<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------------------
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) August 15, 1995
---------------
APPLIED MATERIALS, INC.
(Exact name of registrant as specified in its charter)
Delaware 0-6920 94-1655526
--------------------------------------------------------------------------------
(State or other (Commission (IRS employer
jurisdiction of File Number) identification
Incorporation) number)
3050 Bowers Avenue, Santa Clara, California 95054-3299
--------------------------------------------------------------------------------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (408) 727-5555
--------------
Inapplicable
--------------------------------------------------------------------------------
(Former name or former address, if changed since last report)
<PAGE> 2
ITEM 5. OTHER EVENTS.
The Company has filed certain exhibits relating to the
commencement of its Medium-Term Note program on August 24, 1995.
On August 15, 1995, the Company issued a press release
announcing its results of operations for the third quarter, ending on July 30,
1995, of fiscal year 1995. A copy of the financial statements attached to the
press release is attached hereto as Exhibit 99.1 and incorporated herein by
reference.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
(c) Exhibits.
The following exhibits are filed as exhibits to the Company's
registration statement on Form S-3 (File No. 33-60301):
<TABLE>
<CAPTION>
Exhibit Number Exhibit
-------------- -------
<S> <C>
1.2 Form of Distribution
Agreement.
4.3 Form of Fixed Rate
Medium-Term Note.
4.4 Form of Floating
Rate Medium-Term
Note.
5.1 Opinion of Orrick,
Herrington &
Sutcliffe as to the
validity of the
Medium-Term Notes.
</TABLE>
<PAGE> 3
<TABLE>
<S> <C>
23.2 The consent of
Orrick, Herrington &
Sutcliffe is
contained in its
legal opinion filed
as Exhibit 5.1.
99.1 Financial Statements
attached to Press
Release, dated
August 15, 1995, of
Applied Materials,
Inc.
</TABLE>
<PAGE> 4
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
Dated: August 24, 1995
APPLIED MATERIALS, INC.
(Registrant)
By: /s/ Gerald F. Taylor
---------------------------
Gerald F. Taylor
Senior Vice President and
Chief Financial Officer
<PAGE> 5
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Number Exhibit
-------------- -------
<S> <C>
1.2 Form of Distribution Agreement.
4.3 Form of Fixed Rate Medium-Term Note.
4.4 Form of Floating Rate Medium-Term
Note.
5.1 Opinion of Orrick, Herrington &
Sutcliffe as to the validity of the
Medium-Term Notes.
23.2 The consent of Orrick, Herrington &
Sutcliffe is contained in its legal
opinion filed as Exhibit 5.1.
99.1 Financial Statements attached to
Press Release, dated August 15, 1995,
of Applied Materials, Inc.
</TABLE>
<PAGE> 1
Exhibit 1.2
APPLIED MATERIALS, INC.
________________
MEDIUM-TERM NOTES, SERIES __
DUE MORE THAN 9 MONTHS TO 30 YEARS FROM DATE OF ISSUE
DISTRIBUTION AGREEMENT
[Date]
__________________________________
__________________________________
__________________________________
Dear Sirs:
Applied Materials, Inc., a Delaware corporation (the
"Company"), confirms its agreement with each of you with respect to the issue
and sale from time to time by the Company of up to $_______________ aggregate
initial public offering price of its Medium-Term Notes, Series _, due more than
9 months to 30 years from date of issue (the "Notes"). The Notes will be issued
under an Indenture dated as of _______________ (the "Indenture") between the
Company and ______________________________, as Trustee (the "Trustee"), and
will have the maturities, interest rates, redemption provisions, if any, and
other terms as set forth in supplements to the Basic Prospectus referred to
below.
The Company hereby appoints __________________________________
_______________________________________________ (individually, an "Agent" and
collectively, the "Agents") as its agents for the purpose of soliciting and
receiving offers to purchase Notes from the Company by others and, on the
basis of the representations and warranties herein contained, but subject to
the terms and conditions herein set forth, each Agent agrees to use reasonable
efforts to solicit and receive offers to purchase Notes upon terms acceptable
to the Company at such times and in such amounts as the Company shall from
<PAGE> 2
time to time specify. In addition, any Agent may also purchase Notes as
principal pursuant to the terms of a terms agreement relating to such sale (a
"Terms Agreement") in accordance with the provisions of Section 2(b) hereof. The
Company reserves the right to appoint additional agents for the purpose of
soliciting and receiving offers to purchase Notes, provided that they are
appointed pursuant to Section 11 hereof or pursuant to agreements with
substantially the same terms and conditions as set forth in this Agreement. The
Company's appointment of additional agents hereunder shall be deemed to include
the right to sell Notes to any such agent as principal pursuant to the
provisions of Section 2(b) hereof. The Company also reserves the right to accept
offers to purchase Notes through an agent other than an Agent, provided that (i)
the Company did not on an unsolicited basis request such agent to solicit offers
to purchase Notes on behalf of the Company, (ii) any agreement with respect to
such purchase will have terms and conditions (including, without limitation,
commission rates) with respect to such purchase substantially the same as the
terms and conditions that would apply to such purchase under this Agreement if
such agent were an Agent (which may be accomplished by incorporating by
reference in such agreement the terms and conditions of this Agreement), (iii)
such agreement shall not provide for further offers or purchases, and (iv) the
Company shall provide the Agents with a copy of such agreement promptly
following such purchase. The Company's right to accept offers to purchase Notes
through an agent other than an Agent shall be deemed to include the right to
accept offers to purchase Notes from any such agent as principal pursuant to the
provisions of Section 2(b) hereof.
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement, including a prospectus,
relating to the Notes. Such registration statement, including the exhibits
thereto, as amended at the Commencement Date (as hereinafter defined), is
hereinafter referred to as the "Registration Statement." The Company proposes to
file with the Commission from time to time, pursuant to Rule 424 under the
Securities Act of 1933, as amended (the "Securities Act"), supplements to the
prospectus included in the Registration Statement that will describe certain
terms of the Notes. The prospectus in the form in which it appears in the
Registration Statement is hereinafter referred to as the "Basic Prospectus." The
term "Prospectus" means the Basic Prospectus together with the prospectus
supplement or supplements (each a "Prospectus Supplement") specifically relating
to Notes, as filed with, or transmitted for filing to, the Commission pursuant
to Rule 424. As used herein, the terms "Basic Prospectus" and "Prospectus" shall
include in each case the documents, if any, incorporated by reference therein.
The terms "supplement," "amendment" and "amend" as used herein shall include all
documents deemed to be incorporated by reference in the Prospectus that are
filed
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<PAGE> 3
subsequent to the date of the Basic Prospectus by the Company with the
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
1. REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to and agrees with each Agent as of the Commencement Date, as of each
date on which an Agent solicits offers to purchase Notes, as of each date on
which the Company accepts an offer to purchase Notes (including any purchase by
an Agent pursuant to a Terms Agreement), as of each date the Company issues and
delivers Notes and as of each date the Registration Statement or the Basic
Prospectus is amended or supplemented, as follows (it being understood that such
representations, warranties and agreements shall be deemed to relate to the
Registration Statement, the Basic Prospectus and the Prospectus, each as amended
or supplemented to each such date):
(a) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending before or threatened by the
Commission.
(b) (i) Each document, if any, filed or to be filed pursuant
to the Exchange Act and incorporated by reference in the Prospectus complied or
will comply when so filed in all material respects with the Exchange Act and the
applicable rules and regulations of the Commission thereunder, (ii) each part of
the Registration Statement, when such part became effective, did not contain and
each such part, as amended or supplemented, if applicable, will not contain any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading,
(iii) the Registration Statement and the Prospectus comply and, as amended or
supplemented, if applicable, will comply in all material respects with the
Securities Act and the applicable rules and regulations of the Commission
thereunder and (iv) the Prospectus does not contain and, as amended or
supplemented, if applicable, will not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading,
except that (1) the representations and warranties set forth in this Section
1(b) do not apply (A) to statements or omissions in the Registration Statement
or the Prospectus based upon information relating to an Agent furnished to the
Company in writing by such Agent expressly for use therein or (B) to that part
of the Registration Statement that constitutes the Statement of Eligibility
(Form T-1) under the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), of the Trustee and (2) the representations and warranties set
forth in clauses (iii) and (iv) above, when made as of the Commencement Date or
as of any date on which an Agent solicits offers to purchase Notes or on which
the
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<PAGE> 4
Company accepts an offer to purchase Notes, shall be deemed not to cover
information concerning an offering of particular Notes to the extent such
information will be set forth in a supplement to the Basic Prospectus.
(c) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the State of
Delaware, has the corporate power and authority to own its property and to
conduct its business as described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be in
good standing would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(d) Each subsidiary of the Company has been duly incorporated,
is validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and authority to own
its property and to conduct its business as described in the Prospectus and as
then currently being conducted and is duly qualified to transact business and is
in good standing in each jurisdiction in which the conduct of its business or
its ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not have
a material adverse effect on the Company and its subsidiaries, taken as a whole.
(e) Each of this Agreement and any applicable Written Terms
Agreement (as hereinafter defined) has been duly authorized, executed and
delivered by the Company.
(f) The Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by the
Company and is a valid and binding agreement of the Company, enforceable in
accordance with its terms, except as the enforceability thereof may be limited
by bankruptcy, insolvency or similar laws relating to or affecting creditors'
rights generally or the effect of general principles of equity, including the
possible unavailability of specific performance or injunctive relief, whether
considered in a proceeding in equity or at law.
(g) The Notes have been duly authorized by the Board of
Directors of the Company and, when executed and authenticated in accordance with
the provisions of the Indenture and delivered to and paid for by the purchasers
thereof, will be entitled to the benefits of the Indenture and will be valid and
binding obligations of the Company, enforceable in accordance with their
respective terms, except as the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws relating to or affecting creditors'
rights generally or the effect of general principles of
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<PAGE> 5
equity, including the possible unavailability of specific performance or
injunctive relief, whether considered in a proceeding in equity or at law.
(h) The authorized capital stock of the Company conforms as to
legal matters to the description thereof contained in the Prospectus.
(i) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement, the Notes,
the Indenture and any applicable Written Terms Agreement will not contravene, or
give rise to any additional rights or remedies under, any provision of
applicable law or the Certificate of Incorporation or by-laws of the Company or
any agreement or other instrument binding upon the Company or any of its
subsidiaries that is material to the Company and its subsidiaries, taken as a
whole, or any judgment, order or decree of any governmental body, agency or
court having jurisdiction over the Company or any subsidiary, and no consent,
approval, authorization or order of, or qualification with, any governmental
body or agency is required for the performance by the Company of its obligations
under this Agreement, the Notes, the Indenture and any applicable Terms
Agreement, except such as may be required by the securities or Blue Sky laws of
the various states in connection with the offer and sale of the Notes.
(j) There has not occurred any material adverse change, or any
development which could be reasonably expected to result in a prospective
material adverse change, in the condition, financial or otherwise, or in the
business or operations, of the Company and its subsidiaries, taken as a whole,
from that set forth in the Prospectus.
(k) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries is a party or to
which any of the properties of the Company or any of its subsidiaries is subject
that are required to be described in the Registration Statement or the
Prospectus and are not so described in all material respects (other than
proceedings that would not have material adverse effect on the Company and its
subsidiaries taken as a whole, or on the power or ability of the Company to
perform its obligations under this Agreement, the Notes, the Indenture or any
applicable Terms Agreement or to consummate the transactions contemplated by the
Prospectus) or any statutes, regulations, contracts or other documents that are
required to be described in the Registration Statement or the Prospectus or to
be filed or incorporated by reference as exhibits to the Registration Statement
that are not described, filed or incorporated as required.
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<PAGE> 6
(l) The Company is not an "investment company" or an entity
"controlled" by an "investment company" as such terms are defined in the
Investment Company Act of 1940, as amended.
(m) To the best knowledge of the Company after due inquiry,
the Company and its subsidiaries (i) are in compliance with any and all
applicable foreign, federal, state and local laws and regulations relating to
the protection of human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants ("Environmental Laws"), (ii)
have received all permits, licenses or other approvals required of them under
applicable Environmental Laws which are necessary to conduct their respective
businesses and (iii) are in compliance with all terms and conditions of any such
permit, license or approval, except where such noncompliance with Environmental
Laws, failure to receive required permits, licenses or other approvals or
failure to comply with the terms and conditions of such permits, licenses or
approvals would not reasonably be expected to, singly or in the aggregate, have
a material adverse effect on the Company and its subsidiaries, taken as a whole.
(n) The Company has a process of conducting periodic internal
reviews relating to compliance by the Company and its subsidiaries with
Environmental Laws. On the basis of such reviews, except as set forth in the
Prospectus, nothing has come to the attention of the Company which would lead it
to believe that costs associated with compliance with Environmental Laws or
liabilities arising due to noncompliance with Environmental Laws (including,
without limitation, any capital or operating expenses required for cleanup,
closure of properties or compliance with Environmental Laws or any permit,
license or approval, any related constraints on operating activities and any
potential liabilities to third parties) would have a material adverse effect on
the Company and its subsidiaries, taken as a whole.
(o) Each of the Company and its subsidiaries owns or possesses
adequate and sufficient licenses or other rights to use all patents, copyrights,
trademarks, service marks, tradenames, technology and knowhow necessary (in any
material respect) to conduct its business in the manner described in the
Prospectus, except such as are not material to the business of the Company and
its subsidiaries taken as a whole and except as disclosed in the Prospectus.
Except as disclosed in the Prospectus, neither the Company nor any of its
subsidiaries has received any notice of infringement or conflict with (and knows
of no infringement or conflict with) asserted rights of others with respect to
any patents, copyrights, trademarks, service marks, trade names or knowhow which
would reasonably be expected to result in any material adverse effect upon the
Company and its subsidiaries taken as a whole.
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<PAGE> 7
(p) The Company has complied with all provisions of Section
517.075, Florida Statutes (Chapter 92-198, Laws of Florida).
Notwithstanding the foregoing, (i) the
representations and warranties set forth in Section 1(b)(iii) and (iv), (g)
(except as to due authorization of the Notes) and (i), when made as of the
Commencement Date, or as of any date on which an Agent solicits offers to
purchase Notes, with respect to any Notes the payments of principal or interest
on which will be determined by reference to one or more currency exchange rates,
commodity prices, equity indices or other factors, shall be deemed not to
address the application of the Commodity Exchange Act, as amended, or the rules,
regulations or interpretations of the Commodity Futures Trading Commission and
(ii) the representations and warranties contained in this Section 1 shall not be
deemed to have been made by the Company as of any date on which an Agent
solicits an offer to purchase Notes if (x) such offer is not accepted by the
Company or (y) a fact, condition or event resulting in a breach of a
representation and warranty contained in this Section 1 is included or
incorporated by reference in the Prospectus at or prior to the acceptance by the
Company of such offer to purchase Notes.
2. SOLICITATIONS AS AGENT; PURCHASES AS PRINCIPAL.
(a) Solicitations as Agent. In connection with an Agent's
actions as agent hereunder, such Agent agrees to use reasonable efforts to
solicit offers to purchase Notes upon the terms and conditions set forth in the
Prospectus as then amended or supplemented.
The Company reserves the right, in its sole discretion, to
instruct the Agents to suspend at any time, for any period of time or
permanently, the solicitation of offers to purchase Notes. Upon receipt of
notice from the Company, the Agents will forthwith suspend solicitations of
offers to purchase Notes from the Company until such time as the Company has
advised the Agents that such solicitation may be resumed. While such
solicitation is suspended, the Company shall not be required to deliver any
certificates, opinions or letters in accordance with Sections 5(a), 5(b) and
5(c); provided, however, that if the Registration Statement or Prospectus is
amended or supplemented during the period of suspension (other than by an
amendment or supplement setting forth solely the terms or a description of
particular Notes or providing for a change the Agents deem to be immaterial), no
Agent shall be required to resume soliciting offers to purchase Notes until the
Company has delivered such certificates, opinions and letters pursuant to
Sections 5(a), 5(b) and 5(c) as such Agent may request.
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<PAGE> 8
The Company agrees to pay to each Agent, as consideration for
the sale of each Note resulting from an offer to purchase presented by such
Agent to the Company, a commission in the form of a discount from the purchase
price of such Note equal to the percentage set forth below of the purchase price
of such Note:
<TABLE>
<CAPTION>
Term Commission Rate
---- ---------------
<S> <C>
From more than 9 months to
less than 1 year %
From 1 year to less than 18 months %
From 18 months to less than 2 years %
From 2 years to less than 3 years %
From 3 years to less than 4 years %
From 4 years to less than 5 years %
From 5 years to less than 6 years %
From 6 years to less than 7 years %
From 7 years to less than 10 years %
From 10 years to less than 15 years %
From 15 years to less than 20 years %
From 20 years to 30 years %
</TABLE>
Each Agent shall communicate to the Company, orally or in
writing, each offer to purchase Notes received by such Agent as agent that in
its reasonable judgment should be considered by the Company; provided that, if
requested by the Company, each Agent shall, for a period of 10 business days,
communicate to the Company each offer to purchase Notes received by such Agent
subsequent to the date of such request. The Company shall have the sole right to
accept offers to purchase Notes and may reject any offer in whole or in part.
Each Agent shall have the right to reject any offer to purchase Notes that it
reasonably considers to be unacceptable, and any such rejection shall not be
deemed a breach of its agreements contained herein. The procedural details
relating to the issue and delivery of Notes sold by the Agents as agents and the
payment therefor shall be as set forth in the Administrative Procedures (as
hereinafter defined).
(b) Purchases as Principal. Each sale of Notes to an Agent as
principal shall be made in accordance with the terms of this Agreement. In
connection with each such sale, the Company will enter into a Terms Agreement
that will provide for the sale of such Notes to and the purchase thereof by such
Agent. Each Terms Agreement will take the form of either (i) a written agreement
between such Agent and the Company, which may be substantially in the form of
Exhibit A hereto (a "Written Terms Agreement"), or (ii) an oral agreement
between such Agent and the Company confirmed in writing by such Agent to the
Company which the Company indicates in writing is acceptable.
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<PAGE> 9
An Agent's commitment to purchase Notes pursuant to a Terms
Agreement shall be deemed to have been made on the basis of the representations
and warranties of the Company herein contained and shall be subject to the terms
and conditions herein set forth. Each Terms Agreement shall specify the
principal amount of Notes to be purchased by such Agent pursuant thereto, the
maturity date of such Notes, the price to be paid to the Company for such Notes,
the interest rate and interest rate formula, if any, applicable to such Notes
and any other terms of such Notes. Each such Terms Agreement may also specify
any requirements for officers' certificates, opinions of counsel and letters
from the independent public accountants of the Company pursuant to Section 4
hereof. A Terms Agreement may also specify certain provisions relating to the
reoffering of such Notes by such Agent.
Each Terms Agreement shall specify the time and place of
delivery of and payment for such Notes. Unless otherwise specified in a Terms
Agreement, the procedural details relating to the issue and delivery of Notes
purchased by an Agent as principal and the payment therefor shall be as set
forth in the Administrative Procedures. Each date of delivery of and payment for
Notes to be purchased by an Agent pursuant to a Terms Agreement is referred to
herein as a "Settlement Date."
Unless otherwise specified in a Terms Agreement, if you are
purchasing Notes as principal you may resell such Notes to other dealers. Any
such sales may be at a discount, which shall not exceed the amount set forth in
the Prospectus Supplement relating to such Notes.
(c) Administrative Procedures. The Agents and the Company
agree to perform the respective duties and obligations specifically provided to
be performed in the Medium-Term Notes, Series _, Administrative Procedures
(attached hereto as Exhibit B) (the "Administrative Procedures"), as amended
from time to time. The Administrative Procedures may be amended only by written
agreement of the Company and the Agents.
(d) Delivery. The documents required to be delivered by
Section 4 of this Agreement as a condition precedent to each Agent's obligation
to begin soliciting offers to purchase Notes as an agent of the Company shall be
delivered at the office of ________________________________________, counsel for
the Agents, not later than 10:00 a.m., San Francisco time, on the date hereof,
or at such other time and/or place as the Agents and the Company may agree upon
in writing, but in no event later than the day prior to the earlier of (i) the
date on which the Agents begin soliciting offers to purchase Notes and (ii) the
first date on which the Company accepts any offer by an Agent to purchase Notes
pursuant to a Terms Agreement. The date of delivery of such documents is
referred to herein as the "Commencement Date."
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<PAGE> 10
(e) Obligations Several. The Company acknowledges that the
obligations of the Agents under this Agreement are several and not joint.
3. AGREEMENTS. The Company agrees with each Agent that:
(a) Prior to the termination of the offering of the Notes
pursuant to this Agreement or any Terms Agreement, the Company will not file any
Prospectus Supplement relating to the Notes or any amendment to the Registration
Statement unless the Company has previously furnished to the Agents copies
thereof for their review and will not file any such proposed supplement or
amendment to which the Agents reasonably object; provided, however, that (i) the
foregoing requirement shall not apply to any of the Company's periodic filings
with the Commission required to be filed pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act, copies of which filings the Company will cause to be
delivered to the Agents promptly after being transmitted for filing with the
Commission and (ii) any Prospectus Supplement that merely sets forth the terms
or a description of particular Notes shall only be reviewed and approved by the
Agent or Agents offering such Notes. Subject to the foregoing sentence, the
Company will promptly cause each Prospectus Supplement to be filed with or
transmitted for filing to the Commission in accordance with Rule 424(b) under
the Securities Act. The Company will promptly advise the Agents (i) of the
filing of any amendment or supplement to the Basic Prospectus (except that
notice of the filing of an amendment or supplement to the Basic Prospectus that
merely sets forth the terms or a description of particular Notes shall only be
given to the Agent or Agents offering such Notes), (ii) of the filing and
effectiveness of any amendment to the Registration Statement, (iii) of any
request by the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Basic Prospectus or for any additional
information, (iv) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose and (v) of the receipt by the
Company of any notification with respect to the suspension of the qualification
of the Notes for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose. The Company will use its best efforts to
prevent the issuance of any such stop order or notice of suspension of
qualification and, if issued, to obtain as soon as possible the withdrawal
thereof. If the Basic Prospectus is amended or supplemented as a result of the
filing under the Exchange Act of any document incorporated by reference in the
Prospectus, no Agent shall be obligated to solicit offers to purchase Notes so
long as it is not reasonably satisfied with such document.
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<PAGE> 11
(b) If, at any time when a prospectus relating to the Notes is
required to be delivered under the Securities Act, any event occurs or condition
exists as a result of which the Prospectus, as then amended or supplemented,
would include an untrue statement of a material fact, or omit to state any
material fact necessary to make the statements therein, in the light of the
circumstances when the Prospectus, as then amended or supplemented, is delivered
to a purchaser, not misleading, or if, in the opinion of counsel for the Agents
or in the opinion of the Company, it is necessary at any time to amend or
supplement the Prospectus, as then amended or supplemented, to comply with
applicable law, the Company will immediately notify the Agents by telephone
(with confirmation in writing) to suspend solicitation of offers to purchase
Notes and, if so notified by the Company, the Agents shall forthwith suspend
such solicitation and cease using the Prospectus, as then amended or
supplemented. If, at any time when a prospectus relating to the Notes is
required to be delivered under the Securities Act, the Company shall decide to
amend or supplement the Registration Statement or Prospectus, as then amended or
supplemented, it shall so advise the Agents promptly by telephone (with
confirmation in writing) and, at its expense, shall prepare and cause to be
filed promptly with the Commission an amendment or supplement to the
Registration Statement or Prospectus, as then amended or supplemented,
reasonably satisfactory to the Agents, that will correct such statement or
omission or effect such compliance and will supply such amended or supplemented
Prospectus to the Agents in such quantities as they may reasonably request. If
any documents, certificates, opinions and letters furnished to the Agents
pursuant to paragraph (f) below and Sections 5(a), 5(b) and 5(c) in connection
with the preparation and filing of such amendment or supplement are satisfactory
in all respects to the Agents, upon the filing with the Commission of such
amendment or supplement to the Prospectus or upon the effectiveness of an
amendment to the Registration Statement, the Agents will resume the solicitation
of offers to purchase Notes hereunder. Notwithstanding any other provision of
this Section 3(b), until the distribution of any Notes an Agent has purchased as
principal from the Company has been completed, if any event described above in
this paragraph (b) occurs, the Company will, at its own expense, forthwith
prepare and cause to be filed promptly with the Commission an amendment or
supplement to the Registration Statement or Prospectus, as then amended or
supplemented, reasonably satisfactory to such Agent, will supply such amended or
supplemented Prospectus to such Agent in such quantities as it may reasonably
request and shall, for a period of 60 days following the date on which such
Agent purchased the Notes, be required to furnish to such Agent pursuant to
paragraph (f) below and Sections 5(a), 5(b) and 5(c) such documents,
certificates, opinions and letters as it may request in connection with the
preparation and filing of such amendment or supplement; provided, however, that
the Company shall not be required to furnish any such documents,
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<PAGE> 12
certificates, opinions or letters pursuant to this Section 3(b) to such Agent if
such documents, certificates, opinions or letters were delivered to such Agent
on the Settlement Date relating to such Notes.
(c) The Company will make generally available to its security
holders and to the Agents as soon as practicable earning statements that satisfy
the provisions of Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder covering twelve month periods
beginning, in each case, not later than the first day of the Company's fiscal
quarter next following the "effective date" (as defined in Rule 158 under the
Securities Act) of the Registration Statement with respect to each sale of
Notes. If such fiscal quarter is the last fiscal quarter of the Company's fiscal
year, such earning statement shall be made available not later than 90 days
after the close of the period covered thereby and in all other cases shall be
made available not later than 45 days after the close of the period covered
thereby.
(d) The Company will furnish to ____________________, without
charge, a signed copy of the Registration Statement, including exhibits and all
amendments thereto, and to each other Agent, without charge, a conformed copy of
the Registration Statement, including exhibits and all amendments thereto, and
as many copies of the Prospectus, any documents incorporated by reference
therein and any supplements and amendments thereto as such Agent may reasonably
request.
(e) The Company will endeavor to qualify the Notes for offer
and sale under the securities or Blue Sky laws of such jurisdictions as the
Agents shall reasonably request and to maintain such qualifications for as long
as the Agents shall reasonably request.
(f) The Company shall furnish to the Agents such relevant
documents and certificates of officers of the Company relating to the business,
operations and affairs of the Company, the Registration Statement, the Basic
Prospectus, any amendments or supplements thereto, the Indenture, the Notes,
this Agreement, the Administrative Procedures, any Terms Agreement and the
performance by the Company of its obligations hereunder or thereunder as the
Agents may from time to time reasonably request.
(g) The Company shall notify the Agents promptly in writing of
any downgrading, or of its receipt of any notice of any intended or potential
downgrading, in the rating accorded any of the Company's securities by any
"nationally recognized statistical rating organization," as such term is defined
for purposes of Rule 436(g)(2) under the Securities Act; provided, however,
that, if the Company has instructed the Agents to suspend the solicitation of
offers to purchase Notes pursuant to Section 2(a), the Company
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<PAGE> 13
shall not be required, during the time that solicitation is suspended, to notify
the Agents of any such downgrading or of the receipt of any such intended or
potential downgrading; provided further that before any Agent shall be required
to resume soliciting offers to purchase Notes, the Company shall confirm in
writing to such Agent if any downgrading has occurred and if any notice of any
intended or potential downgrading has been received during the time that such
solicitation was suspended.
(h) The Company will, whether or not any sale of Notes is
consummated, pay all expenses incident to the performance of its obligations
under this Agreement and any Terms Agreement, including: (i) the preparation and
filing of the Registration Statement and the Prospectus and all amendments and
supplements thereto, (ii) the preparation, issuance and delivery of the Notes,
(iii) the fees and disbursements of the Company's counsel and accountants and of
the Trustee and its counsel, (iv) the qualification of the Notes under
securities or Blue Sky laws in accordance with the provisions of Section 3(e),
including filing fees and the fees and disbursements of counsel for the Agents
in connection therewith and in connection with the preparation of any Blue Sky
or Legal Investment Memoranda, (v) the printing and delivery to the Agents in
quantities as hereinabove stated of copies of the Registration Statement and all
amendments thereto and of the Prospectus and any amendments or supplements
thereto, (vi) the printing and delivery to the Agents of copies of any Blue Sky
or Legal Investment Memoranda, (vii) any fees charged by rating agencies for the
rating of the Notes, (viii) any expenses incurred by the Company in connection
with a "road show" presentation to potential investors and (ix) the reasonable
fees and disbursements of counsel for the Agents in connection with the offering
and sale of the Notes, including any opinions to be rendered by such counsel
hereunder, and (x) any out-of-pocket expenses incurred by the Agents; provided
that any such out-of-pocket expenses incurred by the Agents shall have been
approved in advance by the Company.
(i) If provided for in the applicable Terms Agreement, during
the period beginning the date of any Terms Agreement and continuing to and
including the Settlement Date with respect to such Terms Agreement, the Company
will not, without such Agent's prior written consent, offer, sell, contract to
sell or otherwise dispose of any debt securities of the Company or warrants to
purchase debt securities of the Company having terms substantially similar to
the Notes to which such Terms Agreement relates (other than (i) the Notes that
are to be sold pursuant to such Terms Agreement, (ii) Notes previously agreed to
be sold by the Company and (iii) commercial paper issued in the ordinary course
of business), except as may otherwise be provided in such Terms Agreement.
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<PAGE> 14
4. CONDITIONS OF THE OBLIGATIONS OF THE AGENTS. Each Agent's
obligation to solicit offers to purchase Notes as agent of the Company, each
Agent's obligation to purchase Notes pursuant to any Terms Agreement and the
obligation of any other purchaser to purchase Notes will be subject to the
accuracy of the representations and warranties on the part of the Company
herein, to the accuracy of the statements of the Company's officers made in each
certificate furnished pursuant to the provisions hereof and to the performance
and observance by the Company of all covenants and agreements herein contained
on its part to be performed and observed (in the case of an Agent's obligation
to solicit offers to purchase Notes, at the time of such solicitation, and, in
the case of an Agent's or any other purchaser's obligation to purchase Notes, at
the time the Company accepts the offer to purchase such Notes and at the time of
issuance and delivery) and (in each case) to the following additional conditions
precedent when and as specified:
(a) Prior to such solicitation or purchase, as the case may
be:
(i) there shall not have occurred any change, or any
development involving a prospective change, in the condition, financial
or otherwise, or in the business or operations, of the Company and its
subsidiaries, taken as a whole, from that set forth in the Prospectus,
as amended or supplemented at the time of such solicitation or at the
time such offer to purchase was made, that, in the judgment of the
relevant Agent, is material and adverse and that makes it, in the
judgment of such Agent, impracticable to market the Notes on the terms
and in the manner contemplated by the Prospectus, as so amended or
supplemented;
(ii) there shall not have occurred any (A) suspension or
material limitation of trading generally on or by, as the case may be,
any of the New York Stock Exchange, the American Stock Exchange, the
National Association of Securities Dealers, Inc., or any other
over-the-counter market, (B) suspension of trading of any securities of
the Company on any exchange or in any over-the-counter market, (C)
declaration of a general moratorium on commercial banking activities in
New York by either Federal or New York State authorities or (D) any
outbreak or escalation of hostilities or any change in financial
markets or any calamity or crisis that, in the judgment of the relevant
Agent, is material and adverse and, in the case of any of the events
described in clauses (ii)(A) through (D), such event, singly or
together with any other such event, makes it, in the judgment of such
Agent, impracticable to market the Notes on the terms and in the manner
contemplated by the Prospectus, as amended or
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<PAGE> 15
supplemented at the time of such solicitation or at the time
such offer to purchase was made; and
(iii) there shall not have occurred any downgrading, nor shall
any notice have been given of any intended or potential downgrading, in
the rating accorded any of the Company's securities by any "nationally
recognized statistical rating organization," as such term is defined
for purposes of Rule 436(g)(2) under the Securities Act;
(A) except, in each case described in paragraph (i), (ii) or
(iii) above, as disclosed to the relevant Agent in writing by the Company prior
to such solicitation or, in the case of a purchase of Notes, as disclosed to the
relevant Agent before the offer to purchase such Notes was made or (B) unless in
each case described in (ii) above, the relevant event shall have occurred and
been known to the relevant Agent before such solicitation or, in the case of a
purchase of Notes, before the offer to purchase such Notes was made.
(b) On the Commencement Date and, if called for by any Terms
Agreement, on the corresponding Settlement Date, the relevant Agents shall have
received:
(i) The opinion, dated as of such date, of Orrick, Herrington
& Sutcliffe, outside counsel for the Company, to the effect that:
(A) the Company is a corporation duly organized,
validly existing and in good standing under the laws of the
State of Delaware and has the full corporate power and
corporate authority to own, lease and operate its properties
and conduct its business as described in the Prospectus, as
then amended or supplemented;
(B) each of this Agreement and any applicable Written
Terms Agreement has been duly authorized by all necessary
corporate action on the part of the Company and has been duly
executed and delivered by the Company;
(C) the Indenture has been duly authorized by all
necessary corporate action on the part of the Company and has
been executed and delivered by the Company; the Indenture is a
valid and binding agreement of the Company enforceable against
the Company in accordance with its terms except as (a) the
enforceability thereof may be limited by bankruptcy,
insolvency or other laws affecting creditors' rights generally
and (b) the enforceability thereof may be limited by general
principles of equity and the unavailability of specific
performance or
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<PAGE> 16
injunctive relief; the Indenture is qualified under the
Trust Indenture Act;
(D) the Notes have been duly authorized by the Board
of Directors of the Company and by the Public Offering
Committee thereof and, when authorized by an Authorized
Officer (as defined in the resolutions of the Public Offering
Committee) or by an employee duly authorized by an Authorized
Officer, the Notes will have been duly authorized by all
necessary corporate action on the part of the Company and,
when the Notes have been duly completed to insert the terms
thereof, if executed and authenticated in accordance with the
provisions of the Indenture and delivered to and paid for by
the purchasers thereof on the date of such opinion, would be
(1) entitled to the benefits of the Indenture and (2) valid
and binding agreements of the Company enforceable against the
Company in accordance with their respective terms except as
(a) the enforceability thereof may be limited by bankruptcy,
insolvency or other laws affecting creditors' rights generally
and (b) the enforceability thereof may be limited by general
principles of equity and the unavailability of specific
performance or injunctive relief;
(E) the execution, delivery and performance by the
Company of this Agreement, the Notes, the Indenture and any
applicable Written Terms Agreement on the date of such opinion
(1) do not conflict with or violate the Company's Certificate
of Incorporation or by-laws, (2) to such counsel's knowledge,
do not conflict with or violate or constitute a breach of, or
constitute a default under, the Bank Agreement or any
agreement set forth as an exhibit to any of the documents
incorporated by reference in the Prospectus, as then amended
or supplemented, (3) to such counsel's knowledge, do not
result in the creation or imposition of any lien, charge,
claim or encumbrance upon any property or asset of the Company
in any manner that would have a material adverse effect on the
condition (financial or other), results of operations,
business or business prospects of the Company and its
subsidiaries, taken as a whole, and (4) do not violate
applicable law;
(F) no permit, authorization, consent, approval of or
qualification with any U.S. federal or state governmental
authority is required for the execution, delivery or
performance by the Company of its obligations under this
Agreement, the Notes, the Indenture and any applicable Terms
Agreement, except such as have been obtained under the
Securities Act and such as may be
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<PAGE> 17
required under state or other Blue Sky laws (on which such
counsel need not express any opinion) in connection with the
offer and sale of the Notes;
(G) to such counsel's knowledge, except as set forth
in the Prospectus, as then amended or supplemented, there is
no action, suit or proceeding at law or in equity or by or
before any governmental instrumentality or other agency now
pending or overtly threatened in writing against or affecting
the Company which would require disclosure in the Registration
Statement or the Prospectus, as then amended or supplemented;
(H) the terms and provisions of the Notes conform in
all material respects to the description thereof contained in
the Prospectus, as then amended or supplemented; the
statements (1) in the Prospectus, as then amended or
supplemented, under the captions "Description of Debt
Securities" and "Description of Capital Stock" (in the Basic
Prospectus), "Description of Notes" (in the Prospectus
Supplement) and "Plan of Distribution" (in the Basic
Prospectus and in the Prospectus Supplement) and (2) in the
Registration Statement under Item 15, in each case insofar as
such statements constitute summaries of the legal matters,
documents or proceedings referred to therein, fairly present
the information called for with respect to such legal matters,
documents and proceedings and fairly summarize the matters
referred to therein;
(I) the Registration Statement is effective under the
Securities Act and, to the best of such counsel's knowledge,
no proceedings for a stop order have been instituted or are
pending or threatened under the Securities Act and any
required filings pursuant to Rule 424(b) have been made in
accordance therewith;
(J) the Registration Statement, the Prospectus and
each amendment thereof or supplement thereto (except the
financial statements, schedules and other financial and
statistical information contained or incorporated by reference
therein and that part of the Registration Statement that
constitutes the Form T-1 as to which such counsel need not
express any opinion), as of their respective effective or
issue dates, complied as to form in all material respects with
the requirements of the Securities Act and the rules and
regulations of the Commission thereunder; provided that in the
case of an opinion delivered on the Commencement Date or
pursuant to Section 5(b), the opinion and belief set forth in
this subparagraph (J) shall be deemed not to cover information
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<PAGE> 18
concerning an offering of particular Notes to the extent
such information will be set forth in a supplement to the
Basic Prospectus;
(K) each document filed pursuant to the Exchange Act
and incorporated by reference in the Prospectus, as then
amended or supplemented (except the financial statements,
schedules and other financial and statistical information
contained or incorporated by reference therein as to which
such counsel need not express any opinion), complied when it
was filed as to form in all material respects with the
requirements of the Exchange Act and the rules and regulations
of the Commission thereunder;
(L) nothing has come to such counsel's attention to
cause it to believe that (1) (except for financial statements,
schedules and other financial and statistical information
contained or incorporated by reference therein and that part
of the Registration Statement that constitutes the Form T-1 as
to which such counsel need not express any belief) the
Registration Statement, at the time it became effective
contained, and as of the date such opinion is delivered
contains, any untrue statement of a material fact or omitted
or omits, respectively, to state a material fact required to
be stated therein or necessary to make the statements therein
not misleading, and (2) (except for financial statements,
schedules and other financial and statistical information
contained therein as to which such counsel need not express
any belief) the Prospectus as of its issue date and, as then
amended or supplemented, if applicable, as of the date such
opinion is delivered contained or contains, respectively, any
untrue statement of a material fact or omitted or omits,
respectively, to state a material fact necessary in order to
make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided that in
the case of an opinion delivered on the Commencement Date or
pursuant to Section 5(b), the opinion and belief set forth in
clause (2) above shall be deemed not to cover information
concerning an offering of particular Notes to the extent such
information will be set forth in a supplement to the Basic
Prospectus;
(M) such counsel is of the opinion ascribed to it in
the Prospectus, as then amended or supplemented, under the
caption "Taxation," and
(N) the Company is not an "investment company" or an
entity "controlled" by an "investment company," as
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<PAGE> 19
such terms are defined in the Investment Company Act of
1940, as amended.
(ii) The opinion, dated as of such date, of the Vice
President, Legal Affairs and Intellectual Property, of the Company,
to the effect that:
(A) each of the Company's Significant Subsidiaries
(as such term is defined in Rule 405 under the Securities Act)
(each, a "Subsidiary" and collectively, the "Subsidiaries")
has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the
jurisdiction of its incorporation, with full power and
authority to own, lease and operate its properties and conduct
its business as described in the Prospectus, as then amended
or supplemented, and as then currently being conducted, and
the Company and each Subsidiary is duly qualified to do
business and is in good standing in each jurisdiction in which
the character of the business conducted by it or the location
of the properties owned or leased by it makes such
qualification necessary, except where the failure to be so
qualified would not have a material adverse effect on the
condition (financial or other), results of operations,
business or business prospects of the Company and its
subsidiaries, taken as a whole;
(B) to such counsel's knowledge, except as described
in the Prospectus, as then amended or supplemented, there are
no rights to subscribe for or to purchase any securities of
the Company pursuant to any agreement to which the Company or
any of the Subsidiaries is a party or by which it or any of
its properties is bound; to such counsel's knowledge, no
holders of shares of Common Stock of the Company have
registration rights with respect to such securities;
(C) the execution and delivery by the Company of this
Agreement, the Notes, the Indenture and any applicable Written
Terms Agreement and the consummation by the Company of the
transactions contemplated thereby (i) do not conflict with or
violate the charter documents of any Subsidiary, (ii) to such
counsel's knowledge, do not result in the material breach or
violation of any of the terms or provisions of, or constitute
a material default under, any agreement to which the Company
or any of the Subsidiaries is a party or by which it is or any
of its properties is bound, and (iii) do not violate any
applicable law or any judgment, order or decree of any court
or any governmental agency or body having jurisdiction over
the Company or any of the Subsidiaries,
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<PAGE> 20
in each case in any manner that would have a material adverse
effect on the condition (financial or other), results of
operations, business or business prospects of the Company and
its subsidiaries, taken as a whole, or that would affect the
power or ability of the Company in any manner to perform its
obligations under this Agreement, the Notes, the Indenture or
any applicable Written Terms Agreement or to consummate the
transactions contemplated by the Prospectus, as then amended
or supplemented;
(D) there is no action, suit or proceeding at law or
in equity or by or before any governmental instrumentality or
other agency now pending or, to such counsel's knowledge,
threatened against or affecting the Company or any Subsidiary
or any of their respective properties, other than (i)
proceedings fairly summarized in all material respects in the
Prospectus, as then amended or supplemented, and (ii)
proceedings which are not likely to have a material adverse
effect on the Company and its subsidiaries, taken as a whole,
or on the power or ability of the Company to perform its
obligations under this Agreement, the Notes, the Indenture or
any applicable Written Terms Agreement or to consummate the
transactions contemplated thereby;
(E) the statements in Item 3 -- Legal Proceedings, of
the Company's most recent Annual Report on Form 10-K
incorporated by reference in the Prospectus and in Part II,
Item 1 -- Legal Proceedings, of the Company's Quarterly
Reports on Form 10-Q, if any, filed since such Annual Report,
insofar as such statements constitute a summary of the legal
matters, documents or proceedings referred to therein, fairly
present the information called for with respect to such legal
matters, documents or proceedings and fairly summarize in all
material respects the matters referred to therein;
(F) to such counsel's knowledge, the Company and its
Subsidiaries are in compliance with all applicable
Environmental Laws, have received all permits, licenses or
other approvals required of them under all applicable
Environmental Laws to conduct their respective businesses and
are in compliance with all terms and conditions of such
permits, licenses or approvals, in each case (i) except as
described in or contemplated by the Prospectus and (ii) except
where such noncompliance with such Environmental Laws, failure
to receive such required permits, licenses or approvals or
failure to comply with the terms and conditions of such
permits, licenses or approvals would not reasonably be
expected to, singly or
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<PAGE> 21
in the aggregate, have a material adverse effect on the
Company and its subsidiaries, taken as a whole;
(G) to such counsel's knowledge and except as
described in or contemplated by the Prospectus, as then
amended or supplemented, (i) each of the Company and its
Subsidiaries owns or possesses adequate and sufficient
licenses or other rights to use, all patents, copyrights,
trademarks, service marks, trade names, technology and knowhow
necessary in any material respect to conduct its business as
described in the Prospectus, as then amended or supplemented,
and (ii) neither the Company nor any of its Subsidiaries has
received any notice of infringement or conflict with (and
knows of no infringement or conflict with) asserted rights of
others with respect to any patents, copyrights trademarks,
service marks, trade names or knowhow which would reasonably
be expected to result in any material adverse effect upon the
Company and its subsidiaries, taken as a whole; and
(H) such counsel does not know of any statutes,
regulations, contracts, indentures, mortgages, loan
agreements, leases or other documents of a character required
to be described in the Registration Statement or the
Prospectus, as then amended or supplemented, or to be filed or
incorporated by reference as exhibits to the Registration
Statement that are not described, filed or incorporated by
reference as required by the Securities Act and the rules and
regulations of the Commission thereunder.
(iii) The opinion, dated as of such date, of ________________,
counsel for the Agents, covering the matters in subparagraphs (B),
(C), (D), (H) (but only as to the statements in the Prospectus, as
then amended or supplemented, under the captions "Description of Debt
Securities" (in the Basic Prospectus), "Description of Notes" (in the
Prospectus Supplement) and "Plan of Distribution" (in the Basic
Prospectus and in the Prospectus Supplement)), (J) and (L) in
paragraph (b)(i) above.
Notwithstanding the foregoing, the opinions described
in subparagraphs (D) (except as to due authorization of the Notes),
(E), (H)(1), (J) and (L)(2) of paragraph (b)(i) above and subparagraph
(C) of paragraph (b)(ii) above, when contained in an opinion delivered
on the Commencement Date or pursuant to Section 5(b), shall be deemed
not to address the application of the Commodity Exchange Act, as
amended, or the rules, regulations or interpretations of the Commodity
Futures Trading Commission to Notes the payments of principal or
interest on which will be determined by reference to one or
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<PAGE> 22
more currency exchange rates, commodity prices, equity indices or other
factors.
With respect to subparagraphs (J) and (L) of
paragraph (b)(i) above, Orrick, Herrington & Sutcliffe may state that
their opinion and belief are based upon their participation in the
preparation of the Registration Statement and Prospectus and any
amendments or supplements thereto and documents incorporated therein by
reference and review and discussion of the contents thereof, but are
without independent check or verification, except as specified. With
respect to subparagraphs (J) and (L) of paragraph (b)(i) above,
__________________________________, may state that their opinion and
belief are based upon their participation in the preparation of the
Registration Statement and Prospectus and any amendments or
supplements thereto (but not including documents incorporated therein
by reference) and review and discussion of the contents thereof
(including documents incorporated therein by reference), but are
without independent check or verification, except as specified.
The opinion of Orrick, Herrington & Sutcliffe
described in paragraph (b)(i) above shall be rendered to the Agents at
the request of the Company and shall so state therein.
(c) On the Commencement Date and, if called for by any Terms
Agreement, on the corresponding Settlement Date, the relevant Agents shall have
received a certificate, dated the Commencement Date or such Settlement Date, as
the case may be, and signed by an executive officer of the Company, to the
effect set forth in subparagraph (a)(iii) above and to the effect that the
representations and warranties of the Company contained in this Agreement are
true and correct as of such date and that the Company has complied with all of
the agreements and satisfied all of the conditions on its part to be performed
or satisfied on or before such date.
The officer signing and delivering such certificate may rely
upon the best of his knowledge as to proceedings threatened.
(d) On the Commencement Date and, if called for by any Terms
Agreement, on the corresponding Settlement Date, Price Waterhouse LLP,
independent public accountants, shall have furnished to the relevant Agents a
letter or letters, dated the Commencement Date or such Settlement Date, as the
case may be, in form and substance satisfactory to such Agents containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial statements and
certain financial information contained in
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<PAGE> 23
or incorporated by reference into the Prospectus, as then amended
or supplemented.
(e) On the Commencement Date and on each Settlement Date, the
Company shall have furnished to the relevant Agents such appropriate further
information, certificates and documents as they may reasonably request.
5. ADDITIONAL AGREEMENTS OF THE COMPANY. (a) Except as set
forth in Section 2(a), each time the Registration Statement or Prospectus is
amended or supplemented (other than by an amendment or supplement setting forth
solely the terms or a description of particular Notes or providing for a change
the Agents deem to be immaterial), if requested by an Agent, the Company will
deliver or cause to be delivered forthwith to each Agent a certificate signed by
an executive officer of the Company, dated the date of such amendment or
supplement, as the case may be, in form reasonably satisfactory to the Agents,
of the same tenor as the certificate referred to in Section 4(c) relating to the
Registration Statement or the Prospectus as amended or supplemented to the time
of delivery of such certificate.
(b) Each time the Company furnishes a certificate pursuant to
Section 5(a), the Company will furnish or cause to be furnished forthwith to
each Agent written opinions of independent counsel for the Company and of the
Vice President, Legal Affairs and Intellectual Property, of the Company. Any
such opinions shall be dated the date of such amendment or supplement, as the
case may be, shall be in a form satisfactory to the Agents and shall be of the
same tenor as the opinions referred to in Sections 4(b)(i) and (ii), but
modified to relate to the Registration Statement and the Prospectus as amended
and supplemented to the time of delivery of such opinion. In lieu of any such
opinion, counsel last furnishing such an opinion to an Agent may furnish to each
Agent a letter to the effect that such Agent may rely on such last opinion to
the same extent as though it were dated the date of such letter (except that
statements in such last opinion will be deemed to relate to the Registration
Statement and the Prospectus as amended or supplemented to the time of delivery
of such letter.)
(c) Except as set forth in Section 2(a), each time the
Registration Statement or the Prospectus is amended or supplemented to set forth
amended or supplemental financial information or such amended or supplemental
information is incorporated by reference in the Prospectus, if requested by an
Agent, the Company shall cause its independent public accountants forthwith to
furnish each Agent with a letter, dated the date of such amendment or
supplement, as the case may be, in form satisfactory to the Agents, of the same
tenor as the letter referred to in Section 4(d), with regard to the amended or
supplemental financial information included or
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<PAGE> 24
incorporated by reference in the Registration Statement or the Prospectus as
amended or supplemented to the date of such letter.
6. INDEMNITY AND CONTRIBUTION. (a) The Company agrees to
indemnify and hold harmless each Agent and each person, if any, who controls any
Agent within the meaning of either Section 15 of the Securities Act or Section
20 of the Exchange Act from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred by any Agent or any such controlling person in connection
with defending or investigating any such action or claim) caused by any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or any amendment thereof or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon information relating to such Agent
furnished to the Company in writing by such Agent expressly for use therein;
provided, however, that the indemnity agreement contained in this paragraph (a)
with respect to any preliminary prospectus shall not inure to the benefit of any
Agent (or any person controlling such Agent) from whom the person asserting any
such losses, claims, damages or liabilities purchased Notes, if a copy of the
Prospectus (as then amended or supplemented if the Company shall have furnished
any amendments or supplements thereto) was not sent or given by or on behalf of
such Agent to such person, if required by law so to have been delivered, at or
prior to the written confirmation of the sale of the Notes to such person, and
if the Prospectus (as so amended or supplemented) would have cured the defect
giving rise to such loss, claim, damage or liability.
(b) Each Agent agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign the
Registration Statement and each person, if any, who controls the Company within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act to the same extent as the foregoing indemnity from the Company to
such Agent, but only with reference to information relating to such Agent
furnished to the Company in writing by such Agent expressly for use in the
Registration Statement or the Prospectus or any amendments or supplements
thereto. The information set forth on the cover page of, and under the caption
"Plan of Distribution" in the Prospectus, insofar as it relates to the
distribution by the Agents of the Notes, constitutes the only written
information furnished by the Agents to the Company for use in the Registration
Statement or Prospectus.
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<PAGE> 25
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either paragraph (a) or (b) above, such
person (the "indemnified party") shall promptly notify the person against whom
such indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified parties and that all such fees
and expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by _______________ or, if _____________ is not an
indemnified party and is not reasonably likely to become an indemnified party,
by the Agents that are indemnified parties, in the case of parties indemnified
pursuant to paragraph (a) above, and by the Company, in the case of parties
indemnified pursuant to paragraph (b) above. The indemnifying party shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by the second and third
sentences of this paragraph, the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its written consent
if (i) such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying party
shall not have reimbursed the indemnified party in accordance with such request
prior to the date of such settlement. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which any indemnified party is or
could have been a party and indemnity could
-25-
<PAGE> 26
have been sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all liability
on claims that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in
paragraph (a) or (b) of this Section 6 is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein in connection with any offering of Notes, then each indemnifying
party under such paragraph, in lieu of indemnifying such indemnified party
thereunder, shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and each Agent on the other hand from the offering of
such Notes or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company on the one hand and each Agent on the other hand in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and each Agent on the other hand in connection with the offering of such Notes
shall be deemed to be in the same respective proportions as the total net
proceeds from the offering of such Notes (before deducting expenses) received by
the Company bear to the total discounts and commissions received by each Agent
in respect thereof. The relative fault of the Company on the one hand and each
Agent on the other hand shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or by such Agent and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. Each Agent's obligation to contribute pursuant to this
Section 6 shall be several in the proportion that the principal amount of the
Notes the sale of which by or through such Agent gave rise to such losses,
claims, damages or liabilities bears to the aggregate principal amount of the
Notes the sale of which by or through any Agent gave rise to such losses,
claims, damages or liabilities, and not joint.
(e) The Company and the Agents agree that it would not be just
or equitable if contribution pursuant to this Section 6 were determined by pro
rata allocation (even if the Agents were treated as one entity for such purpose)
or by any other method of allocation that does not take account of the equitable
considerations referred to in paragraph (d) of this Section 6. The amount paid
or payable by an indemnified party as a result of the
-26-
<PAGE> 27
losses, claims, damages and liabilities referred to in paragraph (d) of this
Section 6 shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 6, no Agent shall be required to
contribute any amount in excess of the amount by which the total price at which
the Notes referred to in paragraph (d) of this Section 6 that were offered and
sold to the public through such Agent exceeds the amount of any damages that
such Agent has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. 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. The remedies provided for in this
Section 6 are not exclusive and shall not limit any rights or remedies which may
otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in
this Section 6, representations, warranties and other statements of the Company,
its officers and the Agents set forth in or made pursuant to this Agreement or
any Terms Agreement will remain in full force and effect regardless of (i) any
termination of this Agreement or any such Terms Agreement, (ii) any
investigation made by or on behalf of any Agent or any person controlling any
Agent or by or on behalf of the Company, its officers or directors or any person
controlling the Company and (iii) acceptance of and payment for any of the
Notes.
7. POSITION OF THE AGENTS. In acting under this Agreement and
in connection with the sale of any Notes by the Company (other than Notes sold
to an Agent pursuant to a Terms Agreement), each Agent is acting solely as agent
of the Company and does not assume any obligation towards or relationship of
agency or trust with any purchaser of Notes. An Agent shall make reasonable
efforts to assist the Company in obtaining performance by each purchaser whose
offer to purchase Notes has been solicited by such Agent and accepted by the
Company, but such Agent shall not have any liability to the Company in the event
any such purchase is not consummated for any reason. If the Company shall
default in its obligations to deliver Notes to a purchaser whose offer it has
accepted (other than as a result of the purchaser exercising its right to refuse
to purchase the Notes because of the failure of any condition of such
purchaser's obligation to purchase Notes pursuant to Section 4 hereof), the
Company shall hold the relevant Agent harmless against any loss, claim, damage
or liability arising from or as a result of such default and shall, in
particular, pay to such Agent the commission it would have received had such
sale been consummated.
-27-
<PAGE> 28
8. TERMINATION. This Agreement may be terminated at any time
by the Company or, as to any Agent, by the Company or such Agent upon the giving
of written notice of such termination to the other parties hereto, but without
prejudice to any rights, obligations or liabilities of any party hereto accrued
or incurred prior to such termination. The termination of this Agreement shall
not require termination of any Terms Agreement, and the termination of any such
Terms Agreement shall not require termination of this Agreement. If this
Agreement is terminated, the provisions of the third paragraph of Section 2(a),
Section 2(e), the last sentence of Section 3(b) and Sections 3(c), 3(h), 6, 7,
9, 10 and 13 shall survive; provided that if at the time of termination an offer
to purchase Notes has been accepted by the Company but the time of delivery to
the purchaser or its agent of such Notes has not occurred, the provisions of
Sections 2(b), 2(c), 3(a), 3(e), 3(f), 3(g), 3(i), 4 and 5 shall also survive
until such delivery has been made.
9. NOTICES. All communications hereunder will be in writing
and effective only on receipt, and, if sent to ______________, will be mailed,
delivered or telefaxed and confirmed to ________________________________________
______________________________________________________________________________,
with a copy to ________________________________________________________________
__________________________________; if sent to ________________________, will
be mailed, delivered or telefaxed and confirmed to ____________________________
_____________________________________________________________________________;
if sent to__________________________________, will be mailed, delivered or
telefaxed and confirmed to _____________________________________________________
_________________________________; or, if sent to the Company, will be mailed,
delivered or telefaxed and confirmed to the Company at 3050 Bowers Avenue,
Santa Clara, California 95054, Attention: Treasurer (telefax number:
408-986-7825).
10. SUCCESSORS. This Agreement and any Terms Agreement will
inure to the benefit of and be binding upon the parties hereto and their
respective successors and the officers, directors and controlling persons
referred to in Section 6 and the purchasers of Notes (to the extent expressly
provided in Section 4), and no other person will have any right or obligation
hereunder.
11. AMENDMENTS. This Agreement may be amended or supplemented
if, but only if, such amendment or supplement is in writing and is signed by the
Company and each Agent; provided that the Company may from time to time, without
the consent of any Agent or the necessity of any Agent signing an amendment or
supplement to this Agreement, amend this Agreement to add as a party hereto one
-28-
<PAGE> 29
or more additional firms registered under the Exchange Act, whereupon each such
firm shall become an Agent hereunder on the same terms and conditions as the
other Agents that are parties hereto. The Company shall give each Agent prompt
notice of the addition of any party hereto as an Agent hereunder.
12. COUNTERPARTS. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
13. APPLICABLE LAW. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York.
14. HEADINGS. The headings of the sections of this Agreement
have been inserted for convenience of reference only and shall not be deemed a
part of this Agreement.
-29-
<PAGE> 30
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
between the Company and you.
Very truly yours,
APPLIED MATERIALS, INC.
By ______________________________
Title:
The foregoing Agreement
is hereby confirmed
and accepted as of the
date first above written.
[NAME OF AGENT]
By _______________________________
Title:
[NAME OF AGENT]
By _______________________________
Title:
[NAME OF AGENT]
By _______________________________
Title:
-30-
<PAGE> 31
EXHIBIT A
APPLIED MATERIALS, INC.
MEDIUM-TERM NOTES, SERIES __
TERMS AGREEMENT
____________ __, 19__
Applied Materials, Inc.
3050 Bowers Avenue
Santa Clara, California 95054
Attention:
Re: Distribution Agreement dated _______________
(the "Distribution Agreement")
We agree to purchase your Medium-Term Notes, Series __, having
the following terms:
[We agree to purchase, severally and not jointly, the
principal amount of Notes set forth below opposite our names:
<TABLE>
<CAPTION>
Principal Amount
Name of Notes
---- --------
<S> <C>
[Insert syndicate list]1
Total . . . . . . $
===========]
</TABLE>
---------------------
1 Delete if the transaction will not be syndicated.
A-1
<PAGE> 32
The Notes shall have the following terms:
<TABLE>
<CAPTION>
Floating Rate
All Notes: Fixed Rate Notes: Notes:
---------- ----------------- -------------
<S> <C> <C>
Principal amount: Interest Rate: Base rate:
Purchase price: Applicability Index maturity:
of modified
Price to public: payment upon Spread (plus or
acceleration: minus):
Settlement date
and time: If yes, state Spread
issue price: multiplier:
Place of
delivery: Amortization Alternate rate
schedule: event spread:
Maturity date:
Initial interest
Original issue date: rate:
Interest accrual Initial interest
date: reset date:
Initial accrual Interest reset
period OID: dates:
Total amount Interest reset
of OID: period:
Original yield Maximum interest
to maturity: rate:
Optional repayment Minimum interest
date(s): rate:
Optional redemption Interest payment
date(s): period:
Initial redemption Interest payment
date: date(s):
Initial redemption Calculation
percentage: agent:
Annual redemption Reporting
percentage Service:
reduction:
Index Currency:
Other provisions:
</TABLE>
The provisions of Sections 1, 2(b) and 2(c) and 3 through 6,
9, 10 and 13 of the Distribution Agreement and the related definitions are
incorporated by reference herein and shall be
A-2
<PAGE> 33
deemed to have the same force and effect as if set forth in full herein.
[During the period beginning the date hereof and continuing to
and including the Settlement Date, the Company will not, without the prior
written consent of [NAME OF RELEVANT AGENT(S)], offer, sell, contract to sell or
otherwise dispose of any debt securities of the Company or warrants to purchase
debt securities of the Company having terms substantially similar to the Notes
to which this Terms Agreement relates (other than (i) the Notes that are to be
sold pursuant hereto, (ii) Notes previously agreed to be sold by the Company and
(iii) commercial paper issued in the ordinary course of business).]
[If on the Settlement Date any one or more of the Agents shall
fail or refuse to purchase Notes that it has or they have agreed to purchase on
such date, and the aggregate amount of Notes which such defaulting Agent or
Agents agreed but failed or refused to purchase is not more than one-tenth of
the aggregate amount of the Notes to be purchased on such date, the other Agents
shall be obligated severally in the proportions that the amount of Notes set
forth opposite their respective names above bears to the aggregate amount of
Notes set forth opposite the names of all such non-defaulting Agents, or in such
other proportions as _____________ may specify, to purchase the Notes which such
defaulting Agent or Agents agreed but failed or refused to purchase on such
date; provided that in no event shall the amount of Notes that any Agent has
agreed to purchase pursuant to this Agreement be increased pursuant to this
paragraph by an amount in excess of one-ninth of such amount of Notes without
the written consent of such Agent. If on the Settlement Date any Agent or Agents
shall fail or refuse to purchase Notes and the aggregate amount of Notes with
respect to which such default occurs is more than one-tenth of the aggregate
amount of Notes to be purchased on such date, and arrangements satisfactory to
___________ and the Company for the purchase of such Notes are not made within
36 hours after such default, this Agreement shall terminate without liability on
the part of any non-defaulting Agent or the Company. In any such case either
___________ or the Company shall have the right to postpone the Settlement Date
but in no event for longer than seven days, in order that the required changes,
if any, in the Registration Statement and in the Prospectus or in any other
documents or arrangements may be effected. Any action taken under this paragraph
shall not relieve any defaulting Agent from liability in respect of any default
of such Agent under this Agreement.](2)
This Agreement is subject to termination on the terms
incorporated by reference herein. If this Agreement is so terminated, the
provisions of Sections 3(h), 6, 9, 11 and 13 of the Distribution Agreement shall
survive for the purposes of this Agreement.
-------------------
(2) Delete if the transaction will not be syndicated.
A-3
<PAGE> 34
The following information, opinions, certificates, letters and
documents referred to in Section 4 of the Distribution Agreement will be
required: ________________.
[NAME OF RELEVANT AGENT(S)]
By
------------------------
Title:
Accepted:
APPLIED MATERIALS, INC.
By
------------------------
Title:
A-4
<PAGE> 35
EXHIBIT B
APPLIED MATERIALS, INC.
MEDIUM-TERM NOTES, SERIES __
ADMINISTRATIVE PROCEDURES
---------------------------------
Explained below are the administrative procedures and specific
terms of the offering of Medium-Term Notes, Series __ (the "Notes"), on a
continuing basis by Applied Materials, Inc. (the "Company") pursuant to the
Distribution Agreement, dated as of _______________ (the "Distribution
Agreement"), among the Company and _________________________________________
(the "Agents"). The Notes will be issued under an Indenture
dated as of _______________ (the "Indenture") between the Company and _______
___________________________, as trustee (_______________________________________
___________________ the "Trustee"). In the Distribution Agreement, the Agents
have agreed to use reasonable efforts to solicit purchases of the Notes, and
the administrative procedures explained below will govern the issuance and
settlement of any Notes sold through an Agent, as agent of the Company. An
Agent, as principal, may also purchase Notes for its own account, and if
requested by such Agent, the Company and such Agent will enter into a terms
agreement (a "Terms Agreement"), as contemplated by the Distribution
Agreement. The administrative procedures explained below will govern the
issuance and settlement of any Notes purchased by an Agent, as principal, unless
otherwise specified in the applicable Terms Agreement.
______________________________________________________________
______________________ will be the Registrar, Authenticating Agent and Paying
Agent for the Notes and will perform the duties specified herein. Each Note will
be represented by either a Global Security (as defined below) delivered to the
Trustee, as agent for The Depository Trust Company ("DTC"), and recorded in the
book-entry system maintained by DTC (a "Book-Entry Note") or a certificate
delivered to the holder thereof or a person designated by such holder (a
"Certificated Note"). Except as set forth in the Indenture, an owner of a
Book-Entry Note will not be entitled to receive a Certificated Note.
Book-Entry Notes, which may be payable only in U.S. dollars,
will be issued in accordance with the administrative procedures set forth in
Part I hereof as they may subsequently be amended as the result of changes in
DTC'S operating procedures.
<PAGE> 36
Certificated Notes will be issued in accordance with the administrative
procedures set forth in Part II hereof. Unless otherwise defined herein, terms
defined in the Indenture, the Notes or any prospectus supplement relating to the
Notes shall be used herein as therein defined.
The Company will advise the Agents in writing of the employees
of the Company with whom the Agents are to communicate regarding offers to
purchase Notes and the related settlement details.
PART I: ADMINISTRATIVE PROCEDURES FOR BOOK-ENTRY NOTES
In connection with the qualification of the Book-Entry Notes
for eligibility in the book-entry system maintained by DTC, the Trustee will
perform the custodial, document control and administrative functions described
below in accordance with its respective obligations under a Letter of
Representation from the Company and the Trustee to DTC, dated as of __________,
and a Medium-Term Note Certificate Agreement between the Trustee and DTC, dated
as of _______________ (the "MTN Certificate Agreement"), and its obligations as
a participant in DTC, including DTC's Same-Day Funds Settlement System ("SDFS").
Issuance: On any date of settlement (as
defined under "Settlement" below)
for one or more Book-Entry Notes,
the Company will issue a single
global security in fully registered
form without coupons (a "Global
Security") representing up to U.S.
$200,000,000 principal amount of
all such Notes that have the same
Original Issue Date, Maturity Date
and other terms. Each Global
Security will be dated and issued
as of the date of its
authentication by the Trustee. Each
Global Security will bear an
"Interest Accrual Date," which will
be (i) with respect to an original
Global Security (or any portion
thereof), its original issuance
date and (ii) with respect to any
Global Security (or any portion
thereof) issued subsequently upon
exchange of a Global Security, or
in lieu of a destroyed, lost or
stolen Global Security, the most
recent Interest Payment Date to
which interest has
B-2
<PAGE> 37
been paid or duly provided for on
the predecessor Global Security (or
if no such payment or provision has
been made, the original issuance
date of the predecessor Global
Security), regardless of the date
of authentication of such
subsequently issued Global
Security. No Global Security will
represent any Certificated Note.
Denominations: Book-Entry Notes will be issued in
principal amounts of U.S. $100,000
or any amount in excess thereof
that is an integral multiple of
U.S. $1,000. Global Securities will
be denominated in principal amounts
not in excess of U.S. $200,000,000.
If one or more Book-Entry Notes
having an aggregate principal
amount in excess of $200,000,000
would, but for the preceding
sentence, be represented by a
single Global Security, then one
Global Security will be issued to
represent each U.S. $200,000,000
principal amount of such Book-Entry
Note or Notes and an additional
Global Security will be issued to
represent any remaining principal
amount of such Book-Entry Note or
Notes. In such a case, each of the
Global Securities representing such
Book-Entry Note or Notes shall be
assigned the same CUSIP number.
Preparation If any offer to purchase a Book-
of Pricing Entry Note is accepted by or on
Supplement: behalf of the Company, the Company
will prepare a pricing supplement
(a "Pricing Supplement") reflecting
the terms of such Note. The Company
(i) will arrange to file such
Pricing Supplement with the
Commission in accordance with the
applicable paragraph of Rule 424(b)
under the Act and (ii) will, not
later than the Business Day
following the date on which the
offer to purchase the Book-Entry
Note is accepted, deliver such
Pricing Supplement by facsimile to
the relevant Agent.
B-3
<PAGE> 38
In each instance that a Pricing
Supplement is prepared, the
relevant Agent will affix the
Pricing Supplement to Prospectuses
prior to their use. Outdated
Pricing Supplements, and the
Prospectuses to which they are
attached (other than those retained
for files), will be destroyed.
Settlement: The receipt by the Company of
immediately available funds in
payment for a Book-Entry Note and
the authentication and issuance of
the Global Security representing
such Note shall constitute
"settlement" with respect to such
Note. All offers accepted by the
Company will be settled on the
third Business Day next succeeding
the date of acceptance pursuant to
the timetable for settlement set
forth below, unless the Company and
the purchaser agree to settlement
on another day, which shall be no
earlier than the next Business Day.
Settlement Settlement Procedures with regard
Procedures: to each Book-Entry Note sold by the
Company to or through an Agent
(unless otherwise specified
pursuant to a Terms Agreement)
shall be as follows:
A. The relevant Agent will
advise the Company by
telephone that such Note is a
Book-Entry Note and of the
following settlement
information:
1. Principal amount.
2. Maturity Date.
3. In the case of a
Fixed Book-Entry Note,
the Interest Rate, the
Interest Payment Dates
and whether such Note
is an Amortizing Note,
and, if so, the
amortization schedule,
or,
B-4
<PAGE> 39
in the case of a
Floating Rate
Book-Entry Note, the
Initial Interest Rate
(if known at such
time), Interest Payment
Date(s), Interest
Payment Period,
Calculation Agent, Base
Rate, Index Maturity,
Interest Reset Period,
Initial Interest Reset
Date, Interest Reset
Dates, Spread or Spread
Multiplier (if any),
Minimum Interest Rate
(if any), Maximum
Interest Rate (if any)
and the Alternate Rate
Event Spread (if any).
4. Redemption or
repayment provisions
(if any).
5. Settlement date and
time (Original Issue
Date).
6. Interest Accrual
Date.
7. Purchase Price.
8. Agent's commission
(if any) determined as
provided in the
Distribution Agreement.
9. Any original issue
discount information
for tax purposes.
10. Trade Date.
11. Depositary
Participant Account
Number of such Agent.
12. Whether or not
such Agent is
purchasing such Note as
principal, and, if such
Note is sold through
such Agent, that
neither such Agent nor
its
B-5
<PAGE> 40
affiliate is the
purchaser of such
Note.
13. Any other
applicable terms.
B. The Company will advise
the Trustee by telephone or
electronic transmission
(confirmed in writing at any
time on the same date) of the
information set forth in
Settlement Procedure "A"
above. The Company will then
assign a CUSIP number to the
Global Security representing
such Note and will notify the
Trustee and the relevant
Agent of such CUSIP number by
telephone as soon as
practicable.
C. The Trustee will enter a
pending deposit message
through DTC's Participant
Terminal System, providing
the following settlement
information to DTC, the
relevant Agent and Standard &
Poor's Corporation:
1. The information set
forth in Settlement
Procedure "A".
2. The Initial Interest
Payment Date for such
Note, the number of
days by which such date
succeeds the related
DTC Record Date (which
in the case of Floating
Rate Notes which reset
daily or weekly, shall
be the date five
calendar days
immediately preceding
the applicable Interest
Payment Date and, in
the case of all other
Notes, shall be the
Record Date as defined
in the Note) and, if
known, the amount of
interest payable
B-6
<PAGE> 41
on such Initial
Interest Payment Date.
3. The CUSIP number of
the Global Security
representing such Note.
4. Whether such Global
Security will represent
any other Book-Entry
Note (to the extent
known at such time).
5. Whether such Note is
an Amortizing Note (by
an appropriate notation
in the comments field
of DTC's Participant
Terminal System).
6. The number of
participant accounts to
be maintained by DTC on
behalf of the relevant
Agent and the Trustee.
D. The Trustee will complete
and authenticate the Global
Security representing such
Note.
E. DTC will credit such Note
to the Trustee's participant
account at DTC.
F. The Trustee will enter an
SDFS deliver order through
DTC's Participant Terminal
System instructing DTC to (i)
debit such Note to the
Trustee's participant account
and credit such Note to the
relevant Agent's participant
account and (ii) debit such
Agent's settlement account
and credit the Trustee's
settlement account for an
amount equal to the price of
such Note less such Agent's
commission (if any). The
entry of such a deliver order
shall constitute a
representation and warranty
by the Trustee to DTC
B-7
<PAGE> 42
that (a) the Global Security
representing such Book-Entry
Note has been issued and
authenticated and (b) the
Trustee is holding such
Global Security pursuant to
the MTN Certificate
Agreement.
G. Unless the relevant Agent
is the end purchaser of such
Note, such Agent will enter
an SDFS deliver order through
DTC's Participant Terminal
System instructing DTC (i) to
debit such Note to such
Agent's participant account
and credit such Note to the
participant accounts of the
Participants with respect to
such Note and (ii) to debit
the settlement accounts of
such Participants and credit
the settlement account of
such Agent for an amount
equal to the price of such
Note.
H. Transfers of funds in
accordance with SDFS deliver
orders described in
Settlement Procedures "F" and
"G" will be settled in
accordance with SDFS
operating procedures in
effect on the settlement
date.
I. The Trustee will credit to
the account of the Company
maintained at
_________________________,
or to such other account as
the Company shall have
specified to the Trustee, in
immediately available funds
the amount transferred to the
Trustee in accordance with
Settlement Procedure "F".
J. Unless the relevant Agent
is the end purchaser of such
Note, such Agent will confirm
the purchase of such Note to
the purchaser either by
transmitting
B-8
<PAGE> 43
to the Participants with
respect to such Note a
confirmation order or orders
through DTC's institutional
delivery system or by mailing
a written confirmation to
such purchaser.
K. Monthly, the Trustee will
send to the Company a
statement setting forth the
principal amount of Notes
outstanding as of that date
under the Indenture and
setting forth a brief
description of any sales of
which the Company has advised
the Trustee that have not yet
been settled.
Settlement For sales by the Company of Book-
Procedures Entry Notes to or through an Agent
Timetable: (unless otherwise specified
pursuant to a Terms Agreement) for
settlement on the first Business
Day after the sale date, Settlement
Procedures "A" through "J" set
forth above shall be completed as
soon as possible but not later than
the respective times in New York
City set forth below:
<TABLE>
<CAPTION>
Settlement
Procedure Time
---------- ----
<S> <C>
A 11:00 A.M. on sale date
B 12:00 Noon on sale date
C 2:00 P.M. on sale date
D 9:00 A.M. on settlement date
E 10:00 A.M. on settlement date
F-G 2:00 P.M. on settlement date
H 4:45 P.M. on settlement date
I-J 5:00 P.M. on settlement date
</TABLE>
If a sale is to be settled more
than one Business Day after the
sale date, Settlement Procedures
"A", "B" and "C" shall be completed
as soon as practicable but no later
than 11:00 A.M., 12:00 Noon and
2:00 P.M., respectively, on the
first Business Day after the sale
date. If the Initial Interest Rate
for a Floating Rate Book-Entry Note
has not been
B-9
<PAGE> 44
determined at the time that
Settlement Procedure "A" is
completed, Settlement Procedures
"B" and "C" shall be completed as
soon as such rate has been
determined but no later than 12:00
Noon and 2:00 P.M., respectively,
on the first Business Day before
the settlement date. Settlement
Procedure "H" is subject to
extension in accordance with any
extension of Fedwire closing
deadlines and in the other events
specified in the SDFS operating
procedures in effect on the
settlement date.
If settlement of a Book-Entry Note
is rescheduled or cancelled, the
Trustee, after receiving notice
from the Company or the relevant
Agent, will deliver to DTC, through
DTC's Participant Terminal System,
a cancellation message to such
effect by no later than 2:00 P.M.
on the Business Day immediately
preceding the scheduled settlement
date.
Failure If the Trustee fails to enter an
to Settle: SDFS deliver order with respect to
a Book-Entry Note pursuant to
Settlement Procedure "F", the
Trustee may deliver to DTC, through
DTC's Participant Terminal System,
as soon as practicable a withdrawal
message instructing DTC to debit
such Note to the Trustee's
participant account, provided that
the Trustee's participant account
contains a principal amount of the
Global Security representing such
Note that is at least equal to the
principal amount to be debited. If
a withdrawal message is processed
with respect to all the Book-Entry
Notes represented by a Global
Security, the Trustee will mark
such Global Security "cancelled,"
make appropriate entries in the
Trustee's records and send such
cancelled Global Security to the
Company. The CUSIP number assigned
to such Global
B-10
<PAGE> 45
Security shall, in accordance with
the procedures of the CUSIP Service
Bureau of Standard & Poor's
Corporation, be cancelled and not
immediately reassigned. If a
withdrawal message is processed
with respect to one or more, but
not all, of the Book-Entry Notes
represented by a Global Security,
the Trustee will exchange such
Global Security for two Global
Securities, one of which shall
represent such Book-Entry Note or
Notes and shall be cancelled
immediately after issuance and the
other of which shall represent the
remaining Book-Entry Notes
previously represented by the
surrendered Global Security and
shall bear the CUSIP number of the
surrendered Global Security.
If the purchase price for any
Book-Entry Note is not timely paid
to the Participants with respect to
such Note by the beneficial
purchaser thereof (or a person,
including an indirect participant
in DTC, acting on behalf of such
purchaser), such Participants and,
in turn, the relevant Agent may
enter SDFS deliver orders through
DTC's Participant Terminal System
reversing the orders entered
pursuant to Settlement Procedures
"F" and "G", respectively.
Thereafter, the Trustee will
deliver the withdrawal message and
take the related actions described
in the preceding paragraph.
Notwithstanding the foregoing, upon
any failure to settle with respect
to a Book-Entry Note, DTC may take
any actions in accordance with its
SDFS operating procedures then in
effect.
In the event of a failure to settle
with respect to one or more, but
not all, of the Book-Entry Notes to
have been represented by a Global
Security, the Trustee will provide,
in accordance with Settlement
B-11
<PAGE> 46
Procedures "D" and "F", for the
authentication and issuance of a
Global Security representing the
Book-Entry Notes to be represented
by such Global Security and will
make appropriate entries in its
records.
B-12
<PAGE> 47
PART II: ADMINISTRATIVE PROCEDURES FOR CERTIFICATED NOTES
The Trustee will serve as Registrar in connection with
the Certificated Notes.
Issuance: Each Certificated Note will be
dated and issued as of the date of
its authentication by the Trustee.
Each Certificated Note will bear an
Original Issue Date, which will be
(i) with respect to an original
Certificated Note (or any portion
thereof), its original issuance
date (which will be the settlement
date) and (ii) with respect to any
Certificated Note (or portion
thereof) issued subsequently upon
transfer or exchange of a
Certificated Note or in lieu of a
destroyed, lost or stolen
Certificated Note, the original
issuance date of the predecessor
Certificated Note, regardless of
the date of authentication of such
subsequently issued Certificated
Note.
Preparation If any offer to purchase a Certi-
of Pricing ficated Note is accepted by or on
Supplement: behalf of the Company, the Company
will prepare a Pricing Supplement
reflecting the terms of such Note.
The Company (i) will arrange to
file such Pricing Supplement with
the Commission in accordance with
the applicable paragraph of Rule
424(b) under the Act and (ii) will,
not later than the Business Day
following the date on which the
offer to purchase the Certificated
Note is accepted, deliver such
Pricing Supplement by facsimile to
the relevant Agent.
In each instance that a Pricing
Supplement is prepared, the
relevant Agent will affix the
Pricing Supplement to Prospectuses
prior to their use. Outdated
Pricing Supplements, and the
Prospectuses to which they are
attached (other than
B-13
<PAGE> 48
those retained for files), will be
destroyed.
Settlement: The receipt by the Company of
immediately available funds in
exchange for an authenticated
Certificated Note delivered to the
relevant Agent and such Agent's
delivery of such Note against
receipt of immediately available
funds shall constitute "settlement"
with respect to such Note. All
offers accepted by the Company will
be settled on the third Business
Day next succeeding the date of
acceptance pursuant to the
timetable for settlement set forth
below, unless the Company and the
purchaser agree to settlement on
another date, which date shall be
no earlier than the next Business
Day.
Settlement Settlement Procedures with regard
Procedures: to each Certificated Note sold by
the Company to or through an Agent
(unless otherwise specified
pursuant to a Terms Agreement)
shall be as follows:
A. The relevant Agent will advise
the Company by telephone that such
Note is a Certificated Note and of
the following settlement
information:
1. Name in which such Note is
to be registered ("Registered
Owner").
2. Address of the Registered
Owner and address for payment
of principal and interest.
3. Taxpayer identification
number of the Registered
Owner (if available).
4. Principal amount.
5. Maturity Date.
6. In the case of a Fixed
Rate Certificated Note, the
Interest
B-14
<PAGE> 49
Rate, the Interest Payment
Dates and whether such Note
is an Amortizing Note and, if
so, the amortization
schedule, or, in the case of
a Floating Rate Certificated
Note, the Initial Interest
Rate (if known at such time),
Interest Payment Date(s),
Interest Payment Period,
Calculation Agent, Base Rate,
Index Maturity, Interest
Reset Period, Initial
Interest Reset Date, Interest
Reset Dates, Spread or Spread
Multiplier (if any), Minimum
Interest Rate (if any),
Maximum Interest Rate (if
any) and the Alternate Rate
Event Spread (if any).
7. Redemption or repayment
provisions (if any).
8. Settlement date and time
(Original Issue Date).
9. Interest Accrual Date.
10. Purchase Price.
11. Agent's commission (if
any) determined as provided
in the Distribution
Agreement.
12. Denominations.
13. Any original issue
discount information for tax
purposes.
14. Trade Date.
15. Depositary Participant
Account Number of such Agent.
16. Whether or not such
Agent is purchasing such Note
as principal, and, if such
Note is sold through such
Agent, that neither such
Agent nor its affiliate is
the purchaser of such Note.
B-15
<PAGE> 50
17. Any other applicable
terms.
B. The Company will advise the
Trustee by telephone or
electronic transmission
(confirmed in writing at any time
on the same date) of the
information set forth in
Settlement Procedure "A" above.
C. The Company will have
delivered to the Trustee a
pre-printed four-ply packet for
such Note, which packet will
contain the following documents
in forms that have been approved
by the Company, the relevant
Agent and the Trustee:
1. Note with customer
confirmation.
2. Stub One - For the Trustee.
3. Stub Two - For the relevant
Agent.
4. Stub Three - For the Company.
D. The Trustee will complete such
Note and authenticate such Note
and deliver it (with the
confirmation) and Stubs One and
Two to the relevant Agent, and
such Agent will acknowledge
receipt of the Note by stamping
or otherwise marking Stub One and
returning it to the Trustee. Such
delivery will be made only
against such acknowledgment of
receipt and evidence that
instructions have been given by
such Agent for payment to the
account of the Company at
__________________________, or
to such other account as the
Company shall have specified to
such Agent and the Trustee, in
immediately available funds, of
an amount equal to the price of
such Note less such Agent's
commission (if any). In the event
that the instructions given by
such Agent for payment to the
account of the Company are
revoked, the Company
B-16
<PAGE> 51
will as promptly as possible wire
transfer to the account of such
Agent an amount of immediately
available funds equal to the
amount of such payment made.
E. Unless the relevant Agent is
the end purchaser of such Note,
such Agent will deliver such Note
(with confirmation) to the
customer against payment in
immediately available funds. Such
Agent will obtain the
acknowledgment of receipt of such
Note by retaining Stub Two.
F. The Trustee will send Stub
Three to the Company by
first-class mail. Monthly, the
Trustee will also send to the
Company a statement setting forth
the principal amount of the Notes
outstanding as of that date under
the Indenture and setting forth a
brief description of any sales of
which the Company has advised the
Trustee that have not yet been
settled.
Settlement For sales by the Company of
Procedures Certificated Notes to or through
Timetable: an Agent (unless otherwise
specified pursuant to a Terms
Agreement), Settlement Procedures
"A" through "F" set forth above
shall be completed on or before
the respective times in New York
City set forth below:
<TABLE>
<CAPTION>
Settlement
Procedure Time
---------- ----
<S> <C>
A 2:00 P.M. on day before
settlement date
B 3:00 P.M. on day before
settlement date
C-D 2:15 P.M. on settlement
date
E 3:00 P.M. on settlement
date
F 5:00 P.M. on settlement
date
</TABLE>
Failure
B-17
<PAGE> 52
to Settle: If a purchaser fails to accept
delivery of and make payment for
any Certificated Note, the
relevant Agent will notify the
Company and the Trustee by
telephone and return such Note to
the Trustee. Upon receipt of such
notice, the Company will
immediately wire transfer to the
account of such Agent an amount
equal to the price of such Note
less such Agent's commission in
respect of such Note (if any).
Such wire transfer will be made
on the settlement date, if
possible, and in any event not
later than the Business Day
following the settlement date. If
the failure shall have occurred
for any reason other than a
default by such Agent in the
performance of its obligations
hereunder and under the
Distribution Agreement, then the
Company will reimburse such Agent
or the Trustee, as appropriate,
on an equitable basis for its
loss of the use of the funds
during the period when they were
credited to the account of the
Company. Immediately upon receipt
of the Certificated Note in
respect of which such failure
occurred, the Trustee will mark
such Note "cancelled," make
appropriate entries in the
Trustee's records and send such
Note to the Company.
B-18
<PAGE> 1
Exhibit 4.3
[FORM OF FACE OF SECURITY]
Fixed Rate Note
REGISTERED REGISTERED
No. FXR- [PRINCIPAL AMOUNT]
CUSIP:*
Unless this certificate is presented by an authorized representative of The
Depository Trust Company (55 Water Street, New York, New York) to the issuer or
its agent for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or such other name
as requested by an authorized representative of The Depository Trust Company
and any payment is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered
owner hereof, Cede & Co., has an interest herein.*
IF APPLICABLE, THE "ISSUE PRICE," "TOTAL AMOUNT OF OID," "ORIGINAL YIELD TO
MATURITY" AND "INITIAL ACCRUAL PERIOD OID" (COMPUTED UNDER THE APPROXIMATE
METHOD) SET FORTH BELOW HAVE BEEN COMPLETED SOLELY FOR THE PURPOSES OF APPLYING
THE FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES.
APPLIED MATERIALS, INC.
MEDIUM-TERM NOTE, SERIES ___
(FIXED RATE)
<TABLE>
<S> <C> <C> <C>
ORIGINAL ISSUE DATE: INITIAL REDEMPTION DATE: INTEREST RATE: STATED MATURITY:
INTEREST ACCRUAL DATE: INITIAL REDEMPTION PERCENTAGE: APPLICABILITY OF MODIFIED OPTIONAL REPAYMENT
PAYMENT UPON ACCELERATION: DATE(S):
TOTAL AMOUNT OF OID: ANNUAL REDEMPTION PERCENTAGE INTEREST PAYMENT DATE(S): TERMS OF AMORTIZING
REDUCTION: NOTES:
ORIGINAL YIELD TO MATURITY: INITIAL ACCRUAL PERIOD OID: ISSUE PRICE: OTHER PROVISIONS:
</TABLE>
Applied Materials, Inc., a Delaware corporation (together with
its successors and assigns, the "Issuer"), for value received, hereby promises
to pay to , or registered assignees, the principal sum of
, on the Stated Maturity specified above (except to the extent previously
redeemed or repaid) and, unless this Note is an Amortizing Note (as defined
below), to pay interest thereon at the Interest Rate per annum specified above
from the Interest Accrual Date specified above until the principal hereof is
paid or duly made available for payment (except as provided below),
semiannually in arrears on the
----------------------------------
* Applies only if this Note is a Registered Global Security.
<PAGE> 2
Interest Payment Dates specified above commencing on the Interest Payment Date
next succeeding the Interest Accrual Date specified above, and at Maturity;
provided, however, that if the Interest Accrual Date occurs between a Record
Date, as defined below, and the next succeeding Interest Payment Date, interest
payments will commence on the second Interest Payment Date succeeding the
Interest Accrual Date to the registered Holder of this Note on the Record Date
with respect to such second Interest Payment Date.
Interest on this Note will accrue from the most recent
Interest Payment Date to which interest has been paid or duly provided for, or,
if no interest has been paid or duly provided for, from the Interest Accrual
Date, until the principal hereof has been paid or duly made available for
payment (except as provided below). The interest so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, subject to
certain exceptions described herein, be paid to the person in whose name this
Note (or one or more predecessor Notes) is registered at the close of business
on the date 15 calendar days prior to such Interest Payment Date (whether or
not a Business Day) (each such date a "Record Date"); provided, however, that
interest payable at Maturity will be payable to the person to whom the
principal hereof shall be payable. As used herein, "Business Day" means any
day, other than a Saturday or Sunday, that is neither a legal holiday nor a day
on which banking institutions are authorized or required by law or regulation
to close in The City of New York.
The Issuer may issue a Note in the form of an Amortizing Note,
which pays a level amount in respect of both interest and principal amortized
over the life of the Note. Unless otherwise specified on the face hereof,
payments of principal and interest on Amortizing Notes will be made either
quarterly on each Interest Payment Date or semiannually on each Interest
Payment Date, as set forth on the face hereof, and at Maturity. Payments with
respect to Amortizing Notes will be applied first to interest due and payable
thereon and then to the reduction of the unpaid principal amount thereof. A
table setting forth repayment information in respect of each Amortizing Note
will be provided to the original Holder and will be available, upon request, to
subsequent Holders.
Payment of the principal of this Note, any premium and the
interest due at Maturity will be made in immediately available funds upon
surrender of this Note at the office or agency of the Paying Agent, as defined
on the reverse hereof, maintained for that purpose in the City of __________, or
at such other paying agency as the Issuer may determine. Payments of interest,
other than interest due at Maturity, will be made by U.S. dollar check mailed to
the address of the person entitled thereto as such address shall appear in the
Note register. Notwithstanding the foregoing, (a) The Depository Trust Company,
as Holder of book-entry Notes, shall be entitled to receive payments of interest
by wire transfer of immediately available funds and (b) a Holder of U.S.
$10,000,000 or
-2-
<PAGE> 3
more in aggregate principal amount of Notes having like tenor and terms will be
entitled to receive payments of interest, other than interest due at Maturity,
by wire transfer of immediately available funds if appropriate wire transfer
instructions have been received by the Paying Agent in writing not less than 15
calendar days prior to the applicable Interest Payment Date.
Reference is hereby made to the further provisions of this
Note set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual signature,
this Note shall not be entitled to any benefit under the Indenture, as defined
on the reverse hereof, or be valid or obligatory for any purpose.
-3-
<PAGE> 4
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly
executed under its corporate seal.
DATED: APPLIED MATERIALS, INC.
[SEAL] By
-----------------------------------
Name:
----------------------------
Title:
---------------------------
---------------------------
ATTEST
By
-----------------------------------
Secretary
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes of the
series designated therein referred
to in the within-mentioned Indenture.
--------------------------------,
as Trustee
By
-------------------------------
As Authenticating Agent
By
-------------------------------
Authorized Officer
-4-
<PAGE> 5
[FORM OF REVERSE OF SECURITY]
This Note is one of a duly authorized issue of Medium-Term
Notes, having maturities from more than nine months to 30 years from the date
of issue (the "Notes"), of the Issuer. The Notes are issuable under an
Indenture, dated as of _______________ (the "Indenture"), between the Issuer
and __________________________________, as Trustee (the "Trustee," which term
includes any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities of the Issuer,
the Trustee and Holders of the Notes and the terms upon which the Notes are,
and are to be, authenticated and delivered. The Issuer has appointed _________
_______________________, at its corporate trust office in the City of _________
as the paying agent (the "Paying Agent," which term includes any additional or
successor Paying Agent appointed by the Issuer) with respect to the Notes. The
terms of individual Notes may vary with respect to interest rates, interest
rate formulas, issue dates, maturity dates, or otherwise, all as provided in
the Indenture. To the extent not inconsistent herewith, the terms of the
Indenture are hereby incorporated by reference herein.
This Note will not be subject to any sinking fund and, unless
otherwise provided on the face hereof in accordance with the provisions of the
following two paragraphs, will not be redeemable or subject to repayment at the
option of the Holder prior to the Stated Maturity.
If so indicated on the face of this Note, this Note may be
redeemed in whole or in part at the option of the Issuer on or after the
Initial Redemption Date specified on the face hereof on the terms set forth on
the face hereof, together with interest accrued and unpaid hereon to the date
of redemption (except as provided below). If this Note is subject to "Annual
Redemption Percentage Reduction," the Initial Redemption Percentage indicated
on the face hereof will be reduced on each anniversary of the Initial
Redemption Date by the Annual Redemption Percentage Reduction specified on the
face hereof until the redemption price of this Note is 100% of the principal
amount hereof, together with interest accrued and unpaid hereon to the date of
redemption (except as provided below). Notice of redemption shall be mailed to
the registered Holders of the Notes designated for redemption at their
addresses as the same shall appear on the Note register not less than 30 nor
more than 60 days prior to the date fixed for redemption, subject to all the
conditions and provisions of the Indenture. In the event of redemption of this
Note in part only, a new Note or Notes for the amount of the unredeemed portion
hereof shall be issued in the name of the Holder hereof upon the cancellation
hereof.
-5-
<PAGE> 6
If so indicated on the face of this Note, this Note will be
subject to repayment at the option of the Holder on the Optional Repayment Date
or Dates specified on the face hereof on the terms set forth herein. On any
Optional Repayment Date, this Note will be repayable in whole or in part in
increments of $1,000 (provided that any remaining principal amount hereof shall
not be less than the minimum authorized denomination hereof) at the option of
the Holder hereof at a price equal to 100% of the principal amount to be
repaid, together with interest accrued and unpaid hereon to the date of
repayment (except as provided below). For this Note to be repaid at the option
of the Holder hereof, the Trustee must receive at its agent's office in the
City of ___________, not less than 15 nor more than 30 days prior to the date of
repayment, (i) this Note with the form entitled "Option to Elect Repayment"
below duly completed or (ii) a telegram, telex, facsimile transmission or a
letter from a member of a national securities exchange or the National
Association of Securities Dealers, Inc. or a commercial bank or a trust company
in the United States setting forth the name of the Holder of this Note, the
principal amount hereof, the certificate number of this Note or a description
of this Note's tenor and terms, the principal amount hereof to be repaid, a
statement that the option to elect repayment is being exercised thereby and a
guarantee that this Note, together with the form entitled "Option to Elect
Repayment" duly completed, will be received by the Trustee not later than the
fifth Business Day after the date of such telegram, telex, facsimile
transmission or letter; provided, that such telegram, telex, facsimile
transmission or letter shall only be effective if this Note and form duly
completed are received by the Trustee by such fifth Business Day. Exercise of
such repayment option by the Holder hereof shall be irrevocable. In the event
of repayment of this Note in part only, a new Note or Notes for the amount of
the unpaid portion hereof shall be issued in the name of the Holder hereof upon
the cancellation hereof.
Interest payments on this Note will include interest accrued
to but excluding the Interest Payment Dates or the Stated Maturity (or any
earlier redemption or repayment date), as the case may be. Interest payments
for this Note will be computed and paid on the basis of a 360-day year of
twelve 30-day months.
In the case where the Interest Payment Date or the date of
Maturity does not fall on a Business Day, payment of interest, premium, if any,
or principal otherwise payable on such date need not be made on such date, but
may be made on the next succeeding Business Day with the same force and effect
as if made on the Interest Payment Date or at Maturity, and no interest on such
payment shall accrue as a result of such delayed payment.
This Note and all the obligations of the Issuer hereunder are
direct, unsecured obligations of the Issuer and rank without preference or
priority among themselves and pari passu with all other existing and future
unsecured and unsubordinated indebtedness
-6-
<PAGE> 7
of the Issuer, subject to certain statutory exceptions in the event of
liquidation upon insolvency.
This Note, and any Note or Notes issued upon transfer or
exchange hereof, is issuable only in fully registered form, without coupons,
and is issuable only in denominations of U.S. $100,000 and any integral
multiple of U.S. $1,000 in excess thereof.
______________________________ has been appointed registrar for
the Notes, and the Trustee will maintain at its office in ___________________, a
register for the registration and transfer of Notes. As provided in the
Indenture and subject to certain limitations set forth therein and as may be
set forth on the face hereof, this Note may be transferred at the aforesaid
office of the Trustee by surrendering this Note for cancellation, accompanied
by a written instrument of transfer in form satisfactory to the Trustee and
duly executed by the registered Holder hereof in person or by the Holder's
attorney duly authorized in writing, and thereupon the Trustee shall issue in
the name of the transferee or transferees, in exchange herefor, a new Note or
Notes having identical terms and provisions and having a like aggregate
principal amount in authorized denominations, subject to the terms and
conditions set forth herein. Notes are exchangeable at said office for other
Notes of other authorized denominations of equal aggregate principal amount
having identical terms and provisions. All such exchanges and transfers of
Notes will be free of charge, but the Issuer may require payment of a sum
sufficient to cover any tax or other governmental charge in connection
therewith. All Notes surrendered for exchange shall be accompanied by a
written instrument of transfer in form satisfactory to the Issuer and the
Trustee and executed by the registered Holder in person or by the Holder's
attorney duly authorized in writing. The date of registration of any Note
delivered upon any exchange or transfer of Notes shall be such that no gain or
loss of interest results from such exchange or transfer.
If an Event of Default with respect to Notes of this series
shall occur and be continuing, the principal of the Notes of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Unless otherwise specified on the face hereof, if any Original
Issue Discount Note (as defined below) is redeemed by the Issuer or repaid at
the option of the Holder, each as described above, or if the principal of any
Original Issue Discount Note is declared to be due and payable immediately
pursuant to this paragraph, the amount of principal due and payable with
respect to this Note shall be limited to the aggregate principal amount of this
Note multiplied by the sum of Issue Price (expressed as a percentage of the
aggregate principal amount) plus the original issue discount amortized from the
date of issue to the date of redemption, repayment or declaration, as
applicable, which amortization shall be calculated using the "interest method"
(computed in accordance with generally accepted
-7-
<PAGE> 8
accounting principles in effect on the date of redemption, repayment or
declaration). Unless otherwise specified on the face hereof, an Original Issue
Discount Note is a Note which has a principal amount payable on the Stated
Maturity that exceeds its Issue Price by at least 0.25% of its principal amount
payable on the Stated Maturity, multiplied by the number of complete years from
the Original Issue Date to the Stated Maturity for this Note.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Issuer and the rights of the Holders of the Notes of each
series to be affected under the Indenture at any time by the Issuer and the
Trustee with the consent of the Holders of not less than a majority in
principal amount of the Notes at the time Outstanding of each series to be
affected. The Indenture also contains provisions permitting the Holders of
specified percentages in principal amount of the Notes of each series at the
time Outstanding on behalf of the Holders of all Notes of such series, to waive
compliance by the Issuer with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Note shall be conclusive and binding upon such
Holder and upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Note.
Each of the defeasance and covenant defeasance provisions of
Article Thirteen of the Indenture shall apply to this Note.
So long as this Note shall be outstanding, the Issuer will
cause to be maintained an office or agency for the payment of the principal of
and premium, if any, and interest on this Note as herein provided in the City of
___________________, and an office or agency in said City of ________________
for the registration, transfer and exchange as aforesaid of the Notes. The
Issuer may designate other agencies for the payment of said principal, premium
and interest at such place or places (subject to applicable laws and
regulations) as the Issuer may decide. So long as there shall be such an
agency, the Issuer shall keep the Trustee advised of the names and locations of
such agencies, if any are so designated.
No provision of this Note or of the Indenture shall alter or
impair the obligation of the Issuer, which is absolute and unconditional, to
pay the principal of, premium, if any, and interest on this Note at the time,
place, and rate, and in the coin or currency, herein prescribed unless
otherwise agreed between the Issuer and the registered Holder of this Note.
Prior to due presentment of this Note for registration of
transfer, the Issuer, the Trustee and any agent of the Issuer or the Trustee
may treat the Holder in whose name this Note is
-8-
<PAGE> 9
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and none of the Issuer, the Trustee or any such agent shall be
affected by notice to the contrary.
This Note shall for all purposes be governed by, and construed
in accordance with, the laws of the State of New York.
All terms used in this Note which are defined in the Indenture
and not otherwise defined herein shall have the meanings assigned to them in
the Indenture.
-9-
<PAGE> 10
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this instrument, shall be construed as though they were written out
in full according to applicable laws or regulations:
TEN COM-as tenants in common
TEN ENT-as tenants by the entireties
JT TEN-as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT- Custodian
----------- --------------
(Cust) (Minor)
Under Uniform Gifts to Minors Act
-------------------
(State)
Additional abbreviations may also be used though not in the
above list.
________________
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<PAGE> 11
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
[PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE]
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-----------------------------------------------------------
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[PLEASE PRINT OR TYPE NAME AND ADDRESS INCLUDING ZIP CODE, OF ASSIGNEE]
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the within Note and all rights thereunder, hereby irrevocably
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constituting and appointing such person attorney to transfer
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such note on the books of the Issuer, with full power of
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substitution in the premises.
Dated:
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NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of the within Note in every
particular without alteration or
enlargement or any change whatsoever.
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<PAGE> 12
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the
Issuer to repay the within Note (or portion thereof specified below) pursuant
to its terms at a price equal to the principal amount thereof, together with
interest to the Optional Repayment Date, to the undersigned at
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--------------------------------------------------------------------------------
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(Please print or typewrite
name and address of the undersigned)
If less than the entire principal amount of the within Note is
to be repaid, specify the portion thereof which the Holder elects to have
repaid: __________________; and specify the denomination or denominations
(which shall not be less than the minimum authorized denomination) of the Notes
to be issued to the Holder for the portion of the within Note not being repaid
(in the absence of any such specification, one such Note will be issued for the
portion not being repaid): ___________________________.
Dated:
-------------------- ------------------------------------------
NOTICE: The signature on this Option to
Elect Repayment must correspond with the
name as written upon the face of the
within instrument in every particular
without alteration or enlargement.
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<PAGE> 1
Exhibit 4.4
[FORM OF FACE OF SECURITY]
Floating Rate Note
REGISTERED REGISTERED
No. FLR- [PRINCIPAL AMOUNT]
CUSIP:*
Unless this certificate is presented by an authorized representative of The
Depository Trust Company (55 Water Street, New York, New York) to the issuer or
its agent for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or such other name
as requested by an authorized representative of The Depository Trust Company
and any payment is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered
owner hereof, Cede & Co., has an interest herein.*
IF APPLICABLE, THE "ISSUE PRICE," "TOTAL AMOUNT OF OID," "ORIGINAL YIELD TO
MATURITY" AND "INITIAL ACCRUAL PERIOD OID" (COMPUTED UNDER THE APPROXIMATE
METHOD) SET FORTH BELOW HAVE BEEN COMPLETED SOLELY FOR THE PURPOSES OF APPLYING
THE FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES.
APPLIED MATERIALS, INC.
MEDIUM-TERM NOTE, SERIES ____
(FLOATING RATE)
<TABLE>
<S> <C> <C>
BASE RATE: ORIGINAL ISSUE DATE: STATED MATURITY:
INDEX MATURITY: INTEREST ACCRUAL DATE: INTEREST PAYMENT DATE(S):
SPREAD (PLUS OR MINUS): INITIAL INTEREST RATE: INTEREST PAYMENT PERIOD:
ALTERNATE RATE INITIAL INTEREST RESET DATE: INTEREST RESET PERIOD:
EVENT SPREAD:
SPREAD MULTIPLIER: MAXIMUM INTEREST RATE: INTEREST RESET DATES:
REPORTING SERVICE: MINIMUM INTEREST RATE: CALCULATION AGENT:
INDEX CURRENCY: INITIAL REDEMPTION DATE: TOTAL AMOUNT OF OID:
ISSUE PRICE: INITIAL REDEMPTION PERCENTAGE: ORIGINAL YIELD TO MATURITY:
OTHER PROVISIONS: ANNUAL REDEMPTION PERCENTAGE INITIAL ACCRUAL PERIOD OID:
REDUCTION:
OPTIONAL REPAYMENT DATE(S):
</TABLE>
Applied Materials, Inc., a Delaware corporation (together with
its successors and assigns, the "Issuer"), for value received, hereby promises
to pay to
-----------------------------------
* Applies only if this Note is a Registered Global Security.
<PAGE> 2
, or registered assignees, the principal sum of
, on the Stated Maturity specified above (except to the extent redeemed or
repaid prior to the Stated Maturity) and to pay interest thereon, from the
Interest Accrual Date specified above at a rate per annum equal to the Initial
Interest Rate specified above until the Initial Interest Reset Date specified
above, and thereafter at a rate per annum determined in accordance with the
provisions specified on the reverse hereof until the principal hereof is paid
or duly made available for payment. The Issuer will pay interest in arrears
monthly, quarterly, semiannually or annually as specified above as the Interest
Payment Period on each Interest Payment Date (as specified above), commencing
with the first Interest Payment Date next succeeding the Interest Accrual Date
specified above, and on the date of Maturity; provided, however, that if the
Interest Accrual Date occurs between a Record Date, as defined below, and the
next succeeding Interest Payment Date, interest payments will commence on the
second Interest Payment Date succeeding the Interest Accrual Date to the
registered Holder of this Note on the Record Date with respect to such second
Interest Payment Date; and provided, further, that if an Interest Payment Date
(other than the date of Maturity) would fall on a day that is not a Business
Day, as defined on the reverse hereof, such Interest Payment Date shall be the
following day that is a Business Day, except that if the Base Rate specified
above is LIBOR and such next Business Day falls in the next calendar month,
such Interest Payment Date shall be the immediately preceding day that is a
Business Day; and provided, further, that if the date of Maturity would fall on
a day that is not a Business Day, the payment of principal, premium, if any,
and interest shall be made on the following day that is a Business Day and no
interest shall accrue for the period from and after such date of Maturity.
Interest on this Note will accrue from the most recent date to
which interest has been paid or duly provided for, or, if no interest has been
paid or duly provided for, from the Interest Accrual Date, until the principal
hereof has been paid or duly made available for payment. The interest so
payable, and punctually paid or duly provided for, on any Interest Payment Date
will, subject to certain exceptions described herein, be paid to the person in
whose name this Note (or one or more predecessor Notes) is registered at the
close of business on the date 15 calendar days prior to such Interest Payment
Date (whether or not a Business Day) (each such date a "Record Date");
provided, however, that interest payable on the date of Maturity will be
payable to the person to whom the principal hereof shall be payable.
Payment of the principal of this Note, any premium and the
interest due at Maturity will be made in immediately available funds upon
surrender of this Note at the office or agency of the Paying Agent, as defined
on the reverse hereof, maintained for that purpose in the City of __________, or
at such other paying agency as the Issuer may determine. Payments of interest,
other than interest due at Maturity, will be made by U.S. dollar check mailed
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<PAGE> 3
to the address of the person entitled thereto as such address shall appear in
the Note register. Notwithstanding the foregoing, (a) The Depository Trust
Company, as Holder of book-entry Notes, shall be entitled to receive payments
of interest by wire transfer of immediately available funds and (b) a Holder of
U.S. $10,000,000 or more in aggregate principal amount of Notes having like
tenor and terms will be entitled to receive payments of interest, other than
interest due at Maturity, by wire transfer of immediately available funds if
appropriate wire transfer instructions have been received by the Paying Agent
in writing not less than 15 calendar days prior to the applicable Interest
Payment Date.
Reference is hereby made to the further provisions of this
Note set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual signature,
this Note shall not be entitled to any benefit under the Indenture, as defined
on the reverse hereof, or be valid or obligatory for any purpose.
-3-
<PAGE> 4
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly
executed under its corporate seal.
DATED: APPLIED MATERIALS, INC.
[SEAL] By
---------------------------
Name:
---------------------
Title:
---------------------
and
---------------------
Officer
ATTEST
By
---------------------------
Secretary
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes of the
series designated therein referred
to in the within-mentioned Indenture.
------------------------------------
as Trustee
By
-------------------------------
As Authenticating Agent
By
-------------------------------
Authorized Officer
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<PAGE> 5
[FORM OF REVERSE OF SECURITY]
This Note is one of a duly authorized issue of Medium-Term
Notes, having maturities from more than nine months to 30 years from the date
of issue (the "Notes"), of the Issuer. The Notes are issuable under an
Indenture, dated as of _______________ (the "Indenture"), between the Issuer
and __________________________________, as Trustee (the "Trustee," which term
includes any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities of the Issuer,
the Trustee and Holders of the Notes and the terms upon which the Notes are,
and are to be, authenticated and delivered. The Issuer has appointed _______
______________________, at its corporate trust office in the City of _______ as
the paying agent (the "Paying Agent," which term includes any additional or
successor Paying Agent appointed by the Issuer) with respect to the Notes. The
terms of individual Notes may vary with respect to interest rates, interest
rate formulas, issue dates, maturity dates, or otherwise, all as provided in
the Indenture. To the extent not inconsistent herewith, the terms of the
Indenture are hereby incorporated by reference herein.
This Note will not be subject to any sinking fund and, unless
otherwise provided on the face hereof in accordance with the provisions of the
following two paragraphs, will not be redeemable or subject to repayment at the
option of the Holder prior to Maturity.
Unless otherwise indicated on the face of this Note, this Note
may not be redeemed prior to the Stated Maturity. If so indicated on the face
of this Note, this Note may be redeemed in whole or in part at the option of
the Issuer on or after the Initial Redemption Date specified on the face hereof
on the terms set forth on the face hereof, together with interest accrued and
unpaid hereon to the date of redemption. If this Note is subject to "Annual
Redemption Percentage Reduction," the Initial Redemption Percentage indicated
on the face hereof will be reduced on each anniversary of the Initial
Redemption Date by the Annual Redemption Percentage Reduction specified on the
face hereof until the redemption price of this Note is 100% of the principal
amount hereof, together with interest accrued and unpaid hereon to the date of
redemption. Notice of redemption shall be mailed to the registered Holders of
the Notes designated for redemption at their addresses as the same shall appear
on the Note register not less than 30 nor more than 60 days prior to the date
fixed for redemption, subject to all the conditions and provisions of the
Indenture. In the event of redemption of this Note in part only, a new Note or
Notes for the amount of the unredeemed portion hereof shall be issued in the
name of the Holder hereof upon the cancellation hereof.
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<PAGE> 6
Unless otherwise indicated on the face of this Note, this Note
shall not be subject to repayment at the option of the Holder prior to the
Stated Maturity. If so indicated on the face of this Note, this Note will be
subject to repayment at the option of the Holder on the Optional Repayment Date
or Dates specified on the face hereof on the terms set forth herein. On any
Optional Repayment Date, this Note will be repayable in whole or in part in
increments of $1,000 (provided that any remaining principal amount hereof shall
not be less than the minimum authorized denomination hereof) at the option of
the Holder hereof at a price equal to 100% of the principal amount to be
repaid, together with interest accrued and unpaid hereon to the date of
repayment. For this Note to be repaid at the option of the Holder hereof, the
Trustee must receive at its agent's office in the City of __________, not
less than 15 nor more than 30 days prior to the date of repayment, (i) this
Note with the form entitled "Option to Elect Repayment" below duly completed or
(ii) a telegram, telex, facsimile transmission or a letter from a member of a
national securities exchange or the National Association of Securities Dealers,
Inc. or a commercial bank or a trust company in the United States setting forth
the name of the Holder of this Note, the principal amount hereof, the
certificate number of this Note or a description of this Note's tenor and
terms, the principal amount hereof to be repaid, a statement that the option to
elect repayment is being exercised thereby and a guarantee that this Note,
together with the form entitled "Option to Elect Repayment" duly completed,
will be received by the Trustee not later than the fifth Business Day after the
date of such telegram, telex, facsimile transmission or letter; provided, that
such telegram, telex, facsimile transmission or letter shall only be effective
if this Note and form duly completed are received by the Trustee by such fifth
Business Day. Exercise of such repayment option by the Holder hereof shall be
irrevocable. In the event of repayment of this Note in part only, a new Note
or Notes for the amount of the unpaid portion hereof shall be issued in the
name of the Holder hereof upon the cancellation hereof.
This Note will bear interest at the rate determined in
accordance with the applicable provisions below by reference to the Base Rate
shown on the face hereof based on the Index Maturity, if any, shown on the face
hereof (i) plus or minus the Spread, if any, and/or (ii) multiplied by the
Spread Multiplier, if any, specified on the face hereof. Commencing with the
Initial Interest Reset Date specified on the face hereof, the rate at which
interest on this Note is payable shall be reset as of each Interest Reset Date
(as used herein, the term "Interest Reset Date" shall include the Initial
Interest Reset Date). The Interest Reset Dates will be the Interest Reset
Dates specified on the face hereof; provided, however, that the interest rate
in effect for the period from the Interest Accrual Date to the Initial Interest
Reset Date will be the Initial Interest Rate. If any Interest Reset Date would
otherwise be a day that is not a Business Day, such Interest Reset Date shall
be postponed to the next succeeding day that is a
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<PAGE> 7
Business Day, except that if the Base Rate specified on the face hereof is
LIBOR and such Business Day is in the next succeeding calendar month, such
Interest Reset Date shall be the next preceding Business Day. As used herein,
"Business Day" means any day, other than a Saturday or Sunday, that is neither
a legal holiday nor a day on which banking institutions are authorized or
required by law or regulation to close in The City of New York and, if this
Note bears interest calculated by reference to LIBOR, that is also a London
Banking Day.
The Interest Determination Date pertaining to an Interest
Reset Date for Notes bearing interest calculated by reference to the CD Rate,
Commercial Paper Rate, Federal Funds Rate, Prime Rate and CMT Rate will be the
second Business Day next preceding such Interest Reset Date. The Interest
Determination Date pertaining to an Interest Reset Date for Notes bearing
interest calculated by reference to LIBOR shall be the second London Banking
Day preceding such Interest Reset Date. As used herein, "London Banking Day"
means any day on which dealings in deposits in the Index Currency (as defined
herein) are transacted in the London interbank market. The Interest
Determination Date pertaining to an Interest Reset Date for Notes bearing
interest calculated by reference to the Treasury Rate shall be the day of the
week in which such Interest Reset Date falls on which Treasury bills normally
would be auctioned; provided, however, that if as a result of a legal holiday
an auction is held on the Friday of the week preceding such Interest Reset
Date, the related Interest Determination Date shall be such preceding Friday;
and provided, further, that if an auction shall fall on any Interest Reset
Date, then the Interest Reset Date shall instead be the first Business Day
following the date of such auction.
Unless otherwise specified on the face hereof, the
"Calculation Date" pertaining to an Interest Determination Date will be the
earlier of (i) the tenth calendar day after such Interest Determination Date
or, if such day is not a Business Day, the next succeeding Business Day, or
(ii) the Business Day preceding the applicable Interest Payment Date or date of
Maturity (or, with respect to any principal amount to be redeemed or repaid,
any redemption or repayment date), as the case may be.
Determination of CD Rate. If the Base Rate specified on the
face hereof is the CD Rate, the CD Rate with respect to this Note shall be
determined on each Interest Determination Date and shall be the rate on such
date for negotiable certificates of deposit having the Index Maturity specified
on the face hereof as published by the Board of Governors of the Federal
Reserve System in "Statistical Release H.15(519), Selected Interest Rates," or
any successor publication of the Board of Governors of the Federal Reserve
System ("H.15(519)"), under the heading "CDs (Secondary Market)," or, if not so
published by 9:00 A.M., New York City time, on the Calculation Date pertaining
to such Interest Determination
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<PAGE> 8
Date, the CD Rate will be the rate on such Interest Determination Date for
negotiable certificates of deposit of the Index Maturity specified on the face
hereof as published by the Federal Reserve Bank of New York in its daily
statistical release "Composite 3:30 P.M. Quotations for U.S. Government
Securities" ("Composite Quotations") under the heading "Certificates of
Deposit." If neither of such rates is published by 3:00 P.M., New York City
time, on such Calculation Date, then the CD Rate on such Interest Determination
Date will be calculated by the Calculation Agent referred to on the face hereof
and will be the arithmetic mean of the secondary market offered rates as of
10:00 A.M., New York City time, on such Interest Determination Date for
certificates of deposit in an amount that is representative for a single
transaction at that time with a remaining maturity closest to the Index
Maturity specified on the face hereof of three leading nonbank dealers in
negotiable U.S. dollar certificates of deposit in The City of New York selected
by the Calculation Agent (after consultation with the Issuer) for negotiable
certificates of deposit of major United States money center banks; provided,
however, that if the dealers selected as aforesaid by the Calculation Agent are
not quoting as mentioned in this sentence, the CD Rate in effect for the
applicable period will be the same as the CD Rate for the immediately preceding
Interest Reset Period (or, if there was no such Interest Reset Period, the rate
of interest payable hereon shall be the Initial Interest Rate).
Determination of Commercial Paper Rate. If the Base Rate
specified on the face hereof is the Commercial Paper Rate, the Commercial Paper
Rate with respect to this Note shall be determined on each Interest
Determination Date and shall be the Money Market Yield (as defined herein) of
the rate on such date for commercial paper having the Index Maturity specified
on the face hereof, as such rate shall be published in H.15(519) under the
heading "Commercial Paper," or if not so published prior to 9:00 A.M., New York
City time, on the Calculation Date pertaining to such Interest Determination
Date, the Commercial Paper Rate shall be the Money Market Yield of the rate on
such Interest Determination Date for commercial paper of the Index Maturity
specified on the face hereof as published in Composite Quotations under the
heading "Commercial Paper." If neither of such rates is available by 3:00
P.M., New York City time, on such Calculation Date, then the Commercial Paper
Rate shall be the Money Market Yield of the arithmetic mean of the offered
rates as of 11:00 A.M., New York City time, on such Interest Determination Date
of three leading dealers in commercial paper in The City of New York selected
by the Calculation Agent (after consultation with the Issuer) for commercial
paper of the Index Maturity specified on the face hereof, placed for an
industrial issuer whose bond rating is "AA," or the equivalent, from a
nationally recognized rating agency; provided, however, that if the dealers
selected as aforesaid by the Calculation Agent are not quoting offered rates as
mentioned in this sentence, the Commercial Paper Rate in effect for the
applicable period will be
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<PAGE> 9
the same as the Commercial Paper Rate for the immediately preceding Interest
Reset Period (or, if there was no such Interest Reset Period, the rate of
interest payable hereon shall be the Initial Interest Rate).
"Money Market Yield" shall be the yield calculated in
accordance with the following formula:
<TABLE>
<S> <C> <C>
D x 360
Money Market Yield = ------------------ x 100
360 - (D x M)
</TABLE>
where "D" refers to the applicable per annum rate for commercial paper quoted
on a bank discount basis and expressed as a decimal, and "M" refers to the
actual number of days in the Index Maturity specified on the face hereof.
Determination of Federal Funds Rate. If the Base Rate
specified on the face hereof is the Federal Funds Rate, the Federal Funds Rate
with respect to this Note shall be determined on each Interest Determination
Date and shall be the rate on such date for Federal funds as published in
H.15(519) under the heading "Federal Funds (Effective)," or, if not so
published by 9:00 A.M., New York City time, on the Calculation Date pertaining
to such Interest Determination Date, the Federal Funds Rate will be the rate on
such Interest Determination Date as published in Composite Quotations under the
heading "Federal Funds/Effective Rate." If neither of such rates is published
by 3:00 P.M., New York City time, on such Calculation Date, the Federal Funds
Rate for such Interest Determination Date will be calculated by the Calculation
Agent and will be the arithmetic mean of the rates for the last transaction in
overnight Federal funds as of 11:00 A.M., New York City time, on such Interest
Determination Date arranged by three leading brokers of Federal funds
transactions in The City of New York selected by the Calculation Agent (after
consultation with the Issuer); provided, however, that if the brokers selected
as aforesaid by the Calculation Agent are not quoting as mentioned in this
sentence, the Federal Funds Rate in effect for the applicable period will be
the same as the Federal Funds Rate for the immediately preceding Interest Reset
Period (or, if there was no such Interest Reset Period, the rate of interest
payable hereon shall be the Initial Interest Rate).
Determination of LIBOR. If the Base Rate specified on the
face hereof is LIBOR, LIBOR with respect to this Note shall be determined on
each Interest Determination Date by the Calculation Agent as follows:
(i) As of the Interest Determination Date, LIBOR will be
either (a) if "LIBOR Reuters" is specified as the Reporting Service on
the face hereof, the arithmetic mean of the offered rates (unless the
specified Designated LIBOR Page (as defined
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<PAGE> 10
below) by its terms provides only for a single rate, in which case
such single rate shall be used) for deposits in the London interbank
market in the Index Currency for the period of the Index Maturity
specified on the face hereof, commencing on the second London Banking
Day immediately following such Interest Determination Date, that
appear on the Designated LIBOR Page at approximately 11:00 A.M.,
London time, on such Interest Determination Date, if at least two such
offered rates appear (unless, as aforesaid, only a single rate is
required) on such Designated LIBOR Page, or (b) if "LIBOR Telerate" is
specified as the Reporting Service on the face hereof, the rate for
deposits in the Index Currency for the period of the Index Maturity
specified on the face hereof, commencing on such Interest
Determination Date, that appears on the Designated LIBOR Page at
approximately 11:00 A.M., London time, on such Interest Determination
Date. If fewer than two offered rates appear (if "LIBOR Reuters" is
specified as the Reporting Service on the face hereof and calculation
of LIBOR is based on the arithmetic mean of the offered rates) or if
no rate appears (if the Reporting Service on the face hereof specifies
either (x) "LIBOR Reuters" and the Designated LIBOR Page by its terms
provides only for a single rate or (y) "LIBOR Telerate"), LIBOR in
respect of that Interest Determination Date will be determined as if
the parties had specified the rate described in (ii) below.
(ii) With respect to an Interest Determination Date on
which fewer than two offered rates appear (if "LIBOR Reuters" is
specified as the Reporting Service on the face hereof and calculation
of LIBOR is based on the arithmetic mean of the offered rates) or no
rate appears (if the Reporting Service on the face hereof specifies
either (x) "LIBOR Reuters" and the Designated LIBOR Page by its terms
provides only for a single rate or (y) "LIBOR Telerate"), the
Calculation Agent will request the principal London offices of each of
four major reference banks in the London interbank market, as selected
by the Calculation Agent (after consultation with the Issuer), to
provide the Calculation Agent with its offered quotations for deposits
in the Index Currency for the period of the Index Maturity specified
on the face hereof, commencing on the second London Banking Day
immediately following such Interest Determination Date, to prime banks
in the London interbank market at approximately 11:00 A.M., London
time, on such Interest Determination Date and in a principal amount of
not less than U.S. $1,000,000 (or the equivalent in the Index
Currency, if the Index Currency is not the U.S. dollar) that is
representative of a single transaction in such Index Currency in such
market at such time. If at least two such quotations are provided,
LIBOR in respect of that Interest Determination Date will be the
arithmetic mean of such quotations. If fewer than two quotations are
provided, LIBOR in respect of that Interest Determination Date will be
the
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<PAGE> 11
arithmetic mean of the rates quoted at approximately 11:00 A.M. (or
such other time specified on the face hereof), in the applicable
principal financial center for the country of the Index Currency on
such Interest Determination Date, by three major banks in such
principal financial center selected by the Calculation Agent (after
consultation with the Issuer) for loans in the Index Currency to
leading European banks, for the period of the Index Maturity specified
on the face hereof commencing on the second London Banking Day
immediately following such Interest Determination Date and in a
principal amount of not less than U.S. $1,000,000 (or the equivalent
in the Index Currency, if the Index Currency is not the U.S. dollar)
that is representative of a single transaction in such Index Currency
in such market at such time; provided, however , that if the banks
selected as aforesaid by the Calculation Agent are not quoting rates
as mentioned in this sentence, LIBOR for such Interest Reset Period
will be the same as LIBOR for the immediately preceding Interest Reset
Period (or, if there was no such Interest Reset Period, the rate of
interest payable hereon shall be the Initial Interest Rate). "Index
Currency" means the currency (including composite currencies)
specified as Index Currency on the face hereof as the currency for
which LIBOR shall be calculated. If no such currency is specified as
Index Currency on the face hereof, the Index Currency shall be U.S.
dollars. "Designated LIBOR Page" means either (a) if "LIBOR Reuters"
is designated as the Reporting Service on the face hereof, the display
on the Reuters Monitor Money Rates Service for the purpose of
displaying the London interbank rates of major banks for the
applicable Index Currency, or (b) if "LIBOR Telerate" is designated as
the Reporting Service on the face hereof, the display on the Dow Jones
Telerate Service for the purpose of displaying the London interbank
rates of major banks for the applicable Index Currency. If neither
LIBOR Reuters nor LIBOR Telerate is specified as the Reporting Service
on the face hereof, LIBOR for the applicable Index Currency will be
determined as if LIBOR Telerate (and, if the U.S. dollar is the Index
Currency, Page 3750) had been specified.
Determination of Prime Rate. If the Base Rate specified on
the face hereof is the Prime Rate, the Prime Rate with respect to this Note
shall be determined on each Interest Determination Date and shall be the rate
set forth in H.15(519) for such date opposite the caption "Bank Prime Loan."
If such rate is not yet published by 9:00 A.M., New York City time, on the
Calculation Date pertaining to such Interest Determination Date, the Prime Rate
for such Interest Determination Date will be the arithmetic mean of the rates
of interest publicly announced by each bank named on the Reuters Screen NYMF
Page (as defined below) as such bank's prime rate or base lending rate as in
effect for such Interest Determination Date as quoted on the Reuters Screen
NYMF Page on such Interest Determination Date, or, if fewer than four such
rates
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<PAGE> 12
appear on the Reuters Screen NYMF Page for such Interest Determination Date,
the rate shall be the arithmetic mean of the prime rates quoted on the basis of
the actual number of days in the year divided by 360 as of the close of
business on such Interest Determination Date by at least two of the three major
money center banks in The City of New York selected by the Calculation Agent
from which quotations are requested. If fewer than two quotations are
provided, the Prime Rate shall be calculated by the Calculation Agent and shall
be determined as the arithmetic mean on the basis of the prime rates in The
City of New York by the appropriate number of substitute banks or trust
companies organized and doing business under the laws of the United States, or
any state thereof, in each case having total equity capital of at least U.S.
$500,000,000 and being subject to supervision or examination by Federal or
State authority, selected by the Calculation Agent (after consultation with the
Issuer) to quote such rate or rates; provided, however, that if the banks or
trust companies selected as aforesaid by the Calculation Agent are not quoting
as set forth above, the Prime Rate in effect for the applicable period will be
the same as the Prime Rate for the immediately preceding Interest Reset Period
(or, if there was no such Interest Reset Period, the rate of interest payable
hereon shall be the Initial Interest Rate). "Reuters Screen NYMF Page" means
the display designated as Page "NYMF" on the Reuters Monitor Money Rates
Service (or such other page as may replace the NYMF Page on that service for
the purpose of displaying prime rates or base lending rates of major United
States banks).
Determination of Treasury Rate. If the Base Rate specified on
the face hereof is the Treasury Rate, the Treasury Rate with respect to this
Note shall be determined on each Interest Determination Date and shall be the
rate for the auction held on such date of direct obligations of the United
States ("Treasury Bills") having the Index Maturity specified on the face
hereof, as published in H.15(519) under the heading "Treasury Bills--auction
average (investment)," or if not so published by 9:00 A.M., New York City time,
on the Calculation Date pertaining to such Interest Determination Date, the
auction average rate on such Interest Determination Date (expressed as a bond
equivalent, on the basis of a year of 365 or 366 days, as applicable, and
applied on a daily basis) as otherwise announced by the United States
Department of the Treasury. In the event that the results of the auction of
Treasury Bills having the Index Maturity specified on the face hereof are not
published or reported as provided above by 3:00 P.M., New York City time, on
such Calculation Date or if no such auction is held on such Interest
Determination Date, then the Treasury Rate shall be calculated by the
Calculation Agent and shall be a yield to maturity (expressed as a bond
equivalent, on the basis of a year of 365 or 366 days, as applicable, and
applied on a daily basis) calculated using the arithmetic mean of the secondary
market bid rates, as of approximately 3:30 P.M., New York City time, on such
Interest Determination Date, of three leading
-12-
<PAGE> 13
primary United States government securities dealers selected by the Calculation
Agent (after the consultation with the Issuer) for the issue of Treasury Bills
with a remaining maturity closest to the Index Maturity specified on the face
hereof; provided, however, that if the dealers selected as aforesaid by the
Calculation Agent are not quoting bid rates as mentioned in this sentence, the
Treasury Rate for such Interest Reset Date will be the same as the Treasury
Rate for the immediately preceding Interest Reset Period (or, if there was no
such Interest Reset Period, the rate of interest payable hereon shall be the
Initial Interest Rate).
Determination of CMT Rate. If the Base Rate is the CMT Rate,
the CMT Rate specified on the face hereof with respect to this Note shall be
determined on each Interest Determination Date and shall be the rate displayed
on the Designated CMT Telerate Page (as defined below) under the caption
"...Treasury Constant Maturities...Federal Reserve Board Release H.15...Mondays
Approximately 3:45 p.m.," under the column for the Designated CMT Maturity
Index (as defined below) for (i) if the Designated CMT Telerate Page is 7055,
the rate on such Interest Determination Date and (ii) if the Designated CMT
Telerate Page is 7052, the week or the month, as applicable, ended immediately
preceding the week in which the related Interest Determination Date occurs. If
such rate is no longer displayed on the relevant page, or if not displayed by
3:00 p.m., New York City time, on the related Calculation Date, then the CMT
Rate for such Interest Determination Date will be such Treasury Constant
Maturity rate for the Designated CMT Maturity Index as published in the
relevant H.15(519). If such rate is no longer published, or, if not published
by 3:00 p.m., New York City time, on the related Calculation Date, then the CMT
Rate for such Interest Determination Date, will be such Treasury Constant
Maturity rate for the Designated CMT Maturity Index (or other United States
Treasury rate for the Designated CMT Maturity Index) for the Interest
Determination Date with respect to such Interest Reset Date as may then be
published by either the Board of Governors of the Federal Reserve System or the
United States Department of the Treasury that the Calculation Agent determines
to be comparable to the rate formerly displayed on the Designated CMT Telerate
Page and published in the relevant H.15(519). If such information is not
provided by 3:00 p.m., New York City time, on the related Calculation Date,
then the CMT Rate for the Interest Determination Date will be calculated by the
Calculation Agent and will be a yield to maturity, based on the arithmetic mean
of the secondary market closing offer side prices as of approximately 3:30
p.m., New York City time, on the Interest Determination Date reported,
according to their written records, by three leading primary United States
government securities dealers (each, a "Reference Dealer") in The City of New
York (which may include the Agents or their affiliates) selected by the
Calculation Agent (from five such Reference Dealers selected by the Calculation
Agent, after consultation with the Issuer, and eliminating the highest
quotation (or, in the event of equality, one of the highest) and
-13-
<PAGE> 14
the lowest quotation (or, in the event of equality, one of the lowest)), for
the most recently issued direct noncallable fixed rate obligations of the
United States ("Treasury notes") with an original maturity of approximately the
Designated CMT Maturity Index and remaining term to maturity of not less than
such Designated CMT Maturity Index minus one year. If the Calculation Agent
cannot obtain three such Treasury notes quotations, the CMT Rate for such
Interest Determination Date will be calculated by the Calculation Agent and
will be a yield to maturity based on the arithmetic mean of the secondary
market offer side prices as of approximately 3:30 p.m., New York City time, on
the Interest Determination Date of three Reference Dealers in The City of New
York (from five such Reference Dealers selected by the Calculation Agent and
eliminating the highest quotation (or, in the event of equality, one of the
highest) and the lowest quotation (or, in the event of equality, one of the
lowest)), for Treasury notes with an original maturity of the number of years
that is the next highest to the Designated CMT Maturity Index and a remaining
term to maturity closest to the Designated CMT Maturity Index and in an amount
of at least $100,000,000. If three or four (and not five) of such Reference
Dealers are quoting as described above, then the CMT Rate will be based on the
arithmetic mean of the offer prices obtained and neither the highest nor the
lowest of such quotes will be eliminated: provided, however, that if fewer than
three Reference Dealers selected by the Calculation Agent are quoting as
described herein, the CMT Rate for such Interest Reset Date will be the same as
the CMT Rate for the immediately preceding Interest Reset Period (or, if there
was no such Interest Reset Period, the rate of interest payable hereon shall be
the Initial Interest Rate). If two Treasury notes with an original maturity as
described in the third preceding sentence have remaining terms to maturity
equally close to the Designated CMT Maturity Index, the quotes for the Treasury
note with the shorter remaining term to maturity will be used.
"Designated CMT Telerate Page" means the display on the Dow
Jones Telerate Service on the page designated as the Reporting Service on the
face hereof (or any other page as may replace such page on that service for the
purpose of displaying Treasury Constant Maturities as reported in H.15(519)),
for the purpose of displaying Treasury Constant Maturities as reported in
H.15(519). If no such page is specified as the Reporting Service on the face
hereof, the Designated CMT Telerate Page shall be 7052, for the most recent
week.
"Designated CMT Maturity Index" shall be the original period
to maturity of the U.S. Treasury securities (either 1, 2, 3, 5, 7, 10, 20 or 30
years) specified as the Index Maturity on the face hereof with respect to which
the CMT Rate will be calculated. If no such maturity is specified as the Index
Maturity on the face hereof, the Designated CMT Maturity Index shall be 2
years.
-14-
<PAGE> 15
Notwithstanding the foregoing, the interest rate hereon shall
not be greater than the Maximum Interest Rate, if any, or less than the Minimum
Interest Rate, if any, specified on the face hereof. The Calculation Agent
shall calculate the interest rate hereon in accordance with the foregoing on or
before each Calculation Date. The interest rate on this Note will in no event
be higher than the maximum rate permitted by applicable law.
At the request of the Holder hereof, the Calculation Agent
will provide to the Holder hereof the interest rate hereon then in effect and,
if determined, the interest rate that will become effective as of the next
Interest Reset Date.
Interest payments on this Note will include interest accrued
to but excluding the Interest Payment Dates or the date of Maturity, as the
case may be. Accrued interest hereon shall be an amount calculated by
multiplying the face amount hereof by an accrued interest factor. Such accrued
interest factor shall be computed by adding the interest factor calculated for
each day in the period for which interest is being paid. The interest factor
for each such date shall be computed by dividing the interest rate applicable
to such day by 360 if the Base Rate is CD Rate, Commercial Paper Rate, Federal
Funds Rate, Prime Rate or LIBOR, as specified on the face hereof, or by the
actual number of days in the year if the Base Rate is the Treasury Rate or the
CMT Rate, as specified on the face hereof. All percentages resulting from any
calculation of the rate of interest on this Note will be rounded, if necessary,
to the nearest one hundred-thousandth of a percentage point (.0000001), with
five one-millionths of a percentage point rounded upward, and all dollar
amounts used in or resulting from such calculation on this Note will be rounded
to the nearest cent (with one-half cent rounded upward). The interest rate in
effect on any Interest Reset Date will be the applicable rate as reset on such
date. The interest rate applicable to any other day is the interest rate from
the immediately preceding Interest Reset Date (or, if none, the Initial
Interest Rate).
This Note and all the obligations of the Issuer hereunder are
direct, unsecured obligations of the Issuer and rank without preference or
priority among themselves and pari passu with all other existing and future
unsecured and unsubordinated indebtedness of the Issuer, subject to certain
statutory exceptions in the event of liquidation upon insolvency.
This Note, and any Note or Notes issued upon transfer or
exchange hereof, is issuable only in fully registered form, without coupons,
and is issuable only in denominations of U.S. $100,000 and any integral
multiple of U.S. $1,000 in excess thereof.
_____________________________ has been appointed registrar for
the Notes, and the Trustee will maintain at its office in __________________, a
register for the registration and
-15-
<PAGE> 16
transfer of Notes. As provided in the Indenture and subject to certain
limitations set forth therein and as may be set forth on the face hereof, this
Note may be transferred at the aforesaid office of the Trustee by surrendering
this Note for cancellation, accompanied by a written instrument of transfer in
form satisfactory to the Trustee and duly executed by the registered Holder
hereof in person or by the Holder's attorney duly authorized in writing, and
thereupon the Trustee shall issue in the name of the transferee or transferees,
in exchange herefor, a new Note or Notes having identical terms and provisions
and having a like aggregate principal amount in authorized denominations,
subject to the terms and conditions set forth herein. Notes are exchangeable
at said office for other Notes of other authorized denominations of equal
aggregate principal amount having identical terms and provisions. All such
exchanges and transfers of Notes will be free of charge, but the Issuer may
require payment of a sum sufficient to cover any tax or other governmental
charge in connection therewith. All Notes surrendered for exchange shall be
accompanied by a written instrument of transfer in form satisfactory to the
Issuer and the Trustee and executed by the registered Holder in person or by
the Holder's attorney duly authorized in writing. The date of registration of
any Note delivered upon any exchange or transfer of Notes shall be such that no
gain or loss of interest results from such exchange or transfer.
If an Event of Default with respect to Notes of this series
shall occur and be continuing, the principal of the Notes of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Unless otherwise specified in the face hereof, if any Original
Issue Discount Note (as defined below) is redeemed by the Issuer or repaid at
the option of the Holder, each as described above, or if the principal of any
Original Issue Discount Note is declared to be due and payable immediately
pursuant to this paragraph, the amount of principal due and payable with
respect to this Note shall be limited to the aggregate principal amount of this
Note multiplied by the sum of the Issue Price (expressed as a percentage of the
aggregate principal amount) plus the original issue discount amortized from the
date of issue to the date of redemption, repayment or declaration, as
applicable, which amortization shall be calculated using the "interest method"
(computed in accordance with generally accepted accounting principles in effect
on the date of redemption, repayment or declaration). Unless otherwise
specified on the face hereof, an Original Issue Discount Note is a Note which
has a principal amount payable on the Stated Maturity that exceeds its Issue
Price by at least 0.25% of its principal amount payable on the Stated Maturity,
multiplied by the number of complete years from the Original Issue Date to the
Stated Maturity for this Note.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Issuer and the rights of the Holders of the
-16-
<PAGE> 17
Notes of each series to be affected under the Indenture at any time by the
Issuer and the Trustee with the consent of the Holders of not less than a
majority in principal amount of the Notes at the time Outstanding of each
series to be affected. The Indenture also contains provisions permitting the
Holders of specified percentages in principal amount of the Notes of each
series at the time Outstanding on behalf of the Holders of all Notes of such
series, to waive compliance by the Issuer with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Note shall be conclusive and
binding upon such Holder and upon all future Holders of this Note and of any
Note issued upon the registration of transfer hereof or in exchange herefor or
in lieu hereof, whether or not notation of such consent or waiver is made upon
this Note.
Each of the defeasance and covenant defeasance provisions of
Article Thirteen of the Indenture shall apply to this Note.
So long as this Note shall be outstanding, the Issuer will
cause to be maintained an office or agency for the payment of the principal of
and premium, if any, and interest on this Note as herein provided in the City
of _________, and an office or agency in said City of __________________ for the
registration, transfer and exchange as aforesaid of the Notes. The Issuer may
designate other agencies for the payment of said principal, premium and
interest at such place or places (subject to applicable laws and regulations)
as the Issuer may decide. So long as there shall be such an agency, the Issuer
shall keep the Trustee advised of the names and locations of such agencies, if
any are so designated.
No provision of this Note or of the Indenture shall alter or
impair the obligation of the Issuer, which is absolute and unconditional, to
pay the principal of, premium, if any, and interest on this Note at the time,
place, and rate, and in the coin or currency, herein prescribed unless
otherwise agreed between the Issuer and the registered Holder of this Note.
Prior to due presentment of this Note for registration of
transfer, the Issuer, the Trustee and any agent of the Issuer or the Trustee
may treat the Holder in whose name this Note is registered as the owner hereof
for all purposes, whether or not this Note be overdue, and none of the Issuer,
the Trustee or any such agent shall be affected by notice to the contrary.
This Note shall for all purposes be governed by, and construed
in accordance with, the laws of the State of New York.
All terms used in this Note which are defined in the Indenture
and not otherwise defined herein shall have the meanings assigned to them in
the Indenture.
-17-
<PAGE> 18
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this instrument, shall be construed as though they were written out
in full according to applicable laws or regulations:
TEN COM-as tenants in common
TEN ENT-as tenants by the entireties
JT TEN-as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT-...........Custodian............
(Cust) (Minor)
Under Uniform Gifts to Minors Act.................
(State)
Additional abbreviations may also be used though not in the
above list.
_____________________
-18-
<PAGE> 19
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
[PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE]
_______________________________________!
!
!
_____________________________________________________________
_____________________________________________________________
[PLEASE PRINT OR TYPE NAME AND ADDRESS INCLUDING ZIP CODE,
OF ASSIGNEE]
_____________________________________________________________
the within Note and all rights thereunder, hereby irrevocably
_____________________________________________________________
constituting and appointing such person attorney to transfer
_____________________________________________________________
such note on the books of the Issuer, with full power of
_____________________________________________________________
substitution in the premises.
Dated:_____________________
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within Note in every particular without
alteration or enlargement or any change whatsoever.
-19-
<PAGE> 20
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the
Issuer to repay the within Note (or portion thereof specified below) pursuant
to its terms at a price equal to the principal amount thereof, together with
interest to the Optional Repayment Date, to the undersigned at
__________________________________________________________
__________________________________________________________
__________________________________________________________
(Please print or typewrite
name and address of the undersigned)
If less than the entire principal amount of the within Note is
to be repaid, specify the portion thereof which the Holder elects to have
repaid: __________________; and specify the denomination or denominations
(which shall not be less than the minimum authorized denomination) of the Notes
to be issued to the Holder for the portion of the within Note not being repaid
(in the absence of any such specification, one such Note will be issued for the
portion not being repaid): __________________________.
Dated:_____________ ___________________________________
NOTICE: The signature on this
Option to Elect Repayment must
correspond with the name as written
upon the face of the within
instrument in every particular
without alteration or enlargement.
-20-
<PAGE> 1
Exhibit 5.1
August 24, 1995
Applied Materials, Inc.
3050 Bowers Avenue
Santa Clara, California 95054
Re: Applied Materials, Inc.
Form 8-K dated August 15, 1995
Ladies and Gentlemen:
At your request, we have examined the registration statement on
Form S-3 (File No. 33-60301) (the "Registration Statement"), filed under the
Securities Act of 1933, as amended (the "Act"), together with the Form 8-K dated
August 15, 1995 and the exhibits thereto (the "Form 8-K"), in the form to be
filed by Applied Materials, Inc. (the "Company") with the Securities and
Exchange Commission in connection with the sale from time to time of up to
$266,931,250 aggregate principal amount of the Company's Medium-Term Notes,
Series A (the "Medium-Term Notes"). The Medium-Term Notes are to be issued under
an Indenture, which has been filed as an exhibit to the Registration Statement
(the "Indenture") between the Company and Harris Trust Company of California, as
Trustee (the "Trustee"). The Medium-Term Notes are to be issued pursuant to a
Distribution Agreement (the "Distribution Agreement"), in the form filed as an
exhibit to the Form 8-K. The Medium-Term Notes are to be issued in the forms
filed as exhibits to the Form 8-K. The Medium-Term Notes are to be sold from
time to time as set forth in the Registration Statement, the Prospectus
contained therein (the "Prospectus") and the supplements to the Prospectus (the
"Prospectus Supplements").
We have examined instruments, documents and records which we
deemed relevant and necessary for the basis of our opinion hereinafter
expressed. In such examination, we have assumed the following: (a) the
authenticity of original documents and the genuineness of all signatures; (b)
the conformity to the originals of all documents submitted to us as copies; and
(c) the truth, accuracy, and completeness of the information, representations
and warranties contained in the records, documents, instruments and certificates
we have reviewed.
<PAGE> 2
Applied Materials, Inc.
August 24, 1995
Page 2
Based on such examination, we are of the opinion that when the
issuance of Medium-Term Notes has been duly authorized by appropriate corporate
action and the Medium-Term Notes, in the forms filed as exhibits to the Form
8-K, have been duly completed, executed, authenticated and delivered in
accordance with the Indenture and sold pursuant to the Distribution Agreement
and as described in the Registration Statement, any amendment thereto, the
Prospectus and the Prospectus Supplement relating thereto, the Medium-Term
Notes will be legal, valid and binding obligations of the Company, entitled to
the benefits of such Indenture.
Our opinion that any document is legal, valid and binding is
qualified as to:
(a) limitations imposed by bankruptcy, insolvency,
reorganization, arrangement, fraudulent conveyance, moratorium or other laws
relating to or affecting the rights of creditors generally; and
(b) general principles of equity, including without limitation
concepts of materiality, reasonableness, good faith and fair dealing, and the
possible unavailability of specific performance or injunctive relief, regardless
of whether such enforceability is considered in a proceeding in equity or at
law.
We hereby consent to the filing of this opinion as an exhibit
to the Form 8-K and its incorporation by reference in the Registration Statement
and to the use of our name wherever it appears in the Registration Statement,
the Prospectus, the Prospectus Supplement, and in any amendment or supplement
thereto. In giving such consent, we do not believe that we are "experts" within
the meaning of such term as used in the Act or the rules and regulations of the
Securities and Exchange Commission issued thereunder with respect to any part of
the Registration Statement, including this opinion as an exhibit or otherwise.
Very truly yours,
ORRICK, HERRINGTON & SUTCLIFFE
<PAGE> 1
Exhibit 99.1
August 15, 1995
Page 1
APPLIED MATERIALS, INC.
CONSOLIDATED CONDENSED STATEMENTS OF OPERATIONS
(UNAUDITED)
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
----------------------------------------------------------------------------------------------------------
July 30, July 31, July 30, July 31,
(In thousands, except per share data) 1995 1994 1995 1994
----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Net sales $897,684 $440,228 $2,079,231 $1,192,009
-------- -------- ---------- ----------
Costs and expenses:
Cost of products sold 489,256 234,656 1,127,781 641,067
Research, development
and engineering 85,789 52,494 219,178 135,386
Marketing and selling 62,520 39,851 158,566 113,254
General and administrative 44,109 20,279 109,096 60,500
Other, net 2,633 701 4,286 815
-------- -------- ---------- ----------
Income from operations 213,377 92,247 460,324 240,987
Interest expense 5,527 3,659 17,161 10,779
Interest income 6,323 2,946 16,306 7,214
-------- -------- ---------- ----------
Income from consolidated companies before
taxes and cumulative effect of accounting
change 214,173 91,534 459,469 237,422
Provision for income taxes 74,961 32,036 160,814 83,097
-------- -------- ---------- ----------
Income from consolidated companies before
cumulative effect of accounting change 139,212 59,498 298,655 154,325
Equity in net loss of joint venture -- 1,362 -- 3,727
-------- -------- ---------- ----------
Income before cumulative effect of
accounting change 139,212 58,136 298,655 150,598
Cumulative effect of a change in accounting
for income taxes -- -- -- 7,000
-------- -------- ---------- ----------
Net income $139,212 $ 58,136 $ 298,655 $ 157,598
-------- -------- ---------- ----------
Earnings per share
Before cumulative effect of accounting
change $ 1.57 $ 0.68 $ 3.42 $ 1.78
-------- -------- ---------- ----------
Net income $ 1.57 $ 0.68 $ 3.42 $ 1.86
-------- -------- ---------- ----------
Average common shares and
equivalents 88,877 86,033 87,399 84,654
----------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 2
August 15, 1995
Page 2
APPLIED MATERIALS, INC.
CONSOLIDATED CONDENSED BALANCE SHEETS*
<TABLE>
<CAPTION>
----------------------------------------------------------------------------------------------------------------
July 30, Oct. 30,
(In thousands) 1995 1994
----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
ASSETS Current assets:
Cash and cash equivalents $ 262,363 $ 160,320
Short-term investments 437,382 262,005
Accounts receivable, net 778,113 405,813
Inventories 391,229 245,710
Deferred income taxes 104,646 99,766
Other current assets 84,470 56,923
------------- -------------
Total current assets 2,058,203 1,230,537
Property, plant and equipment, net 557,718 452,454
Other assets 22,210 19,674
------------- -------------
Total assets $ 2,638,131 $ 1,702,665
------------- -------------
LIABILITIES Current liabilities:
AND Notes payable $ 73,607 $ 43,081
STOCKHOLDERS' Current portion of long-term debt 25,428 15,432
EQUITY Accounts payable and
accrued expenses 595,303 378,238
Income taxes payable 65,625 59,682
------------- -------------
Total current liabilities 759,963 496,433
Long-term debt 231,103 209,114
Deferred income taxes and
other non-current obligations 39,748 30,854
------------- -------------
Total liabilities 1,030,814 736,401
------------- -------------
Stockholders' equity:
Common stock 893 841
Additional paid-in capital 720,644 390,655
Retained earnings 844,581 545,926
Cumulative translation adjustments 41,199 28,842
------------- -------------
Total stockholders' equity 1,607,317 966,264
------------- -------------
Total liabilities and
stockholders' equity $ 2,638,131 $ 1,702,665
----------------------------------------------------------------------------------------------------------------
</TABLE>
*Amounts as of July 30, 1995 are unaudited. Amounts as of
October 30, 1994 were obtained from the October 30, 1994
audited financial statements.
