<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 30, 1997
REGISTRATION NO. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
APPLIED MATERIALS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
DELAWARE 94-1655526
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
</TABLE>
3050 BOWERS AVENUE, SANTA CLARA, CALIFORNIA 95054, (408) 727-5555
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
JAMES C. MORGAN
CHAIRMAN OF THE BOARD OF DIRECTORS AND CHIEF EXECUTIVE OFFICER
APPLIED MATERIALS, INC.
3050 BOWERS AVENUE, SANTA CLARA, CALIFORNIA 95054, (408) 727-5555
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
------------------------
COPIES TO:
<TABLE>
<S> <C>
LAWRENCE T. KANE, ESQ. JOHN A. FORE, ESQ.
ORRICK, HERRINGTON & SUTCLIFFE LLP WILSON SONSINI GOODRICH & ROSATI
400 SANSOME STREET PROFESSIONAL CORPORATION
SAN FRANCISCO, CALIFORNIA 94111 650 PAGE MILL ROAD
PALO ALTO, CALIFORNIA 94304
</TABLE>
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after the effective date of this Registration Statement.
------------------------
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ] ____
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, please check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [ ] ____
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<S> <C> <C>
=============================================================================================================
PROPOSED
MAXIMUM
AGGREGATE
TITLE OF EACH CLASS OF SECURITIES OFFERING AMOUNT OF
TO BE REGISTERED PRICE(1)(2) REGISTRATION FEE
- -------------------------------------------------------------------------------------------------------------
Debt Securities(3)......................................................... $206,068,750 $62,446
=============================================================================================================
</TABLE>
(1) Or, (i) if any Debt Securities are issued at an original issue discount,
such greater principal amount as shall result in an aggregate initial
offering price equal to the amount to be registered or (ii) if any Debt
Securities are issued with a principal amount denominated in a foreign
currency or composite currency, such principal amount as shall result in an
aggregate initial offering price equivalent thereto in United States dollars
at the time of initial offering.
(2) These figures are estimates made solely for the purpose of calculating the
registration fee pursuant to Rule 457(o). Exclusive of accrued interest, if
any, on the Debt Securities.
(3) Pursuant to Rule 429, Debt Securities having an aggregate initial offering
price of $193,931,250 are being carried forward from Registration Statement
No. 33-60301. $58,767 of filing fees previously paid in connection with such
registration statement are associated with these securities.
------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933, OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION ACTING PURSUANT TO SAID SECTION 8(a)
MAY DETERMINE.
================================================================================
<PAGE> 2
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor
may offers to buy be accepted prior to the time such registration statement
becomes effective. This prospectus shall not constitute an offer to sell or
the solicitation of an offer to buy nor shall there be any sale of these
securities in any state in which such offer, solicitation or sale would be
unlawful prior to registration or qualification under the securities laws
of any such state.
PROSPECTUS
(SUBJECT TO COMPLETION, ISSUED SEPTEMBER 30, 1997)
LOGO
DEBT SECURITIES
------------------------
Applied Materials, Inc. ("Applied Materials" or the "Company") from time to
time may offer its debt securities consisting of senior debentures, notes, bonds
and/or other evidences of indebtedness in one or more series ("Debt Securities")
of the Company with an aggregate initial public offering price of up to
$400,000,000 or the equivalent thereof in one or more foreign currencies or
composite currencies, including European Currency Units ("ECU"). The Debt
Securities may be offered, separately or together, in separate series in
amounts, at prices, and on terms to be set forth in a supplement to this
Prospectus (a "Prospectus Supplement").
The Debt Securities may be sold for U.S. Dollars, one or more foreign
currencies or amounts determined by reference to an index and the principal of
and any interest on the Debt Securities may likewise be payable in U.S. Dollars,
one or more foreign currencies or amounts determined by reference to an index.
The Debt Securities will rank equally with all other unsubordinated and
unsecured indebtedness of the Company. See "Description of Debt Securities."
The specific terms of the Debt Securities in respect of which this
Prospectus is being delivered, such as where applicable, the specific
designation, aggregate principal amount, currency, denomination, maturity,
premium, rate (or manner of calculation thereof) and time of payment of
interest, terms for redemption at the option of the Company or the holder or for
sinking fund payments, and the initial public offering price will be set forth
in an accompanying Prospectus Supplement. See "Description of Debt Securities."
The Debt Securities may be sold through underwriting syndicates led by one
or more managing underwriters or through one or more underwriters acting alone.
The Debt Securities may also be sold directly by the Company or through agents
designated from time to time. If any underwriters or agents are involved in the
sale of the Debt Securities, their names, the principal amount of Debt
Securities to be purchased by them and any applicable fee, commission or
discount arrangements with them will be set forth in the Prospectus Supplement.
See "Plan of Distribution."
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
------------------------
This Prospectus may not be used to consummate sales of Debt Securities
unless accompanied by a Prospectus Supplement.
THE DATE OF THIS PROSPECTUS IS OCTOBER , 1997.
<PAGE> 3
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information filed by the Company can be inspected and
copied at the public reference facilities maintained by the Commission at
Judiciary Plaza, 450 Fifth Street, N.W., Room 1024, Washington D.C. 20549, and
at Regional Offices of the Commission located at Citicorp Center, 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661 and at Seven World Trade
Center, 13th Floor, New York, New York 10048. Copies of such material can be
obtained from the Public Reference Section of the Commission at 450 Fifth
Street, N.W., Washington D.C. 20549, at prescribed rates. In addition, the
Commission maintains a Web site that contains reports, proxy and information
statements and other information regarding registrants that file electronically
with the Commission at www.sec.gov. Such reports, proxy statements and other
information may also be inspected at the offices of the National Association of
Securities Dealers, Inc., 1735 K Street, N.W., Washington D.C. 20006.
This Prospectus does not contain all the information set forth in the
Registration Statement on Form S-3 (the "Registration Statement") of which this
Prospectus is a part, including exhibits relating thereto, which has been filed
with the Commission in Washington, D.C. Statements made in this Prospectus as to
the contents of any referenced contract, agreement or other document are not
necessarily complete, and each such statement shall be deemed qualified in its
entirety by reference thereto. Copies of the Registration Statement and the
exhibits and schedules thereto may be obtained, upon payment of the fee
prescribed by the Commission, or may be examined without charge, at the office
of the Commission.
INFORMATION INCORPORATED BY REFERENCE
The following documents have been filed with the Commission and are
incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
October 27, 1996 (which incorporates by reference portions of the Company's
definitive Proxy Statement dated February 4, 1997 for the Company's Annual
Meeting of Stockholders held on March 19, 1997 and portions of its 1996
Annual Report to Stockholders for the year ended October 27, 1996); and
(b) The Company's Quarterly Reports on Form 10-Q for the quarters
ended January 26, 1997, April 27, 1997, and July 27, 1997.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act after the date of this Prospectus and prior to the
termination of the offering of the Debt Securities offered hereby shall be
deemed to be incorporated by reference in this Prospectus.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of the Registration Statement or this Prospectus to the extent that
a statement contained herein, in a Prospectus Supplement or in any other
document subsequently filed with the Commission which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of the Registration Statement or this
Prospectus.
The Company will furnish without charge to each person, including any
beneficial owner, to whom this Prospectus is delivered, on the written or oral
request of such person, a copy of any or all of the documents incorporated by
reference, other than exhibits to such documents. Requests should be directed to
Director, Investor Relations, Applied Materials, Inc., 3050 Bowers Avenue, Santa
Clara, California 95054-3299; telephone number (408) 727-5555.
2
<PAGE> 4
THE COMPANY
Organized in 1967, Applied Materials, Inc. ("Applied Materials" or the
"Company") develops, manufactures, markets and services semiconductor wafer
fabrication equipment and related spare parts for the worldwide semiconductor
industry. The Company's customers include semiconductor wafer manufacturers and
semiconductor integrated circuit (IC), or "chip," manufacturers. IC
manufacturers either use the chips in their own products or sell them to other
companies. Applied Materials is also a fifty percent stockholder in Applied
Komatsu Technology, Inc., a joint venture corporation that develops,
manufactures, markets and services thin film transistor fabrication systems used
to produce active-matrix liquid crystal displays.
The Company's products are wafer processing and diagnostic systems that use
highly sophisticated, state-of-the-art technology in the design of their
hardware, processes and software. These systems provide enabling technology,
productivity and cost-effective manufacturing to the customer. The Company's
products are used to fabricate integrated circuits, or "chips," on a substrate
of semiconductor material (usually silicon). A finished IC may consist of
millions of microscopic electronic components that interact to perform
electrical functions. The fabrication process must control the quality of the
film and the preciseness of the individual circuit features to ensure proper
device performance while also meeting economic goals such as high yield and
throughput. The Company currently manufactures equipment that addresses the
following major steps in the wafer fabrication process: film deposition,
etching, high-temperature processing, chemical mechanical polishing, ion
implantation, metrology and wafer/reticle inspection.
The Company was incorporated in California in 1967 and reincorporated in
Delaware in 1987. Its principal executive offices are located at 3050 Bowers
Avenue, Santa Clara, California 95054-3299 (telephone number (408) 727-5555).
References to the Company or to Applied Materials shall mean Applied Materials,
Inc. and its consolidated subsidiaries, unless the context requires otherwise.
Applied Materials, Precision 5000, Endura and Centura are registered trademarks
of Applied Materials, Inc. Precision 5000 CVD, Precision 5000 WCVD, Precision
7700 Epi, Poly Centura, Epi Centura, AME 8100, Precision Etch 8300, Optima,
Endura HP PVD, Endura VHP PVD, Precision 5000 Etch, HDP Dielectric Etch Centura,
Silicon Etch DPS Centura, Metal Etch DPS Centura, Dielectric Etch IPS Centura,
Implant xR80, Implant xR200, Implant xR120, Implant xR LEAP, RTP XE Centura, RTP
Centura, Mirra CMP, Mirra, Precision Implant 9000, Precision Implant 9200, and
Precision Implant 9500 are trademarks of Applied Materials, Inc. Applied Komatsu
Technology is a trademark of Applied Komatsu Technology, Inc.
USE OF PROCEEDS
The Company expects to use the net proceeds from the sale of the Debt
Securities for general corporate purposes, including capital expenditures and
working capital needs, and a portion may be used to repurchase shares of the
Company's outstanding Common Stock. The Company believes that success in its
industry requires substantial financial strength and flexibility. In addition,
the Company from time to time considers acquisitions of, and investments in,
complementary businesses, assets or technologies, and although there are no
current agreements with respect to any such acquisition or investment, the
Company desires to be able to respond to opportunities as they arise. Pending
such uses, the Company will invest the net proceeds in cash equivalents and
short-term investments.
3
<PAGE> 5
RATIO OF EARNINGS TO FIXED CHARGES
Set forth below is the ratio of earnings to fixed charges for each of the
years in the five-year period ended October 27, 1996, and for the nine months
ended July 27, 1997 and July 28, 1996. For the purpose of calculating the ratio
of earnings to fixed charges, (i) earnings consist of income before taxes and
cumulative effect of accounting change plus fixed charges and (ii) fixed charges
consist of interest expense, amortization of debt issuance costs and the portion
of rental expense under operating leases deemed by the Company to be
representative of the interest factor.
<TABLE>
<CAPTION>
NINE MONTHS ENDED
------------------- FISCAL YEAR ENDED
JULY 27, JULY 28, --------------------------------------
1997 1996 1996 1995 1994 1993 1992
-------- -------- ------ ----- ----- ----- -----
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed
Charges........................... 16.78x 23.68x 20.14x 21.25x 13.37x 7.61x 3.63x
====== ====== ====== ===== ===== ===== =====
</TABLE>
DESCRIPTION OF DEBT SECURITIES
The following statements with respect to the Debt Securities are summaries
of, and subject to, the detailed provisions of an indenture entered into by the
Company and Harris Trust Company of California, as trustee (the "Trustee"), a
copy of which is filed as an exhibit to the Registration Statement as amended
and supplemented by a Supplemental Indenture, dated as of September 30, 1997,
between the Trustee and the Company, a copy of which is filed as an exhibit to
the Registration Statement (as supplemented and amended, the "Indenture"). The
amendments set forth in the Supplemental Indenture are effective only as to Debt
Securities of any series issued on or after the date of the Supplemental
Indenture. The following summaries of certain provisions of the Indenture do not
purport to be complete and are subject to, and are qualified in their entirety
by reference to, all of the provisions of the Indenture, including the
definitions therein of certain terms. Wherever particular Sections or defined
terms of the Indenture are referred to herein or in a Prospectus Supplement,
such Sections or defined terms are incorporated herein or therein by reference.
Section and Article references used herein are references to the Indenture.
The Debt Securities may be issued from time to time in one or more series.
The particular terms of each series of Debt Securities offered by any Prospectus
Supplement or Prospectus Supplements will be described in such Prospectus
Supplement or Prospectus Supplements relating to such series.
GENERAL
The Indenture does not limit the aggregate amount of Debt Securities which
may be issued thereunder and Debt Securities may be issued thereunder from time
to time in separate series up to the aggregate amount from time to time
authorized by the Company for each series. The Debt Securities will be senior
unsecured obligations of the Company.
The applicable Prospectus Supplement or Prospectus Supplements will
describe the following terms of the series of Debt Securities in respect of
which this Prospectus is being delivered: (1) the title of the Debt Securities;
(2) any limit on the aggregate principal amount of the Debt Securities; (3) the
Person to whom any interest on a Debt Security shall be payable, if other than
the person in whose name that Debt Security is registered on the Regular Record
Date; (4) the date or dates on which the principal of the Debt Securities will
be payable; (5) the rate or rates at which the Debt Securities will bear
interest, if any, or the method by which such rate or rates are determined, the
date or dates from which such interest will accrue, the Interest Payment Dates
on which any such interest on the Debt Securities will be payable and the
Regular Record Date for any interest payable on any Interest Payment Date, and
the basis upon which interest will be calculated if other than that of a 360-day
year of twelve 30-day months; (6) the place or places where the principal of and
any premium and interest on the Debt Securities will be payable; (7) the period
or periods within which, the price or prices at which, and the terms and
conditions upon which the Debt Securities of any series may be redeemed, in
whole or in part, at the option of the Company, and/or repaid, in whole or in
part, at the option of the Holders; (8) the obligation of the Company, if any,
to redeem or repurchase the Debt Securities pursuant to any sinking fund or
analogous provisions or at the option of the Holders and the period or periods
within which, the price or prices at which and the terms and conditions upon
which such Debt Securities shall
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be redeemed or purchased, in whole or in part, pursuant to such obligation, and
any provisions for the remarketing of such Debt Securities; (9) the
denominations in which any Debt Securities will be issuable, if other than
denominations of $1,000 and any integral multiple thereof; (10) the currency,
currencies or currency units in which payment of principal of and any premium
and interest on any Debt Securities shall be payable if other than United States
dollars; (11) any index, formula or other method used to determine the amount of
payments of principal of and any premium and interest on the Debt Securities;
(12) if the principal of or any premium or interest on any Debt Securities is to
be payable, at the election of the Company or the Holders, in one or more
currencies or currency units other than that or those in which such Debt
Securities are stated to be payable, the currency, currencies or currency units
in which payment of the principal of and any premium and interest on such Debt
Securities shall be payable, and the periods within which and the terms and
conditions upon which such election is to be made; (13) if other than the
principal amount thereof, the portion of the principal amount of the Debt
Securities which will be payable upon declaration of the acceleration of the
Maturity thereof; (14) the applicability of any provisions described under
"Defeasance and Covenant Defeasance"; (15) whether any of the Debt Securities
are to be issuable in permanent global form and, if so, the Depositary or
Depositaries for such Global Security and the terms and conditions, if any, upon
which interests in such Debt Securities in global form may be exchanged, in
whole or in part, for the individual Debt Securities represented thereby; (16)
the Security Registrar, if other than the Trustee, and the entity who will be
the Paying Agent; (17) any Events of Default, with respect to the Debt
Securities of such series, if not otherwise set forth under "Events of Default";
(18) if other than the date of original issuance by the Company of such series
of Debt Securities, such other date as is applicable to the Debt Securities of
such series for purposes of the covenant described under "Covenants of the
Company -- Restrictions on Funded Debt of Restricted Subsidiaries" below; and
(19) any other terms of the Debt Securities not inconsistent with the provisions
of the Indenture. (Section 301)
Debt Securities may be issued as Original Issue Discount Securities to be
sold at a substantial discount from their principal amount. (Section 301) United
States Federal income tax consequences and other special considerations
applicable to any such Original Issue Discount Securities will be described in
the Prospectus Supplement relating thereto.
If any of the Debt Securities are sold for any foreign currency or currency
unit or if principal of, premium, if any, or interest, if any, on any of the
Debt Securities is payable in any foreign currency or currency unit, the
restrictions, elections, tax consequences, specific terms and other information
with respect to such Debt Securities and such foreign currency or currency unit
will be specified in the Prospectus Supplement relating thereto.
EXCHANGE, REGISTRATION, TRANSFER AND PAYMENT
Unless otherwise indicated in the applicable Prospectus Supplement, payment
of principal, premium, if any, and interest, if any, on the Debt Securities will
be payable, and the exchange of and the transfer of Debt Securities will be
registrable, at the office or agency of the Company maintained for such purpose
and at any other office or agency maintained for such purpose. (Sections 305 and
1002) Unless otherwise indicated in the applicable Prospectus Supplement, the
Debt Securities will be issued in denominations of $1,000 or integral multiples
thereof. (Section 302) No service charge will be made for any registration of
transfer or exchange of Debt Securities, but the Company may require payment of
a sum sufficient to cover any tax or other governmental charge imposed in
connection therewith. (Section 305)
All moneys paid by the Company to a Paying Agent for the payment of
principal, premium, if any, or interest, if any, on any Debt Security which
remain unclaimed for two years after such principal, premium, or interest has
become due and payable may be repaid to the Company, and thereafter the Holder
of such Debt Security may look only to the Company for payment thereof. (Section
1003)
In the event of any redemption, the Company shall not be required to (i)
issue, register the transfer of or exchange Debt Securities of any series during
a period beginning at the opening of business 15 days before the day of the
mailing of a notice of redemption of Debt Securities of that series to be
redeemed and ending at the close of business on the day of such mailing or (ii)
register the transfer of or exchange any Debt Security, or
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portion thereof, called for redemption, except the unredeemed portion of any
Debt Security being redeemed in part. (Section 305)
BOOK-ENTRY SYSTEM
The provisions set forth below will apply to the Debt Securities of any
series if the Prospectus Supplement relating to such series so indicates.
Unless otherwise indicated in the applicable Prospectus Supplement, the
Debt Securities will be represented by one or more fully registered global
securities (collectively, a "Global Note") which will be deposited with, or on
behalf of, The Depository Trust Company, New York, New York, as Depositary, and
registered in the name of the Depositary's nominee. Except as set forth below,
the Global Note may be transferred, in whole and not in part, only to the
Depositary or another nominee of the Depositary.
The Depositary has advised the Company and the Underwriters as follows: The
Depositary is a limited-purpose trust company organized under the laws of the
State of New York, a member of the Federal Reserve System, a "clearing
corporation" within the meaning of the New York Uniform Commercial Code and a
"clearing agency" registered pursuant to the provisions of Section 17A of the
Securities Exchange Act of 1934, as amended. The Depositary holds securities
that its participants ("Participants") deposit with the Depositary. The
Depositary also facilitates the settlement among Participants of securities
transactions, such as transfers and pledges, in deposited securities through
electronic computerized book-entry changes in Participants' accounts, thereby
eliminating the need for physical movement of securities certificates. Direct
Participants include securities brokers and dealers, banks, trust companies,
clearing corporations and certain other organizations ("Direct Participants").
The Depositary is owned by a number of its Direct Participants and by the New
York Stock Exchange, Inc., the American Stock Exchange, Inc., and the National
Association of Securities Dealers, Inc. Access to the Depositary system is also
available to others such as securities brokers and dealers, banks, and trust
companies that clear through or maintain a custodial relationship with a Direct
Participant, either directly or indirectly ("Indirect Participants"). The rules
applicable to the Depositary and its Participants are on file with the
Commission.
Purchases of interests in a Global Note under the Depositary system must be
made by or through Direct Participants, which will receive a credit for such
interests in the Depositary's records. The ownership interest of each actual
purchaser of interests in a Global Note ("Beneficial Owner") is in turn to be
recorded on the Direct and Indirect Participants' records. Beneficial Owners
will not receive written confirmation from the Depositary of their purchase, but
Beneficial Owners are expected to receive written confirmations providing
details of the transaction, as well as periodic statements of their holdings,
from the Direct or Indirect Participant through which the Beneficial Owner
entered into the transaction. Transfers of ownership interests in a Global Note
are to be accomplished by entries made on the books of Participants acting on
behalf of Beneficial Owners. Beneficial Owners will not receive certificates
representing their ownership interests in a Global Note, except as described
below. The laws of some jurisdictions may require that certain purchasers of
securities take physical delivery of such securities in definitive form. Such
limits and laws may impair the ability to transfer beneficial interests in a
Global Note.
So long as the Depositary, or its nominee, is the registered holder and
owner of a Global Note, the Depositary or such nominee, as the case may be, will
be considered the sole owner and holder of the related Debt Security for all
purposes of such Debt Security and for all purposes under the Indenture. Except
as set forth below, owners of beneficial interests in a Global Note will not be
entitled to have the Debt Securities represented by such Global Note registered
in their names, will not receive or be entitled to receive physical delivery of
Debt Securities in definitive form and will not be considered to be the owners
or holders of any Debt Securities under the Indenture or such Global Note.
Accordingly, each person owning a beneficial interest in a Global Note must rely
on the procedures of the Depositary and, if such person is not a Participant, on
the procedures of the Participant through which such person owns its interest,
to exercise any rights of a holder of Debt Securities under the Indenture. The
Company understands that under existing industry practice, in the event the
Company requests any action of holders of Senior Notes or if an owner of a
beneficial interest in a Global Note desires to take any action that the
Depositary, as the holder of such Global Note, is
6
<PAGE> 8
entitled to take, the Depositary would authorize the Participants to take such
action, and that the Participants would authorize beneficial owners owning
through such Participants to take such action or would otherwise act upon the
instructions of beneficial owners owning through them.
To facilitate subsequent transfers, a Global Note deposited with the
Depositary is registered in the name of the Depositary's partnership nominee,
Cede & Co. The deposit of a Global Note with the Depositary and its registration
in the name of Cede & Co. effects no change in beneficial ownership. The
Depositary has no knowledge of the actual Beneficial Owners of the interests in
a Global Note; the Depositary's records reflect only the identity of the Direct
Participants to whose accounts interests in the Global Note are credited, which
may or may not be the Beneficial Owners. The Participants will remain
responsible for keeping account of their holdings on behalf of their customers.
Conveyance of notices and other communications by the Depositary to Direct
Participants, by Direct Participants to Indirect Participants, and by Direct
Participants and Indirect Participants to Beneficial Owners will be governed by
arrangements among them, subject to any statutory or regulatory requirements as
may be in effect from time to time.
Principal and interest payments on a Global Note will be made to the
Depositary or its nominee, as the case may be, as the registered owner and
holder of such Global Note. The Depositary's practice is to credit Direct
Participants' accounts on the payment date in accordance with their respective
holdings shown on the Depositary's records unless the Depositary has reason to
believe that it will not receive payment on the payment date. Payments by
Participants to Beneficial Owners will be governed by standing instructions and
customary practices, as is the case with securities held for the accounts of
customers in bearer form or registered in "street name," and will be the
responsibility of such Participant and not of the Depositary, the Paying Agent,
or the Company, subject to any statutory or regulatory requirements as may be in
effect from time to time. Payment of principal and interest to the Depositary is
the responsibility of the Company or the Paying Agent, disbursement of such
payments to Direct Participants shall be the responsibility of the Depositary,
and disbursement of such payments to the Beneficial Owners shall be the
responsibility of Direct and Indirect Participants.
The Depositary may discontinue providing its services as depositary with
respect to the Debt Securities at any time by giving reasonable notice to the
Company or the Paying Agent. Under such circumstances, in the event that a
successor depositary is not obtained, definitive Debt Securities certificates
are required to be printed and delivered.
Unless otherwise provided in the applicable Prospectus Supplement the Debt
Securities represented by a Global Note will be exchangeable for Debt Securities
in definitive form of like tenor as such Global Note in denominations of $1,000
and in any greater amount that is an integral multiple thereof if (i) the
Depositary notifies the Company that it is unwilling or unable to continue as
Depositary for such Global Note or if at any time the Depositary ceases to be a
clearing agency registered under the Securities Exchange Act of 1934, (ii) the
Company in its discretion at any time determines not to have all of the Debt
Securities represented by a Global Note and notifies the Trustee thereof or
(iii) an Event of Default has occurred and is continuing with respect to the
Debt Securities. Any Debt Security that is exchangeable pursuant to the
preceding sentence is exchangeable for Debt Securities issuable in authorized
denominations and registered in such names as the Depositary shall instruct the
Trustee. It is expected that such instructions may be based upon directions
received by the Depositary from its participants with respect to ownership of
beneficial interests in such Global Note. Subject to the foregoing, a Global
Note is not exchangeable, except for a Global Note or Global Notes of the same
aggregate denominations to be registered in the name of the Depositary or its
nominee.
The information in this section concerning the Depositary and the
Depositary's book-entry system has been obtained from sources that the Company
believes to be reliable, but the Company takes no responsibility for the
accuracy thereof.
7
<PAGE> 9
COVENANTS OF THE COMPANY
Except as set forth below or as otherwise provided in the applicable
Prospectus Supplement with respect to any series of Debt Securities, the Company
is not restricted by the Indenture from incurring, assuming or becoming liable
for any type of debt or other obligations, from paying dividends or making
distributions on its capital stock or purchasing or redeeming its capital stock.
The Indenture does not require the maintenance of any financial ratios or
specified levels of net worth or liquidity. In addition, the Indenture does not
contain any provision that would require the Company to repurchase or redeem or
otherwise modify the terms of any of its Debt Securities upon a change in
control or other events involving the Company which may adversely affect the
creditworthiness of the Debt Securities.
Unless otherwise indicated in the applicable Prospectus Supplement, certain
covenants contained in the Indenture which are summarized below will be
applicable (unless waived or amended) to the series of Debt Securities to which
such Prospectus Supplement relates so long as any of the Debt Securities of such
series are outstanding.
Limitations on Liens. The Company covenants that it will not issue, incur,
create, assume or guarantee, and will not permit any Restricted Subsidiary to
issue, incur, create, assume or guarantee, any debt for borrowed money secured
by a mortgage, security interest, pledge, lien, charge or other encumbrance
("mortgages") upon any Principal Property or Domestic Receivables or Inventory
of the Company or any Restricted Subsidiary or upon any shares of stock or
indebtedness of any Restricted Subsidiary (whether such Principal Property, or
Domestic Receivables or Inventory, shares or indebtedness are now existing or
owed or hereafter created or acquired) without in any such case effectively
providing concurrently with the issuance, incurrence, creation, assumption or
guaranty of any such secured debt that the Debt Securities (together with, if
the Company shall so determine, any other indebtedness of or guarantee by the
Company or such Restricted Subsidiary ranking equally with the Debt Securities)
shall be secured equally and ratably with (or, at the option of the Company,
prior to) such secured debt. The foregoing restriction, however, will not apply
to: (a) mortgages on property, shares of stock or indebtedness or other assets
of any corporation existing at the time such corporation becomes a Restricted
Subsidiary, provided that such mortgages or liens are not incurred in
anticipation of such corporation becoming a Restricted Subsidiary; (b)(i)
mortgages on property, shares of stock, indebtedness or other assets existing at
the time of acquisition thereof by the Company or a Restricted Subsidiary (which
may include property previously leased by the Company and leasehold interests
thereon, provided that the lease terminates prior to the acquisition) or
mortgages thereon to secure the payment of all or any part of the purchase price
thereof, or (ii) mortgages on property, shares of stock, indebtedness or other
assets to secure any indebtedness for borrowed money incurred prior to, at the
time of, or within 270 days after, the latest of the acquisition thereof, or, in
the case of property, the completion of construction, the completion of
improvements or the commencement of substantial commercial operation of such
property for the purpose of financing all or any part of the purchase price
thereof, such construction or the making of such improvements; (c) mortgages to
secure indebtedness owing to the Company or to a Restricted Subsidiary; (d)
mortgages existing at the date of the initial issuance of the Securities of such
series; (e) mortgages on property or other assets of a corporation existing at
the time such corporation is merged into or consolidated with the Company or a
Restricted Subsidiary or at the time of a sale, lease or other disposition of
the properties of a corporation as an entirety or substantially as an entirety
to the Company or a Restricted Subsidiary, provided that such mortgage was not
incurred in anticipation of such merger or consolidation or sale, lease or other
disposition; (f) mortgages in favor of the United States of America or any
State, territory or possession thereof (or the District of Columbia), or any
department, agency, instrumentality or political subdivision of the United
States of America or any State, territory or possession thereof (or the District
of Columbia), to secure partial, progress, advance or other payments pursuant to
any contract or statute or to secure any indebtedness incurred for the purpose
of financing all or any part of the purchase price or the cost of constructing
or improving the property subject to such mortgages; or (g) extensions, renewals
or replacements of any mortgage referred to in the foregoing clauses (a) through
(f); provided, however, that any mortgages permitted by any of the foregoing
clauses (a) through (f) shall not extend to or cover any property of the Company
or such Restricted Subsidiary, as the case may be, other than the property
specified in such clauses and improvements thereto. (Section 1008)
8
<PAGE> 10
Notwithstanding the restrictions outlined in the preceding paragraph, the
Company or any Restricted Subsidiary may issue, incur, create, assume or
guarantee debt secured by a mortgage which would otherwise be subject to such
restrictions, without equally and ratably securing the Debt Securities, provided
that after giving effect thereto, the aggregate amount of all debt so secured by
mortgages (not including mortgages permitted under clauses (a) through (g)
above) does not exceed 10% of the Consolidated Net Tangible Assets of the
Company. (Section 1008)
Limitations on Sale and Lease-Back Transactions. The Company covenants that
it will not, nor will it permit any Restricted Subsidiary to, enter into any
Sale and Lease-Back Transaction with respect to any Principal Property, other
than any such transaction involving a lease for a term of not more than three
years or any such transaction between the Company and a Restricted Subsidiary or
between Restricted Subsidiaries, unless: (a) the Company or such Restricted
Subsidiary would be entitled to incur indebtedness secured by a mortgage on the
Principal Property involved in such transaction at least equal in amount to the
Attributable Debt with respect to such sale and lease-back transaction, without
equally and ratably securing the Debt Securities, pursuant to the limitation in
the Indenture on liens; or (b) the Company shall apply an amount equal to the
greater of the net proceeds of such sale or the Attributable Debt with respect
to such sale and lease-back transaction within 180 days of such sale to either
(or a combination of) (i) the retirement (other than any mandatory retirement,
mandatory prepayment or sinking fund payment or by payment at maturity) of debt
for borrowed money of the Company or a Restricted Subsidiary that matures more
than twelve months after the creation of such indebtedness or (ii) the purchase,
construction or development of other comparable property. (Section 1009)
Certain Definitions Applicable to Covenants. The term "Attributable Debt"
when used in connection with a Sale and Lease-Back Transaction involving a
Principal Property shall mean, at the time of determination, the lesser of: (a)
the fair value of such property (as determined in good faith by the Board of
Directors of the Company); or (b) the present value of the total net amount of
rent required to be paid under such lease during the remaining term thereof
(including any renewal term or period for which such lease has been extended),
discounted at the rate of interest set forth or implicit in the terms of such
lease or, if not practicable to determine such rate, the weighted average
interest rate per annum borne by the Debt Securities of each series outstanding
pursuant to the Indenture compounded semi-annually, in either case as determined
in good faith by the principal accounting or financial officer of the Company.
For purposes of the foregoing definition, rent shall not include amounts
required to be paid by the lessee, whether or not designated as rent or
additional rent, on account of or contingent upon maintenance and repairs,
insurance, taxes, assessments, water rates and similar charges. In the case of
any lease which is terminable by the lessee upon the payment of a penalty, such
net amount shall be the lesser of the net amount determined assuming termination
upon the first date such lease may be terminated (in which case the net amount
shall also include the amount of the penalty, but no rent shall be considered as
required to be paid under such lease subsequent to the first date upon which it
may be so terminated) or the net amount determined assuming no such termination.
The term "Consolidated Net Tangible Assets" shall mean, as of any
particular time, the aggregate amount of assets (less applicable reserves and
other properly deductible items) after deducting therefrom: (a) all current
liabilities, except for (1) notes and loans payable, (2) current maturities of
long-term debt and (3) current maturities of obligations under capital leases;
and (b) certain intangible assets, to the extent included in said aggregate
amount of assets, all as set forth on the most recent consolidated balance sheet
of the Company and its consolidated subsidiaries and computed in accordance with
generally accepted accounting principles.
The term "Domestic Receivables or Inventory" shall mean accounts receivable
arising from the sale of inventory or inventory owned by the Company or any
Subsidiary whose principal place of business and place of incorporation is
located in the United States of America. For purposes hereof, inventory and
receivables shall be deemed to be "owned" if they are deemed to be assets of the
Company or such Subsidiary for purposes of generally accepted accounting
principles.
The term "Principal Property" shall mean the land, land improvements,
buildings and fixtures (to the extent they constitute real property interests)
(including any leasehold interest therein) constituting the
9
<PAGE> 11
principal corporate office, any manufacturing plant or any manufacturing
facility (whether now owned or hereafter acquired) and the equipment located
thereon which: (a) is owned by the Company or any Subsidiary; (b) is located
within any of the present 50 States of the United States of America (or the
District of Columbia); (c) has not been determined in good faith by the Board of
Directors of the Company not to be materially important to the total business
conducted by the Company and its Subsidiaries taken as a whole; and (d) has a
book value on the date as of which the determination is being made in excess of
0.75% of Consolidated Net Tangible Assets of the Company as most recently
determined on or prior to such date (including for purposes of such calculation
the land, land improvements, buildings and such fixtures compromising such
office, plant or facilities, as the case may be).
The term "Restricted Subsidiary" shall mean any Subsidiary which owns any
Principal Property or Domestic Receivables or Inventory; provided, however, that
the term "Restricted Subsidiary" shall not include any Subsidiary which is
principally engaged in financing the Company's operations outside the United
States of America; and provided, further, that the term "Restricted Subsidiary"
shall not include any Subsidiary less than 80% of the voting stock of which is
owned, directly or indirectly, by the Company or by one or more other
Subsidiaries, or by the Company and one or more other Subsidiaries if the common
stock of such Subsidiary is traded on any national securities exchange or quoted
on the Nasdaq National Market or in the over-the-counter market. None of the
Company's Subsidiaries is currently a Restricted Subsidiary.
The term "Sale and Lease-Back Transaction" shall mean any arrangement with
any Person providing for the leasing by the Company or any Restricted Subsidiary
of any Principal Property which property has been or is to be sold or
transferred by the Company or such Restricted Subsidiary to such Person.
The term "Subsidiary" shall mean any corporation of which at least 66 2/3%
of the outstanding stock having the voting power to elect a majority of the
board of directors of such corporation is at the time owned, directly or
indirectly, by the Company or by one or more other Subsidiaries, or by the
Company and one or more other Subsidiaries. For the purposes of this definition,
"voting stock" means stock which ordinarily has voting power for the election of
directors, whether at all times or only so long as no senior class of stock has
such voting power by reason of any contingency.
DEFEASANCE AND COVENANT DEFEASANCE
The Indenture provides that, if such provision is made applicable to the
Debt Securities of any series pursuant to the provisions of the Indenture, the
Company may elect (i) to defease and be discharged from any and all obligations
in respect of such Debt Securities except for the rights of holders to receive
payments in respect of the principal of and any premium and interest on such
Debt Securities and for certain obligations to register the transfer or exchange
of such Debt Securities, to replace temporary, destroyed, stolen, lost or
mutilated Debt Securities, to maintain paying agencies and to hold monies for
payment in trust ("defeasance") or (ii) (A) to omit to comply with certain
restrictive covenants in Sections 1005 through 1010 (including the covenants
referred to above under "Covenants of the Company") and (B) to deem the
occurrence of any event referred to in clauses (d) (with respect to Sections
1005 through 1010 inclusive) and (g) under "Events of Default" below not to be
or result in an Event of Default if, in each case with respect to the
Outstanding Debt Securities of such series as provided in Section 1303 on or
after the date the conditions set forth in Section 1304 are satisfied ("covenant
defeasance"), in either case upon the deposit with the Trustee (or other
qualifying trustee), in trust, of money and/or U.S. Government Obligations,
which through the payment of interest and principal in respect thereof in
accordance with their terms will provide money in an amount sufficient to pay
the principal of and any premium and interest on the Debt Securities of such
series on the respective Stated Maturities and any mandatory sinking fund
payments or analogous payments on the days payable, in accordance with the terms
of the Indenture and the Debt Securities of such series. Such a trust may only
be established if, among other things, the Company has delivered to the Trustee
an Opinion of Counsel to the effect that the Holders of the Outstanding Debt
Securities of such series will not recognize income, gain or loss for Federal
income tax purposes as a result of such deposit, defeasance or covenant
defeasance and will be subject to Federal income tax on the same amount, and in
the same manner and at the same times as would have been the case if such
deposit, defeasance or covenant defeasance had not occurred. Such opinion, in
the case of defeasance under clause (i) above, must refer to and be based upon a
ruling of the
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<PAGE> 12
Internal Revenue Service or a change in applicable Federal income tax laws
occurring after the date of the Indenture. The Prospectus Supplement relating to
a series may further describe the provisions, if any, permitting such defeasance
or covenant defeasance with respect to the Debt Securities of a particular
series. (Article Thirteen)
EVENTS OF DEFAULT
Any one of the following events will constitute an Event of Default under
the Indenture with respect to Debt Securities of any series (unless such event
is specifically inapplicable to a particular series as described in the
Prospectus Supplement relating thereto): (a) failure to pay any interest on any
Debt Security of that series when due, continued for 30 days; (b) failure to pay
principal of or any premium on any Debt Security of that series when due; (c)
failure to deposit any sinking fund payment, when due, in respect of any Debt
Security of that series; (d) failure to perform any other covenant of the
Company in the Indenture (other than a covenant included in the Indenture solely
for the benefit of a series of Debt Securities other than that series),
continued for 90 days after written notice as provided in the Indenture; (e)
certain events in bankruptcy, insolvency or reorganization involving the
Company; (f)(i) failure of the Company to make any payment at maturity,
including any applicable grace period, in respect of indebtedness, which term as
used in the Indenture means obligations (other than non-recourse obligations or
the Debt Securities of such series) of the Company for borrowed money or
evidenced by bonds, debentures, notes or similar instruments ("Indebtedness") in
an amount in excess of $25,000,000 and continuance of such failure or (ii) a
default with respect to any Indebtedness, which default results in the
acceleration of Indebtedness in an amount in excess of $25,000,000 without such
Indebtedness having been discharged or such acceleration having been cured,
waived, rescinded or annulled, in the case of (i) or (ii) above, for a period of
30 days after written notice thereof to the Company by the Trustee or to the
Company and the Trustee by the holders of not less than 15% in principal amount
of Debt Securities of such series; provided, however, that if any such failure,
default or acceleration referred to in (i) or (ii) above shall cease or be
cured, waived, rescinded or annulled, then the Event of Default by reason
thereof shall be deemed likewise to have been thereupon cured; and (g) any other
Event of Default provided with respect to Debt Securities of that series.
(Section 501)
Subject to the provisions of the Indenture relating to the duties of the
Trustee during default to act with the required standard of care, the Trustee is
under no obligation to exercise any of its rights or powers under the Indenture
at the request or direction of any of the Holders, unless such Holders shall
have offered to the Trustee reasonable indemnity. (Sections 601 and 603) Subject
to such provisions for the indemnification of the Trustee, the Holders of a
majority in principal amount of the Outstanding Debt Securities of any series
have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or power
conferred on the Trustee, with respect to the Debt Securities of that series.
(Section 512)
The Indenture provides that the Company will deliver to the Trustee, within
120 days after the end of each fiscal year, a brief certificate from the
principal executive, financial or accounting officer of the Company as to his or
her knowledge of the Company's compliance (without regard to any period of grace
or requirement of notice) with all conditions and covenants of the Indenture.
(Section 1004)
If an Event of Default with respect to Debt Securities of any series at the
time Outstanding occurs and is continuing, either the Trustee or the Holders of
at least 25% in principal amount of the Outstanding Debt Securities of that
series by notice as provided in the Indenture may declare the principal amount
(or, if the Debt Securities of that series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of that series) of all the Debt Securities of that series to be due and
payable immediately. At any time after a declaration of acceleration with
respect to Debt Securities of any series has been made, but before a judgment or
decree for payment of money has been obtained by the Trustee, the Holders of a
majority in principal amount of the Outstanding Debt Securities of that series
may, under certain circumstances, rescind and annul such acceleration. (Section
502)
No Holder of any Debt Security of any series has any right to institute any
proceeding with respect to the
Indenture or for any remedy thereunder, unless such Holder shall have previously
given to the Trustee written
11
<PAGE> 13
notice of a continuing Event of Default and unless the Holders of at least 25%
in principal amount of the Outstanding Debt Securities of that series shall have
made written request, and offered reasonable indemnity, to the Trustee to
institute such proceeding as trustee, and the Trustee shall not have received
from the Holders of a majority in principal amount of the Outstanding Debt
Securities of that series a direction inconsistent with such request and shall
have failed to institute such proceeding within 60 days. (Section 507) However,
such limitations generally do not apply to a suit instituted by a Holder of a
Debt Security for the enforcement of payment of the principal or interest on
such Debt Security on or after the respective due dates expressed in such Debt
Security. (Section 508)
MEETINGS, MODIFICATION AND WAIVER
Modifications and amendments of the Indenture may be made by the Company
and the Trustee with the consent of the Holders of not less than a majority in
principal amount of the Outstanding Debt Securities of each series affected by
such modification or amendment; provided, however that no such modification or
amendment may, without the consent of the Holder of each Outstanding Debt
Security affected thereby, (a) change the Stated Maturity of the principal of,
or any installment of principal of or interest on, any Debt Security, (b) reduce
the principal amount of, rate of interest on or any premium payable upon the
redemption of any Debt Security, (c) reduce the amount of principal of an
Original Issue Discount Security payable upon acceleration of the Maturity
thereof, (d) change the Place of Payment where, or the coin or currency in
which, any Debt Security or any premium or interest thereon is payable, (e)
impair the right to institute suit for the enforcement of any payment on or with
respect to any Debt Security after the Stated Maturity, Redemption Date or
Repayment Date, (f) reduce the percentage in principal amount of Outstanding
Debt Securities of any series, the consent of whose Holders is required for
modification or amendment of the Indenture or for waiver of compliance with
certain provisions of the Indenture or for waiver of certain defaults, or (g)
modify any of the provisions set forth in this paragraph except to increase any
such percentage or to provide that certain other provisions of the Indenture may
not be modified or waived without the consent of the Holder of each Outstanding
Debt Security affected thereby. (Section 902)
The Holders of at least a majority in principal amount of the Outstanding
Debt Securities of each series may, on behalf of the Holders of all the Debt
Securities of that series, waive, insofar as that series is concerned,
compliance by the Company with certain restrictive provisions of the Indenture.
(Section 1011) The Holders of not less than a majority in principal amount of
the Outstanding Debt Securities of each series may, on behalf of all Holders of
Debt Securities of that series and any coupons appertaining thereto, waive any
past default under the Indenture with respect to Debt Securities of that series,
except a default (a) in the payment of principal of or any premium or interest
on any Debt Security of such series or (b) in respect of a covenant or provision
of the Indenture which cannot be modified or amended without the consent of the
Holder of each Outstanding Debt Security of such series affected. (Section 513)
The Indenture provides that in determining whether the Holders of the
requisite principal amount of the Outstanding Debt Securities have given any
request, demand, authorization, direction, notice, consent or waiver thereunder
or whether a quorum is present at a meeting of Holders of Debt Securities (i)
the principal amount of an Original Issue Discount Security that shall be deemed
to be Outstanding shall be the amount of the principal thereof that would be due
and payable as of the date of such determination upon acceleration of the
Maturity thereof, (ii) the principal amount of a Debt Security denominated in
other than U.S. dollars shall be the U.S. dollar equivalent, determined on the
date of original issuance of such Debt Security, of the principal amount of such
Debt Security (or, in the case of an Original Issue Discount Security, the U.S.
dollar equivalent on the date of original issuance of such Debt Security of the
amount determined as provided in (i) above of such Debt Security) and (iii) Debt
Securities owned by the Company or any Affiliate of the Company shall be
disregarded and deemed not to be Outstanding. (Section 101)
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Company, without the consent of the Holders of any of the Outstanding
Debt Securities under the Indenture, may consolidate with or merge into, or
transfer or lease its assets substantially as an entirety to, any Person which
is a corporation, partnership or trust organized and validly existing under the
laws of any
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<PAGE> 14
domestic jurisdiction, provided that any successor Person expressly assumes the
Company's obligations on the Debt Securities and under the Indenture and that,
after giving effect to the transaction, no Event of Default, and no event which,
after notice or lapse of time, would become an Event of Default, shall have
occurred and be continuing, and that certain other conditions are met. (Section
801)
NOTICES
Except as otherwise provided in the Indenture, notices to Holders of Debt
Securities will be given by mail to the addresses of such Holders as they appear
in the Debt Security Register. (Section 106)
TITLE
Prior to due presentment of a Debt Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Debt Security is registered as the owner of such
Debt Security for the purpose of receiving payment of principal of and any
premium and any interest (other than Defaulted Interest or as otherwise provided
in the applicable Prospectus Supplement) on such Debt Security and for all other
purposes whatsoever, whether or not such Debt Security be overdue, and neither
the Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary. (Section 308)
REPLACEMENT OF DEBT SECURITIES
Any mutilated Debt Security will be replaced by the Company at the expense
of the Holder upon surrender of such Debt Security to the Trustee. Debt
Securities that become destroyed, stolen or lost will be replaced by the Company
at the expense of the Holder upon delivery to the Trustee of the Debt Security
or evidence of the destruction, loss or theft thereof satisfactory to the
Company and the Trustee. In the case of a destroyed, lost or stolen Debt
Security, an indemnity satisfactory to the Trustee and the Company may be
required at the expense of the Holder of such Debt Security before a replacement
Debt Security will be issued. (Section 306)
GOVERNING LAW
The Indenture and the Debt Securities will be governed by, and construed in
accordance with, the laws of the State of New York. (Section 112)
REGARDING THE TRUSTEE
The Indenture contains certain limitations on the right of the Trustee,
should it become a creditor of the Company, to obtain payment of claims in
certain cases or to realize for its own account on certain property received in
respect of any such claim as security or otherwise. (Section 613) The Trustee is
permitted to engage in certain other transactions; however, if it acquires any
conflicting interest and there is a default under the Debt Securities of any
series for which the Trustee serves as trustee, the Trustee must eliminate such
conflict or resign. (Section 608)
The Trustee currently provides certain banking and financial services to
the Company in the ordinary course of business and may provide other such
services in the future.
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<PAGE> 15
PLAN OF DISTRIBUTION
The Company may sell the Debt Securities (i) to one or more underwriters or
dealers for public offering and sale by them and (ii) to investors directly or
through agents. The distribution of the Debt Securities may be effected from
time to time in one or more transactions at a fixed price or prices (which may
be changed from time to time), at market prices prevailing at the time of sale,
at prices related to such prevailing market prices or at negotiated prices. Each
Prospectus Supplement will describe the method of distribution of the Debt
Securities offered thereby.
In connection with the sale of the Debt Securities, underwriters, dealers
or agents may receive compensation from the Company or from purchasers of the
Debt Securities for whom they may act as agents, in the form of discounts,
concessions or commissions. The underwriters, dealers or agents which
participate in the distribution of the Debt Securities may be deemed to be
underwriters under the Securities Act of 1933 and any discounts or commissions
received by them and any profit on the resale of the Debt Securities received by
them may be deemed to be underwriting discounts and commissions thereunder. Any
such underwriter, dealer or agent will be identified and any such compensation
received from the Company will be described in the Prospectus Supplement. Any
initial public offering price and any discounts or concessions allowed or
reallowed or paid to dealers may be changed from time to time.
Under agreements that may be entered into with the Company, underwriters,
dealers and agents may be entitled to indemnification by the Company against
certain civil liabilities, including liabilities under the Securities Act of
1933, or to contribution with respect to payments which the underwriters,
dealers or agents may be required to make in respect thereof.
All Debt Securities will be new issues of securities with no established
trading market. Any underwriters to whom Debt Securities are sold by the Company
for public offering and sale may make a market in such securities, but such
underwriters will not be obligated to do so and may discontinue any market
making at any time without notice. No assurance can be given as to the liquidity
of the trading market for any such securities.
Certain of the underwriters or agents and their associates may be customers
of, engage in transactions with or perform services for the Company in the
ordinary course of business.
LEGAL OPINIONS
The validity of the Securities is being passed upon for the Company by
Orrick, Herrington & Sutcliffe LLP, San Francisco, California.
EXPERTS
The audited consolidated financial statements incorporated in this
Prospectus, and the financial statement schedules incorporated in the
Registration Statement, by reference to the Annual Report on Form 10-K of
Applied Materials, Inc. for the year ended October 27, 1996 have been so
incorporated in reliance on the reports of Price Waterhouse LLP, independent
accountants, given on the authority of said firm as experts in auditing and
accounting.
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LOGO
<PAGE> 17
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth expenses in connection with the issuance and
distribution of the securities being registered, other than the underwriting
discount and commissions.
<TABLE>
<S> <C>
Registration fee.................................................. $ 62,446
Trustee's fees and expenses....................................... 20,500*
Accountants' fees and expenses.................................... 20,000*
Printing and engraving expenses................................... 75,000*
Blue sky and legal investment fees and expenses................... 15,000*
Rating agencies' fees............................................. 180,000*
Legal fees and expenses........................................... 50,000*
Miscellaneous..................................................... 2,054*
--------
Total................................................... $425,000
========
</TABLE>
- ------------
* Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law (the "Delaware Law")
authorizes a court to award, or a corporation's board of directors to grant,
indemnity to directors and officers in terms sufficiently broad to permit such
indemnification under certain circumstances for liabilities (including
reimbursement for expenses incurred) arising under the Securities Act of 1933,
as amended (the "Securities Act"). The Registrant's Certificate of Incorporation
and Bylaws provide for indemnification of the Registrant's directors, officers,
employees and other agents to the maximum extent permitted by the Delaware Law.
Reference is made to Section 6 of the Underwriting Agreement incorporated
by reference as an exhibit to the Registration Statement for provisions
regarding indemnification of the Company, officers, directors and controlling
persons against certain liabilities.
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
------- ---------------------------------------------------------------------------
<C> <S>
1.1 Form of Underwriting Agreement (incorporated by reference to Exhibit 1.1 to
the Company's Registration Statement on Form S-3 (Registration No.
33-52471)).*
4.1 Indenture dated as of August 24, 1994 between the Registrant and Harris
Trust Company of California, as Trustee (incorporated by reference in the
Company's Registration Statement on Form S-3 (Registration No. 33-52471)).
4.2 Supplemental Indenture dated as of September 30, 1997 between Registrant
and Harris Trust Company of California, as Trustee.
4.3 Form of Debt Security (included in Exhibit 4.1).*
4.4 Form of Medium-Term Note (incorporated by reference to Exhibit 4.3 to the
Company's Registration Statement on Form S-3 (Registration No. 33-60301)).*
5.1 Opinion of Orrick, Herrington & Sutcliffe as to the validity of the Debt
Securities.
12.1 Computation of Ratio of Earnings to Fixed Charges.
</TABLE>
II-1
<PAGE> 18
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
------- ---------------------------------------------------------------------------
<C> <S>
23.1 Consent of Price Waterhouse LLP.
23.2 The consent of Orrick, Herrington & Sutcliffe is contained in its opinion
filed as Exhibit 5.1 to this Registration Statement.
24.1 Powers of Attorney (set forth on the signature pages to this Registration
Statement).
25.1 Form T-1 of Eligibility and Qualification under the Trust Indenture Act of
1939 of Harris Trust Company of California.
</TABLE>
- ---------------
* Previously Filed
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement: (i) to include any
prospectus required by Section 10(a)(3) of the Securities Act; (ii) to reflect
in the prospectus any facts or events arising after the effective date of the
Registration Statement (or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a fundamental change in the
information set forth in the Registration Statement. Notwithstanding the
foregoing, any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the effective
Registration Statement; and (iii) to include any material information with
respect to the plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the Registration
Statement; provided, however, that the undertakings set forth in clauses (i) and
(ii) above shall not apply if the information required to be included in a
post-effective amendment by those clauses is contained in periodic reports filed
by the Registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")that are incorporated by
reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(4) That, for purposes of determining any liability under the Securities
Act, each filing of the Registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions referred to in Item 15 above, or
otherwise, the Registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted against the Registrant by such director, officer
or controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
II-2
<PAGE> 19
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
II-3
<PAGE> 20
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant,
Applied Materials, Inc., a corporation organized and existing under the laws of
Delaware, certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City and County of Santa Clara, State of California, on the
30 day of September, 1997.
APPLIED MATERIALS, INC.
By: /s/ JAMES C. MORGAN
------------------------------------
James C. Morgan
Chairman of the Board and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints James C. Morgan and Gerald F.
Taylor and each of them, their true and lawful attorneys and agents, with full
power of substitution, each with power to act alone, to sign and execute on
behalf of the undersigned any amendment or amendments to this Registration
Statement on Form S-3 and to perform any acts necessary in order to file such
amendments, and each of the undersigned does hereby ratify and confirm all that
said attorneys and agents, or their or his substitutes, shall do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE CAPACITY DATE
- --------------------------------------------- ---------------------------- -------------------
<C> <S> <C>
(1) PRINCIPAL EXECUTIVE OFFICER AND DIRECTOR:
/s/ JAMES C. MORGAN Chairman of the Board, Chief September 30, 1997
- --------------------------------------------- Executive Officer and
(James C. Morgan) Director
(2) PRINCIPAL FINANCIAL OFFICER:
/s/ GERALD F. TAYLOR Senior Vice President and September 30, 1997
- --------------------------------------------- Chief Financial Officer
(Gerald F. Taylor)
(3) PRINCIPAL ACCOUNTING OFFICER:
/s/ MICHAEL K. O'FARRELL Vice President and Corporate September 30, 1997
- --------------------------------------------- Controller
(Michael K. O'Farrell)
(4) DIRECTORS:
/s/ MICHAEL H. ARMACOST Director September 30, 1997
- ---------------------------------------------
(Michael H. Armacost)
</TABLE>
II-4
<PAGE> 21
<TABLE>
<CAPTION>
SIGNATURE CAPACITY DATE
- --------------------------------------------- ---------------------------- -------------------
<C> <S> <C>
/s/ DEBORAH A. COLEMAN Director September 30, 1997
- ---------------------------------------------
(Deborah A. Coleman)
/s/ HERBERT M. DWIGHT, JR. Director September 30, 1997
- ---------------------------------------------
(Herbert M. Dwight, Jr.)
/s/ PHILIP V. GERDINE Director September 30, 1997
- ---------------------------------------------
(Philip V. Gerdine)
/s/ TSUYOSHI KAWANISHI Director September 30, 1997
- ---------------------------------------------
(Tsuyoshi Kawanishi)
/s/ PAUL R. LOW Director September 30, 1997
- ---------------------------------------------
(Paul R. Low)
/s/ DAN MAYDAN Director September 30, 1997
- ---------------------------------------------
(Dan Maydan)
/s/ ALFRED J. STEIN Director September 30, 1997
- ---------------------------------------------
(Alfred J. Stein)
</TABLE>
A majority of the members of the Board of Directors
II-5
<PAGE> 22
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER EXHIBIT PAGE
------- ---------------------------------------------------------------- ------------
<C> <S> <C>
1.1 Form of Underwriting Agreement (incorporated by reference to
Exhibit 1.1 to the Company's Registration Statement on Form S-3
(Registration No. 33-52471)).*..................................
4.1 Indenture dated as of August 24, 1994 between the Registrant and
Harris Trust Company of California, as Trustee (incorporated by
reference in the Company's Registration Statement on Form S-3
(Registration No. 33-52471)).*..................................
4.2 Supplemental Indenture dated as of September 30, 1997 between
Registrant and Harris Trust Company of California, as
Trustee.........................................................
4.3 Form of Debt Security (included in Exhibit 4.1).*...............
4.4 Form of Medium-Term Note (incorporated by reference to Exhibit
4.3 to the Company's Registration Statement on Form S-3
(Registration No. 33-60301)).*..................................
5.1 Opinion of Orrick, Herrington & Sutcliffe as to the validity of
the Debt Securities.............................................
12.1 Computation of Ratio of Earnings to Fixed Charges. .............
23.1 Consent of Price Waterhouse LLP.................................
23.2 The consent of Orrick, Herrington & Sutcliffe is contained in
its opinion filed as Exhibit 5.1 to this Registration
Statement. .....................................................
24.1 Powers of Attorney (set forth on the signature pages to this
Registration Statement).........................................
25.1 Form T-1 of Eligibility and Qualification under the Trust
Indenture Act of 1939 of Harris Trust Company of California. ...
</TABLE>
- ---------------
* Previously Filed
<PAGE> 1
EXHIBIT 4.2
=============================================================================
APPLIED MATERIALS, INC.
and
HARRIS TRUST COMPANY OF CALIFORNIA
Trustee
FIRST SUPPLEMENTAL INDENTURE
Dated as of September 30, 1997
-----
Supplementing the Indenture
Dated as of August 24, 1994
Between Applied Materials, Inc. and
Harris Trust Company of California
as Trustee
-----
Debt Securities
================================================================================
<PAGE> 2
FIRST SUPPLEMENTAL INDENTURE, dated as of September 30, 1997, between
APPLIED MATERIALS, INC., a corporation duly organized and existing under the
laws of Delaware (herein called the "Company"), having its principal office at
3050 Bowers Avenue, Santa Clara, California 95054-3299, and HARRIS TRUST COMPANY
OF CALIFORNIA, a state trust company, duly organized and existing under the laws
of California (herein called the "Trustee"), as Trustee under the Indenture
referred to in the next paragraph.
RECITALS
The Company has heretofore executed and delivered to the Trustee an
Indenture, dated as of August 24, 1994, providing for the issuance from time to
time of its unsecured debentures, notes, or other evidences of indebtedness
(herein and therein called the "Securities"), to be issued in one or more series
as in the Indenture provided (such Indenture, the "Indenture"). All terms used
in this First Supplemental Indenture which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
Section 901(5) of the Indenture provides, among other things, that the
Company, when authorized by a Board Resolution, and the Trustee, at any time and
from time to time, may enter into an indenture supplemental to the Indenture for
the purpose of adding, changing or eliminating any of the provisions of the
Indenture, provided that any such addition, change or elimination shall not
apply to any Security of any series created prior to the execution of such
supplemental indenture and entitled to the benefit of such provisions.
The Company desires and has requested the Trustee to join with it in the
execution and delivery of this First Supplemental Indenture for the purpose of
amending the Indenture in certain respects with respect to the Securities of any
series created on or after the date hereof.
The Company represents that all things necessary to make this First
Supplemental Indenture a valid agreement of the Company, in accordance with its
terms, have been done.
AGREEMENT
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series thereof
issued after the date hereof as follows:
1
<PAGE> 3
ARTICLE I
SECTION 101. EVENTS OF DEFAULT. Section 501 of the Indenture is amended
by:
(a) deleting "$10,000,000" in the sixth line of subparagraph (5) and
inserting $25,000,000" in lieu thereof; and
(b) deleting "$10,000,000" in the second line of subparagraph (6)
and inserting "$25,000,000" in lieu thereof.
SECTION 102. LIMITATIONS ON LIENS. Section 1008 of the Indenture is
amended by deleting "5%" in the second to last line of paragraph (b) thereof and
inserting "10%" in lieu thereof.
SECTION 103. RESTRICTIONS ON FUNDED DEBT OF RESTRICTED SUBSIDIARIES.
Section 1010 of the Indenture is deleted in its entirety, and replaced by the
following: "Section 1010. Reserved."
SECTION 104. REDEMPTION. Section 301 of the Indenture is amended by
deleting the text in paragraph (7) in its entirety, and inserting the
following:
"the period or periods within which, the price or prices at which and
the terms and conditions upon which securities of the series may be
redeemed, in whole or in part, at the option of the Company and/or
repaid, in whole or in part, at the option of the Holders;"
ARTICLE II
SECTION 201. EFFECTIVE DATE. Notwithstanding anything in this instrument
to the contrary, no change, addition or elimination in the Indenture provided
for herein shall be effective as to any Security of any series created prior to
the date hereof and any change, addition or elimination in the Indenture
provided for herein shall only be effective as to Securities of series created
on or after the date hereof.
SECTION 202. INDENTURE. Except as expressly supplemented and amended
hereby, the Indenture shall continue in full force and effect in accordance with
the provisions thereof, and the Indenture, as supplemented and amended hereby,
is in all respects ratified and confirmed. This First Supplemental Indenture and
all its provisions shall be deemed a part of the Indenture in the manner and to
the extent herein and therein provided.
SECTION 203. COUNTERPARTS. This instrument may be executed in any number
of counterparts, each of which so executed shall be deemed to be an original,
but all such counterparts shall together constitute but one and the same
instrument.
2
<PAGE> 4
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed and attested, all as of the day and
year first above written.
APPLIED MATERIALS, INC.
By: /s/ NANCY H. HANDEL
------------------------------------
Name: Nancy H. Handel
Title: Vice President Global Finance
and Treasurer
Attest:
/s/ BARRY QUAN
- ------------------------------------
Name: Barry Quan
Title: Senior Director, Legal Affairs
HARRIS TRUST COMPANY OF
CALIFORNIA
By: /s/ ESTHER CERVANTES
----------------------------------
Name: Esther Cervantes
Title: Assistant Vice President
Attest: /s/ JOHN A. CASTELLANOS
- -----------------------------------
Name: John A. Castellanos
Title: Assistant Vice President
3
<PAGE> 5
STATE OF CALIFORNIA )
COUNTY OF SANTA CLARA ) ss.
On the 30th day of September, 1997, before me, a Notary Public in and
for said County and State, personally appeared Nancy H. Handel, known to be the
Vice President Global Finance and Treasurer of Applied Materials, Inc., one of
the corporations described in and which executed the foregoing instrument, and
known to me to be the person who executed the within instrument on behalf of
Applied Materials, Inc.; and she acknowledged to me that Applied Materials,
Inc. executed the within instrument pursuant to its bylaws or a resolution of
its Board of Directors.
Witness my hand and official seal.
Notary Public in and for said County and State
<PAGE> 6
STATE OF CALIFORNIA )
COUNTY OF LOS ANGELES ) ss.
On the 29th day of September, 1997, before me, a Notary Public in and
for said County and State, personally appeared Esther Cervantes, known to me to
be the Assistant Vice President of Harris Trust Company of California, one of
the corporations described in and which executed the foregoing instrument, and
known to me to be the person who executed the within instrument on behalf of
Harris Trust Company of California; and that she acknowledged to me that Harris
Trust Company of California executed the within instrument pursuant to its
bylaws or a resolution of its board of directors.
Witness my hand and official seal.
Notary Public in and for said County and State.
<PAGE> 1
Exhibit 5.1
September 30, 1997
Applied Materials, Inc.
3050 Bowers Avenue
Santa Clara, California 95054
Re: Applied Materials, Inc.
Registration Statement on Form S-3
Ladies and Gentlemen:
At your request, we have examined the registration statement on Form S-3 (the
"Registration Statement"), in the form to be filed by Applied Materials, Inc.
(the "Company") with the Securities and Exchange Commission (the "SEC") under
the Securities Act of 1933, as amended (the "Act"), of the Company's senior debt
securities (the "Senior Debt Securities"). The Senior Debt Securities are to be
issued under an Indenture, which has been filed as an exhibit to the
Registration Statement between the Company and Harris Trust Company of
California, as trustee (the "Trustee") and as supplemented and amended by the
First Supplemental Indenture dated as of September 30, 1997 between the Company
and the Trustee, filed as an exhibit to the Registration Statement (as amended,
the "Indenture"). The Senior Debt Securities are to be issued pursuant to an
Underwriting Agreement (the "Underwriting Agreement"), in the form incorporated
by reference in the Registration Statement. The Senior Debt Securities are to
be issued in the form incorporated by reference in the Registration Statement.
The Senior Debt Securities are to be sold from time to time as set forth in the
Registration Statement, the Prospectus incorporated by reference 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.
Based on such examination, we are of the opinion that when the issuance of
Senior Debt Securities has been duly authorized by appropriate corporate action
and the Senior Debt Securities, in the form incorporated by reference in the
Registration Statement, have been duly completed, executed, authenticated and
delivered in accordance with the Indenture and sold pursuant to the Underwriting
Agreement and as described in the Registration Statement, any amendment thereto,
the Prospectus and any Prospectus Supplement relating thereto, the Senior Debt
Securities 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
above-referenced 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 SEC issued
thereunder with respect to any part of the Registration Statement, including
this opinion as an exhibit or otherwise.
Very truly yours,
/s/ ORRICK, HERRINGTON & SUTCLIFFE LLP
ORRICK, HERRINGTON & SUTCLIFFE LLP
<PAGE> 1
Exhibit 12.1
RATIO OF EARNINGS TO FIXED CHARGES
(Dollars in Thousands)
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------------------
NINE MONTHS ENDED FISCAL YEAR
- --------------------------------------------------------------------------------------------------------------------------------
JULY 27, 1997 JULY 28, 1996 1996 1995 1994 1993 1992
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
Income from consolidated
companies before provision for
income taxes and cumulative
effect of accounting change $521,792 $810,019 $922,436 $698,543 $334,497 $153,558 $58,925
- --------------------------------------------------------------------------------------------------------------------------------
Fixed charges:
Interest expense 15,586 14,897 20,733 21,401 15,962 14,206 15,207
Capitalized interest 250 4,280 5,108 -- -- -- --
Interest component of rent
expense(1) 17,235 16,350 22,086 13,103 11,070 9,021 7,197
-------- -------- -------- -------- -------- -------- -------
Total fixed charges 33,071 35,527 47,927 34,504 27,032 23,227 22,404
- --------------------------------------------------------------------------------------------------------------------------------
Earnings from consolidated
companies before income taxes,
cumulative effect of accounting
change and fixed charges(2)(3) $554,935 $841,267 $965,255 $733,047 $361,529 $176,785 $81,329
- --------------------------------------------------------------------------------------------------------------------------------
Ratio of earnings to fixed
charges 16.78x 23.68x 20.14x 21.25x 13.37x 7.61x 3.63x
- --------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) For leases, the interest factor is estimated at one-third of total rent
expense for the applicable period, which management believes represents a
reasonable approximation of the interest factor.
(2) For purposes of computing the ratio of earnings to fixed charges for the
nine months ended July 27, 1997, $322 must be added to income from
consolidated companies before provision for income taxes and cumulative
effect of accounting change to reflect amortization of capitalized interest.
(3) Fixed charges do not include capitalized interest for purposes of this
calculation.
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our report dated
November 20, 1996, which appears on page 50 of the Annual Report to Stockholders
of Applied Materials, Inc. for the year ended October 27, 1996, which is
incorporated by reference in Applied Materials Inc.'s Annual Report on Form 10-K
for the year ended October 27, 1996. We also consent to the incorporation by
reference of our report on the Financial Statement Schedules, which appears on
page 22 of such Annual Report on Form 10-K. We also consent to the references to
us under the headings "Experts" in such Prospectus.
/s/ PRICE WATERHOUSE LLP
- ---------------------------------------------------
PRICE WATERHOUSE LLP
September 30, 1997
San Jose, California
<PAGE> 1
EXHIBIT 25.1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------
FORM T-1
STATEMENT OF ELIGIBILITY AND QUALIFICATION
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
----------
HARRIS TRUST COMPANY OF CALIFORNIA
(Exact name of trustee as specified in its charter)
California 94-0304530
(State of incorporation (I.R.S. employer
if not a national bank) Identification No.)
601 South Figueroa Street, 49th Floor
Los Angeles, California 90017
(Address of principal executive offices)
Esther Cervantes, Harris Trust Company of California
601 South Figueroa Street, 49th Floor
Los Angeles, California 90017
(213) 239-0675
(Name, address and telephone number for agent for service)
----------
APPLIED MATERIALS, INC.
(Exact name of obligor as specified in its charter)
Delaware 94-1655526
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
3050 Bowers Avenue
Santa Clara, California 95054
(Address of principal executive offices, including zip code)
Registrant's telephone number, including area code: (408) 727-5555
---------------------
SENIOR DEBT SECURITIES
(Title of the indenture securities)
<PAGE> 2
GENERAL
Item 1. General Information.
Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervisory authority to
which it is subject.
<TABLE>
<S> <C>
Department of Financial Institutions Federal Reserve Bank of San Fancisco
111 Pine Street 101 Market Street
Suite 1100 San Francisco, California 94105
San Francisco, California 94104
</TABLE>
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with Obligor.
If the obligor is an affiliate of the Trustee, describe each
affiliation.
None.
<PAGE> 3
Item 16. List of Exhibits.
Exhibit T-1A. A copy of the articles of association of Trustee as
presently in effect: Restated Articles of Incorporation
and Amendment of February 9, 1994.
Exhibit T-1A is incorporated herein by reference to S.E.C.
File No. 33-54627 of the Registration Statement of
FirstFed Financial Corp. Exhibit T-1A.
Exhibit T-1B. A copy of the certificate of authority of the Trustee to
commence business, if not contained in the articles of
association: Certificate of Authorization to transact
business.
Exhibit T-1B is incorporated herein by reference to S.E.C.
File No. 333-2688 of the Registration Statement of Western
Wireless Corporation Exhibit T-1B.
Exhibit T-1C. A copy of the authorization of the Trustee to exercise
corporate trust powers, if such authorization is not
contained in the documents specified in paragraph (1) and
(2) above: Contained in Exhibits T-1A and T-1B above.
Exhibit T-1D. Copy of the existing bylaws of the Trustee or instruments
corresponding thereto: By-Laws of Harris Trust Company of
California as of April 27, 1995, as presently in effect.
Exhibit T-1D is incorporated herein by reference to S.E.C.
File No. 333-2688 of the Registration Statement of Western
Wireless Corporation Exhibit T-1D.
Exhibit T-1E. A copy of each indenture referred to in Item 4, if obligor
is in default.
Not Applicable.
Exhibit T-1F. The consents of United States institutional trustees
required by Section 321 of the Act: Consent dated as of
January, 1994.
Exhibit T-1F is incorporated herein by reference to S.E.C.
File No. 33-69382 of the Registration Statement of Pacific
Gulf Properties, Inc. Exhibit T-1F.
Exhibit T-1G. A copy of the latest report of condition of the Trustee
published pursuant to law or the requirement of its
supervising or examining authority: Trust Company
Consolidated Report of Condition provided to the
Department of Financial Institutions for the period ending
June 30, 1997.
Exhibit T-1G is incorporated herein by reference to S.E.C.
File No. 333-34469 of the Registration Statement of The
Gap, Inc. Exhibit T-1G.
Exhibit T-1H. A copy of any order pursuant to which the foreign trustee
is authorized to act as sole trustee under the indentures
qualified or to be qualified under the Act.
Not Applicable.
Exhibit T-1I. Foreign trustees are required to file a consent to service
of process on Forms F-X.
Not Applicable.
<PAGE> 4
SIGNATURES
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, Harris Trust Company of California, a corporation organized and
existing under the laws of California, has duly caused this Statement of
Eligibility and Qualification to be signed on its behalf by the undersigned,
thereunto duly authorized, all in the City of Los Angeles, State of California,
on August 27, 1997.
HARRIS TRUST COMPANY OF
CALIFORNIA
By /S/ ESTHER CERVANTES
-------------------------------
Esther Cervantes
Assistant Vice President
