.
"Subsidiary" means any corporation or partnership of which the Company, or
----------
the Company and one or more Subsidiaries, or any one or more Subsidiaries,
directly or indirectly own (i) in the case of a corporation, voting securities
entitling the holders thereof to elect a majority of the directors, either at
all times or so long as there is no default or contingency which permits the
holders of any other class of securities to vote for the election of one or more
directors, or (ii) in the case of a partnership, at least a majority of the
general partnership interests and at least a majority of total outstanding
partnership interests.
"TIA" means the Trust Indenture Act of 1939, as amended from time to time,
---
and as in effect on the date of execution of this Indenture.
"Trustee" means the party named as such above until a successor becomes
-------
such pursuant to this Indenture and thereafter means or includes each party who
is then a trustee hereunder, and if at any time there is more than one such
party, "Trustee" as used with respect to the Securities of any series means the
Trustee with respect to Securities of that series. If Trustees with respect to
different series of Securities are trustees under this Indenture, nothing herein
shall constitute the Trustees co-trustees of the same trust, and each Trustee
shall be the trustee of a trust separate and apart from any trust administered
by any other Trustee with respect to a different series of Securities.
"Trust Officer" means the Chairman of the Board, the President or any other
-------------
officer or assistant officer of the Trustee assigned by the Trustee to
administer its corporate trust matters.
3<PAGE>
Section 1.02. Other Definitions.
- ---------------------------------
Term Defined in Section
---- -------------------
"Bankruptcy Law" . . . . . . . . . . . . . . 6.01
"Custodian" . . . . . . . . . . . . . . . . . 6.01
"Event of Default" . . . . . . . . . . . . . 6.01
"Legal Holiday" . . . . . . . . . . . . . . . 10.07
"Paying Agent" . . . . . . . . . . . . . . . 2.03
"redemption price" . . . . . . . . . . . . . 3.03
"Registrar" . . . . . . . . . . . . . . . . . 2.03
"U.S. Government Obligations" . . . . . . . . 8.01
Section 1.03. Incorporation by Reference of Trust Indenture Act.
- -----------------------------------------------------------------
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"indenture securities" means the Securities.
--------------------
"indenture securityholder" means a Securityholder.
------------------------
"indenture to be qualified" means this Indenture.
-------------------------
"indenture trustee" or "institutional trustee" means the Trustee.
----------------- ---------------------
"obligor" on the Securities means the Company.
-------
All other terms used in this Indenture that are defined by the TIA, defined by
TIA reference to another statute or defined by Commission rule under the TIA
have the meanings so assigned to them.
Section 1.04. Rules of Construction.
- -------------------------------------
Unless the context otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning assigned to
it in accordance with GAAP;
(iii) "or" is not exclusive;
4<PAGE>
(iv) words in the singular include the plural, and in the plural include
the singular; and
(v) provisions apply to successive events and transactions.
ARTICLE 2
THE SECURITIES
Section 2.01. Unlimited In Amount, Issuable In Series, Form and Dating.
- ------------------------------------------------------------------------
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited. The Securities may be issued in one
or more series. There shall be established in or pursuant to a Board Resolution
or established in one or more indentures supplemental hereto, prior to the
issuance of Securities of any series:
(a) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(b) any limit upon the aggregate principal amount of Securities of
the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to this Article 2);
(c) the date or dates on which the principal of the Securities of the
series is payable;
(d) the rate or rates at which the Securities of the series shall
bear interest, if any, or the manner in which such rate or rates shall be
determined, the date or dates from which such interest shall accrue, the
interest payment dates on which such interest shall be payable and the
record dates for the determination of Holders to whom interest is payable;
(e) the place or places where the principal of and any interest on
Securities of the series shall be payable, if other than as provided
herein;
(f) the price or prices at which (if any), the period or periods
within which (if any) and the terms and conditions upon which (if other
than as provided herein) Securities of the series may be redeemed, in whole
or in part, at the option, or as an obligation, of the Company;
5<PAGE>
(g) the obligation, if any, of the Company to redeem, purchase or
repay Securities of the series, in whole or in part, pursuant to any
sinking fund or analogous provisions or at the option of a Holder thereof
and the price or prices at which and the period and periods within which
and the terms and conditions upon which Securities of the series shall be
redeemed, purchased or repaid pursuant to such obligation;
(h) if other than denominations of $1,000 and any multiple thereof,
the denominations in which Securities of the series shall be issuable;
(i) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the maturity thereof pursuant to Section
6.02 hereof;
(j) any addition to or change in the covenants set forth in Article 4
which applies to Securities of the series;
(k) any Events of Default with respect to the Securities of a
particular series, if not set forth herein;
(l) the Trustee for the series of Securities;
(m) whether the Securities of the series shall be issued in whole or
in part in the form of a Global Security or Securities; the terms and
conditions, if any, upon which such Global Security or Securities may be
exchanged in whole or in part for other individual Securities, and the
depositary for such Global Security and Securities;
(n) the terms and conditions, if any, upon which any Securities of
such series may or shall be converted into other Securities or property;
and
(o) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, but which may modify or
delete any provision of this Indenture with respect to such series;
provided, however, that no such term may modify or delete any provision
------------------
hereof if imposed by the TIA; and provided, further, that any modification
----------------------
or deletion of the rights, duties or immunities of the Trustee hereunder
shall have been consented to in writing by the Trustee).
All Securities of any series shall be substantially identical except as to
denomination and except as may otherwise be provided in or pursuant to such
Board Resolution or in any such indenture supplemental hereto.
6<PAGE>
The principal of and any interest on the Securities shall be payable at the
office or agency of the Company designated in the form of Security for the
series (each such place herein called the "Place of Payment"); provided,
---------
however, that payment of interest may be made at the option of the Company by
- --------
check mailed to the address of the Person entitled thereto as such address shall
appear in the register of Securities referred to in Section 2.03 hereof.
Each Security shall be in one of the forms approved from time to time by or
pursuant to a Board Resolution, or established in one or more indentures
supplemental hereto. Prior to the delivery of a Security to the Trustee for
authentication in any form approved by or pursuant to a Board Resolution, the
Company shall deliver to the Trustee the Board Resolution by or pursuant to
which such form of Security has been approved, which Board Resolution shall have
attached thereto a true and correct copy of the form of Security which has been
approved by or pursuant thereto, or, if a Board Resolution authorizes a specific
officer or officers to approve a form of Security, a certificate of such officer
or officers approving the form of Security attached thereto.
The Securities may have notations, legends or endorsements required by law,
stock exchange rule or usage. Each Security shall be dated the date of its
authentication.
Section 2.02. Execution and Authentication.
- --------------------------------------------
Two Officers shall sign the Securities for the Company by manual or
facsimile signature. The Company's seal shall be reproduced on the Securities.
If an Officer whose signature is on a Security no longer holds that office
at the time the Security is authenticated, the Security shall nevertheless be
valid.
A Security shall not be valid until authenticated by the manual signature
of the Trustee. The signature shall be conclusive evidence that the Security
has been authenticated under this Indenture.
The Trustee shall authenticate Securities for original issue upon a written
order of the Company signed by two Officers.
The Trustee may appoint an authenticating agent acceptable to the Company
to authenticate Securities. An authenticating agent may authenticate Securities
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with the Company or
an Affiliate of the Company.
Section 2.03. Registrar and Paying Agent.
- ------------------------------------------
The Company shall maintain an office or agency where Securities of a
particular series may be presented for registration of transfer or for exchange
(the "Registrar") and an office or agency where Securities of that series may be
presented for payment (a "Paying Agent"). The Registrar for a particular series
7<PAGE>
of Securities shall keep a register of the Securities of that series and of
their transfer and exchange. The Company may appoint one or more co-Registrars
and one or more additional paying agents for each series of Securities. The term
"Paying Agent" includes any additional paying agent. The Company may change any
Paying Agent, Registrar or co-Registrar without prior notice to any
Securityholder. The Company shall notify the Trustee in writing of the name and
address of any Agent not a party to this Indenture.
If the Company fails to maintain a Registrar or Paying Agent for any series
of Securities, the Trustee shall act as such. The Company or any of its
Subsidiaries may act as Paying Agent, Registrar or co-Registrar.
Section 2.04. Paying Agent to Hold Money in Trust.
- ---------------------------------------------------
Whenever the Company has one or more Paying Agents it will, prior to each
due date of the principal of or interest on, any Securities, deposit with a
Paying Agent a sum sufficient to pay the principal (and premium, if any) or
interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal, premium or interest, and (unless such Paying
Agent is the Trustee) the Company will promptly notify the Trustee of its action
or failure so to act.
The Company shall require each Paying Agent other than the Trustee to agree
in writing that such Paying Agent will hold in trust for the benefit of the
Securityholders of the particular series for which it is acting, or the Trustee,
all money held by the Paying Agent for the payment of principal or interest on
the Securities of such series, and that such Paying Agent will notify the
Trustee of any Default by the Company or any other obligor of the series of
Securities in making any such payment and at any time during the continuance of
any such Default, upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent. If the Company or an
Affiliate acts as Paying Agent, it shall segregate and hold in a separate trust
fund for the benefit of the Securityholders of the particular series for which
it is acting all money held by it as Paying Agent. The Company at any time may
require a Paying Agent to pay all money held by it to the Trustee. Upon so
doing, the Paying Agent (if other than the Company or an Affiliate of the
Company) shall have no further liability for such money. Upon any bankruptcy or
reorganization proceedings relating to the Company, the Trustee shall serve as
Paying Agent for the Securities.
Section 2.05. Securityholder Lists.
- ------------------------------------
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Securityholders, separately by series, and shall otherwise comply with TIA
Section 312(a). If the Trustee is not the Registrar, the Company shall furnish
to the Trustee at least seven Business Days before each interest payment date
and at such other times as the Trustee may request in writing, a list in such
8<PAGE>
form and as of such date as the Trustee may reasonably require of the names and
addresses of Securityholders, separately by series, relating to such interest
payment date or request, as the case may be.
Section 2.06. Transfer and Exchange.
- -------------------------------------
Where Securities are presented to the Registrar or a co-Registrar with a
request to register a transfer or to exchange them for an equal principal amount
of Securities of like series of other authorized denominations, the Registrar
shall register the transfer or make the exchange if its requirements for such
transactions are met. To permit registrations of transfers and exchanges, the
Company shall issue and the Trustee shall authenticate Securities at the
Registrar's request.
No service charge shall be made for any registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
transfer tax or similar governmental charge payable in connection therewith
(other than any such transfer tax or similar governmental charge payable upon
exchanges pursuant to Sections 2.10, 3.06 or 9.04).
The Company need not issue, and the Registrar or co-Registrar need not
register the transfer or exchange of, (i) any Security of a particular series
during a period beginning at the opening of business 15 days before the day of
any selection of Securities of that series for redemption under Section 3.02 and
ending at the close of business on the day of selection, or (ii) any Security so
selected for redemption in whole or in part, except the unredeemed portion of
any Security of that series being redeemed in part.
Section 2.07. Replacement Securities.
- --------------------------------------
If a mutilated Security is surrendered to the Trustee or if the Holder of a
Security claims that the Security has been lost, destroyed or wrongfully taken,
the Company shall issue and the Trustee shall authenticate a replacement
Security of like series if the Company's and the Trustee's requirements are met.
The Trustee or the Company may require an indemnity bond to be furnished which
is sufficient in the judgment of both to protect the Company, the Trustee, and
any Agent from any loss which any of them may suffer if a Security is replaced.
The Company may charge such Holder for its expenses in replacing a Security.
Every replacement Security is an additional obligation of the Company and
shall be entitled to all the benefit of the Indenture equally and
proportionately with any and all other Securities of the same series.
9<PAGE>
Section 2.08. Outstanding Securities.
- --------------------------------------
The Securities of any series outstanding at any time are all the Securities
of that series authenticated by the Trustee except for those cancelled by it,
those delivered to it for cancellation, and those described in this Section as
not outstanding.
If a Security is replaced pursuant to Section 2.07, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If Securities are considered paid under Section 4.01, they cease to be
outstanding and interest on them ceases to accrue.
Except as set forth in Section 2.09 hereof, a Security does not cease to be
outstanding because the Company or an Affiliate holds the Security.
For each series of Original Issue Discount Securities, the principal amount
of such Securities that shall be deemed to be outstanding and used to determine
whether the necessary Holders have given any request, demand, authorization,
direction, notice, consent or waiver shall be the principal amount of such
Securities that could be declared to be due and payable upon acceleration upon
an Event of Default as of the date of such determination. When requested by the
Trustee, the Company will advise the Trustee of such amount, showing its
computations in reasonable detail.
Section 2.09. Treasury Securities.
- -----------------------------------
In determining whether the Holders of the required principal amount of
Securities of any series have concurred in any direction, waiver or consent,
Securities owned by the Company or an Affiliate shall be considered as though
they are not outstanding, except that for the purposes of determining whether
the Trustee shall be protected in relying on any such direction, waiver or
consent, only Securities which the Trustee knows are so owned shall be so
considered.
Section 2.10. Temporary Securities.
- ------------------------------------
Until definitive Securities are ready for delivery, the Company may prepare
and the Trustee shall authenticate temporary Securities upon a written order of
the Company signed by two Officers of the Company. Temporary Securities shall
be substantially in the form of definitive Securities but may have variations
that the Company considers appropriate for temporary Securities. Without
unreasonable delay, the Company shall prepare and the Trustee shall authenticate
definitive Securities in exchange for temporary Securities.
Holders of temporary securities shall be entitled to all of the benefits of
this Indenture.
10<PAGE>
Section 2.11. Cancellation.
- ----------------------------
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Securities surrendered to them for registration of transfer, exchange or
payment. The Trustee shall cancel all Securities surrendered for registration
of transfer, exchange, payment, replacement or cancellation and shall destroy
such Securities (subject to the record retention requirements of the Exchange
Act). Certification of the destruction of all cancelled Securities shall be
delivered to the Company. The Company may not issue new Securities to replace
Securities that it has paid or that have been delivered to the Trustee for
cancellation.
Section 2.12. Defaulted Interest.
- ----------------------------------
If the Company fails to make a payment of interest on any series of
Securities, it shall pay such defaulted interest plus (to the extent lawful) any
interest payable on the defaulted interest, in any lawful manner. It may elect
to pay such defaulted interest, plus any such interest payable on it, to the
Persons who are Holders of such Securities on which the interest is due on a
subsequent special record date. The Company shall notify the Trustee in writing
of the amount of defaulted interest proposed to be paid on each such Security.
The Company shall fix any such record date and payment date for such payment.
At least 15 days before any such record date, the Company shall mail to
Securityholders affected thereby a notice that states the record date, payment
date, and amount of such interest to be paid.
Section 2.13. Special Record Dates.
- ------------------------------------
(a) The Company may, but shall not be obligated to, set a record date for
the purpose of determining the identity of Holders entitled to consent to any
supplement, amendment or waiver permitted by this Indenture. If a record date
is fixed, the Holders of Securities of that series outstanding on such record
date, and no other Holders, shall be entitled to consent to such supplement,
amendment or waiver or revoke any consent previously given, whether or not such
Holders remain Holders after such record date. No consent shall be valid or
effective for more than 90 days after such record date unless consents from
Holders of the principal amount of Securities of that series required hereunder
for such amendment or waiver to be effective shall have also been given and not
revoked within such 90-day period.
(b) The Trustee may, but shall not be obligated to, fix any day as a
record date for the purpose of determining the Holders of any series of
Securities entitled to join in the giving or making of any notice of Default,
any declaration of acceleration, any request to institute proceedings or any
other similar direction. If a record date is fixed, the Holders of Securities
11<PAGE>
of that series outstanding on such record date, and no other Holders, shall be
entitled to join in such notice, declaration, request or direction, whether or
not such Holders remain Holders after such record date; provided, however, that
------------------
no such action shall be effective hereunder unless taken on or prior to the date
90 days after such record date.
ARTICLE 3
REDEMPTION
Section 3.01. Notices to Trustee.
- ----------------------------------
If the Company elects to redeem Securities of any series pursuant to any
optional redemption provisions thereof, it shall notify the Trustee of the
redemption date and the principal amount of Securities of that series to be
redeemed.
The Company shall give each notice provided for in this Section in an
Officers' Certificate at least 45 days before the redemption date (unless a
shorter notice period shall be satisfactory to the Trustee), which notice shall
specify the provisions of such Security pursuant to which the Company elects to
redeem such Securities.
If the Company elects to reduce the principal amount of Securities of any
series to be redeemed pursuant to mandatory redemption provisions thereof, it
shall notify the Trustee of the amount of, and the basis for, any such
reduction. If the Company elects to credit against any such mandatory
redemption Securities it has not previously delivered to the Trustee for
cancellation, it shall deliver such Securities with such notice.
Section 3.02. Selection of Securities to Be Redeemed.
- ------------------------------------------------------
If less than all the Securities of any series are to be redeemed, the
Trustee shall select the Securities of that series to be redeemed by a method
that complies with the requirements of any exchange on which the Securities of
that series are listed, or, if the Securities of that series are not listed on
an exchange, on a pro rata basis or by lot. The Trustee shall make the
--------
selection not more than 75 days and not less than 30 days before the redemption
date from Securities of that series outstanding and not previously called for
redemption. Except as otherwise provided as to any particular series of
Securities, Securities and portions thereof that the Trustee selects shall be in
amounts equal to the minimum authorized denomination for Securities of the
series to be redeemed or any integral multiple thereof. Provisions of this
Indenture that apply to Securities called for redemption also apply to portions
of Securities called for redemption. The Trustee shall notify the Company
promptly in writing of the Securities or portions of Securities to be called for
redemption.
12<PAGE>
Section 3.03. Notice of Redemption.
- ------------------------------------
Except as otherwise provided as to any particular series of Securities, at
least 30 days but not more than 60 days before a redemption date, the Company
shall mail a notice of redemption to each Holder whose Securities are to be
redeemed.
The notice shall identify the Securities to be redeemed and shall state:
(1) the redemption date;
(2) the redemption price fixed in accordance with the terms of the
Securities of the series to be redeemed, plus accrued interest, if any, to
the date fixed for redemption (the "redemption price");
(3) if any Security is being redeemed in part, the portion of the
principal amount of such Security to be redeemed and that, after the
redemption date, upon surrender of such Security, a new Security or
Securities in principal amount equal to the unredeemed portion will be
issued;
(4) the name and address of the Paying Agent;
(5) that Securities called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(6) that, unless the Company defaults in payment of the redemption
price, interest on Securities called for redemption ceases to accrue on and
after the redemption date;
(7) The paragraph of the series of Securities and/or Section of any
supplemental indenture pursuant to which such Securities called for
redemption are being redeemed; and
(8) the CUSIP number, if any, of the Securities to be redeemed.
At the Company's request, the Trustee shall give the notice of redemption
in the Company's name and at its expense; provided, however, that the Company
------------------
shall have delivered to the Trustee, at least 45 days prior to the redemption
date, an Officer's Certificate requesting that the Trustee give such notice and
setting forth the information to be stated in such notice as provided in the
preceding paragraph. The notice mailed in the manner herein provided shall be
conclusively presumed to have been duly given whether or not the Holder receives
such notice. In any case, failure to give such notice by mail or any defect in
the notice of the Holder of any Security shall not affect the validity of the
proceeding for the redemption of any other Security.
13<PAGE>
Section 3.04. Effect of Notice of Redemption.
- ----------------------------------------------
Once notice of redemption is mailed in accordance with Section 3.03 hereof,
Securities called for redemption become due and payable on the redemption date
for the redemption price. Upon surrender to the Paying Agent, such Securities
will be paid at the Redemption Price.
Section 3.05. Deposit of Redemption Price.
- -------------------------------------------
On or before the redemption date, the Company shall deposit with the Paying
Agent (or, if the Company or any Subsidiary is the Paying Agent, shall segregate
and hold in trust) money sufficient to pay the redemption price of all
Securities called for redemption on that date other than Securities which have
previously been delivered by the Company to the Trustee for cancellation. The
Paying Agent shall return to the Company any money not required for that
purpose.
Section 3.06. Securities Redeemed in Part.
- -------------------------------------------
Upon surrender of a Security that is redeemed in part, the Company shall
issue and the Trustee shall authenticate for the Holder at the expense of the
Company a new Security of like series equal in principal amount to the
unredeemed portion of the Security surrendered.
ARTICLE 4
COVENANTS
Section 4.01. Payment of Securities.
- -------------------------------------
The Company shall pay or cause to be paid the principal of and interest on
the Securities on the dates and in the manner provided in this Indenture and the
Securities. Principal and interest shall be considered paid on the date due if
the Paying Agent, if other than the Company or an Affiliate, holds as of 10:00
a.m. Eastern Time on that date immediately available funds designated for and
sufficient to pay all principal and interest then due.
To the extent lawful, the Company shall pay interest on overdue principal
and overdue installments of interest at the rate per annum borne by the
applicable series of Securities.
14<PAGE>
Section 4.02. Maintenance of Office or Agency.
- -----------------------------------------------
The Company shall maintain in the Borough of Manhattan, the City of
New York, an office or agency (which may be an office of the Trustee or an
affiliate of the Trustee or Registrar) where Securities may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Company in respect of the Securities and this Indenture may be served. The
Company shall give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee.
The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
- ------------------
relieve the Company of its obligation to maintain an office or agency in the
Borough of Manhattan, the City of New York for such purposes. The Company shall
give prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency.
The Company hereby designates the Corporate Trust Office of the
Trustee as one such office or agency of the Company in accordance with Section
2.03.
Section 4.03. Commission Reports.
- ----------------------------------
The Company shall deliver to the Trustee within 15 days after the required
filing date copies of the annual reports and of the information, documents, and
other reports (or copies of such portions of any of the foregoing as the
Commission may by rules and regulations prescribe) which the Company is required
to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act;
provided, however the Company shall not be required to deliver to the Trustee
any materials for which the Company has sought and received confidential
treatment by the Commission. The Company will cause any quarterly and annual
reports which it mails to its stockholders to be mailed to the Holders of the
Securities. If the Company is not subject to the requirements of Section 13 or
15(d) of the Exchange Act, the Company shall continue to file with the Trustee
(in each case within 15 days after the time that such documents would have been
filed with the Commission) such reports, information and other documents as it
would file if it were subject to the requirements of Section 13 or 15(d) of the
Exchange Act (other than such confidential materials referenced above). The
Company also shall comply with the other provisions of TIA Section 314(a).
15<PAGE>
Section 4.04. Compliance Certificate.
- --------------------------------------
The Company shall deliver to the Trustee, within 120 days after the end of
each fiscal year of the Company, an Officers' Certificate (one of the signers of
which shall be the principal accounting officer, principal financial officer or
principal executive officer) stating that in the course of the performance by
the signers of their duties as officers of the Company, they would normally have
knowledge of any failure by the Company to comply with all conditions, or
default by the Company with respect to any covenants, under this Indenture, and
further stating whether or not they have knowledge of any such failure or
default and, if so, specifying each such failure or default and the nature
thereof. For purposes of this Section, such compliance shall be determined
without regard to any period of grace or requirement of notice provided for in
this Indenture. The certificate need not comply with Section 10.04.
The first certificate delivered pursuant to this Section 4.03 shall be for
the fiscal year ending on _________, 199__.
Section 4.05. Taxes.
- ---------------------
The Company shall pay, and shall cause each of its Subsidiaries to pay,
prior to delinquency, all material taxes, assessments, and governmental levies
except (i) as contested in good faith by appropriate proceedings and with
respect to which appropriate reserves have been taken in accordance with GAAP or
(ii) where the failure to effect such payment is not adverse in any material
respect to the Holders.
Section 4.06. Stay, Extension and Usury Laws.
- ----------------------------------------------
The Company covenants (to the extent that it may lawfully do so) that it
shall not at any time insist upon, plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay, extension or usury law wherever
enacted, now or at any time hereafter in force, that may affect the covenants or
the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it shall not, by resort to any such law, hinder, delay
or impede the execution of any power herein granted to the Trustee, but shall
suffer and permit the execution of every such power as though no such law has
been enacted.
Section 4.07. Corporate Existence.
- -----------------------------------
Subject to Article 5 hereof, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect (i) its corporate
existence, and the corporate, partnership or other existence of each of its
Subsidiaries, in accordance with the respective organizational documents (as the
same may be amended from time to time) of each Subsidiary and (ii) the rights
16<PAGE>
(charter and statutory), licenses and franchises of the Company and its
Subsidiaries; provided, however, that the Company shall not be required to
------------------
preserve any such right, license or franchise, or the corporate, partnership or
other existence of any of its Subsidiaries, if the Board of Directors shall
determine that the preservation thereof is no longer desirable in the conduct of
the business of the Company and its Subsidiaries, taken as a whole, and that the
loss thereof is not adverse in any material respect to the Holders.
Section 4.08. Payments for Consent.
- ------------------------------------
Neither the Company nor any of its Subsidiaries shall, directly or
indirectly, pay or cause to be paid any consideration, whether by way of
interest, fee or otherwise, to any Holder of the Securities for or as an
inducement to any consent, waiver or amendment of any terms or provisions of
this Indenture or of the Securities or any series thereof unless such
consideration is offered to be paid or agreed to be paid to all Holders of the
Securities of such series that so consent, waive or agree to amend in the time
frame set forth in solicitation documents relating to such consent, waiver or
agreement.
ARTICLE 5
SUCCESSORS
Section 5.01. When Company May Merge, etc.
- -------------------------------------------
The Company shall not consolidate or merge with or into (whether or not the
Company is the surviving corporation), or sell, assign, transfer, lease, convey
or otherwise dispose of all or substantially all of its properties or assets in
one or more related transactions to any Person unless:
(1) the Company is the surviving corporation or the entity or Person
formed by or surviving any such consolidation or merger (if other than the
Company) or to which such sale, assignment, transfer, lease, conveyance or
other disposition shall have been made is a corporation organized and
existing under the laws of the United States, any state thereof or the
District of Columbia;
(2) the entity or Person formed by or assuming any such consolidation
or merger (if other than the Company) or the entity or Person to which such
sale, assignment, transfer, lease, conveyance or other disposition shall
have been made assumes by supplemental indenture all the obligations of the
Company under the Securities and this Indenture; and
(3) immediately prior to and after the transaction no Default or
Event of Default exists.
17<PAGE>
The Company shall deliver to the Trustee prior to the consummation of the
proposed transaction an Officers' Certificate to the foregoing effect and an
Opinion of Counsel stating that the proposed transaction and such supplemental
indenture comply with this Indenture.
Section 5.02. Successor Corporation Substituted.
- -------------------------------------------------
Upon any consolidation or merger, or any transfer by the Company (other
than by lease) of all or substantially all of the assets of the Company in
accordance with Section 5.01, the successor corporation formed by such
consolidation or into which the Company is merged or to which such transfer is
made shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture with the same effect as if such
successor corporation had been named as the Company herein. In the event of any
such transfer, the predecessor Company shall be released and discharged from all
liabilities and obligations in respect of the Securities and the Indenture, and
the predecessor Company may be dissolved, wound up or liquidated at any time
thereafter.
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. Events of Default.
- ---------------------------------
An "Event of Default" occurs with respect to Securities of any particular
series if:
(1) the Company defaults in the payment of interest on any Security
of that series when the same becomes due and payable and the Default
continues for a period of 30 days;
(2) the Company defaults in the payment of the principal of any
Security of that series when the same becomes due and payable at maturity,
upon redemption or otherwise;
(3) an Event of Default, as defined in the Securities of that series,
occurs and is continuing, or the Company fails to comply with any of its
other agreements in the Securities of that series or in this Indenture with
respect to that series and the Default continues for the period and after
the notice specified below;
(4) the Company pursuant to or within the meaning of any Bankruptcy
Law:
(A) commences a voluntary case;
18<PAGE>
(B) consents to the entry of an order for relief against it in
an involuntary case;
(C) consents to the appointment of a Custodian of it or for all
or substantially all of its property;
(D) makes a general assignment for the benefit of its
creditors; or
(E) admits in writing its inability generally to pay its debts
as the same become due.
(5) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(A) is for relief against the Company in an involuntary case;
(B) appoints a Custodian of the Company or for all or
substantially all of its property; or
(C) orders the liquidation of the Company;
and the order or decree remains unstayed and in effect for 60 days.
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar federal
or state law for the relief of debtors. The term "Custodian" means any
receiver, trustee, assignee, liquidator or similar official under any Bankruptcy
Law.
A Default under clause (3) above is not an Event of Default with respect to
a particular series of Securities until the Trustee or the Holders of at least
25% in principal amount of the then outstanding Securities of that series notify
the Company of the Default and the Company does not cure the Default within 30
days after receipt of the notice. The notice must specify the Default, demand
that it be remedied and state that the notice is a "Notice of Default."
Section 6.02. Acceleration.
- ----------------------------
If an Event of Default with respect to Securities of any series (other than
an Event of Default specified in clauses (4) and (5) of Section 6.01) occurs and
19<PAGE>
is continuing, the Trustee by notice to the Company, or the Holders of at least
25% in principal amount of the then outstanding Securities of that series by
notice to the Company and the Trustee, may declare the unpaid principal (or, in
the case of Original Issue Discount Securities, such lesser amount as may be
provided for in such Securities) of and any accrued interest on all the
Securities of that series to be due and payable on the Securities of that
series. Upon such declaration the principal (or such lesser amount) and
interest shall be due and payable immediately. If an Event of Default specified
in clause (4) or (5) of Section 6.01 occurs, all of such amount shall become and
be immediately due and payable without any declaration or other act on the part
of the Trustee or any Holder. The Holders of a majority in principal amount of
the then outstanding Securities of that series by notice to the Trustee may
rescind an acceleration and its consequences if the rescission would not
conflict with any judgment or decree and if all existing Events of Default with
respect to that series have been cured or waived except nonpayment of principal
(or such lesser amount) or interest that has become due solely because of the
acceleration.
Section 6.03. Other Remedies.
- ------------------------------
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may pursue any available remedy to collect the
payment of principal or interest on the Securities of that series or to enforce
the performance of any provision of the Securities of that series or this
Indenture.
The Trustee may maintain a proceeding even if it does not possess any of
the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Securityholder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.
Section 6.04. Waiver of Past Defaults.
- ---------------------------------------
Subject to Section 9.02, the Holders of a majority in principal amount of
the then outstanding Securities of any series by notice to the Trustee may waive
an existing Default or Event of Default with respect to that series and its
consequences except a Default or Event of Default in the payment of the
principal (including any mandatory sinking fund or like payment) of or interest
on any Security of that series.
Section 6.05. Control by Majority.
- -----------------------------------
The Holders of a majority in principal amount of the then outstanding
Securities of any series may direct the time, method and place of conducting any
proceeding for any remedy with respect to that series available to the Trustee
or exercising any trust or power conferred on it. However, the Trustee may
refuse to follow any direction that conflicts with law or this Indenture, that
is unduly prejudicial to the rights of another Holder of Securities of that
series, or that may involve the Trustee in personal liability. The Trustee may
take any other action which it deems proper which is not inconsistent with any
such direction.
20<PAGE>
Section 6.06. Limitation on Suits.
- -----------------------------------
A Holder of Securities of any series may not pursue a remedy with respect
to this Indenture or the Securities unless:
(1) the Holder gives to the Trustee written notice of a continuing
Event of Default with respect to that series;
(2) the Holders of at least 25% in principal amount of the then
outstanding Securities of that series make a written request to the Trustee
to pursue the remedy;
(3) such Holder or Holders offer to the Trustee indemnity
satisfactory to the Trustee against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer and, if requested, the provision of
indemnity; and
(5) during such 60-day period the Holders of a majority in principal
amount of the then outstanding Securities of that series do not give the
Trustee a direction inconsistent with the request.
No Holder of any series of Securities may use this Indenture to prejudice the
rights of another Holder of Securities of that series or to obtain a preference
or priority over another Holder of Securities of that series.
Section 6.07. Rights of Holders to Receive Payment.
- ----------------------------------------------------
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Security to receive payment of principal of and interest, if any, on
the Security, on or after the respective due dates expressed in the Security, or
to bring suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the consent of the
Holder.
Section 6.08. Collection Suit by Trustee.
- ------------------------------------------
If an Event of Default specified in Section 6.01(1) or (2) occurs and is
continuing with respect to Securities of any series, the Trustee may recover
judgment in its own name and as trustee of an express trust against the Company
for the whole amount of principal (or such portion of the principal as may be
specified as due upon acceleration at that time in the terms of that series of
Securities) and interest, if any, remaining unpaid on the Securities of that
series then outstanding, together with (to the extent lawful) interest on
overdue principal and interest, and such further amount as shall be sufficient
to cover the costs and, to the extent lawful, expenses of collection, including
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel and any other amounts due the Trustee under
Section 7.07.
21<PAGE>
Section 6.09. Trustee May File Proofs of Claim.
- ------------------------------------------------
The Trustee may file such proofs of claim and other papers or documents as
may be necessary or advisable in order to have the claims of the Trustee and the
Securityholders allowed in any judicial proceedings relative to the Company (or
any other obligor on the Securities), its creditors or its property and shall be
entitled to and empowered to collect and receive any money or other property
payable or deliverable on any such claims and to distribute the same, and any
custodian in any such judicial proceedings is hereby authorized by each Holder
to make such payments to the Trustee and, in the event that the Trustee shall
consent to the making of such payments directly to the Holders, to pay to the
Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agent and counsel, and any other
amounts due the Trustee under Section 7.07. Nothing contained herein shall be
deemed to authorize the Trustee to authorize or consent to or accept or adopt on
behalf of any Securityholder any plan of reorganization, arrangement, adjustment
or composition affecting the Securities or the rights of any Holder thereof, or
to authorize the Trustee to vote in respect of the claim of any Securityholder
in any such proceeding.
Section 6.10. Priorities.
- --------------------------
If the Trustee collects any money with respect to Securities of any series
pursuant to this Article, it shall pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts
due under Section 7.07, including payment of all
compensation, expense and liabilities incurred, and all
advances made, by the Trustee and the costs and
expenses of collection;
Second: to Securityholders for amounts due and unpaid on the
Securities of such series for principal and interest,
ratably, without preference or priority of any kind,
according to the amounts due and payable on the
Securities of such series for principal and interest,
respectively; and
Third: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to
Holders of Securities of any series pursuant to this Section. The Trustee shall
notify the Company in writing reasonably in advance of any such record date and
payment date.
22<PAGE>
Section 6.11. Undertaking for Costs.
- -------------------------------------
In any suit for the enforcement of any right or remedy under this Indenture
or in any suit against the Trustee for any action taken or omitted by it as a
Trustee, a court in its discretion may require the filing by any party litigant
in the suit of an undertaking to pay the costs of the suit, and the court in its
discretion may assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in the suit, having due regard to the merits and good
faith of the claims or defense made by the party litigant. This Section does
not apply to a suit by the Trustee, a suit by a Holder pursuant to Section 6.07
or a suit by Holders of more than 10% in principal amount of the then
outstanding Securities.
23<PAGE>
ARTICLE 7
TRUSTEE
Section 7.01. Duties of Trustee.
- ---------------------------------
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default known to the
Trustee:
(i) the duties of the Trustee shall be determined solely by the
express provisions of this Indenture or the TIA and the Trustee
need perform only those duties that are specifically set forth in
this Indenture or the TIA and no others, and no implied covenants
or obligations shall be read into this Indenture against the
Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates
or opinions furnished to the Trustee and conforming to the
requirements of this Indenture. However, the Trustee shall
examine the certificates and opinions to determine whether or not
they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liabilities for its own negligent
action, its own negligent failure to act, or its own willful misconduct, except
that:
(i) this paragraph does not limit the effect of paragraph (b) of this
Section;
(ii) the Trustee shall not be liable for any error of judgment made in
good faith by a responsible officer of the Trustee, unless it is
proved that the Trustee was negligent in ascertaining the
pertinent facts; and
(iii) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.05 hereof.
(d) Whether or not therein expressly so provided, every provision of this
Indenture that in any way relates to the Trustee is subject to paragraphs (a),
(b), and (c) of this Section.
24<PAGE>
(e) No provision of this Indenture shall require the Trustee to expend or
risk its own funds or incur any liability. The Trustee may refuse to perform any
duty or exercise any right or power unless it receives security and indemnity
satisfactory to it against any loss, liability or expense.
(f) The Trustee shall not be liable for interest on any money received by
it except as the Trustee may agree in writing with the Company. Absent written
instruction from the Company, the Trustee shall not be required to invest any
such money. Money held in trust by the Trustee need not be segregated from other
funds except to the extent required by law.
Section 7.02. Rights of Trustee.
- ---------------------------------
Subject to TIA Section 315(a) through (d):
(a) The Trustee may rely on any document believed by it to be genuine and
to have been signed or presented by the proper person. The Trustee need not
investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel, or both. The Trustee shall not
be liable for any action it takes or omits to take in good faith in reliance on
such Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible for
the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith which it believes to be authorized or within its rights or
powers, unless the Trustee's conduct constitutes negligence.
(e) Unless otherwise specifically provided in this Indenture, any demand,
request, direction or notice form the Company shall be sufficient if signed by
an Officer of the Company.
Section 7.03. Individual Rights of Trustee.
- --------------------------------------------
The Trustee in its individual or any other capacity may become the owner or
pledgee of Securities and may otherwise deal with the Company or an Affiliate
with the same rights it would have if it were not Trustee. Any Agent may do the
same with like rights. However, the Trustee is subject to TIA Sections 310(b)
and 311.
25<PAGE>
Section 7.04. Trustee's Disclaimer.
- ------------------------------------
The Trustee makes no representation as to the validity or adequacy of this
Indenture or the Securities, it shall not be accountable for the Company's use
of the proceeds from the Securities, and it shall not be responsible for any
statement in the Securities other than its certificate of authentication.
Section 7.05. Notice of Defaults.
- ----------------------------------
If a Default or Event of Default with respect to the Securities of any
series occurs and is continuing and if it is known to the Trustee, the Trustee
shall mail to all Holders of Securities of that series a notice of the Default
or Event of Default within 90 days after it occurs. Except in the case of a
Default or Event of Default in payment on any such Security, the Trustee may
withhold the notice if and so long as a committee of its Trust Officers in good
faith determines that withholding the notice is in the interests of such
Securityholders.
Section 7.06. Reports by Trustee to Holders.
- ---------------------------------------------
Within 60 days after each _________ beginning with ___________, 1994, the
Trustee with respect to any series of Securities shall mail to Holders of
Securities of that series as provided in TIA Section 313(c) a brief report dated
as of such ______ that complies with TIA Section 313(a) (if such report is
required by TIA Section 313(a)). The Trustee shall also comply with TIA Section
313(b).
A copy of each report at the time of its mailing to Securityholders shall
be mailed to the Company and filed with the Commission and each stock exchange
on which any of the Securities are listed, as required by TIA Section 313(d).
The Company shall notify the Trustee when the Securities are listed on any
stock exchange.
Section 7.07. Compensation and Indemnity.
- ------------------------------------------
The Company shall pay to the Trustee from time to time such compensation as
shall be agreed upon in writing for its services hereunder. The Company shall
reimburse the Trustee upon written request for all reasonable out-of-pocket
expenses incurred by it. Such expenses shall include the reasonable
compensation and out-of-pocket expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee for any loss or liability incurred
by it, without negligence or bad faith on its part, in connection with the
administration of this Indenture and its duties hereunder. The Trustee shall
notify the Company promptly of any claim for which it may seek indemnity. The
Company shall defend the claim and the Trustee shall cooperate in the defense.
The Trustee may have separate counsel and the Company shall pay the reasonable
fees and expenses of such counsel. The Company need not pay for any settlement
made without its consent.
26<PAGE>
To secure the Company's payment obligations in this Section, the Trustee
shall have a lien prior to the Securities on all money or property held or
collected by the Trustee in its capacity as Trustee, except money or property
held in trust to pay principal and interest on particular Securities. Such lien
will survive the satisfaction and discharge of this Indenture.
If the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(4) or (5) occurs, the expenses and the
compensation for the services will be intended to constitute expenses of
administration under any applicable Bankruptcy Law.
Section 7.08. Replacement of Trustee.
- --------------------------------------
A resignation or removal of the Trustee with respect to one or more or all
series of Securities and appointment of a successor Trustee shall become
effective only upon the successor Trustee's acceptance of appointment as
provided in this Section.
The Trustee may resign with respect to one or more or all series of
Securities by so notifying the Company in writing. The Holders of a majority in
principal amount of the then outstanding Securities of any series may remove the
Trustee as to that series by so notifying the Trustee in writing and may appoint
a successor Trustee with the Company's consent. The Company may remove the
Trustee with respect to one or more or all series of Securities if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or other public officer takes charge of the Trustee or
its property; or
(4) the Trustee becomes incapable of acting.
If, as to any series of Securities, the Trustee resigns or is removed or if
a vacancy exists in the office of Trustee for any reason, the Company shall
promptly appoint a successor Trustee for that series. Within one year after the
successor Trustee with respect to any series takes office, the Holders of a
majority in principal amount of the then outstanding Securities of that series
may appoint a successor Trustee to replace the successor Trustee appointed by
the Company. If a successor Trustee as to a particular series does not take
office within 60 days after the retiring Trustee resigns or is removed, the
27<PAGE>
retiring Trustee, the Company or the Holders of at least 10% in principal amount
of the then outstanding Securities of that series may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10 with respect to any
series, any Holder of Securities of that series who satisfies the requirements
of TIA Section 310(b) may petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee for that
series.
A successor Trustee as to any series of Securities shall deliver a written
acceptance of its appointment to the retiring Trustee and to the Company.
Immediately after that, the retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee (subject to the lien
provided for in Section 7.07), the resignation or removal of the retiring
Trustee shall become effective, and the successor Trustee shall have all the
rights, powers and duties of the Trustee under this Indenture as to that series.
The successor Trustee shall mail a notice of its succession to the Holders of
Securities of that series.
Notwithstanding replacement of the Trustee pursuant to this Section 7.08,
the Company's obligations under Section 7.07 hereof shall continue for the
benefit of the retiring trustee.
In case of the appointment hereunder of a successor Trustee with respect to
the Securities of one or more (but not all) series, the Company, the retiring
Trustee and each successor Trustee with respect to the Securities of one or more
series shall execute and deliver an indenture supplemental hereto wherein each
successor Trustee shall accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and to
vest in, each successor Trustee all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates, (2) shall contain such
provisions as shall be necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Trustee with respect to the Securities
of that or those series as to which the retiring Trustee is not retiring shall
continue to be vested in the retiring Trustee, and (3) shall add to or change
any of the provisions of this Indenture as shall be necessary or desirable to
provide for or facilitate the administration of the trusts hereunder by more
than one Trustee; provided, however, that nothing herein or in such supplemental
------------------
Indenture shall constitute such Trustee co-trustees of the same trust and that
each such Trustee shall be trustee of a trust hereunder separate and apart from
any trust hereunder administered by any other such Trustee.
Upon the execution and delivery of such supplemental Indenture the
resignation or removal of the retiring Trustee shall become effective to the
extent provided therein and each such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities of that or
those series to which the appointment of such successor Trustee relates.
28<PAGE>
Section 7.09. Successor Trustee by Merger, etc.
- ------------------------------------------------
If the Trustee as to any series of Securities consolidates, merges or
converts into, or transfers all or substantially all of its corporate trust
business to, another corporation, the successor corporation without any further
act shall be the successor Trustee as to that series.
Section 7.10. Eligibility; Disqualification.
- ----------------------------------------------
Each series of Securities shall always have a Trustee who satisfies the
requirements of TIA Section 310(a). The Trustee as to any series of Securities
shall always have a combined capital and surplus of at least [$100,000,000]
as set forth in its most recent published annual report of condition.
This Indenture shall always have a Trustee who satisfies the requirements
of TIA Section 310(a)(1), (2) and (5). The Trustee is subject to TIA Section
310(b).
Section 7.11. Preferential Collection of Claims Against Company.
- -----------------------------------------------------------------
The Trustee is subject to TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
ARTICLE 8
DISCHARGE OF INDENTURE
Section 8.01. Termination of Company's Obligations.
- ----------------------------------------------------
Except as otherwise provided in this Section, the Company may terminate its
obligations under the Securities of any series and this Indenture with respect
to that series, if:
(a) all Securities of that series previously authenticated and
delivered (other than destroyed, lost or stolen Securities which have been
replaced or Securities of that series which are paid pursuant to Section
4.01 or Securities of that series for whose payment money or securities has
theretofore been held in trust and thereafter repaid to the Company, as
provided in Section 8.03) have been delivered to the Trustee for
cancellation and the Company has paid all sums payable by it hereunder with
respect to such series; or
29<PAGE>
(b) (1) the Securities of that series mature within one year or all
of them are to be called for redemption within one year after arrangements
satisfactory to the Trustee for giving the notice of redemption; and
(2) the Company irrevocably deposits in trust with the Trustee during
such one-year period, under the terms of an irrevocable trust agreement in
form and substance satisfactory to the Trustee, as trust funds solely for
the benefit of the Holders of Securities of that series for that purpose,
money or U.S. Government Obligations, or a combination thereof, with the
U.S. Government Obligations maturing as to principal and interest in such
amounts and at such times as are sufficient, without consideration of any
reinvestment of such interest, to pay principal of and interest on the
Securities of that series to maturity or redemption, as the case may be,
and to pay all other sums payable by it hereunder; or
(c) (1) the Company irrevocably deposits in trust with the Trustee
under the terms of an irrevocable trust agreement in form and substance
satisfactory to the Trustee, as trust funds solely for the benefit of the
Holders of Securities of that series for that purpose, money or U.S.
Government Obligations, or a combination thereof, with the U.S. Government
Obligations maturing as to principal and interest in such amounts and at
such times as are sufficient, without consideration of any reinvestment of
such interest, to pay principal of and interest on the Securities of that
series to maturity or redemption, as the case may be;
(2) the Company shall have delivered to the Trustee either (A) a
ruling directed to the Trustee received from the Internal Revenue Service
to the effect that the Holders of the Securities of that series will not
recognize income, gain or loss for federal income tax purposes as a result
of the Company's exercise of its option under this clause (c) and will be
subject to federal income tax on the same amount and in the same manner and
at the same times as would have been the case if such option had not been
exercised, or (B) an Opinion of Counsel to the same effect as the ruling
described in subclause (A) above accompanied by a ruling to that effect
published by the Internal Revenue Service, unless there has been a change
in the applicable federal income tax law since the date of this Indenture
such that a ruling from the Internal Revenue Service is no longer required;
(3) the Company has paid or caused to be paid all sums then payable
by the Company hereunder; and
(4) the Company has delivered to the Trustee for that series an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for in this clause (c) relating to
termination of obligations of the Company have been complied with.
30<PAGE>
The Company's obligations under Sections 2.03, 2.04, 2.05, 2.06, 2.07, 4.01
(together with its payment obligations under the Securities of that series),
7.07, 7.08, 8.03 and 8.04 shall survive until the Securities of that series are
no longer outstanding. Thereafter, and after any discharge pursuant to clause
(a) above, only the Company's obligations in Sections 7.07 and 8.03 shall
survive. If and when a ruling from the Internal Revenue Service or Opinion of
Counsel referred to in clause (c)(2) above is able to be provided specifically
without regard to, and not in reliance upon, the continuance of the Company's
obligations under Section 4.01 and its payment obligations under the Securities
of that series, then the Company's payment obligations under such Section 4.01
and the Securities of that series shall cease upon delivery to the Trustee of
such ruling or Opinion of Counsel and compliance with the other conditions
precedent provided for in clause (c) above relating to the satisfaction and
discharge of this Indenture.
After any such irrevocable deposit the Trustee upon request shall
acknowledge in writing the discharge of the Company's obligations under the
Securities of that series and under this Indenture except for those surviving
obligations specified above.
"U.S. Government Obligations" means direct obligations of the United States
---------------------------
of America for the payment of which the full faith and credit of the United
States of America is pledged. U.S. Government Obligations shall not be callable
at the issuer's option.
Section 8.02. Application of Trust Money.
- ------------------------------------------
The Trustee shall hold in trust money or U.S. Government Obligations
deposited with it pursuant to Section 8.01 with respect to Securities of any
series. It shall apply the deposited money and the money from U.S. Government
Obligations through the Paying Agent and in accordance with this Indenture to
the payment of principal and interest on the Securities of that series.
Section 8.03. Repayment to Company.
- ------------------------------------
The Trustee and the Paying Agent shall promptly pay to the Company upon
request any excess money or securities held by them at any time.
The Trustee and the Paying Agent shall pay to the Company upon request any
money held by them for the payment of principal or interest that remains
unclaimed for two years after the date upon which such payment shall have become
due. After payment to the Company, Securityholders entitled to the money must
look to the Company for payment as general creditors unless an applicable
abandoned property law designates another Person, provided, however, that the
------------------
Trustee or such Paying Agent before being required to make such repayment may at
the expense of the Company mail to each such holder a notice that such money
remains unclaimed and that, after a date specified therein, which shall not be
less than 30 days from the date of such mailing any unclaimed balance of such
money then remaining will be repaid to the Company.
31<PAGE>
ARTICLE 9
SUPPLEMENTS, AMENDMENTS AND WAIVERS
Section 9.01. Without Consent of Holders.
- ------------------------------------------
The Company and the Trustee as to any series of Securities may supplement
or amend this Indenture or the Securities without notice to or the consent of
any Securityholder:
(1) to cure any ambiguity, defect or inconsistency;
(2) to comply with Article 5;
(3) to comply with any requirements of the Commission in connection
with the qualification of this Indenture under the TIA;
(4) to provide for uncertificated Securities in addition to or in
place of certificated Securities;
(5) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, provided,
---------
however, that any such addition, change or elimination (A) shall neither
--------
(i) apply to any Security of any series created prior to the execution of
such supplemental indenture and entitled to the benefit of such provision
nor (ii) modify the rights of the Holder of any such Security with respect
to such provision or (B) shall become effective only when there is no
outstanding Security of any series created prior to the execution of such
supplemental indenture and entitled to the benefit of such provision;
(6) to make any change that does not adversely affect in any material
respect the interests of the Securityholders of any series; or
(7) to establish additional series of Securities as permitted by
Section 2.01.
Section 9.02. With Consent of Holders.
- ----------------------------------------
Subject to Section 6.07, the Company and the Trustee as to any series of
Securities may amend this Indenture or the Securities of that series with the
written consent of the Holders of a majority in principal amount of the then
outstanding Securities of each series affected by the amendment, with each such
series voting as a separate class. The Holders of a majority in principal amount
of the then outstanding Securities of any series may also waive compliance in a
particular instance by the Company with any provision of this Indenture with
respect to that series or the Securities of that series; provided, however, that
------------------
32<PAGE>
without the consent of each Securityholder affected, an amendment or waiver may
not:
(1) reduce the percentage of the principal amount of Securities whose
Holders must consent to an amendment or waiver;
(2) reduce the rate of, or change the time for payment of interest
on, any Security;
(3) reduce the principal of or change the fixed maturity of any
Security or alter the redemption provisions with respect thereto;
(4) make any Security payable in money other than that stated in the
Security;
(5) make any change in Section 6.04, 6.07 or 9.02 (this sentence); or
(6) waive a default in the payment of the principal of, or interest
on, any Security, except to the extent otherwise provided for in Section
6.02.
An amendment or waiver under this Section which waives, changes or
eliminates any covenant or other provision of this Indenture which has expressly
been included solely for the benefit of one or more particular series of
Securities, or which modifies the rights of the Holders of Securities of such
series with respect to such covenant or other provision, shall be deemed not to
affect the rights under this Indenture of the Holders of Securities of any other
series.
It shall not be necessary for the consent of the Holders under this Section
to approve the particular form of any proposed amendment or waiver, but it shall
be sufficient if such consent approves the substance thereof.
After an amendment or waiver under this Section becomes effective, the
Company shall mail to Holders of Securities of each series affected thereby a
notice briefly describing the amendment or waiver. The Company will mail
supplemental indentures to Holders upon request. Any failure of the Company to
mail such notice, or any defect therein, shall not, however, in any way impair
or affect the validity of any such supplemental indenture or waiver.
Section 9.03. Revocation and Effect of Consents.
- -------------------------------------------------
Until an amendment or waiver becomes effective, a consent to it by a Holder
of a Security is a continuing consent by the Holder and every subsequent Holder
of a Security or portion of a Security that evidences the same debt as the
consenting Holder's Security, even if notation of the consent is not made on any
Security; provided, however, that unless a record date shall have been
------------------
33<PAGE>
established pursuant to Section 2.13(a), any such Holder or subsequent Holder
may revoke the consent as to his Security or portion of a Security if the
Trustee receives the notice of revocation before the date on which the amendment
or waiver becomes effective. An amendment or waiver shall become effective on
receipt by the Trustee of consents from the Holders of the requisite percentage
principal amount of the outstanding Securities of any series, and thereafter
shall bind every Holder of Securities of that series.
Section 9.04. Notation on or Exchange of Securities.
- -----------------------------------------------------
If an amendment, or waiver changes the terms of a Security: (a) the
Trustee may require the Holder of the Security to deliver it to the Trustee, the
Trustee may place an appropriate notation on the Security about the changed
terms and return it to the Holder and the Trustee may place an appropriate
notation on any Security thereafter authenticated; or (b) if the Company or the
Trustee so determines, the Company in exchange for the Security shall issue and
the Trustee shall authenticate a new Security that reflects the changed terms.
Section 9.05. Trustee To Sign Amendments, etc.
- -----------------------------------------------
The Trustee shall receive an Opinion of Counsel stating that the execution
of any amendment or waiver proposed pursuant to this Article is authorized or
permitted by this Indenture. Subject to the preceding sentence, the Trustee
shall sign such amendment or waiver if the same does not adversely affect the
rights, duties, liabilities or immunities of the Trustee. The Trustee may, but
shall not be obligated to, execute any such amendment, supplement or waiver
which affects the Trustee's own rights, duties, liabilities or immunities under
this Indenture or otherwise.
ARTICLE 10
MISCELLANEOUS
Section 10.01. Indenture Subject to Trust Indenture Act.
- --------------------------------------------------------
This Indenture is subject to the provisions of the TIA which are required
to be part of this Indenture, and shall, to the extent applicable, be governed
by such provisions.
Section 10.02. Notices.
- -----------------------
Any notice or communication is duly given if in writing and delivered in
person or sent by first-class mail (registered or certified, return receipt
requested), telecopier or overnight air courier guaranteeing next day delivery,
addressed as follows:
34<PAGE>
If to the Company:
Advanced Micro Devices, Inc.
One AMD Place
Sunnyvale, California 94088-3453
Attention:
If to the Trustee:
_______________________________
_______________________________
_______________________________
_______________________________
Attention:[___________________]
The Company or the Trustee by notice to the other may designate additional
or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders) shall be
deemed to have been duly given: at the time delivered by hand, if personally
delivered; five Business Days after being deposited in the mail, postage
prepaid, if mailed; when receipt acknowledged, if telecopied; and the next
Business Day after timely delivery to the courier, if sent by overnight air
courier guaranteeing next day delivery.
Any notice or communication to a Securityholder shall be mailed by
first-class mail to his address shown on the register kept by the Registrar.
Failure to mail a notice or communication to a Securityholder or any defect in
it shall not affect its sufficiency with respect to other Securityholders. If
the Company mails a notice or communication to Securityholders, it shall mail a
copy to the Trustee at the same time.
If a notice or communication is mailed in the manner provided above within
the time prescribed, it is duly given, whether or not the addressee receives it.
Section 10.03. Communication By Holders With Other Holders.
- -----------------------------------------------------------
Holders may communicate pursuant to TIA Section 312(b) with other Holders
with respect to their rights under this Indenture or the Securities. The
Company, the Trustee, the Registrar and anyone else shall have the protection of
TIA Section 312(c).
Section 10.04. Certificate and Opinion as to Conditions Precedent.
- ------------------------------------------------------------------
Upon any request or application by the Company to the Trustee to take any
action under this Indenture, the Company shall furnish to the Trustee:
35<PAGE>
(a) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(b) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
Section 10.05. Statements Required in Certificate or Opinion.
- -------------------------------------------------------------
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (other than the certificate provided for
in Section 4.03) shall include:
(1) a statement that the Person making such certificate or opinion
has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he or she has
made such examination or investigation as is necessary to enable him or her
to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such Person,
such condition or covenant has been complied with; provided, however, that
------------------
with respect to matters of fact an Opinion of Counsel may rely on an
Officer's Certificate or certificates of public officials.
Section 10.06. Rules by Trustee and Agents.
- -------------------------------------------
The Trustee as to Securities of any series may make reasonable rules for
action by or at a meeting of Holders of Securities of that series. The
Registrar and any Paying Agent or Authenticating Agent may make reasonable rules
and set reasonable requirements for their functions.
Section 10.07. Legal Holidays.
- ------------------------------
A "Legal Holiday" is a Saturday, a Sunday or a day on which banking
institutions in New York, New York or San Francisco, California, are not
required to be open. If a payment date is a Legal Holiday at a place of
payment, payment may be made at that place on the next succeeding day that is
not a Legal Holiday, and no interest shall accrue for the intervening period.
36<PAGE>
Section 10.08. No Recourse Against Others.
- ------------------------------------------
A past, present or future director, officer, employee, stockholder or
incorporator, as such, of the Company or any successor corporation shall not
have any liability for any obligations of the Company under the Securities or
the Indenture or for any claim based on, in respect of, or by reason of such
obligations or their creation. Each Securityholder by accepting a Security
waives and releases all such liability. The waiver and release are part of the
consideration of issuance of the Securities. Such waiver may not be effective
to waive liabilities under the federal securities laws and it is the view of the
Commission that such a waiver is against public policy.
Section 10.09. Counterparts.
- ----------------------------
This Indenture may be executed by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
Section 10.10. Governing Law.
- -----------------------------
The internal laws of the State of New York shall govern this Indenture and
the Securities, without regard to the conflict of laws provisions thereof.
Section 10.11. Severability.
- ----------------------------
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 10.12. Effect of Headings, Table of Contents, etc.
- ----------------------------------------------------------
The Article and Section headings herein and the table of contents are for
convenience only and shall not affect the construction hereof.
Section 10.13. Successors and Assigns.
- --------------------------------------
All covenants and agreements of the Company in this Indenture and the
Securities shall bind its successors and assigns. All agreements of the Trustee
in this Indenture shall bind its successor.
Section 10.14. No Interpretation of Other Agreements.
- -----------------------------------------------------
This Indenture may not be used to interpret another indenture, loan or debt
agreement of the Company or any Subsidiary. Any such indenture, loan or debt
agreement may not be used to interpret this Indenture.
37<PAGE>
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have executed this Indenture as of
the date first above written.
ADVANCED MICRO DEVICES, INC.
By____________________________
Name:
Title:
[ ],
as Trustee
By____________________________
Name:
Title:
S-1<PAGE>
STATE OF CALIFORNIA )
) ss.
CITY OF SUNNYVALE )
On this _____ day of _____________, before me personally
came __________________, to me known, who being by me duly
sworn, did depose and say that he is _________________ of
Advanced Micro Devices, Inc., one of the entities described in
and which executed the above instrument; and that he signed his
name thereto by authority of the Board of Directors of such
entity.
______________________________
Notary Public
(Notarial Seal)
STATE OF __________ )
) ss.
CITY OF ___________ )
On this _____ day of _____________, before me personally
came __________________, to me known, who being by me duly
sworn, did depose and say that he is Trust Officer of
____________________________, one of the entities described in
and which executed the above instrument; and that he signed his
name thereto by authority of the Board of Directors of such
entity.
______________________________
Notary Public
(Notarial Seal)
S-2
=================================================================
ADVANCED MICRO DEVICES, INC.
and
____________________________
as Depositary
and
HOLDERS OF DEPOSITARY RECEIPTS
______________________
DEPOSIT AGREEMENT
______________________
Dated as of ________, 19__
=================================================================
<PAGE>
TABLE OF CONTENTS
Page
Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Recitals . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE I
Definitions
SECTION 1.01 "Authorizing Resolution" . . . . . . . . . . . . . 1
SECTION 1.02 "Certificate of Incorporation" . . . . . . . . . . 1
SECTION 1.03 "Company" . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.04 "Deposit Agreement" . . . . . . . . . . . . . . . 2
SECTION 1.05 "Depositary"; "Depositary's Office" . . . . . . . 2
SECTION 1.06 "Depositary's Agent" . . . . . . . . . . . . . . 2
SECTION 1.07 "Depositary Shares" . . . . . . . . . . . . . . . 2
SECTION 1.08 "Receipt" . . . . . . . . . . . . . . . . . . . . 2
SECTION 1.09 "record holder" . . . . . . . . . . . . . . . . . 2
SECTION 1.10 "Registrar" . . . . . . . . . . . . . . . . . . . 2
SECTION 1.11 "Securities Act of 1933" . . . . . . . . . . . . 2
SECTION 1.12 "Stock" . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II
Form of Receipts, Deposit of Stock, Execution and Delivery,
Transfer, Surrender and Redemption of Receipts
SECTION 2.01 Form and Transferability of Receipts . . . . . . 3
SECTION 2.02 Deposit of Stock; Execution and Delivery
of Receipts in Respect thereof . . . . . . . 4
SECTION 2.03 Redemption of Stock . . . . . . . . . . . . . . . 5
SECTION 2.04 Transfer of Receipts . . . . . . . . . . . . . . 6
SECTION 2.05 Combinations and Split-ups of Receipts . . . . . . 7
SECTION 2.06 Surrender of Receipts and Withdrawal
of Stock . . . . . . . . . . . . . . . . . . 7
SECTION 2.07 Limitations on Execution and Delivery,
Transfer, Surrender and Withdrawal
of Receipts . . . . . . . . . . . . . . . . . 8
SECTION 2.08 Lost Receipts, Etc. . . . . . . . . . . . . . . . 8
SECTION 2.09 Cancellation and Destruction
of Surrendered Receipts . . . . . . . . . . . 9
i<PAGE>
ARTICLE III
Certain Obligations of Holders of Receipts
and the Company
SECTION 3.01 Filing Proofs, Certificates
and Other Information . . . . . . . . . . . . 9
SECTION 3.02 Payment of Taxes or Other
Governmental Charges . . . . . . . . . . . . 9
SECTION 3.03 Warranties as to Stock . . . . . . . . . . . . . 9
ARTICLE IV
The Deposited Securities; Notices
SECTION 4.01 Cash Distributions . . . . . . . . . . . . . . 10
SECTION 4.02 Distributions Other Than Cash . . . . . . . . . 10
SECTION 4.03 Subscription Rights, Preferences
or Privileges . . . . . . . . . . . . . . . 11
SECTION 4.04 Notice of Dividends; Fixing of Record
Date for Holders of Receipts . . . . . . . 12
SECTION 4.05 Voting Rights . . . . . . . . . . . . . . . . . 12
SECTION 4.06 Changes Affecting Deposited
Securities and Reclassifications,
Recapitalizations, etc. . . . . . . . . . . 13
SECTION 4.07 Reports . . . . . . . . . . . . . . . . . . . . 13
SECTION 4.08 Lists of Receipt Holders . . . . . . . . . . . 14
ARTICLE V
The Depositary and the Company
SECTION 5.01 Maintenance of Offices, Agencies,
Transfer Books by the Depositary;
Registrar . . . . . . . . . . . . . . . . . 14
SECTION 5.02 Prevention or Delay in Performance
by the Depositary, the Depositary's
Agents or the Company . . . . . . . . . . . 15
SECTION 5.03 Obligations of the Depositary, the
Depositary's Agents and the Company . . . . 15
SECTION 5.04 Resignation and Removal of the
Depositary; Appointment of
Successor Depositary . . . . . . . . . . . 17
SECTION 5.05 Corporate Notices and Reports . . . . . . . . . 18
SECTION 5.06 Deposit of Stock by the Company . . . . . . . . 18
SECTION 5.07 Indemnification by the Company . . . . . . . . 18
SECTION 5.08 Charges and Expenses . . . . . . . . . . . . . 19
ii<PAGE>
ARTICLE VI
Amendment and Termination
SECTION 6.01 Amendment . . . . . . . . . . . . . . . . . . . 19
SECTION 6.02 Termination . . . . . . . . . . . . . . . . . . 20
ARTICLE VII
Miscellaneous
SECTION 7.01 Counterparts . . . . . . . . . . . . . . . . . 21
SECTION 7.02 Exclusive Benefit of Parties . . . . . . . . . 21
SECTION 7.03 Invalidity of Provisions . . . . . . . . . . . 21
SECTION 7.04 Notices . . . . . . . . . . . . . . . . . . . . 21
SECTION 7.05 Depositary's Agents . . . . . . . . . . . . . . 22
SECTION 7.06 Holders of Receipts Are Parties . . . . . . . . 22
SECTION 7.07 Governing Law . . . . . . . . . . . . . . . . . 22
SECTION 7.08 Headings . . . . . . . . . . . . . . . . . . . 22
Testimonium . . . . . . . . . . . . . . . . . . . . . . . . 23
Signatures . . . . . . . . . . . . . . . . . . . . . . . . . 23
Exhibit A
iii<PAGE>
DEPOSIT AGREEMENT
DEPOSIT AGREEMENT, dated as of _____ __, 19__, among
ADVANCED MICRO DEVICES, INC., a corporation duly organized and
existing under the laws of the State of Delaware, _______________
_________________________________________________________________
_________________________________________________________________
_______________________________, and all holders from time to
time of Depositary Receipts issued hereunder.
WITNESSETH:
WHEREAS, it is desired to provide, as hereinafter set forth
in this Deposit Agreement, for the deposit of ____________ shares
of Preferred Stock, Series __, par value $.10 per share, of
A d v a n c e d M i c r o D e v i c e s , I n c . w i t h
________________________________________
_____________________, as Depositary, for the purposes set forth
in this Deposit Agreement and for the issuance hereunder of
Depositary Receipts evidencing Depositary Shares, in respect of
the ____ shares of Preferred Stock so deposited; and
WHEREAS, the Depositary Receipts are to be substantially in
the form of Exhibit A annexed hereto, with appropriate
insertions, modifications and omissions, as hereinafter provided
in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises, it is
agreed by and among the parties hereto as follows:
ARTICLE I
DEFINITIONS
The following definitions shall for all purposes, unless
otherwise clearly indicated, apply to the respective terms used
in this Deposit Agreement and the Receipts:
SECTION 1.01. The term "Authorizing Resolution" shall mean
the resolution adopted by the Company's Board of Directors on
___________, 19__, establishing and setting forth the powers,
designations, preferences and rights of the Stock.
SECTION 1.02. The term "Certificate of Incorporation" shall
mean the Certificate of Incorporation, as amended from time to
time, of the Company.
SECTION 1.03. The term "Company" shall mean Advanced Micro
Devices, Inc., incorporated under the laws of the State of
1<PAGE>
Delaware and having at the date hereof its principal office at
One AMD Place, Sunnyvale, California 94088-3453, and its
successors.
SECTION 1.04. The term "Deposit Agreement" shall mean this
Agreement, as the same may be amended or supplemented from time
to time.
SECTION 1.05. The term "Depositary" shall mean ___________
_________________________________________________________________
_________________________________________________________________
_______________________________, with its principal office for
the administration of depositary receipts (the "Depositary's
Office") at the date hereof located at __________________________
_________________________________________________________, and
any successor as depositary hereunder.
SECTION 1.06. The term "Depositary's Agent" shall mean an
agent appointed by the Depositary as provided, and for the
purposes specified, in Section 7.05.
SECTION 1.07. The term "Depositary Shares" shall mean the
Depositary Shares, evidenced by the Depositary Receipts issued
hereunder and representing the interests in Stock deposited with
the Depositary hereunder. Each Depositary Share shall, as
provided herein, represent an interest in one-____ (1/__) of one
share of Stock and the same proportionate interest in any and all
other property received by the Depositary in respect of such
shares of Stock and held at the time under this Deposit
Agreement.
SECTION 1.08. The term "Receipt" shall mean one or more of
the Depositary Receipts issued hereunder.
SECTION 1.09. The term "record holder" as applied to a
Receipt shall mean the person in whose name a Receipt is
registered on the books of the Depositary maintained for such
purpose.
SECTION 1.10. The term "Registrar" shall mean any bank or
trust company which shall be appointed to register Receipts as
herein provided.
SECTION 1.11. The term "Securities Act of 1933" shall mean
the Act of May 27, 1933 (15 U.S. Code, Secs. 77a-77aa), as from
time to time amended.
SECTION 1.12. The term "Stock" shall mean shares of the
Company's Preferred Stock, Series ______, par value $.10 per
share, heretofore validly issued, fully paid and nonassessable.
2<PAGE>
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF STOCK,
EXECUTION AND DELIVERY, TRANSFER,
SURRENDER AND REDEMPTION
OF RECEIPTS
SECTION 2.01. Form and Transferability of Receipts.
------------------------------------------
Receipts shall be engraved or printed or lithographed and shall
be substantially in the form set forth in Exhibit A annexed to
this Deposit Agreement, with appropriate insertions,
modifications and omissions, as hereinafter provided. Receipts
shall be executed by the Depositary by the manual signature of a
duly authorized officer of the Depositary, provided that such
signature may be a facsimile if a Registrar for the Receipts
(other than the Depositary) shall have been appointed and such
Receipts are countersigned by manual signature of a duly
authorized signatory of the Registrar. No Receipt shall be
entitled to any benefits under this Deposit Agreement or be valid
or obligatory for any purpose, unless it shall have been executed
manually or, if a Registrar for the Receipts (other than the
Depositary) shall have been appointed, by facsimile by the
Depositary by the signature of a duly authorized officer and, if
executed by facsimile signature of the Depositary, shall have
been countersigned manually by such Registrar by the signature of
a duly authorized signatory. Receipts executed as provided in
this Section may be issued notwithstanding that any authorized
officer of the Depositary signing such Receipts shall have ceased
to hold office at the time of issuance of such Receipts. The
Depositary shall record on its books each Receipt so signed and
delivered as hereinafter provided.
Except as the Depositary and the Company may otherwise
determine, Receipts shall be in denominations of any number of
whole Depositary Shares.
All Receipts shall be dated the date of their execution.
Receipts may be endorsed with or have incorporated in the
text thereof such legends or recitals or changes not inconsistent
with the provisions of this Deposit Agreement as may be required
by the Depositary or required to comply with any applicable law
or any regulation thereunder or with the rules and regulations of
any securities exchange upon which the Stock or the Depositary
Shares may be listed or to conform with any usage with respect
thereto, or to indicate any special limitations or restrictions
to which any particular Receipts are subject by reason of the
date of issuance of the Stock or otherwise.
Title to a Receipt which is properly endorsed or accompanied
by a properly executed instrument of transfer and to the
Depositary Shares evidenced thereby, shall be transferable by
3<PAGE>
delivery with the same effect as in the case of a negotiable
instrument; provided, however, that until a Receipt shall be
------------------
transferred on the books of the Depositary as provided in Section
2.04, the Depositary, each Depositary's Agent and the Company
may, notwithstanding any notice to the contrary, treat the record
holder thereof at such time as the absolute owner thereof for the
purpose of determining the person entitled to distribution of
dividends or other distributions, or to any notice provided for
in this Deposit Agreement and for all other purposes.
SECTION 2.02. Deposit of Stock; Execution and Delivery of
---------------------------------------------
Receipts in Respect Thereof. Subject to the terms and conditions
----------------------------
of this Deposit Agreement, any holder of Stock may deposit such
Stock under this Deposit Agreement by a delivery to the
Depositary of a certificate or certificates for the Stock to be
deposited, properly endorsed or accompanied, if required by law,
by a duly executed instrument of transfer or endorsement, in form
satisfactory to the Depositary, together with all such
certifications as may be required by the Depositary in accordance
with the provisions of this Deposit Agreement, and together with
a written order directing the Depositary to execute and deliver
to, or upon the written order of, the person or persons stated in
such order a Receipt or Receipts for the number of Depositary
Shares representing such deposited Stock.
If required by the Depositary, Stock presented for deposit
at any time, whether or not the register of stockholders of the
company is closed, shall also be accompanied by an agreement or
assignment, or other instrument satisfactory to the Depositary,
which will provide for the prompt transfer to the Depositary or
its nominee of any dividend or right to subscribe for additional
Stock or to receive other property which any person in whose name
the Stock is or has been recorded may thereafter receive upon or
in respect of such deposited Stock, or in lieu thereof such
agreement of indemnity or other agreement as shall be
satisfactory to the Depositary.
Subject to the terms and conditions of this Deposit
Agreement, Stock may also be deposited hereunder in connection
with the delivery of Receipts to represent distributions under
Section 4.02 and upon exercise of the rights to subscribe
referred to in Section 4.03.
Upon each delivery to the Depositary of a certificate or
certificates for Stock to be deposited hereunder, together with
the other documents above specified, the Depositary shall, as
soon as transfer and recordation can be accomplished, present
such certificate or certificates to the Company for transfer and
recordation in the name of the Depositary or its nominee of the
Stock being deposited. Deposited Stock shall be held by the
Depositary, at the Depositary's Office, or at such other place or
places as the Depositary shall determine.
4<PAGE>
Upon receipt by the Depositary of a certificate or
certificates for Stock deposited in accordance with the
provisions of this Section, together with the other documents
required as above specified and upon recordation of the Stock on
the books of the Company in the name of the Depositary or its
nominee, the Depositary, subject to the terms and conditions of
this Deposit Agreement, shall execute and deliver to or upon the
order of the person or persons named in the written order
delivered to the Depositary referred to in the first paragraph of
this Section, a Receipt or Receipts for the number of Depositary
Shares representing the Stock so deposited and registered in such
name or names as may be requested by such person or persons. The
Depositary shall execute and deliver such Receipt or Receipts at
the Depositary's Office and at such other offices, if any, as it
may designate. Delivery at other offices shall be at the risk
and expense of the person requesting such delivery. However, in
each case, any such delivery of a Receipt or Receipts will be
made only upon payment to the Depositary of all taxes and
governmental charges and fees payable in connection with such
deposit and the transfer of the deposited Stock.
SECTION 2.03. Redemption of Stock. Whenever the Company
--------------------
shall elect to redeem shares of Stock for cash pursuant to Clause
(iii) of the Authorizing Resolution, it shall give the Depositary
not less than 45 nor more than 90 days' notice of the date fixed
by the Company for such redemption, the number of shares of Stock
held by the Depositary to be so redeemed and the redemption price
for the Stock to be redeemed (which shall include full cumulative
dividends thereon to the redemption date). On the date of such
redemption, provided that the Company shall then have paid in
full to the Depositary the redemption price of the Stock to be
redeemed, the Depositary shall redeem the number of Depositary
Shares representing such Stock. The Depositary shall mail notice
of such redemption and the simultaneous redemption of the number
of Depositary Shares representing the Stock to be redeemed, first
class mail, postage prepaid, not less than 30 and not more than
60 days prior to the date fixed for redemption of such Stock and
Depositary Shares (the "redemption date"), to the holders of
record on the record date for such redemption determined pursuant
to Section 4.04 of the Receipts evidencing the Depositary Shares
to be so redeemed, at the addresses of such holders as the same
appear on the records of the Depositary; but neither failure to
mail any such notice, nor any defect in any notice, to one or
more holders shall affect the sufficiency of the proceedings for
redemption as to other holders. Each such notice shall state the
record date for the purposes of such redemption, the redemption
date, the number of Depositary Shares to be redeemed, and, if
less than all the Depositary Shares evidenced by Receipts held by
any such holder are to be redeemed, the number of such Depositary
Shares held by such holder to be so redeemed; the redemption
price, the place or places where Receipts are to be surrendered
for payment of the redemption price; and that dividends in
respect of the Stock represented by the
5<PAGE>
Depositary Shares to be redeemed will cease to accrue on the
redemption date. In case less than all the outstanding
Depositary Shares are to be redeemed, the Depositary Shares
to be so redeemed shall be selected by lot or pro rata (as nearly
--------
as may be) or in any other equitable manner determined by the
Depositary.
At the close of business on the redemption date, if the
Company shall have redeemed the shares of underlying Stock, the
Depositary Shares being redeemed from proceeds equal in amount to
the redemption price of the shares of Stock so called for
redemption shall be deemed no longer to be outstanding, all
rights of the holders of Receipts evidencing such Depositary
Shares (except the right to receive the redemption price) shall,
to the extent of such Depositary Shares, cease and terminate and,
upon surrender in accordance with said notice of the Receipts
evidencing any such Depositary Shares (properly endorsed or
assigned for transfer, if the Depositary shall so require), such
Depositary Shares shall be redeemed by the Depositary at a
redemption price per share equal to one-________ (1/__) (as such
fraction may from time to time be adjusted, in certain events, so
as to equal at all times the fraction of an interest represented
by one Depositary Share in one share of Stock) of the redemption
price per share paid in respect of the shares of Stock plus all
money and other property, if any, represented thereby including
all amounts paid by the Company in respect of dividends which to
the redemption date have accrued on the shares to be so redeemed
and have not theretofore been paid.
If less than all of the Depositary Shares evidenced by a
Receipt are called for redemption, the Depositary will deliver to
the holder of such Receipt, without service charge, upon
surrender of such Receipt to the Depositary (with, if the
Depositary so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to, the Depositary,
duly executed by the holder thereof or his attorney duly
authorized in writing), together with the redemption payment, a
new Receipt evidencing the Depositary Shares evidenced by such
prior Receipt and not called for redemption.
SECTION 2.04. Transfer of Receipts. Subject to the terms
----------------------
and conditions of this Deposit Agreement, the Depositary shall
register the transfer on its books from time to time of Receipts
upon any surrender thereof at the Depositary's Office or at such
other offices as it may designate for such purpose by the holder
in person or by duly authorized attorney, properly endorsed or
accompanied by a properly executed instrument of transfer, and
duly stamped as may be required by law. Thereupon the Depositary
shall execute a new Receipt or Receipts and deliver the same to
or upon the order of the person entitled thereto evidencing the
same aggregate number of Depositary Shares as those evidenced by
the Receipt or Receipts surrendered.
6<PAGE>
SECTION 2.05. Combinations and Split-ups of Receipts.
------------------------------------------
Subject to the terms and conditions of this Deposit Agreement,
upon surrender of a Receipt or Receipts at the Depositary's
Office or at such other offices as it may designate for the
purpose of effecting a split-up or combination of such Receipt or
Receipts, by the holder in person or by duly authorized attorney,
properly endorsed or accompanied by a properly executed
instrument of transfer, together with written instructions
specifying the number of Receipts to be received upon such
split-up or combination, the Depositary shall execute and deliver
a new Receipt or Receipts in the authorized denominations
requested, evidencing the same aggregate number of Depositary
Shares evidenced by the Receipt or Receipts surrendered.
SECTION 2.06. Surrender of Receipts and Withdrawal of
-------------------------------------------
Stock. Any holder of a Receipt or Receipts representing any
------
number of whole shares of Stock may withdraw the Stock and all
money and other property, if any, represented thereby by
surrendering such Receipt or Receipts, at the Depositary's Office
or at such other offices as the Depositary may designate for such
withdrawals (unless the Depositary Shares represented thereby
shall have been theretofore called for redemption). Thereafter,
without unreasonable delay, the Depositary shall deliver to such
holder, or to the person or persons designated by such holder as
hereinafter provided, the number of whole shares of Stock and all
money and other property, if any, represented by the Receipt or
Receipts so surrendered for withdrawal. If the Receipt or
Receipts delivered by the holder to the Depositary in connection
with such withdrawal shall evidence a number of Depositary Shares
in excess of the number of Depositary Shares representing the
number of whole shares of Stock to be so withdrawn, the
Depositary shall at the same time, in addition to such number of
whole shares of Stock and such money and other property, if any,
to be so withdrawn, deliver to such holder, or (subject to
Section 2.04) upon his order, a new Receipt evidencing such
excess number of Depositary Shares. Delivery of the Stock and
money and other property being withdrawn may be made by the
delivery of such certificates, documents of title and other
instruments as the Depositary may deem appropriate, which, if
required by law, shall be properly endorsed or accompanied by
proper instruments of transfer.
If the Stock and the money and other property being
withdrawn are to be delivered to a person or persons other than
the record holder of the Receipt or Receipts being surrendered
for withdrawal of Stock, such holder shall execute and deliver to
the Depositary a written order (accompanied by a signature
guarantee) so directing the Depositary and the Depositary may
require that the Receipt or Receipts surrendered by such holder
for withdrawal of such shares of Stock be properly endorsed in
blank or accompanied by a properly executed instrument of
transfer in blank.
7<PAGE>
Delivery of the Stock and the money and other property, if
any, represented by Receipts surrendered for withdrawal shall be
made by the Depositary at the Depositary's Office, except that,
at the request, risk and expense of the holder surrendering such
Receipt and for the account of the holder thereof, such delivery
may be made at such other place as may be designated by such
holder.
SECTION 2.07. Limitations on Execution and Delivery,
------------------------------------------
Transfer, Surrender and Withdrawal of Receipts. As a condition
------------------------------------------------
precedent to the execution and delivery, transfer, split-up,
combination, surrender or withdrawal of any Receipt, the
Depositary or any of the Depositary's Agents, or the Company, may
require payment to it of a sum sufficient for the payment (or, in
the event that the Depositary or the Company shall have made such
payment, the reimbursement to it) of any tax or other
governmental charge with respect thereto (including any such tax
or charge with respect to Stock being deposited or withdrawn),
may require the production of proof satisfactory to it as to the
identity and genuineness of any signature and may also require
compliance with such regulations, if any, as the Depositary may
establish consistent with the provisions of this Deposit
Agreement.
The deposit of Stock may be refused, or the delivery of
Receipts against Stock may be suspended or the transfer of
Receipts may be refused (a) during any period when the register
of stockholders of the Company is closed, or (b) if any such
action is deemed necessary or advisable by the Depositary, any of
the Depositary's Agents or the Company at any time or from time
to time because of any requirement of law or of any government or
governmental body or commission, or under any provision of this
Deposit Agreement, or, with the approval of the Company, for any
other reason. Without limitation of the foregoing, the
Depositary shall not knowingly accept for deposit under this
Deposit Agreement any shares of Stock the distribution of which
is required to be registered under the Securities Act of 1933,
unless a registration statement under such Act is in effect as to
such shares of Stock.
SECTION 2.08. Lost Receipts, Etc. In case any Receipt
--------------------
shall be mutilated or destroyed or lost or stolen, the Depositary
in its discretion may execute and deliver a Receipt of like form
and tenor in exchange and substitution for such mutilated
Receipt, or in lieu of and in substitution for such destroyed,
lost or stolen Receipt, upon (i) the filing by the holder thereof
with the Depositary of evidence satisfactory to the Depositary of
such destruction or loss or theft of such Receipt, of the
authenticity thereof and of his ownership thereof, and (ii) the
furnishing of the Depositary with reasonable indemnification
satisfactory to it, and payment of any expense (including fees
and expenses of the Depositary notwithstanding the provisions of
Section 5.08) in connection therewith.
8<PAGE>
SECTION 2.09. Cancellation and Destruction of Surrendered
--------------------------------------------
Receipts. All Receipts surrendered to the Depositary or any
---------
Depositary's Agent shall be cancelled by the Depositary. Except
as prohibited by applicable law or regulation, the Depositary is
authorized to destroy such Receipts so cancelled.
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS
OF RECEIPTS AND THE COMPANY
SECTION 3.01. Filing Proofs, Certificates and Other
------------------------------------------
Information. Any person presenting Stock for deposit or any
------------
holder of a Receipt may be required from time to time to file
such proof of residence, or other matters or other information,
to execute such certificates and to make such representations and
warranties as the Depositary may reasonably deem necessary or
proper. The Depositary may withhold the delivery or delay the
transfer, redemption or exchange of any Receipt or the withdrawal
of the Stock represented by the depositary Shares evidenced by
any Receipt or the distribution or sale of any dividend or other
distribution or rights or of the proceeds thereof until such
proof or other information is filed or such certificates are
executed or such representations and warranties are made.
SECTION 3.02. Payment of Taxes or Other Governmental
------------------------------------------
Charges. If any tax or other governmental charge shall become
--------
payable by or on behalf of the Depositary with respect to any
Receipt evidencing Depositary Shares or with respect to the
Depositary Shares evidenced by such Receipt or with respect to
the Stock (or any fractional interest therein) represented by
such Depositary Shares, such tax (including transfer taxes, if
any) or governmental charge shall be payable by the holder of
such Receipt. Transfer of any Receipt or any withdrawal of Stock
and all money or other property, if any, represented by the
Depositary Shares evidenced by such Receipt may be refused until
such payment is made, and any dividends or other distributions
may be withheld, or any part or all of the Stock or other
property represented by the Depositary Shares evidenced by such
Receipt and not theretofore sold may be sold for the account of
the holder thereof (after attempting by reasonable means to
notify such holder prior to such sale), and such dividends or
other distributions or the proceeds of any such sale may be
applied to any payment of such tax or other governmental charge,
the holder of such Receipt remaining liable for any deficiency.
SECTION 3.03. Warranties as to Stock. In the case of the
-----------------------
initial deposit of the Stock, the Company and, in the case of
subsequent deposits thereof, each person so depositing Stock
9<PAGE>
under this Deposit Agreement shall be deemed thereby to
represent and warrant that such Stock and each certificate
therefor are valid, that the person making such deposit,
or the person on whose behalf such deposit is made, has good and
marketable title to such Stock, free and clear of any liens,
claims or encumbrances, and that the person making such deposit
is duly authorized so to do. The Company hereby further represents
and warrants that the Stock, when issued, will be validly
issued, fully paid and nonassessable. Such representations and
warranties shall survive the deposit of the Stock and the issuance
of Receipts.
ARTICLE IV
THE DEPOSITED SECURITIES; NOTICES
SECTION 4.01. Cash Distributions. Whenever the Depositary
--------------------
shall receive any cash dividend or other cash distribution on
Stock, the Depositary shall, subject to Section 3.02, promptly
distribute to record holders of Receipts on the record date fixed
pursuant to Section 4.04 such amounts of such sum as are, as
nearly as practicable, in proportion to the respective numbers of
Depositary Shares evidenced by the Receipts held by such holders;
provided, however, that in case the Company or the Depositary
------------------
shall be required to withhold and does withhold from any cash
dividend or other cash distribution in respect of the Stock an
amount on account of taxes, the amount made available for
distribution or distributed in respect of Depositary Shares shall
be reduced accordingly. The Depositary shall distribute or make
available for distribution, as the case may be, only such amount,
however, as can be distributed without attributing to any owner
of Depositary Shares a fraction of one cent and any balance not
so distributable shall be held by the Depositary (without
liability for interest thereon) and shall be added to and be
treated as part of the next sum received by the Depositary for
distribution to record holders of Receipts then outstanding.
SECTION 4.02. Distributions Other Than Cash. Whenever the
------------------------------
Depositary shall receive any distribution other than cash upon
Stock, the Depositary shall, subject to Section 3.02, promptly
distribute to record holders of Receipts on the record date fixed
pursuant to Section 4.04 such amounts of the securities or
property received by it as are, as nearly as practicable, in
proportion to the respective numbers of Depositary Shares
evidenced by the Receipts held by such holders, in any manner
that the Depositary may deem equitable and practicable for
accomplishing such distribution. If in the opinion of the
Depositary such distribution cannot be made proportionately among
such record holders, or if for any other reason (including any
requirement that the Company or the Depositary withhold an amount
on account of taxes) the Depositary deems, after consultation
with the Company, such distribution not to be feasible, the
10<PAGE>
Depositary may, with the approval of the Company, adopt such
method as it deems equitable and practicable for the purpose of
effecting such distribution, including the sale (at public or
private sale) of the securities or property thus received,
or any part thereof, at such place or places and upon such
terms as it may deem proper. The net proceeds of any such sale
shall, subject to Section 3.02, be distributed or made available
for distribution, as the case may be, by the Depositary to
record holders of Receipts as provided by Section 4.01 in the
case of a distribution received in cash.
SECTION 4.03. Subscription Rights, Preferences or
----------------------------------------
Privileges. If the Company shall at any time offer or cause to
-----------
be offered to the persons in whose names Stock is recorded on the
books of the Company any rights, preferences or privileges to
subscribe for or to purchase any securities or any rights,
preferences or privileges of any other nature, such rights,
preferences or privileges shall in each such instance be made
available by the Depositary to the record holders of Receipts on
the record date fixed pursuant to Section 4.04 in such manner as
the Depositary may determine, either by the issue to such record
holders of warrants representing such rights, preferences or
privileges or by such other method as may be approved by the
Depositary in its discretion with the approval of the Company;
provided, however, that (a) if at the time of issue or offer of
-----------------
any such rights, preferences or privileges the Depositary
determines that it is not lawful or (after consultation with the
Company) not feasible to make such rights, preferences or
privileges available to holders of Receipts by the issue of
warrants or otherwise, or (b) if and to the extent so instructed
by holders of Receipts who do not desire to exercise such rights,
preferences or privileges, then the Depositary, in its discretion
(with the approval of the Company, in any case where the
Depositary has determined that it is not feasible to make such
rights, preferences or privileges available), may, if applicable
laws and the terms of such rights, preferences or privileges
permit such transfer, sell such rights, preferences or privileges
at public or private sale, at such place or places and upon such
terms as it may deem proper. The net proceeds of any such sale
shall, subject to Section 3.02, be distributed by the Depositary
to the record holders of Receipts entitled thereto as provided by
Section 4.01 in the case of a distribution received in cash.
If registration under the Securities Act of 1933 of the
securities to which any rights, preferences or privileges relate
is required in order for holders of Receipts to be offered or
sold the securities to which such rights, preferences or
privileges relate, the Company agrees with the Depositary that it
will file promptly a registration statement pursuant to such Act
with respect to such rights, preferences or privileges and
securities and use its best efforts and take all steps available
to it to cause such registration statement to become effective
sufficiently in advance of the expiration of such rights,
11<PAGE>
preferences or privileges to enable such holders to exercise such
rights, preferences or privileges. In no event shall the
Depositary make available to the holders of Receipts any right,
preference or privilege to subscribe for or to purchase any
securities unless and until such a registration statement
shall have become effective, or unless the
offering and sale of such securities to such holders are exempt
from registration under the provisions of such Act.
If any other action under the laws of any jurisdiction or
any governmental or administrative authorization, consent or
permit is required in order for such rights, preferences or
privileges to be made available to holders of Receipts, the
Company agrees with the Depositary that the Company will use its
best efforts to take such action or obtain such authorization,
consent or permit sufficiently in advance of the expiration of
such rights, preferences or privileges to enable such holders to
exercise such rights, preferences or privileges.
SECTION 4.04. Notice of Dividends; Fixing of Record Date
--------------------------------------------
for Holders of Receipts. Whenever any cash dividend or other
-------------------------
cash distribution shall become payable or any distribution other
than cash shall be made, or if rights, preferences or privileges
shall at any time be offered, with respect to Stock, or whenever
the Depositary shall receive notice of (a) any meeting at which
holders of Stock are entitled to vote or of which holders of
Stock are entitled to notice or (b) any election on the part of
the Company to redeem any shares of Stock, the record date shall
be the same date as the record date fixed by the Company with
respect to the Stock for the determination of the holders of
Receipts who shall be entitled to receive such dividend,
distribution, rights, preferences or privileges or the net
proceeds of the sale thereof, or to give instructions for the
exercise of voting rights at any such meeting, or who shall be
entitled to notice of such meeting, or whose Depositary Shares
are to be redeemed.
SECTION 4.05. Voting Rights. Upon receipt of notice of any
--------------
meeting at which the holders of Stock are entitled to vote, the
Depositary shall, as soon as practicable thereafter, mail to the
record holders of Receipts a notice (which shall be provided by
the Company) which shall contain (a) such information as is
contained in such notice of meeting, and (b) a statement that the
holders of Receipts at the close of business on a specified
record date determined pursuant to Section 4.04 will be entitled,
subject to any applicable provisions of law and of the Company's
Certificate of Incorporation or the Authorizing Resolution, to
instruct the Depositary as to the exercise of the voting rights
pertaining to the amount of Stock represented by their respective
Receipts, and a brief statement as to the manner in which such
instructions may be given, including an express indication that
instructions may be given to the Depositary to give a
discretionary proxy to a person designated by the Company. Upon
12<PAGE>
the written request of a holder of a Receipt on such record date,
the Depositary shall endeavor insofar as practicable to vote or
cause to be voted the amount of Stock represented by the
Depositary Shares evidenced by such Receipt in accordance with
the instructions set forth in such request. The Company hereby
agrees to take all action which may be deemed necessary
by the Depositary in order to enable the
Depositary to vote such Stock or cause such Stock to be voted.
The Depositary shall not vote to the extent of the Stock
represented by the Depositary Shares evidenced by any Receipts
except in accordance with written instructions from a holder
entitled hereunder to give such instructions.
SECTION 4.06. Changes Affecting Deposited Securities and
--------------------------------------------
Reclassifications, Recapitalizations, etc. Upon any change in
-------------------------------------------
par or stated value, split-up, consolidation or any other
reclassification of Stock, or upon any recapitalization,
reorganization, merger, amalgamation or consolidation or sale of
all or substantially all of the Company's assets affecting the
Company or to which it is a party, the Depositary may, in its
discretion (with the approval of) and shall (upon the
instructions of) the Company and, in either case, in such manner
as the Depositary may deem equitable, treat any securities which
shall be received by the Depositary in exchange for or upon
conversion of or in respect of the Stock as new deposited
securities under this Deposit Agreement, and Receipts then
outstanding shall thenceforth represent the new deposited
securities so received in exchange for or upon conversion or in
respect of such Stock. In any such case the Depositary may, in
its discretion, with the approval of the Company, execute and
deliver additional Receipts, or call for the surrender of all
outstanding Receipts to be exchanged for new Receipts
specifically describing such new deposited securities. Anything
to the contrary herein notwithstanding, holders of Receipts shall
have the right from and after the effective date of any such
change in par or stated value, split-up, consolidation or other
reclassification of the Stock or any such recapitalization,
reorganization, merger, amalgamation or consolidation or sale of
substantially all of the assets of the Company to surrender such
Receipts to the Depositary with instructions to convert, exchange
or surrender the Stock represented thereby only into or for, as
the case may be, the kind and amount of shares of stock and other
securities and property and cash into which the Stock represented
by such Receipts might have been converted or for which such
Stock might have been exchanged or surrendered immediately prior
to the effective date of such transaction. The Company shall
cause effective provision to be made by the resulting or
surviving corporation (if other than the Company) for protection
of the conversion rights of holders of Stock or such rights as
may be applicable upon exchange of such Stock for securities,
cash or other property of the surviving corporation in connection
with the transactions set forth above. The Company shall cause
any such surviving corporation (if other than the Company)
expressly to assume the obligations of the Company hereunder.
SECTION 4.07. Reports. The Depositary shall make available
--------
for inspection by holders of Receipts at the Depositary's Office,
and at such other places as it may from time to time
deem advisable, any reports and communications received from
the Company which are both (a) received by the
Depositary as the holder of Stock and (b) made generally
available to the holders of Stock by the Company.
13<PAGE>
SECTION 4.08. Lists of Receipt Holders. Promptly upon
---------------------------
request from time to time by the Company, the Depositary shall
furnish to it a list, as of a recent date, of the names,
addresses and holdings of Depositary Shares by all persons in
whose names Receipts are registered on the books of the
Depositary.
ARTICLE V
THE DEPOSITARY AND THE COMPANY
SECTION 5.01. Maintenance of Offices, Agencies, Transfer
--------------------------------------------
Books by the Depositary; Registrar. Until termination of this
------------------------------------
Deposit Agreement in accordance with its terms, the Depositary
shall maintain in [______________________________], an office or
agency for the execution and delivery, transfer, surrender and
exchange, split-up, combination and redemption of Receipts and
deposit and withdrawal of Stock and for any other purposes for
which such an office or agency is required under the rules of any
national securities exchange on which the Depositary Shares are
listed.
The Depositary shall maintain, or cause one of the
Depositary's Agents to maintain, appropriate records which shall
reflect registrations, registrations of transfers, exchanges,
split-ups and combinations of Receipts. The Depositary shall
make available at its said office or agency in
[______________________________] for inspection by any holder of
a Receipt in the same manner and for the same purposes that
holders of Stock are entitled to inspect the list of holders of
Stock of the Company, a list of holders of record of the
Receipts. The Depositary may close such books, at any time or
from time to time, when deemed expedient by it in connection with
the performance of its duties hereunder.
If the Receipts or the Depositary Shares evidenced thereby
or the Stock represented by such Depositary Shares shall be
listed on the New York Stock Exchange, the Depositary may, with
the approval of the Company, appoint a Registrar for registry of
such Receipts or Depositary Shares in accordance with any
requirements of such Exchange. Such Registrar (which may be the
14<PAGE>
Depositary if so permitted by the requirements of such Exchange)
may be removed and a substitute registrar appointed by the
Depositary upon the request or with the approval of the Company.
If the Receipts or such Depositary Shares or such Stock are
listed on one or more other stock exchanges, the Depositary will,
at the request of the Company, arrange such facilities for the
delivery, transfer, surrender and exchange of such Receipts, such
Depositary Shares or such Stock as may be required by law or
applicable stock exchange regulations.
SECTION 5.02. Prevention or Delay in Performance by the
--------------------------------------------
Depositary, the Depositary's Agents or the Company. Neither the
----------------------------------------------------
Depositary nor any Depositary's Agents nor the Company shall
incur any liability to any holder of any Receipt, if by reason of
any provision of any present or future law, or regulation
thereunder, of the United States of America, or of any other
governmental authority or, in the case of the Depositary or the
Depositary's Agent, by reason of any provision, present or
future, of the Company's Certificate of Incorporation or the
Authorizing Resolution or by reason of any act of God or war or
other circumstance beyond the control of the relevant party, the
Depositary, any Depositary's Agent or the Company shall be
prevented or forbidden from doing or performing any act or thing
which the terms of this Deposit Agreement provide shall be done
or performed; nor shall the Depositary, any Depositary's Agent or
the Company incur any liability to any holder of any Receipt by
reason of any non-performance or delay, caused as aforesaid, in
the performance of any act or thing which the terms of this
Deposit Agreement provide shall or may be done or performed, or
by reason of any exercise of, or failure to exercise, any
discretion provided for in this Deposit Agreement.
SECTION 5.03. Obligations of the Depositary, the
----------------------------------------
Depositary's Agents and the Company. The Depositary, any
----------------------------------------
Depositary's Agent and the Company each assumes no obligation and
shall be subject to no liability under this Deposit Agreement or
any Receipt, other than to perform such duties as are
specifically set forth for it to perform and undertaken by it to
perform in this Deposit Agreement.
Neither the Depositary nor any Depositary's Agent nor the
Company shall be under any obligation to appear in, prosecute or
defend any action, suit or other proceeding in respect of Stock,
Depositary Shares or Receipts, which in its opinion may involve
it in expense or liability, unless indemnity satisfactory to it
against all expense and liability be furnished as often as may be
required.
The Depositary undertakes the duties and obligations imposed
by this Agreement upon the following terms and conditions, by all
of which the Company and the holders of Depositary Shares, by
their acceptance thereof, shall be bound:
15<PAGE>
(a) the Depositary may consult with counsel (who may
be counsel for the Company) and the opinion of such counsel
shall be full and complete authorization and protection to
the Depositary as to any action taken, suffered or omitted
by it in good faith and in accordance with such opinion;
provided, however, that the Depositary shall have exercised
reasonable care in the selection of such counsel;
(b) whenever in the performance of its duties under
this Agreement the Depositary shall deem it necessary or
desirable that any fact or matter be proved or
established by the Company prior to taking or suffering
any action hereunder, such fact or matter (unless other
evidence in respect thereof be herein specifically prescribed)
may be deemed to be conclusively proved and established by
a certificate signed by the Chairman of the Board or a
President or a Vice President or the Secretary of the
Company and delivered to the Depositary; and such
certification shall be full authorization to the Depositary
for any action taken or suffered in good faith by it under
the provisions of this Agreement in reliance upon such
certificate;
(c) the Depositary shall be liable hereunder only for
its own negligence, bad faith or wilful misconduct;
(d) the Depositary shall not be liable for or by
reason of any of the statements of fact or recitals
contained in this Agreement or in the Depositary Shares or
be required to verify the same, but all such statements and
recitals are and shall be deemed to have been made by the
Company only;
(e) the Depositary shall not be under any
responsibility in respect of the validity of this Agreement
or the execution and delivery hereof (except the due
execution hereof by the Depositary); nor shall it be
responsible for any breach by the Company of any covenant or
condition contained in this Agreement or in any Depositary
Share; nor shall it by any act hereunder be deemed to make
any representation or warranty as to the authorization or
reservation of any shares of Common Stock to be issued
pursuant to this Agreement or any Depositary Shares or as to
whether any shares of Common Stock will, when issued, be
validly issued, fully paid and non-assessable;
(f) the Depositary is hereby authorized and directed
to accept instructions with respect to the performance of
its duties hereunder from the Chairman of the Board or a
President or a Vice President or the Secretary of the
Company, and to apply to such officers for advice or
instructions in connection with its duties, and it shall not
be liable for any action taken, suffered or omitted by it in
good faith in accordance with instructions of any such
officer;
16<PAGE>
(g) the Depositary may execute and exercise any of the
rights or powers hereby vested in it or perform any duty
hereunder either itself or by or through its attorneys or
agents, and the Depositary shall not be answerable or
accountable for any act, default, neglect or misconduct of
any such attorneys or agents or for any loss to the Company
resulting from such neglect or misconduct; provided,
---------
however, that reasonable care shall have been exercised
--------
in the selection and continued employment of such
attorneys and agents; and
(h) the Depositary will not incur any liability or
responsibility to the Company or to any holder of any
Depositary Share for any action taken, or any failure to
take action, in reliance on any notice, resolution, waiver,
consent, order, certificate, or other paper, document or
instrument reasonably believed by the Depositary to be
genuine and to have been signed, sent or presented by the
proper party or parties.
The Depositary will indemnify the Company against, and hold
it harmless from, any liability which may arise out of acts
performed or omitted by the Depositary due to its own negligence,
bad faith or wilful misconduct.
The Depositary and the Depositary's Agents may own and deal
in any class of securities of the Company and its affiliates and
in Receipts. The Depositary may also act as transfer agent or
registrar of any of the securities of the Company and its
affiliates, may loan money to the Company and its affiliates and
may engage in any other business with or for the Company and its
affiliates.
SECTION 5.04. Resignation and Removal of the Depositary;
--------------------------------------------
Appointment of Successor Depositary. The Depositary may at any
-------------------------------------
time resign as Depositary hereunder by notice of its election so
to do delivered to the Company, such resignation to take effect
upon the appointment of a successor depositary and its acceptance
of such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by
notice of such removal delivered to the Depositary, such removal
to take effect upon the appointment of a successor depositary and
its acceptance of such appointment as hereinafter provided.
In case at any time the Depositary acting hereunder shall
resign or be removed, the Company shall, within 60 days after the
delivery of the notice of resignation or removal, as the case may
be, appoint a successor depositary, which shall be a bank or
trust company having its principal office in the United States of
America and having a combined capital and surplus of at least
17<PAGE>
$50,000,000. If no successor depositary shall have been
appointed and accepted appointment within 60 days after the
delivery of the notice of resignation or removal, as the case may
be, the Depositary or any holder of any Receipt (on behalf of
himself and all other holders of Receipts) may petition any court
of competent jurisdiction for the appointment of a successor
depositary, and such court may thereupon, after such notice
(if any) as it may deem proper, appoint such successor
depositary. Every successor depositary shall
execute and deliver to its predecessor and to the Company an
instrument in writing accepting its appointment hereunder, and
thereupon such successor depositary, without any further act or
deed, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor and for all purposes
shall be the Depositary under this Deposit Agreement, and such
predecessor, upon payment of all sums due it and on the written
request of the Company, shall execute and deliver an instrument
transferring to such successor all rights and powers of such
predecessor hereunder, shall duly assign, transfer and deliver all
right, title and interest in the Stock and any money or property
held hereunder to such successor, and shall deliver to such
successor a list of the record holders of all outstanding Receipts.
Thereupon, the predecessor Depositary shall be relieved of all
obligations and duties under this Deposit Agreement and the
Receipts and shall incur no liability in respect of action taken
or omitted to be taken on any date subsequent to the date of
such instrument. Any successor depositary shall promptly mail
notice of its appointment to the record holders of Receipts.
Any corporation into or with which the Depositary may be
merged, consolidated or converted shall be the successor of such
Depositary without the execution or filing of any document or any
further act.
SECTION 5.05. Corporate Notices and Reports. The Company
-------------------------------
agrees that it will deliver to the Depositary, and the Depositary
will, promptly after receipt thereof, transmit to the record
holders of Receipts, in each case at the address recorded in the
Depositary's books, copies of all notices and reports (including,
without limitation, financial statements) required by law, by the
rules of any national securities exchange upon which the Stock,
the Depositary Shares or the Receipts are listed or by the
Company's Certificate of Incorporation and the Authorizing
Resolution to be furnished by the Company to holders of Stock.
Such transmission will be at the Company's expense and the
Company will provide the Depositary with such number of copies of
such documents as the Depositary may reasonably request. In
addition, the Depositary will transmit to the holders of Receipts
(at the Company's expense) such other documents as may be
requested by the Company.
SECTION 5.06. Deposit of Stock by the Company. The Company
--------------------------------
agrees with the Depositary that neither the Company nor any
company controlled by the Company will at any time deposit any
Stock, if such Stock is required to be registered under the
provisions of the Securities Act of 1933 and no registration
statement is at such time in effect as to such Stock.
SECTION 5.07. Indemnification by the Company. The Company
--------------------------------
agrees to indemnify the Depositary against, and hold it harmless
from, (i) any liability which may arise out of acts performed or
omitted in connection with this Deposit Agreement or the
Receipts, as the same may be amended, modified or
18<PAGE>
supplemented from time to time, (a) by the Depositary, except to
the extent such liability results from its own negligence, bad
faith or willful misconduct, or (b) by the Company or any of its
agents, or (ii) any liability or expense which may arise out
of or in connection with the registration of Stock or the offer or
sale to the public of the Stock or the offer or sale of the
Receipts except to the extent that such liability or expense arises
out of information furnished by the Depositary, Registrar or any
of their respective agents (including any Depositary's Agent).
SECTION 5.08. Charges and Expenses. No charges and
-----------------------
expenses of the Depositary or any Depositary's Agent hereunder,
or those of any Registrar, shall be payable by any person other
than the Company except for any taxes and other governmental
charges, any fees and expenses of the Depositary as set forth in
Section 2.08 and as set forth in the next succeeding sentence.
If, at the election of a holder of Stock or Receipts, any
delivery or communication from the Depositary to such holder is
by telegram or telex or if the Depositary incurs charges or
expenses for which it is not otherwise liable hereunder at the
election of such holder, such holder will be liable for such
charges and expenses. All other charges and expenses of the
Depositary and any Depositary's Agent hereunder and of any
Registrar (including, in each case, fees and expenses of counsel)
incident to the performance of their respective obligations
hereunder will be paid upon consultation and agreement between
the Depositary and the Company as to the amount and nature of
such charges and expenses. The Depositary shall present its
statement for charges and expenses to the Company once every
month.
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.01. Amendment. The form of the Receipts and any
----------
provisions of this Deposit Agreement may at any time and from
time to time be amended by agreement between the Company and the
Depositary in any respect which they may deem necessary or
desirable. Upon the execution of any such agreement to so amend
this Deposit Agreement, except as hereinafter provided, such
amendment shall become effective and shall form a part of this
19<PAGE>
Deposit Agreement for all purposes. Any amendment, however,
which shall impose or increase any fees, taxes or charges (other
than fees and charges provided for herein) upon the holders of
the Receipts, or which shall otherwise prejudice any substantial
existing right of holders of Receipts, shall not become effective
as to outstanding Receipts until the expiration of 90 days after
notice of such amendment shall have been mailed to the record
holders of outstanding Receipts. Every holder of an outstanding
Receipt, at the time any such amendment so becomes
effective, shall be deemed, by continuing to hold
such Receipt, to consent and agree
to such amendment and to be bound by the Deposit
Agreement as amended thereby. In no event shall any amendment
impair the right, subject to the provisions of Section 2.06 and
Article III hereof or of Paragraphs 9 and 10 of any Receipt, of
any owner of any Depositary Shares to surrender the Receipt
evidencing such Depositary Shares with instructions to the
Depositary to deliver to the holder the Stock and all money and
other property, if any, represented thereby, except in order to
comply with mandatory provisions of applicable law.
SECTION 6.02. Termination. Whenever so directed by the
------------
Company, the Depositary will terminate this Deposit Agreement by
mailing notice of such termination to the record holders of all
Receipts then outstanding at least 60 days prior to the date
fixed in such notice for such termination. The Depositary may
likewise terminate this Deposit Agreement if at any time 60 days
shall have expired after the Depositary shall have delivered to
the Company a written notice of its election to resign and a
successor depositary shall not have been appointed and accepted
its appointment as provided in Section 5.04. Upon the
termination of this Deposit Agreement pursuant to this paragraph,
the holders of Receipts shall have the immediate right to
surrender Receipts and receive therefor the Stock or other
property to which such holders are entitled.
If any Receipts shall remain outstanding after the date of
termination of the Deposit Agreement, the Depositary thereafter
shall discontinue the transfer of Receipts, shall suspend the
distribution of dividends to the holders thereof, and shall not
give any further notices (other than notice of such termination)
or perform any further acts under this Deposit Agreement, except
that the Depositary shall continue to collect dividends and other
distributions pertaining to the Stock or if applicable principal
of and interest on and other distributions pertaining to the
Debentures, shall sell rights, preferences or privileges as
provided in this Deposit Agreement and shall continue to deliver
the Stock and any money and other property represented by
Receipts, including, if applicable, the Debentures and other
property deliverable upon surrender thereof by the holders
thereof. At any time after the expiration of two years from the
date of termination, the Depositary may sell the Stock or, if
applicable, the Debentures, then held hereunder at public or
private sale, at such place or places and upon such terms as it
20<PAGE>
deems proper and may thereafter hold the net proceeds of any such
sale, together with any money and other property then held by it
hereunder, without liability for interest, for the benefit, pro
rata in accordance with their holdings, of the holders of
Receipts which have not theretofore been surrendered. After
making such sale, the Depositary shall be discharged from all
obligations under this Deposit Agreement, except to account for
such net proceeds and money and other property. Upon the
termination of this Deposit Agreement, the Company
shall be discharged from all obligations under this
Deposit Agreement except for its obligations to the
Depositary, any Depositary's Agent and any Registrar under
Sections 5.07 and 5.08.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. Counterparts. This Deposit Agreement may be
-------------
executed in any number of counterparts, and by each of the
parties hereto on separate counterparts, each of which
counterparts, when so executed and delivered, shall be deemed an
original, but all such counterparts taken together shall
constitute one and the same instrument. Copies of this Deposit
Agreement shall be filed with the Depositary and the Depositary's
Agents and shall be open to inspection during business hours at
the Depositary's Office and the respective offices of the
Depositary's Agents, if any, by any holder of a Receipt.
SECTION 7.02. Exclusive Benefit of Parties. This Deposit
------------------------------
Agreement is for the exclusive benefit of the parties hereto, and
their respective successors hereunder, and shall not be deemed to
give any legal or equitable right, remedy or claim to any other
person whatsoever.
SECTION 7.03. Invalidity of Provisions. In case any one or
-------------------------
more of the provisions contained in this Deposit Agreement or in
the Receipts should be or become invalid, illegal or
unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein or
therein shall in no way be affected, prejudiced or disturbed
thereby.
SECTION 7.04. Notices. Any and all notices to be given to
--------
the Company hereunder or under the Depositary Receipts shall be
in writing and shall be deemed to have been duly given if
personally delivered or sent by mail or telegram or telex
confirmed by letter, addressed to the Company at One AMD Place,
Sunnyvale, California 94088-3453, Attention: Treasurer, or at any
other place to which the Company may have transferred its
principal executive office.
21<PAGE>
Any and all notices to be given to the Depositary hereunder
or under the Depositary Receipts shall be in writing and shall be
deemed to have been duly given if personally delivered or sent by
mail or by telegram or telex confirmed by letter, addressed to
the Depositary at the Depositary's Office.
Any and all notices to be given to any record holder of a
Receipt hereunder or under the Depositary Receipts shall be in
writing and shall be deemed to have been duly given if personally
delivered or sent by mail or by telegram or telex confirmed by
letter, addressed to such record holder at the address of such
record holder as it appears on the books of the Depositary, or if
such holder shall have filed with the Depositary a written
request that notices intended for such holder be mailed to some
other address, at the address designated in such request.
Delivery of a notice sent by mail or by telegram or telex
shall be deemed to be effected at the time when a duly addressed
letter containing the same (or a confirmation thereof in the case
of a telegram or telex message) is deposited, postage prepaid, in
a post office letter box. The Depositary or the Company may,
however, act upon any telegram or telex message received by it
from the other or from any holder of a Receipt, notwithstanding
that such telegram or telex message shall not subsequently be
confirmed by letter or as aforesaid.
SECTION 7.05. Depositary's Agents. The Depositary may from
--------------------
time to time appoint Depositary's Agents to act in any respect
for the Depositary for the purposes of this Deposit Agreement and
may at any time appoint additional Depositary's Agents and vary
or terminate the appointment of such Depositary's Agents. The
Depositary will notify the Company in advance of any such action
and shall not take any such action of which the Company shall
disapprove.
SECTION 7.06. Holders of Receipts Are Parties. The holders
--------------------------------
of Receipts from time to time shall be deemed to be parties to
this Deposit Agreement and shall be bound by all of the terms and
conditions hereof and of the Receipts by acceptance of delivery
thereof.
SECTION 7.07. Governing Law. The Deposit Agreement and the
--------------
Receipts and all rights hereunder and thereunder and provisions
hereof and thereof shall be governed by, and construed in
accordance with, the laws of the State of [____________________].
SECTION 7.08. Headings. The headings of articles and
---------
sections in this Deposit Agreement and in the form of the Receipt
set forth in Exhibit A hereto have been inserted for convenience
only and are not to be regarded as part of this Deposit Agreement
or to have any bearing upon the meaning or interpretation of any
provision contained herein or in the Receipts.
22
<PAGE>
IN WITNESS WHEREOF, ADVANCED MICRO DEVICES, INC. and
___________________________________________ have duly executed
this Agreement and affixed their respective seals hereto
as of the day and year first above set forth and all holders of
Receipts shall become parties hereto by and upon acceptance by
them of delivery of Receipts issued in accordance with the terms
hereof.
[Seal] ADVANCED MICRO DEVICES, INC.
Attest:
____________________ By: __________________________________________
Assistant Secretary Marvin D. Burkett
Senior Vice President
Chief Administrative Officer and Secretary
Chief Financial Officer and Treasurer
[Seal] _____________________________
Attest:
___________________________ By: _________________________
23<PAGE>
EXHIBIT A
---------
DEPOSITARY RECEIPT
FOR
DEPOSITARY
SHARES
EACH REPRESENTING ONE-_____ (1/__) SHARE OF
PREFERRED STOCK, SERIES ___
($.10 par value per share)
OF
ADVANCED MICRO DEVICES, INC.
(Incorporated under the Laws of the State of Delaware)
No. ___________ Depositary Shares (each representing
one-_____ (1/__) share of Preferred Stock,
Series __ ($.10 par value per share)
1. _________________________________________________________
_________________________________________________________________
_____________________________________________________________, as
Depositary (the "Depositary"), hereby certifies that ___________
___________________ is the registered owner of _________________
___________________ Depositary Shares ("Depositary Shares"), each
Depositary Share representing one-_____ (1/__) (as such fraction
may from time to time be adjusted in the event of certain
amendments to the Certificate of Incorporation) of one share of
the Preferred Stock, Series __ ($.10 par value per share) (the
"Stock"), of ADVANCED MICRO DEVICES, INC., a corporation duly
organized and existing under the laws of the State of Delaware
(the "Company") deposited with, and held by, the Depositary. The
rights, preferences and limitations of the Stock are set forth in
the resolution adopted by the Company's Board of Directors (the
"Authorizing Resolution"), copies of which are on file at the
Depositary's Office at ___________________ ________
____________________.
2. The Deposit Agreement. Depositary Receipts (the
------------------------
"Receipts"), of which this Receipt is one, are made available
upon the terms and conditions set forth in the Deposit Agreement,
dated as of _____ __ 19__ (the "Deposit Agreement"), among the
Company, the Depositary and all holders from time to time of
Receipts. The Deposit Agreement (copies of which are on file at
the Depositary's Office) sets forth the rights of holders of
Receipts and the rights and duties of the Depositary in respect
of the Stock deposited and any and all other property and cash
from time to time held thereunder. The statements made on the
face and the reverse of this Receipt are summaries of certain
provisions of the Deposit Agreement and are subject to the
detailed provisions thereof, to which reference is hereby made.
Unless otherwise expressly herein provided, all defined terms
shall have the meanings ascribed thereto in the Deposit
Agreement.
A-1<PAGE>
3. Redemption at the Company's Option. Whenever the
--------------------------------------
Company shall elect to redeem shares of Stock pursuant to the
Authorizing Resolution, it shall give the Depositary not less
than 45 nor more than 90 days' notice of the date fixed by the
Company for such redemption, the number of shares of Stock held
by the Depositary to be redeemed and the redemption price for the
Stock to be so redeemed (which shall include full cumulative
dividends thereon to the redemption date). The Depositary shall
mail notice of such redemption and the simultaneous redemption of
a corresponding number of Depositary Shares from the proceeds of
such redemption of Stock not less than 30 and not more than 60
days prior to the date fixed for redemption of such Stock and
Depositary Shares to the holders of record on the record date for
such redemption (determined as provided in Paragraph 17 below) of
the Depositary Shares to be so redeemed. In case less than all
the outstanding Depositary Shares are to be so redeemed, the
Depositary Shares to be so redeemed shall be selected by lot or
pro rata (as nearly as may be) or in any other equitable manner
selected by the Depositary. At the close of business on the
redemption date, if the Company shall have redeemed the shares of
underlying Stock, the Depositary Shares being redeemed from
proceeds equal in amount to the redemption price of the shares of
Stock as called for redemption shall be deemed to be no longer
outstanding, all rights of holders of Receipts evidencing such
Depositary Shares (except the right to receive the redemption
price) shall, to the extent of such Depositary Shares, cease and
terminate and upon surrender in accordance with said notice of
the Receipts evidencing such Depositary Shares (properly endorsed
or assigned for transfer, if the Depositary shall so require),
such Depositary Shares shall be redeemed by the Depositary at the
redemption price therefor specified in said notice, plus all
money and other property, if any, represented by such Depositary
Shares, including all amounts paid by the Company in respect of
dividends which to the redemption date have accrued on the shares
to be so redeemed and have not theretofore been paid. If less
than all of the Depositary Shares evidenced by this Receipt are
called for redemption, the Depositary will deliver to the record
holder of this Receipt, without service charge, upon its
surrender to the Depositary (with, if the Depositary so requires,
due endorsement by or a written instrument of transfer in form
satisfactory to the Depositary, duly executed by the holder
thereof or his attorney duly authorized in writing), together
with the redemption payment, a new Receipt evidencing the
Depositary Shares evidenced by such prior Receipt and not called
for redemption.
4. Surrender of Receipts and Withdrawal of Stock. Upon
------------------------------------------------
surrender of this Receipt to the Depositary at the Depositary's
Office, or at such other offices as it may designate, and subject
to the provisions of the Deposit Agreement (unless the Depositary
Shares evidenced hereby have been theretofore called for
redemption), the holder hereof is entitled to withdraw, and to
obtain delivery, to or upon the order of such holder, of the
A-2<PAGE>
Stock and all money and other property, if any, at the
time represented thereby; provided, however, that in the event
------------------
this Receipt shall evidence a number of Depositary Shares
in excess of the number of Depositary Shares representing the
number of whole shares of Stock to be so withdrawn, the
Depositary shall, in addition to such number of whole shares of
Stock and the money and other property, if any, to be so
withdrawn, deliver, to or upon the order of such holder, a new
Receipt evidencing such excess number of Depositary Shares.
5. Transfers, Split-ups, Combinations. This Receipt is
------------------------------------
transferable on the books of the Depositary upon surrender of
this Receipt to the Depositary, properly endorsed or accompanied
by a properly executed instrument of transfer, and upon such
transfer the Depositary shall sign and deliver a Receipt to or
upon the order of the person entitled thereto, as provided in the
Deposit Agreement. This Receipt may be split into other Receipts
or combined with other Receipts into one Receipt, evidencing the
same aggregate number of Depositary Shares and evidenced by the
Receipt or Receipts surrendered.
6. Conditions to Signing and Delivery, Transfer, etc., of
-------------------------------------------------------
Receipts. Prior to the execution and delivery, transfer, split-
---------
up, combination, surrender, withdrawal or exchange of this
Receipt, the Depositary, or any of the Depositary's Agents, or
the Company, may require payment to it of a sum sufficient for
the payment (or, in the event that the Depositary or the Company
shall have made such payment, the reimbursement to it) of any tax
or other governmental charge with respect thereto (including any
such tax or charge with respect to Stock being deposited or
withdrawn, converted or exchanged), may require proof
satisfactory to it as to the identity and genuineness of any
signature and may also require compliance with such regulations,
if any, as it may establish pursuant to the Deposit Agreement.
Any person presenting Stock for deposit, or any holder of this
Receipt, may be required to file such information, and to execute
such certificates, as the Depositary or the Company may
reasonably deem necessary or proper.
7. Suspension of Delivery, Transfer, etc. The deposit of
---------------------------------------
Stock, the delivery of this Receipt against Stock, the transfer,
surrender or exchange of this Receipt may be refused or suspended
(a) during any period when the register of stockholders of the
Company is closed, or (b) if any such action is deemed necessary
or advisable by the Depositary, any of the Depositary's Agents or
the Company at any time or from time to time because of any
requirement of law or of any government or governmental body or
commission, or under any provision of the Deposit Agreement or,
with the approval of the Company, for any other reason.
A-3<PAGE>
8. Payment of Taxes or Other Governmental Charges. If any
-----------------------------------------------
tax or other governmental charge shall become payable by or on
behalf of the Depositary with respect to this Receipt or with
respect to the Depositary Shares evidenced hereby or with respect
to the Stock (or any fractional interest therein) represented by
such Depositary Shares, such tax (including transfer taxes, if
any) or governmental charge shall be payable by the holder
hereof. Transfer of this Receipt or any withdrawal of the Stock
and all money and other property, if any, represented by the
Depositary Shares evidenced by this Receipt may be refused until
such payment is made, and any dividends or other distributions
may be withheld, or any part or all of the Stock or other
property represented by the Depositary Shares evidenced by this
Receipt and not theretofore sold may be sold for the account of
the holder hereof, and such dividends or other distributions or
the proceeds of any such sale may be applied to any payment of
such tax or other governmental charge, the holder of this Receipt
remaining liable for any deficiency.
9. Warranties by Depositor. In the case of the initial
------------------------
deposit of Stock, the Company and, in the case of subsequent
deposits thereof, each person so depositing Stock under the
Deposit Agreement shall be deemed thereby to represent and
warrant that such Stock and each certificate therefor are valid,
that the person making such deposit, or the person on whose
behalf such deposit is made, has good and marketable title to
such Stock, free and clear of any liens, claims or encumbrances,
and that the person making such deposit is duly authorized so to
do.
10. Amendment. The form of the Receipts and any provisions
----------
of the Deposit Agreement may at any time and from time to time be
amended by agreement between the Company and the Depositary in
any respect which they may deem necessary or desirable. Any
amendment, however, which imposes or increases any fees, taxes or
charges (other than fees, taxes and charges provided for in the
Deposit Agreement) upon the holders of the Receipts, or which
shall otherwise prejudice any substantial existing right of
holders of Receipts, shall not become effective as to outstanding
Receipts until the expiration of 90 days after notice of such
amendment shall have been given to the record holders of
outstanding Receipts. The holder of this Receipt at the time any
such amendment so becomes effective shall be deemed, by
continuing to hold this Receipt, to consent and agree to such
amendment and to be bound by the Deposit Agreement as amended
thereby. In no event shall any amendment impair the right,
subject to the provisions of Paragraphs 7 and 8 hereof and of
Section 2.06 and Article III of the Deposit Agreement, of the
owner of the Depositary Shares evidenced by this Receipt to
surrender this Receipt with instructions to the Depositary to
convert such shares into Common Stock or to deliver to the holder
the Stock and all money and other property, if any, represented
A-4<PAGE>
thereby, except in order to comply with mandatory provisions of
applicable law.
11. Charges of Depositary. No charges and expenses of the
----------------------
Depositary or any Depositary's Agent under the Deposit Agreement,
or those of any Registrar, shall be payable by any person other
than the Company, except for any taxes and other governmental
charges, any fees and expenses of the Depositary as set forth in
Section 2.08 and as set forth in the next succeeding sentence.
If, at the election of a holder of Stock or Receipts, any
delivery or communication from the Depositary to such holder is
by telegram or telex or if the Depositary incurs charges or
expenses for which it is not otherwise liable hereunder at the
election of such holder, such holder will be liable for such
charges and expenses. All other charges and expenses of the
Depositary and any Depositary's Agent hereunder and of any
Registrar (including, in each case, fees and expenses of counsel)
incident to the performance of their respective obligations
hereunder will be paid upon consultation and agreement between
the Depositary and the Company as to the amount and nature of
such charges and expenses.
12. Title to Receipts. It is a condition of this Receipt,
-------------------
and every successive holder thereof by accepting or holding the
same consents and agrees, that title to this Receipt (and to the
Depositary Shares evidenced hereby), when properly endorsed or
accompanied by a properly executed instrument of transfer, is
transferable by delivery with the same effect as in the case of a
negotiable instrument; provided, however, that until this Receipt
------------------
shall be transferred on the books of the Depositary as provided
in Section 2.04 of the Deposit Agreement, the Depositary, each
Depositary's Agent and the Company may, notwithstanding any
notice to the contrary, treat the record holder hereof at such
time as the absolute owner hereof for the purpose of determining
the person entitled to distribution of dividends or other
distributions or to any notice provided for in the Deposit
Agreement and for all other purposes.
13. Dividends and Distributions. Whenever the Depositary
-----------------------------
receives any cash dividend or other cash distribution on the
Stock, the Depositary will, subject to the provisions of the
Deposit Agreement, promptly make such distribution to the holders
of Receipts as nearly as practicable in proportion to the
respective numbers of Depositary Shares evidenced by the Receipts
held by such holders; provided, however, that the amount
-------------------
distributed will be reduced by any amounts required to be
withheld by the Company or the Depositary on account of taxes.
Other distributions received on the Stock may be distributed to
such holders of Receipts as provided in the Deposit Agreement.
A-5<PAGE>
14. Subscription Rights, Preferences or Privileges. If the
-----------------------------------------------
Company shall at any time offer to the record holders of the
Stock any rights, preferences or privileges to subscribe for or
to purchase any securities or any rights, preferences or
privileges of any other nature, such rights, preferences or
privileges shall in each such instance, subject to the
provisions of the Deposit Agreement, be made available
by the Depositary to the record holders of
Receipts on the record date fixed as determined in
Paragraph 15 in such manner as the Depositary may
determine, either by the issue to such record holders of warrants
representing such rights, preferences or privileges or by such
other method as may be approved by the Depositary in its
discretion with the approval of the Company; provided, however,
------------------
that (a) if at the time of issue or offer of any such rights,
preferences or privileges the Depositary determines that it is
not lawful or (after consultation with the Company) not feasible
to make such rights, preferences or privileges available to
holders of Receipts by the issue of warrants or otherwise, or (b)
if and to the extent so instructed by holders of Receipts who do
not desire to exercise such rights, preferences or privileges,
the Depositary, in its discretion (with the approval of the
Company, in any case where the Depositary has determined that it
is not feasible to make such rights, preferences or privileges
available), may, if applicable laws or the terms of such rights,
preferences or privileges permit such transfer, sell such rights,
preferences or privileges at public or private sale, at such
place or places and upon such terms as it may deem proper. The
net proceeds of any such sale shall, subject to the provisions of
Paragraph 8 hereof, be distributed by the Depositary to the
record holders of Receipts entitled hereto as in the case of a
distribution received in cash.
If any other action (including the registration under the
Securities Act of 1933 of the securities to which any rights,
preferences or privileges relate) under the laws of any
jurisdiction or any governmental or administrative authorization,
consent or permit is required in order for such rights,
preferences or privileges to be made available to holders of
Receipts, the Company will use its best efforts and take all
steps available to it to obtain such registration, authorization,
consent or permit sufficiently in advance of the expiration of
such rights, preferences or privileges to enable holders of
Receipts to exercise such rights, preferences or privileges. In
no event shall the Depositary make available to the holders of
Receipts any right, preference or privilege to subscribe for or
to purchase any securities unless or until the relevant
registration statement shall have become effective, or unless the
offering and sale of such securities to such holders are exempt
from registration under the provisions of such Act.
A-6<PAGE>
15. Fixing of Record Date. Whenever any cash dividend or
-----------------------
other cash distribution shall become payable or any distribution
other than cash shall be made, or if rights, preferences or
privileges shall at any time be offered, with respect to the
Stock, or whenever the Depositary shall receive notice of (a) any
meeting at which holders of Stock are entitled to vote or of
which holders of Stock are entitled to notice or (b) any election
on the part of the Company to redeem any shares of Stock, the
Depositary shall in each such instance fix a record date (which
shall be the same date as the record date fixed by the
Company with respect to the Stock) for the determination of
the holders of Receipts who shall be
entitled to receive such dividend, distribution, rights,
preferences or privileges or the net proceeds of the sale
thereof, or to give instructions for the exercise of voting
rights at such meeting, or who shall be entitled to notice
of such meeting, or whose Depositary Shares are to be redeemed.
16. Voting Rights. Upon receipt of notice of any meeting
---------------
at which the holders of Stock are entitled to vote, the
Depositary shall, as soon as practicable, mail to the record
holders of Receipts a notice which shall contain (a) such
information as is contained in such notice of meeting, and (b) a
statement that the holders of Receipts at the close of business
on a specified record date determined as provided in Paragraph 15
will be entitled, subject to any applicable provisions of law and
of the Company's Certificate of Incorporation or the Authorizing
Resolution, to instruct the Depositary as to the exercise of the
voting rights pertaining to the amount of Stock represented by
the Depositary Shares evidenced by their respective Receipts, and
a brief statement as to the manner in which such instructions may
be given. Upon the written request of a holder of a Receipt on
such record date, the Depositary shall endeavor insofar as
practicable to vote or cause to be voted the amount of Stock
represented by the Depositary Shares evidenced by such Receipt in
accordance with the instructions set forth in such request. In
the absence of specific instructions from the holder of a
Receipt, the Depositary will abstain from voting to the extent of
the Stock represented by the Depositary Shares evidenced by such
Receipt.
17. Changes Affecting Deposited Securities. Upon any
------------------------------------------
change in par or stated value, split-up, consolidation or any
other reclassification of the Stock, or upon any
recapitalization, reorganization, merger, amalgamation or
consolidation or sale of all or substantially all of the
Company's assets affecting the Company or to which it is a party,
the Depositary may, in its discretion (with the approval of) and
shall (upon the instructions of) the Company and, in either case,
in such manner as the Depositary may deem equitable, treat any
securities which shall be received by the Depositary in exchange
for or in respect of the Stock as new deposited securities under
A-7<PAGE>
the Deposit Agreement, and Receipts then outstanding shall
thenceforth represent the new deposited securities so received in
exchange for or in respect of such Stock. In any such case the
Depositary may, in its discretion, with the approval of the
Company, execute and deliver additional Receipts, or may call for
the surrender of outstanding Receipts to be exchanged for new
Receipts specifically describing such new deposited securities.
18. Reports; Inspection of Transfer Books. The Depositary
---------------------------------------
shall make available for inspection by holders of Receipts at the
Depositary's Office and at such other places as it may from time
to time deem advisable any reports and communications received
from the Company which are both (a) received by the Depositary as
the holder of Stock and (b) made generally available to the
holders of Stock by the Company. The Depositary shall also send
to record holders of Receipts copies of such notices, reports and
other financial statements to the extent provided in the Deposit
Agreement when furnished by the Company. The Depositary shall
maintain, or cause one of the Depositary's Agents, to maintain
appropriate records which shall reflect registrations,
registrations of transfers, split-ups and combinations of
Receipts. The Depositary shall make available at its office or
agency in [ ] for inspection by any holder of a
Receipt in the same manner and for the same purposes that holders
of Stock are entitled to inspect the list of holders of Stock of
the Company, a list of holders of record of the Receipts.
19. Liability of the Depositary, the Depositary's Agents
-------------------------------------------------------
and the Company. Neither the Depositary, nor any Depositary's
-----------------
Agent nor the Company shall incur any liability to any holder of
any Receipt, if by reason of any provision of any present or
future law or regulation of any governmental authority or, in the
case of the Depositary or the Depositary's Agent, by reason of
any provision, present or future, of the Company's Certificate of
Incorporation or the Authorizing Resolution or by reason of any
act of God or war or other circumstance beyond the control of the
relevant party, the Depositary, any Depositary's Agent or the
Company shall be prevented or forbidden from doing or performing
any act or thing which the terms of the Deposit Agreement provide
shall be done or performed; nor shall the Depositary, any
Depositary's Agent or the Company incur any liability to any
holder of a Receipt by reason of any non-performance or delay,
caused as aforesaid, in the performance of any act or thing which
the terms of the Deposit Agreement provide shall or may be done
or performed, or by reason of any exercise of, or failure to
exercise, any discretion provided for in the Deposit Agreement.
20. Obligations of the Depositary, the Depositary's Agents
-------------------------------------------------------
and the Company. The Depositary, any Depositary's Agent and the
-----------------
Company each assumes no obligation and shall be subject to no
A-8<PAGE>
liability under the Deposit Agreement or any Receipt, except to
perform such duties as are specifically set forth in and
undertaken by it to perform in the Deposit Agreement.
Neither the Depositary nor any Depositary's Agent nor the
Company shall be under any obligation to appear in, prosecute or
defend any action, suit or other proceeding in respect of Stock,
Depositary Shares or Receipts, which in its opinion may involve
it in expense or liability, unless indemnity satisfactory to it
against all expense and liability be furnished as often as may be
required.
Neither the Depositary nor any Depositary's Agent nor the
Company will be liable for any action taken, suffered or omitted
by it in reliance upon the advice of or information from legal
counsel, accountants, any person presenting Stock for deposit,
any holder of a Receipt or any other person believed by it in
good faith to be competent to give such advice or information.
The Company will indemnify the Depositary against, and hold it
harmless from, (i) any liability which may arise out of acts
performed or omitted in connection with the Deposit Agreement or
the Receipts, as the same may be amended, modified or
supplemented from time to time (a) by the Depositary, except to
the extent that liability results from its own negligence, bad
faith or wilful misconduct, or (b) by the Company or any of its
agents, or (ii) any liability or expense which may arise out of
or in connection with the registration of Stock or the offer or
sale to the public of the Stock or the offer or sale of the
Receipts except to the extent that such liability or expense
arises out of information furnished by the Depositary, Registrar
or any of their respective agents (including any Depositary's
Agent).
The Depositary will indemnify the Company against, and hold
it harmless from, any liability which may arise out of acts
performed or omitted by the Depositary due to its own negligence,
bad faith or wilful misconduct.
The Depositary and the Depositary's Agents may own and deal
in any class of securities of the Company and its affiliates and
in Receipts. The Depositary may also act as transfer agent or
registrar of any of the securities of the Company and its
affiliates, may loan money to the Company and its affiliates and
may engage in any other business with or for the Company and its
affiliates.
21. Resignation and Removal of Depositary. The Depositary
--------------------------------------
may at any time (a) resign by notice of its election so to do
delivered to the Company, such resignation to take effect upon
the appointment of a successor depositary and its acceptance of
such appointment, or (b) be removed by the Company by notice of
such removal delivered to the Depositary, such removal to take
A-9<PAGE>
effect upon the appointment of a successor depositary and its
acceptance of such appointment, all as provided in the Deposit
Agreement.
22. Termination of Deposit Agreement. Whenever so directed
---------------------------------
by the Company, the Depositary will terminate the Deposit
Agreement by mailing notice of such termination to the record
holders of all Receipts then outstanding at least 60 days prior
to the date fixed in such notice for such termination. The
Depositary may likewise terminate the Deposit Agreement if at any
time 60 days shall have expired after the Depositary shall have
delivered to the Company a notice of its election to resign and a
successor depositary shall not have been appointed and accepted
its appointment. Upon the termination of the Deposit Agreement,
the Company shall be discharged from all obligations thereunder
except for its obligations to the Depositary, any Depositary's
Agent and any Registrar with respect to indemnification, charges
and expenses. Upon the termination of the Deposit Agreement, the
holders of Receipts shall have the immediate right to surrender
their Receipts and receive therefor the Stock or other property
to which such holders are entitled.
If any Receipts remain outstanding after the date of
termination, the Depositary thereafter shall discontinue all
functions and be discharged from all obligations as provided in
the Deposit Agreement, except as specifically provided therein.
23. Governing Law. The Deposit Agreement and this Receipt
--------------
and all rights thereunder and hereunder and provisions thereof
and hereof shall be governed by, and construed in accordance
with, the laws of the State of [ ].
This Receipt shall not be entitled to any benefits under the
Deposit Agreement or be valid or obligatory for any purpose,
unless this Receipt shall have been executed manually, or if a
Registrar for the Receipts (other than the Depositary) shall have
been appointed, by facsimile by the Depositary by the signature
of a duly authorized officer and, if executed by facsimile
signature of the Depositary, shall have been countersigned
manually by such Registrar by the signature of a duly authorized
signatory.
Dated: ___________________________
Depositary
By ___________________________
Authorized Officer
A-10<PAGE>
(Please print name and address of registered holder)
Name ________________________________________________________
Address _____________________________________________________
(Please indicate other delivery instructions, if applicable)
Name ________________________________________________________
Address _____________________________________________________
A-11<PAGE>
[FORM OF ASSIGNMENT]
FOR VALUE RECEIVED, the undersigned hereby sells, assigns
and transfers unto __________________________________ the within
Receipt and all rights and interests represented by the
Depositary Shares evidenced thereby, and hereby irrevocably
constitutes and appoints ________________________________ his
attorney, to transfer the same on the books of the within-named
Depositary, with full power of substitution in the premises.
Dated:
Signature ___________________________
NOTE: The above signature
should correspond exactly with
the name on the face of this
Receipt.
A-12
STANDARD COMMON STOCK WARRANT AGENCY PROVISIONS
From time to time, Advanced Micro Devices, Inc., a Delaware corporation
(the "Company"), may enter into one or more warrant agreements that provide
for the issuance and sale of warrants ("Warrants") to purchase shares of
the Company's Common Stock, par value $0.01 per share (such shares are
hereinafter referred to as the "Shares" and, where appropriate, such term
shall also mean the other securities or property purchasable upon the
exercise of the Warrants upon the happening of certain events as provided for
herein, and such Common stock is hereinafter referred to as the "Stock").
The standard provisions set forth herein may be incorporated by reference
in any such warrant agreement (a "Warrant Agreement"). The Warrant
Agreement, including the provisions incorporated therein by reference, is
herein referred to as this "Agreement." The person named as the "Warrant
Agent" in the first paragraph of the Warrant Agreement is herein referred to
as the "Warrant Agent." Unless otherwise defined in this Agreement or in the
Warrant Agreement, as the case may be, terms defined in the Warrant
Agreement are used herein as therein defined and terms defined herein are
used in the Warrant Agreement as herein defined.
SECTION 1. Number of Warrants Unlimited; Issuable from Time to Time.
-----------------------------------------------------------
The number of Warrants which may be issued and delivered under this
Agreement is unlimited.
There shall be established in or pursuant to a resolution of the Board of
Directors of the Company or of a duly authorized committee thereof or
established in one or more Warrant Agreements supplemental hereto, prior
to the issuance of any Warrants:
(1) the Designation of such Warrants,
(2) if the Warrants are issued together as a unit with any other
securities of the Company, the date after which the Warrants shall be
freely tradable separately from such other securities (the "Distribution
Date") and if the Company may at its option or under circumstances described
therein provide for an earlier Distribution Date,
(3) the Expiration Date pursuant to Section 6,
(4) the Exercise Price pursuant to Section 6,
(5) the Call Price, Call Date and Call Terms pursuant to Section 7,
if any,
(6) the limitations, if any, upon the Reduced Exercise Price and the
Reduced Exercise Price Period pursuant to Section 8,
(7) the circumstances, if any, under which the Exercise Price
and the number of Shares purchasable upon the exercise of each Warrant and
the number of Warrants outstanding are subject to adjustment and the manner
of making any such adjustment.
1<PAGE>
SECTION 2. Form of Warrant Certificates. The certificates evidencing
-----------------------------
the Warrants (the "Warrant Certificates") to be delivered pursuant to this
Agreement shall be in registered form only. The Warrant Certificates shall
be in substantially such form or forms as shall be established by the Company
from time to time pursuant to one or more resolutions of the Board of
Directors of the Company or of a duly authorized committee thereof or in
one or more Warrant Agreements supplemental hereto, in each case with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Agreement, and may have such letters, numbers
or other marks of identification and such legends or endorsements placed
thereon as may be required to comply with any law or with any rules made
pursuant thereto or with any rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Warrants,
as evidenced by their execution of the Warrants.
SECTION 3. Execution of Warrant Certificates. Warrant Certificates
------------------------------------
shall be signed on behalf of the Company by its Chairman of the Board of
Directors, its Chief Executive Officer, its President, a Vice President or its
Treasurer and attested by its Secretary or Assistant Secretary, under its
corporate seal. Each such signature upon the Warrant Certificates may be in
the form of a facsimile signature of the current or any future Chairman
of the Board, Chief Executive Officer, President, Vice President, Treasurer,
Secretary or Assistant Secretary and may be imprinted or otherwise reproduced on
the Warrant Certificates and for that purpose the Company may adopt and use
the facsimile signature of any person who shall have been Chairman of the
Board, Chief Executive Officer, President, Vice President, Treasurer,
Secretary of Assistant Secretary, notwithstanding the fact that at the time
the Warrant Certificates shall be countersigned and delivered or disposed of
such person shall have ceased to hold such office. The seal of the Company
may be in the form of a facsimile thereof and may be impressed, affixed,
imprinted or otherwise reproduced on the Warrant Certificates.
If any officer of the Company who shall have signed any of the Warrant
Certificates shall cease to be such officer before the Warrant Certificates
so signed shall have been countersigned by the Warrant Agent or disposed of by
the Company, such Warrant Certificates nevertheless may be countersigned and
delivered or disposed of as though such person had not ceased to be such
officer of the Company; and any Warrant Certificate may be signed on behalf of
the Company by any person who, at the actual date of the execution of such
Warrant Certificate, shall be a proper officer of the Company to sign such
Warrant Certificate, although at the date of the execution of this Agreement
any such person was not such officer.
2<PAGE>
SECTION 4. Registration and Countersignature. Warrant Certificates
-----------------------------------
shall be manually countersigned and dated the date of countersignature by the
Warrant Agent and shall not be valid for any purpose unless so countersigned.
The Warrants shall be numbered and shall be registered in a register (the
"Warrant Register") to be maintained by the Warrant Agent.
The Warrant Agent's countersignature on all Warrants shall be in
substantially the following form:
[NAME OF WARRANT AGENT]
as Warrant Agent
By ___________________________________________
Authorized Signatory
The Company and the Warrant Agent may deem and treat the registered
holder of a Warrant Certificate as the absolute owner thereof (notwithstanding
any notation of ownership or other writing thereon made by anyone), for the
purpose of any exercise thereof or any distribution to the holder thereof and
for all other purposes, and neither the Company nor the Warrant Agent shall
be affected by any notice to the contrary.
SECTION 5. Registration of Transfers and Exchanges. The Warrant Agent
-----------------------------------------
shall from time to time register the transfer of any outstanding Warrant
Certificates in the Warrant Register, upon surrender of such Warrant
Certificates, duly endorsed, and accompanied by a written instrument or
instruments of transfer in form satisfactory to the Warrant Agent, duly
signed by the registered holder or holders thereof or by the duly
appointed legal representative thereof or by a duly authorized attorney, such
signature to be guaranteed by (a) a bank or trust company, (b) a broker or
dealer that is a member of the National Association of Securities
Dealers, Inc. (the "NASD") or (c) a member of a national securities
exchange. Upon any such registration of transfer, a new Warrant
Certificate shall be issued to the transferee.
Warrant Certificates may be exchanged at the option of the holder or
holders thereof, when surrendered to the Warrant Agent at its offices or
agency maintained for the purpose of exchanging, transferring and
exercising the Warrants (a "Warrant Agent Office") or at the offices of any
successor Warrant Agent as provided in Section 19 hereof, for another Warrant
Certificate or other Warrant Certificates of like tenor and representing in
the aggregate a like number of Warrants.
3<PAGE>
The Warrant Agent is hereby authorized to countersign, in accordance
with the provisions of this Section 5 and of Section 4, and deliver the new
Warrant Certificates required pursuant to the provisions of this Section, and
for the purpose of any distribution of Warrant Certificates contemplated by
Section 14.
SECTION 6. Duration and Exercise of Warrants. The Warrants shall expire
----------------------------------
on (a) the close of business on the date set forth pursuant to Section 1,
or (b) such later date as shall be determined in the sole discretion of
the Company, in a written statement to the Warrant Agent and with notice
to registered holders of Warrants in the manner provided for in Section 16
(such date of expiration being herein referred to as the "Expiration
Date"). On and after the Distribution Date, each Warrant may be exercised
on any business day on or prior to the close of business on the Expiration
Date. After the close of business on the Expiration Date, the Warrants will
become void and of no value.
Subject to the provisions of this Agreement, including Section 14,
the holder of each Warrant shall have the right to purchase from the Company
(and the Company shall issue and sell to such holder of a Warrant) one fully
paid and nonassessable Share at the price set forth pursuant to Section 1
(such price, as may be adjusted from time to time as provided in Section 14,
being the "Exercise Price") upon depositing with the Warrant Agent at a
Warrant Agent Office the Warrant Certificate evidencing such Warrant, with
the form of election to purchase on the reverse thereof duly completed and
signed by the registered holder or holders thereof or by the duly
appointed legal representative thereof or by a duly authorized attorney,
such signature to be guaranteed by a bank or trust company, by a broker or
dealer which is a member of the NASD or by a member of a national securities
exchange, and upon payment of the Exercise Price for the number of Shares in
respect of which such Warrants are being exercised. Payment of the
aggregate Exercise Price shall be made in lawful money of the United States of
America.
Subject to Section 10, upon such surrender of a Warrant Certificate
and payment of the Exercise Price, the Warrant Agent shall requisition from
the Company's Stock transfer agent (the "Transfer Agent") for issuance and
delivery to or upon the written order of the registered holder of
such Warrant Certificate and in such name or names as such registered holder
may designate, a certificate or certificates for the Share or Shares
issuable upon the exercise of the Warrant or Warrants evidenced by such
Warrant Certificate. Such certificate or certificates shall be deemed to
have been issued and any person so designated to be named therein shall be
deemed to have become the holder of record of such Share or Shares as of the
date of the surrender of such Warrant Certificate duly executed and
payment of the Exercise Price. The Warrants evidenced by a Warrant
Certificate shall be exercisable, at the election of the registered holder
thereof, either as an entirety or from time to time for a portion of the
number of Warrants specified in the Warrant Certificate. If less than all of
4<PAGE>
the Warrants evidenced by a Warrant Certificate surrendered upon the
exercise of Warrants are exercised at any time prior to the date of
expiration for the Warrants, a new Warrant Certificate or Certificates
shall be issued for the remaining number of Warrants evidenced by the Warrant
Certificate so surrendered, and the Warrant Agent is hereby authorized to
countersign the required new Warrant Certificate or Certificates pursuant
to the provisions of Section 5 and this Section 6.
The Warrant Agent shall account promptly to the Company with respect to
Warrants exercised and concurrently pay or deliver to the Company all moneys
received by it on the purchase of Shares through the exercise of Warrants.
SECTION 7. Call of Warrants by the Company. The Company shall have the
---------------------------------
right to call and repurchase any or all Warrants at the price (the "Call
Price") and on or after the date (the "Call Date") and upon the terms (the
"Call Terms") as shall be set forth pursuant to Section 1. Notice of such
Call Price, Call Date and Call Terms shall be given to registered holders
of Warrants in the manner provided in Section 16.
SECTION 8. Optional Reduction of Exercise Price. Subject to the limits, if
-------------------------------------
any, set forth pursuant to Section 1, the Company shall have the right, at
any time or from time to time, voluntarily to reduce the then current
Exercise Price to such amount (the "Reduced Exercise Price") and for such
period or periods of time, which may be through the close of business on the
Expiration Date (the "Reduced Exercise Price Period") as may be deemed
appropriate by the Company. Notice of any such Reduced Exercise Price and
Reduced Exercise Price Period shall be given to registered holders of
Warrants in the manner provided in Section 16. After the termination of the
Reduced Exercise Price Period, the Exercise Price shall be such Exercise
Price that would have been in effect, as adjusted pursuant to the provisions of
Section 14, had there been no reduction in the Exercise Price pursuant to the
provisions of this Section 8. No reduction of the then current Exercise
Price pursuant to the provisions of this Section 8 shall be deemed for the
purposes of Section 14 hereof to alter or adjust the Exercise Price.
SECTION 9. Cancellation of Warrants. If the Company shall purchase or
-------------------------
otherwise acquire Warrants, the Warrant Certificate representing such Warrants
shall thereupon be delivered to the Warrant Agent and be canceled by it and
retired. The Warrant Agent shall cancel all Warrant Certificates
surrendered for exchange, substitution, transfer or exercise in whole or in
part. Such canceled Warrant Certificates shall thereafter be disposed of in a
manner satisfactory to the Company.
5<PAGE>
SECTION 10. Payment of Taxes. The Company will pay all documentary
-----------------
stamp taxes attributable to the initial issuance of Warrants and of Shares
upon the exercise of Warrants; provided that the Company shall not be
--------
required to pay any tax or taxes which may be payable in respect of any
transfer involved in the issue of any Warrant Certificates or any certificates
for Shares in a name other than the registered holder of a Warrant
Certificate surrendered upon the exercise of a Warrant, and the Company
shall not be required to issue or deliver such certificates unless or
until the person or persons requesting the issuance thereof shall have paid to
the Company the amount of such tax or shall have established to the
satisfaction of the Company that such tax has been paid.
SECTION 11. Mutilated or Missing Warrant Certificates. If any of the
-------------------------------------------
Warrant Certificates shall be mutilated, lost, stolen or destroyed, the
Company may in its discretion issue, and the Warrant Agent shall countersign
and deliver, in exchange and substitution for and upon cancellation of the
mutilated Warrant Certificate, or in lieu of and substitution for the
Warrant Certificate lost, stolen or destroyed, a new Warrant Certificate of
like tenor and representing an equivalent number of Warrants, but only upon
receipt of evidence satisfactory to the Company and the Warrant Agent of such
loss, theft or destruction of such Warrant Certificate and indemnity or
bond, if requested, also satisfactory to them. Applicants for such
substitute Warrant Certificates shall also comply with such other
reasonable regulations and pay such other reasonable charges as the Company or
the Warrant Agent may prescribe.
SECTION 12. Reservation of Shares. For the purpose of enabling it
-----------------------
to satisfy any obligation to issue Shares upon exercise of Warrants, the
Company will at all times through the close of business on the Expiration
Date, reserve and keep available, free from preemptive rights and out of its
aggregate authorized but unissued or treasury shares of Stock, the number of
Shares deliverable upon the exercise of all outstanding Warrants, and
the Transfer Agent for such Stock is hereby irrevocably authorized and
directed at all times to reserve such number of authorized and unissued or
treasury shares of Common Stock as shall be required for such purpose. The
Company will keep a copy of this Agreement on file with such Transfer Agent
and with every transfer agent for any shares of the Company's capital stock
issuable upon the exercise of Warrants pursuant to Section 14. The Warrant
Agent is hereby irrevocably authorized to requisition from time to time from
such Transfer Agent stock certificates issuable upon exercise of outstanding
Warrants, and the Company will supply such Transfer Agent with duly executed
stock certificates for such purpose.
6<PAGE>
Before taking any action that would cause an adjustment pursuant to
Section 14 reducing the Exercise Price below the then par value (if any) of the
Shares issuable upon exercise of the Warrants, the Company will take any
corporate action that may, in the opinion of its counsel, be necessary in
order that the Company may validly and legally issue fully paid
and nonassessable Shares at the Exercise Price as so adjusted.
The Company covenants that all Shares issued upon exercise of the
Warrants will, upon issuance in accordance ith the terms of this Agreement,
be fully paid and nonassessable and free from all taxes, liens, charges and
security interests created by or imposed upon the Company with respect to the
issuance and holding thereof.
SECTION 13. Obtaining of Governmental Approvals and Stock Listings.
--------------------------------------------------------
So long as any Warrants remain outstanding, the Company will take all
necessary steps (a) to obtain and keep effective any and all permits,
consents and approvals of governmental agencies and authorities and to make
filings under federal and state securities acts and laws, which may be or
become requisite in connection with the issuance, sale, transfer and delivery
of the Warrant Certificates, the exercise of the Warrants and the issuance,
sale, transfer and delivery of the Shares issued upon exercise of Warrants,
and (b) to have the shares of Stock, immediately upon their issuance upon
exercise of Warrants, (i) listed on each national securities exchange on
which the Stock is then listed or (ii) if the Stock is not then listed on any
national securities exchange, listed for quotation on the NASD Automated
Quotations System ("NASDAQ") National Market System ("NASDAQ/NMS") or such
other over-the-counter quotation system on which the Stock may then be listed.
SECTION 14. Adjustment of Exercise Price and Number of Shares
-----------------------------------------------------
Purchasable or Number of Warrants. Except as may be otherwise provided in
- ------------------------------------
accordance with Section 1, the Exercise Price, the number of Shares
purchasable upon the exercise of each Warrant and the number of Warrants
outstanding are subject to adjustment from time to time upon the occurrence
of the events enumerated in this Section 14.
(a) If the Company shall (i) pay a dividend on its capital stock
(including Stock) in shares of Stock, (ii) subdivide its outstanding
shares of Stock, (iii) combine its outstanding shares of Stock into a
smaller number of shares of Stock or (iv) issue any shares of its capital
stock in a reclassification of the Stock (including any such reclas-
sification in connection with a consolidation or merger in which the
Company is the continuing corporation), the number of Shares purchasable
upon exercise of each Warrant immediately prior thereto shall be
adjusted so that the holder of each Warrant shall be entitled to receive
the kind and number of Shares or other securities of the Company which
such holder would have owned or have been entitled to receive after the
7<PAGE>
happening of any of the events described above, had such Warrant been
exercised immediately prior to the happening of such event or any record
date with respect thereto. An adjustment made pursuant to this paragraph
(a) shall become effective immediately after the effective date of such
event retroactive to the record date, if any, for such event.
(b) In the event of any capital reorganization or any
reclassification of the Stock (except as provided in paragraph (a)
above or paragraph (h) below), any holder of Warrants upon exercise
thereof shall be entitled to receive, in lieu of the Stock to which he
would have become entitled upon exercise immediately prior to such
reorganization or reclassification, the shares (of any class or classes)
or other securities or property of the Company that he would have been
entitled to receive at the same aggregate Exercise Price upon such
reorganization or reclassification if his Warrants had been exercised
immediately prior thereto; and in any such case, appropriate provision
(as determined in good faith by the Board of Directors of the Company
or a duly authorized committee thereof, whose determination shall be
conclusive and shall be evidenced by a resolution filed with the Warrant
Agent) shall be made for the application of this Section 14 with respect
to the rights and interests thereafter of the holders of Warrants
(including the allocation of the adjusted Exercise Price between or
among shares of classes of capital stock), to the end that this Section
14 (including the adjustments of the number of shares of Stock or
other securities purchasable and the Exercise Price thereof) shall
thereafter be reflected, as nearly as reasonably practicable, in
all subsequent exercises of the Warrants for any shares or securities
or other property thereafter deliverable upon the exercise of Warrants.
(c) Except for adjustments required by paragraph (h) hereof, no
adjustment in the number of Shares purchasable hereunder shall be
required unless such adjustment would require an increase or decrease of
at least one percent (1%) in the number of Shares purchasable upon the
exercise of each Warrant; provided, however, that any adjustments which by
reason of this paragraph (c) are not required to be made shall be
carried forward and taken into account in any subsequent adjustment.
All calculations shall be made to the nearest cent and to the nearest
one-hundredth of a Share, as the case may be.
(d) Whenever the number of Shares purchasable upon the exercise of
each Warrant is adjusted as herein provided (whether or not the
Company then or thereafter elects to issue additional Warrants in
substitution for an adjustment in the number of Shares as provided in
paragraph (f)), the Exercise Price payable upon exercise of each Warrant
shall be adjusted by multiplying such Exercise Price immediately prior to
such adjustment by a fraction, the numerator of which shall be the
number of Shares purchasable upon the exercise of each Warrant
immediately prior to such adjustment, and the denominator of which
shall be the number of Shares so purchasable immediately thereafter.
8<PAGE>
(e) For the purpose of this Section 14, the term "shares of
Stock" shall mean (i) the Common Stock of the Company or (ii) any
other class of stock resulting from successive changes or
reclassification of such shares consisting solely of changes in par
value, of from par value to no par value, or from no par value to par
value. If at any time, as a result of an adjustment made pursuant to
paragraph (a) or (b) above, the holders of Warrants shall become
entitled to purchase any shares of the Company other than shares of
Stock, thereafter the number of such other shares so purchasable upon
exercise of each Warrant and the Exercise Price of such shares shall be
subject to adjustment from time to time in a manner and on terms as
nearly equivalent as practicable to the provisions with respect to the
Shares contained in paragraphs (a) through (d), inclusive, above,
and the provisions of Section 6, 10, 12, 13(a) and 16, with respect to
the Shares, shall apply on like terms to any such other shares.
(f) The Company may elect, on or after the date of any adjustment
required by paragraphs (a) through (b) of this Section 14, to adjust the
number of Warrants in substitution for an adjustment in the number of
Shares purchasable upon the exercise of a Warrant. Each of the Warrants
outstanding after such adjustment of the number of Warrants shall be
exercisable for the same number of Shares as immediately prior to such
adjustment. Each Warrant held of record prior to such adjustment of the
number of Warrants shall become that number of Warrants (calculated
to the nearest hundredth) obtained by dividing the Exercise Price in
effect prior to adjustment of the Exercise Price by the Exercise Price
in effect after adjustment of the Exercise Price. The Company shall
notify the holders of Warrants in the same manner as provided in the
first paragraph of Section 16, of its election to adjust the number of
Warrants, indicating the record date for the adjustment, and, if known
at the time, the amount of the adjustment to be made. This record date
may be the date on which the Exercise Price is adjusted or any day
thereafter. Upon each adjustment of the number of Warrants pursuant to
this paragraph (f) the Company shall, as promptly as practicable, cause
to be distributed to holders of record of Warrants on such record date
Warrant Certificates evidencing, subject to Section 15, the
additional Warrants to which such holders shall be entitled as a result
of such adjustment, or, at the option of the Company, shall cause to be
distributed to such holders of record in substitution and replacement
for the Warrant Certificates held by such holders prior to the date
of adjustment, and upon surrender thereof, if required by the Company,
new Warrant Certificates evidencing all the Warrants to be issued,
executed and registered in the manner specified in Sections 4 and 5 (and
which may bear, at the option of the Company, the adjusted Exercise
Price) and shall be registered in the names of the holders of record of
Warrant Certificates on the record date specified in the notice.
9<PAGE>
(g) Except as provided in paragraph (a) of this Section 14,
no adjustment in respect of any dividends shall be made during the terms
of a Warrant or upon the exercise of a Warrant.
(h) In case of any consolidation of the Company with or merger of
the Company into another corporation or in case of any sale or conveyance
to another corporation of the property of the Company as an entirety or
substantially as an entirety, the Company or such successor or
purchasing corporation, as the case may be, shall execute with the
Warrant Agent an agreement that each holder of a Warrant shall have the
right thereafter upon payment of the Exercise Price in effect immediately
prior to such action to purchase upon exercise of each Warrant the kind
and amount of shares and other securities and property which he would have
owned or have been entitled to receive after the happening of such
consolidation, merger, sale or conveyance had such Warrant been
exercised immediately prior to such action. The Company shall mail
by first class mail, postage prepaid, to each holder of a Warrant, notice
of the execution of any such agreement. Such agreement shall
provide for adjustments, which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Section 14.
The provisions of this paragraph (h) shall similarly apply to
successive consolidations, mergers, sales or conveyances. The Warrant
Agent shall be under no duty or responsibility to determine the
correctness of any provisions contained in any such agreement relating
either to the kind or amount of shares of stock or other securities or
property receivable upon exercise of Warrants or with respect to the
method employed and provided therein for any adjustments and shall be
entitled to rely upon the provisions contained in any such agreement.
(i) Irrespective of any adjustments in the Exercise Price or the
number or kind of shares purchasable upon the exercise of the Warrants,
Warrants theretofore or thereafter issued may continue to express the same
price and number and kind of shares as are stated in the Warrants
initially issuable pursuant to this Agreement.
SECTION 15. Fractional Warrants and Fractional Shares.
-----------------------------------------
(a) The Company shall not be required to issue fractions of
Warrants on any distribution of Warrants to holders of Warrant
Certificates pursuant to Section 14(f) or to distribute Warrant
Certificates that evidence fractional Warrants. In lieu of such
fractional Warrants there shall be paid to the registered holders
of the Warrant Certificates with regard to which such fractional
Warrants would otherwise be issuable, an amount in cash equal to the same
fraction of the current market value of a full Warrant. For purposes of
this Section 15(a), the current market value of a Warrant shall be the
10<PAGE>
closing price of one Warrant (as determined pursuant to paragraph (c)
below) for the trading day immediately prior to the date on which such
fractional Warrant would have been otherwise issuable.
(b) Notwithstanding any adjustment to Section 14 in the number of
Shares purchasable upon the exercise of a Warrant, the Company shall
not be required to issue fractions of Shares upon exercise of the
Warrants or to distribute certificates which evidence fractional
Shares. In lieu of fractional Shares, there shall be paid to the
registered holders of Warrant Certificates at the time such Warrant
Certificates are exercised as herein provided an amount in cash equal
to the same fraction of the current market value of a share of Stock.
For purposes of this Section 15(b), the current market value of a share
of Stock shall be the closing price of a share of Stock (as
determined pursuant to paragraph (c) below) for the trading day
immediately prior to the date of such exercise.
(c) The closing price for each day shall be the last sale price,
regular way, or, if no such sale takes place on such day, the average of
the closing bid and asked prices, regular way, for such day, in either
case as reported in the principal consolidated transaction reporting
system with respect to securities listed or admitted to trading on the
New York Stock Exchange or, if the Warrants or Stock, as the case may be,
is not listed or admitted to trading on such exchange, as reported
on the principal consolidated transaction reporting system with
respect to securities listed on the principal national securities
exchange on which the Warrants or Stock, respectively, is listed or
admitted to trading, or if the Warrants or Stock, as the case may be,
is not listed or admitted to trading on any national securities
exchange, as reported on NASDAQ/NMS or, if the Warrants or Stock, as the
case may be, is not listed or admitted to trading on NASDAQ/NMS, as
reported on NASDAQ.
SECTION 16. Notices to Warrantholders. Upon any adjustment of the
--------------------------
number of Shares purchasable upon exercise of each Warrant, the Exercise
Price or the number of Warrants outstanding pursuant to Section 14, the Company
within twenty (20) calendar days thereafter shall (i) cause to be filed
with the Warrant Agent a certificate of a firm of independent public
accountants of recognized standing selected by the Company (who may be the
regular auditors of the Company) setting forth the Exercise Price and either the
number of Shares purchasable upon exercise of each Warrant or the additional
number of Warrants to be issued for each previously outstanding Warrant, as
the case may be, after such adjustment and setting forth in reasonable detail
the method of calculation and the facts upon which such adjustment was made,
which certificate shall be conclusive evidence of the correctness of the matters
set forth therein, and (iii) cause to be given to each of the registered
11<PAGE>
holders of the Warrant Certificates at such holder's address appearing on the
Warrant Register written notice of such adjustments by first class mail,
postage prepaid. Where appropriate, such notice may be given in advance
and included as a part of the notice required to be mailed under the other
provisions of this Section 16.
Pursuant to Sections 1, 6, 7 and 8, the Company shall cause written
notice of such later Distribution Date, such later Expiration Date, such
Call Price, Call Date and Call Terms and such Reduced Exercise Price and
Reduced Exercise Price Period, as the case may be, to be given as soon as
practicable to the Warrant Agent and to each of the registered holders of
the Warrant Certificates by first class mail, postage prepaid, at such
holder's address appearing on the Warrant Register. In addition to the
written notice referred to in the preceding sentence, the Company shall make
a public announcement in a daily morning newspaper of general circulation in
New York City and in San Francisco of such earlier Distribution Date, such
later Expiration Date, such Call Price, Call Date and Call Terms and such
Reduced Exercise Price and Reduced Exercise Price Period, as the case may be,
at least once a week for two successive weeks prior to the implementation of
such terms.
If:
(a) The Company shall declare any dividend payable in any
securities upon its shares of Stock or make any distribution (other
than a cash dividend) to the holders of its shares of Stock, or
(b) the Company shall offer to the holders of its shares of
Stock any additional shares of Stock or securities convertible into shares
of Stock or any right to subscribe thereto, or
(c) there shall be a dissolution, liquidation or winding up of
the Company (other than in connection with a consolidation, merger or
sale of all or substantially all of its property, assets and business as an
entirety),
then the Company shall (i) cause written notice of such event to be filed with
the Warrant Agent and shall cause written notice of such event to be given to
each of the registered holders of the Warrant Certificates at such holder's
address appearing on the Warrant Register, by first class mail, postage
prepaid, and (ii) make a public announcement in a daily newspaper of
general circulation in New York City and in San Francisco of such event, such
giving of notice and publication to be completed at least ten (10) calendar
days (or twenty (20) calendar days in any case specified in clause (c) above)
prior to the date fixed as a record date or the date of closing the
transfer books for the determination of the stockholders entitled to such
12<PAGE>
dividend, distribution or subscription rights, or for the determination of
stockholders entitled to vote on such proposed dissolution, liquidation or
winding up. Such notice shall specify such record date or the date of closing
the transfer books, as the case may be. The failure to give the notice
required by this Section 16 or any defect therein shall not affect the
legality or validity of any distribution, right, warrant, dissolution,
liquidation or winding up or the vote upon or any other action taken in
connection therewith.
SECTION 17. Merger, Consolidation or Change of Name of Warrant
-----------------------------------------------------
Agent. Any corporation into which the Warrant Agent may be merged or converted
- ------
or with which it may be consolidated, or any corporation resulting from
any merger, conversion or consolidation to which the Warrant Agent shall be
a party, or any corporation succeeding to the corporate trust business of
the Warrant Agent, shall be the successor to the Warrant Agent hereunder
without the execution or filing of any paper or any further act on the part
of any of the parties hereto, provided that such corporation would be
eligible for appointment as a successor Warrant Agent under the provisions of
Section 19. If at the time such successor to the Warrant Agent shall
succeed under this Agreement, any of the Warrant Certificates shall have been
countersigned but not delivered, any such successor to the Warrant Agent may
adopt the countersignature of the original Warrant Agent; and if at
that time any of the Warrant Certificates shall not have been
countersigned, any successor to the Warrant Agent may countersign such
Warrant Certificates either in the name of the predecessor Warrant Agent or
in the name of the successor Warrant Agent; and in all such cases such
Warrant Certificates shall have the full force provided in the Warrant
Certificates and in this Agreement.
If at any time the name of the Warrant Agent shall be changed and
at such time any of the Warrant Certificates shall have been countersigned
but not delivered, the Warrant Agent whose name has changed may adopt the
countersignature under its prior name; and if at that time any of the Warrant
Certificates shall not have been countersigned, the Warrant Agent may
countersign such Warrant Certificates either in its prior name or in its
changed name; and in all such cases such Warrant Certificates shall
have the full force provided in the Warrant Certificates and in this
Agreement.
SECTION 18. Warrant Agent. The Warrant Agent undertakes the duties
---------------
and obligations imposed by this Agreement upon the following terms and
conditions, by all of which the Company and the holders of Warrants, by
their acceptance thereof, shall be bound:
13<PAGE>
(a) The statements contained herein and in the Warrant Certificates
shall be taken as statements of the Company, and the Warrant Agent
assumes no responsibility for the correctness of any of the same except
such as describe the Warrant Agent or action taken or to be taken by it.
Except as herein otherwise provided, the Warrant Agent assumes no
responsibility with respect to the execution, delivery or distribution
of the Warrant Certificates.
(b) The Warrant Agent shall not be responsible for any failure of the
Company to comply with any of the covenants contained in this Agreement
or in the Warrant Certificates to be complied with by the Company nor
shall it at any time be under any duty or responsibility to any holder
of a Warrant to make or cause to be made any adjustment in the Exercise
Price or in the number of Shares issuable upon exercise of any
Warrant (except as instructed by the Company), or to determine
whether any facts exist which may require any such adjustments, or with
respect to the nature or extent of or method employed in making
any such adjustments when made.
(c) The Warrant Agent may consult at any time with counsel
satisfactory to it (who may be counsel for the Company) and the
Warrant Agent shall incur no liability or responsibility to the Company
or any holder of any Warrant Certificate in respect of any action
taken, suffered or omitted by it hereunder in good faith and in accordance
with the opinion or the advice of such counsel.
(d) The Warrant Agent shall incur no liability or responsibility
to the Company or to any holder of any Warrant Certificate for any
action taken in reliance on any notice, resolution, waiver, consent,
order, certificate or other paper, document or instrument believed by
it to be genuine and to have been signed, sent or presented by the
proper party or parties.
(e) The Company agrees to pay to the Warrant Agent reasonable
compensation for all services rendered by the Warrant Agent under this
Agreement, to reimburse the Warrant Agent upon demand for all expenses,
taxes and governmental charges and other charges of any kind and nature
incurred by the Warrant Agent in the performance of its duties under
this Agreement and to indemnify the Warrant Agent and save it harmless
against any and all losses, liabilities and expenses, including
judgments, costs and reasonable counsel fees, for anything done or
omitted by the Warrant Agent arising out of or in connection with this
Agreement except as a result of its negligence or bad faith.
14<PAGE>
(f) The Warrant Agent shall be under no obligation to institute any
action, suit or legal proceeding or to take any other action likely
to involve expense unless the Company or one or more registered
holders of Warrant Certificates shall furnish the Warrant Agent with
reasonable security and indemnity for any costs or expenses which may be
incurred. All rights of action under this Agreement or under any of the
Warrants may be enforced by the Warrant Agent without the possession
of any of the Warrant Certificates or the production thereof at any
trial or other proceeding relative thereto, and any such action, suit or
proceeding instituted by the Warrant Agent shall be brought in its name as
Warrant Agent, and any recovery or judgment shall be for the ratable
benefit of the registered holders of the Warrants, as their respective
rights or interests may appear.
(g) The Warrant Agent, and any stockholder, director, officer or
employee thereof, may buy, sell or deal in any of the Warrants or other
securities of the Company or become pecuniarily interested in any
transaction in which the Company may be interested, or contract with or
lend money to the Company or otherwise act as fully and freely as though
they were not the Warrant Agent under this Agreement, or a stockholder,
director, officer or employee of the Warrant Agent, as the case may
be. Nothing herein shall preclude the Warrant Agent from acting in any
other capacity for the Company or for any other legal entity.
(h) The Warrant Agent shall act hereunder solely as agent for the
Company, and its duties shall be determined solely by the provisions
hereof. The Warrant Agent shall not be liable for anything which it may
do or refrain from doing in connection with this Agreement except for
its own negligence or bad faith.
(i) The Company agrees that it will perform, execute, acknowledge
and deliver or cause to be performed, executed, acknowledged and delivered
all such further and other acts, instruments and assurances as may
reasonably be required by the Warrant Agent for the carrying out or
performing of the provisions of this Agreement.
(j) The Warrant Agent shall not be under any responsibility
in respect of the validity of this Agreement or the execution and
delivery hereof (except the due execution hereof by the Warrant Agent)
or in respect of the validity or execution of any Warrant Certificate
(except its countersignature thereof), nor shall the Warrant Agent by
any act hereunder be deemed to make any representation or warranty as
to the authorization or reservation of the Shares to be issued
pursuant to this Agreement or any Warrant Certificate or as to
whether the Shares will when issued be validly issued, fully paid and
nonassessable or as to the Exercise Price or the number of Shares issuable
upon exercise of any Warrant.
15<PAGE>
(k) The Warrant Agent is hereby authorized and directed to
accept instructions with respect to the performance of its duties
hereunder from the Chairman of the Board, the Chief Executive Officer, the
President, any Vice President, the Treasurer, the Secretary or any
Assistant Secretary of the Company, and to apply to such officers for
advice or instructions in connection with its duties, and shall not be
liable for any action taken or suffered to be taken by it in good faith
in accordance with instructions of any such officer or in good faith
reliance upon any statement signed by any one of such officers of the
Company with respect to any fact or matter (unless other evidence in
respect thereof is herein specifically prescribed) which may be deemed to
be conclusively proved and established by such signed statement.
SECTION 19. Change of Warrant Agent. If the Warrant Agent shall resign
------------------------
(such resignation to become effective not earlier than sixty (60) days after
the giving of written notice thereof to the Company and the registered
holders of Warrant Certificates) or shall become incapable of acting as
Warrant Agent or if the Board of Directors of the Company or a duly
authorized committee thereof shall by resolution remove the Warrant Agent
(such removal to become effective not earlier than thirty (30) days after the
filing of a certified copy of such resolution with the Warrant Agent and
the giving of written notice of such removal to the registered holders of
Warrant Certificates), the Company shall appoint a successor to the
Warrant Agent. If the Company shall fail to make such appointment
within a period of thirty (30) days after such removal or after it has
been so notified in writing of such resignation or incapacity by the
Warrant Agent or by the registered holder of a Warrant Certificate (in
the case of incapacity), then the registered holder of any Warrant
Certificate may apply to any court of competent jurisdiction for the
appointment of a successor to the Warrant Agent. Pending appointment of a
successor to the Warrant Agent, either by the Company or by such a court, the
duties of the Warrant Agent shall be carried out by the Company. Any
successor Warrant Agent, whether appointed by the Company or by such a court,
shall be a bank or trust company, in good standing, incorporated under the
laws of any state or of the United States of America. As soon as practicable
after appointment of the successor Warrant Agent, the Company shall cause
written notice of the change in the Warrant Agent to be given to each of
the registered holders of the Warrant Certificates at such holder's address
appearing on the Warrant Register. After appointment, the successor Warrant
Agent shall be vested with the same powers, rights, duties and
responsibilities as if it had been originally named as Warrant Agent without
further act or deed. The former Warrant Agent shall deliver and transfer
to the successor Warrant Agent any property at the time held by it
hereunder and execute and deliver, at the expense of the Company, any
further assurance, conveyance, act or deed necessary for the purpose.
Failure to give any notice provided for in this Section 19 or any defect
therein, shall not affect the legality or validity of the removal of the
Warrant Agent or the appointment of a successor Warrant Agent, as the case may
be.
16<PAGE>
SECTION 20. Warrantholder Not Deemed a Stockholder. Nothing
-------------------------------------------
contained in this Agreement or in any of the Warrant Certificates shall be
construed as conferring upon the holders thereof the right to vote or to
receive dividends or to consent to or receive notice as stockholders in
respect of the meetings of stockholders or for the election of directors of
the Company or any other matter, or any rights whatsoever as stockholders of
the Company.
SECTION 21. Delivery of Prospectus. If the Company is required
------------------------
under applicable federal or state securities laws to deliver a prospectus
upon exercise of Warrants, the Company will furnish to the Warrant Agent
sufficient copies of a prospectus, and the Warrant Agent agrees that upon
the exercise of any Warrant Certificate by the holder thereof, the Warrant
Agent will deliver to such holder, prior to or concurrently with the
delivery of the certificate or certificates for the Shares issued upon such
exercise, a copy of the prospectus.
SECTION 22. Notices to Company and Warrant Agent. Any notice or
---------------------------------------
demand authorized by this Agreement to be given or made by the Warrant Agent or
by any registered holder of any Warrant Certificate to or on the Company shall
be sufficiently given or made if sent by mail, first class or registered,
postage prepaid, addressed (until another address is filed in writing by
the Company with the Warrant Agent), as follows:
Advanced Micro Devices, Inc.
One AMD Place
P.O. Box 3453
Sunnyvale, CA 94088-3453
Attention: Secretary
If the Company shall fail to maintain such office or agency or shall fail
to give such notice of any change in the location thereof, presentation may be
made and notices and demands may be served at the principal office of the
Warrant Agent.
Any notice pursuant to this Agreement to be given by the Company or by
any registered holder of any Warrant Certificate to the Warrant Agent shall be
sufficiently given if sent by mail, first class or registered, postage
prepaid, addressed (until another address is filed in writing by the Warrant
Agent with the Company) to the Warrant Agent at the address set forth in the
Warrant Agreement.
17<PAGE>
SECTION 23. Supplements and Amendments. The Company and the Warrant
----------------------------
Agent may from time to time supplement or amend this Agreement without the
approval of any holders of Warrant Certificates in order to
designate Warrants pursuant to Section 1, to cure any ambiguity, manifest
error or other mistake in this Agreement, or to correct or supplement any
provision contained herein that may be defective or inconsistent with any
other provision herein, or to make any other provisions in regard to matters or
questions arising hereunder that the Company and the Warrant Agent may deem
necessary or desirable and that shall not adversely affect, alter or change
the interests of the holders of the Warrant Certificates.
SECTION 24. Successors. All the covenants and provisions of this
-----------
Agreement by or for the benefit of the Company or the Warrant Agent shall
bind and inure to the benefit of their respective successors and assigns
hereunder.
SECTION 25. Termination. This Agreement shall terminate at the close of
------------
business on the Expiration Date. Notwithstanding the foregoing, this
Agreement will terminate on any earlier date when all Warrants have been
exercised. The provisions of Section 18 shall survive such termination.
SECTION 26. Governing Law. This Agreement and each Warrant Certificate
--------------
issued hereunder shall be deemed to be a contract made under the laws of
the State of California and for all purposes shall be construed in
accordance with the laws of such State.
SECTION 27. Benefits of this Agreement. Nothing in this Agreement
----------------------------
shall be construed to give to any person or corporation other than the
Company, the Warrant Agent and the registered holders of the Warrant
Certificates any legal or equitable right, remedy or claim under this Agreement,
and this Agreement shall be for the sole and exclusive benefit of the
Company, the Warrant Agent and the registered holders of the Warrant
Certificates.
SECTION 28. Counterparts. This Agreement may be executed in any number
-------------
of counterparts and each of such counterparts shall for all purposes be
deemed to be an original, and such counterparts shall together
constitute but one and the same instrument.
SECTION 29. Headings. The headings of sections of this Agreement have
---------
been inserted for convenience of reference only, are not to be considered a
part hereof and shall in no way modify or restrict any of the terms or
provisions hereof.
--End of Standard Common Stock Warrant Provisions--
GENBUS\WTM\32636\0200\WARNT1-2.AGT 4456sn
18
LAW OFFICES OF
BRONSON, BRONSON & MCKINNON
A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS
FAX 505 MONTGOMERY STREET LOS ANGELES
(415) 982-1394 SAN FRANCISCO, CALIFORNIA 94111-2514 LAKEPORT
TELEPHONE (415) 986-4200 WALNUT CREEK
TELEX SANTA ROSA
255921 KINBR UR SAN JOSE
April 1, 1994
Advanced Micro Devices, Inc.
One AMD Place
Sunnyvale, California 94088-3453
Ladies and Gentlemen:
This opinion is being delivered in connection with the
registration under the Securities Act of 1933 by Advanced Micro
Devices, Inc., a Delaware corporation ("AMD" or the "Company"),
of (a) secured or unsecured debt securities (the "Debt Securities")
which may be either senior debt securities (the "Senior Debt
Securities"), senior subordinated debt securities (the "Senior
Subordinated Debt Securities") or subordinated debt securities (the
"Subordinated Debt Securities"), (b) shares of preferred stock, par
value $0.10 per share (the "Preferred Stock"), of the Company in one
or more series, (c) depositary shares of the Company (the "Depositary
Shares"), each representing fractional interests in Preferred Stock,
(d) shares of common stock, par value $0.01 per share, of the Company
(the "Common Stock") accompanied by preferred stock purchase rights
("Rights"), and (e) warrants to purchase Common Stock (the
"Warrants"), or any combination of the foregoing, either individually
or as units consisting of one or more of the foregoing, each on terms
to be determined at the time of sale. The Debt Securities, the
Preferred Stock, the Depositary Shares, the Common Stock, and the
Warrants are sometimes hereinafter referred to, individually, as a
"Security," and, collectively, as the "Securities." The Securities
shall be offered by the Company from time to time at an aggregate
initial public offering price of up to $400,000,000. The Securities
are to be issued pursuant to a Registration Statement on Form S-3 (the
"Registration Statement") to be filed by the Company with the
Securities and Exchange Commission on or about April 1, 1994.
We are familiar with the proceedings to date by the Company
with respect to the issuance and sale of the Securities and have
examined such records, documents and matters of law as we have
deemed necessary for purposes of this opinion.
Based upon the foregoing, we are of the opinion that:
<PAGE>
BRONSON, BRONSON & MCKINNON
Advanced Micro Devices, Inc.
April 1, 1994
Page 2
1. AMD is a corporation duly organized and validly
existing under the laws of the State of Delaware.
2. When (a) appropriate additional proceedings have been
taken as now contemplated by us as your counsel, (b) an indenture
in the form of the indenture filed as Exhibit 4.6 to the
Registration Statement under which the Debt Securities will be
issued (the "Indenture") has been duly executed and delivered,
(c) the terms of the Debt Securities have been established in
accordance with the Indenture and duly adopted resolutions of
AMD's Board of Directors authorizing the creation, issuance and
sale of the Debt Securities, (d) the Debt Securities have been
executed and authenticated in accordance with the terms of the
Indenture, and (e) the Debt Securities have been issued, sold and
delivered in the manner and for the consideration stated in the
Registration Statement, any prospectus supplement relating
thereto and the Indenture, the Debt Securities will be legal,
valid and binding obligations of the Company.
3. When (a) the terms of any particular series of
Preferred Stock have been established in accordance with the
resolutions of AMD's Board of Directors authorizing the issuance
and sale of Preferred Stock, (b) a statement of designation
conforming to the Delaware General Corporation Law regarding the
Preferred Stock has been filed with the Secretary of State of the
State of Delaware, and (c) the Preferred Stock has been issued,
sold and delivered in the manner and for the consideration stated
in the Registration Statement, and any prospectus supplement
relating thereto, and in accordance with the terms of the
particular series as established by AMD's Board of Directors, the
Preferred Stock will be duly and validly issued, fully paid and
nonassessable.
4. When (a) Preferred Stock has been duly and validly
issued pursuant to Paragraph 3 above, (b) the Preferred Stock has
been deposited with a bank or trust company (which meets the
requirements set forth in the Registration Statement) under one
or more deposit agreements, substantially in the form of the form
of the Deposit Agreement filed as Exhibit 4.7 to the Registration
Statement, which have been duly authorized and validly executed,
and (c) Depositary Shares, evidenced by depositary receipts, are
issued, sold and delivered in the manner and for the
consideration stated in the Registration Statement, and any
prospectus supplement relating thereto, and in accordance with
the appropriate depositary agreements, the Depositary Shares will
be duly and validly issued, fully paid and nonassessable.
5. The Common Stock and accompanying Rights, when (a)
<PAGE>
BRONSON, BRONSON & MCKINNON
Advanced Micro Devices, Inc.
April 1, 1994
Page 3
appropriate additional proceedings have been taken as now
contemplated by us as your counsel, (b) duly authorized by
appropriate resolutions of AMD's Board of Directors, and (c)
issued, sold and delivered in the manner and for the
consideration stated in the Registration Statement, and any
prospectus supplement relating thereto, will be duly and validly
issued, fully paid and nonassessable.
6. When (a) appropriate additional proceedings have been
taken as now contemplated by us as your counsel, (b) one or more
warrant agreements (incorporating the form of Standard Common
Stock Warrant Agent Provisions filed as Exhibit 4.9 to the
Registration Statement) under which the Common Stock Warrants
will be issued have been duly executed and delivered by the
Company and a warrant agent, (c) the terms of the Common Stock
Warrants have been established in accordance with the appropriate
warrant agreement and duly adopted resolutions of AMD's Board of
Directors authorizing the issuance and sale of the Common Stock
Warrants and reserving an appropriate number of shares of Common
Stock to be issued upon the exercise of the Common Stock
Warrants, (d) the Common Stock Warrant certificates have been
executed and authenticated in accordance with the terms of the
appropriate warrant agreement, and (e) the Common Stock Warrants
have been issued, sold and delivered in the manner and for the
consideration stated in the Registration Statement, any
prospectus supplement relating thereto and the appropriate
warrant agreement, the Common Stock Warrants will be legal, valid
and binding obligations of the Company and the shares of Common
Stock that may be issuable upon the exercise of such Common Stock
Warrants, when so issued in accordance with the terms of the
appropriate warrant agreement and against payment of the exercise
price or other consideration set forth therein, will be duly and
validly issued, fully paid and nonassessable.
In connection with our opinions expressed above, we have
assumed that, at or prior to the time of the delivery of any such
Security, the Registration Statement has been declared effective
and there will not have occurred any change in law affecting the
validity or enforceability of such Security. We have also
assumed that none of the terms of any Security to be established
subsequent to the date hereof, nor the issuance and delivery of
such Security, nor the conversion of such Security into another
Security, nor the exercise of any right under such Security to
acquire another Security, nor the compliance by the Company with
the terms of such Security, will violate any applicable law or
will result in a violation of any provision of any instrument or
agreement then binding upon the Company or any restriction
imposed by any court or governmental body having jurisdiction
<PAGE>
BRONSON, BRONSON & MCKINNON
Advanced Micro Devices, Inc.
April 1, 1994
Page 4
over the Company. In addition, we express no opinion as to the
effect of applicable bankruptcy, insolvency, fraudulent transfer,
moratorium, reorganization or other laws of general applicability
relating to or affecting creditors' rights and to general
principles of equity.
We are members of the Bar of the State of California and the
foregoing opinion is limited to the laws of the State of
California, the federal laws of the United States of America,
the General Corporation Law of the State of Delaware and,
solely with respect to the Indenture, the laws of the
State of New York, without reference to choice of law provisions.
We hereby consent to the filing of this opinion with the
Securities and Exchange Commission in connection with the filing
of the Registration Statement referred to above. We also consent
to the use of our name in the related prospectus and any
prospectus supplement under the heading "Legal Matters."
Bronson, Bronson & McKinnon
VJB/ph
GENBUS\AJM\32636\0200\OPIN-1.LTR
4209-Harris
<TABLE>
ADVANCED MICRO DEVICES, INC.
STATEMENT OF COMPUTATION OF RATIOS OF EARNINGS TO FIXED CHARGES AND
EARNINGS TO FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
(in thousands, except ratio data)
<CAPTION>
Ratio of earnings to fixed charges Fiscal Years Ended
- ----------------------------------- -------------------------------------------------------------------
December 31, December 30, December 29, December 27, December 26,
1989 1990 1991 1992 1993
--------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Earnings:
Income before taxes 49,855 (53,552) 145,287 271,631 317,752
Fixed charges per below 28,242 29,282 34,859 31,848 17,871
Less interest capitalized (3,097) (11,876) (4,299) (6,026) (7,084)
Amortization of capitalized interest 1,460 1,697 2,420 2,953 3,758
--------------------------------------------------------------------
76,460 (34,449) 178,267 300,406 332,297
--------------------------------------------------------------------
Fixed charges:
Interest expense per annual report 15,790 8,282 20,880 17,227 2,701
Capitalized interest 3,097 11,876 4,299 6,026 7,084
Rent expense representative of interest 9,265 9,034 9,590 8,520 8,083
Amortization of financing cost 90 90 90 75 3
--------------------------------------------------------------------
28,242 29,282 34,859 31,848 17,871
--------------------------------------------------------------------
Ratio of earnings to fixed charges 2.71 (a) 5.11 9.43 18.59
Ratio of earnings to combined fixed charges and
preferred stock dividends
- ------------------------------------------------
Earnings per above 76,460 (34,449) 178,267 300,406 332,297
--------------------------------------------------------------------
Fixed charges per above 28,242 29,282 34,859 31,848 17,871
"Grossed-up" Preferred stock dividends 11,250 10,350 10,350 11,500 14,375
--------------------------------------------------------------------
39,492 39,632 45,209 43,348 32,246
--------------------------------------------------------------------
Earnings to fixed charges and preferred
stock dividend ratio 1.94 (a) 3.94 6.93 10.30
<FN>
(a) The amount of additional earnings required to cover fixed charges in the
fiscal year ended December 30, 1990, was $63,731,000. The amount of additional
earnings required to cover fixed charges and preferred stock dividends
in the fiscal year ended December 30, 1990, was $74,081,000.
</TABLE>
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and related Prospectus of Advanced Micro
Devices, Inc. and to the incorporation by reference therein of our reports dated
January 6, 1994, with respect to the consolidated financial statements of
Advanced Micro Devices, Inc. incorporated by reference in its Annual Report
(Form 10-K) for the year ended December 26, 1993, and the related financial
statement schedules included therein, filed with the Securities and Exchange
Commission.
ERNST & YOUNG
San Jose, California
April 1, 1994
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2)_________
UNITED STATES TRUST COMPANY OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5459866
(Jurisdiction of incorporation (I.R.S. Employer
or organization if not a Identification Number)
U.S. national bank)
114 West 47th Street 10036-1532
New York, NY (Zip Code)
(Address of principal
executive offices)
------------
Advanced Micro Devices, Inc.
(Exact name of obligor as specified in its charter)
Delaware 94-1692300
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
One AMD Place 94088-3453
Sunnyvale, California (Zip Code)
(Address of principal executive offices)
------------
Debt Securities
(Title of the indenture securities)
- ------------------------------------------------------------------------------
<PAGE>
GENERAL
1. GENERAL INFORMATION
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which it
is subject.
Federal Reserve Bank of New York (2nd District), New York, New York
(Board of Governors of the Federal Reserve System)
Federal Deposit Insurance Corporation, Washington, D.C.
New York State Banking Department, Albany, New York
(b) Whether it is authorized to exercise corporate trust powers.
The Trustee is authorized to exercise corporate trust powers.
2. AFFILIATIONS WITH THE OBLIGOR
If the obligor is an affiliate of the trustee, describe each
such affiliation.
None
3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 and 15.
Advanced Micro Devices, Inc. is currently not in default under any of
its outstanding securities for which United States Trust Company of
New York is Trustee. Accordingly, responses to Items 3, 4, 5, 6, 7, 8, 9,
10, 11, 12, 13, 14 and 15 of Form T-1 are not reqired under General
Instruction B.
16. LIST OF EXHIBITS.
T-1.1 - "Chapter 204, Laws of 1853, An Act to Incorporate United States
Trust Company of New York, as Amended", is incorporated by reference
to Exhibit T-1.1 to Form T-1 filed on September 20, 1991 with the
Securities and Exchange Commission (the "Commission") pursuant to
the Trust Indenture Act of 1939 (Registration No. 2221291).
T-1.2 - The trustee was organized by a special act of the New York
Legislature in 1853 prior to the time that the New York Banking Law
was revised to require a Certificate of authority to commence
business. Accordingly, under New York Banking Law, the Charter
(Exhibit T-1.1) constitutes an equivalent of a certificate of
authority to commence business.
T-1.3 - The authorization of the trustee to exercise corporate trust powers
is contained in the Charter (Exhibit T-1.1).
T-1.4 - The By-laws of United States Trust Company of New York, as amended
to date, are incorporated by reference to Exhibit T-1.4 to form
T-1 filed on September 20, 1991 with the Commission pursuant to
the Trust Indenture Act of 1939 (Registration No. 2221291).
T-1.6 - The consent of the trustee required by Section 321(b) of the Trust
Indenture Act of 1939.
T-1.7 - A copy of the latest report of condition of the trustee published
pursuant to law or the requirements of its supervising or examining
authority.
<PAGE>
NOTE
As of March 23, 1994, the trustee had 2,999,020 shares of Common Stock
outstanding, all of which are owned by its parent company, U.S. Trust
Corporation. The term "trustee" in Item 2 refers to each of United States Trust
Company of New York and its parent company, U.S. Trust Corporation.
In answering Item 2 in this statement of eligibility as to matters peculiarly
within the knowledge of the obligor or its directors, the trustee has relied
upon informaton furnished to it by the obligor and will rely on information to
be furnished by the obligor and the trustee disclaims responsibility for the
accuracy or completeness of such information.
------------
Pursuant to the requirements of the Trust Indenture Act of 1939, the trustee,
United States Trust Company of New York, a corporation organized and existing
under the laws of the State of New York, has duly caused this statement of
eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of New York, and State of New York, on the 23rd day
of March, 1994.
UNITED STATES TRUST COMPANY OF
NEW YORK, Trustee
By: /s/ Louis P. Young
-----------------------
Louis P. Young
Vice President
<PAGE>
Exhibit T-1.6
The consent of the trustee required by Section 321 (b)
of the Act.
United States Trust Company of New York
114 West 47th Street
New York
NY 10036
March 31, 1992
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Gentlemen:
Pursuant to the provisions of Section 321 (b) of the Trust Indenture Act of
1939, as amended by the Trust Indenture Reform Act of 1990, and subject to the
limitations set forth therein, United States Trust Company of New York ("U. S.
Trust") hereby consents that reports of examinations of U. S. Trust by Federal,
State, Territorial or District authorities may be furnished by such authorities
to the Securities and Exchange Commission upon request therefor.
Very truly yours,
UNITED STATES TRUST COMPANY
OF NEW YORK
By: /s/ Gerard F. Ganey
------------------------
Gerard F. Ganey
Senior Vice President
<PAGE>
Exhibit T-1.7
American Banker, February 9, 1994
--------------------------------
CONSOLIDATED REPORT OF CONDITION OF
UNITED STATES TRUST
COMPANY OF NEW YORK
and Foreign and Domestic Subsidiaries, a member of the Federal Reserve System,
at the close of business December 31, 1993, published in accordance with a call
made by the Federal Reserve Bank of this District pursuant to the provisions of
the Federal Reserve Act.
Dollar Amounts
in Thousands
ASSETS
Cash and balances due from depository institutions
a. Noninterest-bearing balances and currency and coin.. $176,527
b. Interest-bearing balances........................... 50,000
Securities............................................... 833,859
Federal funds sold and securities purchased under
agreements to resell in domestic offices of the
bank and of its Edge and Agreement subsidiaries and in IBFs:
a. Federal funds sold................................... 205,000
b. Securities purchased under agreements to resell...... 32,000
Loans and lease financing receivables:
a. Loans and leases, net of unearned income.. 1,271,077
b. LESS: Allowance for loan and lease losses. 11,928
c. Loans and leases, net of unearned income, allowance,
and reserve ......................................... 1,259,149
Premises and fixed assets (including capitalized leases).. 98,896
Other real estate owned................................... 11,543
Investments in unconsolidated subsidiaries and
associated companies.................................... 725
Intangible assets......................................... 856
Other assets.............................................. 256,699
----------
TOTAL ASSETS............................................. $2,925,254
==========
LIABILITIES
Deposits:
a. In domestic offices................................... $2,345,177
(1) Noninterest-bearing.......1,228,335
(2) Interest-bearing..........1,116,842
b. In foreign offices, Edge and Agreement subsidiaries,
and IBFs.............................................. 5,617
(1) Interest-bearing..............5,617
Federal funds purchased and securities sold under
agreements to repurchase in domestic offices of the bank and
of its Edge and Agreement subsidiaries, and in IBFs:
a. Federal funds purchased............................... 211,921
b. Securities sold under agreements to repurchase........ 15,016
Demand notes issued to the U.S. Treasury................... 33,824
Other borrowed money....................................... 10
Mortgage indebtedness and obligations under capitalized
leases................................................... 2,429
Subordinated notes and debentures.......................... 12,453
Other liabilities.......................................... 118,457
---------
TOTAL LIABILITIES.......................................... 2,744,904
---------
EQUITY CAPITAL
Common stock............................................... 14,995
Surplus.................................................... 41,500
Undivided profits and capital reserves.................... 123,855
----------
TOTAL EQUITY CAPITAL...................................... 180,350
----------
TOTAL LIABILITIES AND EQUITY CAPITAL....................... $2,925,254
==========
<PAGE>
I, Richard E. Brinkmann, Senior Vice President & Comptroller of the
above-named bank do hereby declare that this report of condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
RICHARD E. BRINKMANN, SVP, Comptroller
January 31, 1994
We, the undersigned trustees, attest the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
H.MARSHALL SCHWARZ
JEFFREY S. MAURER Trustees
FREDERICK S. WONHAM
