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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 19, 1996
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
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REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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ANALOG DEVICES, INC.
(Exact name of registrant as specified in its charter)
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MASSACHUSETTS 04-2348234
(State or other jurisdiction of (I.R.S.Employer.
incorporation or organization) Identification No.)
ONE TECHNOLOGY WAY, NORWOOD, MASSACHUSETTS 02062-9106 (617) 329-4700
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
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PAUL P. BROUNTAS, ESQ.
HALE AND DORR
60 STATE STREET
BOSTON, MASSACHUSETTS 02109
(617) 526-6000
(Name, address, including zip code, and telephone number, including area
code, of agent for service)
Copy to:
PAUL P. BROUNTAS, ESQ.
MARK G. BORDEN, ESQ.
Hale and Dorr
60 State Street
Boston, Massachusetts 02109
(617) 526-6000
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Approximate date of commencement of proposed sale to the public: At the
discretion of the Selling Stockholders.
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 registering additional securities 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. 333- / /
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. 333- / /
If delivery of the prospectus is expected to be made pursuant Rule 434,
please check the following box. / /
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum
Title of Each Class of Amount to be Offering Price Aggregate Amount of
Securities to be Registered Registered(1) Per Share(1) Offering Price(1) Registration Fee
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.16 2/3 par
value......... 2,250,000 shares $18.375 $41,343,750 $14,256.47
=====================================================================================================================
</TABLE>
(1) Estimated solely for purposes of calculating the registration fee
pursuant to Rule 457(c) of the Securities Act of 1933, as amended, on
the basis of the average of the high and low sales prices of the
Registrant's Common Stock on the New York Stock Exchange on July 16,
1996.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
SHALL DETERMINE.
<PAGE> 3
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 UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED JULY 19, 1996
2,250,000 Shares
[ANALOG LOGO]
COMMON STOCK
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The 2,250,000 shares (the "Shares") of Common Stock, $.16 2/3 par value
per share (the "Common Stock"), of Analog Devices, Inc. ("Analog" or the
"Company") covered by this Prospectus will be issued to Bourns, Inc. ("Bourns")
upon exercise of a warrant issued to Bourns in connection with the acquisition
of Precision Monolithics, Inc. by the Company in 1990. Initially, the Shares
are to be offered by or for the account of Bourns. In the event that Bourns
hereafter transfers any of the Shares to any person or entity identified in
this Prospectus as a Selling Stockholder (together with Bourns, the "Selling
Stockholders"), such Shares may thereafter be offered by or for the account of
such Selling Stockholders. See "The Selling Stockholders." The Company will not
receive any of the proceeds from the sale of the shares by the Selling
Stockholders. The Common Stock is traded on the New York Stock Exchange under
the symbol "ADI." On July 16, 1996, the last reported sale price of the Common
Stock on the New York Stock Exchange was $19.375 per share.
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SEE "RISK FACTORS" BEGINNING ON PAGE 4 FOR A DISCUSSION OF CERTAIN
FACTORS THAT SHOULD BE CONSIDERED BY PROSPECTIVE INVESTORS.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
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 date of this Prospectus is , 1996.
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AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports and other information with the Securities and
Exchange Commission (the "Commission"). The reports, proxy materials and other
information filed by the Company with the Commission may be inspected and copied
at the public reference facilities maintained by the Commission at the Public
Reference Section of the Commission at 450 Fifth Street, N.W., Washington, D.C.
20549, and at the Regional Offices of the Commission located at Seven World
Trade Center, Suite 1300, New York, New York 10048, and at Citicorp Center, 500
West Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of such
materials also may be obtained from the Public Reference Section of the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549 at prescribed
rates. The Common Stock of the Company is listed on the New York Stock Exchange.
Reports, proxy materials and other information concerning the Company may also
be inspected at the offices of the New York Stock Exchange, 20 Broad Street, New
York, New York 10005.
The Company has filed with the Commission a Registration Statement on
Form S-3 under the Securities Act of 1933, as amended (the "Securities Act"),
with respect to the shares of Common Stock offered hereby. This Prospectus does
not contain all the information set forth in the Registration Statement and the
exhibits and schedules thereto, certain portions of which are omitted as
permitted by the rules and regulations of the Commission. For further
information with respect to the Company and the shares of Common Stock offered
hereby, reference is made to the Registration Statement, including the exhibits
and schedules. The Registration Statement, together with the exhibits and
schedules thereto, may be inspected, without charge, at the Commission's
principal office at 450 Fifth Street, N.W., Washington, D.C. 20549, and also at
the regional offices of the Commission listed above. Copies of such material may
also be obtained from the Commission upon the payment of prescribed rates.
Statements contained in this Prospectus as to any contracts, agreements
or other documents filed as an exhibit to the Registration Statement are not
necessarily complete, and in each instance reference is hereby made to the copy
of such contract, agreement or other document filed as an exhibit to the
Registration Statement for a full statement of the provisions thereof, and each
such statement in this Prospectus is qualified in all respects by such
reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
In accordance with the requirements of the Exchange Act, certain
reports and other information are filed by the Company periodically with the
Commission. The following documents filed by the Company with the Commission are
incorporated herein by reference: (1) the Company's Annual Report on Form 10-K
for the fiscal year ended October 28, 1995, (2) the
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Company's Quarterly Report on Form 10-Q for the quarter ended February 3, 1996,
(3) the Company's Quarterly Report on Form 10-Q for the quarter ended May 4,
1996, (4) the Company's Current Report on Form 8-K filed on July 16, 1996 and
(5) all documents filed by the Company pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act after July 19, 1996 and prior to the date of this
Prospectus.
All documents filed by the Company pursuant to Section 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 of the Common Stock offered hereby shall be deemed
to be a part hereof from the date of filing such documents. Any statement
contained herein or 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 or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such statement as so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Prospectus.
The Company will provide without charge to each person to whom this
Prospectus is delivered, on the request of any such person, a copy of any or all
of the above documents incorporated herein by reference (other than exhibits to
such documents, unless such exhibits are specifically incorporated by reference
into the documents that this Prospectus incorporates). Requests should be
directed to Joseph E. McDonough, Vice President-Finance of Analog Devices, Inc.,
One Technology Way, Norwood, MA 02062-9106; telephone number (617) 329-4700.
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RISK FACTORS
The shares of Common Stock offered hereby involve a high degree of
risk, including the risks described below. Prospective investors should
carefully consider the following risk factors in addition to the other
information contained in, or incorporated by reference in, this Prospectus
before purchasing the shares of Common Stock offered hereby.
POTENTIAL FLUCTUATIONS IN OPERATING RESULTS. The Company's operating
results are affected by a wide variety of factors, including the timing of new
product announcements or introductions by the Company and its competitors,
competitive pricing pressures, fluctuations in manufacturing yields, adequate
availability of wafers and manufacturing capacity, changes in product mix and
economic conditions in the United States and international markets. In addition,
the semiconductor market has historically been cyclical and subject to
significant economic downturns at various times. As a result of these and other
factors, there can be no assurance that the Company will not experience material
fluctuations in future operating results on a quarterly or annual basis.
DEPENDENCE ON NEW PRODUCTS AND NEW MARKETS. The Company's success
depends in part on its continued ability to develop and market new products.
There can be no assurance that the Company will be able to develop and introduce
new products in a timely manner or that such products, if developed, will
achieve market acceptance. In addition, the Company's growth is dependent on its
continued ability to penetrate new markets such as the communications, computer
and automotive segments of the electronics market, where the Company has limited
experience and competition is intense. There can be no assurance that the
markets being served by the Company will continue to grow, that the Company's
existing and new products will meet the requirements of such markets, that the
Company's products will achieve customer acceptance in such markets, that
competitors will not force prices to an unacceptably low level or take market
share from the Company or that the Company can achieve or maintain profits in
these markets. In addition, some of the customers in these markets are less well
established which could subject the Company to increased credit risk.
COMPETITION. The semiconductor industry is intensely competitive.
Certain of the Company's competitors have greater technical, marketing,
manufacturing and financial resources than the Company. The Company's
competitors also include emerging companies attempting to sell products to
specialized markets such as those served by the Company. Competitors of the
Company have, in some cases, developed and marketed products having similar
design and functionality as the Company's products. There can be no assurance
that the Company will be able to compete successfully in the future against
existing or new competitors or that the Company's operating results will not be
adversely affected by increased price competition.
MANUFACTURING CAPACITY. While the Company is planning in fiscal 1996 to
increase substantially its manufacturing capacity through
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both expansion of its production facilities and increased access to third-party
foundries, there can be no assurance that the Company will complete the
expansion of its production facilities or secure increased access to third party
foundries in a timely manner or that the Company will not encounter
unanticipated production problems at either its own facilities or at third-party
foundries. The Company relies, and plans to continue to rely, on third-party
wafer fabricators to supply most of its wafers that can be manufactured using
industry-standard digital processes, and such reliance involves several risks,
including the absence of adequate guaranteed capacity and reduced control over
delivery schedules, manufacturing yields and costs. In addition, the Company's
capacity additions will result in a significant increase in operating expenses
and, if revenue levels do not increase to offset these additional expense
levels, the Company's future operating results could be adversely affected.
The Company believes that other semiconductors manufacturers are also
expanding or planning to expand their production capacity over the next several
years, and there can be no assurance that the expansion by the Company and its
competitors will not lead to over capacity in the Company's target markets,
which could lead to price erosion that would adversely affect the Company's
operating results.
MANUFACTURING RISKS. The fabrication of integrated circuits involves
highly complex and precise processes that are continuously being modified in an
effort to improve yields and product performance. Minute impurities or other
difficulties in the manufacturing process can lower yields. As the Company
continues to increase its manufacturing output and its use of third-party
foundries, there can be no assurance that the Company will not experience a
decrease in manufacturing yields or other manufacturing problems. Decreased
yields could adversely affect gross margin and operating results. If the Company
were unable to use any manufacturing facility, as a result of a natural disaster
or otherwise, the Company's operations would be materially adversely affected.
PATENTS AND INTELLECTUAL PROPERTY. The semiconductor industry is
characterized by frequent claims and litigation involving patent and other
intellectual property rights. The Company has from time to time received, and
may in the future receive, claims from third parties asserting that the
Company's products or processes infringe their patents or other intellectual
property rights. In the event a third party makes a valid intellectual property
claim and a license is not available on commercially reasonable terms, the
Company's operating results could be materially and adversely affected.
Litigation may be necessary to enforce patents or other intellectual property
rights of the Company or to defend the Company against claims of infringement,
and such litigation can be costly and divert the attention of key personnel. See
Part II, Item 1 - "Legal Proceedings," contained in the Form 10-Q for the fiscal
quarter ended May 4, 1996 and Part I, Item 3 - "Legal Proceedings," contained in
the Company's Annual Report on Form 10-K for the fiscal year ended October 28,
1995 for information concerning pending litigation involving the Company. An
adverse resolution
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of such litigation, may, in certain cases, have a material adverse effect on the
Company's consolidated financial position or on its consolidated results of
operations or cash flows in the period in which the litigation is resolved.
INTERNATIONAL OPERATIONS. A significant portion of the Company's
revenues are derived from customers in international markets. The Company has
manufacturing facilities in Ireland, the Philippines and Taiwan. The Company is
therefore subject to the economic and political risks inherent in international
operations, including expropriation, air transportation disruptions, currency
controls and changes in currency exchange rates, tax and tariff rates and
freight rates. Although the Company engages in certain hedging transactions to
reduce its exposure to currency exchange rate fluctuations, there can be no
assurance that the Company's competitive position will not be adversely affected
by changes in the exchange rate of the U.S. dollar against other currencies.
STOCK PRICE VOLATILITY. The trading price of the Company's Common Stock
may be subject to wide fluctuations in response to quarter-to-quarter variations
in operating results, announcements of new products by the Company or its
competitors, general conditions in the semiconductor industry, changes in
earnings estimates and recommendations by analysts or other events. In future
quarters, if the Company's financial performance were to fall below the
performance predicted by securities analysts, the Company's stock price could
decline. In addition, the public stock markets have experienced extreme price
and trading volume volatility that has significantly affected the market prices
of securities of many high technology companies and that has often been
unrelated or disproportionate to the operating performance of these companies.
These factors may adversely affect the market price of the Common Stock.
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THE COMPANY
The Company designs, manufactures and markets a broad line of
high-performance linear, mixed-signal and digital integrated circuits ("ICs")
that address a wide range of real-world signal processing applications. The
Company's principal products include general-purpose, standard-function linear
and mixed-signal ICs ("SLICs"), special-purpose linear and mixed-signal ICs
("SPLICs") and digital signal processing ICs ("DSP ICs"). The Company also
manufactures and markets devices using assembled product technology.
Analog believes it is one of the world's largest suppliers of SLIC
products. The Company's SLIC products are primarily high-performance,
single-function devices. The majority of the Company's SLIC revenue is
attributable to data converters (analog-to-digital and digital-to-analog) and
amplifiers. Other SLIC products offered by the Company include analog
signal-processing devices (such as analog multipliers), voltage references and
comparators. SLICs are sold to a very large customer base for a wide variety of
applications, including applications in the medical, engineering and scientific
instruments market, factory automation market and military/ aerospace market.
Over the past five years, Analog has sought to balance its
traditionally stable SLIC business with the growth opportunities available for
SPLICs and DSP ICs, particularly in the communications and computer markets.
Analog's SPLIC and DSP IC products feature high levels of functional integration
on a single chip and are designed to address customers' needs to incorporate
increasingly greater levels of real-world signal processing capability in their
products. The Company's SPLIC and DSP ICs include products used in wireless
communication applications, such as digital mobile phones and base stations, and
computer applications, such as audio enhancement in multimedia PCs.
The Company is a Massachusetts corporation with its principal
headquarters located at One Technology Way, Norwood, Massachusetts 02062-9106;
and its telephone number is (617) 329-4700.
USE OF PROCEEDS
The Company will not receive any proceeds from the sale of Common Stock
by the Selling Stockholders.
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THE SELLING STOCKHOLDERS
The shares of Common Stock covered by this Prospectus will be issued
upon exercise of a warrant issued to Bourns in connection with the acquisition
of Precision Monolithics, Inc. by the Company in 1990.
The following table sets forth the name and the number of shares of
Common Stock beneficially owned by the Selling Stockholders as of July 17, 1996,
and the number of the shares to be offered by the Selling Stockholders pursuant
to this Prospectus.
<TABLE>
<CAPTION>
TOTAL NUMBER OF SHARES OF
SHARES OF COMMON STOCK COMMON STOCK
NAME OF SELLING STOCKHOLDER BENEFICIALLY OWNED OFFERED HEREBY
<S> <C> <C>
Bourns, Inc. 2,250,000(1) 2,250,000(1)
University of California
Riverside (2) (2)
</TABLE>
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(1) Less such number of shares, if any, which are hereafter from time to
time donated by Bourns to the University of California Riverside.
(2) Such number of shares, if any, as Bourns may hereafter from time to
time donate to such institution.
The Company cannot determine the number of shares of Common Stock which
will be held by the Selling Stockholders upon the completion of the offering, as
the length of time of the offering period and the determination of whether to
buy or sell additional securities of the Company during the offering period are
at the discretion of the Selling Stockholders.
PLAN OF DISTRIBUTION
Shares of Common Stock covered hereby may be offered and sold from time
to time by the Selling Stockholders, or by pledgees, donees, transferees or
other successors in interest ("Transferees"). Such sales may be made on one or
more exchanges or in the over-the-counter market or otherwise, at prices and
terms then prevailing or at prices related to the then current market price, or
in negotiated transactions. The shares may be sold by means of one or more of
the following: (a) a block trade in which the broker-dealer so engaged will
attempt to sell the shares as agent, but may position and resell a portion of
the block as principal to facilitate the transaction; (b) purchases by a
broker-dealer as principal and resale by such broker-dealer for its account
pursuant to this Prospectus; (c) an exchange distribution in accordance with the
rules of such exchange; (d) ordinary
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brokerage transactions and transactions in which the broker solicits purchasers;
(e) direct sales by the Selling Stockholders or Transferees not involving a
broker-dealer; and (f) donations to a charity or other donee and resale by the
donee pursuant to this Prospectus. In effecting sales, broker-dealers engaged by
the Selling Stockholders or Transferees may arrange for other broker-dealers to
participate in the resales.
In connection with distributions of the shares of Common Stock covered
hereby or otherwise, the Selling Stockholders or Transferees may enter into
hedging transactions with broker-dealers or financial institutions. In
connection with such transactions, the broker-dealers or financial institutions
may engage in short sales of the shares registered hereunder in the course of
hedging the positions they assume with the Selling Stockholders or Transferees.
The Selling Stockholders or Transferees may also sell shares short and redeliver
the shares to close out such short positions. The Selling Stockholders or
Transferees may also enter into option or other transactions with broker-dealers
or financial institutions which require the delivery to such broker-dealer or
financial institution of the shares registered hereunder, which the
broker-dealer or financial institution may resell or otherwise transfer pursuant
to this Prospectus. The Selling Stockholders or Transferees may also loan or
pledge the shares of Common Stock covered hereby to a broker-dealer or financial
institution and such broker-dealer or financial institution may sell the shares
so loaned or upon a default the broker-dealer or financial institution may
affect sales of the pledged shares pursuant to this Prospectus.
Broker-dealers, financial institutions or agents may receive
compensation in the form of commissions, discounts or concessions from the
Selling Stockholders or Transferees in amounts to be negotiated in connection
with the sale. Such broker-dealers, financial institutions and any other
participating broker-dealers may be deemed to be "underwriters" within the
meaning of the Securities Act in connection with such sales, and any such
commission, discount or concession may be deemed to be underwriting discounts or
commissions under the Securities Act. In addition, any securities covered by
this Prospectus which qualify for sale pursuant to Rule 144 may be sold under
Rule 144 rather than pursuant to this Prospectus.
The Company has advised Bourns that during such time as the Selling
Stockholders may be engaged in a distribution of the shares of Common Stock
covered hereby they are required to comply with Rules 10b-6 and 10b-7 under the
Exchange Act (as those Rules are described in more detail below) and, in
connection therewith, that they may not engage in any stabilization activity in
connection with the Company's securities, are required to furnish to each
broker-dealer through which the shares of Common Stock covered hereby may be
offered copies of this Prospectus, and may not bid for or purchase any
securities of the Company or attempt to induce any person to purchase any
Company securities except as permitted under the Exchange Act. Bourns has agreed
to inform the Company when the distribution of the shares of Common Stock
covered hereby is completed.
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Rule 10b-6 under the Exchange Act prohibits, with certain exceptions,
participants in a distribution from bidding for or purchasing, for an account in
which the participant has a beneficial interest, any of the securities that are
the subject of the distribution. Rule 10b-7 governs bids and purchases made in
order to stabilize the price of a security in connection with a distribution of
the security.
This offering will terminate on the earlier of (i) 24 months after the
effective date of this Prospectus or (ii) the date on which the shares of Common
Stock covered hereby have been sold by the Selling Stockholders.
DESCRIPTION OF CAPITAL STOCK
The authorized capital stock of the Company consists of 450,000,000
shares of Common Stock, $.16 2/3 par value per share, and 500,000 shares of
preferred stock, $1.00 par value per share (the "Preferred Stock").
COMMON STOCK
As of July 15, 1996, there were 116,257,830 shares of Common Stock
outstanding and held of record by approximately 5,499 stockholders.
Holders of Common Stock are entitled to one vote for each share held on
all matters submitted to a vote of stockholders, and do not have cumulative
voting rights. Accordingly, holders of a majority of the shares of Common Stock
entitled to vote in any election of directors may elect all of the directors
standing for election. Holders of Common Stock are entitled to receive ratably
such dividends, if any, as may be declared by the Board of Directors out of
funds legally available therefor, subject to any preferential dividend rights of
outstanding Preferred Stock. Upon the liquidation, dissolution or winding up of
the Company, the holders of Common Stock are entitled to receive ratably the net
assets of the Company available after the payment of all debts and other
liabilities and subject to the prior rights of any outstanding Preferred Stock.
Holders of the Common Stock have no preemptive, subscription, redemption or
conversion rights. The outstanding shares of Common Stock are fully paid and
nonassessable. The rights, preferences and privileges of holders of Common Stock
are subject to, and may be adversely affected by, the rights of the holders of
shares of any series of Preferred Stock which the Company may designate and
issue in the future. There are no shares of Preferred Stock outstanding.
PREFERRED STOCK
The Board of Directors of the Company is authorized, subject to certain
limitations prescribed by law, without further stockholder approval to issue
from time to time up to an aggregate of 500,000 shares of Preferred Stock in one
or more series and to fix or alter the designations, preferences, rights and any
qualifications, limitations or restrictions of the shares of each such series
thereof, including the dividend rights, dividend rates,
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conversion rights, voting rights, terms of redemption (including sinking fund
provisions), redemption price or prices, liquidation preferences and the number
of shares constituting any series or designation of such series. The issuance of
Preferred Stock may have the effect of delaying, deferring or preventing a
change of control of the Company. The Company has no present plans to issue any
shares of Preferred Stock.
MASSACHUSETTS LAW AND CERTAIN PROVISIONS OF THE COMPANY'S RESTATED ARTICLES OF
ORGANIZATION AND BY-LAWS
Because the Company has more than 200 stockholders of record, it is
subject to Chapter 110F of the Massachusetts General Laws, an anti-takeover law.
In general, this statute prohibits a publicly held Massachusetts corporation
from engaging in a "business combination" with an "interested stockholder" for a
period of three years after the date of the transaction in which the person
becomes an interested stockholder, unless (i) the interested stockholder obtains
the approval of the Board of Directors prior to becoming an interested
stockholder, (ii) the interested stockholder acquires 90% of the outstanding
voting stock of the corporation (excluding shares held by certain affiliates of
the corporation) at the time it becomes an interested stockholder, or (iii) the
business combination is approved by both the Board of Directors and the holders
of two-thirds of the outstanding voting stock of the corporation (excluding
shares held by the interested stockholder). An "interested stockholder" is a
person who, together with affiliates and associates, owns (or at any time within
the prior three years did own) 5% or more of the outstanding voting stock of the
corporation. A "business combination" includes a merger, a stock or asset sale,
and certain other transactions resulting in a financial benefit to the
interested stockholders.
Massachusetts General Laws Chapter 156B, Section 50A generally requires
that publicly-held Massachusetts corporation have a classified board of
directors consisting of three classes as nearly equal in size as possible,
unless the corporation elects to opt out of the statute's coverage. The
Company's By-Laws contain provisions which give effect to Section 50A.
The Company's By-Laws include a provision excluding the Company from
the applicability of Massachusetts General Laws Chapter 110D, entitled
"Regulation of Control Share Acquisitions." In general, this statute provides
that any stockholder of a corporation subject to this statute who acquires 20%
or more of the outstanding voting stock of a corporation may not vote such stock
unless the stockholders of the corporation so authorize. The Board of Directors
may amend the Company's By-Laws at any time to subject the Company to this
statute prospectively.
The Restated Articles of Organization of the Company, as amended (the
"Articles of Organization") provide that the directors and officers of the
Company shall be indemnified by the Company to the fullest extent authorized by
Massachusetts law, as it now exists or may in the future be amended, against all
liabilities and expenses incurred in connection with service for
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or on behalf of the Company. In addition, the Articles of Organization provide
that the directors of the Company will not be personally liable for monetary
damages to the Company for breaches of their fiduciary duty as directors.
STOCKHOLDER RIGHTS PLAN
The Company adopted a Stockholder Rights Plan on January 28, 1988,
which was amended on June 14, 1989 (the "Rights Plan"). Pursuant to the Rights
Plan, each share of Common Stock has an associated right (a "Right"). Each Right
entitles the registered holder to purchase from the Company one share of Common
Stock at a purchase price of $26.67 (as adjusted to account for the 50% Common
Stock dividend distributed by the Company on January 3, 1996) per share, subject
to adjustment (the "Purchase Price").
The Rights will be exercisable upon the earlier of (i) ten business
days following a public announcement that a person or group has acquired, or
obtained the right to acquire, beneficial ownership of 20% or more of the
outstanding Common Stock of the Company (an "Acquiring Person"), or (ii) ten
business days following the commencement of a tender offer or exchange offer,
the consummation of which would result in a person or group owning 30% or more
of the outstanding Common Stock (the earlier of such dates being called the
"Distribution Date"). Until a Right is exercised, the holder thereof has no
rights as a stockholder of the Company. Until the Distribution Date (or earlier
redemption or expiration of the Rights), Rights are transferred with and only
with the Common Stock.
In certain circumstances specified in the Rights Plan, including
certain circumstances occurring after any person or group becomes an Acquiring
Person, each holder of a Right, other than Rights beneficially owned by the
Acquiring Person, will thereafter have the right to receive upon exercise that
number of shares of Common Stock having a market value of two times the Purchase
Price, and in the event that the Company is acquired in a business combination
transaction or 50% or more of its assets are sold, each holder of a Right will
thereafter have the right to receive upon exercise that number of shares of
Common Stock of the acquiring company which at the time of the transaction will
have a market value of two times the Purchase Price.
The Rights have certain anti-takeover effects, in that they would cause
substantial dilution to a person or group that attempts to acquire a significant
interest in the Company on terms not approved by the Board of Directors. The
Board of Directors of the Company may in certain circumstances redeem the Rights
in whole at a price of $.0089 per Right, as adjusted.
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for the Company's Common Stock is
Boston EquiServe L.P.
-12-
<PAGE> 15
LEGAL MATTERS
The validity of the shares offered hereby will be passed upon for the
Company by Hale and Dorr, Boston, Massachusetts.
EXPERTS
The consolidated financial statements of Analog Devices, Inc. appearing
in Analog Devices, Inc.'s Annual Report (Form 10-K) for the year ended October
28, 1995 have been audited by Ernst & Young LLP, independent auditors, as set
forth in their report thereon included therein and incorporated herein by
reference. Such 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.
-13-
<PAGE> 16
No dealer, salesman or any other 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 any information or representation
not contained herein must not be relied upon as having been authorized by the
Company. This Prospectus does not constitute an offer to sell, or a solicitation
of an offer to buy, any securities other than the registered securities to which
it relates or an offer to, or solicitation of, any person in any jurisdiction
where such an offer or solicitation would be unlawful. Neither the delivery of
this Prospectus nor any sale made hereunder shall, under any circumstance,
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 date subsequent to the date hereof.
--------------------
TABLE OF CONTENTS
--------------------
<TABLE>
<CAPTION>
Page
<S> <C>
Available Information............ 2
Incorporation of Certain Documents by
Reference...................... 2
Risk Factors..................... 4
The Company...................... 7
Use of Proceeds.................. 7
The Selling Stockholders......... 8
Plan of Distribution............. 8
Description of Capital Stock..... 10
Legal Matters.................... 13
Experts.......................... 13
</TABLE>
2,250,000 Shares
[ANALOG LOGO]
COMMON STOCK
--------------------
PROSPECTUS
--------------------
, 1996
-14-
<PAGE> 17
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the various expenses in connection with
the issuance and distribution of the securities being registered. All amounts
shown are estimates except the Securities and Exchange Commission registration
fee.
<TABLE>
<S> <C>
SEC Registration Fee.................................. $14,256.47
NYSE Listing Fee...................................... 7,875.00
Transfer Agent and Registrar.......................... 500.00
Accounting Fees and Expenses.......................... 4,000.00
Legal Fees and Expenses............................... 10,000.00
Printing and Engraving................................ 3,000.00
Miscellaneous......................................... $ 2,368.53
----------
Total................................................. $42,000.00
==========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article 6A of the Registrant's Articles of Organization, as amended
(the "Articles of Organization") provides for indemnification of directors and
officers to the full extent permitted under Massachusetts law. Section 67 of
Chapter 156B of the Massachusetts General Laws provides that a corporation has
the power to indemnify a director, officer, employee or agent of the corporation
and certain other persons serving at the request of the corporation and certain
other persons serving at the request of the corporation in related capacities
against amounts paid and expenses incurred in connection with an action or
proceeding to which he is or is threatened to be made a party by reason of such
position, if such person shall have acted in good faith and in a manner he
reasonably believed to be in the best interests of the corporation, provided
that, no indemnification shall be made with respect to any matter as to which
such person shall have been adjudged not to be entitled to indemnification under
Section 67.
Article 6A also provides for indemnification of directors and officers
of the Registrant against liabilities and expenses in connection with any legal
proceedings to which they may be made a party or with which they may become
involved or threatened by reason of having been an officer or director of the
Registrant or of any other organization at the request of the Registrant.
Article 6A generally provides that a director or officer of the Registrant (i)
shall be indemnified by the Registrant for all expenses of such legal
proceedings unless he has been adjudicated not to have acted in good faith in
the reasonable belief that his action was in the best interests of the
Registrant, and (ii) shall be indemnified by the Registrant for the expenses,
judgments, fines and amounts paid in settlement and
II-1
<PAGE> 18
compromise of such proceedings. No indemnification will be made to cover costs
of settlements and compromises if the Board determines by a majority vote of a
quorum consisting of disinterested directors (or, if such quorum is not
obtainable, by a majority of the disinterested directors of the Registrant),
that such settlement or compromise is not in the best interests of the
Registrant.
Article 6A permits the payment by the Registrant of expenses incurred
in defending a civil or criminal action in advance of its final disposition,
subject to receipt of an undertaking by the indemnified person to repay such
payment if it is ultimately determined that such person is not entitled to
indemnification under the Articles of Organization. No advance may be made if
the Board of Directors determines, by a majority vote of a quorum consisting of
disinterested directors (or, if such quorum is not obtainable, by a majority of
the disinterested directors of the Registrant), that such person did not act in
good faith in the reasonable belief that his action was in the best interest of
the Registrant.
Article 6D of the Registrant's Articles of Organization provides that
no director shall be liable to the Registrant or its stockholders for monetary
damages for breach of his fiduciary duty as a director, except for liability (i)
for any breach of the director's duty of loyalty to the Registrant or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Section 61 or
62 of Chapter 156B, or (iv) for any transaction from which the director derived
an improper personal benefit.
The Registrant has directors and officers liability insurance for the
benefit of its directors and officers.
ITEM 16. EXHIBITS.
See Exhibit Index included immediately preceding the Exhibits to this
Registration Statement, which is incorporated herein by reference.
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, as amended (the
"Securities Act");
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this 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 this
Registration Statement;
II-2
<PAGE> 19
(iii) To include any material information with
respect to the plan of distribution not previously disclosed
in this Registration Statement or any material change to such
information in this Registration Statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if
the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act") that are
incorporated by reference in this Registration Statement.
(2) That, for the purposes of determining any liability under
the Securities Act, each post-effective amendment that contains a form
of prospectus shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at the time shall be deemed to be the initial bona fide
offering thereof.
(b) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the provisions described under "Item 15 --
Indemnification of Directors and Officers" above, 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
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
(c) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act, (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in this 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 bona fide
offering thereof.
II-3
<PAGE> 20
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 Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Norwood, Commonwealth of Massachusetts, on this 19th
day of July, 1996.
ANALOG DEVICES, INC.
By: /S/ RAY STATA
-------------------------------
Ray Stata
Chairman of the Board and
Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of Analog Devices, Inc.,
hereby severally constitute and appoint Ray Stata, Jerald G. Fishman and Joseph
E. McDonough, and each of them singly, our true and lawful attorneys with full
power to them, and each of them singly, to sign for us and in our names, in the
capacities indicated below, the Registration Statement filed herewith, and any
and all amendments (including post-effective amendments) to said Registration
Statement (or any other Registration Statement for the same offering that is to
be effective upon filing pursuant to Rule 462(b) under the Securities Act of
1933) and generally to do all such things in our names and behalf in our
capacities as officers and directors to enable Analog Devices, Inc. to comply
with the Securities Act of 1933, and all requirements of the Securities and
Exchange Commission, hereby ratifying and confirming our signatures as they may
be signed by our said attorneys, or any of them, to any such Registration
Statement and any and all amendments thereto.
Witness our hands and common seal on the date set forth below.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
(i) Principal Executive Officers )
)
/S/ RAY STATA Chairman of the Board, Chief )
- ------------------------ Executive Officer and Director )
RAY STATA )
)
/S/ JERALD G. FISHMAN President, Chief Operating )
- ------------------------ Officer and Director )
JERALD G. FISHMAN )
)
(ii) Principal Financial Officer and Principal Accounting Officer )
)
/S/ JOSEPH E. MCDONOUGH Vice President-Finance and )
- ------------------------ Chief Financial Officer )
JOSEPH E. MCDONOUGH )
</TABLE>
II-4
<PAGE> 21
<TABLE>
<S> <C>
(iii) Board of Directors )July 19, 1996
)
/S/ JOHN L. DOYLE Director )
- ------------------------ )
JOHN L. DOYLE )
)
/S/ SAMUEL H. FULLER Director )
- ------------------------ )
SAMUEL H. FULLER )
)
/S/ PHILIP L. LOWE Director )
- ------------------------ )
PHILIP L. LOWE )
)
/S/ GORDON C. MCKEAGUE Director )
- ------------------------ )
GORDON C. MCKEAGUE )
)
/S/ JOEL MOSES Director )
- ------------------------ )
JOEL MOSES )
)
/S/ LESTER C. THUROW Director )
- ------------------------ )
LESTER C. THUROW
</TABLE>
II-5
<PAGE> 22
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<S> <C>
4.01 Restated Articles of Organization of the Registrant, as amended
(incorporated herein by reference to the Registrant's Form S-8, dated
as of May 30, 1996).
4.02 By-Laws of the Registrant, as amended (incorporated herein by reference
to the Registrant's Form 10-K for the fiscal year ended October 31,
1992).
4.03 Rights Agreement, as amended, between the Registrant and The First
National Bank of Boston, as Rights Agent (incorporated herein by
reference to a Form 8 filed on June 27, 1989 amending the Registration
Statement on Form 8-A relating to Common Stock Purchase Rights).
4.04 Warrant Agreement dated as of August 8, 1990 between Analog Devices,
Inc. and Bourns, Inc. as amended by the Letter Agreement dated July 17,
1996.
5.01 Opinion of Hale and Dorr.
23.01 Consent of Hale and Dorr (included in Exhibit 5.01).
23.02 Consent of Ernst & Young LLP.
24.01 Powers of Attorney (included on page II-4).
</TABLE>
<PAGE> 1
EXHIBIT 4.04
WARRANT AGREEMENT
BETWEEN
ANALOG DEVICES, INC.
and
BOURNS, INC.
Dated as of August 8, 1990
<PAGE> 2
TABLE OF CONTENTS*
<TABLE>
<CAPTION>
Page
<S> <C>
PARTIES............................................... 1
RECITALS.............................................. 1
SECTION 1. Warrant Certificates.......................... 1
SECTION 2. Execution of Warrant Certificates............. 1
SECTION 3. Registration.................................. 1
SECTION 4. Registration of Transfers and Exchanges....... 2
SECTION 5. Warrants; Exercise of Warrants................ 3
SECTION 6. Payment of Taxes.............................. 4
SECTION 7. Mutilated or Missing Warrant Certificates..... 4
SECTION 8. Reservation of Warrant Shares................. 5
SECTION 9. Obtaining Stock Exchange Listings............. 6
SECTION 10. Adjustment of Exercise Price and Number
of Warrant Shares Issuable................. 6
(a) Adjustment for Change in Capital Stock........ 6
(b) Adjustment for Rights Issue................... 7
(c) Adjustment for Other Distributions............ 8
(d) Current Market Price.......................... 9
(e) When De Minimis Adjustment May Be
Deferred.................................... 9
(f) When No Adjustment Required................... 9
(g) Other Events Affecting Common Stock........... 10
(h) Notice of Adjustment.......................... 10
(i) Voluntary Reduction........................... 10
(j) Reorganization of the Company................. 10
(k) Company Determination Final................... 11
(l) When Issuance or Payment May be Deferred...... 11
(m) Adjustment in Number of Shares................ 11
(n) Form of Warrants.............................. 12
</TABLE>
----------------------
* This Table of Contents does not constitute a part of this Agreement
or have any bearing upon the interpretation of any of its terms or
provisions.
-i-
<PAGE> 3
<TABLE>
<S> <C>
SECTION 11. Fractional Interests.......................... 12
SECTION 12. Notices to Warrant Holders.................... 12
SECTION 13. Registration Rights........................... 14
(a) Required Registration..................... 14
(b) Registration Procedures................... 15
(c) Expenses.................................. 17
(d) Indemnification and Contribution.......... 18
SECTION 14. Notices to Company and Warrant Holder......... 21
SECTION 15. Supplements and Amendments.................... 21
SECTION 16. Successors.................................... 21
SECTION 17. Termination................................... 21
SECTION 18. Governing Law................................. 21
SECTION 19. Benefits of This Agreement.................... 22
SECTION 20. Counterparts.................................. 22
SECTION 21. Severability.................................. 22
Signatures & Seal......................................... 23
EXHIBIT A................................................. A-1
</TABLE>
-ii-
<PAGE> 4
This Warrant Agreement, dated as of August 8, 1990, is by and between
ANALOG DEVICES, INC., a Massachusetts corporation (the "Company"), and BOURNS,
INC., a California corporation ("Bourns").
WHEREAS, the Company proposes to issue to Bourns, or its designee,
Common Stock purchase Warrants, as hereinafter described (the "Warrants"), to
purchase up to an aggregate of 1,000,000 shares of Common Stock, par value $.16
2/3 per share (the "Common Stock"), of the Company (the Common Stock issuable on
exercise of the Warrants being referred to herein as the "Warrant Shares"),
pursuant to a Stock Purchase Agreement of even date herewith, which provides,
upon the terms and subject to the conditions thereof, for the acquisition by the
Company of 8,344 shares of common stock of Precision Monolithics, Inc., a
Delaware corporation, owned by Bourns.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereto agree as follows:
SECTION 1. Warrant Certificates. The certificates evidencing the
Warrants (the "Warrant Certificates") to be delivered pursuant to this Agreement
shall be in registered form only and shall be substantially in the form set
forth in Exhibit A attached hereto.
SECTION 2. Execution of Warrant Certificates. Warrant Certificates
shall be signed on behalf of the Company by its Chairman of the Board or its
President or a Vice President and by its Clerk or an Assistant Clerk under its
corporate seal.
In case any officer of the Company who shall have signed any of the
Warrant Certificates shall cease to be such officer before the Warrant
Certificates so signed shall have been disposed of by the Company, such Warrant
Certificates nevertheless may be delivered or disposed of as though such person
had not ceased to be such officer of the Company; and any Warrant Certificate
may be signed on behalf of the Company by any person who, at the actual date of
the execution of such Warrant Certificate, shall be a proper officer of the
Company to sign such Warrant Certificate, although at the date of the execution
of this Warrant Agreement any such person was not such officer.
SECTION 3. Registration. The Company shall number and register the
Warrant Certificates in a register as they are issued. The Company may deem and
treat the registered holder(s) of the Warrant Certificates as the absolute
owner(s) thereof (notwithstanding any notation of ownership or other writing
-1-
<PAGE> 5
thereon made by anyone), for all purposes, and shall not be affected by any
notice to the contrary.
SECTION 4. Registration of Transfers and Exchanges. The Company shall
from time to time register the transfer of any outstanding Warrant Certificates
in a Warrant register to be maintained by the company upon surrender thereof
accompanied by a written instrument or instruments of transfer in form
satisfactory to the Company, duly executed by the registered holder or holders
thereof or by the duly appointed legal representative thereof or by a duly
authorized attorney. Upon any such registration of transfer, a new Warrant
Certificate shall be issued to the transferee(s) and the surrender Warrant
Certificate shall be cancelled and disposed of by the Company.
The Warrant holders agree that prior to any proposed transfer of the
Warrants or of the Warrant Shares, if such transfer is not made pursuant to an
effective Registration Statement under the Securities Act of 1933, as amended
(the "Act"), or an opinion of counsel, reasonably satisfactory in form and
substance to the Company, that the Warrants or Warrant Shares may be sold
publicly with registration under the Act, the Warrant holder will, if registered
by the Company, deliver to the Company:
(1) an investment covenant reasonably satisfactory to
the Company signed by the proposed transferee;
(2) an agreement by such transferee to the impression
of the restrictive investment legend set forth below on the
Warrant or the Warrant Shares;
(3) an agreement by such transferee that the Company may
place a notation in the stock books of the Company or a "stop
transfer order" with any transfer agent or registrar with respect
to the Warrant Shares; and
(4) an agreement by such transferee to be bound by the
provisions of this Section 4 relating to the transfer of such
Warrant or Warrant Shares.
The Warrant holders agree that each certificate representing Warrants
or Warrant Shares will bear the following legend:
"THE SECURITIES EVIDENCED OR CONSTITUTED
HEREBY HAVE BEEN ACQUIRED FOR INVESTMENT AND
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED. SUCH SECURITIES MAY
NOT BE SOLD, TRANSFERRED, PLEDGED OR
HYPOTHECATED UNLESS THE REGISTRATION
-2-
<PAGE> 6
PROVISIONS OF SAID ACT HAVE BEEN COMPLIED WITH
OR UNLESS THE COMPANY HAS RECEIVED AN OPINION
OF COUNSEL REASONABLY SATISFACTORY TO THE
COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED."
Warrant Certificate may be exchanged at the option of the holder(s)
thereof, when surrendered to the Company at its office for another Warrant
Certificate or other Warrant Certificates of like tenor and representing in the
aggregate a like number of Warrants. Warrant Certificates surrendered for
exchange shall be cancelled and disposed of by the Company.
SECTION 5. Warrants; Exercise of Warrants. Subject to the terms of this
Agreement, each Warrant holder shall have the right, which may be exercised
commencing upon the delivery of such Warrant and until 5:00 p.m., New York City
time on August 7, 1997 to receive from the Company the number of fully paid and
nonassessable Warrant Shares which the holder may at the time be entitled to
receive on exercise of such Warrants and payment of the exercise price (the
"Exercise Price") which is set forth in the form of Warrant Certificate attached
hereto as Exhibit A as adjusted as herein provided. Each Warrant not exercised
prior to 5:00 p.m., New York City time, on August 7, 1977 shall become void and
all rights thereunder and all rights in respect thereof under this agreement
shall cease as of such time. No adjustments as to dividends will be made upon
exercise of the Warrants.
A Warrant may be exercised upon surrender to the Company at its office
designated for such purpose (the address of which is set forth in Section 14
hereof) of the certificate or certificates evidencing the Warrants to be
exercised with the form of election to purchase on the reverse thereof duly
completed and signed, which signature shall be guaranteed by a bank or trust
company having an office or correspondent in the United States or a broker or
dealer which is a member of a registered securities exchange or the National
Association of Securities Dealers, Inc., and upon payment to the Company of the
Exercise Price, then in effect, for the number of Warrant Shares in respect of
which such Warrants are then exercised. Payment of the aggregate exercise Price
shall be made in cash or wire transfer in immediately available federal funds to
the order of the Company.
Subject to the provisions of Section 6 hereof, upon such surrender of
Warrants and payment of the Exercise Price the Company shall issue and cause to
be delivered with all reasonable dispatch to or upon the written order of the
holder and in such name or names as the Warrant holder may designate, a
certificate or certificates for the number of full Warrant Shares issuable
-3-
<PAGE> 7
upon the exercise of such Warrants; provided, however, that if any
publicly-announced consolidation, merger or lease or sale of assets is proposed
to be effected by the Company as described in subsection (j) of Section 10
hereof, or a tender offer or an exchange offer for shares of Common Stock of the
Company shall be outstanding, upon such surrender of Warrants and payment of the
Exercise Price as aforesaid, the Company shall, as soon as possible, but in any
event not later than two business days thereafter, issue and cause to be
delivered the full number of Warrant Shares issuable upon the exercise of such
Warrants in the manner described in this sentence. Such certificate or
certificates shall be deemed to have been issued and any person so designated to
be named therein shall be deemed to have become a holder of record of such
Warrant Shares as of the date of the surrender of such Warrants and payment of
the Exercise Price.
The Warrants shall be exercisable, at the election of the holders
thereof, either in full or from time to time in part and, in the event that a
certificate evidencing Warrants is exercised in respect of fewer than all of the
Warrant Shares issuable on such exercise at any time prior to the date of
expiration of the Warrants, a new certificate evidencing the remaining warrant
or Warrants will be issued and delivered pursuant to the provisions of this
Section and of Section 2 hereof.
All Warrant Certificates surrendered upon exercise of Warrants shall be
cancelled and disposed of by the Company. The Company shall keep copies of this
Agreement and any notices given or received hereunder available for inspection
by the holders during normal business hours at its office.
SECTION 6. Payment of Taxes. The Company will pay all documentary stamp
taxes attributable to the initial issuance of Warrant Shares upon the exercise
of Warrants; provided, however, that the Company shall not be required to pay
any tax or taxes which may be payable in respect of any transfer involved in the
issue of any Warrant Certificates or any certificates for Warrant Shares in a
name other than that of the registered holder of a Warrant Certificate
surrendered upon the exercise of a Warrant, and the Company shall not be
required to issue or deliver such Warrant Certificates unless or until the
person or persons requesting the issuance thereof shall have paid to the Company
the amount of such tax or shall have established to the reasonable satisfaction
of the Company that such tax has been paid.
SECTION 7. Mutilated or Missing Warrant Certificates. In case any of
the Warrant Certificates shall be Mutilated, lost, stolen or destroyed, the
Company may in its discretion issue, in exchange and substitution for and upon
cancellation of the
-4-
<PAGE> 8
mutilated Warrant Certificate, or in lieu of and substitution for the Warrant
Certificate lost, stolen or destroyed, a new Warrant Certificate of like tenor
and representing an equivalent number of Warrants, but only upon receipt of
evidence reasonably satisfactory to the Company of such loss, theft or
destruction of such Warrant Certificate and indemnity, if requested, also
reasonably satisfactory to it. Applicants for such substitute Warrant
Certificates shall also comply with such other reasonable regulations and pay
such other reasonable charges as the Company may prescribe.
SECTION 8. Reservation of Warrant Shares. The Company will at all times
reserve and keep available, free from preemptive rights, out of the aggregate of
its authorized but unissued Common Stock or its authorized and issued Common
Stock held in its treasury, for the purpose of enabling it to satisfy any
obligation to issue Warrant Shares upon exercise of Warrants, the maximum number
of shares of Common Stock which may then be deliverable upon the exercise of all
outstanding Warrants. In case of any adjustment made pursuant to Section 10, the
Company shall reserve and keep available, free from preemptive rights, such
other securities, if any, sufficient to provide for the exercise of the right of
purchase represented by the outstanding Warrants.
The Company or the transfer agent for the Common Stock and every
subsequent transfer agent for any shares of the Company's capital stock issuable
upon the exercise of any of the rights of purchase aforesaid (collectively, the
"Transfer Agent") will be irrevocably authorized and directed at all times to
reserve such number of authorized shares as shall be required for such purpose.
The Company will keep a copy of this Agreement on file with the Transfer Agent
and with every subsequent transfer agent for any shares of the Company's capital
stock issuable upon the exercise of the rights of purchase represented by the
Warrants. The Company will furnish such Transfer Agent a copy of all notices of
adjustments and certificates related thereto, transmitted to each holder
pursuant to Section 12 hereof.
Before taking any action which would cause an adjustment pursuant to
Section 10 hereof to reduce the Exercise Price below the then par value (if any)
of the Warrant Shares, the Company will take any corporate action which may, in
the opinion of its counsel (which may be counsel employed by the Company), be
necessary in order that the Company may validly and legally issue fully paid and
nonassessable Warrant Shares at the Exercise Price as so adjusted.
The Company covenants that all Warrant Shares which may be issued upon
exercise of Warrants will, upon issue, be validly
-5-
<PAGE> 9
authorized and issued, fully paid, nonassessable, free of preemptive rights and
free from all taxes, liens, charges and security interests with respect to the
issue thereof.
SECTION 9. Obtaining Stock Exchange Listings. The Company will from
time to time take all action which may be necessary so that the Warrant Shares,
immediately upon their issuance upon the exercise of Warrants, will be listed on
the principal securities exchanges and markets within the United States of
America, if any, on which other shares of Common Stock are then listed.
SECTION 10. Adjustment of Exercise Price and Number of Warrant Shares
Issuable. The Exercise Price and the number of Warrant Shares issuable upon the
exercise of each Warrant are subject to adjustment from time to time upon the
occurrence of the events enumerated in this Section 10. For purposes of this
Section 10, "Common Stock" means shares now or hereafter authorized of any class
of common stock of the Company and any other stock of the Company, however
designated, that has the right (subject to any prior rights of any class or
series of preferred stock) to participate in any distribution of the assets or
earnings of the Company without limit as to per share amount.
(a) Adjustment for Change in Capital Stock.
If the Company:
(1) pays a dividend or makes a distribution on its
Common Stock in shares of its Common Stock;
(2) subdivides its outstanding shares of Common
Stock into a greater number of shares;
(3) combines its outstanding shares of Common
Stock into a smaller number of shares; or
(4) issues by reclassification of its Common Stock
any shares of its capital stock;
then the Exercise Price in effect immediately prior to such action shall be
proportionately adjusted so that the holder of any Warrant thereafter exercised
may receive the aggregate number and kind of shares of capital stock of the
Company which he would have owned immediately following such action if such
Warrant had been exercised immediately prior to such action.
The adjustment shall become effective immediately after the record date
in the case of a stock dividend and immediately after
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<PAGE> 10
the effective date in the case of a subdivision, combination or
reclassification.
If, immediately after an adjustment a holder of a Warrant may receive,
upon exercise thereof, shares of two or more classes of capital stock of the
Company, the Company shall determine the allocation of the adjusted Exercise
Price between the classes of capital stock. After such allocation, the exercise
privilege and the Exercise Price of each class of capital stock shall thereafter
be subject to adjustment on terms comparable to those applicable to Common Stock
in this Section.
Such adjustment shall be made successively whenever any event listed
above shall occur.
(b) Adjustments for Rights Issue.
If the Company distributes any rights, options or warrants to all
holders of its Common Stock entitling them for a period expiring within 45 days
after the record date mentioned below to purchase shares of Common Stock at a
price per share less than the current market price per share on that record date
(other than pursuant to a dividend or interest reinvestment plan of the Company
or any other Common Stock purchase plan providing for the reinvestment of
dividends or interest payable on securities of the Company and/or the investment
of periodic optional payments or any employee benefit or stock option plan or
similar plan), the Exercise Price shall be adjusted in accordance with the
formula:
O + N x P
-----
E' = E x M
-----------
O + N
where:
E' = the adjusted Exercise Price.
E = the current Exercise Price.
O = the number of shares of Common Stock outstanding on the
record date.
N = the number of additional shares of Common Stock offered.
P = the offering price per share of the additional shares.
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<PAGE> 11
M = the current market price per share of Common Stock on the
record date.
The adjustment shall be made successively whenever any such rights,
option or warrants are issued and shall become effective immediately after the
record date for the determination of stockholders entitled to receive the
rights, options or warrants. If at the end of the period during which such
rights, options or warrants are exercisable, not all rights, options or warrants
shall have been exercised, the Exercise Price shall be immediately readjusted to
what it would have been if "N" in the above formula had been the number of
shares actually issued.
(c) Adjustment for Other Distributions.
If the Company distributes to all holders of its Common Stock any of
its assets, debt securities, preferred stock or any rights or warrants to
purchase debt securities, preferred stock, assets or other securities of the
Company, except as provided below, the Exercise price shall be adjusted in
accordance with the formula:
E' = E x M - F
-----
M
where:
E' = the adjusted Exercise Price.
E = the current Exercise Price.
M = the current market price per share of Common Stock on the
record date mentioned below.
F = the fair market value on the record date of the assets,
securities, rights or warrants applicable to one share of
Common Stock. The Board of Directors shall determine the fair
market value.
The adjustment shall be made successively whenever any such
distribution is made and shall become effective immediately after the record
date for the determination of stockholders entitled to receive the distribution;
provided, however, that upon the expiration or other termination of such rights
or warrants, if any thereof shall not have been exercised, the Exercise Price
then in effect shall be readjusted and thereafter be the price it would have
been had adjustment of the Exercise Price been made without regard for the issue
of such rights or warrants not exercised.
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<PAGE> 12
This subsection (c) does not apply to (i) any cash dividends, cash
distributions, dividends or distributions payable in stock for which adjustment
is made pursuant to subsection (a) of this Section 10 or (ii) rights, options or
warrants referred to in subsection (b) of this Section 10.
(d) Current Market Price.
In subsections (b) and (c) of this Section 10 the current market price
per share of Common Stock on any date is the average of the Quoted Prices of the
Common Stock for 30 consecutive trading days commencing 45 trading days before
the date in question. The "Quoted Price" of the Common Stock is the last
reported sales price of the Common Stock as reported on the New York Stock
Exchange Consolidated Tape, or if the Common Stock is then listed only on
another securities exchange, the last reported sales price of the Common Stock
on such exchange which shall be for consolidated trading if applicable to such
exchange, or if not so listed, as reported by NASDAQ, National Market System, or
if neither so reported or listed, the last reported bid price of the Common
Stock. In the absence of one or more such quotations, the Board of Directors of
the Company shall determine the current market price on the basis of such
quotations as it in good faith considers appropriate.
(e) When De Minimis Adjustment May Be Deferred.
No adjustment in the Exercise Price need be made unless the adjustment
would require an increase or decrease of at least 1% in the Exercise Price. Any
adjustments that are not made shall be carried forward and taken into account in
any subsequent adjustment.
All calculations under this Section shall be made to the nearest cent
or to the nearest 1/100th of a share, as the case may be.
(f) When No Adjustment Required.
No adjustment need be made for rights to purchase Common Stock pursuant
to a Company plan for reinvestment of dividends or interest.
No adjustment need be made for a change in the par value or no par
value of the Common Stock.
To the extent the Warrants become convertible into cash, no adjustment
need be made thereafter as to the amount of cash into
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<PAGE> 13
which such Warrants are exercisable. Interest will not accrue on the cash.
(g) Other Events Affecting Common Stock.
In case at any time or from time to time the Company shall take any
action in respect of its Common Stock, other than any action for which an
adjustment is made pursuant in subsections (a), (b) and (c) of this Section 10,
then, unless such action will not have a material adverse effect upon the rights
of the holder of a Warrant, the number of shares of Common Stock for which the
Warrant may be exercised and/or the Exercise Price shall be adjusted in such
equitable manner under the circumstances as the Board of Directors of the
Company reasonably determines.
(h) Notice of Adjustment.
Whenever the Exercise Price is adjusted, the Company shall provide the
notices required by Section 13 hereof.
(i) Voluntary Reduction.
The Company from time to time may reduce the Exercise Price by any
amount for any period of time if the period is at least 20 days and if the
reduction is irrevocable during the period; provided, however, that in no event
may the Exercise Price be less than the par value of a share of Common Stock.
Whenever the Exercise Price is reduced, the Company shall mail to
Warrant holders a notice of the reduction. The Company shall mail the notice at
least 15 days before the date the reduced Exercise Price takes effect. The
notice shall state the reduced Exercise Price and the period it will be in
effect.
A reduction of the Exercise Price does not change or adjust the
Exercise Price otherwise in effect for purposes of subsections (a), (b) or (c)
of this Section 10.
(j) Reorganization of the Company.
If the Company consolidates or merges with or into, or transfers or
leases all or substantially all its assets to, any person, upon consummation of
such transaction the Warrants shall automatically become exercisable for the
kind and amount of securities, cash or other assets which the holder of a
Warrant would have owned immediately after the consolidation, merger, transfer
or lease if the holder had exercised the Warrant immediately before the
effective date of the transaction. Concurrently with the consummation of such
transaction, the
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<PAGE> 14
corporation formed by or surviving any such consolidation or merger if other
than the Company, or the person to which such sale or conveyance shall have been
made, shall mail to Warrant holders a notice confirming its obligations
hereunder pursuant to the preceding sentence.
If this subsection (j) applies, subsections (a), (b) and (c) of this
Section 10 do not apply.
(k) Company Determination Final.
Any determination that the Company or the Board of Directors must make
pursuant to subsections (a), (b), (c), (d), (f) and (g) of this Section 10 may
be challenged in good faith by the holders of Warrants exercisable for more than
50% of the aggregate number of shares of Common Stock then purchasable upon
exercise of all Warrants then outstanding (the "Majority Holders"), and any
dispute shall be resolved by an investment banking firm of recognized national
standing jointly selected by the Company and such Majority Holders.
(l) When Issuance or Payment May Be Deferred.
In any case in which this Section 10 shall require that an adjustment
in the Exercise Price be made effective as of a record date for a specified
event, the Company may elect to defer until the occurrence of such event (i)
issuing to the holder of any Warrant exercised after such record date the
Warrant Shares and other capital stock of the Company, if any, issuable upon
such exercise over and above the Warrant Shares and other capital stock of the
Company, if any, issuable upon such exercise on the basis of the Exercises Price
and (ii) paying to such holder any amount in cash in lieu of a fractional share
pursuant to Section 11; provided, however, that the Company shall deliver to
such holder a due bill or other appropriate instrument evidencing such holder's
right to receive such additional Warrant Shares, other capital stock and cash
upon the occurrence of the event requiring such adjustment.
(m) Adjustment in Number of Shares.
Upon each adjustment of the Exercise Price pursuant to this Section 10,
each Warrant outstanding prior to the making of the adjustment in the Exercise
Price shall thereafter evidence the right to receive upon payment of the
adjusted Exercise Price that number of shares of Common Stock (calculated to the
nearest hundredth) obtained from the following formula:
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<PAGE> 15
N'= N x E
-
E'
where:
N' = the adjusted number of Warrant Shares issuable upon
exercise of a Warrant by payment of the adjusted Exercise
Price.
N = the number of Warrant Shares previously issuable upon
exercise of a Warrant by payment of the Exercise Price
prior to adjustment.
E' = the adjusted Exercise Price.
E - the exercise Price prior to adjustment.
(n) Form of Warrants.
Irrespective of any adjustments in the Exercise Price or the number or
kind of shares purchasable upon the exercise of the Warrants, Warrants
theretofore or thereafter issued may continue to express the same price and
number and kind of shares as are stated in the Warrants initially issuable
pursuant to this Agreement.
SECTION 11. Fractional Interests. The Company shall not be required to
issue fractional Warrant Shares on the exercise of Warrants. If more than one
Warrant shall be presented for exercise in full at the same time by the same
holder, the number of full Warrant Shares which shall be issuable upon the
exercise thereof shall be computed on the basis of the aggregate number of
Warrant Shares purchasable on exercise of the Warrants so presented. If any
fraction of a Warrant Share would, except for the provisions of this Section 11,
be issuable on the exercise of any Warrants (or specified portion thereof), the
Company shall pay an amount in cash equal to the Quoted Price of the Common
Stock on the day immediately preceding the date the Warrant is presented for
exercise, multiplied by such fraction.
SECTION 12. Notices to Warrant Holders. Upon any adjustment of the
Exercise Price pursuant to Section 10, the Company shall promptly thereafter (i)
cause to be filed with the Secretary of the Company a certificate of a firm of
independent public accountants of recognized standing selected by the Board of
Directors of the Company (who may be the regular auditors of the Company)
setting forth the Exercise Price after such adjustment and setting forth in
reasonable detail the method of calculation and the facts upon which such
calculations are based and setting
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<PAGE> 16
forth the number of Warrant Shares (or portion thereof) issuable after such
adjustment in the Exercise Price, upon exercise of a Warrant and payment of the
adjusted Exercise Price, and (ii) cause to be given to each of the registered
holders of the Warrant Certificates at his address appearing on the Warrant
register written notice of such adjustments by first-class mail, postage
prepaid. Where appropriate, such notice may be given in advance and included as
a part of the notice required to be mailed under the other provisions of this
Section 12.
In case:
(a) the Company shall authorized the issuance to all holders
of shares of Common Stock of rights, options or warrants to
subscribe for or purchase shares of Common Stock or of any other
subscription rights or warrants; or
(b) the Company shall authorize the distribution to all
holders of shares of Common Stock of securities, evidences of its
indebtedness or assets (other than cash dividends or cash
distributions payable out of consolidated earnings or earned
surplus or dividends payable in shares of Common Stock or
distributions referred to in subsection (a) of Section 10 hereof);
or
(c) of any consolidation or merger to which the Company is a
party and for which approval of any shareholders of the Company is
required, or of the conveyance or transfer of the properties and
assets of the Company substantially as an entirety, or of any
reclassification or change of Common Stock issuable upon exercise
of the Warrants (other than a change in par value, or from par
value to no par value, or from no par value to par value, or as a
result of a subdivision or combination), or a tender offer or
exchange offer for shares of Common Stock: or
(d) the Company takes any action referred to in
subsection (i) of Section 10;
(e) of the voluntary or involuntary dissolution,
liquidation or winding up of the Company; or
(f) the Company proposed to take any action (other than
actions of the character described in Section 10(a)) which would
require an adjustment of the Exercise Price Pursuant to Section
10;
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<PAGE> 17
then the Company shall cause to be given to each of the registered holders of
the Warrant Certificates at his address appearing on the Warrant register, at
least 20 days (or 10 days in any case specified in clauses (a), (b) or (c)
above) prior to the applicable record date hereinafter specified, or promptly in
the case of events for which there is no record date, by first-class mail,
postage prepaid, a written notice stating (i) the date as of which the holders
of record of shares of Common Stock to be entitled to receive any such rights,
options, warrants or distribution are to be determined, or (ii) the initial
expiration date set forth in any tender offer or exchange offer for shares of
Common Stock, or (iii) the date on which any such consolidation, merger,
conveyance, transfer, lease, dissolution, liquidation or winding up is expect to
become effective or consummated, and the date as of which it is expected that
holder of record of shares of Common Stock shall be entitled to exchange such
shares for securities or other property, if any, deliverable upon such
reclassification, consolidation, merger, conveyance, transfer, lease,
dissolution, liquidation or winding up. The failure to give the notice required
by this Section 12 or any defect therein shall not affect the legality or
validity of any distribution, right, option, warrant, consolidation, merger,
conveyance, transfer, lease, dissolution, liquidation or winding up, or the vote
upon any action.
Nothing contained in this Agreement or in any of the Warrant
Certificates shall be construed as conferring upon the holders thereof the right
to vote or to consent or to receive notice as shareholders in respect of the
meetings of shareholders or the election of Directors of the Company or any
other matter, or any rights whatsoever as shareholders of the Company.
SECTION 13. Registration Rights.
(a) Required Registration. After receipt of a written request from the
Holders of Warrants and/or Warrant Shares representing at least an aggregate of
25% of the total of (i) all Warrant Shares then subject to purchase upon
exercise of all Warrants and (ii) all Warrant Shares then outstanding and which
are Restricted Securities (as hereinafter defined), requesting that the Company
effect the registration of Warrant Shares issuable upon the exercise of such
holder's Warrants or of any of such holder's Warrant Shares under the Securities
Act and specifying the intended method or methods of disposition thereof, the
Company shall promptly notify all holders of Warrants and Warrant Shares in
writing of the receipt of such request and each such holder may elect (by
written notice sent to the Company within 15 Business Days from the date of such
holder's receipt of the aforementioned Company's notice) to have its Warrant
Shares (but not its Warrants) included in such registration thereof
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<PAGE> 18
pursuant to this paragraph (a). Thereupon the Company shall, as expeditiously as
is possible, use its best efforts to effect the registration under the
Securities Act of all Warrant Shares which the Company has been so requested to
register by such holders for sale, all to the extent required to permit the
disposition (in accordance with the intended method or methods thereof, as
aforesaid) of the Warrant Shares so registered; provided, however, that the
Company shall not be required to effect more than two registrations of Warrant
Shares pursuant to this Section 13(a) and provided further, that the Company
shall not be required to effect any registration under the Section 13(a) if it
is not then eligible to effect such registration on Form S-3 (or its successor)
under the Securities Act.
If at the time of any request to register Warrant Shares under this
Section 13(a), the Company is engaged or has fixed plans to engage within 30
days of the time of the request in a registered public offering or is engaged in
any other activity which, in good faith determination of the Company's Board of
Directors, would be adversely affected by the requested registration to the
material detriment of the Company, the Company may at its option direct that
such request be delayed for a period not in excess of six months from the
effective date of such offering or the date of commencement of such other
material activity, as the case may be, such right to delay a request to be
exercised by the Company not more than once in any two-year period.
"Restricted Securities" are all Warrant Shares except those which have
been effectively registered under and disposed of pursuant to a registration
statement under the Securities Act of 1933 or which have been sold to the public
pursuant to Rule 144 under said Act.
(b) Registration Procedures. If the Company is required by the
provisions of this Section 13 to effect the registration of any of its
securities under the Securities Act, the Company will, as expeditiously as
possible:
(i) prepare and file with the Commission a Registration
Statement with respect to such securities and use its best
efforts to cause such Registration Statement to become and
remain effective for a period of time required for the
disposition of such securities by the holders thereof, but
not to exceed 90 days;
(ii) prepare and file with the Commission such amendments
and supplements to such Registration Statement and the
prospectus used in connection
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<PAGE> 19
therewith as may be necessary to keep such Registration
Statement effective and to comply with the provisions of the
Securities Act with respect to the sale or other disposition
of all securities covered by such Registration Statement
until the earlier of such time as all of such securities have
been disposed of in a public offering or the expiration of 90
days;
(iii) furnish to such selling security holders such number
of copies of a summary prospectus or other prospectus,
including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents,
as such selling security holders may reasonably request;
(iv) use its best efforts to register or qualify the
securities covered by such Registration Statement under such
other securities or blue sky laws of such jurisdictions
within the United States and Puerto Rico as each holder of
such securities shall request (provided, however, the Company
shall not be obligated to qualify as a foreign corporation to
do business under the laws of any jurisdiction in which it is
not then qualified or to file any general consent to service
of process), and do such other reasonable acts and things as
may be required of it to enable such holder to consummate the
disposition in such jurisdiction of the securities covered by
such Registration Statement;
(v) if such Warrant Shares are being sold through
underwriters, furnish, at the request of such underwriters,
on the date that such Warrant Shares are delivered to the
underwriters for sale in connection with such Registration
Statement, (A) a letter dated such date, from the independent
certified public accountants of the Company, addressed to
such underwriters and, if such accountants refuse to deliver
such letter to such holders, then to the Company, in form and
substance reasonably satisfactory to such underwriter,
stating that they are independent certified public
accountants within the meaning of the Securities Act and
that, in the opinion of such accountants, the financial
statements and other financial data of the Company included
in the Registration Statement or the prospectus, or any
amendment or Supplement thereto, comply as to form in all
material respects with the applicable accounting requirements
of the Securities Act, and (B) a letter dated such date, from
the Company's counsel, addressed to such underwriters,
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<PAGE> 20
stating that such Registration Statement has become effective
under the Act, and, to the best knowledge of such counsel, no
stop order suspending the effectiveness of such Registration
Statement has been issued.
(vi) use its best efforts to cause such securities to be
listed on each securities exchange on which the Common Stock
is then listed or, if no such securities are then listed, on
such exchange as requested by the holders requesting
registration of Warrant Shares, subject to the reasonable
consent of the Company;
(vii) enter into customary agreements (including an
underwriting agreement in customary form) and take such other
actions as are reasonably required in order to expedite or
facilitate the disposition of such securities; and
(viii) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make
available to its security holders, as soon as reasonably
practicable, but not later than 18 months after the effective
date of the Registration Statement, an earnings statement
covering the period of at least 12 months beginning with the
first full month after the effective date of such
Registration Statement, which earnings statements shall
satisfy the provisions of Section 11(a) of the Securities
Act.
It shall be a condition precedent to the obligation of the Company to
take any action pursuant to this Section 13 in respect of the securities which
are to be registered at the request of any holder of Warrants or Warrant Shares
that such holder shall furnish to the Company such information regarding the
securities held by such holder and the intended method of disposition thereof as
the Company shall reasonably request and as shall be required in connection with
the action taken by the Company.
The holders of Warrants or Warrant Shares shall be permitted to
withdraw all or any part of their Warrant Shares from a registration statement
hereunder at any time prior to the effectiveness thereof.
(c) Expenses. All reasonable expenses incurred in complying with
Section 14, including, without limitation, all registration and filing fees
(including all expenses incident to filing with the NASD), listing application
fees, printing expenses, fees and disbursements of counsel for the Company, and
expenses of complying with the securities or blue sky laws of any
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<PAGE> 21
jurisdictions pursuant to Section 14(c)(iv), shall be paid by the
Company, except that the Company shall not be liable for (i) any fees,
discounts or commissions to any underwriter or any fees or expenses of
counsel for any underwriter in respect of the securities sold by such
holder of Warrant Shares, (ii) any fees and expenses of counsel for the
selling securities holders or (iii) expenses of any special audits
incident to or required by such registration.
(d) Indemnification and Contribution.
(i) In the event of any registration of any of the Warrant
Shares under the Securities Act pursuant to this Section 13, the
Company shall indemnify and hold harmless, to the full extent permitted
by law, each holder of such Warrant Shares, each such holder's
directors and officers, and each other person (including each
underwriter who participated in the offering of such Warrant Shares and
each other person, if any, who controls such holder or such
participating person within the meaning of the Securities Act, against
any losses, claims, damages or liabilities, joint or several, to which
such holder or any such director or officer or participating person or
controlling person may become subject under the Securities Act or any
other statute or at common law, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are
based upon (x) any alleged untrue statement of any material fact
contained, on the effective date thereof, in any Registration Statement
under which such securities were registered under the Securities Act,
any preliminary prospectus or final prospectus contained therein, or
any amendment or supplement thereto, or (y) any alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances under which they were made, and shall reimburse such
holder or such director, officer or participating person or controlling
person for any legal or any other expenses reasonably incurred by such
holder or such director, officer or participating person or controlling
person in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that the Company
shall not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any alleged
untrue statement or alleged omission made in such Registration
Statement, preliminary prospectus, prospectus or amendment or
supplement in reliance upon and in conformity with written information
furnished to the Company by such holder specifically for use therein or
(in the case of any registration pursuant to Section 13(a)) so
furnished for such purposes by any underwriter; and provided further
that the Company shall not be liable in any such case to the extent
that any such loss, claim,
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<PAGE> 22
damage or liability arises out of or is based upon any alleged untrue
statement or alleged omission made in such Registration Statement,
preliminary prospectus or prospectus if such alleged untrue statement
or alleged omission is completely corrected in an amendment or
supplement to such Registration Statement, preliminary prospectus or
prospectus and if, having previously been furnished by or on behalf of
the Company with copies of such corrected amendment or supplement, such
holder thereafter fails to deliver such amendment or supplement prior
to or concurrently with the sale of Warrant Shares to the person
asserting such loss, claim, damage or liability who purchased such
Warrant Shares. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of such holder or
such director, officer or participating person or controlling person,
and shall survive the transfer of such securities by such holder.
(ii) Each holder of any Warrant Shares, by acceptance
thereof, agrees to indemnify and hold harmless the Company, its
directors and officers and each other person, if any, who controls the
Company within the meaning of the Securities Act and each underwriter
against any losses, claims, damages or liabilities, joint or several,
to which the Company or any such director or officer or any such person
or such underwriter may become subject under the Securities Act or any
other statute or at common law, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are
based upon information in writing provided to the Company by such
holder of such Warrant Shares contained, on the effective date thereof,
in any Registration Statement under which securities were registered
under the Securities Act at the request of such holder, any preliminary
prospectus or final prospectus contained therein, or any amendment or
supplement thereto. In no event shall the liability of any selling
holder of Warrant Shares hereunder be greater in amount than the dollar
amount of the proceeds (net of the payment of all expenses) received by
such holder upon the sale of the Warrant Shares giving rise to such
indemnification obligation. The Company shall be entitled to receive
indemnities from underwriters, participating in the distribution to the
same extent as provided above with respect to information so furnished
in writing by such Persons expressly for use in any prospectus or
Registration Statement.
(iii) If the indemnification provided for in this Section 13
from the indemnifying party is unavailable to any indemnified party
hereunder in respect of any losses, claims, damages, liabilities or
expenses referred to therein, then the indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses,
claims, damages,
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<PAGE> 23
liabilities or expenses in such proportion as is appropriate to reflect
the relative fault of the indemnifying party and indemnified parties in
connection with the actions which resulted in such losses, claims,
damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative fault of such indemnifying party
and indemnified parties shall be determined by reference to, among
other things, whether any action in questions, including any untrue or
alleged untrue statement of a material fact or omission or alleged
omission to state a material fact, has been made by, or relates to
information supplied by, such indemnifying party or indemnified
parties, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action. The
amount paid or payable by a party as a result of the losses, claims,
damages, liabilities and expenses referred to above shall be deemed to
include any legal or other fees or expenses reasonably incurred by such
party in connection with any investigation or proceeding.
The parties hereto agree that it would not be just and equitable
if contribution pursuant to this Section 14(d)(iii) were determined by
pro rata allocation or by any other method of allocation which does not
take account of the equitable considerations referred to in the
immediately preceding paragraph. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation.
(iv) Each party entitled to indemnification under this
Section 13 (the "Indemnified Party") shall give notice to the party
required to provide indemnification (the "Indemnifying Party") promptly
after such Indemnified Party has actual knowledge of any claim as to
which indemnity may be sought (provided, that the failure to give such
notice shall not affect rights to indemnification hereunder except to
the extent of any damage or liability caused by or arising out of such
failure), and shall permit the Indemnifying Party to assume the defense
and settlement of any such claim or any litigation resulting therefrom;
provided, that counsel for the Indemnifying Party, who shall conduct
the defense and settlement of such claim or litigation, shall be
approved by the Indemnified party (whose approval shall not be
unreasonably withheld). The Indemnified Party may participate in such
defense at such party's expense. No Indemnifying party, in the defense
of any such claim or litigation shall, except with the consent of each
Indemnified Party, consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such Indemnified Party of a
release from all liability in respect of such claim or litigation, and
no Indemnified Party
-20-
<PAGE> 24
shall consent to entry of any judgment or settle such claim or
litigation without the prior written consent of the Indemnifying Party.
SECTION 14. Notices to Company and Warrant Holder. Any notice or
demand authorized by this Agreement to be given or made by the
registered holder of any Warrant Certificate to or on the Company shall
be sufficiently given or made when and if deposited in the mail, first
class or registered, postage prepaid, addressed to the office of the
Company expressly designated by the Company at its office for purposes
of this Agreement (until the Warrant holders are otherwise notified in
accordance with this Section by the Company), as follows:
Analog Devices, Inc.
One Technology Way
Norwood, Massachusetts 02062
Attention: Ray Stata, President
Any notice pursuant to this Agreement to be given by the Company
to the registered holder(s) of any Warrant Certificate shall be
sufficiently given when and if deposited in the mail, first-class or
registered, postage prepaid, addressed (until the Company is otherwise
notified in accordance with this Section by such holder) to such holder
at the address appearing on the Warrant register of the Company.
SECTION 15. Supplements and Amendments. This Agreement may not be
amended or supplemented without the written consent of the Company and
the holders of at least a majority of the Warrants. Any amendment or
supplement that affects the rights granted to holders of Warrant Shares
must be consented to in writing by holders of at least a majority of
the outstanding Warrant Shares.
SECTION 16. Successors. All the covenants and provisions of this
Agreement by or for the benefit of the Company shall bind and inure to
the benefit of its respective successors and assigns hereunder, and all
of the covenants and provisions of this Agreement by or for the benefit
of the holders of the Warrants shall bind and inure to the benefit of
its respective successors and assigns hereunder.
SECTION 17. Termination. This Agreement shall terminate at
5:00 p.m., New York City time on August 7, 1997.
SECTION 18. Governing Law. This Agreement shall be
construed, interpreted and the rights of the parties determined in
accordance with the laws of the Commonwealth of Massachusetts
except with respect to matters of law concerning the internal
corporate affairs of any corporate entity which is a party to or
-21-
<PAGE> 25
the subject of this Agreement, and as to those matters the law of the
jurisdiction under which the respective entity derives its powers shall
govern.
SECTION 19. Benefits of This Agreement. Nothing in this Agreement
shall be construed to give to any person or corporation other than the
Company and the registered holders of the Warrant Certificates and the
holders of Warrant Shares any legal or equitable right, remedy or claim
under this Agreement; but this Agreement shall be for the sole and
exclusive benefit of the Company and the registered holders of the
Warrant Certificates and the holders of Warrant Shares.
SECTION 20. Counterparts. This Agreement may be executed in any
number of counterparts and each of such counterparts shall for all
purposes be deemed to be an original, and all such counterparts shall
together constitute but one and the same instrument.
SECTION 21. Severability. The provisions of this Agreement are
severable, and in the event that any one or more of the provisions
contained in this Agreement or in any other instrument referred to
herein, shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision of this Agreement
or any other such instrument.
-22-
<PAGE> 26
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed, as of the day and year first above written.
ANALOG DEVICES, INC.
By:/s/
----------------------------------------
Title: Executive Vice President, Finance
Attest:/s/ Mark G. Borden
---------------------
Asst. Clerk
BOURNS, INC.
By:/s/ Larry L. White
----------------------------------------
Title: Executive Vice President
Attest:___________________
Secretary
-23-
<PAGE> 27
EXHIBIT A
[Form of Warrant Certificate]
THE SECURITIES EVIDENCED OR CONSTITUTED HEREBY HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED. SUCH SECURITIES MAY NOT BE SOLD, TRANSFERRED, PLEDGED
OR HYPOTHECATED UNLESS THE REGISTRATION PROVISIONS OF SAID ACT HAVE
BEEN COMPLIED WITH OR UNLESS THE COMPANY HAS RECEIVED AN OPINION OF
COUNSEL REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION
IS NOT REQUIRED.
EXERCISABLE ON OR BEFORE August 7, 1997
No. _____ Warrants
Warrant Certificate
ANALOG DEVICES, INC.
This Warrant Certificate certifies that BOURNS, INC., or
registered assigns, is the registered holder of Warrants expiring
August 7, 1997 (the "Warrants") to purchase Common Stock, par value
$.16 2/3 per share (the "Common Stock"), of ANALOG DEVICES, INC., a
Massachusetts corporation (the "Company"). Each Warrant entitles the
holder upon exercise to receive form the Company on or before 5:00 p.m.
New York City Time on August 7, 1997, one fully paid and nonassessable
share of Common Stock (a "Warrant Share") at the initial exercise price
(the "Exercise Price") of $12 payable in lawful money of the United
States of America upon surrender of this Warrant Certificate and
payment of the Exercise Price at the office of the Company designated
for such purpose, but only subject to the conditions set forth herein
and in the Warrant Agreement referred to below. The Exercise Price and
number of Warrant Shares issuable upon exercise of the Warrants are
subject to adjustment upon the occurrence of certain events set forth
in the Warrant Agreement.
No Warrant may be exercised after 5:00 p.m., New York City Time on
August 7, 1997, and to the extent not exercised by such time such
Warrants shall become void.
The Warrants evidenced by this Warrant Certificate are part of a
duly authorized issue of Warrants expiring August 7, 1997 entitling the
holder on exercise to receiving shares of Common Stock, par value $.16
2/3 per share, of the Company (the "Common Stock"), and are issued or
to be issued pursuant to a Warrant Agreement dated as of August 7, 1990
(the "Warrant Agreement"), duly executed and delivered by the Company,
which
A-1
<PAGE> 28
Warrant Agreement is hereby incorporated by reference in and made a
part of this instrument and is hereby referred to for a description of
the rights, limitation of rights, obligations, duties and immunities
thereunder of the Company and the holders (the words "holders" or
"holder") meaning the registered holders or registered holder of the
Warrants. A copy of the Warrant Agreement may be obtained by the holder
hereof upon written request to the Company.
Warrants may be exercised at any time on or before August 7, 1997.
The holder of Warrants evidenced by this Warrant Certificate may
exercise them by surrendering this Warrant Certificate, with the form
of election to purchase set forth hereon properly completed and
executed, together with payment of the Exercise Price in cash at the
office of the Company designated for such purpose. In the event that
upon any exercise of Warrants evidenced hereby the number of Warrants
exercised shall be less than the total number of Warrants evidenced
hereby, there shall be issued to the holder hereof or his assignee a
new Warrant Certificate evidencing the number of Warrants not
exercised. No adjustment shall be made for any dividends on any Common
Stock issuable upon exercise of this Warrant.
The Warrant Agreement provides that upon the occurrence of certain
events the Exercise Price set forth hereon may, subject to certain
conditions, be adjusted. If the Exercise Price is adjusted, the Warrant
Agreement provides that the number of shares of Common Stock issuable
upon the exercise of each Warrant shall be adjusted. No fractions of a
share of Common Stock will be issued upon the exercise of any Warrant,
but the Company will pay the cash value thereof determined as provides
in the Warrant Agreement.
The holders of the Warrants are entitled to certain registration
rights with respect to the Common Stock purchasable upon exercise
thereof as set forth in the Warrant Agreement.
Warrant Certificates, when surrendered at the office of the
Company by the registered holder thereof in person or by legal
representative or attorney duly authorized in writing, may be
exchanged, in the manner and subject to the limitations provided in the
Warrant Agreement, but without payment of any service charge, for
another Warrant Certificate or Warrant Certificates of like tenor
evidencing in the aggregate a like number of Warrants.
Upon due presentation for registration of transfer of this Warrant
Certificate at the office of the Company a new Warrant Certificate or
Warrant Certificates of like tenor and evidencing in the aggregate a
like number of Warrants shall be issued to the
A-2
<PAGE> 29
transferee(s) in exchange for this Warrant Certificate, subject to the
limitations provided in the Warrant Agreement, without charge except
for any tax or other governmental charge imposed in connection
therewith.
The Company may deem and treat the registered holder(s) thereof as
the absolute owner(s) of this Warrant Certificate (notwithstanding any
notation of ownership or other writing hereon made by anyone), for the
purpose of any exercise hereof, of any distribution to the holder(s)
hereof, and for all other purposes, and the Company shall not be
affected by any notice to the contrary. Neither the Warrants nor this
Warrant Certificate entitles any holder hereof to any rights of a
stockholder of the Company.
IN WITNESS WHEREOF, ANALOG DEVICES, INC. has caused this
Warrant Certificate to be signed by its President and by its
Secretary and has caused its corporate seal to be affixed hereunto
or imprinted hereon.
Dated:
ANALOG DEVICES, INC.
By:__________________
President
By:__________________
Clerk
A-3
<PAGE> 30
[Form of Election to Purchase]
(To Be Executed Upon Exercise Of Warrant)
The undersigned hereby irrevocably elects to exercise the rights,
represented by this Warrant Certificate, to receive _________ shares of
Common Stock and herewith tenders payment for such shares to the order
of ANALOG DEVICES, INC. in the amount of $_________ in accordance with
the terms hereof. The undersigned requests that a certificate for such
shares be registered in the name of _________________, whose address is
____________________ and that such shares be delivered to______________
________________________ whose address is _______________________. If
said number of shares is less than all of the shares of Common Stock
purchasable hereunder, the undersigned requests that a new Warrant
Certificate representing the remaining balance of such shares be
registered in the name of __________________, whose address is
__________________________, and that such Warrant Certificate be
delivered to ___________________, whose address is_______________
________________________________.
Signature:
Date:
Signature Guaranteed:
A-4
<PAGE> 31
[BOURNS LETTERHEAD]
July 17, 1996
Analog Devices, Inc.
One Technology Way
Norwood, Massachusetts 02062
ATTN: President
RE: The Warrant Agreement (the "Warrant Agreement") dated as
of August 8, 1990 between Analog Devices, Inc. (the
"Company") and Bourns, Inc. ("Bourns")
Ladies and Gentlemen:
This letter will confirm our discussions concerning the agreement
of the parties with respect to Section 13 of the above-referenced
Warrant Agreement. Any capitalized term used herein, unless otherwise
defined, has the meaning given to such term in the Warrant Agreement.
In particular, this will acknowledge and confirm our agreement
that the Company's obligation pursuant to Section 13 thereof (the
"Registration Obligations") to effect the registration of Warrant
Shares under the Securities Act of 1933, as amended (the "Securities
Act"), includes the obligation, if so requested by Bourns as the holder
of Warrants, (i) to effect such registration as a "shelf offering"
pursuant to Rule 415 under the Securities Act (a "Shelf Offering"), and
(ii) to maintain the effectiveness of the Registration Statement for
such a Shelf Offering for any period of time requested by Bourns as the
holder of Warrants, up to a maximum of 24 consecutive months (subject
to lapses in effectiveness pursuant to clause (d) of the penultimate
paragraph of this letter).
As required by Warrant Agreement Section 13(a) to begin the
registration process, Bourns, as the holder of all of the Warrants,
hereby gives written notice to the Company of its request (i) to effect
the registration of all of the Warrant Shares in a Shelf Offering
pursuant to Rule 415 and on a Registration Statement on Form S-3 (the
"Registration Statement"), and (ii) to maintain the effectiveness of
the Registration Statement for 24 consecutive months (subject to clause
(d) of the next paragraph) following the date it is initially declared
to be effective by the Securities and Exchange Commission (the "SEC").
Except as provided in clauses (f) and (h) of the following
<PAGE> 32
Analog Devices, Inc.
July 17, 1996
Page 2
paragraph, such request shall not be withdrawn by Bourns without the
prior written consent of the Company.
In addition, this letter will acknowledge and confirm our
agreements as follows:
(a) Bourns has provided the Company with a plan of distribution to be
included in the Registration Statement, attached as Attachment 1
hereto, which shall be included in the Registration Statement as
filed by the Company with the SEC.
(b) Bourns shall, promptly after the Registration Statement is
declared effective by the SEC, exercise all of the Warrants
by delivery to the Company of Twelve Million Dollars
($12,000,000.00) in cash, against delivery by the Company to
Bourns (or persons designated by Bourns in writing to the
Company) of certificates evidencing all 2,250,000 of the
Warrant Shares (such number remaining subject to adjustment
pursuant to the Warrant Agreement between the date hereof and
the date of such exercise), in such denominations and
registered to such holders as designated by Bourns in writing
to the Company.
(c) The Company has undertaken and agrees to use its reasonable
best efforts (i) to have the Registration Statement prepared
and filed with the SEC as soon as practicable after the date
hereof, (ii) to have the Registration Statement declared
effective by the SEC as soon as practicable after the date
hereof, and (iii) to take or cause to be taken all actions
reasonably necessary to maintain the continuous effectiveness
of the Registration Statement (subject to clause (d) below)
for 24 months following the date it is initially declared to
be effective by the SEC.
(d) Bourns shall cease making offers or sales pursuant to the
Registration Statement during any period in which the Company
determines, and gives notice to Bourns, that the Company is
in possession of non-public information as a result of which
the most recent prospectus included in the Registration
Statement (the "Prospectus") includes an untrue statement of
a material fact or omits to state any material fact required
to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances
under which they were made; provided, however, that Bourns
shall be required to cease making sales only in periods in
which all executive officers and directors of the company are
required to cease making sales of Common Stock of the
Company.
<PAGE> 33
Analog Devices, Inc.
July 17, 1996
Page 3
(e) The Company agrees to perform all of its other obligations
pursuant to or in connection with Warrant Agreement Section
13 in connection with the Shelf Offering as a registration
pursuant to such Section 13, including, without limitation,
the obligations set forth in clauses (i) through (viii) of
Section 13(b) (without reference, however, to the 90 day time
limitation in such clauses (i) and (ii)) and the indemnity
obligations set forth in Section 13(d).
(f) Upon the written request of Bourns at any time, the Company shall
promptly take all action necessary (including filing a
post-effective amendment with the SEC) to terminate the
effectiveness of the Registration Statement and remove from
registration any Warrant Shares which have not then been sold
pursuant to the Registration Statement.
(g) If a broker or any other third party acts other than simply
as an agent in executing any transaction for Bourns involving
the Warrant Shares, Bourns agrees to provide to the Company
such information as is required by the Securities Act and the
regulations thereunder to be disclosed in the Prospectus with
respect to such transaction, and such transaction shall not
be effected until the Prospectus is supplemented to describe
such transaction. The Company shall prepare and file with
the SEC such a supplement promptly after it receives in
writing from Bourns all information necessary to prepare such
supplement.
(h) To the extent the provisions of this letter may be
inconsistent with the provisions of the Warrant Agreement,
the provisions of this letter will amend and supercede the
provisions of Warrant Agreement Section 13. If, however, the
Company does not file the Registration Statement with the SEC
on or before July 19, 1996 or the SEC does not declare the
Registration Statement effective on or before August 20, 1996
(or, in either case, such other dates as are otherwise agreed
by Bourns and the Company), (i) the notices and agreements
evidenced by this letter shall be of no binding effect, and
(ii) the respective rights and obligations of Bourns and the
Company relating to the Registration Obligations shall be as
set forth in Warrant Agreement Section 13 (it being
understood, among other things, that Bourns' requests set
forth in this letter shall not count as a demand for
registration pursuant to such Section 13). Nonetheless,
Bourns and the Company shall continue to work together in
good faith to effect the registration of the Warrant Shares
in a Shelf Offering of the sort contemplated by this letter.
Each of Bourns and the Company also acknowledges that is has
entered into the foregoing agreements for good and valuable
<PAGE> 34
Analog Devices, Inc.
July 17, 1996
Page 4
consideration, the receipt and sufficiency of which is hereby
acknowledged, consisting of, among other things, the mutual covenants
and agreements set forth above.
Very truly yours,
BOURNS, INC.
By: /s/ Gordon L. Bourns
-------------------------------------
Gordon Bourns
President
ACKNOWLEDGED AND AGREED:
ANALOG DEVICES, INC.
By: /s/ Joseph E. McDonough
---------------------------
Name: Joseph E. McDonough
-------------------------
Title: V.P. Finance & CFO
------------------------
<PAGE> 35
Analog Devices, Inc.
July 17, 1996
Page 5
Attachment 1
Plan of Distribution
The shares may be sold from time to time by the selling
shareholders, or by pledgees, donees, transferees or other successors
in interest. Such sales may be made on one or more exchanges or in the
over-the-counter market or otherwise, at prices and at terms then
prevailing or at prices related to the then current market price, or in
negotiated transactions. The shares may be sold by means of one or more
of the following: (a) a block trade in which the broker-dealer so
engaged will attempt to sell the shares as agent, but may position and
resell a portion of the block as principal to facilitate the
transaction; (b) purchases by a broker-dealer as principal and resale
by such broker-dealer for its account pursuant to this prospectus; (c)
an exchange distribution in accordance with the rules of such exchange;
(d) ordinary brokerage transactions and transactions in which the
broker solicits purchasers; (e) direct sales by the selling
shareholders not involving a broker-dealer; and (f) donations to a
charity or other donee and resale by the donee pursuant to this
prospectus. In effecting sales, broker-dealers engaged by the selling
shareholders may arrange for other broker-dealers to participate in the
resales.
In connection with distributions of the shares or otherwise, the
selling shareholders may enter into hedging transactions with
broker-dealers or financial institutions. In connection with such
transactions, the broker-dealers or financial institutions may engage
in short sales of the shares registered hereunder in the course of
hedging the positions they assume with selling shareholders. The
selling shareholders may also sell shares short and redeliver the
shares to close out such short positions. The selling shareholders may
also enter into option or other transactions with broker-dealers or
financial institutions which require the delivery to such broker-dealer
or financial institution of the shares registered hereunder, which the
broker-dealer or financial institution may resell or otherwise transfer
pursuant to this prospectus. The selling shareholder may also loan or
pledge the shares registered hereunder to a broker-dealer or financial
institution and such broker-dealer or financial institution may sell
the shares so loaned or upon a default the broker-dealer or financial
institution may affect sales of the pledged shares pursuant to this
prospectus.
Broker-dealers, financial institutions or agents may receive
compensation in the form of commissions, discounts or concessions from
selling shareholders in amounts to be negotiated in connection with the
sale. Such broker-dealers, financial institutions and any other
participating broker-dealers may be
<PAGE> 36
Analog Devices, Inc.
July 17, 1996
Page 6
deemed to be "underwriters" within the meaning of the Securities Act of
1933, as amended (the "Act"), in connection with such sales and any
such commission, discount or concession may be deemed to be
underwriting discounts or commissions under the Act. In addition, any
securities covered by this prospectus which qualify for sale pursuant
to Rule 144 may be sold under Rule 144 rather than pursuant to this
prospectus.
<PAGE> 1
EXHIBIT 5.01
HALE AND DORR
60 State Street
Boston, Massachusetts 02109
July 19, 1996
Analog Devices, Inc.
One Technology Way
Norwood, MA 02062-9106
Dear Sirs:
This opinion is furnished to you in connection with a Registration
Statement on Form S-3 (the "Registration Statement"), filed with the
Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended, for the registration of 2,250,000
shares of Common Stock, $.16 2/3 par value per share (the "Shares"), of
Analog Devices, Inc., a Massachusetts corporation (the "Company"), held
by the Selling Stockholders, as defined in the Registration Statement.
We have examined the Registration Statement and all exhibits
thereto, all as filed with the Commission. We have also examined and
relied upon the originals, or copies of minutes of meetings or actions
taken by unanimous written consent of the Board of Directors of the
Company, the By-laws of the Company and the Restated Articles of
Organization of the Company, as amended, and such other documents and
instruments as in our judgment are necessary or appropriate to enable
us to render the opinions expressed below.
In our examination of the foregoing documents, we have assumed (i)
the genuineness of all signatures and the authenticity of any documents
submitted to us as originals, (ii) the conformity to the originals of
any documents submitted to us as conformed or photostatic copies and
(iii) the authenticity of the originals of the latter documents.
We have not made an independent review of the laws of any state or
jurisdiction other than the Commonwealth of Massachusetts and the
United States. Accordingly, we express no opinion herein with respect
to the laws of any state or jurisdiction other than the Commonwealth of
Massachusetts and the United States.
<PAGE> 2
Based upon the foregoing, we are of the opinion that the Shares
have been duly authorized and will be validly issued, fully paid and
nonassessable.
We hereby consent to the filing of this opinion as part of the
Registration Statement and to the use of our name therein and in the
related Prospectus under the caption "Legal Matters."
Very truly yours,
HALE AND DORR
<PAGE> 1
EXHIBIT 23.02
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption
"Experts" in the Registration Statement (Form S-3) and related
Prospectus of Analog Devices, Inc. for the registration of 2,250,000
shares of its common stock and to the incorporation by reference
therein of our report dated November 28, 1995, except for the fifth
paragraph of note 4 as to which the date is December 18, 1995, with
respect to the consolidated financial statements and schedule of Analog
Devices, Inc. included in its Annual Report (Form 10-K) for the year
ended October 28, 1995, filed with the Securities and Exchange
Commission.
ERNST & YOUNG LLP
Boston, Massachusetts
July 15, 1996
