<PAGE>
As filed with the Securities and Exchange Commission on April 17, 1998
Registration No. 333-47243
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------------
ADVANCED MICRO DEVICES, INC.
(Exact name of Registrant as specified in its charter)
DELAWARE One AMD Place 94-1692300
(State or other Sunnyvale, CA 94086 (I.R.S. Employer
jurisdiction of (408) 732-2400 Identification
Incorporation Number)
or organization)
(Address and telephone number of Registrant's principal executive offices)
Thomas M. McCoy, Esq.
Advanced Micro Devices, Inc.
One AMD Place
Sunnyvale, CA 94086
(408) 732-2400
(Name, address, including ZIP code, and telephone number, including area code,
of agent for service)
-----------------
Copies to:
Christopher L. Kaufman, Esq.
Latham & Watkins
75 Willow Road
Menlo Park, California 94025
(415) 328-4600
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after the effective date of this Registration Statement, as
determined by the Registrant.
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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]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ] _____________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
_______________
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 SAID 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.
PROSPECTUS
SUBJECT TO COMPLETION, DATED APRIL 17, 1998
ADVANCED MICRO DEVICES, INC.
DEBT SECURITIES
PREFERRED STOCK
COMMON STOCK
EQUITY WARRANTS
DEBT WARRANTS
Advanced Micro Devices, Inc. (the "Company"), directly or through
agents, dealers or underwriters designated from time to time, may offer, issue
and sell, in one or more series or issuances, up to $1,000,000,000 in the
aggregate of (a) secured or unsecured debt securities (the "Debt Securities") of
the Company, in one or more series, 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 of the Company,
par value $.10 per share (the "Preferred Stock"), in one or more series, (c)
shares of common stock of the Company, par value $.01 per share (the "Common
Stock"), (d) warrants to purchase Common Stock or Preferred Stock (the "Equity
Warrants") or (e) warrants to purchase Debt Securities (the "Debt Warrants" and
together with the Equity Warrants, 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 or Preferred Stock.
The Preferred Stock may also be exchangeable for and/or convertible into shares
of Common Stock or another series of Preferred Stock. The Debt Securities, the
Preferred Stock, 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. The Prospectus Supplement will set forth the
terms of the offering and sale of the offered Securities.
SEE "RISK FACTORS" COMMENCING ON PAGE 3 FOR A DISCUSSION OF CERTAIN
FACTORS THAT SHOULD BE CONSIDERED BY PROSPECTIVE PURCHASERS OF SECURITIES.
Except as described more fully herein or as set forth in the
Prospectus Supplement relating to any offered Debt Securities, the Indenture
will not provide holders of Debt Securities protection in the event of a highly-
leveraged transaction, reorganization, restructuring, merger or similar
transaction involving the Company which could adversely affect holders of Debt
Securities. See "Description of Debt Securities -- Consolidation, Merger and
Sale of Assets."
The Company's Common Stock is traded on the New York Stock Exchange
under the symbol AMD. Any Common Stock sold pursuant to a Prospectus Supplement
will be listed on the New York Stock Exchange. On April 6, 1998, the last
reported sale price of the Common Stock on the New York Stock Exchange was
$30.4375 per share. The Company has not yet determined whether any of the Debt
Securities, Preferred Stock or Warrants offered hereby will be listed on any
exchange or over-the-counter market. If the Company decides to seek listing of
any such Securities, the Prospectus Supplement relating thereto will disclose
such exchange or market.
------------------------
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 will be sold directly by the Company, through agents,
dealers or underwriters as designated from time to time, or through a
combination of such methods. 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. If
agents of the Company or any dealers or underwriters are involved in the sale of
the Securities, the names of such agents, dealers or underwriters and any
applicable commissions or discounts will be set forth in the applicable
Prospectus Supplement. See "Plan of Distribution" for possible indemnification
arrangements with agents, dealers and underwriters.
This Prospectus may not be used to consummate sales of Securities
unless accompanied by the applicable Prospectus Supplement.
The date of this Prospectus is ___________________, 1998.
<PAGE>
Certain persons participating in this offering may engage in
transactions that stabilize, maintain or otherwise affect the price of the
Securities. Specifically, the underwriters may overallot in connection with the
offering and may bid for and purchase securities in the open market. For a
description of these activities, see "Plan of Distribution."
CAUTIONARY LANGUAGE REGARDING FORWARD-LOOKING STATEMENTS
This Prospectus, including any documents that are incorporated by
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reference as set forth in "Information Incorporated by Reference," contains
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forward-looking statements within the meaning of Section 27A of the Securities
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Act of 1933, as amended (the "Securities Act"), and Section 21E of the
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Securities Exchange Act of 1934, as amended (the "Exchange Act"). Such
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statements are indicated by words or phrases such as "anticipate," "estimate,"
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"project," "believe," and similar words or phrases. Such statements are subject
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to certain risks, uncertainties or assumptions. Should one or more of these
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risks or uncertainties materialize, or should underlying assumptions prove
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incorrect, actual results may vary materially from those anticipated, estimated
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or projected.
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AVAILABLE INFORMATION
The Company has filed with the Securities and Exchange Commission (the
"Commission") a Registration Statement on Form S-3 (together with all amendments
and exhibits thereto, the "Registration Statement") under the Securities Act
with respect to the Securities offered hereby. This Prospectus does not contain
all of the information set forth in the Registration Statement, part of which
has been omitted in accordance with the rules and regulations of the Commission.
For further information about the Company and the Securities offered hereby,
reference is made to the Registration Statement, including the exhibits filed as
a part thereof and otherwise incorporated therein. Statements made in this
Prospectus as to the contents of any agreement or other document referred to
herein are qualified by reference to the copy of such agreement or other
document filed as an exhibit to the Registration Statement or such other
document, each such statement being qualified in its entirety by such reference.
The Company is subject to the informational requirements of the
Exchange Act and, in accordance therewith, files periodic reports, proxy
statements and other information with the Commission. The Registration
Statement, including the exhibits thereto, as well as such reports and other
information filed by the Company with the Commission, can be inspected, without
charge, and copied at the public reference facilities maintained by the
Commission at 450 Fifth Street, N.W., Room 1024, Washington D.C., 20549; 7 World
Trade Center, New York, New York 10048 and 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661. The Commission also maintains a site on the World Wide
Web at http://www.sec.gov. that contains reports, proxy statements and other
information regarding registrants that file electronically with the Commission,
and certain of the Company's filings are available at such web site. Copies of
such materials can be obtained from the Public Reference Section of the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549 at prescribed
rates. Reports and other information concerning the Company can also be
inspected at the offices of the New York Stock Exchange, 20 Broad Street, New
York, New York 10005.
INFORMATION INCORPORATED BY REFERENCE
The following documents filed with the Commission pursuant to the
Exchange Act are incorporated by reference in this Prospectus:
(1) the Company's Annual Report on Form 10-K for the year ended
December 28, 1997, filed with the Commission on March 3, 1998, as amended;
(2) the Company's Annual Report on Form 10-K/A for the year ended
December 28, 1997, filed with the Commission on April 17, 1998;
(3) the Company's Current Report on Form 8-K filed with the Commission
on January 13, 1998; and
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(4) all other documents subsequently 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 before the termination of the offering, which shall be deemed 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 shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in any other subsequently filed document which also is incorporated or 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 this Prospectus.
This Prospectus may not be used to consummate sales of offered
securities unless accompanied by a Prospectus Supplement. The delivery of this
Prospectus together with a Prospectus Supplement relating to particular offered
Securities in any jurisdiction shall not constitute an offer in the jurisdiction
of any other Securities covered by this Prospectus.
The Company will provide without charge to each person (including any
beneficial owner) to whom this Prospectus is delivered, upon request, copies of
any documents incorporated into this Prospectus by reference (other than
exhibits incorporated by reference into such document). Requests for documents
should be submitted to the Corporate Secretary, Advanced Micro Devices, Inc.,
One AMD Place, Sunnyvale, California 94086 (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.
THE COMPANY
Advanced Micro Devices, Inc., a Delaware corporation (the "Company"),
was founded in 1969, became a publicly held company in 1972 and since 1979 has
been listed on the New York Stock Exchange ("NYSE") under the trading symbol
AMD. The Company designs, engineers, manufactures, markets and sells integrated
circuits for the personal computer, networked computer and communications
markets.
The Company has sales offices worldwide and has manufacturing or
testing facilities in Sunnyvale, California; Austin, Texas; Aizu-Wakamatsu,
Japan; Bangkok, Thailand; Penang, Malaysia; and Singapore. Its mailing address
and executive offices are located at One AMD Place, Sunnyvale, California 94086,
and its telephone number is (408) 732-2400.
RISK FACTORS
In addition to the other information in this Prospectus, prospective
purchasers of the Securities offered hereby should carefully consider the risk
factors set forth under the heading "Risk Factors" in "Management's Discussion
and Analysis of Financial Condition and Results of Operations" included in the
Company's most recently incorporated Annual Report on Form 10-K. See
"Information Incorporated by Reference."
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, acquisitions and capital expenditures. Pending the
application of the net proceeds, the Company expects to invest such proceeds in
short-term, interest-bearing instruments or other investment-grade securities.
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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:
<TABLE>
<CAPTION>
FISCAL YEAR ENDED
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DECEMBER 26, DECEMBER 25, DECEMBER 31, DECEMBER 29, DECEMBER 28,
1993 1994 1995 1996 1997
---------------- ---------------- ---------------- ---------------- ----------------
<S> <C> <C> <C> <C>
15.8x 22.7x 9.4x (1) (1)
</TABLE>
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:
<TABLE>
<CAPTION>
FISCAL YEAR ENDED
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DECEMBER 26, DECEMBER 25, DECEMBER 31, DECEMBER 29, DECEMBER 28,
1993 1994 1995 1996 1997
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<S> <C> <C> <C> <C>
9.1x 12.6x 9.4x (1) (1)
</TABLE>
(1) Earnings were insufficient to cover fixed charges by $219,417 and
$120,972 in fiscal years 1996 and 1997, respectively.
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.
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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 $1,000,000,000 in the aggregate of (a) secured or unsecured debt
securities (the "Debt Securities") of the Company, in one or more series, 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 of the Company, par value $.10 per share (the "Preferred
Stock"), in one or more series, (c) shares of common stock of the Company, par
value $.01 per share (the "Common Stock"), (d) warrants to purchase Common Stock
or Preferred Stock (the "Equity Warrants") or (e) warrants to purchase Debt
Securities (the "Debt Warrants" and together with the Equity Warrants, 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 or Preferred Stock. The Preferred Stock may also be exchangeable
for and/or convertible into shares of Common Stock or another series of
Preferred Stock. The Debt Securities, the Preferred Stock, 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. The
Prospectus Supplement will set forth the terms of the offering and sale of the
offered 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 purchasers of 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. In addition, except as may be provided in the Prospectus
Supplement relating to such Debt Securities, the Indenture will not limit the
amount of additional indebtedness the Company may incur.
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 (which may be fixed or
variable) 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 such interest is payable; (7) the
place or places where the principal of, and any interest on, the Offered Debt
Securities will be payable; (8) the obligation of the Company, if any, to
redeem, repurchase 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 or periods within which
and the terms and conditions upon which the Offered Debt Securities shall be
redeemed,
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repurchased or repaid pursuant to such obligation; (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 the Offered Debt Securities;
(14) the terms and conditions, if any, upon which the Offered Debt Securities
shall be exchanged for or converted into Common Stock or Preferred Stock; (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.
STATUS OF DEBT SECURITIES
The Senior Debt Securities will rank pari passu with all other
unsecured and unsubordinated indebtedness of the Company.
The obligations of the Company pursuant to Senior Subordinated Debt
Securities will be subordinate in right of payment, to the extent and in the
manner set forth in the Indenture, to all Senior Indebtedness of the Company.
With respect to any series of Senior Subordinated Debt Securities, "Senior
Indebtedness" of the Company will be 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) and all other monetary obligations of every kind or nature
due on or in connection with (a) all indebtedness of the Company whether
heretofore or hereafter incurred (i) for borrowed money or (ii) in connection
with the acquisition by the Company or a subsidiary of the Company 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 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
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any event of default (an "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.
If the Company offers Debt Securities, the applicable Prospectus
Supplement will set forth the aggregate amount of outstanding indebtedness, if
any, as of the most recent practicable date that by the terms of such Debt
Securities would be senior to such Debt Securities. The applicable Prospectus
Supplement will also set forth any limitation on the issuance by the Company of
any additional senior indebtedness.
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. The Debt Securities shall be signed by two officers of the
Company and authenticated by the manual signature of the Trustee. 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
tax or other governmental charge imposed in connection therewith.
GLOBAL DEBT SECURITIES
The Debt Securities of a series may be issued in the form of one or
more Global Securities (the "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 or entity
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.
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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. If the
Company requests any action of holders or if 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 will 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 may not consolidate with or merge with or into, or sell,
assign, transfer, lease, convey or otherwise dispose of all or substantially all
of its properties 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 (as defined in the
Indenture) or Event of Default shall have occurred and be continuing.
Except as may be described in a Prospectus Supplement applicable to a
particular series of Debt Securities, there are no covenants or other provisions
in the Indenture providing for a put or increased interest or otherwise that
would afford holders of Debt Securities additional protection in the event of a
recapitalization transaction, a change of control of the Company or a highly
leveraged transaction.
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CERTAIN OTHER COVENANTS
Unless otherwise indicated in this Prospectus or a Prospectus
Supplement, the Debt Securities 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.
With respect to any series of Senior Subordinated Debt Securities, the
Company will agree not to issue Debt which is, expressly by its terms,
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 applicable Prospectus Supplement will describe any material
covenants in respect of a series of Debt Securities. Other than the covenants
of the Company included in the Indenture as described above or as described in
the applicable Prospectus Supplement, the Indenture will not provide holders of
Debt Securities protection in the event of a highly-leveraged transaction,
reorganization, restructuring, merger or similar transaction involving the
Company which could adversely affect holders of Debt Securities.
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 principal of any Debt
Security of that series when due and payable at maturity, upon redemption or
otherwise; (b) failure to pay any interest on any Debt Security of that series
when due, and the Default continues for 30 days; (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 described
below); and (d) certain events of bankruptcy, insolvency or reorganization. A
Default under clause (c) above is not an Event of Default with respect to a
particular series of Debt Securities until the Trustee or the holders of at
least 50% in principal amount of the then outstanding Debt 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."
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 50% in principal amount of the
outstanding Debt Securities of that series by notice, 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 and unpaid
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 provides that the Trustee shall provide notice to
holders of Debt Securities of an Event of Default with respect to such Debt
Securities that is continuing and known to the Trustee. Except in the case of an
Event of Default in payment, 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 interest of the holders of the Debt Securities. 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. A holder of
Debt Securities of any series may not pursue a remedy with respect to the
Indenture or the Debt 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 50% in principal amount of the then outstanding Debt
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
Debt Securities of that series do not give the Trustee a direction inconsistent
with the request. Subject to such 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.
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MODIFICATION AND WAIVER
Subject to certain exceptions, the Company and the Trustee may 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 (including default interest); (iii)
reduce the principal of or premium, if any, or change the fixed maturity of any
Debt Security, or reduce the amount of, or postpone the date fixed for,
redemption or the payment of any sinking fund or analogous obligation with
respect thereto; (iv) make any Debt Security payable in currency 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, premium, if any, or interest on, any Debt Security;
(vi) waive a default in the payment of the principal of, or interest on, any
Debt Security, except as otherwise provided in the Indenture; or (vii) reduce
the principal amount of Original Issue Discount Securities payable upon
acceleration of the maturity thereof. 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 interest of any
holder; or (vii) to establish additional series of Debt Securities as permitted
by the Indenture.
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 except a Default or Event of
Default in the payment of the principal of, or any interest on, any Debt
Security with respect to the Debt Securities of that series; provided, however,
that the holders of a majority in principal amount of the outstanding Debt
Securities of any series may rescind an acceleration and its consequences,
including any related payment default that resulted from such acceleration.
DEFEASANCE OF DEBT SECURITIES AND CERTAIN COVENANTS IN CERTAIN CIRCUMSTANCES
LEGAL DEFEASANCE. Unless otherwise specified in the applicable
----------------
Prospectus Supplement, the Indenture will provide that the Company may be
discharged from any and all obligations in respect of the Debt Securities of any
series (except for certain obligations to register the transfer or exchange of
Debt Securities of such series, to replace stolen, lost or mutilated Debt
Securities of such series, and to maintain paying agencies and certain
provisions relating to the treatment of funds held by paying agents) upon the
deposit with the Trustee, in trust, of money and/or U.S. government obligations,
that, through the payment of interest and principal in respect thereof in
accordance with their terms, will provide money in an amount sufficient in the
opinion of a nationally recognized firm of independent public accountants to pay
and discharge each installment of principal (and premium, if any) and interest,
if any, on and any mandatory sinking fund payments in respect of the Debt
Securities of such series on the stated maturity of such payments in accordance
with the terms of the Indenture and such Debt Securities. Such discharge may
occur only if, among other things, the Company has received from, or there has
been published by, the United States Internal Revenue Service a ruling, or,
since the date of execution of the Indenture, there has been a change in the
applicable United States federal income tax law, in either case to the effect
that holders of the Debt Securities of such series will not recognize income,
gain or loss for United States federal income tax purposes as a result of such
deposit, defeasance and discharge and will be subject to United States 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 deposit, defeasance and discharge had not
occurred.
DEFEASANCE OF CERTAIN COVENANTS. Unless otherwise specified in the
-------------------------------
applicable Prospectus Supplement, the Indenture will provide that unless
otherwise provided by the terms of the applicable series of Debt Securities,
upon compliance with certain conditions, the Company may omit to comply with the
restrictive covenants contained in the Indenture, as well as
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any additional covenants contained in a supplement to the Indenture, a Board
Resolution or an Officers' Certificate delivered pursuant thereto. The
conditions include: the deposit with the Trustee of money and/or U.S. government
obligations that, through the payment of interest and principal in respect
thereof in accordance with their terms, will provide money in an amount
sufficient in the opinion of a nationally recognized firm of independent public
accountants to pay principal, premium, if any, and interest, if any, on and any
mandatory sinking fund payments in respect of the Debt Securities of such series
on the stated maturity of such payments in accordance with the terms of the
Indenture and such Debt Securities; and the delivery to the Trustee of an
opinion of counsel to the effect that the holders of the Debt Securities of such
series will not recognize income, gain or loss for United States federal income
tax purposes as a result of such deposit and related covenant defeasance and
will be subject to United States federal income tax in the same amount and in
the same manner and at the same times as would have been the case if such
deposit and related covenant defeasance had not occurred.
DEFEASANCE AND EVENTS OF DEFAULT. In the event the Company exercises
--------------------------------
its option to omit compliance with certain covenants of the Indenture with
respect to any series of Debt Securities and the Debt Securities of such series
are declared due and payable because of the occurrence of any Event of Default,
the amount of money and/or U.S. government obligations on deposit with the
Trustee will be sufficient to pay amounts due on the Debt Securities of such
series at the time of their stated maturity but may not be sufficient to pay
amounts due on the Debt Securities of such series at the time of the
acceleration resulting from such Event of Default. However, the Company will
remain liable for such payments.
REGARDING THE TRUSTEES
The Trustee with respect to any series of Debt Securities will be
identified in the Prospectus Supplement relating to such 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 may 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 in the TIA), 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 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.
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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 February 25, 1998, the Company had 143,105,395 shares of Common Stock
outstanding, of which 458,438 shares were owned by the Company as treasury
stock. See "Description of Common Stock." As of February 25, 1998, the Company
had no shares of preferred stock outstanding.
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 1,000,000 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).
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; and (vii) 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 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 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 Company's indenture relating to its 11% senior secured notes due
2003 restricts the Company's ability to declare or pay dividends on its capital
stock.
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
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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.
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, 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
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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.
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 February 25, 1998, the Company had 143,105,395 shares of
Common Stock outstanding, of which 458,438 shares were owned by the Company as
treasury stock. As of February 25, 1998, the Company had no shares of
preferred stock outstanding. The holders of Common Stock are entitled to one
vote per share on all matters to be voted on by stockholders, including the
election of directors. Stockholders 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 arrangements restrict the
Company's ability to declare or pay 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.
DESCRIPTION OF WARRANTS
The Company may issue Warrants to purchase Debt Securities ("Debt
Warrants"), as well as Warrants to purchase Preferred Stock or Common Stock
("Equity Warrants") (together, the "Warrants"). Warrants may be issued
independently or together with any Securities and may be attached to or separate
from such Securities. The Warrants are to be issued under warrant agreements
(each, a "Warrant Agreement") to be entered into between the Company and a bank
or trust company, as warrant agent (the "Warrant Agent"), all as shall be set
forth in the Prospectus Supplement relating to Warrants being offered pursuant
thereto.
DEBT WARRANTS
The applicable Prospectus Supplement will describe the terms of Debt
Warrants offered thereby, the Warrant Agreement relating to such Debt Warrants
and the debt warrant certificates representing such Debt Warrants ("Debt Warrant
Certificates"), including the following: (1) the title of such Debt Warrants;
(2) the aggregate number of such Debt Warrants; (3) the price or prices at which
such Debt Warrants will be issued; (4) the designation, aggregate principal
amount and terms of the Debt Securities purchasable upon exercise of such Debt
Warrants, and the procedures and conditions relating to the exercise of such
Debt Warrants; (5) the designation and terms of any related Debt Securities with
which such Debt Warrants are issued, and the number of such Debt Warrants issued
with each such Debt Security; (6) the date, if any, on and after which such Debt
Warrants and the related Debt Securities will be separately transferable; (7)
the principal amount of Debt Securities purchasable upon exercise of each Debt
Warrant; (8) the date on which the right to exercise such Debt Warrants will
commence, and the date on which such right will expire; (9) the maximum or
minimum number of such Debt Warrants which may be exercised at any time; (10) a
discussion of any material federal income tax considerations; and (11) any other
terms of such Debt Warrants and terms, procedures and limitations relating to
the exercise of such Debt Warrants.
Debt Warrant Certificates will be exchangeable for new Debt Warrant
Certificates of different denominations, and Debt Warrants may be exercised at
the corporate trust office of the Warrant Agent or any other office
14
<PAGE>
indicated in the Prospectus Supplement. Prior to the exercise of their Debt
Warrants, holders of Debt Warrants will not have any of the rights of holders of
the Debt Securities purchasable upon such exercise and will not be entitled to
payment of principal of or any premium, if any, or interest on the Debt
Securities purchasable upon such exercise.
EQUITY WARRANTS
The applicable Prospectus Supplement will describe the following terms
of Equity Warrants offered thereby: (1) the title of such Equity Warrants; (2)
the Securities (i.e., Preferred Stock or Common Stock) for which such Equity
Warrants are exercisable; (3) the price or prices at which such Equity Warrants
will be issued; (4) if applicable, the designation and terms of the Preferred
Stock or Common Stock with which such Equity Warrants are issued, and the number
of such Equity Warrants issued with each such share of Preferred Stock or Common
Stock; (5) if applicable, the date on and after which such Equity Warrants and
the related Preferred Stock or Common Stock will be separately transferable; (6)
if applicable, a discussion of any material federal income tax considerations;
and (7) any other terms of such Equity Warrants, including terms, procedures and
limitations relating to the exchange and exercise of such Equity Warrants.
Holders of Equity Warrants will not be entitled, by virtue of being
such holders, to vote, consent, receive dividends, 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.
The exercise price payable and the number of shares of Common Stock or
Preferred Stock purchasable upon the exercise of each Equity Warrant will be
subject to adjustment in certain events, including the issuance of a stock
dividend to holders of Common Stock or Preferred Stock or a stock split, reverse
stock split, combination, subdivision or reclassification of Common Stock or
Preferred Stock. In lieu of adjusting the number of shares of Common Stock or
Preferred Stock purchasable upon exercise of each Equity Warrant, the Company
may elect to adjust the number of Equity Warrants. No adjustments in the number
of shares purchasable upon exercise of the Equity 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 Equity 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 Equity 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
of Preferred Stock into which such Equity Warrant was exercisable immediately
prior thereto.
EXERCISE OF WARRANTS
Each Warrant will entitle the holder to purchase for cash such
principal amount of Securities at such exercise price as shall in each case be
set forth in, or be determinable as set forth in, the Prospectus Supplement
relating to the Warrants offered thereby. Warrants may be exercised at any time
up to the close of business on the expiration date set forth in the Prospectus
Supplement relating to the Warrants offered thereby. After the close of
business on the expiration date, unexercised Warrants will become void.
Warrants may be exercised as set forth in the Prospectus Supplement
relating to the Warrants offered thereby. Upon receipt of payment and the
warrant certificate properly completed and duly executed at the corporate trust
office of the Warrant Agent or any other office indicated in the Prospectus
Supplement, the Company will, as soon as practicable, forward the Securities
purchasable upon such exercise. If less than all of the Warrants represented by
such warrant certificate are exercised, a new warrant certificate will be issued
for the remaining Warrants.
15
<PAGE>
PLAN OF DISTRIBUTION
The Company may sell the Securities to one or more underwriters for
public offering and sale by them and may also 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 or exchange Securities directly to
investors on its own behalf in those jurisdictions where and in such manner as
it is authorized to do so.
The distribution of the Securities may be effected from time to time
in one or more transactions at a fixed price or prices, which may be changed, or
at market prices prevailing at the time of sale, at prices related to such
prevailing market prices, or at negotiated prices. Sales of Common Stock
offered hereby may be effected from time to time in one or more transactions on
the New York Stock Exchange or in negotiated transactions or a combination of
such methods. The Company may also, 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 such underwriter, dealer or agent will be
identified, and any such compensation received from the Company will be
described, in the Prospectus Supplement. Unless otherwise indicated in a
Prospectus Supplement, an agent will be acting on a best efforts basis and a
dealer will purchase Securities as a principal, and may then resell such
Securities at varying prices to be determined by the dealer.
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, and to reimbursement by the Company for certain expenses.
To facilitate an offering of a series of Securities, certain persons
participating in the offering may engage in transactions that stabilize,
maintain, or otherwise affect the price of the Securities. This may include
over-allotments or short sales of the Securities, which involves the sale by
persons participating in the offering of more Securities than have been sold to
them by the Company. In such circumstances, such persons would cover such over-
allotments or short positions by purchasing in the open market or by exercising
the over-allotment option granted to such persons. In addition, such persons
may stabilize or maintain the price of the Securities by bidding for or
purchasing Securities in the open market or by imposing penalty bids, whereby
selling concessions allowed to dealers participating in any such offering may be
reclaimed if Securities sold by them are repurchased in connection with
stabilization transactions. The effect of these transactions may be to
stabilize or maintain the market price of the Securities at a level above that
which might otherwise prevail in the open market. Such transactions, if
commenced, may be discontinued at any time.
LEGAL MATTERS
Certain legal matters with respect to the Securities offered hereby
will be passed upon for the Company by Latham & Watkins, Menlo Park, California.
Certain legal matters will be passed upon for any agents or underwriters by
counsel for such agents or underwriters identified in the applicable Prospectus
Supplement.
EXPERTS
The consolidated financial statements of the Company appearing in
the Company's Annual Report (Form 10-K) for the year ended December 28, 1997
have been audited by Ernst & Young LLP, independent auditors, as set forth in
their report thereon 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.
16
<PAGE>
================================================================================
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATION IN CONNECTION WITH THIS OFFERING OTHER THAN THOSE CONTAINED IN
THIS PROSPECTUS, AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST
NOT BE RELIED UPON AS HAVING BEEN SO AUTHORIZED. THIS PROSPECTUS DOES NOT
CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY BY ANYONE IN
ANY JURISDICTION IN WHICH SUCH OFFER TO SELL IS NOT AUTHORIZED, OR IN WHICH THE
PERSON IS NOT QUALIFIED TO DO SO OR TO ANY PERSON TO WHOM IT IS UNLAWFUL TO
MAKE SUCH OFFER OR SOLICITATION. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR
ANY SALE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT
THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR
THAT THE INFORMATION CONTAINED HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO
ITS DATE.
-------------------------------------------
TABLE OF CONTENTS
PAGE
----
Available Information...................... 2
Information Incorporated by Reference...... 2
The Company................................ 3
Risk Factors............................... 3
Use of Proceeds............................ 3
Ratios of Earnings to Fixed Charges
and Earnings to Combined Fixed Charges
and Preferred Stock Dividends.............. 4
General Description of Securities.......... 5
Description of Debt Securities............. 5
Description of Preferred Stock............. 11
Description of Common Stock................ 14
Description of Warrants.................... 14
Plan of Distribution....................... 16
Legal Matters.............................. 16
Experts.................................... 16
-------------------------------------------
[LOGO]
ADVANCED MICRO DEVICES, INC.
$1,000,000,000
DEBT SECURITIES
PREFERRED STOCK
COMMON STOCK
EQUITY WARRANTS
DEBT WARRANTS
--------------
PROSPECTUS
--------------
_________, 1998
================================================================================
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The expenses to be paid by the Company in connection with the
distribution of the securities being registered are as set forth in the
following table:
Securities and Exchange Commission Fee $295,000
*Rating Agency Fees 150,000
*Legal Fees and Expenses 175,000
*Accounting Fees and Expenses 20,000
*Printing Expenses 30,000
*Blue Sky Fees 1,000
*Trustee/Issuing & Paying Agent Fees and Expenses 40,000
*Transfer Agent Fees & Expenses 5,000
*Miscellaneous 4,000
--------
*Total $720,000
========
- -------------------
* Estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company is a Delaware corporation. Subsection (b)(7) of Section
102 of the Delaware General Corporation Law (the "DGCL"), enables a corporation
in its original certificate of incorporation or an amendment thereto to
eliminate or limit the personal liability of a director to the corporation or
its stockholders for monetary damages for violations of the director's fiduciary
duty, except (i) for any breach of the director's duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii)
pursuant to Section 174 of the DGCL (providing for liability of directors for
unlawful payment of dividends or unlawful stock purchases or redemptions) or
(iv) for any transaction from which a director derived an improper personal
benefit.
Subsection (a) of Section 145 of the DGCL empowers a corporation to
indemnify any present or former director, officer, employee or agent of the
corporation, or any individual serving at the Company's request as a director,
officer or employee of another organization, who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation), against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred in connection with such action, suit or
proceeding provided that such director, officer, employee or agent acted in good
faith and in a manner reasonably believed to be in, or not opposed to, the best
interests of the corporation, and, with respect to any criminal action or
proceeding, provided further that such director, officer, employee or agent had
no reasonable cause to believe his conduct was unlawful.
Subsection (b) of Section 145 empowers a corporation to indemnify any
present or former director, officer, employee or agent who was or is a party or
is threatened to be made a party to any threatened, pending or completed action
or suit by or in the right of the corporation to procure a judgment in its favor
by reason of the fact that such person acted in any of the capacities set forth
above, against expenses (including attorneys' fees) actually and reasonably
incurred in connection with the defense or settlement of such action or suit
provided that such director, officer, employee or agent acted in good faith and
in a manner reasonably believed to be in, or not opposed to, the best interests
of the corporation, except that no indemnification may be made in respect to any
claim, issue or matter as to which such director, officer, employee or agent
shall have been adjudged to be liable to the corporation unless and only to the
extent that the Court of Chancery or the court in which such action or suit was
brought shall determine upon application that, despite the adjudication of
liability but in view of all of the circumstances of the case, such director or
officer is fairly and reasonably entitled to indemnity for such expenses which
the Court of Chancery or such other court shall deem proper.
Section 145 further provides that to the extent a director, officer,
employee or agent has been successful in the defense of any action, suit or
proceeding referred to in subsections (a) and (b) or in the defense of any
claim, issue or matter therein, he shall be indemnified against expenses
(including attorneys fees) actually and reasonably incurred by him in connection
therewith; that indemnification and advancement of expenses provided for, by, or
granted pursuant to Section 145 shall not be deemed exclusive of any other
rights to which the indemnified party may be entitled; and empowers the
corporation to purchase and maintain insurance on behalf of a present or former
director, officer, employee or agent of the corporation, or any individual
serving at the Company's request as a director, officer or employee of another
organization,
II-1
<PAGE>
against any liability asserted against him or incurred by him in any such
capacity, or arising out of his status as such, whether or not the corporation
would have the power to indemnify him against such liabilities under Section
145.
Article 9 of the Certificate of Incorporation of the Company, as
amended (see Exhibit 4.1), provides for the elimination of liability of
directors to the extent permitted by Section 102(b)(7) of the DGCL. Article
VIII of the By-Laws of the Company, as amended (see Exhibit 4.2), provides for
indemnification of the directors, officers or employees of the Company or those
individuals serving at the Company's request as directors, officers or employees
of another organization, to the 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 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 Commission such indemnification is against public
policy as expressed in the Securities Act and therefore, is 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 Securities
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 Securities Act.
The Company pays the entire premium of this policy.
ITEM 16. EXHIBITS
4.1 Certificate of Incorporation, as amended (filed as Exhibit 3.1 to the
Company's Quarterly Report on Form 10-Q for the quarter ended July 2,
1995 and incorporated by reference herein).
4.2 By-Laws, as amended (filed as Exhibit 3.2 to the Company's Annual
Report on Form 10-K for the fiscal year ended December 31, 1995, and
incorporated by reference herein).
4.3 Form of Indenture.
5 Opinion of Latham & Watkins.
12* Statement regarding Computation of Ratios.
23.1 Consent of Ernst & Young LLP.
23.2* Consent of Latham & Watkins (included in Exhibit 5).
24* Powers of Attorney (contained on signature page of this Registration
Statement).
_____________
* Previously filed.
II-2
<PAGE>
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.
Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective 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.
(b) The undersigned registrant hereby undertakes that, for purposes 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 (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.
(c) 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 foregoing provisions 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 registrants will, unless
in the opinion of their 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.
(d) The undersigned registrant hereby undertakes 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.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 Amendment
No. 1 to Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Sunnyvale, State of California on
April 17, 1998.
ADVANCED MICRO DEVICES, INC.
By /s/ RICHARD PREVITE
---------------------------------------------
Richard Previte
President, Chief Operating Officer,
Chief Financial and Administrative
Officer and Treasurer
POWER OF ATTORNEY
-----------------
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below does hereby constitute and appoint Marvin D. Burkett and Thomas M.
McCoy, and each of them, with full power of substitution and full power to act
without the other, his true and lawful attorney-in-fact and agent to act for him
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 this Registration Statement, with all exhibits thereto, and other
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 perform each and every act and thing requisite and
necessary to be done in order to effectuate the same as fully, to all intents
and purposes, as they or he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of them, may
lawfully do or cause to be done by virtue hereof.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
AMENDMENT NO. 1 TO REGISTRATION STATEMENT HAS BEEN SIGNED BY EACH OF THE
FOLLOWING PERSONS IN THE CAPACITIES AND ON THE DATES INDICATED:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ W.J. Sanders III * Chairman of the Board and Chief April 17, 1998
- ------------------------------------------ Executive Officer
W.J. Sanders III (Principal Executive Officer)
/s/ Richard Previte * Director, President, Chief Operating April 17, 1998
- ------------------------------------------ Officer, Chief Financial and Administrative
Richard Previte Officer and Treasurer
(Principal Financial and Accounting
Officer)
/s/ Friedrich Baur * Director April 17, 1998
- ------------------------------------------
Friedrich Baur
/s/ Charles M. Blalack * Director April 17, 1998
- ------------------------------------------
Charles M. Blalack
/s/ R. Gene Brown * Director April 17, 1998
- ------------------------------------------
R. Gene Brown
/s/ S. Atiq Raza * Director, Executive Vice President and April 17, 1998
- ------------------------------------------ Chief Technical Officer
S. Atiq Raza
/s/ Joe L. Roby * Director April 17, 1998
- ------------------------------------------
Joe L. Roby
/s/ Leonard Silverman * Director April 17, 1998
- ------------------------------------------
Leonard Silverman
* By: /s/ Thomas M. McCoy
------------------------------------
Thomas M. McCoy
(Attorney-in-Fact)
</TABLE>
II-4
<PAGE>
EXHIBIT INDEX
4.1 Certificate of Incorporation, as amended (filed as Exhibit 3.1 to the
Company's Quarterly Report on Form 10-Q for the quarter ended July 2,
1995 and incorporated by reference herein).
4.2 By-Laws, as amended (filed as Exhibit 3.2 to the Company's Annual
Report on Form 10-K for the fiscal year ended December 31, 1995, and
incorporated by reference herein).
4.3 Form of Indenture.
5 Opinion of Latham & Watkins.
12* Statement regarding Computation of Ratios.
23.1 Consent of Ernst & Young LLP.
23.2* Consent of Latham & Watkins (included in Exhibit 5).
24* Powers of Attorney (contained on signature page of this Registration
Statement).
__________________
* Previously filed.
<PAGE>
Exhibit 4.3
ADVANCED MICRO DEVICES, INC.,
as Issuer
and
[ ],
as Trustee
---------------------------------
INDENTURE
dated as of ___________, ____
--------------------------------
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C> <C>
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....................................................................9
Section 2.09. Treasury Securities......................................................................10
Section 2.10. Temporary Securities.....................................................................10
Section 2.11. Cancellation.............................................................................10
Section 2.12. Defaulted Interest.......................................................................11
Section 2.13. Special Record Dates.....................................................................11
ARTICLE 3. REDEMPTION...................................................................................11
Section 3.01. Notices to Trustee.......................................................................11
Section 3.02. Selection of Securities to Be Redeemed...................................................12
Section 3.03. Notice of Redemption.....................................................................12
Section 3.04. Effect of Notice of Redemption...........................................................13
Section 3.05. Deposit of Redemption Price..............................................................13
Section 3.06. Securities Redeemed in Part..............................................................13
ARTICLE 4. COVENANTS....................................................................................13
Section 4.01. Payment of Securities....................................................................13
Section 4.02. Maintenance of Office or Agency..........................................................14
Section 4.03. Commission Reports.......................................................................14
Section 4.04. Compliance Certificate...................................................................14
Section 4.05. Taxes....................................................................................15
Section 4.06. Stay, Extension and Usury Laws...........................................................15
Section 4.07. Corporate Existence......................................................................15
</TABLE>
i
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
ARTICLE 5. SUCCESSORS...................................................................................15
Section 5.01. When Company May Merge, etc..............................................................15
Section 5.02. Successor Corporation Substituted........................................................16
ARTICLE 6. DEFAULTS AND REMEDIES........................................................................16
Section 6.01. Events of Default........................................................................16
Section 6.02. Acceleration.............................................................................18
Section 6.03. Other Remedies...........................................................................18
Section 6.04. Waiver of Past Defaults..................................................................18
Section 6.05. Control by Majority......................................................................19
Section 6.06. Limitation on Suits......................................................................19
Section 6.07. Rights of Holders to Receive Payment.....................................................19
Section 6.08. Collection Suit by Trustee...............................................................20
Section 6.09. Trustee May File Proofs of Claim.........................................................20
Section 6.10. Priorities...............................................................................20
Section 6.11. Undertaking for Costs....................................................................21
ARTICLE 7. TRUSTEE......................................................................................21
Section 7.01. Duties of Trustee........................................................................21
Section 7.02. Rights of Trustee........................................................................22
Section 7.03. Individual Rights of Trustee.............................................................23
Section 7.04. Trustee's Disclaimer.....................................................................23
Section 7.05. Notice of Defaults.......................................................................23
Section 7.06. Reports by Trustee to Holders............................................................23
Section 7.07. Compensation and Indemnity...............................................................24
Section 7.08. Replacement of Trustee...................................................................24
Section 7.09. Successor Trustee by Merger, etc.........................................................26
Section 7.10. Eligibility; Disqualification............................................................26
Section 7.11. Preferential Collection of Claims Against Company........................................26
ARTICLE 8. SATISFACTION AND DISCHARGE DEFEASANCE........................................................26
Section 8.01. Satisfaction and Discharge of Indenture..................................................26
Section 8.02. Application of Trust Funds; Indemnification..............................................27
Section 8.03. Legal Defeasance of Securities of any Series.............................................28
Section 8.04. Covenant Defeasance......................................................................29
Section 8.05. Repayment to Company.....................................................................31
ARTICLE 9. SUPPLEMENTS, AMENDMENTS AND WAIVERS..........................................................31
Section 9.01. Without Consent of Holders...............................................................31
Section 9.02. With Consent of Holders..................................................................32
Section 9.03. Revocation and Effect of Consents........................................................33
</TABLE>
ii
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
Section 9.04. Notation on or Exchange of Securities....................................................33
Section 9.05. Trustee to Sign Amendments, etc..........................................................33
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............................................35
Section 10.06. Rules by Trustee and Agents..............................................................35
Section 10.07. Legal Holidays...........................................................................36
Section 10.08. No Recourse Against Others...............................................................36
Section 10.09. Counterparts.............................................................................36
Section 10.10. Governing Law............................................................................36
Section 10.11. Severability.............................................................................36
Section 10.12. Effect of Headings, Table of Contents, etc...............................................36
Section 10.13. Successors and Assigns...................................................................37
Section 10.14. No Interpretation of Other Agreements....................................................37
</TABLE>
iii
<PAGE>
<TABLE>
<CAPTION>
CROSS-REFERENCE TABLE*
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
- ------------------------ -----------------
<S> <C>
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
</TABLE>
____________________________
N.A. means not applicable
* THIS CROSS-REFERENCE TABLE IS NOT PART OF THE INDENTURE
<PAGE>
INDENTURE dated as of _____________, _____ 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 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.
"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 or pursuant to authorization 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.
"Company Order" means a written order signed in the name of the
Company by two Officers, one of whom must be the Company's principal executive
officer, principal financial officer or principal accounting officer.
1
<PAGE>
"Company Request" means a written request signed in the name of the
Company by its Chairman of the Board, a President or a Vice President, and by
its Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary,
and delivered to the Trustee.
"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 applicable 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
Section 2.01, 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, partnership or limited liability
company 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, (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 or (iii) in the case of a limited
liability company, at least a majority of the membership 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; provided,
however, that in the event the TIA is amended after such date, "TIA" means, to
the extent required by such amendment, the Trust Indenture Act, as so amended.
"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.
"U.S. Government Obligations" means securities which are (i) direct
obligations of The United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a person controlled or
supervised by and acting as an agency or instrumentality of The United States of
America, the payment of which is unconditionally guaranteed as a full faith and
credit obligation by The United States of America which are not callable or
redeemable at the option of the issuer thereof, and shall also include a
depository receipt issued by a bank or trust company as custodian with respect
to any such U.S. Government Obligation or a specific
3
<PAGE>
payment of interest on or principal of any such U.S. Government Obligation held
by such custodian for the account of the holder of a depository receipt,
provided that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of the U.S.
Government Obligation evidenced by such depository receipt.
Section 1.02. Other Definitions.
<TABLE>
<CAPTION>
Term Defined in Section
---- ------------------
<S> <C>
"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
</TABLE>
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 and any successor
obligor on the Securities.
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;
4
<PAGE>
(iii) "or" is not exclusive;
(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 an Officer's Certificate pursuant to authority granted
under 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 price or prices (expressed as a percentage of the
aggregate principal amount thereof) at which the Securities of the series will
be issued;
(d) the date or dates on which the principal of the Securities of
the series is payable;
(e) the rate or rates which may be fixed or variable 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;
(f) 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;
(g) 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>
(h) 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;
(i) if other than denominations of $1,000 and any multiple thereof,
the denominations in which Securities of the series shall be issuable;
(j) 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;
(k) any addition to or change in the covenants set forth in Article 4
which applies to Securities of the series;
(l) any Events of Default with respect to the Securities of a
particular series, if not set forth herein;
(m) the Trustee for the series of Securities;
(n) 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;
(o) the provisions, if any, relating to any security provided for the
Securities of the series;
(p) the form and terms of any guarantee of the Securities of the
series and the execution of this Indenture by any guarantor;
(q) 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 Officer's Certificate or in any such indenture
supplemental hereto.
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
6
<PAGE>
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 Officer's Certificate, 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 or Officer's Certificate, the Company shall
deliver to the Trustee the Board Resolution or Officer's Certificate by or
pursuant to which such form of Security has been approved, which Board
Resolution or Officer's Certificate shall have attached thereto a true and
correct copy of the form of Security which has been approved by or pursuant
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 one Officer.
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 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
7
<PAGE>
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 Affiliates may act as Paying Agent, Registrar or co-Registrar.
The Company hereby appoints the Trustee the initial Registrar and
Paying Agent for each series of Securities unless another Registrar or Paying
Agent, as the case may be, is appointed prior to the time Securities of that
series are first issued.
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 or interest so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal 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
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.
8
<PAGE>
Section 2.06. Transfer and Exchange.
Where Securities of a series 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 the same 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 same 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 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.
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.
9
<PAGE>
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 one Officer 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.
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.
10
<PAGE>
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 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.
11
<PAGE>
The Company shall give the notice provided for in this Section 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.
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 of the series 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;
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(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; and
(7) 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. 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.
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 Affiliate 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 same 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
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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.
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 it files
them with the Commission 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 also shall comply with
the other provisions of TIA Section 314(a).
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 stating that in
the course of the performance by the signers of their duties as officers of the
Company, they would normally have knowledge
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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.
Section 4.05. Taxes.
The Company shall pay prior to delinquency, all material taxes,
assessments, and governmental levies except as contested in good faith by
appropriate proceedings.
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 (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.
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:
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(1) the Company is the surviving corporation 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;
(2) the Person formed by or assuming any such consolidation or
merger (if other than the Company) or the 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 giving effect to the
transaction no Default or Event of Default shall have occurred and be
continuing.
The Company shall deliver to the Trustee on or 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, unless in the establishing Board Resolution, Officer's
Certificate or supplemental indenture hereto, it is provided that such series
shall not have the benefit of said Event of Default:
(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;
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(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;
(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.
(6) any other Event of Default provided with respect to
Securities of that series which is specified in a Board Resolution,
Officer's Certificate or supplemental indenture establishing that
series of Securities.
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.
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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 50% 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 is continuing, the Trustee by notice to the Company, or the Holders
of at least 50% 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 (provided, however, that the Holders of a
majority in principal amount of the outstanding Securities of any series may
rescind an acceleration and its consequences, including any related payment
default that resulted from such acceleration).
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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.
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 50% 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.
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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.
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
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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.
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.
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
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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.
(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.
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(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 from 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.
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 May 15 in each year, 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 May 15 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.
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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.
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.
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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 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.
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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.
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)(1), (2) and (5). The Trustee as to any
series of Securities shall always have a combined capital and surplus of at
least $25,000,000 as set forth in its most recent published annual report of
condition. 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.
SATISFACTION AND DISCHARGE DEFEASANCE
Section 8.01. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Order cease to be of further effect
(except as to any surviving rights of registration of transfer or exchange of
Securities herein expressly provided for), and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(a) either
(i) all Securities theretofore authenticated and delivered
(other than Securities that have been destroyed, lost or
stolen and that have been replaced or paid) have been
delivered to the Trustee for cancellation; or
(ii) all such Securities not theretofore delivered to the Trustee
for cancellation
(1) have become due and payable, or
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(2) will become due and payable at their stated maturity
within one year, or
(3) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice
of redemption by the Trustee in the name, and at the expense, of
the Company, or
(4) are deemed paid and discharged pursuant to Section 8.03,
as applicable;
and the Company, in the case of (1), (2) or (3) above, has deposited or caused
to be deposited with the Trustee as trust funds in trust an amount sufficient
for the purpose of paying and discharging the entire indebtedness on such
Securities not theretofore delivered to the Trustee for cancellation, for
principal and interest to the date of such deposit (in the case of Securities
which have become due and payable on or prior to the date of such deposit) or to
the stated maturity or redemption date, as the case may be;
(b) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(c) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture have
been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 7.07, and, if money
shall have been deposited with the Trustee pursuant to clause (a) of this
Section or if money or obligations shall have been deposited with or received by
the Trustee pursuant to Section 8.03, the obligations of the Trustee under
Section 8.02 and Section 8.05 shall survive.
Section 8.02. Application of Trust Funds; Indemnification.
(a) Subject to the provisions of Section 8.05, all money deposited
with the Trustee pursuant to Section 8.01, all money and U.S. Government
Obligations deposited with the Trustee pursuant to Section 8.03 or 8.04 and all
money received by the Trustee in respect of U.S. Government Obligations
deposited with the Trustee pursuant to Section 8.03 or 8.04, shall be held in
trust and applied by it, in accordance with the provisions of the Securities and
this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the persons entitled thereto, of the principal and interest for
whose payment such money has been deposited with or received by the Trustee or
to make mandatory sinking fund payments or analogous payments as contemplated by
Sections 8.03 and 8.04.
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(b) The Company shall pay and shall indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against U.S. Government
Obligations deposited pursuant to Sections 8.03 or 8.04 or the interest and
principal received in respect of such obligations other than any payable by or
on behalf of Holders.
(c) The Trustee shall deliver or pay to the Company from time to time
upon Company Request any U.S. Government Obligations or money held by it as
provided in Sections 8.03 or 8.04 which, in the opinion of a nationally
recognized firm of independent certified public accountants expressed in a
written certification thereof delivered to the Trustee, are then in excess of
the amount thereof which then would have been required to be deposited for the
purpose for which such U.S. Government Obligations or money were deposited or
received. This provision shall not authorize the sale by the Trustee of any
U.S. Government Obligations held under this Indenture.
Section 8.03. Legal Defeasance of Securities of any Series.
Unless this Section 8.03 is otherwise specified to be inapplicable to
Securities of any series, the Company shall be deemed to have paid and
discharged the entire indebtedness on all the outstanding Securities of any such
series on the 91st day after the date of the deposit referred to in subparagraph
(d) hereof, and the provisions of this Indenture, as it relates to such
outstanding Securities of such series, shall no longer be in effect (and the
Trustee, at the expense of the Company, shall, upon Company Request, execute
proper instruments acknowledging the same), except as to:
(a) the rights of Holders of Securities of such series to receive,
from the trust funds described in subparagraph (d) hereof, (i) payment of the
principal of an each installment of principal of or interest on the outstanding
Securities of such series on the stated maturity of such principal of or
interest and (ii) the benefit of any mandatory sinking fund payments applicable
to the Securities of such series on the day on which such payments are due and
payable in accordance with the terms of this Indenture and the Securities of
such series;
(b) the Company's obligations with respect to such Securities of such
series under Sections 2.03, 2.06 and 2.07; and
(c) the rights, powers, trust and immunities of the Trustee hereunder
and the duties of the Trustee under Section 8.02 and the duty of the Trustee to
authenticate Securities of such series issued on registration of transfer of
exchange;
provided that, the following conditions shall have been satisfied:
(d) the Company shall have deposited or caused to be deposited
irrevocably with the Trustee as trust funds in trust for the purpose of making
the following payments, specifically pledged as security for and dedicated
solely to the benefit of the Holders of such Securities, cash in U.S. Dollars
and/or U.S. Government Obligations which through the payment of interest and
principal in respect thereof, in
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<PAGE>
accordance with their terms, will provide (and without reinvestment and assuming
no tax liability will be imposed on such Trustee), not later than one day before
the due date of any payment of money, an amount in cash, sufficient, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to pay
and discharge each installment of principal (including mandatory sinking fund or
analogous payments) of and interest, if any, on all the Securities of such
series on the dates such installments of interest or principal are due;
(e) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement or instrument
to which the Company is a party or by which it is bound;
(f) no Default or Event of Default with respect to the Securities of
such series shall have occurred and be continuing on the date of such deposit or
during the period ending on the 91st day after such date;
(g) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel to the effect that (i) the Company has
received from, or there has been published by, the Internal Revenue Service a
ruling, or (ii) since the date of execution of this Indenture, there has been a
change in the applicable Federal income tax law, in either case to the effect
that, and based thereon such Opinion of Counsel shall confirm that, the Holders
of the Securities of such series will not recognize income, gain or loss for
Federal income tax purposes as a result of such deposit, defeasance and
discharge 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
deposit, defeasance and discharge had not occurred;
(h) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the intent
of preferring the Holders of the Securities of such series over any other
creditors of the Company or with the intent of defeating, hindering, delaying or
defrauding any other creditors of the Company;
(i) such deposit shall not result in the trust arising from such
deposit constituting an investment company (as defined in the Investment Company
Act of 1940, as amended), or such trust shall be qualified under such Act or
exempt from regulation thereunder; and
(j) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to the defeasance contemplated by this Section
have been complied with.
Section 8.04. Covenant Defeasance.
Unless this Section 8.04 is otherwise inapplicable to Securities of
any series, on and after the 91st day after the date of the deposit referred to
in subparagraph (a) hereof, the
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<PAGE>
Company may omit to comply with any term, provision or condition set forth under
Sections 4.03, 4.04, 4.05, 4.06, 4.07 and 5.01 as well as any additional
covenants contained in a supplemental indenture hereto for a particular series
of Securities or a Board Resolution or an Officers' Certificate delivered
pursuant to Section 2.01(n) (and the failure to comply with any such provisions
shall not constitute a Default or Event of Default under Section 6.01) and the
occurrence of any event described in clause (e) of Section 6.01 shall not
constitute a Default or Event of Default hereunder, with respect to the
Securities of such series, provided that the following conditions shall have
been satisfied:
(a) With reference to this Section 8.04, the Company has deposited or
caused to be irrevocably deposited (except as provided in Section 8.03) with the
Trustee as trust funds in trust, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such Securities, cash in U.S.
Dollars and/or U.S. Government Obligations which through the payment of interest
and principal in respect thereof, in accordance with their terms, will provide
(and without reinvestment and assuming no tax liability will be imposed on such
Trustee), not later than one day before the due date of any payment of money, an
amount in cash, sufficient, in the opinion of a nationally recognized firm of
independent certified public accountants expressed in a written certification
thereof delivered to the Trustee, to pay principal and interest, if any, on and
any mandatory sinking fund in respect of the Securities of such series on the
dates such installments of interest or principal are due;
(b) Such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement or instrument
to which the Company is a party or by which it is bound;
(c) No Default or Event of Default with respect to the Securities of
such series shall have occurred and be continuing on the date of such deposit or
during the period ending on the 91st day after such date;
(d) The Company shall have delivered to the Trustee an Opinion of
Counsel confirming that Holders of the Securities of such series will not
recognize income, gain or loss for federal income tax purposes as a result of
such deposit and defeasance and will be subject to federal income tax on the
same amounts, in the same manner and at the same times as would have been the
case if such deposit and defeasance had not occurred;
(e) The Company shall have delivered to the Trustee an Officers'
Certificate stating the deposit was not made by the Company with the intent of
preferring the Holders of the Securities of such series over any other creditors
of the Company or with the intent of defeating, hindering, delaying or
defrauding any other creditors of the Company; and
(f) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein
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provided for relating to the defeasance contemplated by this Section have been
complied with.
Section 8.05. Repayment to Company.
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.
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.
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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 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 amount of, or postpone the date fixed for, the
payment of any sinking fund or analogous provision;
(3) reduce the rate of, or change the time for payment of
interest on, any Security;
(4) reduce the principal of or change the fixed maturity of any
Security or waive a redemption payment or alter the redemption
provisions with respect thereto;
(5) make any Security payable in money other than that stated in
the Security;
(6) reduce the principal amount of Original Issue Discount
Securities payable upon acceleration of the maturity thereof;
(7) make any change in Section 6.04, 6.07 or 9.02 (this
sentence); or
(8) 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.
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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.
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
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.
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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:
If to the Company:
Advanced Micro Devices, Inc.
One AMD Place
Sunnyvale, California 94086
Attention: General Counsel
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.
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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:
(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
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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.
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 any series of
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.
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<PAGE>
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:
38
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Exhibit 5.1
[LATHAM & WATKINS LETTERHEAD]
March 3, 1998
Advanced Micro Devices, Inc.
One AMD Place
Sunnyvale, California 94086
Re: $1,000,000,000 Aggregate Offering Price of Securities
-----------------------------------------------------
of Advanced Micro Devices, Inc.
-------------------------------
Ladies and Gentlemen:
In connection with a registration statement on Form S-3 (the
"Registration Statement") filed on March 3, 1998 with the Securities and
Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended (the "Securities Act"), you have requested our opinion with respect to
the matters set forth below.
You have provided us with a draft prospectus (the "Prospectus") which
is a part of the Registration Statement. The Prospectus provides that it will
be supplemented in the future by one or more supplements to the Prospectus (each
a "Prospectus Supplement"). The Prospectus as supplemented by various
Prospectus Supplements will provide for the registration by the Company of up to
$1,000,000,000 aggregate offering price of (i) one or more series of senior,
senior subordinated or subordinated debt securities (the "Debt Securities"),
(ii) one or more series of preferred stock, par value $.10 per share (the
"Preferred Stock"), (iii) shares of common stock, par value $.01 per share (the
"Common Stock"), or (iv) warrants to purchase Common Stock, Preferred Stock or
Debt Securities (the "Warrants"). The Debt Securities, Preferred Stock, Common
Stock and Warrants are collectively referred to herein as the "Securities." Any
Debt Securities may be exchangeable and/or convertible into shares of Common
Stock or Preferred Stock. The Preferred Stock may also be exchangeable for
and/or convertible into shares of Common Stock or another series of Preferred
Stock. The Debt Securities may be issued pursuant to one or more indentures
(each, an "Indenture"), in each case between the Company and a trustee
(each, a "Trustee").
<PAGE>
Advanced Micro Devices, Inc.
March 3, 1998
Page 2
In our capacity as your special counsel in connection with the
Registration Statement, we are generally familiar with the proceedings taken and
proposed to be taken by the Company in connection with the authorization and
issuance of the Securities. For purposes of this opinion, we have assumed that
such proceedings will be timely and properly completed, in accordance with all
requirements of applicable federal, Delaware and New York laws, in the manner
presently proposed.
We have made such legal and factual examinations and inquiries,
including an examination of originals and copies certified or otherwise
identified to our satisfaction, of all such documents, corporate records and
instruments of the Company as we have deemed necessary or appropriate for
purposes of this opinion. In our examination, we have assumed the genuineness
of all signatures, the authenticity of all documents submitted to us as
originals, and the conformity to authentic original documents of all documents
submitted to us as copies.
We have been furnished with, and with your consent have exclusively
relied upon, certificates of officers of the Company with respect to certain
factual matters. In addition, we have obtained and relied upon such
certificates and assurances from public officials as we have deemed necessary.
We are opining herein as to the effect on the subject transaction only
of the federal securities laws of the United States, the General Corporation Law
of the State of Delaware and with respect to opinions numbered 1 and 5 below,
the internal laws of the State of New York, and we express no opinion with
respect to the applicability thereto, or the effect thereon, of the laws of
any other jurisdiction or, in the case of Delaware, any other laws, or as to
any matters of municipal law or the laws of any local agencies within any
state.
Subject to the foregoing and the other qualifications set forth
herein, it is our opinion that, as of the date hereof:
1. When (a) the Debt Securities have been duly established in
accordance with the applicable Indenture (including, without limitation, the
adoption by the Board of Directors of the Company of a resolution duly
authorizing the issuance and delivery of the Debt Securities), duly
authenticated by the Trustee and duly executed and delivered on behalf of the
Company against payment therefor in accordance with the terms and provisions of
the applicable Indenture and as contemplated by the Registration Statement, the
Prospectus and the related Prospectus Supplement(s), and (b) when the
Registration Statement and any required post-effective amendment thereto and any
and all Prospectus Supplement(s) required by applicable laws have all become
effective under the Securities Act, and (c) assuming that the terms of the Debt
Securities as executed and delivered are as described in the Registration
Statement, the Prospectus and the related Prospectus Supplement(s), and (d)
assuming that the Debt Securities as executed and delivered do not violate any
law applicable to the Company or result in a default under or breach of any
agreement or instrument binding upon the Company, and (e) assuming that the Debt
Securities as executed and delivered comply with all requirements and
restrictions, if any,
<PAGE>
Advanced Micro Devices, Inc.
March 3, 1998
Page 3
applicable to the Company, whether imposed by any court or governmental or
regulatory body having jurisdiction over the Company, and (f) assuming that the
Debt Securities are then issued and sold as contemplated in the Registration
Statement, the Prospectus and the related Prospectus Supplement(s), the Debt
Securities will constitute valid and legally binding obligations of the Company,
enforceable against the Company in accordance with the terms of the Debt
Securities.
2. The Company has the authority pursuant to its Certificate of
Incorporation, as amended, to issue up to 1,000,000 shares of Preferred Stock.
When a series of Preferred Stock has been duly established in accordance with
the terms of the Certificate of Incorporation and applicable law, and upon
adoption by the Board of Directors of the Company of a resolution in form and
content as required by applicable law and upon issuance and delivery of and
payment for such shares in the manner contemplated by the Registration
Statement, the Prospectus and the related Prospectus Supplement(s) and by such
resolution, such shares of such series of Preferred Stock (including any
Preferred Stock duly issued (i) upon the exchange or conversion of any shares of
Preferred Stock that are exchangeable or convertible into another series of
Preferred Stock, (ii) upon the exercise of any Warrants exercisable for
Preferred Stock or (iii) upon the exchange or conversion of Debt Securities that
are exchangeable or convertible into Preferred Stock) will be validly issued,
fully paid and nonassessable.
3. The Company has the authority pursuant to its Certificate of
Incorporation, as amended, to issue up to 250,000,000 shares of Common Stock.
Upon adoption by the Board of Directors of the Company of a resolution in form
and content as required by applicable law and upon issuance and delivery of and
payment for such shares in the manner contemplated by the Registration
Statement, the Prospectus and the related Prospectus Supplement(s) and by such
resolution, such shares of Common Stock (including any Common Stock duly issued
(i) upon the exchange or conversion of any shares of Preferred Stock that are
exchangeable or convertible into Common Stock, (ii) upon the exercise of any
Warrants exercisable for Common Stock or (iii) upon the exchange or conversion
of Debt Securities that are exchangeable or convertible into Common Stock) will
be validly issued, fully paid and nonassessable.
4. When (a) the Warrants have been duly executed and delivered, and
issued and sold in the form and in the manner contemplated in the Registration
Statement, the Prospectus and the related Prospectus Supplement(s), and (b) when
the Registration Statement and any required post-effective amendment thereto and
any and all Prospectus Supplement(s) required by applicable law have all become
effective under the Securities Act, and (c) assuming that the terms of the
Warrants as executed and delivered are as described in the Registration
Statement, the Prospectus and the related Prospectus Supplement(s), and (d)
assuming that the Warrants, as executed and delivered, do not violate any law
applicable to the Company or result in a default under or breach of any
agreement or instrument binding upon the Company, and (e) assuming the Warrants
as executed and delivered comply with all requirements and restrictions, if any,
applicable to the Company, whether imposed by any court or governmental or
regulatory body having
<PAGE>
Advanced Micro Devices, Inc.
March 3, 1998
Page 4
jurisdiction over the Company, and (f) assuming that the Warrants are then
issued and sold as contemplated in the Registration Statement, the Prospectus
and the related Prospectus Supplement(s), the Warrants will constitute valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms.
5. When (a) the Registration Statement and any required
post-effective amendment thereto and any and all Prospectus Supplement(s)
required by applicable laws have all become effective under the Securities Act,
and (b) when the Debt Securities have been duly executed and delivered by all
parties thereto, and (c) assuming that the terms of the applicable Indenture
as executed and delivered are as described in the Registration Statement, the
Prospectus and the related Prospectus Supplement(s), and (d) assuming that the
applicable Indenture as executed and delivered does not violate any law
applicable to the Company or result in a default under or breach of any
agreement or instrument binding upon the Company, and (e) assuming that the
applicable Indenture as executed and delivered complies with all requirements
and restrictions, if any, applicable to the Company, whether imposed by any
court or governmental or regulatory body having jurisdiction over the Company,
and (f) assuming that the Debt Securities are then issued and sold as
contemplated in the Registration Statement, the Prospectus and the related
Prospectus Supplement(s), and (g) assuming that the applicable Indenture has
been duly authorized, executed and delivered by the Company, the applicable
Indenture will constitute the valid and legally binding obligation of the
Company, enforceable against the Company under the laws of the State of New
York in accordance with the terms of the applicable Indenture.
The opinions set forth in paragraphs 1, 4 and 5 above are subject to
the following exceptions, limitations and qualifications: (i) the effect of
bankruptcy, insolvency, reorganization, moratorium or other similar laws now
or hereafter in effect relating to or affecting the rights and remedies of
creditors; (ii) the effect of general principles of equity, including without
limitation, concepts of materiality, reasonableness, good faith and fair
dealing and the possible unavailability of specific performance or injunctive
relief, regardless of whether enforcement is considered in a proceeding in
equity or at law, and the discretion of the court before which any proceeding
therefor may be brought; (iii) the unenforceability under certain
circumstances under law or court decisions of provisions providing for the
indemnification of, or contribution to, a party with respect to a liability
where such indemnification or contribution is contrary to public policy; and
(iv) we express no opinion with respect to whether acceleration of Debt
Securities may affect the collectibility of any portion of the stated
principal amount thereof which might be determined to constitute unearned
interest thereon.
We assume for purposes of this opinion that the Trustee for each
applicable Indenture is duly organized, validly existing and in good standing
under the laws of its jurisdiction of organization; that the Trustee is duly
qualified to engage in the activities contemplated by the applicable
Indenture; that the applicable Indenture has been duly authorized, executed
and delivered by the Trustee and constitutes a legally valid, binding and
enforceable obligation of the Trustee, enforceable against the Trustee in
accordance with its terms; that the Trustee is in compliance, generally and
with respect to acting as Trustee under the applicable Indenture, with all
applicable laws and regulations; and that the Trustee has the requisite
organizational and legal power and authority to perform its obligations under
the applicable Indenture.
We consent to your filing this opinion as an exhibit to the
Registration Statement and to the reference to our firm under the caption "Legal
Matters" in the Prospectus included therein.
<PAGE>
Advanced Micro Devices, Inc.
March 3, 1998
Page 5
This opinion is rendered only to you and is solely for your benefit in
connection with the transactions covered hereby. This opinion may not be relied
upon by you for any other purpose, or furnished to, quoted to, or relied upon by
any other person, firm or corporation for any purpose, without our prior written
consent.
Very truly yours,
/s/ Latham & Watkins
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in
the Registration Statement on Form S-3 (No. 333-47243) (Form S-3) and related
Prospectus of Advanced Micro Devices, Inc. for the registration of up to
$1,000,000,000 in the aggregate of either debt securities, preferred stock,
common stock, equity warrants or debt warrants, or any combination thereof, and
to the incorporation by reference therein of our report dated January 9, 1998,
with respect to the consolidated financial statements and schedule of Advanced
Micro Devices, Inc. included in its Annual Report (Form 10-K/A) for the year
ended December 28, 1997, filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
San Jose, California
April 16, 1998
