SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K
(Mark One)
[ X ] Annual report pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934 for the fiscal year ended March 30, 1996 or
[ ] Transition report pursuant to section 13 or 15(d) of the Securities
Exchange Act of 1934
COMMISSION FILE NUMBER 0-18548
XILINX, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 77-0188631
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
2100 LOGIC DRIVE, SAN JOSE, CA 95124
(Address of principal executive offices) (Zip Code)
(408) 559-7778
Registrant's telephone number, including area code
SECURITIES REGISTERED PURSUANT TO SECTION 12(B) OF THE ACT:
None
SECURITIES REGISTERED PURSUANT TO SECTION 12(G) OF THE ACT:
COMMON STOCK, $.01 PAR VALUE
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such requirements for the past 90 days.
YES [ X ] NO [ ]
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to
this Form 10-K. [ ]
The aggregate market value of the voting stock held by non-affiliates of the
Registrant, based upon the closing sale price of the Common Stock on June 4,
1996 as reported on the Nasdaq National Market was approximately
$2,089,824,088. Shares of Common Stock held by each executive officer and
director and by each person who owns 5% or more of the outstanding Common
Stock have been excluded in that such persons may be deemed affiliates. This
determination of affiliate status is not necessarily a conclusive
determination for other purposes.
At June 4, 1996, registrant had 72,196,484 shares of Common Stock outstanding.
DOCUMENTS INCORPORATED BY REFERENCE
Parts of the Proxy Statement for Registrant's 1996 Annual Meeting of
Stockholders are incorporated by reference in this Form 10-K Report (Part
III).
PART I
ITEM 1. BUSINESS
GENERAL
Xilinx, Inc. ("Xilinx" or "the Company") designs, develops and markets
complementary metal-oxide-silicon ("CMOS") programmable logic devices and
related development system software. The Company's programmable logic product
lines include field programmable gate arrays ("FPGAs") and complex
programmable logic devices ("CPLDs"). These components are standard
integrated circuits ("ICs") programmed by Xilinx's customers to perform
desired logic operations. Xilinx introduced the first FPGA device in 1985,
holds patents on certain FPGA architectures and technology and continues to be
the leading supplier to this market. Xilinx also markets hardwire devices,
which are mask-programmed ICs that are functionally equivalent to a programmed
FPGA.
Competitive pressures require manufacturers of electronic systems to bring
increasingly complex products to market rapidly. Requirements for improved
functionality, performance, reliability and lower cost are often addressed
through the use of components that integrate ever larger numbers of
transistors onto a single integrated circuit. For electronic equipment
manufacturers in the data processing, telecommunications, networking,
industrial control, instrumentation, and military markets, integration often
results in faster speed, smaller size, lower power consumption and lower
costs. However, while global competition is increasing the demand for more
complex products, it is also shortening product life cycles and requiring more
frequent product enhancements. The length of time required to develop these
more sophisticated electronic systems is often incompatible with stringent
time to market requirements.
Xilinx was founded to design, develop and market FPGAs which uniquely combine
the high logic density typically associated with custom gate arrays with the
time to market advantages of programmable logic and the availability of a
standard product. The Company offers a broad product line of programmable
logic devices to provide solutions for customers. The Company's programmable
logic devices serve a wide variety of applications which require high levels
of integration and for which time to market is critical, production volumes
are unpredictable and/or frequent design modifications are necessary to adapt
a product to new markets. Xilinx CPLD's complement the Company's FPGA
products and contribute to the Company's efforts to offer total programmable
logic solutions. With FPGAs, which have the advantages of higher density,
lower power and lower cost, and CPLDs, which are typically faster, have lower
density and have simpler, easier to use software, the Company's products
enable electronic system manufacturers to rapidly bring complex products to
market in volume.
The Xilinx software strategy is to deliver an integrated design solution for a
broad customer base ranging from customers who are not familiar with designing
systems using FPGA's to the most sophisticated customers who are accustomed to
designing high density, mask programmed gate arrays. The objective is to
deliver strategic software advantages that combine ease of use with design
flexibility, effective silicon utilization and competitive performance.
System designers use proprietary Xilinx development system software together
with industry standard electronic design automation ("EDA") tools to design
and develop Xilinx programmable logic applications. Designers define the
logic functions of the circuit and revise such functions as necessary.
Programmable logic can be designed and verified in a few days, as opposed to
several weeks or months for gate arrays, which are customized devices that are
defined during the manufacturing process. Moreover, programmable logic design
changes can be implemented in as little as a few hours, as compared to several
weeks for a custom gate array. In addition, significant savings result from
the elimination of non-recurring engineering costs and the reduction of
expenses associated with the redesign and testing of custom gate arrays. By
reducing the cost and scheduling risks of design iterations, programmable
logic devices allow greater designer creativity, including the consideration
of design alternatives which often lead to product improvements. Further,
since programmable logic devices are standard products and production
quantities are more readily available, exposures to obsolete inventory can be
significantly reduced.
On April 10, 1995, the Company acquired NeoCAD, Inc. ("NeoCAD"), a company
engaged in the design, development, and sale of software design tools for
programmable electronic technologies. In fiscal 1996, the Company has been
integrating NeoCAD's advanced FPGA software technology into its development
system software.
Xilinx was organized in California in February 1984 and in November 1985 was
reorganized to incorporate its research and development limited partnership.
In April 1990, the Company reincorporated in Delaware. The Company's
corporate facilities and executive offices are located at 2100 Logic Drive,
San Jose, California 95124.
PRODUCTS
The timely introduction of new products is a key factor in the success of the
Company's business. Delays in developing new products with anticipated
technological advances or delays in commencing volume shipments of new
products would be expected to have an adverse effect on the Company's
business. In addition, there can be no assurance that such products, if
introduced, will gain market acceptance or respond effectively to new
technological changes or new product announcements by others.
Programmable Logic Devices
The Company's FPGA products include the XC2000, XC3000 and XC4000 families and
the recently introduced XC5000, XC6000 and XC8000 families. The Company's
CPLD products include the XC7000 family and the recently introduced XC9000
family. The Company has also recently introduced new members of the XC4000
family which include the XC4000E and XC4000EX. The XC4000E family increased
performance over previous versions of the XC4000 family by approximately fifty
percent. This improvement is the result of a new design, a new process
technology and new on-chip RAM features. The XC4000EX family utilizes the
benefits of the XC4000E architecture and provides additional routing resources
which are expected to meet the design requirements for ICs with gate densities
ranging from 28,000 to 125,000 useable gates. The XC4000EX family will offer
the most powerful solution for the mask-programmed gate array replacement
market by addressing 80% of the density requirements for today's gate array
design starts. The XC5000 family represents the first FPGA specifically
developed as a cost effective, high volume production alternative to gate
arrays. The XC5000 family significantly reduces the price premium for
customers evaluating an FPGA device against a comparable custom gate array.
Use of the XC5000 as a low cost solution for high density designs permits the
customer to also take advantage of design ease and to accelerate time to
volume production. The XC6000 family is designed for reconfigurable
coprocessing applications within the embedded controller market. The XC8000
family consists of one-time programmable FPGAs which utilize the Company's
innovative MicroVia antifuse technology and proprietary sea-of-gates
architecture and was developed for high gate efficiency and ease-of-use. The
XC9000 family utilizes Flash-based architecture and offers in-system
programmability. The Company shipped XC4000E and XC8000 products in fiscal
1996 and expects to ship the XC4000EX, XC6000 and XC9000 products in fiscal
1997.
FPGAs are available in a wide variety of plastic and ceramic package types,
including pin-grid array, surface mount and quad flat pack configurations.
These devices meet the industry standard operating temperature ranges of
commercial, industrial and military users.
The Company's hardwire products offer a low cost migration path for high
volume applications. Once a programmable logic design is finalized, customers
can take advantage of hardwire products which are mask-programmed during the
manufacturing process. For every Xilinx FPGA family, there is a corresponding
hardwire family.
In order to minimize the printed circuit board area required for external
storage of the FPGA configuration program, the Company has developed a family
of erasable programmable read-only memories ("EPROMs"). These devices are
sold by the Company in conjunction with its FPGAs.
Development System Software
The Company's current version of XACTstep software combines powerful
technology with a flexible, easy to use graphical interface to help achieve
the best possible designs. XACTstep provides all of the implementation
technology required to design with Xilinx logic devices, including module
generation, design optimization and mapping, placement and routing, timing
analysis, and program file generation. The Company's next generation software
will build upon the existing user interface of the current XACTstep software
release, but underneath will be a new generation software platform based on
the NeoCAD core technologies. This merged release, which is expected to be
available in fiscal 1997, is designed to satisfy the complete spectrum of FPGA
and CPLD customers.
The Company currently offers two different series of software solutions. One
series, which was released in April 1996, is an off-the-shelf, or
"shrink-wrapped", solution that is easy to learn and use. For those customers
that are new to designing with PLDs or want a low cost solution, the Company
offers this entirely integrated software solution. The second series is for
designers who want to integrate programmable logic design into their existing
EDA tool environment. With interfaces to over 50 EDA vendors, this product
allows users to select tools with which they are most familiar and therefore
shortens their design cycle.
The Company is preparing a third software solution series to be directed
towards high-end system level design applications which have historically been
dominated by gate arrays. Xilinx will provide pre-implemented, fully-verified
"drop-in modules", called LogiCores, for commonly used complex functions such
as digital signal processing. These cores of intellectual property are
expected to change the way in which logic has been historically designed. As
a result, users should be able to shorten development time, reduce design risk
and obtain superior performance for their designs.
Xilinx's XACTstep development system software operates on desktop computer
platforms, including personal computers and workstations from IBM,
IBM-compatible manufacturers, HP, DEC and Sun Microsystems. Through March 30,
1996, the Company had distributed over 26,700 development systems to more than
5,000 system manufacturers worldwide.
In fiscal 1996, sales of FPGAs, CPLDs, EPROMS, Hardwire and development system
software products accounted for 85%, 2%, 5%, 5% and 3% of total revenues,
respectively. For additional information on the Company's revenues, see
Management's Discussion and Analysis of Results of Operations and Financial
Condition in Item 7.
RESEARCH AND DEVELOPMENT
Xilinx's research and development activities are primarily directed towards
the design of new integrated circuits, the design of new development system
software and ongoing cost reductions and performance improvements in existing
products. The Company's recent research and product development efforts have
been directed principally towards its XC3100, XC4000, XC5000, XC6000 and
XC8100 families of FPGAs, CPLD products, XACT development system software and
towards other proprietary new architectures and processes.
Xilinx believes that development system software is an important factor in
expanding the use of programmable logic devices. The Company's R&D challenge
is to continue to develop new products that create solutions for customers
while simultaneously reducing product development time. A further challenge
will be the completion of integrating NeoCAD's advanced FPGA software
technology into the existing product line. The Company presently allocates
approximately 60% and 40% of its research and development staff for integrated
circuit design or process development and development system software
products, respectively. As of March 30, 1996, 388 employees were engaged in
research and development. In fiscal 1996, 1995, and 1994, the Company's
research and development expenses were $64.6 million, $45.3 million, and $34.3
million, respectively. The Company expects that it will continue to spend
substantial funds on research and development.
Research and development expenses, while having increased in amount in each
period presented, have approximated 12% of revenues in 1996 and 13% in 1995
and 1994. The Company believes that technical leadership is essential to its
success and is committed to continuing a significant level of research and
development effort.
MARKETING AND SALES
Xilinx sells its products through several channels of distribution: direct
sales to manufacturers by independent sales representative firms, sales
through domestic distributors, and sales through foreign distributors. Xilinx
also utilizes a direct sales management organization and field applications
engineers (FAEs) as well as manufacturer's representatives and distributors to
reach a broad base of potential customers. The Company's independent
representatives address larger OEM customers and act as a direct sales force,
while distributors serve the balance of the Company's customer base. All
channels are supported by Xilinx sales and technical support personnel.
In North America, Hamilton-Hallmark, Marshall Industries, and Insight
Electronics, Inc. distribute the Company's products nationwide, and Nu
Horizons Electronics provides additional regional sales coverage. The Company
believes that distributors provide a cost effective means of reaching small
and medium-sized customers. Since the Company's programmable logic devices
are standard products, they do not present many of the inventory risks to
distributors of custom gate arrays, and they simplify the requirements for
distributor technical support.
Because of the uncertainty associated with future pricing adjustments and
product returns, the Company defers recognition of revenues and related cost
of revenues for products sold through domestic distributors until the
merchandise is sold by the distributors.
BACKLOG AND CUSTOMERS
As of March 30, 1996, the Company's backlog was approximately $143.8 million,
as compared to approximately $94.9 million as of April 1, 1995. Xilinx
includes in its backlog all purchase orders scheduled for delivery within the
next six months. Xilinx produces standard products which can generally be
shipped from inventory within a short time after receipt of an order. The
Company's business, and to a large and growing extent that of the entire
semiconductor industry, is characterized by short-term order and shipment
schedules. Orders constituting the Company's current backlog are subject to
changes in delivery schedule or to cancellation at the option of the purchaser
without significant penalty. Accordingly, although useful for scheduling
production, backlog as of any particular date may not be a reliable measure of
revenues for any future period.
In fiscal 1996, the Company shipped products to over 5,000 customers directly
or through domestic and foreign distributors. No single end customer
accounted for more than 6% of revenues in fiscal 1996 or 1995 and 4% in fiscal
1994. See Note 9 of Notes to Consolidated Financial Statements in Item 8 for
Industry and Geographic Information.
WAFER FABRICATION
The majority of wafers for FPGAs shipped by the Company have been manufactured
by Seiko Epson Corporation (Seiko) and Yamaha Corporation (Yamaha). Seiko has
non-exclusive, non-transferable rights to manufacture and sell FPGAs designed
by Xilinx in Japan and Europe but is not currently exercising these rights.
In exchange, Seiko has provided the Company with access to advanced CMOS
processes. Precise terms with respect to the volume and timing of wafer
production and the pricing of wafers produced by Seiko and Yamaha are
determined by periodic negotiations between the Company and these foundry
partners. From time to time, Xilinx may contract with other suppliers to
provide wafers for the Company's products.
Xilinx's strategy is to focus its resources on creating new integrated
circuits and development system software and on market development rather than
on wafer fabrication. The Company continuously evaluates opportunities to
enhance foundry relationships and/or obtain additional capacity. As a result,
the Company has entered into recent agreements with United Microelectronics
Corporation and Seiko as discussed below.
The Company entered into a series of agreements with United Microelectronics
Corporation (UMC) pursuant to which the Company has agreed to join UMC and
other parties to form a joint venture for the purpose of building and managing
an advanced semiconductor manufacturing facility in Taiwan. See Note 4 of
Notes to Consolidated Financial Statements in Item 8. Under the terms of the
agreement, the Company invested $34 million in fiscal 1996 and will invest an
additional $68 million and $34 million in December 1996 and July 1997,
respectively, for a 25% equity interest in the venture. As a result of its
equity ownership, the Company will receive rights to purchase at market prices
a percentage of the facility 's wafer production. The proposed facility is
expected to commence limited production of eight-inch sub-micron wafers during
fiscal 1998. The Company is currently receiving eight-inch, sub-micron wafers
in limited volume from a recently constructed foundry in which UMC is the
major shareholder. Xilinx believes it will continue to receive such products
in moderate volumes until the joint venture facility is operational.
On May 17, 1996, the Company signed an agreement with Seiko. The agreement
provides for an advance to Seiko of $200 million to be used in the
construction of a wafer fabrication facility in Japan which will provide
access to eight-inch sub-micron wafers. In conjunction with the agreement,
$30 million was paid in May 1996 and further installments are scheduled
starting in November 1996. Repayment of this advance will be in the form of
wafer deliveries expected to begin in the first half of 1998. In addition to
the advance payments, the Company will provide further funding to Seiko in the
amount of $100 million. This additional funding will be paid after the final
installment of the $200 million advance, and the form of the additional
funding will be negotiated at that time.
ASSEMBLY AND TEST
Wafers purchased by the Company are tested by the manufacturer or by the
Company. Tested wafers are assembled by a subcontractor in facilities in
various Pacific Rim countries. In the assembly process, the wafers are
separated into individual integrated circuits which are then assembled in
packages. Following assembly, the packaged units are returned to the
Company's U.S. or Ireland facilities for further testing, marking and final
inspection prior to shipment to customers.
PATENTS AND LICENSES
Through March 30, 1996, the Company held 92 United States patents and has
filed for an additional 139 United States patents in the areas of software, IC
architecture and design. The Company intends to vigorously protect its
intellectual property. The Company believes that failure to enforce its
patents or to effectively protect its trade secrets could have an adverse
effect on the Company's business. See Legal Proceedings in Item 3 and Note 10
of Notes to Consolidated Financial Statements in Item 8.
Xilinx has acquired various software licenses that permit the Company to grant
object code sublicenses to its customers for certain third party software
programs licensed with the Company's development system software. In addition,
the Company has licensed certain software for internal use in product design.
EMPLOYEES
Xilinx's employee population has grown by 38% during the past year. As of
March 30, 1996, Xilinx had 1,201 employees compared to 868 at the end of the
prior year. None of the Company's employees are represented by a labor union.
The Company has not experienced any work stoppages and considers its
relations with its employees to be good.
COMPETITION
The Company's FPGA and CPLD products compete in the programmable logic
marketplace, with a substantial majority of the Company's revenues derived
from its FPGA product families. The industries in which the Company competes
are intensely competitive and are characterized by rapid technological change,
rapid product obsolescence and price erosion. The Company expects
significantly increased competition both from existing competitors and from a
number of companies that may enter its market. Xilinx believes that important
competitive factors in the programmable logic market include price, product
performance and reliability, adaptability of products to specific
applications, ease of use and functionality of development system software,
and technical service and support. The Company 's strategy for expansion in
the programmable logic market includes continued price reductions commensurate
with the ability to lower the cost of manufacture and continued introduction
of new product architectures which target high volume, low cost applications.
However, there can be no assurances that the Company will be successful in
achieving this strategy.
The Company's major sources of competition are comprised of three elements:
the manufacturers of custom CMOS gate arrays, providers of high density
programmable logic products characterized by FPGA-type architectures and other
providers of programmable logic products. The Company competes with custom
gate array manufacturers on the basis of lower design costs, shorter
development schedules and reduced inventory risks. The primary attributes of
custom gate arrays are high density, high speed and low production costs in
high volumes. However, the Company believes that the design specifications
for many customers can be met by the density and speed capabilities of
Xilinx's programmable logic products which are cost effective over a broad
range of production volumes. In addition, the Company 's efforts to introduce
lower cost architectures are intended to narrow the gap between current custom
gate array production costs (in high volumes) and FPGA production costs. To
the extent that such efforts are not successful, the Company's business could
be materially adversely affected.
The Company competes with providers of high density programmable logic
products characterized by FPGA-type architectures on the basis of software
capability, product functionally, price, performance and customer service.
The Company believes that certain of its patents have been infringed by a
competitor and has initiated legal action to protect its intellectual
property. See Legal Proceedings in Item 3 and Note 10 of Notes to
Consolidated Financial Statements in Item 8.
The benefits of programmable logic have attracted a number of companies to
this market, competing primarily on the basis of speed, density or cost.
Xilinx recognizes that different applications require different programmable
technologies, and the Company is developing multiple architectures, processes
and products to meet these varying customer needs. Recognizing the increasing
importance of standard software solutions, Xilinx is working to develop common
design software that supports the full range of integrated circuit products.
Xilinx believes that automation and ease of design will be significant
competitive factors in the programmable logic market.
Although certain manufacturers of PLDs compete with Xilinx, significant
differences in logic density between most complex PLDs and FPGAs limit the
amount of competitive overlap. While the architecture of complex PLDs gives
them a performance advantage in certain instances, the Company believes that
the higher density available with FPGAs makes them more economical for many
designs.
Several companies, both large and small, have introduced products competitive
with those of the Company or have announced their intention to enter this
market. Some of the Company's competitors may possess innovative technology
which could prove superior to Xilinx's technology in some applications. In
addition, the Company anticipates potential competition from suppliers of
logic products based on new technologies. Many of the Company's current or
potential competitors have substantially greater financial, manufacturing,
marketing and technical resources than Xilinx. This additional competition
could adversely affect the Company.
Xilinx also faces competition from its licensees. Under a license from the
Company, AT&T is manufacturing and marketing the Company's non-proprietary
XC3000 FPGA products and is employing that technology to provide additional
FPGA products offering high density. Seiko has rights to manufacture the
Company's products and market them in Japan and Europe but is not currently
doing so. AMD is licensed to use certain of the Company's patents to
manufacture and market products other than SRAM-based FPGAs and, after March
19, 1997, could also compete directly in this market.
EXECUTIVE OFFICERS OF THE REGISTRANT
Certain information regarding each of Xilinx's executive officers is set forth
below:
<TABLE>
<CAPTION>
Officer
Name Age Position Since
<S> <C> <C> <C>
Bernard V. Vonderschmitt 72 Chairman of the Board 1984
Willem P. Roelandts 51 Chief Executive Officer 1996
Robert C. Hinckley 48 Vice President, Strategic Plans and 1991
Programs, General Counsel, and Secretary
Gordon M. Steel 51 Senior Vice President, Finance and Chief 1987
Financial Officer
R. Scott Brown 55 Senior Vice President, Sales 1985
C. Frank Myers 62 Vice President, Operations 1985
</TABLE>
Except as set forth below, each of the Company's executive officers has been
engaged in his principal occupation described above during the past five
years. There is no family relationship between any director or executive
officer of the Company.
Willem P. "Wim" Roelandts joined the Company in January 1996 as Chief
Executive Officer. He is a 28-year veteran of Hewlett-Packard Company, where
he most recently served as a senior vice president and managed the company's
Computer Systems Organization from November 1992 through January 1996. In
this capacity, he was responsible for all aspects of the computer systems
business worldwide, including research and development, manufacturing,
marketing, professional services and sales. He also served as vice president
and general manager of the Network Systems Group from December 1990 to
November 1992.
Robert C. Hinckley joined the Company in November 1991 as Vice President,
Strategic Plans and Programs, serves as the Company's General Counsel, and was
appointed Secretary in May 1993. He acted as interim Chief Operating Officer
from March 1994 until August 1994. From August 1990 to November 1991 he was
engaged in the private practice of law. From January 1989 until August 1990,
he served as Senior Vice President, Chief Financial Officer, Secretary and
Treasurer of Spectra Physics, Inc.
In April 1996, Curtis S. Wozniak, President and Chief Operating Officer,
resigned from the Company. He had joined Xilinx in August 1994.
ITEM 2. PROPERTIES
Xilinx's principal administrative, sales, marketing, research and development
and final testing facility is located in adjacent buildings providing 335,000
square feet of available space in San Jose, California and are leased through
1999. The Company has entered into lease agreements relating to these
facilities which would allow the Company to purchase these facilities on or
before the lease expiration dates in December 1999. In addition, the Company
maintains domestic sales offices in nineteen locations which include the
metropolitan areas of Atlanta, Boston, Chicago, Denver, Dallas, Los Angeles,
Minneapolis, Philadelphia, Raleigh and San Jose as well as international sales
offices located in the metropolitan areas of London, Munich, Paris, Stockholm,
Tokyo, Taipei, Seoul and Hong Kong. The Company completed construction of a
100,000 square foot administrative, research and development and final testing
facility in the metropolitan area of Dublin, Ireland in 1995. This facility
is being used to service the Company's customer base outside of North America.
The Company is currently constructing a 60,000 square foot facility in
Boulder, Colorado. This facility will replace the former NeoCAD facility and
will be the primary location for the Company's software efforts in the areas
of research and development, manufacturing and quality control.
ITEM 3. LEGAL PROCEEDINGS
On June 7, 1993, the Company filed suit against Altera Corporation (Altera) in
the United States District Court for the Northern District of California for
infringement of certain of the Company's patents. Subsequently, Altera filed
suit against the Company, alleging that certain of the Company's products
infringe certain Altera patents. Fact discovery has been completed in both
cases. No trial date has been set. The Court has stayed further proceedings
in both cases until August 30, 1996, when the next status conference with the
Court is scheduled. On April 20, 1995, Altera filed an additional suit
against the Company in Federal District Court in Delaware (the Delaware suit)
alleging that the Company's XC5000 family infringes a certain Altera patent.
The Company answered the Delaware suit denying that the XC5000 family
infringes the patent in suit, which is the subject of the litigation,
asserting certain affirmative defenses and counterclaiming that the Altera Max
9000 family infringes certain of the Company's patents. The Delaware suit has
now been transferred to the United States District Court for the Northern
District of California. Due to the uncertain nature of the litigation with
Altera and because the lawsuits are still in the pre-trial stage, the ultimate
outcome of these matters cannot be determined at this time. Management
believes that it has meritorious defenses to such claims and is defending them
vigorously. The foregoing is a forward looking statement and actual results
could differ materially.
There are no other pending legal proceedings of a material nature to which the
Company is a party or of which any of its property is the subject. The
Company knows of no legal proceedings contemplated by any governmental
authority or agency.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
No matters were submitted to a vote of security holders during the fourth
quarter of the fiscal year covered by this report.
PART II
ITEM 5. MARKET FOR THE REGISTRANT'S COMMON EQUITY AND
RELATED STOCKHOLDER MATTERS
Xilinx's Common Stock is listed on the Nasdaq National Market under the symbol
XLNX. The table below reflects for the periods indicated the high and low
closing sales prices per share of the Common Stock, as reported on the Nasdaq
National Market. Xilinx has never paid a cash dividend on its Common Stock
and intends to continue this policy for the foreseeable future. As of March
31, 1996, there were approximately 671 shareholders of record. Since many
holders' shares are listed under their brokerage firms' names, the actual
number of shareholders is estimated by the Company to be over 35,000.
<TABLE>
<CAPTION>
Fiscal Year 1996 Fiscal Year 1995
Quarter Ended High Low High Low
- ------------- ------ ------ ------ ------
<S> <C> <C> <C> <C>
June 30 $33.17 $21.25 $18.67 $11.33
September 30 53.88 31.67 16.92 9.92
December 31 48.38 24.75 20.25 15.33
March 31 45.50 27.88 23.67 18.38
</TABLE>
The price range of the Company's Common Stock has been restated for all
periods presented to reflect the three-for-one stock split, which was effected
in July 1995.
ITEM 6. SELECTED FINANCIAL DATA - (in thousands, except per share data)
CONSOLIDATED STATEMENT OF INCOME DATA:
<TABLE>
<CAPTION>
Years ended March 31,
1996 1995 1994 1993 1992
<S> <C> <C> <C> <C> <C>
Net revenues $560,802 $355,130 $256,448 $177,998 $135,827
Operating income 165,756 # 92,048 + 65,168 41,586 30,137 *
Income before taxes 170,902 # 94,845 + 67,436 43,610 33,758 *
Provision for income taxes 69,448 35,567 26,157 16,379 12,493
Net income 101,454 # 59,278 + 41,279 27,231 21,265 *
Net income per share $ 1.28 # $ 0.80 + $ 0.57 $ 0.38 $ 0.30 *
Shares used in per share
calculations 78,955 74,109 72,237 70,848 71,868
- -------------------------- -------- -------- -------- -------- --------
<FN>
# After non-recurring charge for in-process technology related to the acquisition
of NeoCAD of $19,366 and $0.25 per share.
+ After non-recurring charge for the write-off of a minority investment of $2,500
and $0.02 per share net of tax.
* After non-recurring charge for in-process technology related to the acquisition
of Plus Logic of $3,507 and $0.03 per share net of tax.
</TABLE>
CONSOLIDATED BALANCE SHEET DATA
<TABLE>
<CAPTION>
1996 1995 1994 1993 1992
<S> <C> <C> <C> <C> <C>
Working capital $436,070 $180,064 $143,103 $101,100 $ 88,414
Total assets 720,880 320,940 226,156 162,899 146,589
Long-term debt 250,000 867 2,195 3,911 4,959
Stockholders ' equity 368,244 243,971 172,878 123,299 108,662
- ---------------------- -------- -------- -------- -------- --------
</TABLE>
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
Cautionary Statement
The statements in this Management's Discussion and Analysis that are forward
looking involve numerous risks and uncertainties and are based on current
expectations. Actual results may differ materially. Such risks and
uncertainties are detailed in the Company's SEC reports and filings. Certain
of these risks and uncertainties are discussed under "Factors Affecting Future
Results".
Nature of Operations
Xilinx, Inc. ("Xilinx" or the "Company") designs, develops and markets CMOS
(complementary metal-oxide-silicon) programmable logic devices and related
development system software. The Company's programmable logic product lines
include field programmable gate arrays ("FPGAs") and complex programmable
logic devices ("CPLDs"). These components are standard integrated circuits
("ICs") programmed by Xilinx's customers to perform desired logic operations.
Xilinx introduced the first FPGA device in 1985, holds patents on FPGA
architecture and technology, and continues to be the leading supplier to this
market. Xilinx also markets hardwire devices which are mask-programmed ICs
functionally equivalent to programmed FPGAs. The Company's products provide
high integration and quick time-to-market for electronic equipment
manufacturers in the data processing, telecommunications, networking,
industrial control, instrumentation and military markets. The Company markets
its products throughout the world through a direct sales organization, direct
sales to manufacturers by independent sales representative firms, sales
through licensed domestic distributors and sales through foreign distributors.
Xilinx's products have provided effective solutions to a wide range of
customer logic requirements, thereby permitting the Company to increase
revenues and market share and to realize excellent profitability during fiscal
1996.
Results of Operations
The following table sets forth certain operational data both as percentages of
annual revenues and as percentage changes from the prior year 's results.
<TABLE>
<CAPTION>
Years ended March 31, Increase from Prior Year
------------------------------- --------------------------
1996 1995 1994 1996 1995
----------- --------- ------- ----------- --------------
<S> <C> <C> <C> <C> <C>
Revenues 100.0% 100.0% 100.0% 57.9% 38.5%
Cost of revenues 36.2% 39.0% 38.5% 46.7% 40.1%
Gross margin 63.8% 61.0% 61.5% 65.1% 37.4%
Research and development 11.5% 12.8% 13.4% 42.5% 32.0%
Marketing, general and administrative 19.2% 21.6% 22.7% 40.5% 32.1%
Operating income before
non-recurring charges 33.1% 26.6% 25.4% 95.8% 45.1%
Non-recurring charges 3.5% 0.7% - NM NM
Operating income 29.6% 25.9% 25.4% 80.1% 41.2%
Interest income (net) 0.9% 0.8% 0.9% 84.0% 23.3%
Income before taxes 30.5% 26.7% 26.3% 80.2% 40.6%
Provision for income taxes 12.4% 10.0% 10.2% 95.3% 36.0%
Net income 18.1% 16.7% 16.1% 71.1% 43.6%
- ---------------------------------------- ------------ --------- ------- --------- -----------
</TABLE>
Revenue
Xilinx reported record revenues for 1996 of $560.8 million, representing an
increase of 57.9% from $355.1 million for 1995 and 118.7% from $256.4 million
reported for 1994. The growth in revenues was a function of increased unit
sales of programmable logic devices and, more specifically, was primarily
attributable to the revenue growth of the XC4000 family as well as the growth
of the Company's new product, the XC5000 family. Other contributors included
the Company 's XC3000, XC3100 and CPLD families.
Xilinx's development system software is used by the Company 's customers to
implement designs in the Company 's programmable logic devices. Software
revenues increased by 36.1% in 1996 to approximately $17.1 million as compared
to $12.6 million in 1995 and $11.6 million in 1994. Although software revenues
have increased in dollar amounts, sales have declined as a percentage of total
revenues, accounting for 3%, 4% and 5% of revenues for 1996, 1995 and 1994,
respectively. Cumulative licenses for proprietary development system software
distributed to customers through the end of 1996 approximated 26,700 units, as
compared to 21,000 and 16,500 at the end of 1995 and 1994, respectively.
Revenue contribution by product line reflected increased customer demand for
the functionality and performance provided by the Company's higher density and
higher speed programmable logic devices. Of the $205.7 million growth in
revenues between 1995 and 1996, 96% was provided by revenues from the
proprietary products within the XC3000 family as well as the XC3100, XC4000,
XC5000 and CPLD families, all of which are proprietary products. Revenues from
proprietary products increased from 74% of the aggregate revenues in 1995 to
85% in 1996. In the fourth quarter of 1996, proprietary products accounted for
88% of total revenues as compared to 79% for the comparable 1995 quarter.
Revenues from the XC4000 family increased 106% between 1995 and 1996 to $250
million. Deriving revenues from proprietary products has been emphasized by
the Company as an effective implementation of a corporate pricing strategy
whose aim is to expand the market for its products by reducing sales prices
coincident with and commensurate with reductions in the cost of manufacturing
these products. The Company is actively pursuing a strategy of broadening the
markets it serves through the enhancement of software development tools, the
introduction of architectures offering new functionality, and the reduction of
IC prices through continuous advancements in the silicon manufacturing
process.
During 1996, all product families except the non-proprietary members of the
XC3000 family, where there is a second source competitor, experienced
increases in unit volume. During this period, the average selling price of an
IC product family fell between 8% and 24%. Individual products within the
XC3000, XC3100 and XC4000 families experienced price decreases as much as 32%
during the past year, as prices were reduced in the higher complexity and
higher speed families in order to be more competitive in high volume
applications. Price erosion of this magnitude has been common in the
semiconductor industry, as advances in both architecture and manufacturing
process technology have permitted continual reductions in cost. The
approximately 70% increase in unit volume for the XC3100 family and the more
than doubling in unit volume for the XC4000 family outweighed the impact of
price erosion on individual product lines, as the weighted average selling
price for all ICs increased approximately 4% in 1996 relative to the previous
year.
The XC4000 products provide the widest range of densities of any family,
currently ranging from 2,000 to 28,000 gates. The Company 's HardWire products
offer a low cost migration path for high volume applications. During 1996, the
Company began volume production of the XC5000 family, which represents the
first FPGA specifically developed as a cost effective, high volume production
alternative to gate arrays. The XC5000 family is expected to allow the Company
to enter new market segments, for which most new designs are expected to
require higher quantities. However, there can be no assurances that the XC5000
family will be successful in entering new market segments. Revenues for the
XC5000 family were $9.1 million for 1996. In the second half of 1996 the
Company introduced the XC9500 CPLD family, which provides complete in-system
programming and test capabilities for users who need maximum design
flexibility throughout their product life cycle.
No single end customer accounted for more than 6% of revenues in 1996 or 1995
and 4% of revenues in 1994.
International revenues constituted 35%, 31% and 28% of total revenues for
1996, 1995 and 1994, respectively. International revenues continue to be
primarily to customers in Europe and Japan. Revenue growth over the past year
in these two international markets was 73% and 111%, respectively. In 1996,
the Company completed construction of a $32.3 million manufacturing facility
in Dublin, Ireland. The Ireland facility has increased production levels
throughout 1996 and has enhanced the Company 's ability to meet the needs of
its international customers. The Company believes that international revenues
will continue to grow at a faster rate over the intermediate future than
domestic sales and projects that such revenues will eventually comprise 50% of
the worldwide total. However, there can be no assurances that international
revenues will eventually reach this level in the future. Sales to Pacific Rim,
Middle East and other regions outside North America, Europe and Japan
represented approximately 4% of revenues in each year presented.
Recently, several independent semiconductor industry analysts have indicated
their belief that the overall semiconductor industry will grow at lower rates
than actual growth rates over the last few years. See "Other Factors Affecting
Operating Results" for discussion relating to potential impact of
semiconductor industry conditions on the Company's business.
The Company expects its growth rate in revenue for fiscal 1997 to decrease
from the levels experienced in fiscal 1996. The Company believes that the
conditions that led to slow growth in the last two quarters of fiscal 1996 are
still present, although probably to a lesser degree. The Company also realizes
that a prolonged slowdown in the overall semiconductor industry would
detrimentally impact Xilinx. While the Company currently projects revenue
growth rates for the first two quarters of fiscal 1997 to be comparable to or
above the two to four percent quarterly growth experienced in the final two
quarters of the prior fiscal year, no assurance can be given that this will be
the case.
The preceding three paragraphs contains forward-looking statements which
involve risks and uncertainties. The Company's actual results could differ
materially from those anticipated in these forward-looking statements as a
result of certain factors including those set forth in "Factors Affecting
Future Results" and elsewhere in this section.
Gross Margin
Gross margin as a percentage of revenues was 63.8% for 1996 as compared to 61%
for 1995 and 61.5% for 1994. Recent gross margin improvements are largely due
to the strengthening of the dollar versus the yen, recurring pricing
negotiations, improved product yields associated with recent manufacturing
technology enhancements, and realization of the benefits of expanded levels of
production. Over the past three years, Xilinx has also been able to offset
much of the erosion in gross margin percentages on the more mature integrated
circuits with increased volumes of newer, proprietary, higher margin products.
The Company recognizes that ongoing price reductions for its integrated
circuits are a significant element in expanding the market for its products.
Company management believes that the fiscal 1996 gross margins of 63.8% are
neither sustainable nor desirable in the future. Gross margins closer to the
Company's historical range of 60% to 62% of revenues are considered more
appropriate for expanding market share while realizing acceptable returns,
although there can be no assurance that future gross margins will be in this
range. Because the Company 's wafer purchases supplied by Japanese foundries
are denominated in yen, a strengthened U.S. dollar exchange rate against the
yen has had a positive impact on manufacturing costs. Manufacturing costs
would be adversely impacted if the dollar weakens against the yen. "See
Factors Affecting Future Results."
Research and Development
The Company has increased the dollars spent on research and development each
year in its twelve year history. These expenses in 1996 exceeded those of the
prior year by 43% and those of 1994 by 88%. The increase in research and
development expenses is primarily attributable to increased staffing, higher
engineering wafer purchases, and increased facility and support costs
associated with an expanded scope of operations. Increased staffing in fiscal
1996 was attributable in part to the acquisition and integration of NeoCAD.
See Note 3 of Notes to Consolidated Financial Statements. The Company remains
committed to a significant level of research and development effort in order
to continue to compete aggressively in the programmable logic marketplace.
Through March 31, 1996, the Company had 92 U.S. patents issued and has filed
for an additional 139 U.S. patents in the areas of software, IC architecture
and design. As of March 31, 1996, research and development personnel were
split 40% for software development and 60% for integrated circuit design and
process development. Xilinx has not capitalized any of the costs associated
with its software development.
Marketing, General and Administrative
Marketing, general and administrative costs have increased in each of the past
three years but declined as a percentage of revenues, reflecting both the
greater growth rate in revenues and the Company's commitment to control
administrative expenses. Sales expenses have increased each year due to
increasing personnel, increases in advertising, the costs of new sales
offices, and greater commission expenses associated with higher revenues. The
Company has nineteen sales offices located throughout the United States,
including the metropolitan areas of San Jose, Los Angeles, Denver, Dallas,
Chicago, Minneapolis, Atlanta, Raleigh, Philadelphia and Boston as well as
eight international sales offices located in the metropolitan areas of London,
Munich, Paris, Stockholm, Tokyo, Taipei, Seoul and Hong Kong. The increase in
general and administrative expenses since 1994 is primarily attributable to an
expanded number of employees and to continuing legal expenses associated with
litigation intended to protect the Company 's intellectual property rights.
The timing and extent of future legal costs associated with the ongoing
enforcement of the Company's intellectual property rights are not readily
predictable and may increase the level of future general and administrative
expenses.
Non-recurring Charges
During the first quarter of fiscal 1996, the Company incurred a $19.4 million
non-recurring write-off of in-process technology relating to the Company 's
acquisition of NeoCAD. During 1996, the Company has incurred research and
development expenses relating to its efforts to combine the Xilinx and NeoCAD
technologies into an integrated software product. See Note 3 of Notes to
Consolidated Financial Statements. During 1995, the Company incurred a $2.5
million write-off of a minority investment in Star Semiconductor Corporation.
Operating Income
Operating income grew from $65.2 million in 1994 to $92 million in 1995 and to
$165.8 million in 1996. Operating income in 1996 was $185.1 million before
consideration of the non-recurring write-off of in-process technology. Over
the past three years, operating income as a percentage of revenues (before
consideration of non-recurring charges) has increased from 25.4% in 1994 to
26.6% in 1995 and to 33% in 1996. Operating income as a percentage of revenues
could be adversely impacted in future years by the factors noted above, and as
the Company expands its efforts in research and development and continues to
assert its intellectual property rights.
Interest, Net
The Company incurs interest expense on the $250 million of 5 1/4% convertible
subordinated notes issued in November 1995. The Company earns interest income
on its cash, cash equivalents, short-term investments and restricted
investments. The amount of interest earned is a function of the balance of
cash invested as well as the prevailing interest rates. Net interest income
for 1996 increased by $2.3 million over 1995. In 1996, the increased interest
expense incurred relating to the notes was partially offset by the interest
income earned from investing the net proceeds of such notes. The Company's
investment portfolio contains tax-advantaged municipal bonds which have pretax
yields which are less than the interest rate on the notes. For financial
reporting purposes, the Company effectively records the difference between the
pretax and tax-equivalent yields as a reduction in provision for taxes on
income. As a result of the difference in yields and future uses of the
investment portfolio, levels of net interest income are likely to decrease in
the future.
Provision for Income Taxes
Xilinx 's effective tax rate was 40.6% for 1996 as compared to 37.5% and 38.8%
for 1995 and 1994, respectively. The higher tax rate for fiscal 1996 resulted
from the non-recurring write-off of in-process technology relating to the
acquisition of NeoCAD, which is not tax deductible. Excluding the
non-recurring write-off of in-process technology, the Company 's effective tax
rate for fiscal 1996 was 36.5%. The reduced rate from the previous fiscal
year is primarily due to the Company 's expanded operations in certain foreign
jurisdictions that offer statutory tax rates beneath the US effective tax
rate. The Company believes that net deferred tax assets (approximately $25.1
million at March 31, 1996) are realizable due to the taxable income existing
in potential carryback years.
Inflation
The effects of inflation upon the Company's financial results have not been
significant.
FACTORS AFFECTING FUTURE RESULTS
Dependence Upon Independent Manufacturers
The Company does not manufacture the wafers used for its products. To date,
most of the Company 's FPGA wafers have been manufactured by Seiko Epson
Corporation (Seiko) and Yamaha Corporation. The Company has depended upon
these suppliers and others to produce wafers with competitive performance and
cost attributes, to produce wafers at acceptable yields and to deliver them to
the Company in a timely manner. While the quality, yield and timeliness of
wafer deliveries to date from its suppliers have been acceptable, there can be
no assurance that manufacturing problems will not occur in the future. Any
prolonged inability to obtain wafers with competitive performance and cost
attributes, adequate yields or timely deliveries from these manufacturers, or
any other circumstance that would require the Company to seek alternative
sources of supply, could delay shipments. Any significant delays could have an
adverse effect on the Company 's operating results.
The Company 's long-term growth will depend in large part on the Company 's
ability to obtain increased wafer fabrication capacity from suppliers. A
significant increase in general industry demand or any interruption of supply
could reduce the Company 's supply of wafers or increase the Company 's cost
of such wafers, thereby materially adversely affecting the Company 's
business.
In order to secure additional wafer capacity, the Company from time to time
considers a number of alternatives, including, without limitation, equity
investments in, or loans, deposits, or other financial commitments to,
independent wafer manufacturers in exchange for production capacity, or the
use of contracts which commit the Company to purchase specified quantities of
wafers over extended periods. The Company has at times been unable, and may
in the future be unable, to fully satisfy customer demand because of
production constraints, including the ability of suppliers and subcontractors
to provide materials and services in a timely manner, as well as the ability
of the Company to process products for shipment. The Company 's future growth
will depend in part on its ability to locate and qualify additional suppliers
and subcontractors and to increase its own capacity to ship products, and
there can be no assurance that the Company will be able to do so. Any
increase in these constraints on the Company 's production could materially
adversely affect the Company 's business. In this regard, the Company has
entered into a joint venture, United Silicon Inc. (USI), to construct a new
wafer fabrication facility. See Notes 4 and 5 of Notes to Consolidated
Financial Statements and the Commitments discussion within "Financial
Condition, Liquidity and Capital Resources." However, there are many risks
associated with the construction of a new facility, and there can be no
assurance that such facility will become operational in a timely manner. In
addition, the Company has recently entered into an agreement for additional
capacity with another foundry. See Note 11 of Notes to Consolidated
Financial Statements and the Commitments discussion within "Financial
Condition, Liquidity and Capital Resources." If the Company requires
additional capacity and such capacity is unavailable, or unavailable on
reasonable terms, the Company 's business could be materially adversely
affected.
Impact of Currency
The Company has historically purchased most of the processed silicon wafers
used in its integrated circuits from Japanese foundries, which have been
denominated in yen. The Company has often limited its exposure to fluctuations
in foreign exchange rates through the purchase of forward exchange and option
contracts and by denominating billings to Japanese customers in yen. The
Company has entered into currency option contracts to cover approximately 50%
of 1997 yen requirements for wafer purchases after consideration of foreign
sales denominated in yen. Weakness in the purchasing power of the U.S. dollar
could increase the effective cost of processed silicon and adversely affect
the Company 's future results of operations. Foreign sales are billed in U.S.
dollars except for sales in Japan denominated in yen. The Company has also
entered into foreign exchange forward contracts to eliminate the impact of
future exchange fluctuations on the US dollar cost of investing in the USI
joint venture.
Litigation
The Company is currently involved in patent litigation with Altera Corporation
(see Note 10 of Notes to Consolidated Financial Statements and Item 3, Legal
Proceedings). Due to the uncertain nature of the litigation with Altera and
because the lawsuits are still in the pre-trial stage, the ultimate outcome of
these matters cannot be determined at this time. Management believes that it
has meritorious defenses to such claims and is defending them vigorously. The
foregoing is a forward looking statement and the future outcome could differ.
Other Factors Affecting Operating Results
The semiconductor industry is characterized by rapid technological change,
intense competitive pressure and cyclical market patterns. The Company 's
results of operations are affected by a wide variety of factors, including
general economic conditions and conditions specific to the semiconductor
industry, decreases in average selling price over the life of any particular
product, the timing of new product introductions (both by the Company and its
competitors), the timely implementation of new manufacturing technologies, the
ability to safeguard patents and intellectual property in a rapidly evolving
market, and rapid escalation of demand for some products in the face of
equally steep decline in demand for others. Market demand for the Company 's
products, particularly for those most recently introduced, can be difficult to
predict, especially in light of customers ' demands to shorten product lead
time. This could lead to revenue volatility if the Company were unable to
provide sufficient quantities of specified products in a given quarter. In
addition, any difficulty in achieving targeted yields could adversely impact
the Company 's results of operations. The Company attempts to identify these
changes in market conditions as soon as possible; however, the rapidity of
their onset makes prediction of and reaction to such events difficult. Due to
the foregoing and other factors, past results are a much less reliable
predictor of the future than is the case in many older, more stable and less
dynamic industries.
The Company 's future success depends on its ability to develop and introduce
on a timely basis new products which compete effectively on the basis of price
and performance and which address customer requirements. The success of new
product introductions is dependent upon several factors, including timely
completion of new product designs, achievement of acceptable yields and market
acceptance. No assurance can be given that the Company 's product development
efforts will be successful or that its new products will achieve market
acceptance. In addition, the average selling price for any particular product
tends to decrease rapidly over the product 's life. To offset such decreases,
the Company relies primarily on obtaining yield improvements and corresponding
cost reductions in the manufacture of existing products and on introducing new
products which incorporate advanced features and other price/performance
factors such that higher average selling prices and higher margins are
achievable relative to mature product lines. To the extent that such cost
reductions and new product introductions with higher margins do not occur in a
timely manner or the Company 's products do not achieve market acceptance, the
Company 's operating results could be adversely affected.
The Company's FPGA and CPLD products compete in the programmable logic
marketplace, with a substantial majority of the Company's revenues derived
from its FPGA product families. The industries in which the Company competes
are intensely competitive and are characterized by rapid technological change,
rapid product obsolescence and price erosion. The Company expects
significantly increased competition both from existing competitors and from a
number of companies that may enter its market. Xilinx believes that important
competitive factors in the programmable logic market include price, product
performance and reliability, adaptability of products to specific
applications, ease of use and functionality of development system software,
and technical service and support. The Company's strategy for expansion in
the programmable logic market includes continued price reductions commensurate
with the ability to lower the cost of manufacture and continued introduction
of new product architectures which target high volume, low cost applications.
The Company's major sources of competition are comprised of three elements:
the manufacturers of custom CMOS gate arrays, providers of high density
programmable logic products characterized by FPGA-type architectures and other
providers of programmable logic products. The Company competes with custom
gate array manufacturers on the basis of lower design costs, shorter
development schedules and reduced inventory risks. The primary attributes of
custom gate arrays are high density, high speed and low production costs in
high volumes. However, the Company believes that the design specifications
for many customers can be met by the density and speed capabilities of
Xilinx's programmable logic products which are cost effective in the required
production volumes. In addition, the Company's efforts to introduce lower
cost architectures are intended to narrow the gap between current custom gate
array production costs (in high volumes) and FPGA production costs. To the
extent that such efforts are not successful, the Company's business could be
materially adversely affected.
The Company relies upon patent, trademark, trade secret and copyright law to
protect its intellectual property. There can be no assurance that such
intellectual property rights can be successfully asserted in the future or
will not be invalidated, circumvented or challenged. From time to time, third
parties, including competitors of the Company, may assert exclusive patent,
copyright and other intellectual property rights to technologies that are
important to the Company. Litigation, regardless of its outcome, could result
in substantial cost and diversion of resources of the Company. Any
infringement claim or other litigation against or by the Company could
materially, adversely affect the Company 's financial condition and results of
operations.
The Company's future success depends in large part on the continued service of
its key technical, marketing and management personnel and on its ability to
continue to attract and retain qualified employees, particularly those highly
skilled design, process and test engineers involved in the manufacture of
existing products and the development of new products and processes. The
competition for such personnel is intense, and the loss of key employees could
have a material, adverse effect on the Company's financial condition and
results of operations.
Sales outside of the United States carry a number of inherent risks, including
risks of currency exchange fluctuations, the need for export licenses, tariffs
and other potential trade barriers, reduced protection for intellectual
property rights in some countries, the impact of recessionary environments in
economies outside the United States and generally longer receivable collection
periods. The Company's business is also subject to the risks associated with
the imposition of legislation and regulations relating to the import or export
of semiconductor products. The Company cannot predict whether quotas, duties,
taxes or other charges or restrictions will be imposed by the United States or
other countries upon the importation or exportation of the Company's products
in the future or what, if any, effect such actions would have on the Company's
financial condition and results of operations.
In order to expand international sales and service, the Company will need to
maintain and expand existing foreign operations or establish new foreign
operations. This entails hiring additional personnel and maintaining or
expanding existing relationships with international distributors and sales
representatives. This will require significant management attention and
financial resources and could adversely affect the Company's results of
operations. There can be no assurance that the Company will be successful in
its maintenance or expansion of existing foreign operations, in its
establishment of new foreign operations or in its efforts to maintain or
expand its relationships with international distributors or sales
representatives.
The semiconductor industry has historically been cyclical and subject to, at
various times, significant economic downturns characterized by diminished
product demand, accelerated erosion of average selling prices and
overcapacity. The Company may experience substantial period-to-period
fluctuations in future operating results due to general semiconductor industry
conditions, overall economic conditions or other factors.
Currently, most of the Company 's operations are centered in an area that has
been seismically active. Should there be a major earthquake in this area, the
Company 's operations may be disrupted resulting in the inability of the
Company to ship products in a timely manner, thereby materially adversely
affecting the Company 's business.
In addition, the securities of many high technology companies have
historically been subject to extreme price and volume fluctuations which may
adversely affect the market price of the Company 's Common Stock.
FINANCIAL CONDITION, LIQUIDITY AND CAPITAL RESOURCES
The Company 's financial condition at March 31, 1996 remained strong. Total
current assets exceeded total current liabilities by 5.2 times, compared to
3.4 times at March 31, 1995. Since its inception, the Company has used a
combination of equity and debt financing and internal cash flow to support
operations, make acquisitions and investments in complementary technologies,
obtain capital equipment and finance inventory and accounts receivable.
Total assets have grown from $320.9 million in 1995 to $720.9 million in 1996.
This increase reflects the net proceeds of $243.9 million received from the
sale of convertible subordinated notes during the year as well as the year's
favorable operating results. The percentage changes of selected balance sheet
items from March 1995 to March 1996 are shown below:
<TABLE>
<CAPTION>
% Change from
Description 1995 to 1996
- ------------------------------ --------------
<S> <C>
Cash, cash equivalents and
short-term investments 207.6%
Receivables 81.2%
Inventories 53.4%
Total current assets 110.3%
Total assets 124.6%
Total current liabilities 34.9%
Stockholder's equity 50.9%
</TABLE>
Cash, Cash Equivalents and Short-term Investments
Xilinx 's cash, cash equivalents and short-term investments increased by
$255.1 million in 1996 to $378 million. The Company generated cash flow of
approximately $150.3 million from operating activities in 1996, offset by
$352.7 million of cash used for investing activities, including the
acquisition of NeoCAD, the USI joint venture, net purchases of investments and
investments in property, plant and equipment. In addition, the Company
generated $256.7 million of cash from financing activities, reflecting the
proceeds derived from the convertible debt offering, which netted $243.9
million, and $14.2 million of common stock proceeds under employee option and
stock purchase plans, offset by $1.4 million of principal payments on capital
lease obligations. At March 31, 1996, cash, cash equivalents and short-term
investments represented 52% of total assets.
Receivables
Receivables grew 81.2% from $43.9 million at the end of 1995 to $79.5 million
at the end of 1996. The increase in receivables year-to-year is primarily due
to the greater volume of shipments which occurred in the last month of fiscal
1996.
Inventories
Inventories increased 53.4% from $25.6 million at March 1995 to $39.2 million
at March 1996. Inventory levels at March 31, 1996 represent 69 days of
inventory, which is consistent with Company objectives, and compares to 54
days at March 31, 1995. The Company confronts dual, contradictory objectives
with regard to inventory management. On the one hand, the Company believes
that its standard, off-the-shelf products should be available for prompt
shipment to customers. Accordingly, it attempts to maintain sufficient levels
of inventory in various product, range and speed configurations to meet
unpredictable customer demand. At the same time, the Company also wishes to
minimize the handling costs associated with higher inventory levels and to
realize fully the opportunities for cost reduction associated with future
manufacturing process advancements. The Company continually strives to balance
these two objectives so as to provide excellent customer response at a
competitive cost. Year-end inventories as a percentage of the fourth quarter
's cost of revenues increased from 60% in 1995 to 76% in 1996.
Property, Plant and Equipment
Xilinx 's investment in property and equipment was $60.5 million in 1996
compared to $26.2 million in 1995. The Company continues to invest in
software design tools and semiconductor design, test and manufacturing
equipment. The Company completed construction of a $32.3 million
manufacturing facility in Dublin, Ireland in 1996 to establish capacity to
meet increased product demand. Although the Company anticipates significantly
lower capital expenditures in fiscal 1997 as a result of the completion of the
Ireland facility, significant investments with wafer suppliers are planned for
1997. See Commitments discussion.
Current Liabilities
Current liabilities grew by 34.9% to $102.6 million at the end of 1996. This
growth is primarily attributable to increased deferred income for shipments
made to domestic distributors, increased trade payables associated with an
expanded scale of operations and interest payable relating to the convertible
subordinated notes.
Line of Credit
The Company has obtained credit line facilities for up to $47 million (see
Note 5 of Notes to Consolidated Financial Statements) of which $7 million is
intended to meet occasional working capital requirements for the Company 's
wholly owned Irish subsidiary. At March 31, 1996, no borrowings were
outstanding under the lines of credit.
Long-term Debt
In November 1995, the Company issued $250 million in convertible subordinated
notes. See Note 5 of Notes to Consolidated Financial Statements. There was no
significant long-term debt in 1995.
Stockholders ' Equity
Stockholders ' equity grew by 50.9% in 1996 to $368.2 million. The increase of
$124.3 million was primarily attributable to $101.5 million in net income and
$22.1 million related to the issuance of common stock in accordance with the
Company 's stock plans and the tax benefit from stock options. Stockholders '
equity as a percentage of total assets was 51.1% for 1996 and 76% for 1995.
Commitments
The Company entered into a series of agreements with United Microelectronics
Corporation (UMC) pursuant to which the Company has agreed to join UMC and
other parties to form a joint venture for the purpose of building and managing
an advanced semiconductor manufacturing facility in Taiwan. See Note 4 of
Notes to Consolidated Financial Statements. Under the terms of the agreement,
the Company invested $34 million in fiscal 1996 and will invest an additional
$68 million and $34 million in December 1996 and July 1997, respectively, for
a 25% equity interest in the venture. As a result of its equity ownership, the
Company will receive rights to purchase at market prices a percentage of the
facility 's wafer production. The proposed facility is expected to commence
limited production of eight-inch sub-micron wafers during fiscal 1998. The
Company is currently receiving eight-inch, sub-micron wafers in limited volume
from a recently constructed foundry in which UMC is the major shareholder.
Xilinx believes it will continue to receive such products in moderate volumes
until the proposed facility is operational.
On May 17, 1996, the Company signed an agreement with Seiko Epson Corporation
(Seiko), a primary wafer supplier. See Note 11 of Notes to Consolidated
Financial Statements. The agreement provides for an advance to Seiko of $200
million to be used in the construction of a wafer fabrication facility in
Japan which will provide access to eight-inch sub-micron wafers. In
conjunction with the agreement, $30 million was paid in May 1996 and further
installments are scheduled starting in November 1996. Repayment of this
advance will be in the form of wafer deliveries expected to begin in the first
half of 1998. In addition to the advance payments, the Company will provide
further funding to Seiko in the amount of $100 million. This additional
funding will be paid after the final installment of the $200 million advance
and the form of the additional funding will be negotiated at that time.
Employees
The number of Company employees grew by 38% during the past year. Xilinx had
1,201 employees at the end of 1996 as compared to 868 at the end of the prior
year.
The Company anticipates that existing sources of liquidity and cash flow from
operations will be sufficient to satisfy the Company 's cash needs for the
foreseeable future. The Company will continue to evaluate opportunities for
investments to obtain additional wafer supply capacity, procurement of
additional capital equipment and facilities, development of new products, and
potential acquisitions of businesses, products or technologies that would
complement the Company 's businesses and may use available cash or other
sources of funding for such purposes.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
CONSOLIDATED STATEMENT OF INCOME
<TABLE>
<CAPTION>
Years ended March 31,
1996 1995 1994
--------- --------- ---------
<S> <C> <C> <C>
Net revenues $560,802 $355,130 $256,448
Costs and expenses:
Cost of revenues 203,192 138,492 98,835
Research and development 64,600 45,318 34,334
Marketing, general and administrative 107,888 76,772 58,111
Non-recurring charges 19,366 2,500 -
Total costs and expenses 395,046 263,082 191,280
- -------------------------------------------------- --------- --------- ---------
Operating income 165,756 92,048 65,168
Interest income and other 10,791 13,083 2,803
Interest expense (5,645) (10,286) (535)
- -------------------------------------------------- --------- --------- ---------
Income before provision for taxes on income 170,902 94,845 67,436
Provision for taxes on income 69,448 35,567 26,157
- -------------------------------------------------- --------- --------- ---------
Net income $101,454 $ 59,278 $ 41,279
================================================== ========= ========= =========
Net income per share $ 1.28 $ .80 $ .57
================================================== ========= ========= =========
Weighted average common and common equivalent
shares used in computing per share amounts 78,955 74,109 72,237
================================================== ========= ========= =========
<FN>
See accompanying notes.
</TABLE>
CONSOLIDATED BALANCE SHEET
<TABLE>
<CAPTION>
March 31,
1996 1995
----------- ----------
<S> <C> <C>
ASSETS
Current assets
Cash and cash equivalents $110,893 $56,703
Short-term investments 267,068 66,181
Accounts receivable, net of allowance for doubtful
accounts and customer returns of $5,199 and $4,863
in 1996 and 1995, respectively 79,528 43,901
Inventories 39,238 25,586
Advances for wafer purchases 9,034 42,000
Deferred income taxes and other current assets 32,945 21,795
- -------------------------------------------------------- ----------- ----------
Total current assets 538,706 256,166
----------- ----------
Property, plant and equipment at cost:
Land 2,426 2,195
Building 18,029 -
Machinery and equipment 95,463 62,070
Furniture and fixtures 7,457 4,514
Construction in progress 4,908 1,797
- -------------------------------------------------------------------- ----------- ----------
128,283 70,576
Accumulated depreciation and amortization (45,645) (31,336)
- -------------------------------------------------------------------- ----------- ----------
Net property, plant and equipmet 82,638 39,240
Investment in joint venture 34,316 -
Restricted investments 36,212 12,625
Other assets 29,008 12,909
- -------------------------------------------------------------------- ----------- ----------
$720,880 $320,940
=========== ==========
LIABILITIES AND STOCKHOLDERS ' EQUITY
Current liabilities
Accounts payable $30,673 $22,484
Accrued payroll and payroll related liabilities 9,526 9,438
Income taxes payable 5,175 10,959
Other accrued liabilities 18,708 10,085
Deferred income on shipments to distributors 37,568 21,812
Current obligations under capital leases 986 1,324
- -------------------------------------------------------------------- ----------- ----------
Total current liabilities 102,636 76,102
----------- ----------
Long-term debt 250,000 867
Commitments and contingencies
Stockholders ' equity
Preferred Stock, $.01 par value; 2,000 shares authorized;
none issued and outstanding - -
Common Stock, $.01 par value; 200,000 shares authorized;
71,933 and 71,658 shares issued; 71,933 and 70,227
shares outstanding at March 31, 1996 and 1995, respectively 719 717
Additional paid-in capital 99,588 85,755
Retained earnings 267,505 166,051
Unrealized gain/(loss) on available-for-sale securities, 432 (329)
net of tax
Treasury stock, at cost - (8,223)
----------- ----------
Total stockholders' equity 368,244 243,971
----------- ----------
$720,880 $320,940
<FN> =========== ==========
See accompanying notes
</TABLE>
CONSOLIDATED STATEMENT OF CASH FLOWS
<TABLE>
Years ended March 31,
1996 1995 1994
----------- ---------- ---------
<S> <C> <C> <C>
Increase (decrease) in Cash and Cash Equivalents
CASH FLOWS FROM OPERATING ACTIVITIES
Net income $ 101,454 $ 59,278 $ 41,279
Adjustments to reconcile net income to net cash provided
by operating activities:
Write-off of in-process technology 19,366 - -
Depreciation and amortization 22,464 12,241 10,811
Changes in assets and liabilities net of effects of
NeoCAD acquisition:
Accounts receivable (34,777) (7,959) (8,813)
Inventories, including the impact of receipts against
advances for wafer purchases 19,375 1,011 (13,536)
Deferred income taxes and other (783) (1,685) (2,293)
Accounts payable, accrued liabilities and income
taxes payable 7,408 21,959 10,352
Deferred income on shipments to distributors 15,755 3,153 5,389
- -------------------------------------------------------------------- ----------- ---------- ---------
Total adjustments net of effects of NeoCAD acquisition 48,808 28,720 1,910
----------- ---------- ---------
Net cash provided by operating activities 150,262 87,998 43,189
----------- ---------- ---------
CASH FLOWS FROM INVESTING ACTIVITIES
Purchases of short-term available-for-sale investments (292,013) (75,590) (38,212)
Proceeds from maturity of short-term available-for-sale
investments 92,333 77,193 24,717
Purchases of held-to-maturity investments (96,141) (362,625) -
Proceeds from maturity of held-to-maturity investments 72,555 350,000 -
Advances for wafer purchases - (42,000) -
Acquisition of NeoCAD, net of cash acquired (33,412) - -
Acquisition of property, plant and equipment (60,506) (26,227) (12,334)
Investment in joint venture (34,316) - -
Other (1,235) (6,647) (3,815)
- -------------------------------------------------------------------- ----------- ---------- ---------
Net cash used in investing activities (352,735) (85,896) (29,644)
----------- ---------- ---------
CASH FLOWS FROM FINANCING ACTIVITIES
Net proceeds from issuance of long-term debt 243,901 - -
Principal payments on capital lease obligations (1,389) (1,421) (2,063)
Proceeds from issuance of common stock 14,151 8,688 5,883
- -------------------------------------------------------------------- ----------- ---------- ---------
Net cash provided by financing activities 256,663 7,267 3,820
----------- ---------- ---------
Net increase in cash and cash equivalents 54,190 9,369 17,365
Cash and cash equivalents at beginning of period 56,703 47,334 29,969
- -------------------------------------------------------------------- ----------- ---------- ---------
Cash and cash equivalents at end of period $ 110,893 $ 56,703 $ 47,334
- -------------------------------------------------------------------- =========== ========== =========
SCHEDULE OF NON-CASH TRANSACTIONS:
Tax benefit from stock options $ 7,907 $ 3,456 $ 2,417
Issuance of treasury stock under employee stock plans $ 8,223 $ 9,195 -
Receipts against advances for wafer purchases $ 32,966 - -
SUPPLEMENTAL DISCLOSURES OF CASH FLOW INFORMATION
Interest paid relating to capital lease obligations $ 201 $ 549 $ 535
Interest paid relating to reverse repurchase agreements $ - $ 9,737 $ -
Income taxes paid $ 74,688 $ 34,730 $ 24,587
==================================================================== =========== ========== =========
<FN>
See accompanying notes.
</TABLE>
CONSOLIDATED STATEMENT OF STOCKHOLDERS' EQUITY
<TABLE>
<CAPTION>
Three years ended March 31, 1996 Unrealized
Gain/(Loss)
Additional on Available Total
Common Stock Paid-in Retained For Sale Treasury Stockholders'
Shares Amount Capital Earnings Securities Stock Equity
------ ------ ---------- --------- ------------ -------- -------------
<S> <C> <C> <C> <C> <C> <C> <C>
BALANCE AT MARCH 31, 1993 70,272 $ 703 $ 74,520 $ 65,494 - $ (17,418) $ 123,299
Issuance of common shares
under employee stock
plans 1,386 14 5,869 - - - 5,883
Tax benefit from exercise
of stock options - - 2,417 - - - 2,417
Net income - - - 41,279 - - 41,279
- ------------------------------- ------ ------- ---------- --------- ------------ --------- -------------
BALANCE AT MARCH 31, 1994 71,658 717 82,806 106,773 - (17,418) 172,878
Reissuance of Treasury Stock
under employee stock
plans - - (507) - - 9,195 8,688
Tax benefit from exercise of
stock options - - 3,456 - - - 3,456
Unrealized loss on available-
for-sale securities, net of
tax - - - - (329) - (329)
Net income - - - 59,278 - - 59,278
- ------------------------------- ------ ------- ---------- --------- ------------- --------- ---------------
BALANCE AT MARCH 31, 1995 71,658 717 85,755 166,051 (329) (8,223) 243,971
Issuance of common shares
under employee stock
plans 275 2 2,070 - - - 2,072
Reissuance of Treasury Stock
under employee stock
plans - - 3,856 - - 8,223 12,079
Tax benefit from exercise
of stock options - - 7,907 - - - 7,907
Unrealized gain on available-
for-sale securities, net of
tax - - - - 761 - 761
Net income - - - 101,454 - - 101,454
- ------------------------------- ------ ------- ------------ --------- ------------ --------- ---------------
BALANCE AT MARCH 31, 1996 71,933 $ 719 $ 99,588 $ 267,505 $ 432 $ - $ 368,244
- ------------------------------- ====== ======= ============ ========= ============ ========= ===============
<FN>
See accompanying notes.
</TABLE>
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. NATURE OF OPERATIONS
Xilinx designs, develops and markets programmable logic semiconductor devices
and related development system software. The Company 's product lines include
field programmable gate arrays and complex programmable logic devices. The
wafers used to manufacture the Company 's products are obtained from
independent wafer manufacturers, located primarily in Japan. The Company is
dependent upon these manufacturers to produce and deliver wafers on a timely
basis. The Company is also dependent on subcontractors, located in Asia
Pacific, to provide semiconductor assembly services. Xilinx is a global
company with manufacturing facilities in the United States and Ireland and
sales offices throughout the world. The Company's products are sold to
customers in the data processing, telecommunications, networking, industrial
control, instrumentation and military markets. The Company derives more than
one-third of its revenues from international sales, primarily in Europe and
Japan.
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES AND CONCENTRATIONS OF RISKS
Basis of presentation
The accompanying consolidated financial statements include the accounts of the
Company and its wholly owned subsidiaries after elimination of all significant
intercompany accounts and transactions. The Company 's fiscal year ends on the
Saturday nearest March 31. For ease of presentation, March 31 has been
utilized as the fiscal year-end for all financial statement captions. Fiscal
years 1996, 1995 and 1994 each consisted of 52 weeks.
Cash equivalents and investments
Cash and cash equivalents consists of cash on deposit with banks, tax-
advantaged municipal bonds, and investments in money market instruments with
insignificant interest rate risk and original maturities at date of
acquisition of 90 days or less. Short-term investments consist of
tax-advantaged municipal bonds and corporate bonds with maturities greater
than 90 days but less than one year. Restricted investments consist of U.S.
Treasury Securities held as collateral relating to leases for the Company 's
facilities. See Note 6 of Notes to Consolidated Financial Statements. The
Company maintains its cash, cash equivalents and short-term investments in
several financial instruments with various banks and investment banking
institutions. This diversification of risk is consistent with Company policy
to maintain liquidity and ensure the safety of principal.
Management classifies investments as available-for-sale or held-to-maturity at
the time of purchase and re-evaluates such designation as of each balance
sheet date. Securities are classified as held-to-maturity when the Company has
the positive intent and the ability to hold the securities until maturity.
Held-to-maturity securities are carried at cost adjusted for amortization of
premiums and accretion of discounts to maturity. Such amortization, as well as
any interest on the securities, is included in interest income. Securities not
classified as held to maturity are classified as available-for sale.
Available-for-sale securities are carried at fair value with the unrealized
gains or losses, net of tax, included as a separate component of stockholders
' equity. Realized gains and losses and declines in value judged to be
other-than-temporary on available-for-sale securities are included in other
income. The fair values for marketable debt and equity securities are based on
quoted market prices. The cost of securities matured or sold is based on the
specific identification method.
Inventories
Inventories are stated at the lower of cost (first-in, first-out) or market
(estimated net realizable value) and are comprised of the following at March
31, 1996 and 1995:
<TABLE>
<CAPTION>
(in thousands) 1996 1995
<S> <C> <C>
- ----------------- ------- -------
Raw materials $ 5,886 $ 2,098
Work-in-progress 21,927 16,990
Finished goods 11,425 6,498
- ----------------- ------- -------
$39,238 $25,586
------- -------
</TABLE>
Advances for wafer purchases
During fiscal 1995, the Company advanced $42 million to a primary wafer
supplier. Repayment of this amount is in the form of wafer deliveries and is
expected to be completed during fiscal 1997. Through March 31, 1996, the
Company has received $33 million in wafers against this advance.
Property, Plant and Equipment
Property, plant and equipment are stated at cost. Depreciation is computed for
financial reporting purposes using the straight-line method over the estimated
useful lives of the assets of three to five years for machinery, equipment,
furniture and fixtures and up to thirty years for buildings. Assets under
capital leases are amortized using the straight-line method over the shorter
of the lease term or estimated economic life. Depreciation and amortization
for income tax purposes is computed using accelerated methods.
Deferred income on shipments to distributors
Certain of the Company 's sales are made to distributors under agreements
allowing for price protection and limited right of return on merchandise
unsold by the distributors. Because of the uncertainty associated with future
pricing concessions and returns, the Company defers recognition of revenues
and related cost of revenues until the merchandise is sold by the
distributors.
Foreign currency translation
The US dollar is the functional currency for the Company 's Irish subsidiary.
Assets and liabilities that are not denominated in the functional currency are
translated into US dollars, and the resulting gains or losses are included in
net income. The functional currency is the local currency for each of the
Company 's other foreign subsidiaries. Translation adjustments, resulting
from the process of translating foreign currency financial statements into US
dollars, have not been material and therefore are not disclosed as a separate
component of stockholders ' equity.
Derivative financial instruments
As part of its ongoing asset and liability management activities, the Company
enters into certain derivative financial arrangements to reduce financial
market risks. The Company does not enter into derivative financial instruments
for trading purposes. See Note 5 of Notes to Consolidated Financial
Statements.
Long Lived Assets
In 1995, the Financial Accounting Standards Board released the Statement of
Financial Accounting Standard No. 121 (SFAS 121), "Accounting for the
Impairment of Long-Lived Assets and for Long-Lived Assets to be Disposed of. "
SFAS 121 requires recognition of impairment of long-lived assets in the event
the net book value of such assets exceeds the future undiscounted cash flows
attributable to such assets. SFAS 121 is effective for fiscal years beginning
after December 15, 1995. Adoption of SFAS 121 is not expected to have a
material impact on the Company's financial position or results of operations.
Employee stock plans
The Company accounts for its stock option and employee stock purchase plans in
accordance with provisions of the Accounting Principles Board's Opinion No. 25
(APB 25), "Accounting for Stock Issued to Employees." In 1995, the Financial
Accounting Standards Board released the Statement of Financial Accounting
Standard No. 123 (SFAS 123), "Accounting for Stock Based Compensation." SFAS
123 provides an alternative to APB 25 and is effective for fiscal years
beginning after December 15, 1995. The Company expects to continue to account
for its employee stock plans in accordance with the provisions of APB 25.
Accordingly, SFAS 123 is not expected to have a material impact on the
Company's financial position or results of operations.
Use of estimates
The preparation of financial statements in conformity with generally accepted
accounting principles requires management to make estimates and assumptions
that affect the reported amounts of assets and liabilities and disclosure of
contingent liabilities at the date of the financial statements and the
reported amounts of revenues and expenses during the reporting period. Such
estimates relate to the useful lives of fixed assets and intangible assets,
allowances for doubtful accounts and customer returns, inventory reserves,
potential reserves relating to litigation matters and other reserves. Actual
results may differ from those estimates, and such differences may be material
to the financial statements.
Net income per share
Net income per common and common equivalent share is computed using the
weighted average number of common and dilutive common equivalent shares
outstanding during the period. Dilutive common equivalent shares consist of
stock options (using the treasury stock method). Fully diluted earnings per
share is computed using the weighted average common and dilutive common
equivalent shares outstanding, plus other dilutive shares which are not common
equivalent shares. The effect of the convertible subordinated notes was
antidilutive in the calculation of fully diluted earnings per share for the
periods presented.
Concentrations of credit risk
The Company believes that the concentration of credit risk in its trade
receivables with respect to the high-technology industry is substantially
mitigated by the Company 's credit evaluation process, relatively short
collection terms, distributor agreements, and the geographical dispersion of
sales. The Company generally does not require collateral. Bad debt write-offs
have been insignificant for all years presented.
Concentration of other risks
The semiconductor industry is characterized by rapid technological change,
intense competitive pressure and cyclical market patterns. The Company's
results of operations are affected by a wide variety of factors, including
general economic conditions and conditions specific to the semiconductor
industry, decreases in average selling prices over the life of a particular
product, the timely receipt of wafers with competitive performance and cost
attributes, the ability to locate and qualify additional wafer suppliers and
subcontractors, the timing of new product introductions, the timely
implementation of new manufacturing technologies, the ability to safeguard
patents and intellectual property in a rapidly evolving market, and rapid
escalation of demand for some products in the face of equally steep decline in
demand for others. As a result, the Company may experience substantial
period-to-period fluctuations in future operating results due to the factors
mentioned above or other factors.
3. ACQUISITION
On April 10, 1995, the Company acquired NeoCAD, Inc. (NeoCAD), a private
company engaged in the design, development and sale of FPGA software design
tools for programmable electronic technologies, for $35 million in cash. The
transaction was treated as a purchase for accounting purposes; accordingly,
the purchase price has been allocated to the assets acquired and liabilities
assumed based on their estimated fair values. The excess of the purchase
price over the fair values of liabilities assumed, net of tangible assets
acquired, was allocated to in-process technology ($19.4 million), developed
technology ($15.7 million) and the assembled workforce ($0.7 million). The
amount of in-process technology was written-off as a non-recurring item during
the first quarter of fiscal 1996. The developed technology and assembled
workforce assets are being amortized over six and two years, respectively. In
fiscal 1996, the Company recorded amortization of $2.6 million and $0.3
million relating to the developed technology and assembled workforce assets,
respectively.
The following pro forma information reflects the statements of income for the
years ended March 31, 1996 and March 31, 1995 as if the acquisition had
occurred at the beginning of fiscal 1995, and includes certain adjustments for
amortization of the developed technology and assembled workforce assets,
reduced interest income and the related income tax impact. The pro forma
information excludes the $19.4 million write-off of in-process technology as
it represents a non-recurring item. This pro forma information may not be
indicative of the results that actually would have occurred if the combination
had been in effect on the dates indicated or which may be realized in the
future.
<TABLE>
<CAPTION>
(in thousands, except per share amounts) Years ended March 31:
1996 1995
------------ ----------
<S> <C> <C>
Net revenues $ 560,802 $ 359,399
Net income $ 120,820 $ 55,609
Net income per share $ 1.53 $ .75
</TABLE>
4. JOINT VENTURE
The Company, United Microelectronics Corporation (UMC) and other parties have
entered into a joint venture to construct in Taiwan a wafer fabrication
facility, which is known as United Silicon Inc. (USI). The Company has agreed
to invest a total of $3.75 billion New Taiwan dollars (approximately $136
mil-lion), which will result in a 25% equity ownership in the joint venture
and the right to receive 31.25% of the wafer capacity from this facility. In
January 1996, the Company invested $937.5 million New Taiwan dollars
(approximately $34 million) in the joint venture and expects to invest $1.875
billion New Taiwan dollars (approximately $68 million) and $937.5 million New
Taiwan dollars (approximately $34 million) in December 1996 and July 1997,
respectively. The joint venture is accounted for by the equity method, and
the operating results to date have not been material.
5. FINANCIAL INSTRUMENTS
Cash and Investments
The following is a summary of available-for-sale and held-to-maturity
securities:
<TABLE>
<CAPTION>
Available-for-sale securities
March 31, 1996 March 31, 1995
--------------------------------------------- --------------------------------------------
Amortized Gross Unrealized Estimated Amortized Gross Unrealized Estimated
(in thousands) Cost Gains Losses Fair Value Cost Gains Losses Fair Value
- ------------------------- ---------- ------ ------------ ----------- ---------- ------ ----------- -----------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Cash and cash equivalents:
Municipal bonds $101,850 $ - $ - $ 101,850 $ 42,468 $ - ($19) $ 42,449
Short-term investments:
Corporate bonds 31,782 60 - 31,842 - - - -
Municipal bonds 233,854 650 (30) 234,474 66,689 49 (557) 66,181
-------- ------ ------------ ----------- ---------- ------ ----------- ------------
$367,486 $ 710 ($30) $ 368,166 $ 109,157 $ 49 ($576) $ 108,630
-------- ------ ------------ ----------- ---------- ------ ----------- -----------
</TABLE>
All investments classified as "available-for-sale securities " have
maturities due in one year or less. Proceeds from sales of available-for-sale
securities and the related realized gains or losses were immaterial in 1996,
1995 and 1994.
<TABLE>
<CAPTION>
Held-to-maturity securities
March 31, 1996 March 31, 1995
-------------------------------------------- --------------------------------------------
Amortized Gross Unrealized Estimated Amortized Gross Unrealized Estimated
(in thousands) Cost Gains Losses Fair Value Cost Gains Losses Fair Value
- ------------------------ ---------- ------ ----------- ----------- ---------- ------ ----------- -----------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Restricted investments:
US Treasury securities $ 36,212 $ - $ - $ 36,212 $ 12,625 $ - $ - $ 12,625
</TABLE>
Held-to-maturity securities relate to certain collateral requirements for
lease agreements associated with the Company's corporate facilities and have
maturities due in one year or less. See Note 6 of Notes to Consolidated
Financial Statements.
Derivatives
The Company enters into currency forward and option contracts to minimize
foreign exchange risk relating to the Company 's purchase of wafers, which are
primarily denominated in yen. At March 31, 1996, commitments under option
contracts to purchase yen in fiscal 1997 were outstanding in the aggregate
amount of $18.1 million. These contracts are accounted for as identifiable
hedges against wafer purchases. Realized gains or losses are recognized upon
maturity of the contracts and are included in cost of sales. At March 31,
1996, the fair value of these option contracts was immaterial based on market
exchange rates. The maturities on these contracts is less than twelve months.
The Company has entered into foreign exchange forward contracts to eliminate
the impact of future exchange fluctuations on the US dollar cost of investing
in the USI joint venture. The contracts require the Company to exchange US
dollars for New Taiwan dollars and have maturities from nine to twenty-one
months. The contracts are accounted for as a hedge of an identifiable foreign
currency commitment. Realized gains or losses will be recognized upon
maturity of the contracts and will be included in the USI joint venture
investment. At March 31, 1996, the outstanding foreign exchange contracts
related to the USI joint venture were $101.7 million and these contracts had
an unrealized gain of $1.5 million, which represents their fair value based on
market exchange rates.
The Company has entered into a two and one half year interest rate swap
agreement with a third party in order to reduce risk related to movements in
interest rates. Under the agreement, which is effective starting in May 1996,
the Company has effectively converted the fixed rate interest rate payments
related to $125 million of the Company 's convertible subordinated notes to
variable rate interest payments without the exchange of the underlying
principal amounts. The Company will receive fixed interest rate payments
(equal to 5.935%) from the third party and is obligated to make variable rate
payments (equal to the three month LIBOR rate) to the third party during the
term of the agreement. The net amount of interest payments received from the
third party and interest payments made by the Company to the third party will
be included in interest expense.
During 1995, the Company completed a reverse repurchase transaction relating
to $350 million of U.S. Treasury Securities. The transaction was entered into
with the intent of generating net interest income in an increasing interest
rate environment and capital gains that could be used to offset previously
incurred capital losses relating to the non-recurring $2.5 million write-off
of the investment in Star Semiconductor. As a result of this transaction, the
Company recorded approximately $9.7 million of interest expense, $4.7 million
of interest income and $4.8 million of bond premium amortization in 1995.
Although the Company has generally invested in more conventional investments,
such as municipal bonds, the Company believes that the short sale of U.S.
Treasury Securities met the Company 's investment objectives in 1995. Future
investment strategies will be made in accordance with investment policies
designed to preserve and enhance corporate assets as such strategies may be
adopted from time to time by the Company 's Board of Directors.
Long-Term Debt and Lines of Credit
In November 1995, the Company completed a private placement of $250 million
aggregate principal convertible subordinated notes under Rule 144A of the
Securities Act of 1933. The notes, which mature in 2002, are convertible at
the option of the note holders into the Company 's common stock at a
conversion price of $51 per share, subject to adjustment upon the occurrence
of certain events. The conversion price represented a 24.77% premium over the
closing price of the Company 's stock on November 7, 1995. Interest is
payable semi-annually at 5.25% per annum. At any time on or after November 4,
1997, the notes are redeemable at the option of the Company at an initial
redemption price of 103.75% of the principal amount, except that prior to
November 3, 1998, the notes are not redeemable unless the closing price of the
Company 's common stock has exceeded $71.40 (40% premium over the conversion
price) per share for twenty trading days within a period of thirty consecutive
trading days. Redemption prices as a percentage of the principal amount are
103.00%, 102.25%, 101.50% and 100.75% in the years beginning November 1, 1998,
November 1, 1999, November 1, 2000 and November 1, 2001, respectively. Debt
issuance costs of $6.1 million incurred in conjunction with issuance of the
convertible subordinated notes are being amortized over the seven year life of
the notes. In 1996, the Company recorded debt issuance cost amortization of
$0.4 million. At March 31, 1996, the fair value of the convertible
subordinated notes was approximately $233.8 million based on quoted market
prices. The Company has reserved 4,901,961 shares of common stock for the
conversion of these notes.
The Company has $40 million available under a multicurrency revolving credit
line agreement which expires on March 1, 1998. Under this agreement,
borrowings bear interest at the bank 's reference rate or 0.75% over the bank
's interbank market rate depending on the currency borrowed. Additionally,
the Company 's Irish subsidiary has $7 million available under a multicurrency
credit line. Under this agreement, borrowings bear interest at 0.75% over the
bank 's prime rate. At March 31, 1996, no borrowings were outstanding under
either credit line. The agreements require the Company to comply with certain
covenants and maintain certain financial ratios. The agreements prohibit the
payment of cash dividends without prior bank approval.
6. COMMITMENTS
The Company leases its manufacturing and office facilities under operating
leases that expire at various dates through December 2014. Lease agreements
for the Company 's corporate facilities contain payment provisions which allow
for changes in rental amounts based upon interest rate changes. The
approximate future minimum lease payments under these leases are as follows:
<TABLE>
<CAPTION>
Year Ended March 31: (in thousands)
- -------------------- ---------------
<S> <C>
1997 $ 4,462
1998 3,944
1999 2,979
2000 2,275
2001 206
Thereafter 2,209
- -------------------- ---------------
$ 16,075
---------------
<FN>
Rent expense for the years ended March 31, 1996, 1995 and 1994 was
approximately $4.3 million, $4 million and $3.5 million, respectively.
</TABLE>
The Company has entered into lease agreements relating to its corporate
facilities which would allow the Company to purchase the facilities on or
before the end of the lease term in December 1999. If at the end of the lease
term the Company does not purchase the property under lease or arrange a third
party purchase, then the Company would be obligated to the lessor for a
guarantee payment equal to a specified percentage of the Company 's purchase
price for the property. The Company would also be obligated to the lessor for
all or some portion of this amount if the price paid by the third party is
below a specified percentage of the Company 's purchase price. The Company is
also required to comply with certain covenants and maintain certain financial
ratios. As of March 31, 1996, the total amount related to the leased
facilities for which the Company is contingently liable is $39.8 million.
Under the terms of the agreements, the Company is required to maintain
collateral (restricted investments) of approximately $36 million during the
lease term.
7. STOCKHOLDERS ' EQUITY
The Company 's Certificate of Incorporation provides for 200 million shares of
common stock and 2 million shares of undesignated preferred stock.
Treasury stock
The Company authorized a stock buyback program in June 1992 to repurchase up
to 4,500,000 shares of common stock. The Company has used the shares actually
repurchased to meet the stock requirements of the Company 's Stock Option and
Employee Qualified Stock Purchase Plans. Under this program, the Company
repurchased 3,030,000 shares of its common stock on the open market during
1993 for a total cost of $17.4 million. During 1996 and 1995, the Company
issued 1,430,502 and 1,599,498, respectively, of these shares in response to
stock option exercises and stock purchase plan requirements. At March 31,
1996, there were no shares of treasury stock outstanding.
Employee qualified stock purchase plan
Under the Company 's 1990 Employee Qualified Stock Purchase Plan (the Stock
Purchase Plan), qualified employees are entitled to purchase shares of common
stock at 85% of the fair market value at certain specified dates. Of the
2,925,000 shares authorized to be issued under this plan, 537,451 and 635,466
shares were issued during 1996 and 1995, respectively, and 252,050 shares were
available for issuance at March 31, 1996. In March 1996, the Company 's Board
of Directors amended the Stock Purchase Plan to increase the number of shares
for issuance thereunder by 460,000 shares, subject to shareholder approval in
fiscal 1997.
Employee stock option plan
The Company has adopted the 1988 Stock Option Plan (the Option Plan) under
which a total of 32,781,000 common shares has been reserved for issuance to
employees, directors, and consultants of the Company. Options to purchase
shares of the Company 's common stock under the Option Plan may be granted at
not less than 85% of the fair value of the stock on the date of grant. To
date, no shares have been issued at less than 100% of the fair value. Options
granted to date expire ten years from date of grant and vest at varying rates
over five years. In March 1996, the Company 's Board of Directors amended the
Option Plan to increase the number of shares reserved for issuance thereunder
by 3,300,000 shares, subject to shareholder approval in fiscal 1997.
Additional information relative to the Option Plan is as follows:
<TABLE>
<CAPTION>
Shares Outstanding Options
Available For Number of Aggregate
(in thousands) Grant Shares Price
<S> <C> <C> <C>
Balance March 31, 1993 3,936 6,396 $ 28,052
- ----------------------------- -------------- ------------ -----------
Options granted (3,993) 3,993 52,889
Options exercised - (849) (2,493)
Options canceled 99 (99) (706)
Balance March 31, 1994 42 9,441 77,742
- ----------------------------- -------------- ------------ -----------
Options authorized 4,800 - -
Options granted (3,540) 3,540 56,083
Options exercised - (962) (4,048)
Options canceled 567 (567) (6,035)
Balance March 31, 1995 1,869 11,452 123,742
- ----------------------------- -------------- ------------ -----------
Options authorized 3,000 - -
Options granted (3,971) 3,971 122,885
Options exercised - (1,169) (7,277)
Options canceled 366 (366) (6,288)
Balance March 31, 1996 1,264 13,888 $ 233,062
- ----------------------------- -------------- ------------ -----------
Options exercisable at:
March 31, 1995 3,543 $ 20,796
March 31, 1996 4,577 $ 39,960
============================= ============ ===========
</TABLE>
The range of exercise prices for options outstanding at March 31, 1996 was
$0.12 to $48.13. Prices for options exercised during the three year period
ended March 31, 1996 ranged from $0.12 to $23.42.
Stock split
On July 26, 1995, the Company's stockholders approved a 3-for-1 stock split,
in the form of a 200% dividend, payable to stockholders of record as of July
28, 1995. Shares, per share amounts, common stock at par value, and additional
paid in capital have been restated to reflect the stock split for all periods
presented.
Stockholder Rights Plan
In October 1991, the Company adopted a stockholder rights plan and declared a
dividend distribution of one common stock purchase right for each outstanding
share of its common stock. The rights become exercisable based upon the
occurrence of certain conditions including acquisitions of Company stock,
tender or exchange offers and certain business combination transactions of the
Company. In the event one of the conditions is triggered, each right entitles
the registered holder to purchase a number of shares of common stock of the
Company or, under limited circumstances, of the acquirer. The rights are
redeemable at the Company's option under certain conditions, for $.01 per
right and expire on October 4, 2001.
8. INCOME TAXES
<TABLE>
<CAPTION>
The provision for taxes on income consists of:
(in thousands)
Years ended March 31, 1996 1995 1994
- -------- ---------------- -------- -------- --------
<S> <C> <C> <C> <C>
Federal: Current $64,917 $34,698 $23,914
Deferred (7,004) (5,009) (2,481)
---------------- -------- -------- --------
57,913 29,689 21,433
-------- -------- --------
State: Current 10,343 6,748 4,589
Deferred (363) (1,167) (83)
---------------- -------- -------- --------
9,980 5,581 4,506
-------- -------- --------
Foreign: Current 1,555 297 218
Deferred - - -
---------------- -------- -------- --------
1,555 297 218
- -------- -------- -------- --------
TOTAL $69,448 $35,567 $26,157
- -------- -------- -------- --------
</TABLE>
The tax benefits associated with the disqualifying dispositions of stock
options or employee stock purchase plan shares reduce taxes currently payable
by $7.9 million, $3.5 million and $2.4 million for 1996, 1995, and 1994,
respectively. Such benefits are credited to additional paid-in capital when
realized.
The provision for income taxes reconciles to the amount obtained by applying
the Federal statutory income tax rate to income before provision for taxes as
follows:
<TABLE>
<CAPTION>
(in thousands)
Years ended March 31, 1996 1995 1994
- ---------------------------------------------------------- --------- ------------ --------
<S> <C> <C> <C>
Income before provision for taxes $170,902 $ 94,845 $67,436
Federal statutory tax rate 35% 35% 35%
Computed expected tax $ 59,816 $ 33,196 $23,602
State taxes net of federal benefit 6,487 3,627 2,929
Tax exempt interest (2,552) (1,155) (930)
Write-off of NeoCAD in-process technology 7,069 - -
Other (1,372) (101) 556
- ---------------------------------------------------------- --------- ------------ --------
Provision for taxes on income $ 69,448 $ 35,567 $26,157
- ---------------------------------------------------------- --------- ------------ --------
</TABLE>
<TABLE>
<CAPTION>
The major components of deferred tax assets and liabilities consist of the following:
(in thousands)
Years ended March 31, 1996 1995 1994
- ----------------------------------------------------------- --------- ------------- --------
<S> <C> <C> <C>
Deferred tax assets:
Inventory valuation differences $ 3,887 $ 3,393 $ 2,689
Deferred income on shipments to distributors 15,917 9,232 5,459
Nondeductible accrued expenses 7,778 6,245 4,765
Depreciation and amortization (3,082) 1,524 1,620
Other 897 1,000 362
- ------------------------------------------------------------ --------- ------------- --------
Total 25,397 21,394 14,895
--------- ------------- --------
Deferred tax liabilities:
Other (264) (483) (357)
- ------------------------------------------------------------ --------- ------------- --------
Total net deferred tax assets $ 25,133 $ 20,911 $14,538
- -----------------------`------------------------------------ --------- ------------- --------
</TABLE>
9. INDUSTRY AND GEOGRAPHIC INFORMATION
The Company operates in one single industry segment comprising the design,
development and marketing of programmable logic semiconductor devices and the
related development system software.
Export revenues consisting of sales from the US to non-affiliated customers in
certain geographic areas were as follows:
<TABLE>
<CAPTION>
(In thousands)
Years ended March 31: 1996 1995 1994
- ---------------------------- -------- -------- -------
<S> <C> <C> <C>
US exports to Europe $ 70,124 $ 68,616 $46,645
US exports to Japan 50,957 27,199 15,064
US exports to Rest of World 18,288 13,714 11,502
- ---------------------------- -------- -------- -------
$139,369 $109,529 $73,211
</TABLE>
During fiscal 1996, the Company began operations in its European manufacturing
facility. Geographic information for fiscal 1996 is presented in the tables
below. Foreign operations prior to fiscal 1996 were not material.
<TABLE>
<CAPTION>
(in thousands) Income
Fiscal Year Net Before Identifiable
1996 Revenues Taxes Assets
- -------------- --------- -------- -------------
<S> <C> <C> <C>
United States $ 482,615 $157,872 $ 650,979
Europe 78,187 12,854 68,861
Other - 176 1,040
- -------------- --------- -------- -------------
$ 560,802 $170,902 $ 720,880
</TABLE>
No single end customer accounted for more than 6% of revenues in 1996 or 1995
and 4% of revenues in 1994. Approximately 13%, 14% and 14% of net product
revenues were made through the Company 's largest domestic distributor in
1996, 1995 and 1994 respectively, and another domestic distributor accounted
for 10% of net product revenues in 1996 and 1995 and 12% of net product
revenues in 1994.
10. LITIGATION
On June 7, 1993, the Company filed suit against Altera Corporation (Altera) in
the United States District Court for the Northern District of California for
infringement of certain of the Company 's patents. Subsequently, Altera filed
suit against the Company alleging that certain of the Company 's products
infringe certain Altera patents. Fact discovery has been completed in both
cases. No trial date has been set. The Court has stayed further proceedings
in both cases until August 30, 1996 when the next status conference with the
Court is scheduled.
On April 20, 1995, Altera filed an additional suit against the Company in
Federal District Court in Delaware alleging that the Company 's XC5000 family
infringes a certain Altera patent. The Company answered the Delaware suit
denying that the XC5000 family infringes the patent in suit, which is the
subject of the litigation, asserting certain affirmative defenses and
counterclaiming that the Altera Max 9000 family infringes certain of the
Company's patents. The Delaware suit has now been transferred to the United
States District Court for the Northern District of California.
Due to the uncertain nature of the litigation with Altera and because the
lawsuits are still in the pre-trial stage, the ultimate outcome of these
matters cannot be determined at this time. Management believes that is has
meritorious defenses to such claims and is defending them vigorously, and has
not recorded a provision for the ultimate outcome of these matters in its
financial statements. The foregoing is a forward looking statement based on
information presently known to management, and the future outcome could
differ.
In the normal course of business, the Company receives and makes inquires with
regard to possible patent infringement. Where deemed advisable, the Company
may seek or extend licenses or negotiate settlements. Outcomes of such
negotiations may not be determinable at any point in time; however, management
does not believe that such licenses or settlements will, individually or in
the aggregate, have a material adverse effect on the Company 's financial
position or results of operations.
11. SUBSEQUENT EVENT (UNAUDITED)
On May 17, 1996, the Company signed an agreement with Seiko Epson Corporation
(Seiko), a primary wafer supplier. The agreement provides for an advance to
Seiko of $200 million to be used in the construction of a wafer fabrication
facility in Japan which will provide access to eight-inch sub-micron wafers.
In conjunction with the agreement, $30 million was paid in May 1996 and
additional installments of $30 million are scheduled for November 1, 1996, May
1, 1997, November 1, 1997 and February 1, 1998 or upon the start of mass
production, whichever is later. The final installment for the advance payment
of $50 million is due on or after the later of April 1, 1998 and the date the
outstanding balance of the advance payment is less than $125 million. As a
result, the maximum outstanding amount of the advance payment at any time is
$175 million. Repayment of this advance will be in the form of wafer
deliveries expected to begin in the first half of 1998. In addition to the
advance payments, the Company will provide further funding to Seiko in the
amount of $100 million. This additional funding will be paid after the final
installment of the $200 million advance and the form of the additional funding
will be negotiated at that time.
REPORT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
The Board of Directors and Stockholders
Xilinx, Inc.
We have audited the accompanying consolidated balance sheets of Xilinx, Inc.
as of March 31, 1996 and 1995, and the related consolidated statements of
income, stockholders' equity and cash flows for each of the three years in the
period ended March 31, 1996. Our audits also included the financial statement
schedule listed in the Index at Item 14(a). These financial statements and
schedule are the responsibility of the Company's management. Our
responsibility is to express an opinion on these financial statements and
schedule based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to
obtain reasonable assurance about whether the financial statements are free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements. An audit
also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall financial
statement presentation. We believe that our audits provide a reasonable basis
for our opinion.
In our opinion, the consolidated financial statements referred to above
present fairly, in all material respects, the consolidated financial position
of Xilinx, Inc. at March 31, 1996 and 1995, and the consolidated results of
its operations and its cash flows for each of the three years in the period
ended March 31, 1996, in conformity with generally accepted accounting
principles. Also, in our opinion, the related financial statement schedule
taken as a whole, presents fairly in all material respects the information set
forth therein.
/s/ Ernst & Young LLP
San Jose, California
April 17, 1996
Supplementary Financial Data
(in thousands, except per share amounts)
QUARTERLY DATA (UNAUDITED)
<TABLE>
<CAPTION>
Year Ended March 31, 1996
First Second Third Fourth
Quarter Quarter Quarter Quarter
-------- ----------- ------------ --------
<S> <C> <C> <C> <C>
Net revenues $125,760 $ 141,212 $ 144,123 $149,707
Gross margin 77,254 89,598 92,451 98,307
Operating income 18,069 * 45,675 49,318 52,694
Net income 5,548 * 29,826 32,190 33,890
Net income per share $ 0.07 * $ 0.37 $ 0.41 $ 0.43
Shares used in per share calculations 77,489 79,601 79,106 79,622
====================================== ======== =========== ============ ========
<FN>
*After non-recurring charge for in-process technology related to the acquisition of NeoCAD
of $19,366 and $0.25 per share.
</TABLE>
<TABLE>
<CAPTION>
Year Ended March 31, 1995
First Second Third Fourth
Quarter Quarter Quarter Quarter
-------- ---------------- -------- --------
<S> <C> <C> <C> <C>
Net revenues $ 75,150 $ 79,507 $ 91,283 $109,190
Gross margin 45,991 48,816 55,602 66,229
Operating income 18,831 18,029 * 24,377 30,811
Net income 12,013 11,819 * 15,573 19,873
Net income per share $ 0.16 $ 0.16 * $ 0.21 $ 0.26
Shares used in per share calculations 73,023 72,843 74,778 75,798
====================================== ======== ================ ======== ========
<FN>
*After non-recurring charge for the write-off of a minority investment of $2,500 and $0.02 per
share net of tax.
</TABLE>
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
Not applicable.
PART III
Certain information required by Part III is omitted from this Report in that
the Registrant will file a definitive proxy statement pursuant to Regulation
14A (the "Proxy Statement") not later than 120 days after the end of the
fiscal year covered by this Report, and certain information included therein
is incorporated herein by reference. Only those sections of the Proxy
Statement which specifically address the items set forth herein are
incorporated by reference. Such incorporation does not include the
Compensation Committee Report or the Performance Graph included in the Proxy
Statement.
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
The information concerning the Company's directors required by this Item is
incorporated by reference to the Company's Proxy Statement.
The information concerning the Company's executive officers required by this
Item is incorporated by reference to the section in Item 1 hereof entitled
"Executive Officers of the Registrant".
ITEM 11. EXECUTIVE COMPENSATION
The information required by this Item is incorporated by reference to the
Company's Proxy Statement.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND
MANAGEMENT
The information required by this Item is incorporated by reference to the
Company's Proxy Statement.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The information required by this Item is incorporated by reference to the
Company's Proxy Statement.
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K
(a) (1) The Financial Statements required by Item 14 (a) are filed as
part of this annual report.
(2) The Financial Statement Schedule required by Item 14 (a) is
filed as part of this annual report.
Schedules not filed have been omitted because they are not applicable, are not
required or the information required to be set forth therein is included in
the financial statements or notes thereto.
(3) The exhibits listed below in (c) are filed or incorporated by
reference as part of this annual report.
(b) Reports on Form 8-K. No reports on Form 8-K were filed during the
fourth quarter of fiscal 1996.
(c) Exhibits.
Exhibit Number Description
- --------------- -------------------------------------------------------------
3.1 (2) Restated Certificate of Incorporation of the Company, as
amended to date.
3.2 (1) Bylaws of the Company, as amended to date.
4.1 (3) Preferred Shares Rights Agreement dated as of October 4, 1991
between the Company and The First National Bank of Boston, as
Rights Agent.
10.1 (1) Technology Transfer Agreement and Preferred Shares and Warrant
Purchase Agreement for Series E Preferred Stock and Series F
Preferred Stock dated June 9, 1986 between the Company and
Monolithic Memories, Inc.
10.2 (1) Common Stock Purchase Agreement dated March 19, 1990 between
the Company and Advanced Micro Devices, Inc.
10.3 (8) Lease dated March 27, 1995 for adjacent facilities at 2055
Logic Drive and 2065 Logic Drive, San Jose, California.
10.4 (8) First Amendment to Master Lease dated April 27, 1995 for the
Company's facilities at 2100 Logic Drive and 2101 Logic Drive,
San Jose, California.
10.5* 1988 Stock Option Plan, as amended.
10.6* 1990 Employee Qualified Stock Purchase Plan, as amended.
10.7 (1) * Form of Indemnification Agreement between the Company and its
officers and directors.
10.8 (4) (6) Patent Cross License Agreement dated as of April 22, 1993
between the Company and Actel Corporation.
10.9.1 (5) Agreement and Plan of Reorganization dated as of March 29,
1995, among Registrant, NeoCAD, Inc. and XNX Acquisition
Corporation.
10.9.2 (5) Certificate of Merger filed on April 10, 1995 between NeoCAD,
Inc. and XNX Acquisition Corporation.
10.10 (7) Employment Offer Letter dated August 5, 1994.
10.11.1 (6) (9) Foundry Venture Agreement dated as of September 14, 1995
between the Company and United Microelectronics Corporation
("UMC").
10.11.2 (6) (9) Fabven Foundry Capacity Agreement dated as of September 14,
1995 between the Company and UMC.
10.11.3 (6) (9) Written Assurances Re Foundry Venture Agreement dated as of
September 29, 1995 between UMC and the Company.
10.12 Indenture dated November 1, 1995 between the Company and
State Street Bank and Trust Company.
10.13 Letter Agreement dated as of January 22, 1996 of the
Company to Willem P. Roelandts.
10.14 Separation Agreement dated as of April 8, 1996 between the
Company and Curtis Wozniak.
10.15 Consulting Agreement dated as of June 1, 1996 between the
Company and Bernard V. Vonderschmitt.
10.16 (6) Advance Payment Agreement entered into on May 17, 1996
between Seiko Epson Corporation and the Company.
11 Statement of Computation of Net Income Per Share.
12 Statement of Computation of Ratios of Earnings to Fixed
Charges.
22.1 Subsidiaries of the Company.
23 Consent of Ernst & Young LLP, Independent Auditors.
25.1 Power of Attorney.
27 Financial Statement Schedule - Schedule II.
___________
(1) Filed as an exhibit to the Company's Registration Statement on
Form S-1 (File No. 33-34568) which was declared effective June
11, 1990.
(2) Filed as an exhibit to the Company's Annual Report on Form 10-K
for the fiscal year ended March 30, 1991.
(3) Filed as an exhibit to the Company's Registration Statement on
Form S-1 (File No. 33-43793) effective November 26, 1991.
(4) Filed as an exhibit to the Company 's Annual Report on Form 10-K
for the fiscal year ended April 3, 1993.
(5) Filed as an exhibit to the Company's Current Report on Form 8-K
filed on April 18, 1995.
(6) Confidential treatment requested as to certain portions of these
exhibits.
(7) Filed as an exhibit to the Company's Quarterly Report on Form
10-Q for the quarter ended October 1, 1994.
(8) Filed as an exhibit to the company's Annual Report on Form 10-K for
the fiscal year ended April 1, 1995.
(9) Filed as an exhibit to the Company's Quarterly Report on Form
10-Q for the quarter ended September 30, 1995.
* Denotes a management contract or compensatory plan or arrangement.
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange
Act of 1934, the Registrant, has duly caused this Annual Report to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of
San Jose, State of California, on the 20th day of June, 1996.
XILINX, INC.
By: /s/Willem P. Roelandts
---------------------------
Willem P. Roelandts,
Chief Executive Officer
EXHIBIT 10.12
XILINX, INC.
AND
STATE STREET BANK AND TRUST COMPANY
Trustee
INDENTURE
Dated as of November 1, 1995
5 1/4% Convertible Subordinated Notes due 2002
<TABLE>
<CAPTION>
TABLE OF CONTENTS
Page
<S> <C> <C>
ARTICLE I DEFINITIONS 2
Section 1.1 Definitions. 2
Affiliate 2
Applicable Price 2
Board of Directors 2
Business Day 3
Commission 3
Common Stock 3
Company 3
Conversion Price 3
Corporate Trust Office 3
Custodian 3
default 4
Depositary 4
Designated Senior Indebtedness 4
Exchange Act 4
Event of Default 4
Fundamental Change 4
Indebtedness 4
Indenture 5
Initial Purchasers 5
Note or Notes 5
Noteholder or holder 5
Note register 5
Officers' Certificate 6
Opinion of Counsel 6
outstanding 6
Payment Blockage Notice 6
Person 6
PORTAL Market 7
Predecessor Note 7
QIB 7
Reference Market Price 7
Registration Rights Agreement 7
Regulation S 7
Responsible Officer 7
Restricted Securities 7
Rights Agreement 7
Rights 7
Rule 144A 8
Securities Act 8
Senior Indebtedness 8
Subsidiary: 8
-i-
</TABLE>
<TABLE>
<S> <C> <C>
Trading Day 8
Trigger Event 8
Trust Indenture Act 8
Trustee 9
ARTICLE II ISSUE, DESCRIPTION, EXECUTION, REGISTRATIONAND EXCHANGE 9
OF NOTES
Section 2.1 Designation, Amount and Issue of Notes 9
Section 2.2 Form of Notes 9
Section 2.3 Date and Denomination of Notes; Payments of Interest 10
Section 2.4 Execution of Notes 12
Section 2.5 Exchange and Registration of Transfer of
Notes: Restrictions on Transfer: Depositary 12
Section 2.6 Mutilated, Destroyed, Lost or Stolen Notes 22
Section 2.7 Temporary Notes 23
Section 2.8 Cancellation of Notes Paid, Etc 23
ARTICLE III REDEMPTION OF NOTES 24
Section 3.1 Redemption Prices 24
Section 3.2 Notice of Redemption: Selection of Notes 24
Section 3.3 Payment of Notes Called for Redemption 26
Section 3.4 Conversion Arrangement on Call for Redemption 26
Section 3.5 Redemption at Option of Holders 27
ARTICLE IV SUBORDINATION OF NOTES 29
Section 4.1 Agreement of Subordination 29
Section 4.2 Payments to Noteholders 30
Section 4.3 Subrogation of Notes 33
Section 4.4 Authorization to Effect Subordination. 34
Section 4.5 Notice to Trustee 34
Section 4.6 Trustee's Relation to Senior Indebtedness 35
Section 4.7 No Impairment of Subordination 35
Section 4.8 Certain Conversions Deemed Payment 36
Section 4.9 Article Applicable to Paying Agents 36
Section 4.10 Senior Indebtedness Entitled to Rely. 36
ARTICLE V PARTICULAR COVENANTS OF THE COMPANY 36
Section 5.1 Payment of Principal, Premium and Interest 36
Section 5.2 Maintenance of Office or Agency 37
Section 5.3 Appointments to Fill Vacancies in Trustee's Office 38
Section 5.4 Provisions as to Paying Agent 38
Section 5.5 Corporate Existence 39
-ii-
</TABLE>
<TABLE>
<S> <C> <C>
Section 5.6 Rule 144A Information Requirement 39
Section 5.7 Stay, Extension and Usury Laws 39
ARTICLE VI NOTEHOLDERS' LISTS AND REPORTS BYTHE COMPANY AND THE TRUSTEE 40
Section 6.1 Noteholders' Lists 40
Section 6.2 Preservation and Disclosure of Lists 40
Section 6.3 Reports by Trustee 40
Section 6.4 Reports by Company 41
ARTICLE VII REMEDIES OF THE TRUSTEE AND NOTEHOLDERSON
AN EVENT OF DEFAULT 41
Section 7.1 Events of Default 41
Section 7.2 Payments of Notes on Default: Suit Therefor 43
Section 7.3 Application of Monies Collected by Trustee 45
Section 7.4 Proceedings by Noteholder 46
Section 7.5 Proceedings by Trustee 46
Section 7.6 Remedies Cumulative and Continuing 47
Section 7.7 Direction of Proceedings and Waiver of
Defaults by Majority of Noteholders 47
Section 7.8 Notice of Defaults 47
Section 7.9 Undertaking to Pay Costs 48
ARTICLE VIII CONCERNING THE TRUSTEE 48
Section 8.1 Duties and Responsibilities of Trustee 48
Section 8.2 Reliance on Documents, Opinions. Etc. 50
Section 8.3 No Responsibility for Recitals, Etc. 51
Section 8.4 Trustee, Paying Agents, Conversion Agents
or Registrar May Own Notes 51
Section 8.5 Monies to Be Held in Trust 51
Section 8.6 Compensation and Expenses of Trustee 51
Section 8.7 Officers' Certificate as Evidence 52
Section 8.8 Conflicting Interests of Trustee 52
Section 8.9 Eligibility of Trustee 52
Section 8.10 Resignation or Removal of Trustee 52
Section 8.11 Acceptance by Successor Trustee 54
Section 8.12 Succession by Merger, Etc. 54
Section 8.13 Limitation on Rights of Trustee as Creditor 55
ARTICLE IX CONCERNING THE NOTEHOLDERS 55
Section 9.1 Action by Noteholders 55
Section 9.2 Proof of Execution by Noteholders 55
-iii-
</TABLE>
<TABLE>
<S> <C> <C>
Section 9.3 Who Are Deemed Absolute Owners 56
Section 9.4 Company-Owned Notes Disregarded 56
Section 9.5 Revocation of Consents: Future Holders Bound 57
ARTICLE X NOTEHOLDERS' MEETINGS 57
Section 10.1 Purpose of Meetings 57
Section 10.2 Call of Meetings by Trustee 57
Section 10.3 Call of Meetings by Company or Noteholders 58
Section 10.4 Qualifications for Voting 58
Section 10.5 Regulations 58
Section 10.6 Voting 59
Section 10.7 No Delay of Rights by Meeting 59
ARTICLE XI SUPPLEMENTAL INDENTURES 60
Section 11.1 Supplemental Indentures Without Consent of Noteholders 60
Section 11.2 Supplemental Indentures with Consent of Noteholders 61
Section 11.3 Effect of Supplemental Indenture 62
Section 11.4 Notation on Notes 62
Section 11.5 Evidence of Compliance of Supplemental Indenture
to Be Furnished Trustee 62
ARTICLE XII CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE 63
Section 12.1 Company May Consolidate Etc. on Certain Terms 63
Section 12.2 Successor Corporation to Be Substituted 63
Section 12.3 Opinion of Counsel to Be Given Trustee 64
ARTICLE XIII SATISFACTION AND DISCHARGE OF INDENTURE 64
Section 13.1 Discharge of Indenture 64
Section 13.2 Deposited Monies to Be Held in Trust by Trustee 65
Section 13.3 Paying Agent to Repay Monies Held 65
Section 13.4 Return of Unclaimed Monies 65
Section 13.5 Reinstatement 65
ARTICE XIV IMMUNITY OF INCORPORATORS, STOCKHOLDERS,OFFICERS AND DIRECTORS 66
Section 14.1 Indenture and Notes Solely Corporate Obligations 66
ARTICLE XV CONVERSION OF NOTES 66
Section 15.1 Right to Convert 66
-iv-
</TABLE>
<TABLE>
<S> <C> <C>
Section 15.2 Exercise of Conversion Privilege; Issuance of
Common Stock on Conversion; No Adjustment for Interest
or Dividends 67
Section 15.3 Cash Payments in Lieu of Fractional Shares 68
Section 15.4 Conversion Price 69
Section 15.5 Adjustment of Conversion Price 69
Section 15.6 Effect of Reclassification, Consolidation, Merger or Sale 79
Section 15.7 Taxes on Shares Issued 80
Section 15.8 Reservation of Shares; Shares to Be Fully Paid; Compliance
with Governmental Requirements; Listing of Common Stock 80
Section 15.9 Responsibility of Trustee 81
Section 15.10 Notice to Holders Prior to Certain Actions 82
ARTICLE XVI MISCELLANEOUS PROVISIONS 82
Section 16.1 Provisions Binding on Company's Successors 82
Section 16.2 Official Acts by Successor Corporation 83
Section 16.3 Addresses for Notices, Etc. 83
Section 16.4 Governing Law 83
Section 16.5 Evidence of Compliance with Conditions Precedent;
Certificates to Trustee 83
Section 16.6 Legal Holidays 84
Section 16.7 Trust Indenture Act 84
Section 16.8 No Security Interest Created 84
Section 16.9 Benefits of Indenture 84
Section 16.10 Table of Contents, Headings, Etc. 85
Section 16.11 Authenticating Agent 85
Section 16.12 Execution in Counterparts 86
-v-
</TABLE>
INDENTURE dated as of November 1, 1995, between Xilinx,
Inc., a Delaware corporation (hereinafter sometimes called the
"Company", as more fully set forth in Section 1.1), and State
Street Bank and Trust Company, a trust company duly organized and
existing under the laws of the Commonwealth of Massachusetts, as
trustee hereunder (hereinafter sometimes called the "Trustee", as
more fully set forth in Section 1.1).
W I T N E S S E T H:
WHEREAS, for its lawful corporate purposes, the Company has
duly authorized the issue of its 5 1/4% Convertible Subordinated
Notes due 2002 (hereinafter sometimes called the "Notes"), in an
aggregate principal amount not to exceed $287,500,000 and, to
provide the terms and conditions upon which the Notes are to be
authenticated, issued and delivered, the Company has duly
authorized the execution and delivery of this Indenture; and
WHEREAS, the Notes, the certificate of authentication to be
borne by the Notes, a form of assignment, a form of option to
elect repayment upon a Fundamental Change, a form of conversion
notice and a certificate of transfer to be borne by the Notes are
to be substantially in the forms hereinafter provided for; and
WHEREAS, all acts and things necessary to make the Notes,
when executed by the Company and authenticated and delivered by
the Trustee or a duly authorized authenticating agent, as in this
Indenture provided, the valid, binding and legal obligations of
the Company, and to constitute these presents a valid agreement
according to its terms, have been done and performed, and the
execution of this Indenture and the issue hereunder of the Notes
have in all respects been duly authorized.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which
the Notes are, and are to be, authenticated, issued and
delivered, and in consideration of the premises and of the
purchase and acceptance of the Notes by the holders thereof, the
Company covenants and agrees with the Trustee for the equal and
proportionate benefit of the respective holders from time to time
of the Notes (except as otherwise provided below), as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. The terms defined in this
Section 1.1 (except as herein otherwise expressly provided or
unless the context otherwise requires) for all purposes of this
Indenture and of any indenture supplemental hereto shall have the
respective meanings specified in this Section 1.1. All other
terms used in this Indenture that are defined in the Trust
Indenture Act or which are by reference therein defined in the
Securities Act (except as herein otherwise expressly provided or
unless the context otherwise requires) shall have the meanings
assigned to such terms in said Trust Indenture Act and in said
Securities Act as in force at the date of the execution of this
Indenture. The words "herein," "hereof," "hereunder," and words
of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other Subdivision. The terms
defined in this Article include the plural as well as the
singular.
Affiliate: The term "Affiliate" of any specified Person
shall mean any other Person directly or indirectly controlling or
controlled by or under direct or indirect common control with
such specified Person. For the purposes of this definition,
"control," when used with respect to any specified Person means
the power to direct or cause the direction of the management and
policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and
the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
Applicable Price: The term "Applicable Price" shall mean
(i) in the event of a Fundamental Change in which the holders of
the Company's Common Stock receive only cash, the amount of cash
received by the holder of one share of Common Stock and (ii) in
the event of any other Fundamental Change, the arithmetic average
of the Closing Price for the Company's Common Stock (determined
as set forth in Section 15.5(h)) during the ten Trading Days (as
defined in Section 15.5(h)) prior to the record date for the
determination of the holders of Common Stock entitled to receive
cash, securities, property or other assets in connection with
such Fundamental Change, or, if there is no such record date, the
date upon which the holders of the Common Stock shall have the
right to receive such cash, securities, property or other assets
in connection with the Fundamental Change.
Board of Directors: The term "Board of Directors" shall
mean the Board of Directors of the Company or a committee of such
Board duly authorized to act for it hereunder.
Business Day: The term "Business Day" means each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a day on
which the banking institutions in The City of New York, San Jose,
California or the city in which the Corporate Trust Office is
located are authorized or obligated by law or executive order to
close or be closed.
Closing Price: The term "Closing Price" shall have the
meaning specified in Section 15.5(h)(1).
Commission: The term "Commission" shall mean the Securities
and Exchange Commission.
Common Stock: The term "Common Stock" shall mean any stock
of any class of the Company which has no preference in respect of
dividends or of amounts payable in the event of any voluntary or
involuntary liquidation, dissolution or winding up of the Company
and which is not subject to redemption by the Company. Subject
to the provisions of Section 15.6, however, shares issuable on
conversion of Notes shall include only shares of the class
designated as common stock of the Company at the date of this
Indenture or shares of any class or classes resulting from any
reclassification or reclassifications thereof and which have no
preference in respect of dividends or of amounts payable in the
event of any voluntary or involuntary liquidation, dissolution or
winding up of the Company and which are not subject to redemption
by the Company; provided that if at any time there shall be more
than one such resulting class, the shares of each such class then
so issuable shall be substantially in the proportion which the
total number of shares of such class resulting from all such
reclassifications bears to the total number of shares of all such
classes resulting from all such reclassifications.
Company: The term "Company" shall mean Xilinx, Inc., a
Delaware corporation, and subject to the provisions of
Article XII, shall include its successors and assigns.
Conversion Price: The term "Conversion Price" shall have
the meaning specified in Section 15.4.
Corporate Trust Office: The term "Corporate Trust Office"
or other similar term, shall mean the office of the Trustee at
which at any particular time its corporate trust business shall
be principally administered, which office is, at the date as of
which this Indenture is dated, located at 2 International Place,
4th Floor, Boston, Massachusetts 02110, Attention: Corporate
Trust Division (Xilinx, Inc., 5 1/4% Convertible Subordinated Notes
due 2002).
Custodian: The term "Custodian" shall mean State Street
Bank and Trust Company, as custodian with respect to the Notes in
global form, or any successor entity thereto.
default: The term "default" shall mean any event that is,
or after notice or passage of time, or both, would be, an Event
of Default.
Depositary: The term "Depositary" means, with respect to
the Notes issuable or issued in whole or in part in global form,
the person specified in Section 2.5(d) as the Depositary with
respect to such Notes, until a successor shall have been
appointed and become such pursuant to the applicable provisions
of this Indenture, and thereafter, "Depositary" shall mean or
include such successor.
Designated Senior Indebtedness: The term "Designated Senior
Indebtedness" means any particular Senior Indebtedness in which
the instrument creating or evidencing the same or the assumption
or guarantee thereof (or related agreements or documents to which
the Company is a party) expressly provides that such Indebtedness
shall be "Designated Senior Indebtedness" for purposes of the
Indenture (provided that such instrument, agreement or other
document may place limitations and conditions on the right of
such Senior Indebtedness to exercise the rights of Designated
Senior Indebtedness).
Exchange Act: The term "Exchange Act" shall mean the
Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder, as in effect from time to
time.
Event of Default: The term "Event of Default" shall mean
any event specified in Section 7.1(a), (b), (c), (d) or (e).
Fundamental Change: The term "Fundamental Change" means the
occurrence of any transaction or event in connection with which
all or substantially all the Common Stock shall be exchanged for,
converted into, acquired for or constitute the right to receive
consideration (whether by means of an exchange offer,
liquidation, tender offer, consolidation, merger, combination,
reclassification, recapitalization or otherwise) which is not all
or substantially all common stock which is (or will, upon
consummation of or immediately following such transaction or
event, be) listed on a national securities exchange or approved
for quotation in the Nasdaq National Market or any similar United
States system of automated dissemination of quotations of
securities prices.
Indebtedness: The term "Indebtedness" means, with respect
to any Person, and without duplication, (a) all indebtedness,
obligations and other liabilities (contingent or otherwise) of
such Person for borrowed money (including obligations of the
Company in respect of overdrafts, foreign exchange contracts,
currency exchange agreements, interest rate protection
agreements, and any loans or advances from banks, whether or not
evidenced by notes or similar instruments) or evidenced by bonds,
debentures, notes or similar instruments (whether or not the
recourse of the lender is to the whole of the assets of such
Person or to only a portion thereof) (other than any account
payable or other accrued current liability or obligation incurred
in the ordinary course of business in connection with the
obtaining of materials or services), (b) all reimbursement
obligations and other liabilities (contingent or otherwise) of
such Person with respect to letters of credit, bank guarantees or
bankers' acceptances, (c) all obligations and liabilities
(contingent or otherwise) in respect of leases of such Person as
lessee required, in conformity with generally accepted accounting
principles, to be accounted for as capitalized lease obligations
on the balance sheet of such Person and all obligation and other
liabilities (contingent or otherwise) under any lease or related
document (including a purchase agreement) which provides that
such Person is contractually obligated to purchase or cause a
third party to purchase the leased property and thereby guarantee
a minimum residual value of the leased property to the landlord
and the obligations of such Person under such lease or related
document to purchase or to cause a third party to purchase such
leased property, (d) all obligations of such Person (contingent
or otherwise) with respect to an interest rate or other swap, cap
or collar agreement or other similar instrument or agreement or
foreign currency hedge, exchange, purchase or similar instrument
or agreement, (e) all direct or indirect guaranties or similar
agreements by such Person in respect of, and obligations or
liabilities (contingent or otherwise) of such Person to purchase
or otherwise acquire or otherwise assure a creditor against loss
in respect of indebtedness, obligations or liabilities of another
Person of the kind described in clauses (a) through (d), (f) any
indebtedness or other obligations described in clauses (a)
through (d) secured by any mortgage, pledge, lien or other
encumbrance existing on property which is owned or held by such
Person, regardless of whether the indebtedness or other
obligation secured thereby shall have been assumed by such Person
and (g) any and all deferrals, renewals, extensions and
refundings of, or amendments, modifications or supplements to,
any indebtedness, obligation or liability of the kind described
in clauses (a) through (f).
Indenture: The term "Indenture" shall mean this instrument
as originally executed or, if amended or supplemented as herein
provided, as so amended or supplemented.
Initial Purchasers: The term "Initial Purchasers" means
Morgan Stanley & Co. Incorporated, Alex. Brown & Sons
Incorporated, Donaldson, Lufkin & Jenrette Securities
Corporation, Hambrecht & Quist LLC and Needham & Company, Inc.
Note or Notes: The terms "Note" or "Notes" shall mean any
Note or Notes, as the case may be, authenticated and delivered
under this Indenture.
Noteholder or holder: The terms "Noteholder" or "holder" as
applied to any Note, or other similar terms (but excluding the
term "beneficial holder"), shall mean any person in whose name at
the time a particular Note is registered on the Note registrar's
books.
Note register: The term "Note register" shall have the
meaning specified in Section 2.5.
Officers' Certificate: The term "Officers' Certificate,"
when used with respect to the Company, shall mean a certificate
signed by both (a) the President, the Chief Executive Officer,
Executive or Senior Vice President or any Vice President (whether
or not designated by a number or numbers or word or words added
before or after the title "Vice President") and (b) by the
Treasurer or any Assistant Treasurer or Secretary or any
Assistant Secretary of the Company.
Opinion of Counsel: The term "Opinion of Counsel" shall
mean an opinion in writing signed by legal counsel, who may be an
employee of or counsel to the Company, or other counsel
acceptable to the Trustee.
outstanding: The term "outstanding," when used with
reference to Notes, shall, subject to the provisions of
Section 9.4, mean, as of any particular time, all Notes
authenticated and delivered by the Trustee under this Indenture,
except
(a) Notes theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(b) Notes, or portions thereof, for the redemption of
which monies in the necessary amount shall have been
deposited in trust with the Trustee or with any paying agent
(other than the Company) or shall have been set aside and
segregated in trust by the Company (if the Company shall act
as its own paying agent); provided that if such Notes are to
be redeemed prior to the maturity thereof, notice of such
redemption shall have been given as in Article III provided,
or provision satisfactory to the Trustee shall have been
made for giving such notice;
(c) Notes in lieu of which, or in substitution for
which, other Notes shall have been authenticated and
delivered pursuant to the terms of Section 2.6 unless proof
satisfactory to the Trustee is presented that any such Notes
are held by bona fide holders in due course; and
(d) Notes converted into Common Stock pursuant to
Article XV and Notes deemed not outstanding pursuant to
Article III.
Payment Blockage Notice: The term "Payment Blockage Notice"
has the meaning specified in Section 4.2.
Person: The term "Person" shall mean a corporation, an
association, a partnership, an individual, a joint venture, a
joint stock company, a trust, an unincorporated organization or a
government or an agency or a political subdivision thereof.
PORTAL Market: The term "PORTAL Market" shall mean the
Private Offerings, Resales and Trading through Automated Linkages
Market operated by the National Association of Securities
Dealers, Inc. or any successor thereto.
Predecessor Note: The term "Predecessor Note" of any
particular Note shall mean every previous Note evidencing all or
a portion of the same debt as that evidenced by such particular
Note; and, for the purposes of this definition, any Note
authenticated and delivered under Section 2.6 in lieu of a lost,
destroyed or stolen Note shall be deemed to evidence the same
debt as the lost, destroyed or stolen Note that it replaces.
QIB: The term "QIB" shall mean a "qualified institutional
buyer" as defined in Rule 144A.
Reference Market Price: The term "Reference Market Price"
shall initially mean $27.25 and in the event of any adjustment to
the Conversion Price pursuant to Sections 15.5(a), (b), (c), (d),
(e), (f) or (g), the Reference Market Price shall also be
adjusted so that the ratio of the Reference Market Price to the
Conversion Price after giving effect to any such adjustment shall
always be the same as the ratio of $27.25 to the initial
Conversion Price specified in the form of Note attached hereto
(without regard to any adjustment thereto).
Registration Rights Agreement: The term "Registration
Rights Agreement" means that certain Registration Rights
Agreement, dated as of November 1, 1995, between the Company and
the Initial Purchasers.
Regulation S: The term "Regulation S" shall mean Regulation
S as promulgated under the Securities Act.
Responsible Officer: The term "Responsible Officer," when
used with respect to the Trustee, shall mean an officer of the
Trustee in the Corporate Trust Office assigned and duly
authorized by the Trustee to administer its corporate trust
matters.
Restricted Securities: The term "Restricted Securities" has
the meaning specified in Section 2.5.
Rights Agreement: The term "Rights Agreement" means that
certain Preferred Shares Rights Agreement, dated as of October 4,
1991, between the Company and The First National Bank of Boston,
as amended from time to time.
Rights: The term "Rights" shall mean "Rights" as such term
is defined in the Rights Agreement.
Rule 144A: The term "Rule 144A" shall mean Rule 144A as
promulgated under the Securities Act.
Securities Act: The term "Securities Act" shall mean the
Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder.
Senior Indebtedness: The term "Senior Indebtedness" means
the principal of, premium, if any, interest (including all
interest accruing subsequent to the commencement of any
bankruptcy or similar proceeding, whether or not a claim for post-
petition interest is allowable as a claim in any such proceeding)
and rent payable on or in connection with, and all fees, costs,
expenses and other amounts accrued or due on or in connection
with, Indebtedness of the Company, whether outstanding on the
date of this Indenture or thereafter created, incurred, assumed,
guaranteed or in effect guaranteed by the Company (including all
deferrals, renewals, extensions or refundings of, or amendments,
modifications or supplements to the foregoing), unless in the
case of any particular Indebtedness the instrument creating or
evidencing the same or the assumption or guarantee thereof
expressly provides that such Indebtedness shall not be senior in
right of payment to the Notes or expressly provides that such
Indebtedness is "pari passu" or "junior" to the Notes.
Notwithstanding the foregoing, the term Senior Indebtedness shall
not include any Indebtedness of the Company to any subsidiary of
the Company, a majority of the voting stock of which is owned,
directly or indirectly, by the Company.
Subsidiary: The term "Subsidiary" means, with respect to
any person, (i) any corporation, association or other business
entity of which more than 50% of the total voting power of shares
of capital stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers
or trustees thereof is at the time owned or controlled, directly
or indirectly, by such person or one or more of the other
subsidiaries of that person (or a combination thereof) and (ii)
any partnership (a) the sole general partner or managing general
partner of which is such person or a subsidiary of such person or
(b) the only general partners of which are such person or of one
or more subsidiaries of such person (or any combination thereof).
Trading Day: The term "Trading Day" shall have the meaning
specified in Section 15.5(h)(5).
Trigger Event: The term "Trigger Event" shall have the
meaning specified in Section 15.5(d).
Trust Indenture Act: The term "Trust Indenture Act" shall
mean the Trust Indenture Act of 1939, as amended, as it was in
force at the date of execution of this Indenture, except as
provided in Sections 11.3 and 15.6; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after the
date hereof, the term "Trust Indenture Act" shall mean, to the
extent required by such amendment, the Trust Indenture Act of
1939 as so amended.
Trustee: The term "Trustee" shall mean State Street Bank
and Trust Company and its successors and any corporation
resulting from or surviving any consolidation or merger to which
it or its successors may be a party and any successor trustee at
the time serving as successor trustee hereunder.
The definitions of certain other terms are as specified in
Sections 2.5 and 3.5 and Article XV.
ARTICLE II
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION
AND EXCHANGE OF NOTES
Section 2.1 Designation, Amount and Issue of Notes. The
Notes shall be designated as 5 1/4% Convertible Subordinated Notes
due 2002." Notes not to exceed the aggregate principal amount of
$250,000,000 (or $287,500,000 if the over-allotment option set
forth in Section 7 of the Placement Agreement dated November 7,
1995 (as amended from time to time by the parties thereto) by and
between the Company and the Initial Purchasers is exercised in
full) (except pursuant to Sections 2.5, 2.6, 3.3, 3.5 and 15.2
hereof) upon the execution of this Indenture, or from time to
time thereafter, may be executed by the Company and delivered to
the Trustee for authentication, and the Trustee shall thereupon
authenticate and deliver said Notes to or upon the written order
of the Company, signed by its (a) President, Executive or Senior
Vice President or any Vice President (whether or not designated
by a number or numbers or word or words added before or after the
title "Vice President") and (b) Treasurer or Assistant Treasurer
or its Secretary or any Assistant Secretary, without any further
action by the Company hereunder.
Section 2.2 Form of Notes. The Notes and the Trustee's
certificate of authentication to be borne by such Notes shall be
substantially in the form set forth in Exhibit A, which is
incorporated in and made a part of this Indenture.
Any of the Notes may have such letters, numbers or other
marks of identification and such notations, legends and
endorsements as the officers executing the same may approve
(execution thereof to be conclusive evidence of such approval)
and as are not inconsistent with the provisions of this
Indenture, or as may be required to comply with any law or with
any rule or regulation made pursuant thereto or with any rule or
regulation of any securities exchange or automated quotation
system on which the Notes may be listed, or to conform to usage.
Any Note in global form shall represent such of the
outstanding Notes as shall be specified therein and shall provide
that it shall represent the aggregate amount of outstanding Notes
from time to time endorsed thereon and that the aggregate amount
of outstanding Notes represented thereby may from time to time be
increased or reduced to reflect transfers or exchanges permitted
hereby. Any endorsement of a Note in global form to reflect the
amount of any increase or decrease in the amount of outstanding
Notes represented thereby shall be made by the Trustee or the
Custodian, at the direction of the Trustee, in such manner and
upon instructions given by the holder of such Notes in accordance
with this Indenture. Payment of principal of and interest and
premium, if any, on any Note in global form shall be made to the
holder of such Note.
The terms and provisions contained in the form of Note
attached as Exhibit A hereto shall constitute, and are hereby
expressly made, a part of this Indenture and, to the extent
applicable, the Company and the Trustee, by their execution and
delivery of this Indenture, expressly agree to such terms and
provisions and to be bound thereby.
Section 2.3 Date and Denomination of Notes; Payments of
Interest. The Notes shall be issuable in registered form without
coupons in denominations of $1,000 principal amount and integral
multiples thereof. Every Note shall be dated the date of its
authentication, shall bear interest from the applicable date in
each case as specified on the face of the form of Note attached
as Exhibit A hereto.
The person in whose name any Note (or its Predecessor Note)
is registered at the close of business on any record date with
respect to any interest payment date (including any Note that is
converted after the record date and on or before the interest
payment date) shall be entitled to receive the interest payable
on such interest payment date notwithstanding the cancellation of
such Note upon any transfer, exchange or conversion subsequent to
the record date and on or prior to such interest payment date;
provided, that in the case of any Note, or portion thereof,
called for redemption on a redemption date or redeemed in
connection with a Fundamental Change on a Repurchase Date that is
after a record date and prior to (but excluding) the next
succeeding interest payment date, interest shall not be paid to
the person in whose name the Note, or portion thereof, is
registered on the close of business on such record date and the
Company shall have no obligation to pay interest on such Note or
such portion except to the extent required to be paid upon
redemption of such Note or portion thereof pursuant to
Section 3.3 or 3.5 hereof. Interest may, at the option of the
Company, be paid by check mailed to the address of such person on
the registry kept for such purposes; provided that, with respect
to any holder of Notes with an aggregate principal amount equal
to or in excess of $5,000,000, at the request of such holder in
writing to the Company (who shall then furnish written notice to
such effect to the Trustee), interest on such holder's Notes
shall be paid by wire transfer in immediately available funds in
accordance with the wire transfer instructions supplied by such
holder to the Trustee and paying agent (if different from the
Trustee). The term "record date" with respect to any interest
payment date shall mean the April 15 or October 15 preceding said
May 1 or November 1, respectively.
Interest on the Notes shall be computed on the basis of a
year of twelve 30-day months.
Any interest on any Note which is payable, but is not
punctually paid or duly provided for, on any said May 1 or
November 1 (herein called "Defaulted Interest") shall forthwith
cease to be payable to the Noteholder on the relevant record date
by virtue of his having been such Noteholder; and such Defaulted
Interest shall be paid by the Company, at its election in each
case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the Notes
(or their respective Predecessor Notes) are registered at
the close of business on a special record date for the
payment of such Defaulted Interest, which shall be fixed in
the following manner. The Company shall notify the Trustee
in writing of the amount of Defaulted Interest to be paid on
each Note and the date of the payment (which shall be not
less than twenty-five (25) days after the receipt by the
Trustee of such notice, unless the Trustee shall consent to
an earlier date), and at the same time the Company shall
deposit with the Trustee an amount of money equal to the
aggregate amount to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the
Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for
the benefit of the Persons entitled to such Defaulted
Interest as in this clause provided. Thereupon the Trustee
shall fix a special record date for the payment of such
Defaulted Interest which shall be not more than fifteen (15)
days and not less than ten (10) days prior to the date of
the proposed payment and not less than ten (10) days after
the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of
such special record date and, in the name and at the expense
of the Company, shall cause notice of the proposed payment
of such Defaulted Interest and the special record date
therefor to be mailed, first-class postage prepaid, to each
Noteholder as of such special record date at his address as
it appears in the Note register, not less than ten (10) days
prior to such special record date. Notice of the proposed
payment of such Defaulted Interest and the special record
date therefor having been so mailed, such Defaulted Interest
shall be paid to the Persons in whose names the Notes (or
their respective Predecessor Notes) were registered at the
close of business on such special record date and shall no
longer be payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted
Interest in any other lawful manner not inconsistent with
the requirements of any securities exchange and automated
quotation system on which the Notes may be listed or
designated for issuance, and upon such notice as may be
required by such exchange and automated quotation system,
if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this clause, such manner of
payment shall be deemed practicable by the Trustee.
Section 2.4 Execution of Notes. The Notes shall be
signed in the name and on behalf of the Company by the facsimile
signature of its President, any Executive or Senior Vice
President or any Vice President (whether or not designated by a
number or numbers or word or words added before or after the
title "Vice President") and attested by the facsimile signature
of its Secretary or any of its Assistant Secretaries (which may
be printed, engraved or otherwise reproduced thereon, by
facsimile or otherwise). Only such Notes as shall bear thereon a
certificate of authentication substantially in the form set forth
on the form of Note attached as Exhibit A hereto, manually
executed by the Trustee (or an authenticating agent appointed by
the Trustee as provided by Section 16.11), shall be entitled to
the benefits of this Indenture or be valid or obligatory for any
purpose. Such certificate by the Trustee (or such an
authenticating agent) upon any Note executed by the Company shall
be conclusive evidence that the Note so authenticated has been
duly authenticated and delivered hereunder and that the holder is
entitled to the benefits of this Indenture.
In case any officer of the Company who shall have signed any
of the Notes shall cease to be such officer before the Notes so
signed shall have been authenticated and delivered by the
Trustee, or disposed of by the Company, such Notes nevertheless
may be authenticated and delivered or disposed of as though the
person who signed such Notes had not ceased to be such officer of
the Company; and any Note may be signed on behalf of the Company
by such persons as, at the actual date of the execution of such
Note, shall be the proper officers of the Company, although at
the date of the execution of this Indenture any such person was
not such an officer.
Section 2.5 Exchange and Registration of Transfer of
Notes: Restrictions on Transfer: Depositary.
(a) The Company shall cause to be kept at the
Corporate Trust Office a register (the register maintained
in such office and in any other office or agency of the
Company designated pursuant to Section 5.2 being herein
sometimes collectively referred to as the "Note register")
in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of
Notes and of transfers of Notes. The Note register shall be
in written form or in any form capable of being converted
into written form within a reasonably prompt period of time.
The Trustee is hereby appointed "Note registrar" for the
purpose of registering Notes and transfers of Notes as
herein provided. The Company may appoint one or more co-
registrars in accordance with Section 5.2.
Upon surrender for registration of transfer of any Note
to the Note registrar or any co-registrar, and satisfaction
of the requirements for such transfer set forth in this
Section 2.5, the Company shall execute, and the Trustee
shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Notes
of any authorized denominations and of a like aggregate
principal amount and bearing such restrictive legends as may
be required by this Indenture.
Notes may be exchanged for other Notes of any
authorized denominations and of a like aggregate principal
amount, upon surrender of the Notes to be exchanged at any
such office or agency maintained by the Company pursuant to
Section 5.2. Whenever any Notes are so surrendered for
exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Notes which the Noteholder
making the exchange is entitled to receive bearing
registration numbers not contemporaneously outstanding.
All Notes issued upon any registration of transfer or
exchange of Notes shall be the valid obligations of the
Company, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Notes surrendered upon
such registration of transfer or exchange.
All Notes presented or surrendered for registration of
transfer or for exchange, redemption or conversion shall (if
so required by the Company or the Note registrar) be duly
endorsed, or be accompanied by a written instrument or
instruments of transfer in form satisfactory to the Company,
and the Notes shall be duly executed by the Noteholder
thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Notes, but the Company may require
payment of a sum sufficient to cover any tax, assessment or
other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Notes.
Neither the Company nor the Trustee nor any Note
registrar or any Company-registrar shall be required to
exchange or register a transfer of (a) any Notes for a
period of fifteen (15) days next preceding any selection of
Notes to be redeemed or (b) any Notes or portions thereof
called for redemption pursuant to Article III or (c) any
Notes or portion thereof surrendered for conversion pursuant
to Article XV.
(b) So long as the Notes are eligible for book-entry
settlement with the Depositary, unless otherwise required by
law, all Notes to be traded on the PORTAL Market or to a
Person who is not a U.S. Person (as defined in Regulation S)
who is acquiring the Note in an offshore transaction (a "Non-
U.S. Person") in accordance with Regulation S shall be
represented by a Note in global form registered in the name
of the Depositary or the nominee of the Depositary. The
transfer and exchange of beneficial interests in such Note
in global form, which does not involve the issuance of a
Note in definitive form, shall be effected through the
Depositary, in accordance with this Indenture (including the
restrictions on transfer set forth herein) and the
procedures of the Depositary therefor.
At any time at the request of the beneficial holder of
an interest in a Note in global form to obtain a Note in
definitive form, such beneficial holder shall be entitled to
obtain a definitive Note upon written request to the Trustee
and the Custodian in accordance with the standing
instructions and procedures existing between the Custodian
and Depositary for the issuance thereof. Upon receipt of
any such request, the Trustee, or the Custodian at the
direction of the Trustee, will cause, in accordance with the
standing instructions and procedures existing between the
Depositary and the Custodian, the aggregate principal amount
of the Note in global form to be reduced by the principal
amount of the definitive Note issued upon such request to
such beneficial holder and, following such reduction, the
Company will execute and the Trustee will authenticate and
deliver to such beneficial holder (or its nominee) a
definitive Note or Notes in the appropriate aggregate
principal amount in the name of such beneficial holder (or
its nominee) and bearing such restrictive legends as may be
required by this Indenture.
Any transfer of a beneficial interest in a Note in
global form which cannot be effected through book-entry
settlement must be effected by the delivery to the
transferee (or its nominee) of a definitive Note or Notes
registered in the name of the transferee (or its nominee) on
the books maintained by the Note registrar in accordance
with the transfer restrictions set forth herein. With
respect to any such transfer, the Trustee, or the Custodian
at the direction of the Trustee, will cause, in accordance
with the standing instructions and procedures existing
between the Depositary and the Custodian, the aggregate
principal amount of the Note in global form to be reduced by
the principal amount of the beneficial interest in the Note
in global form being transferred and, following such
reduction, the Company will execute and the Trustee will
authenticate and deliver to the transferee (or such
transferee's nominee, as the case may be), a Note or Notes
in the appropriate aggregate principal amount in the name of
such transferee (or its nominee) and bearing such
restrictive legends as may be required by this Indenture.
(c) So long as the Notes are eligible for book-entry
settlement, or unless otherwise required by law, upon any
transfer of a definitive Note to a QIB in accordance with
Rule 144A or a Non-U.S. Person in accordance with Regulation
S, and upon receipt of the definitive Note or Notes being so
transferred, together with a certification from the
transferor that the transferee is a QIB or a Non-U.S. Person
(or other evidence satisfactory to the Trustee), the Trustee
shall make, or direct the Custodian to make, an endorsement
on the Note in global form to reflect an increase in the
aggregate principal amount of the Notes represented by the
Note in global form, and the Trustee shall cancel such
definitive Note or Notes and cause, or direct the Custodian
to cause, in accordance with the standing instructions and
procedures existing between the Depositary and the
Custodian, the aggregate principal amount of Notes
represented by the Note in global form to be increased
accordingly; provided that no definitive Note, or portion
thereof, in respect of which the Company or an Affiliate of
the Company held any beneficial interest shall be included
in such Note in global form until such definitive Note is
freely tradable in accordance with Rule 144(k); provided
further that the Trustee shall issue Notes in definitive
form upon any transfer of a beneficial interest in the Note
in global form to the Company or an Affiliate of the
Company.
Any Note in global form may be endorsed with or have
incorporated in the text thereof such legends or recitals or
changes not inconsistent with the provisions of this
Indenture as may be required by the Custodian, the
Depositary or by the National Association of Securities
Dealers, Inc. in order for the Notes to be tradeable on the
PORTAL Market or as may be required for the Notes to be
tradeable on any other market developed for trading of
securities pursuant to Rule 144A or Regulation S under the
Securities Act or required to comply with any applicable law
or any regulation thereunder or with the rules and
regulations of any securities exchange or automated
quotation system upon which the Notes may be listed or
traded or to conform with any usage with respect thereto, or
to indicate any special limitations or restrictions to which
any particular Notes are subject.
(d) Every Note that bears or is required under this
Section 2.5(d) to bear the legend set forth in this
Section 2.5(d) (together with any Common Stock issued upon
conversion of the Notes and required to bear the legend set
forth in Section 2.5(e), collectively, the "Restricted
Securities") shall be subject to the restrictions on
transfer set forth in this Section 2.5(d) (including those
set forth in the legend set forth below) unless such
restrictions on transfer shall be waived by written consent
of the Company, and the holder of each such Restricted Note,
by such Noteholder's acceptance thereof, agrees to be bound
by all such restrictions on transfer. As used in
Sections 2.5(d) and 2.5(e), the term "transfer" encompasses
any sale, pledge, transfer or other disposition whatsoever
of any Restricted Security.
Until three (3) years after the original issuance date
of any Note, any certificate evidencing such Note (and all
securities issued in exchange therefor or substitution
thereof, other than Common Stock, if any, issued upon
conversion thereof, which shall bear the legend set forth in
Section 2.5(e), if applicable) shall bear a legend in
substantially the following form, unless otherwise agreed by
the Company in writing, with written notice thereof to the
Trustee:
THE NOTE EVIDENCED HEREBY HAS NOT BEEN AND
WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT") OR ANY STATE SECURITIES
LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR
SOLD WITHIN THE UNITED STATES OR TO, OR FOR
THE ACCOUNT OR BENEFIT OF, U.S. PERSONS
EXCEPT AS SET FORTH IN THE FOLLOWING
SENTENCE. BY ITS ACQUISITION HEREOF, THE
HOLDER: (1) REPRESENTS THAT (A) IT IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED
IN RULE 144A UNDER THE SECURITIES ACT) OR (B)
IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR"
(AS DEFINED IN RULE 501(A)( 1), (2), (3) OR
(7) UNDER THE SECURITIES ACT) ("INSTITUTIONAL
ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S.
PERSON AND IS ACQUIRING THE NOTE EVIDENCED
HEREBY IN AN OFFSHORE TRANSACTION; (2) AGREES
THAT IT WILL NOT WITHIN THREE YEARS AFTER THE
ORIGINAL ISSUANCE OF THE NOTE EVIDENCED
HEREBY RESELL OR OTHERWISE TRANSFER THE NOTE
EVIDENCED HEREBY OR THE COMMON STOCK ISSUABLE
UPON CONVERSION OF SUCH NOTE EXCEPT (A) TO
XILINX, INC. OR ANY SUBSIDIARY THEREOF, (B)
INSIDE THE UNITED STATES TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH
RULE 144A UNDER THE SECURITIES ACT, (C)
INSIDE THE UNITED STATES TO AN INSTITUTIONAL
ACCREDITED INVESTOR THAT, PRIOR TO SUCH
TRANSFER, FURNISHES TO STATE STREET BANK AND
TRUST COMPANY, AS TRUSTEE (OR A SUCCESSOR
TRUSTEE, AS APPLICABLE), A SIGNED LETTER
CONTAINING CERTAIN REPRESENTA-TIONS AND
AGREEMENTS RELATING TO THE RESTRICTIONS ON
TRANSFER OF THE NOTE EVIDENCED HEREBY (THE
FORM OF WHICH LETTER CAN BE OBTAINED FROM THE
COMPANY), (D) OUTSIDE THE UNITED STATES IN
COMPLIANCE WITH RULE 904 UNDER THE SECURITIES
ACT, OR (E) PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT (IF AVAILABLE); AND (3) AGREES
THAT IT WILL DELIVER TO EACH PERSON TO WHOM
THE NOTE EVIDENCED HEREBY IS TRANSFERRED A
NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
LEGEND. IN CONNECTION WITH ANY TRANSFER OF
THE NOTE EVIDENCED HEREBY WITHIN THREE YEARS
AFTER THE ORIGINAL ISSUANCE OF SUCH NOTE, THE
HOLDER MUST CHECK THE APPROPRIATE BOX SET
FORTH ON THE REVERSE HEREOF RELATING TO THE
MANNER OF SUCH TRANSFER AND SUBMIT THIS
CERTIFICATE TO STATE STREET BANK AND TRUST
COMPANY, AS TRUSTEE (OR A SUCCESSOR TRUSTEE,
AS APPLICABLE). IF THE PROPOSED TRANSFEREE
IS AN INSTITUTIONAL ACCREDITED INVESTOR OR A
PURCHASER WHO IS NOT A U.S. PERSON, THE
HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH
TO STATE STREET BANK AND TRUST COMPANY, AS
TRUSTEE (OR A SUCCESSOR TRUSTEE, AS
APPLICABLE), SUCH CERTIFICATIONS, LEGAL
OPINIONS OR OTHER INFORMATION AS IT MAY
REASONABLY REQUIRE TO CONFIRM THAT SUCH
TRANSFER IS BEING MADE PURSUANT TO AN
EXEMPTION FROM, OR IN A TRANS- ACTION NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT. THIS LEGEND WILL BE
REMOVED UPON ANY TRANSFER OF THE NOTE
EVIDENCED HEREBY AFTER THE EXPIRATION OF
THREE YEARS FROM THE ORIGINAL ISSUANCE OF THE
NOTE EVIDENCED HEREBY. AS USED HEREIN, THE
TERMS "OFFSHORE TRANSACTION," "UNITED STATES"
AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO
THEM BY REGULATION S UNDER THE SECURITIES
ACT.
Any Note (or security issued in exchange or
substitution therefor) as to which such restrictions on
transfer shall have expired in accordance with their terms
may, upon surrender of such Note for exchange to the Note
registrar in accordance with the provisions of this
Section 2.5, be exchanged for a new Note or Notes, of like
tenor and aggregate principal amount, which shall not bear
the restrictive legend required by this Section 2.5(d).
Notwithstanding any other provisions of this Indenture
(other than the provisions set forth in this
Section 2.5(d)), a Note in global form may not be
transferred as a whole or in part except by the Depositary
to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor
Depositary.
The Depositary shall be a clearing agency registered
under the Exchange Act. The Company initially appoints The
Depository Trust Company to act as Depositary with respect
to the Notes in global form. Initially, the global Note
shall be issued to the Depositary, registered in the name of
Cede & Co., as the nominee of the Depositary, and deposited
with the Custodian for Cede & Co.
If at any time the Depositary for the Note in global
form notifies the Company that it is unwilling or unable to
continue as Depositary for the Note, the Company may appoint
a successor Depositary with respect to such Note. If a
successor Depositary is not appointed by the Company within
ninety (90) days after the Company receives such notice, the
Company will execute, and the Trustee, upon receipt of an
Officers' Certificate for the authentication and delivery of
Notes, will authenticate and deliver, Notes in definitive
form, in an aggregate principal amount equal to the
principal amount of the Note in global form, in exchange for
such Note in global form.
If a definitive Note is issued in exchange for any
portion of a Note in global form after the close of business
at the office or agency where such exchange occurs on any
record date and before the opening of business at such
office or agency on the next succeeding interest payment
date, interest will not be payable on such interest payment
date in respect of such Note, but will be payable on such
interest payment date only to the person to whom interest in
respect of such portion of such Note in global form is
payable in accordance with the provisions of this Indenture.
Definitive Notes issued in exchange for all or a part
of a Note in global form pursuant to this Section 2.5 shall
be registered in such names and in such authorized
denominations as the Depositary, pursuant to instructions
from its direct or indirect participants or otherwise, shall
instruct the Trustee. Upon execution and authentication,
the Trustee shall deliver such definitive Notes to the
persons in whose names such definitive Notes are so
registered.
At such time as all interests in a Note in global form
have been redeemed, converted, repurchased, canceled,
exchanged for definitive Notes, or transferred to a
transferee who receives definitive Notes thereof, such Note
in global form shall, upon receipt thereof, be canceled by
the Trustee in accordance with standing procedures and
instructions existing between the Depositary and the
Custodian. At any time prior to such cancellation, if any
interest in a global Note is exchanged for definitive Notes,
redeemed, converted, repurchased or canceled, exchanged for
definitive Notes or transferred to a transferee who receives
definitive Notes therefor or any definitive Note is
exchanged or transferred for part of a Note in global form,
the principal amount of such Note in global form shall, in
accordance with the standing procedures and instructions
existing between the Depositary and the Custodian, be
appropriately reduced or increased, as the case may be, and
an endorsement shall be made on such Note in global form, by
the Trustee or the Custodian, at the direction of the
Trustee, to reflect such reduction or increase.
(e) Until three (3) years after the original issuance
date of any Note, any stock certificate representing Common
Stock issued upon conversion of such Note shall bear a
legend in substantially the following form, unless such
Common Stock has been sold pursuant to a registration
statement that has been declared effective under the
Securities Act (and which continues to be effective at the
time of such transfer) or such Common Stock has been issued
upon conversion of Notes that have been transferred pursuant
to a registration statement that has been declared effective
under the Securities Act, or unless otherwise agreed by the
Company in writing with written notice thereof to the
transfer agent:
THE COMMON STOCK EVIDENCED HEREBY HAS NOT
BEEN AND WILL NOT BE REGISTERED UNDER THE
U.S. SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR ANY STATE SECURITIES
LAWS, AND, ACCORD-INGLY, MAY NOT BE OFFERED
OR SOLD WITHIN THE UNITED STATES OR TO, OR
FOR THE ACCOUNT OR BENEFIT OF U.S. PERSONS
EXCEPT AS SET FORTH IN THE FOLLOWING
SENTENCE. THE HOLDER HEREOF AGREES THAT
UNTIL THE EXPIRATION OF THREE YEARS AFTER THE
ORIGINAL ISSUANCE OF THE NOTE UPON THE
CONVERSION OF WHICH THE COMMON STOCK
EVIDENCED HEREBY WAS ISSUED: (1) IT WILL NOT
RESELL OR OTHERWISE TRANSFER THE COMMON STOCK
EVIDENCED HEREBY EXCEPT (A) TO XILINX, INC.
OR ANY SUBSIDIARY THEREOF, (B) INSIDE THE
UNITED STATES TO A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) IN COMPLIANCE WITH RULE 144A,
(C) INSIDE THE UNITED STATES TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" (AS
DEFINED IN RULE 501(A)(1), (2), (3) OR (7)
UNDER THE SECURITIES ACT) THAT, PRIOR TO SUCH
TRANSFER, FURNISHES TO BANCBOSTON STATE
STREET INVESTOR SERVICES, AS TRANSFER AGENT
(OR A SUCCESSOR TRANSFER AGENT, AS
APPLICABLE), A SIGNED LETTER CONTAINING
CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE RESTRICTIONS ON TRANSFER OF
THE COMMON STOCK EVIDENCED HEREBY (THE FORM
OF WHICH LETTER CAN BE OBTAINED FROM SUCH
TRANSFER AGENT (OR A SUCCESSOR TRANSFER
AGENT, AS APPLICABLE)), (D) OUTSIDE THE
UNITED STATES IN COMPLIANCE WITH RULE 904
UNDER THE SECURITIES ACT, (E) PURSUANT TO THE
EXEMPTION FROM REGISTRATION PROVIDED BY
RULE 144 UNDER THE SECURITIES ACT (IF
AVAILABLE), OR (F) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE
UNDER THE SECURITIES ACT (AND WHICH CONTINUES
TO BE EFFECTIVE AT THE TIME OF SUCH
TRANSFER); (2) PRIOR TO SUCH TRANSFER (OTHER
THAN A TRANSFER PURSUANT TO CLAUSE 1(F)
ABOVE), IT WILL FURNISH BANCBOSTON STATE
STREET INVESTOR SERVICES, AS TRANSFER AGENT
(OR A SUCCESSOR TRANSFER AGENT, AS
APPLICABLE), SUCH CERTIFICATIONS, LEGAL
OPINIONS OR OTHER INFORMATION AS IT MAY
REASONABLY REQUIRE TO CONFIRM THAT SUCH
TRANSFER IS BEING MADE PURSUANT TO AN
EXEMPTION FROM, OR IN A TRANSACTION NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT AND (3) IT WILL DELIVER TO
EACH PERSON TO WHOM THE COMMON STOCK
EVIDENCED HEREBY IS TRANSFERRED (OTHER THAN A
TRANSFER PURSUANT TO CLAUSE 1(F) ABOVE) A
NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
LEGEND. THIS LEGEND WILL BE REMOVED UPON THE
EARLIER OF THE TRANSFER OF THE COMMON STOCK
EVIDENCED HEREBY PURSUANT TO CLAUSE 1(F)
ABOVE OR UPON ANY TRANSFER OF THE COMMON
STOCK EVIDENCED HEREBY AFTER THE EXPIRATION
OF THREE YEARS FROM THE ORIGINAL ISSUANCE OF
THE NOTE UPON THE CONVERSION OF WHICH THE
COMMON STOCK EVIDENCED HEREBY WAS ISSUED OR
UPON THE EARLIER SATISFACTION OF BANCBOSTON
STATE STREET INVESTOR SERVICES, AS TRANSFER
AGENT (OR A SUCCESSOR TRANSFER AGENT, AS
APPLICABLE), THAT THE COMMON STOCK HAS BEEN
OR IS BEING OFFERED AND SOLD IN COMPLIANCE
WITH RULE 904 UNDER THE SECURITIES ACT. AS
USED HEREIN, THE TERMS "UNITED STATES" AND
"U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM
BY REGULATION S UNDER THE SECURITIES ACT.
Any such Common Stock as to which such restrictions on
transfer shall have expired in accordance with their terms
may, upon surrender of the certificates representing such
shares of Common Stock for exchange in accordance with the
procedures of the transfer agent for the Common Stock, be
exchanged for a new certificate or certificates for a like
number of shares of Common Stock, which shall not bear the
restrictive legend required by this Section 2.5(e).
(f) Any certificate evidencing a Note that has been
transferred to an Affiliate of the Company within three
years after the original issuance date of the Note, as
evidenced by a notation on the Assignment Form for such
transfer or in the representation letter delivered in
respect thereof, shall, until three years after the last
date on which the Company or any Affiliate of the Company
was an owner of such Note, bear a legend in substantially
the following form, unless otherwise agreed by the Company
(with written notice thereof to the Trustee):
THE NOTE EVIDENCED HEREBY HAS NOT BEEN REGISTERED
UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), OR ANY STATE SECURITIES
LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD
WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT
OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN
THE FOLLOWING SENTENCE. BY ITS ACQUISITION
HEREOF, THE HOLDER AGREES (1) THAT IT WILL NOT
RESELL OR OTHERWISE TRANSFER THE NOTE EVIDENCED
HEREBY OR THE COMMON STOCK ISSUABLE UPON
CONVERSION OF SUCH NOTE EXCEPT (A) TO XILINX, INC.
OR ANY SUBSIDIARY THEREOF, (B) IN A TRANSACTION
REGISTERED UNDER THE SECURITIES ACT OR (C)
PURSUANT TO THE EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF
AVAILABLE) AND (2) THAT IT WILL DELIVER TO EACH
PERSON TO WHOM THE NOTE EVIDENCED HEREBY IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT
OF THIS LEGEND. THIS LEGEND SHALL BE REMOVED UPON
THE TRANSFER OF THE NOTE EVIDENCED HEREBY OR THE
COMMON STOCK ISSUABLE UPON CONVERSION OF SUCH NOTE
PURSUANT TO THE IMMEDIATELY PRECEDING SENTENCE.
IF THE PROPOSED TRANSFER IS PURSUANT TO THE
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144
UNDER THE SECURITIES ACT, THE HOLDER MUST, PRIOR
TO SUCH TRANSFER, FURNISH STATE STREET BANK AND
TRUST COMPANY, AS TRUSTEE (OR A SUCCESSOR TRUSTEE,
AS APPLICABLE), SUCH CERTIFICATIONS, LEGAL
OPINIONS OR OTHER INFORMATION AS THE COMPANY MAY
REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER
IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN
A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. AS USED
HEREIN, THE TERMS "UNITED STATES" AND "U.S.
PERSON" HAVE THE MEANINGS GIVEN TO THEM BY
REGULATION S UNDER THE SECURITIES ACT.
Any stock certificate representing Common Stock issued
upon conversion of such Note shall also bear a legend in
substantially the form indicated above, unless otherwise
agreed by the Company (with written notice thereof to the
Trustee).
(g) Notwithstanding any provision of Section 2.5 to
the contrary, in the event Rule 144(k) as promulgated under
the Securities Act (or any successor rule) is amended to
shorten the three-year period under Rule 144(k) (or the
corresponding period under any successor rule), from and
after receipt by the Trustee of the Officers' Certificate
and Opinion of Counsel provided for in this Section 2.5(g),
(i) the references in the first sentence of the second
paragraph of Section 2.5(d) to "three (3) years" and in the
restrictive legend set forth in such paragraph to "THREE
YEARS" shall be deemed for all purposes hereof to be
references to such shorter period, (ii) the references in
the first paragraph of Section 2.5(e) to "three (3) years"
and in the restrictive legend set forth in such paragraph to
"THREE YEARS" shall be deemed for all purposes hereof to be
references to such shorter period and (iii) all
corresponding references in the Notes and the restrictive
legends thereon shall be deemed for all purposes hereof to
be references to such shorter period, provided that such
changes shall not become effective if they are otherwise
prohibited by, or would otherwise cause a violation of, the
then-applicable federal securities laws. As soon as
practicable after the Company has knowledge of the
effectiveness of any such amendment to shorten the three-
year period under Rule 144(k) (or the corresponding period
under any successor rule), unless such changes would
otherwise be prohibited by, or would otherwise cause a
violation of, the then-applicable securities laws, the
Company shall provide to the Trustee an Officers'
Certificate and Opinion of Counsel informing the Trustee of
the effectiveness of such amendment and the effectiveness of
the foregoing changes to Sections 2.5(d) and 2.5(e) and the
Notes. This Section 2.5(g) shall apply to successive
amendments to Rule 144(k) (or any successor rule) shortening
the holding period thereunder.
Section 2.6 Mutilated, Destroyed, Lost or Stolen Notes.
In case any Note shall become mutilated or be destroyed, lost or
stolen, the Company in its discretion may execute, and upon its
request the Trustee or an authenticating agent appointed by the
Trustee shall authenticate and deliver, a new Note, bearing a
number not contemporaneously outstanding, in exchange and
substitution for the mutilated Note, or in lieu of and in
substitution for the Note so destroyed, lost or stolen. In every
case the applicant for a substituted Note shall furnish to the
Company, to the Trustee and, if applicable, to such
authenticating agent such security or indemnity as may be
required by them to save each of them harmless for any loss,
liability, cost or expense caused by or connected with such
substitution, and, in every case of destruction, loss or theft,
the applicant shall also furnish to the Company, to the Trustee
and, if applicable, to such authenticating agent evidence to
their satisfaction of the destruction, loss or theft of such Note
and of the ownership thereof.
The Trustee or such authenticating agent may authenticate
any such substituted Note and deliver the same upon the receipt
of such security or indemnity as the Trustee, the Company and, if
applicable, such authenticating agent may require. Upon the
issuance of any substituted Note, the Company may require the
payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and
any other expenses connected therewith. In case any Note which
has matured or is about to mature or has been called for
redemption or is about to be converted into Common Stock shall
become mutilated or be destroyed, lost or stolen, the Company
may, instead of issuing a substitute Note, pay or authorize the
payment of or convert or authorize the conversion of the same
(without surrender thereof except in the case of a mutilated
Note), as the case may be, if the applicant for such payment or
conversion shall furnish to the Company, to the Trustee and, if
applicable, to such authenticating agent such security or
indemnity as may be required by them to save each of them
harmless for any loss, liability, cost or expense caused by or
connected with such substitution, and, in case of destruction,
loss or theft, evidence satisfactory to the Company, the Trustee
and, if applicable, any paying agent or conversion agent of the
destruction, loss or theft of such Note and of the ownership
thereof.
Every substitute Note issued pursuant to the provisions of
this Section 2.6 by virtue of the fact that any Note is
destroyed, lost or stolen shall constitute an additional
contractual obligation of the Company, whether or not the
destroyed, lost or stolen Note shall be found at any time, and
shall be entitled to all the benefits of (but shall be subject to
all the limitations set forth in) this Indenture equally and
proportionately with any and all other Notes duly issued
hereunder. To the extent permitted by law, all Notes shall be
held and owned upon the express condition that the foregoing
provisions are exclusive with respect to the replacement or
payment or conversion of mutilated, destroyed, lost or stolen
Notes and shall preclude any and all other rights or remedies
notwithstanding any law or statute existing or hereafter enacted
to the contrary with respect to the replacement or payment or
conversion of negotiable instruments or other securities without
their surrender.
Section 2.7 Temporary Notes. Pending the preparation of
definitive Notes, the Company may execute and the Trustee or an
authenticating agent appointed by the Trustee shall, upon the
written request of the Company, authenticate and deliver
temporary Notes (printed or lithographed). Temporary Notes shall
be issuable in any authorized denomination, and substantially in
the form of the definitive Notes, but with such omissions,
insertions and variations as may be appropriate for temporary
Notes, all as may be determined by the Company. Every such
temporary Note shall be executed by the Company and authenticated
by the Trustee or such authenticating agent upon the same
conditions and in substantially the same manner, and with the
same effect, as the definitive Notes. Without unreasonable delay
the Company will execute and deliver to the Trustee or such
authenticating agent definitive Notes (other than in the case of
Notes in global form) and thereupon any or all temporary Notes
(other than any such Note in global form) may be surrendered in
exchange therefor, at each office or agency maintained by the
Company pursuant to Section 5.2 and the Trustee or such
authenticating agent shall authenticate and deliver in exchange
for such temporary Notes an equal aggregate principal amount of
definitive Notes. Such exchange shall be made by the Company at
its own expense and without any charge therefor. Until so
exchanged, the temporary Notes shall in all respects be entitled
to the same benefits and subject to the same limitations under
this Indenture as definitive Notes authenticated and delivered
hereunder.
Section 2.8 Cancellation of Notes Paid, Etc. All Notes
surrendered for the purpose of payment, redemption, conversion,
exchange or registration of transfer, shall, if surrendered to
the Company or any paying agent or any Note registrar or any
conversion agent, be surrendered to the Trustee and promptly
canceled by it, or, if surrendered to the Trustee, shall be
promptly canceled by it, and no Notes shall be issued in lieu
thereof except as expressly permitted by any of the provisions of
this Indenture. The Trustee shall destroy canceled Notes (unless
the Company directs it to do otherwise) and, after such
destruction, shall, if requested by the Company, deliver a
certificate of such destruction to the Company. If the Company
shall acquire any of the Notes, such acquisition shall not
operate as a redemption or satisfaction of the indebtedness
represented by such Notes unless and until the same are delivered
to the Trustee for cancellation.
ARTICLE III
REDEMPTION OF NOTES
Section 3.1 Redemption Prices. The Company may not
redeem the Notes prior to November 4, 1997. At any time on or
after November 4, 1997, the Company may, at its option, redeem
all or from time to time any part of the Notes on any date prior
to maturity, upon notice as set forth in Section 3.2, and at the
optional redemption prices set forth in the form of Note attached
as Exhibit A hereto, together with accrued interest to, but
excluding, the date fixed for redemption, except that prior to
November 3, 1998 the Notes will not be redeemable at the option
of the Company unless the Closing Price of the Common Stock shall
have exceeded the product of the Conversion Price then in effect
times 140% (rounded to the nearest cent) for 20 Trading Days
within a period of 30 consecutive Trading Days ending within five
Trading Days prior to the notice of redemption.
Section 3.2 Notice of Redemption: Selection of Notes. In
case the Company shall desire to exercise the right to redeem all
or, as the case may be, any part of the Notes pursuant to
Section 3.1, it shall fix a date for redemption and it or, at its
request, the Trustee in the name of and at the expense of the
Company, shall mail or cause to be mailed a notice of such
redemption at least 30 and not more than 60 days prior to the
date fixed for redemption to the holders of Notes so to be
redeemed as a whole or in part at their last addresses as the
same appear on the Note register (provided that if the Company
shall give such notice, it shall also give written notice, and
written notice of the Notes to be redeemed, to the Trustee).
Such mailing shall be by first class mail. The notice if mailed
in the manner herein provided shall be conclusively presumed to
have been duly given, whether or not the holder receives such
notice. In any case, failure to give such notice by mail or any
defect in the notice to the holder of any Note designated for
redemption as a whole or in part shall not affect the validity of
the proceedings for the redemption of any other Note.
Each such notice of redemption shall specify the aggregate
principal amount of Notes to be redeemed, the date fixed for
redemption, the redemption price at which Notes are to be
redeemed, the place or places of payment, that payment will be
made upon presentation and surrender of such Notes, that interest
accrued to the date fixed for redemption will be paid as
specified in said notice, and that on and after said date
interest thereon or on the portion thereof to be redeemed will
cease to accrue. Such notice shall also state the current
Conversion Price and the date on which the right to convert such
Notes or portions thereof into Common Stock will expire. If
fewer than all the Notes are to be redeemed, the notice of
redemption shall identify the Notes to be redeemed. In case any
Note is to be redeemed in part only, the notice of redemption
shall state the portion of the principal amount thereof to be
redeemed and shall state that on and after the date fixed for
redemption, upon surrender of such Note, a new Note or Notes in
principal amount equal to the unredeemed portion thereof will be
issued.
On or prior to the redemption date specified in the notice
of redemption given as provided in this Section 3.2, the Company
will deposit with the Trustee or with one or more paying agents
(or, if the Company is acting as its own paying agent, set aside,
segregate and hold in trust as provided in Section 5.4) an amount
of money sufficient to redeem on the redemption date all the
Notes (or portions thereof) so called for redemption (other than
those theretofore surrendered for conversion into Common Stock)
at the appropriate redemption price, together with accrued
interest to, but excluding, the date fixed for redemption;
provided that if such payment is made on the redemption date it
must be received by the Trustee or paying agent, as the case may
be, by 10:00 a.m. New York City time, on such date. If any Note
called for redemption is converted pursuant hereto, any money
deposited with the Trustee or any paying agent or so segregated
and held in trust for the redemption of such Note shall be paid
to the Company upon its written request, or, if then held by the
Company shall be discharged from such trust. If fewer than all
the Notes are to be redeemed, the Company will give the Trustee
written notice in the form of an Officers' Certificate not fewer
than forty-five (45) days (or such shorter period of time as may
be acceptable to the Trustee) prior to the redemption date as to
the aggregate principal amount of Notes to be redeemed.
If fewer than all the Notes are to be redeemed, the Trustee
shall select the Notes or portions thereof to be redeemed (in
principal amounts of $1,000 or integral multiples thereof), by
lot or, in its discretion, on a pro rata basis. If any Note
selected for partial redemption is converted in part after such
selection, the converted portion of such Note shall be deemed (so
far as may be) to be the portion to be selected for redemption.
The Notes (or portions thereof) so selected shall be deemed duly
selected for redemption for all purposes hereof, notwithstanding
that any such Note is converted as a whole or in part before the
mailing of the notice of redemption.
Upon any redemption of less than all Notes, the Company and
the Trustee may (but need not) treat as outstanding any Notes
surrendered for conversion during the period of fifteen (15) days
next preceding the mailing of a notice of redemption and may (but
need not) treat as outstanding any Note authenticated and
delivered during such period in exchange for the unconverted
portion of any Note converted in part during such period.
Section 3.3 Payment of Notes Called for Redemption. If
notice of redemption has been given as above provided, the Notes
or portion of Notes with respect to which such notice has been
given shall, unless converted into Common Stock pursuant to the
terms hereof, become due and payable on the (but excluding) date
and at the place or places stated in such notice at the
applicable redemption price, together with interest accrued to
(but excluding) the date fixed for redemption, and on and after
said date (unless the Company shall default in the payment of
such Notes at the redemption price, together with interest
accrued to said date) interest on the Notes or portion of Notes
so called for redemption shall cease to accrue and such Notes
shall cease after the close of business on the Business Day next
preceding the date fixed for redemption to be convertible into
Common Stock and, except as provided in Sections 8.5 and 13.4, to
be entitled to any benefit or security under this Indenture, and
the holders thereof shall have no right in respect of such Notes
except the right to receive the redemption price thereof and
unpaid interest to (but excluding) the date fixed for redemption.
On presentation and surrender of such Notes at a place of payment
in said notice specified, the said Notes or the specified
portions thereof shall be paid and redeemed by the Company at the
applicable redemption price, together with interest accrued
thereon to (but excluding) the date fixed for redemption;
provided that, if the applicable redemption date is an interest
payment date, the semi-annual payment of interest becoming due on
such date shall be payable to the holders of such Notes
registered as such on the relevant record date instead of the
holders surrendering such Notes for redemption on such date.
Upon presentation of any Note redeemed in part only, the
Company shall execute and the Trustee shall authenticate and
deliver to the holder thereof, at the expense of the Company, a
new Note or Notes, of authorized denominations, in principal
amount equal to the unredeemed portion of the Notes so presented.
Notwithstanding the foregoing, the Trustee shall not redeem
any Notes or mail any notice of optional redemption during the
continuance of a default in payment of interest or premium on the
Notes or of any Event of Default of which, in the case of any
Event of Default other than under Sections 7.1(a) or 7.1(b), a
Responsible Officer of the Trustee has knowledge. If any Note
called for redemption shall not be so paid upon surrender thereof
for redemption, the principal and premium, if any, shall, until
paid or duly provided for, bear interest from the date fixed for
redemption at the rate borne by the Note and such Note shall
remain convertible into Common Stock until the principal and
premium, if any, shall have been paid or duly provided for.
Section 3.4 Conversion Arrangement on Call for
Redemption. In connection with any redemption of Notes, the
Company may arrange for the purchase and conversion of any Notes
by an agreement with one or more investment bankers or other
purchasers to purchase such Notes by paying to the Trustee in
trust for the Noteholders, on or before the date fixed for
redemption, an amount not less than the applicable redemption
price, together with interest accrued to (but excluding) the date
fixed for redemption, of such Notes. Notwithstanding anything to
the contrary contained in this Article III, the obligation of the
Company to pay the redemption price of such Notes, together with
interest accrued to (but excluding) the date fixed for
redemption, shall be deemed to be satisfied and discharged to the
extent such amount is so paid by such purchasers. If such an
agreement is entered into, a copy of which will be filed with the
Trustee prior to the date fixed for redemption, any Notes not
duly surrendered for conversion by the holders thereof may, at
the option of the Company, be deemed, to the fullest extent
permitted by law, acquired by such purchasers from such holders
and (notwithstanding anything to the contrary contained in
Article XV) surrendered by such purchasers for conversion, all as
of immediately prior to the close of business on the date fixed
for redemption (and the right to convert any such Notes shall be
extended through such time), subject to payment of the above
amount as aforesaid. At the direction of the Company, the
Trustee shall hold and dispose of any such amount paid to it in
the same manner as it would monies deposited with it by the
Company for the redemption of Notes. Without the Trustee's prior
written consent, no arrangement between the Company and such
purchasers for the purchase and conversion of any Notes shall
increase or otherwise affect any of the powers, duties,
responsibilities or obligations of the Trustee as set forth in
this Indenture, and the Company agrees to indemnify the Trustee
from, and hold it harmless against, any loss, liability or
expense arising out of or in connection with any such arrangement
for the purchase and conversion of any Notes between the Company
and such purchasers to which the Trustee has not consented in
writing, including the costs and expenses, including reasonable
legal fees, incurred by the Trustee in the defense of any claim
or liability arising out of or in connection with the exercise or
performance of any of its powers, duties, responsibilities or
obligations under this Indenture.
Section 3.5 Redemption at Option of Holders.
(a) If there shall occur a Fundamental Change, then
each Noteholder shall have the right, at such holder's
option, to require the Company to redeem all of such
holder's Notes, or any portion thereof that is an integral
multiple of $1,000 principal amount, on the date (the
"Repurchase Date") that is 30 days after the date of the
Company Notice (as defined in Section 3.5(b) below) of such
Fundamental Change (or, if such 30th day is not a Business
Day, the next succeeding Business Day). Such repayment
shall be made at the following prices (expressed as
percentages of the principal amount) in the event of a
Fundamental Change occurring during the 12-month period
beginning November 1:
<TABLE>
<CAPTION>
Year Percentage Year Percentage
<S> <C> <C> <C>
1995 105.250% 1999 102.250%
1996 104.500% 2000 101.500%
1997 103.750% 2001 100.750%
1998 103.000%
</TABLE>
and 100% at November 1, 2002; provided that if the
Applicable Price with respect to the Fundamental Change is
less than the Reference Market Price, the Company shall
redeem such Notes at a price equal to the foregoing
redemption price multiplied by the fraction obtained by
dividing the Applicable Price by the Reference Market Price;
provided that if such repayment date is May 1 or November 1,
then the interest payable on such date shall be paid to the
holder of record of the Note on the next preceding April 15
or October 15. In each case, the Company shall also pay to
such holders accrued interest to, but excluding, the
Repurchase Date on the redeemed Notes.
Upon presentation of any Note redeemed in part only,
the Company shall execute and the Trustee shall authenticate
and deliver to the holder thereof, at the expense of the
Company, a new Note or Notes, of authorized denominations,
in principal amount equal to the unredeemed portion of the
Notes so presented.
(b) On or before the tenth day after the occurrence of
a Fundamental Change, the Company, or, at its request (which
must be received by the Trustee at least five Business Days
prior to the date the Trustee is requested to give notice as
described below), the Trustee in the name of and at the
expense of the Company, shall mail or cause to be mailed to
all holders of record on the date of the Fundamental Change
a notice (the "Company Notice") of the occurrence of such
Fundamental Change and of the redemption right at the option
of the holders arising as a result thereof. Such notice
shall be mailed in the manner and with the effect set forth
in the first paragraph of Section 3.2. The Company shall
also deliver a copy of the Company Notice to the Trustee at
such time as it is mailed to Noteholders.
Each Company Notice shall specify the circumstances
constituting the Fundamental Change, the Repurchase Date,
the price at which the Company shall be obligated to redeem
Notes, the latest time on the Repurchase Date by which the
holder must exercise the redemption right (the "Fundamental
Change Expiration Time"), that the holder shall have the
right to withdraw any Notes surrendered prior to the
Fundamental Change Expiration Time, a description of the
procedure which a Noteholder must follow to exercise such
redemption right and to withdraw any surrendered Notes, the
place or places where the holder is to surrender such
holder's Notes, and the amount of interest accrued on each
Note to the Repurchase Date.
No failure of the Company to give the foregoing notices
and no defect therein shall limit the Noteholders'
redemption rights or affect the validity of the proceedings
for the repurchase of the Notes pursuant to this
Section 3.5.
(c) For a Note to be so repaid at the option of the
holder, the Company must receive at the office or agency of
the Company maintained for that purpose in the Borough of
Manhattan, The City of New York or, at the option of such
holder, the Corporate Trust Office, such Note with the form
entitled "Option to Elect Repayment Upon A Fundamental
Change" on the reverse thereof duly completed, together with
such Notes duly endorsed for transfer, on or before the
Fundamental Change Expiration Time. All questions as to the
validity, eligibility (including time of receipt) and
acceptance of any Note for repayment shall be determined by
the Company, whose determination shall be final and binding
absent manifest error.
(d) On or prior to the Repurchase Date, the Company
will deposit with the Trustee or with one or more paying
agents (or, if the Company is acting as its own paying
agent, set aside, segregate and hold in trust as provided in
Section 5.4) an amount of money sufficient to repay on the
Repurchase Date all the Notes to be repaid on such date at
the appropriate redemption price, together with accrued
interest to (but excluding) the Repurchase Date; provided
that if such payment is made on the Repurchase Date it must
be received by the Trustee or paying agent, as the case may
be, by 10:00 a.m. New York City time, on such date. Payment
for Notes surrendered for redemption (and not withdrawn)
prior to the Fundamental Change Expiration Time will be made
promptly (but in no event more than three Business Days)
following the Repurchase Date by mailing checks for the
amount payable to the holders of such Notes entitled thereto
as they shall appear on the registry books of the Company.
ARTICLE IV
SUBORDINATION OF NOTES
Section 4.1 Agreement of Subordination. The Company
covenants and agrees, and each holder of Notes issued hereunder
by his acceptance thereof likewise covenants and agrees, that all
Notes shall be issued subject to the provisions of this
Article IV; and each Person holding any Note, whether upon
original issue or upon transfer, assignment or exchange thereof,
accepts and agrees to be bound by such provisions.
The payment of the principal of, premium, if any, and
interest on all Notes (including, but not limited to, the
redemption price with respect to the Notes called for redemption
in accordance with Section 3.2 or submitted for redemption in
accordance with Section 3.5, as the case may be, as provided in
the Indenture) issued hereunder shall, to the extent and in the
manner hereinafter set forth, be subordinated and subject in
right of payment to the prior payment in full of all Senior
Indebtedness, whether outstanding at the date of this Indenture
or thereafter incurred.
No provision of this Article IV shall prevent the occurrence
of any default or Event of Default hereunder.
Section 4.2 Payments to Noteholders. No payment shall be
made with respect to the principal of, or premium, if any, or
interest on the Notes (including, but not limited to, the
redemption price with respect to the Notes to be called for
redemption in accordance with Section 3.2 or submitted for
redemption in accordance with Section 3.5, as the case may be, as
provided in the Indenture), except payments and distributions
made by the Trustee as permitted by the first or second paragraph
of Section 4.5, if:
(i) a default in the payment of principal, premium,
interest, rent or other obligations due on any Senior
Indebtedness occurs and is continuing (or, in the case of
Senior Indebtedness for which there is a period of grace, in
the event of such a default that continues beyond the period
of grace, if any, specified in the instrument or lease
evidencing such Senior Indebtedness), unless and until such
default shall have been cured or waived or shall have ceased
to exist; or
(ii) a default, other than a payment default, on a
Designated Senior Indebtedness occurs and is continuing that
then permits holders of such Designated Senior Indebtedness
to accelerate its maturity and the Trustee receives a notice
of the default (a "Payment Blockage Notice") from a Person
who may give it pursuant to Section 4.5 hereof.
If the Trustee receives any Payment Blockage Notice pursuant
to clause (ii) above, no subsequent Payment Blockage Notice shall
be effective for purposes of this Section unless and until (A) at
least 365 days shall have elapsed since the effectiveness of the
immediately prior Payment Blockage Notice, and (B) all scheduled
payments of principal, premium, if any, and interest on the Notes
that have come due have been paid in full in cash. No
nonpayment default that existed or was continuing on the date of
delivery of any Payment Blockage Notice to the Trustee shall be,
or be made, the basis for a subsequent Payment Blockage Notice.
The Company may and shall resume payments on and
distributions in respect of the Notes upon the earlier of:
(1) the date upon which the default is cured or waived, or
(2) in the case of a default referred to in clause (ii)
above, 179 days pass after notice is received if the maturity of
such Designated Senior Indebtedness has not been accelerated,
unless this Article IV otherwise prohibits the payment or
distribution at the time of such payment or distribution.
Upon any payment by the Company, or distribution of assets
of the Company of any kind or character, whether in cash,
property or securities, to creditors upon any dissolution or
winding-up or liquidation or reorganization of the Company,
whether voluntary or involuntary or in bankruptcy, insolvency,
receivership or other proceedings, all amounts due or to become
due upon all Senior Indebtedness shall first be paid in full in
cash or other payment satisfactory to the holders of such Senior
Indebtedness, or payment thereof in accordance with its terms
provided for in cash or other payment satisfactory to the holders
of such Senior Indebtedness before any payment is made on account
of the principal of, premium, if any, or interest on the Notes
(except payments made pursuant to Article XIII from monies
deposited with the Trustee pursuant thereto prior to commencement
of proceedings for such dissolution, winding-up, liquidation or
reorganization); and upon any such dissolution or winding-up or
liquidation or reorganization of the Company or bankruptcy,
insolvency, receivership or other proceeding, any payment by the
Company, or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, to which the
holders of the Notes or the Trustee would be entitled, except for
the provision of this Article IV, shall (except as aforesaid) be
paid by the Company or by any receiver, trustee in bankruptcy,
liquidating trustee, agent or other Person making such payment or
distribution, or by the holders of the Notes or by the Trustee
under this Indenture if received by them or it, directly to the
holders of Senior Indebtedness (pro rata to such holders on the
basis of the respective amounts of Senior Indebtedness held by
such holders, or as otherwise required by law or a court order)
or their representative or representatives, or to the trustee or
trustees under any indenture pursuant to which any instruments
evidencing any Senior Indebtedness may have been issued, as their
respective interests may appear, to the extent necessary to pay
all Senior Indebtedness in full, in cash or other payment
satisfactory to the holders of such Senior Indebtedness, after
giving effect to any concurrent payment or distribution to or for
the holders of Senior Indebtedness, before any payment or
distribution is made to the holders of the Notes or to the
Trustee.
For purposes of this Article IV, the words, "cash, property
or securities" shall not be deemed to include shares of stock of
the Company as reorganized or readjusted, or securities of the
Company or any other corporation provided for by a plan of
reorganization or readjustment, the payment of which is
subordinated at least to the extent provided in this Article IV
with respect to the Notes to the payment of all Senior
Indebtedness which may at the time be outstanding; provided that
(i) the Senior Indebtedness is assumed by the new corporation, if
any, resulting from any reorganization or readjustment, and (ii)
the rights of the holders of Senior Indebtedness (other than
leases which are not assumed by the Company or the new
corporation, as the case may be) are not, without the consent of
such holders, altered by such reorganization or readjustment.
The consolidation of the Company with, or the merger of the
Company into, another corporation or the liquidation or
dissolution of the Company following the conveyance or transfer
of its property as an entirety, or substantially as an entirety,
to another corporation upon the terms and conditions provided for
in Article XII shall not be deemed a dissolution, winding-up,
liquidation or reorganization for the purposes of this
Section 4.2 if such other corporation shall, as a part of such
consolidation, merger, conveyance or transfer, comply with the
conditions stated in Article XII.
In the event of the acceleration of the Notes because of an
Event of Default, no payment or distribution shall be made to the
Trustee or any holder of Notes in respect of the principal of,
premium, if any, or interest on the Notes (including, but not
limited to, the redemption price with respect to the Notes called
for redemption in accordance with Section 3.2 or submitted for
redemption in accordance with Section 3.5, as the case may be, as
provided in the Indenture), except payments and distributions
made by the Trustee as permitted by the first or second paragraph
of Section 4.5, until all Senior Indebtedness has been paid in
full in cash or other payment satisfactory to the holders of
Senior Indebtedness or such acceleration is rescinded in
accordance with the terms of this Indenture. If payment of the
Notes is accelerated because of an Event of Default, the Company
shall promptly notify holders of Senior Indebtedness of the
acceleration.
In the event that, notwithstanding the foregoing provisions,
any payment or distribution of assets of the Company of any kind
or character, whether in cash, property or securities (including,
without limitation, by way of setoff or otherwise), prohibited by
the foregoing, shall be received by the Trustee or the holders of
the Notes before all Senior Indebtedness is paid in full in cash
or other payment satisfactory to the holders of such Senior
Indebtedness, or provision is made for such payment thereof in
accordance with its terms in cash or other payment satisfactory
to the holders of such Senior Indebtedness, such payment or
distribution shall be held in trust for the benefit of and shall
be paid over or delivered to the holders of Senior Indebtedness
or their representative or representatives, or to the trustee or
trustees under any indenture pursuant to which any instruments
evidencing any Senior Indebtedness may have been issued, as their
respective interests may appear, as calculated by the Company,
for application to the payment of all Senior Indebtedness
remaining unpaid to the extent necessary to pay all Senior
Indebtedness in full in cash or other payment satisfactory to the
holders of such Senior Indebtedness, after giving effect to any
concurrent payment or distribution to or for the holders of such
Senior Indebtedness.
Nothing in this Section 4.2 shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 8.6. This
Section 4.2 shall be subject to the further provisions of
Section 4.5.
Section 4.3 Subrogation of Notes. Subject to the payment
in full of all Senior Indebtedness, the rights of the holders of
the Notes shall be subrogated to the extent of the payments or
distributions made to the holders of such Senior Indebtedness
pursuant to the provisions of this Article IV (equally and
ratably with the holders of all indebtedness of the Company which
by its express terms is subordinated to other indebtedness of the
Company to substantially the same extent as the Notes are
subordinated and is entitled to like rights of subrogation) to
the rights of the holders of Senior Indebtedness to receive
payments or distributions of cash, property or securities of the
Company applicable to the Senior Indebtedness until the
principal, premium, if any, and interest on the Notes shall be
paid in full; and, for the purposes of such subrogation, no
payments or distributions to the holders of the Senior
Indebtedness of any cash, property or securities to which the
holders of the Notes or the Trustee would be entitled except for
the provisions of this Article IV, and no payment over pursuant
to the provisions of this Article IV, to or for the benefit of
the holders of Senior Indebtedness by holders of the Notes or the
Trustee, shall, as between the Company, its creditors other than
holders of Senior Indebtedness, and the holders of the Notes, be
deemed to be a payment by the Company to or on account of the
Senior Indebtedness; and no payments or distributions of cash,
property or securities to or for the benefit of the holders of
the Notes pursuant to the subrogation provisions of this
Article IV, which would otherwise have been paid to the holders
of Senior Indebtedness shall be deemed to be a payment by the
Company to or for the account of the Notes. It is understood
that the provisions of this Article IV are and are intended
solely for the purposes of defining the relative rights of the
holders of the Notes, on the one hand, and the holders of the
Senior Indebtedness, on the other hand.
Nothing contained in this Article IV or elsewhere in this
Indenture or in the Notes is intended to or shall impair, as
among the Company, its creditors other than the holders of Senior
Indebtedness, and the holders of the Notes, the obligation of the
Company, which is absolute and unconditional, to pay to the
holders of the Notes the principal of (and premium, if any) and
interest on the Notes as and when the same shall become due and
payable in accordance with their terms, or is intended to or
shall affect the relative rights of the holders of the Notes and
creditors of the Company other than the holders of the Senior
Indebtedness, nor shall anything herein or therein prevent the
Trustee or the holder of any Note from exercising all remedies
otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article IV
of the holders of Senior Indebtedness in respect of cash,
property or securities of the Company received upon the exercise
of any such remedy.
Upon any payment or distribution of assets of the Company
referred to in this Article IV, the Trustee, subject to the
provisions of Section 8.1, and the holders of the Notes shall be
entitled to rely upon any order or decree made by any court of
competent jurisdiction in which such bankruptcy, dissolution,
winding-up, liquidation or reorganization proceedings are
pending, or a certificate of the receiver, trustee in bankruptcy,
liquidating trustee, agent or other person making such payment or
distribution, delivered to the Trustee or to the holders of the
Notes, for the purpose of ascertaining the persons entitled to
participate in such distribution, the holders of the Senior
Indebtedness and other indebtedness of the Company, the amount
thereof or payable thereon and all other facts pertinent thereto
or to this Article IV.
Section 4.4 Authorization to Effect Subordination. Each
holder of a Note by the holders acceptance thereof authorizes and
directs the Trustee on the holder's behalf to take such action as
may be necessary or appropriate to effectuate the subordination
as provided in this Article IV and appoints the Trustee to act as
the holder's attorney-in-fact for any and all such purposes. If
the Trustee does not file a proper proof of claim or proof of
debt in the form required in any proceeding referred to in the
third paragraph of Section 7.2 hereof at least 30 days before the
expiration of the time to file such claim, the holders of any
Senior Indebtedness or their representatives are hereby
authorized to file an appropriate claim for and on behalf of the
holders of the Notes.
Section 4.5 Notice to Trustee. The Company shall give
prompt written notice in the form of an Officers' Certificate to
a Responsible Officer of the Trustee and to any paying agent of
any fact known to the Company which would prohibit the making of
any payment of monies to or by the Trustee or any paying agent in
respect of the Notes pursuant to the provisions of this
Article IV. Notwithstanding the provisions of this Article IV or
any other provision of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts which would
prohibit the making of any payment of monies to or by the Trustee
in respect of the Notes pursuant to the provisions of this
Article IV, unless and until a Responsible Officer of the Trustee
shall have received written notice thereof at the Corporate Trust
Office from the Company (in the form of an Officers' Certificate)
or a holder or holders of Senior Indebtedness or from any trustee
thereof; and before the receipt of any such written notice, the
Trustee, subject to the provisions of Section 8.1, shall be
entitled in all respects to assume that no such facts exist;
provided that if on a date not fewer than two Business Days prior
to the date upon which by the terms hereof any such monies may
become payable for any purpose (including, without limitation,
the payment of the principal of, or premium, if any, or interest
on any Note) the Trustee shall not have received, with respect to
such monies, the notice provided for in this Section 4.5, then,
anything herein contained to the contrary notwithstanding, the
Trustee shall have full power and authority to receive such
monies and to apply the same to the purpose for which they were
received, and shall not be affected by any notice to the contrary
which may be received by it on or after such prior date.
Notwithstanding anything in this Article IV to the contrary,
nothing shall prevent (a) any payment by the Company or the
Trustee to the Trustee or Noteholders of amounts in connection
with a redemption of Notes (including a redemption pursuant to
Section 3.5) if (i) notice of such redemption has been given
pursuant to Article III prior to the receipt by the Trustee of
written notice as aforesaid, and (ii) such notice of redemption
is given not earlier than sixty (60) days before the redemption
date or (b) any payment by the Trustee to the Noteholders of
monies deposited with it pursuant to Section 13.1, and any such
payment shall not be subject to the provisions of Section 4.1 or
4.2.
The Trustee, subject to the provisions of Section 8.1, shall
be entitled to rely on the delivery to it of a written notice by
a person representing himself to be a holder of Senior
Indebtedness (or a trustee on behalf of such holder) to establish
that such notice has been given by a holder of Senior
Indebtedness or a trustee on behalf of any such holder or
holders. In the event that the Trustee determines in good faith
that further evidence is required with respect to the right of
any person as a holder of Senior Indebtedness to participate in
any payment or distribution pursuant to this Article IV, the
Trustee may request such person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior
Indebtedness held by such person, the extent to which such person
is entitled to participate in such payment or distribution and
any other facts pertinent to the rights of such person under this
Article IV, and if such evidence is not furnished the Trustee may
defer any payment to such person pending judicial determination
as to the right of such person to receive such payment.
Section 4.6 Trustee's Relation to Senior Indebtedness.
The Trustee in its individual capacity shall be entitled to all
the rights set forth in this Article IV in respect of any Senior
Indebtedness at any time held by it, to the same extent as any
other holder of Senior Indebtedness, and nothing in Section 8.13
or elsewhere in this Indenture shall deprive the Trustee of any
of its rights as such holder.
With respect to the holders of Senior Indebtedness, the
Trustee undertakes to perform or to observe only such of its
covenants and obligations as are specifically set forth in this
Article IV, and no implied covenants or obligations with respect
to the holders of Senior Indebtedness shall be read into this
Indenture against the Trustee. The Trustee shall not be deemed
to owe any fiduciary duty to the holders of Senior Indebtedness
and, subject to the provisions of Section 8.1, the Trustee shall
not be liable to any holder of Senior Indebtedness if it shall
pay over or deliver to holders of Notes, the Company or any other
person money or assets to which any holder of Senior Indebtedness
shall be entitled by virtue of this Article IV or otherwise.
Section 4.7 No Impairment of Subordination. No right of
any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any
way be prejudiced or impaired by any act or failure to act on the
part of the Company or by any act or failure to act, in good
faith, by any such holder, or by any noncompliance by the Company
with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof which any such holder may
have or otherwise be charged with.
Section 4.8 Certain Conversions Deemed Payment. For the
purposes of this Article IV only, (1) the issuance and delivery
of junior securities upon conversion of Notes in accordance with
Article XV shall not be deemed to constitute a payment or
distribution on account of the principal of (or premium, if any)
or interest on Notes or on account of the purchase or other
acquisition of Notes, and (2) the payment, issuance or delivery
of cash, property or securities (other than junior securities)
upon conversion of a Note shall be deemed to constitute payment
on account of the principal of such Note. For the purposes of
this Section 4.8, the term "junior securities" means (a) shares
of any stock of any class of the Company, or (b) securities of
the Company which are subordinated in right of payment to all
Senior Indebtedness which may be outstanding at the time of
issuance or delivery of such securities to substantially the same
extent as, or to a greater extent than, the Notes are so
subordinated as provided in this Article. Nothing contained in
this Article IV or elsewhere in this Indenture or in the Notes is
intended to or shall impair, as among the Company, its creditors
other than holders of Senior Indebtedness and the Noteholders,
the right, which is absolute and unconditional, of the Holder of
any Note to convert such Note in accordance with Article XV.
Section 4.9 Article Applicable to Paying Agents. If at
any time any paying agent other than the Trustee shall have been
appointed by the Company and be then acting hereunder, the term
"Trustee" as used in this Article shall (unless the context
otherwise requires) be construed as extending to and including
such paying agent within its meaning as fully for all intents and
purposes as if such paying agent were named in this Article in
addition to or in place of the Trustee; provided, however, that
the first paragraph of Section 4.5 shall not apply to the Company
or any Affiliate of the Company if it or such Affiliate acts as
paying agent.
Section 4.10 Senior Indebtedness Entitled to Rely. The
holders of Senior Indebtedness (including, without limitation,
Designated Senior Indebtedness) shall have the right to rely upon
this Article IV, and no amendment or modification of the
provisions contained herein shall diminish the rights of such
holders unless such holders shall have agreed in writing thereto.
ARTICLE V
PARTICULAR COVENANTS OF THE COMPANY
Section 5.1 Payment of Principal, Premium and Interest.
The Company covenants and agrees that it will duly and punctually
pay or cause to be paid the principal of and premium, if any, and
interest on each of the Notes at the places, at the respective
times and in the manner provided herein and in the Notes. Each
installment of interest on the Notes due on any semi-annual
interest payment date may be paid by mailing checks for the
interest payable to or upon the written order of the holders of
Notes entitled thereto as they shall appear on the registry books
of the Company; provided, that; with respect to any holder of
Notes with an aggregate principal amount equal to or in excess of
$5,000,000, at the request of such holder in writing to the
Company (who shall then furnish notice to such effect to the
Trustee), interest on such holder's Notes shall be paid by wire
transfer in immediately available funds in accordance with the
wire transfer instructions supplied by such holder to the Trustee
and paying agent (if different from the Trustee).
Section 5.2 Maintenance of Office or Agency. The Company
will maintain in the Borough of Manhattan, The City of New York,
an office or agency where the Notes may be surrendered for
registration of transfer or exchange or for presentation for
payment or for conversion or redemption and where notices and
demands to or upon the Company in respect of the Notes and this
Indenture may be served. The Company will give prompt written
notice to the Trustee of the location, and any change in the
location, of such office or agency not designated or appointed by
the Trustee. If at any time the Company shall fail to maintain
any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust
Office or the office or agency of the Trustee in the Borough of
Manhattan, The City of New York.
The Company may also from time to time designate one or more
other offices or agencies where the Notes may be presented or
surrendered for any or all such purposes and may from time to
time rescind such designations; provided that no such designation
or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in the Borough of
Manhattan, The City of New York, for such purposes. The Company
will give prompt written notice to any such designation or
rescission and of any change in the location of any such other
office or agency.
The Company hereby initially designates the Trustee as
paying agent, Note registrar, Custodian and conversion agent, and
each of the Corporate Trust Office of the Trustee and the office
of the Trustee in the Borough of Manhattan, The City of New York
(which shall initially be State Street Bank and Trust Company,
N.A., an Affiliate of the Trustee located at 61 Broadway,
Concourse Level, Corporate Trust Window, New York, New York
10006), one such office or agency of the Company for each of the
aforesaid purposes.
So long as the Trustee is the Note registrar, the Trustee
agrees to mail, or cause to be mailed, the notices set forth in
Section 8.10(a) and the third paragraph of Section 8.11.
Section 5.3 Appointments to Fill Vacancies in Trustee's
Office. The Company, whenever necessary to avoid or fill a
vacancy in the office of Trustee, will appoint, in the manner
provided in Section 8.10, a Trustee, so that there shall at all
times be a Trustee hereunder.
Section 5.4 Provisions as to Paying Agent.
(a) If the Company shall appoint a paying agent other
than the Trustee, or if the Trustee shall appoint such a
paying agent, it will cause such paying agent to execute and
deliver to the Trustee an instrument in which such agent
shall agree with the Trustee, subject to the provisions of
this Section 5.4:
(1) that it will hold all sums held by it as such
agent for the payment of the principal of and premium,
if any, or interest on the Notes (whether such sums
have been paid to it by the Company or by any other
obligor on the Notes) in trust for the benefit of the
holders of the Notes;
(2) that it will give the Trustee notice of any
failure by the Company (or by any other obligor on the
Notes) to make any payment of the principal of and
premium, if any, or interest on the Notes when the same
shall be due and payable; and
(3) that at any time during the continuance of an
Event of Default, upon request of the Trustee, it will
forthwith pay to the Trustee all sums so held in trust.
The Company shall, on or before each due date of the
principal of, premium, if any, or interest on the Notes,
deposit with the paying agent a sum sufficient to pay such
principal, premium, if any, or interest, and (unless such
paying agent is the Trustee) the Company will promptly
notify the Trustee of any failure to take such action;
provided that if such deposit is made on the due date, such
deposit shall be received by the paying agent by 10:00 a.m.
New York City time, on such date.
(b) If the Company shall act as its own paying agent,
it will, on or before each due date of the principal of,
premium, if any, or interest on the Notes, set aside,
segregate and hold in trust for the benefit of the holders
of the Notes a sum sufficient to pay such principal,
premium, if any, or interest so becoming due and will notify
the Trustee of any failure to take such action and of any
failure by the Company (or any other obligor under the
Notes) to make any payment of the principal of, premium, if
any, or interest on the Notes when the same shall become due
and payable.
(c) Anything in this Section 5.4 to the contrary
notwithstanding, the Company may, at any time, for the
purpose of obtaining a satisfaction and discharge of this
Indenture, or for any other reason, pay or cause to be paid
to the Trustee all sums held in trust by the Company or any
paying agent hereunder as required by this Section 5.4, such
sums to be held by the Trustee upon the trusts herein
contained and upon such payment by the Company or any paying
agent to the Trustee, the Company or such paying agent shall
be released from all further liability with respect to such
sums.
(d) Anything in this Section 5.4 to the contrary
notwithstanding, the agreement to hold sums in trust as
provided in this Section 5.4 is subject to Sections 13.3 and
13.4.
Section 5.5 Corporate Existence. Subject to Article XII,
the Company will do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate
existence.
Section 5.6 Rule 144A Information Requirement. During
the period beginning on the latest date of the original issuance
of the Notes and ending on the date that is three years from such
date, the Company covenants and agrees that it shall, during any
period in which it is not subject to Section 13 or 15(d) under
the Exchange Act, make available to any holder or beneficial
holder of Notes or any Common Stock issued upon conversion
thereof which continue to be Restricted Securities in connection
with any sale thereof and any prospective purchaser of Notes or
such Common Stock from such holder or beneficial holder, the
information required pursuant to Rule 144A(d)(4) under the
Securities Act upon the request of any holder or beneficial
holder of the Notes or such Common Stock and it will take such
further action as any holder or beneficial holder of such Notes
or such Common Stock may reasonably request, all to the extent
required from time to time to enable such holder or beneficial
holder to sell its Notes or Common Stock without registration
under the Securities Act within the limitation of the exemption
provided by Rule 144A, as such Rule may be amended from time to
time. Upon the request of any holder or any beneficial holder of
the Notes or such Common Stock, the Company will deliver to such
holder a written statement as to whether it has complied with
such requirements.
Section 5.7 Stay, Extension and Usury Laws. The Company
covenants (to the extent that it may lawfully do so) that it
shall not at any time insist upon, plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay,
extension or usury law or other law which would prohibit or
forgive the Company from paying all or any portion of the
principal of or interest on the Notes as contemplated herein,
wherever enacted, now or at any time hereafter in force, or which
may affect the covenants or the performance of this Indenture and
the Company (to the extent it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and
covenants that it will not, by resort to any such law, hinder,
delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such
power as though no such law has been enacted.
ARTICLE VI
NOTEHOLDERS' LISTS AND REPORTS BY
THE COMPANY AND THE TRUSTEE
Section 6.1 Noteholders' Lists. The Company covenants
and agrees that it will furnish or cause to be furnished to the
Trustee, semiannually, not more than fifteen (15) days after each
April 15 and October 15 in each year beginning with April 15,
1996, and at such other times as the Trustee may request in
writing, within thirty (30) days after receipt by the Company of
any such request (or such lesser time as the Trustee may
reasonably request in order to enable it to timely provide any
notice to be provided by it hereunder), a list in such form as
the Trustee may reasonably require of the names and addresses of
the holders of Notes as of a date not more than fifteen (15) days
(or such other date as the Trustee may reasonably request in
order to so provide any such notices) prior to the time such
information is furnished, except that no such list need be
furnished so long as the Trustee is acting as Note registrar.
Section 6.2 Preservation and Disclosure of Lists.
(a) The Trustee shall preserve, in as current a form
as is reasonably practicable, all information as to the
names and addresses of the holders of Notes contained in the
most recent list furnished to it as provided in Section 6.1
or maintained by the Trustee in its capacity as Note
registrar, if so acting. The Trustee may destroy any list
furnished to it as provided in Section 6.1 upon receipt of a
new list so furnished.
(b) The rights of Noteholders to communicate with
other holders of Notes with respect to their rights under
this Indenture or under the Notes, and the corresponding
rights and duties of the Trustee, shall be as provided by
the Trust Indenture Act.
(c) Every Noteholder, by receiving and holding the
same, agrees with the Company and the Trustee that neither
the Company nor the Trustee nor any agent of either of them
shall be held accountable by reason of any disclosure of
information as to names and addresses of holders of Notes
made pursuant to the Trust Indenture Act.
Section 6.3 Reports by Trustee.
(a) Within 60 days after May 15 of each year
commencing with the year 1996, the Trustee shall transmit to
holders of Notes such reports dated as of May 15 of the year
in which such reports are made concerning the Trustee and
its actions under this Indenture as may be required pursuant
to the Trust Indenture Act at the times and in the manner
provided pursuant thereto.
(b) A copy of such report shall, at the time of such
transmission to holders of Notes, be filed by the Trustee
with each stock exchange and automated quotation system upon
which the Notes are listed and with the Company. The
Company will notify the Trustee within a reasonable time
when the Notes are listed on any stock exchange and
automated quotation system.
Section 6.4 Reports by Company. The Company shall file
with the Trustee (and the Commission if at any time after the
Indenture becomes qualified under the Trust Indenture Act), and
transmit to holders of Notes, such information, documents and
other reports and such summaries thereof, as may be required
pursuant to the Trust Indenture Act at the times and in the
manner provided pursuant to such Act; provided that any such
information, documents or reports required to be filed with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act
shall be filed with the Trustee within 15 days after the same is
so required to be filed with the Commission.
ARTICLE VII
REMEDIES OF THE TRUSTEE AND NOTEHOLDERS
ON AN EVENT OF DEFAULT
Section 7.1 Events of Default. In case one or more of
the following Events of Default (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary
or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of
any administrative or governmental body) shall have occurred and
be continuing:
(a) default in the payment of any installment of
interest upon any of the Notes as and when the same shall
become due and payable, and continuance of such default for
a period of thirty (30) days, whether or not such payment is
permitted under Article IV hereof; or
(b) default in the payment of the principal of and
premium, if any, on any of the Notes as and when the same
shall become due and payable either at maturity or in
connection with any redemption pursuant to Article III, by
acceleration or otherwise, whether or not such payment is
permitted under Article IV hereof; or
(c) failure on the part of the Company duly to observe
or perform any other of the covenants or agreements on the
part of the Company in the Notes or in this Indenture (other
than a covenant or agreement a default in whose performance
or whose breach is elsewhere in this Section 7.1
specifically dealt with) continued for a period of sixty
(60) days after the date on which written notice of such
failure, requiring the Company to remedy the same, shall
have been given to the Company by the Trustee, or to the
Company and a Responsible Officer of the Trustee by the
holders of at least 25 percent in aggregate principal amount
of the Notes at the time outstanding determined in
accordance with Section 9.4; or
(d) the Company shall commence a voluntary case or
other proceeding seeking liquidation, reorganization or
other relief with respect to itself or its debts under any
bankruptcy, insolvency or other similar law now or hereafter
in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any
substantial part of its property, or shall consent to any
such relief or to the appointment of or taking possession by
any such official in an involuntary case or other proceeding
commenced against it, or shall make a general assignment for
the benefit of creditors, or shall fail generally to pay its
debts as they become due; or
(e) an involuntary case or other proceeding shall be
commenced against the Company seeking liquidation,
reorganization or other relief with respect to it or its
debts under any bankruptcy, insolvency or other similar law
now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar
official of it or any substantial part of its property, and
such involuntary case or other proceeding shall remain
undismissed and unstayed for a period of ninety (90)
consecutive days;
then, and in each and every such case (other than an Event of
Default specified in Section 7.1(d) or (e)), unless the principal
of all of the Notes shall have already become due and payable,
either the Trustee or the holders of not less than 25 percent in
aggregate principal amount of the Notes then outstanding
hereunder determined in accordance with Section 9.4, by notice in
writing to the Company (and to the Trustee if given by
Noteholders), may declare the principal of all the Notes and the
interest accrued thereon to be due and payable immediately, and
upon any such declaration the same shall become and shall be
immediately due and payable, anything in this Indenture or in the
Notes contained to the contrary notwithstanding. If an Event of
Default specified in Section 7.1(d) or (e) occurs, the principal
of all the Notes and the interest accrued thereon shall be
immediately and automatically due and payable without necessity
of further action. This provision, however, is subject to the
conditions that if, at any time after the principal of the Notes
shall have been so declared due and payable, and before any
judgment or decree for the payment of the monies due shall have
been obtained or entered as hereinafter provided, the Company
shall pay or shall deposit with the Trustee a sum sufficient to
pay all matured installments of interest upon all Notes and the
principal of and premium, if any, on any and all Notes which
shall have become due otherwise than by acceleration (with
interest on overdue installments of interest (to the extent that
payment of such interest is enforceable under applicable law) and
on such principal and premium, if any, at the rate borne by the
Notes, to the date of such payment or deposit) and amounts due to
the Trustee pursuant to Section 8.6, and if any and all defaults
under this Indenture, other than the nonpayment of principal of
and premium, if any, and accrued interest on Notes which shall
have become due by acceleration, shall have been cured or waived
pursuant to Section 7.7 -- then and in every such case the
holders of a majority in aggregate principal amount of the Notes
then outstanding, by written notice to the Company and to the
Trustee, may waive all defaults or Events of Default and rescind
and annul such declaration and its consequences; but no such
waiver or rescission and annulment shall extend to or shall
affect any subsequent default or Event of Default, or shall
impair any right consequent thereon. The Company shall notify a
Responsible Officer of the Trustee, promptly upon becoming aware
thereof, of any Event of Default.
In case the Trustee shall have proceeded to enforce any
right under this Indenture and such proceedings shall have been
discontinued or abandoned because of such waiver or rescission
and annulment or for any other reason or shall have been
determined adversely to the Trustee, then and in every such case
the Company, the holders of Notes, and the Trustee shall be
restored respectively to their several positions and rights
hereunder, and all rights, remedies and powers of the Company,
the holders of Notes, and the Trustee shall continue as though no
such proceeding had been taken.
Section 7.2 Payments of Notes on Default: Suit Therefor.
The Company covenants that (a) in case default shall be made in
the payment of any installment of interest upon any of the Notes
as and when the same shall become due and payable, and such
default shall have continued for a period of thirty (30) days, or
(b) in case default shall be made in the payment of the principal
of or premium, if any, on any of the Notes as and when the same
shall have become due and payable, whether at maturity of the
Notes or in connection with any redemption, by or under this
Indenture declaration or otherwise -- then, upon demand of the
Trustee, the Company will pay to the Trustee, for the benefit of
the holders of the Notes, the whole amount that then shall have
become due and payable on all such Notes for principal and
premium, if any, or interest, or both, as the case may be, with
interest upon the overdue principal and premium, if any, and (to
the extent that payment of such interest is enforceable under
applicable law) upon the overdue installments of interest at the
rate borne by the Notes; and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of
collection, including reasonable compensation to the Trustee, its
agents, attorneys and counsel, and any expenses or liabilities
incurred by the Trustee hereunder other than through its
negligence or bad faith. Until such demand by the Trustee, the
Company may pay the principal of and premium, if any, and
interest on the Notes to the registered holders, whether or not
the Notes are overdue.
In case the Company shall fail forthwith to pay such amounts
upon such demand, the Trustee, in its own name and as trustee of
an express trust, shall be entitled and empowered to institute
any actions or proceedings at law or in equity for the collection
of the sums so due and unpaid, and may prosecute any such action
or proceeding to judgment or final decree, and may enforce any
such judgment or final decree against the Company or any other
obligor on the Notes and collect in the manner provided by law
out of the property of the Company or any other obligor on the
Notes wherever situated the monies adjudged or decreed to be
payable.
In the case there shall be pending proceedings for the
bankruptcy or for the reorganization of the Company or any other
obligor on the Notes under Title 11 of the United States Code, or
any other applicable law, or in case a receiver, assignee or
trustee in bankruptcy or reorganization, liquidator, sequestrator
or similar official shall have been appointed for or taken
possession of the Company or such other obligor, the property of
the Company or such other obligor, or in the case of any other
judicial proceedings relative to the Company or such other
obligor upon the Notes, or to the creditors or property of the
Company or such other obligor, the Trustee, irrespective of
whether the principal of the Notes shall then be due and payable
as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand
pursuant to the provisions of this Section 7.2, shall be entitled
and empowered, by intervention in such proceedings or otherwise,
to file and prove a claim or claims for the whole amount of
principal, premium, if any, and interest owing and unpaid in
respect of the Notes, and, in case of any judicial proceedings,
to file such proofs of claim and other papers or documents as may
be necessary or advisable in order to have the claims of the
Trustee and of the Noteholders allowed in such judicial
proceedings relative to the Company or any other obligor on the
Notes, its or their creditors, or its or their property, and to
collect and receive any monies or other property payable or
deliverable on any such claims, and to distribute the same after
the deduction of any amounts due the Trustee under Section 8.6;
and any receiver, assignee or trustee in bankruptcy or
reorganization, liquidator, custodian or similar official is
hereby authorized by each of the Noteholders to make such
payments to the Trustee, and, in the event that the Trustee shall
consent to the making of such payments directly to the
Noteholders, to pay to the Trustee any amount due it for
reasonable compensation, expenses, advances and disbursements,
including counsel fees incurred by it up to the date of such
distribution. To the extent that such payment of reasonable
compensation, expenses, advances and disbursements out of the
estate in any such proceedings shall be denied for any reason,
payment of the same shall be secured by a lien on, and shall be
paid out of, any and all distributions, dividends, monies,
securities and other property which the holders of the Notes may
be entitled to receive in such proceedings, whether in
liquidation or under any plan of reorganization or arrangement or
otherwise.
All rights of action and of asserting claims under this
Indenture, or under any of the Notes, may be enforced by the
Trustee without the possession of any of the Notes, or the
production thereof on any trial or other proceeding relative
thereto, and any such suit or proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express
trust, and any recovery of judgment shall, after provision for
the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel, be for the ratable benefit of the holders of the Notes.
In any proceedings brought by the Trustee (and in any
proceedings involving the interpretation of any provision of this
Indenture to which the Trustee shall be a party) the Trustee
shall be held to represent all the holders of the Notes, and it
shall not be necessary to make any holders of the Notes parties
to any such proceedings.
Section 7.3 Application of Monies Collected by Trustee.
Any monies collected by the Trustee pursuant to this Article VII
shall be applied in the order following, at the date or dates
fixed by the Trustee for the distribution of such monies, upon
presentation of the several Notes, and stamping thereon the
payment, if only partially paid, and upon surrender thereof, if
fully paid:
First: To the payment of all amounts due the Trustee
under Section 8.6;
Second: Subject to the provisions of Article IV, in
case the principal of the outstanding Notes shall not have
become due and be unpaid, to the payment of interest on the
Notes in default in the order of the maturity of the
installments of such interest, with interest (to the extent
that such interest has been collected by the Trustee) upon
the overdue installments of interest at the rate borne by
the Notes, such payments to be made ratably to the persons
entitled thereto;
Third: Subject to the provisions of Article IV, in
case the principal of the outstanding Notes shall have
become due, by declaration or otherwise, and be unpaid to
the payment of the whole amount then owing and unpaid upon
the Notes for principal and premium, if any, and interest,
with interest on the overdue principal and premium, if any,
and (to the extent that such interest has been collected by
the Trustee) upon overdue installments of interest at the
rate borne by the Notes; and in case such monies shall be
insufficient to pay in full the whole amounts so due and
unpaid upon the Notes, then to the payment of such principal
and premium, if any, and interest without preference or
priority of principal and premium, if any, over interest, or
of interest over principal and premium, if any, or of any
installment of interest over any other installment of
interest, or of any Note over any other Note, ratably to the
aggregate of such principal and premium, if any, and accrued
and unpaid interest; and
Fourth: Subject to the provisions of Article IV, to
the payment of the remainder, if any, to the Company or any
other person lawfully entitled thereto.
Section 7.4 Proceedings by Noteholder. No holder of any
Note shall have any right by virtue of or by availing of any
provision of this Indenture to institute any suit, action or
proceeding in equity or at law upon or under or with respect to
this Indenture, or for the appointment of a receiver, trustee,
liquidator, custodian or other similar official, or for any other
remedy hereunder, unless such holder previously shall have given
to the Trustee written notice of an Event of Default and of the
continuance thereof, as hereinbefore provided, and unless also
the holders of not less than 25 percent in aggregate principal
amount of the Notes then outstanding shall have made written
request upon the Trustee to institute such action, suit or
proceeding in its own name as Trustee hereunder and shall have
offered to the Trustee such reasonable indemnity as it may
require against the costs, expenses and liabilities to be
incurred therein or thereby, and the Trustee for sixty (60) days
after its receipt of such notice, request and offer of indemnity,
shall have neglected or refused to institute any such action,
suit or proceeding and no direction inconsistent with such
written request shall have been given to the Trustee pursuant to
Section 7.7; it being understood and intended, and being
expressly covenanted by the taker and holder of every Note with
every other taker and holder and the Trustee, that no one or more
holders of Notes shall have any right in any manner whatever by
virtue of or by availing of any provision of this Indenture to
affect, disturb or prejudice the rights of any other holder of
Notes, or to obtain or seek to obtain priority over or preference
to any other such holder, or to enforce any right under this
Indenture, except in the manner herein provided and for the
equal, ratable and common benefit of all holders of Notes (except
as otherwise provided herein). For the protection and
enforcement of this Section 7.4, each and every Noteholder and
the Trustee shall be entitled to such relief as can be given
either at law or in equity.
Notwithstanding any other provision of this Indenture and
any provision of any Note, the right of any holder of any Note to
receive payment of the principal of and premium, if any, and
interest on such Note, on or after the respective due dates
expressed in such Note, or to institute suit for the enforcement
of any such payment on or after such respective dates against the
Company shall not be impaired or affected without the consent of
such holder.
Anything in this Indenture or the Notes to the contrary
notwithstanding, the holder of any Note, without the consent of
either the Trustee or the holder of any other Note, in his own
behalf and for his own benefit, may enforce, and may institute
and maintain any proceeding suitable to enforce, his rights of
conversion as provided herein.
Section 7.5 Proceedings by Trustee. In case of an Event
of Default the Trustee may in its discretion proceed to protect
and enforce the rights vested in it by this Indenture by such
appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any of such rights, either by
suit in equity or by action at law or by proceeding in bankruptcy
or otherwise, whether for the specific enforcement of any
covenant or agreement contained in this Indenture or in aid of
the exercise of any power granted in this Indenture, or to
enforce any other legal or equitable right vested in the Trustee
by this Indenture or by law.
Section 7.6 Remedies Cumulative and Continuing. Except
as provided in Section 2.6, all powers and remedies given by this
Article VII to the Trustee or to the Noteholders shall, to the
extent permitted by law, be deemed cumulative and not exclusive
of any thereof or of any other powers and remedies available to
the Trustee or the holders of the Notes, by judicial proceedings
or otherwise, to enforce the performance or observance of the
covenants and agreements contained in this Indenture, and no
delay or omission of the Trustee or of any holder of any of the
Notes to exercise any right or power accruing upon any default or
Event of Default occurring and continuing as aforesaid shall
impair any such right or power, or shall be construed to be a
waiver of any such default or any acquiescence therein; and,
subject to the provisions of Section 7.4, every power and remedy
given by this Article VII or by law to the Trustee or to the
Noteholders may be exercised from time to time, and as often as
shall be deemed expedient, by the Trustee or by the Noteholders.
Section 7.7 Direction of Proceedings and Waiver of
Defaults by Majority of Noteholders. The holders of a majority
in aggregate principal amount of the Notes at the time
outstanding determined in accordance with Section 9.4 shall 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; provided, however,
that (a) such direction shall not be in conflict with any rule of
law or with this Indenture, and (b) the Trustee may take any
other action deemed proper by the Trustee which is not
inconsistent with such direction. The holders of a majority in
aggregate principal amount of the Notes at the time outstanding
determined in accordance with Section 9.4 may on behalf of the
holders of all of the Notes waive any past default or Event of
Default hereunder and its consequences except (i) a default in
the payment of interest or premium, if any, on, or the principal
of, the Notes, (ii) a failure by the Company to convert any Notes
into Common Stock, (iii) a default in the payment of redemption
price pursuant to Article III or (iv) a default in respect of a
covenant or provisions hereof which under Article XI cannot be
modified or amended without the consent of the holders of all
Notes then outstanding. Upon any such waiver the Company, the
Trustee and the holders of the Notes shall be restored to their
former positions and rights hereunder; but no such waiver shall
extend to any subsequent or other default or Event of Default or
impair any right consequent thereon. Whenever any default or
Event of Default hereunder shall have been waived as permitted by
this Section 7.7, said default or Event of Default shall for all
purposes of the Notes and this Indenture be deemed to have been
cured and to be not continuing; but no such waiver shall extend
to any subsequent or other default or Event of Default or impair
any right consequent thereon.
Section 7.8 Notice of Defaults. The Trustee shall,
within ninety (90) days after it has knowledge of the occurrence
of a default, mail to all Noteholders, as the names and addresses
of such holders appear upon the Note register, notice of all
defaults known to a Responsible Officer, unless such defaults
shall have been cured or waived before the giving of such notice;
and provided that, except in the case of default in the payment
of the principal of, or premium, if any, or interest on any of
the Notes, the Trustee shall be protected in withholding such
notice if and so long as a trust committee of directors and/or
Responsible Officers of the Trustee in good faith determine that
the withholding of such notice is in the interests of the
Noteholders.
Section 7.9 Undertaking to Pay Costs. All parties to
this Indenture agree, and each holder of any Note by his
acceptance thereof shall be deemed to have agreed, that any court
may, in its discretion, require, in any suit for the enforcement
of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken or omitted by it as
Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit and that such court may
in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having
due regard to the merits and good faith of the claims or defenses
made by such party litigant; provided that the provisions of this
Section 7.9 (to the extent permitted by law) shall not apply to
any suit instituted by the Trustee, to any suit instituted by any
Noteholder, or group of Noteholders, holding in the aggregate
more than ten percent in principal amount of the Notes at the
time outstanding determined in accordance with Section 9.4, or to
any suit instituted by any Noteholder for the enforcement of the
payment of the principal of or premium, if any, or interest on
any Note on or after the due date expressed in such Note or to
any suit for the enforcement of the right to convert any Note in
accordance with the provisions of Article XV.
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.1 Duties and Responsibilities of Trustee. The
Trustee, prior to the occurrence of an Event of Default and after
the curing of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture. In case an Event of
Default has occurred (which has not been cured or waived) the
Trustee shall exercise such of the rights and powers vested in it
by this Indenture, and use the same degree of care and skill in
their exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
No provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct, except
that
(a) prior to the occurrence of an Event of Default and
after the curing or waiving of all Events of Default which
may have occurred:
(1) the duties and obligations of the Trustee
shall be determined solely by the express provisions of
this Indenture and the Trust Indenture Act, and the
Trustee shall not be liable except for the performance
of such duties and obligations as are specifically set
forth in this Indenture and no implied covenants or
obligations shall be read into this Indenture and the
Trust Indenture Act against the Trustee; and
(2) in the absence of bad faith and willful
misconduct on the part of the Trustee, the Trustee may
conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein,
upon any certificates or opinions furnished to the
Trustee and conforming to the requirements of this
Indenture; but, in the case of any such certificates or
opinions which by any provisions hereof are
specifically required to be furnished to the Trustee,
the Trustee shall be under a duty to examine the same
to determine whether or not they conform to the
requirements of this Indenture;
(b) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer or
Officers of the Trustee, unless the Trustee was negligent in
ascertaining the pertinent facts;
(c) the Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith
in accordance with the direction of the holders of not less
than a majority in principal amount of the Notes at the time
outstanding determined as provided in Section 9.4 relating
to the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee, under this
Indenture; and
(d) whether or not therein provided, every provision
of this Indenture relating to the conduct or affecting the
liability of, or affording protection to, the Trustee shall
be subject to the provisions of this Section.
None of the provisions contained in this Indenture shall
require the Trustee to expend or risk its own funds or otherwise
incur personal financial liability in the performance of any of
its duties or in the exercise of any of its rights or powers, if
there is reasonable ground for believing that the repayment of
such funds or adequate indemnity against such risk or liability
is not reasonably assured to it.
Section 8.2 Reliance on Documents, Opinions. Etc. Except
as otherwise provided in Section 8.1:
(a) the Trustee may rely and shall be protected in
acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent,
order, bond, debenture, note, coupon or other paper or
document believed by it in good faith to be genuine and to
have been signed or presented by the proper party or
parties;
(b) any request, direction, order or demand of the
Company mentioned herein shall be sufficiently evidenced by
an Officers' Certificate (unless other evidence in respect
thereof be herein specifically prescribed); and any
resolution of the Board of Directors may be evidenced to the
Trustee by a copy thereof certified by the Secretary or an
Assistant Secretary of the Company;
(c) the Trustee may consult with counsel and any
advice or Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken
or omitted by it hereunder in good faith and in accordance
with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Indenture at the request, order or direction of any of the
Noteholders pursuant to the provisions of this Indenture,
unless such Noteholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses
and liabilities which may be incurred therein or thereby;
(e) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond,
debenture or other paper or document, but the Trustee, in
its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further
inquiry or investigation, it shall be entitled to examine
the books, records and premises of the Company, personally
or by agent or attorney; provided, however, that if the
payment within a reasonable time to the Trustee of the
costs, expenses or liabilities likely to be incurred by it
in the making of such investigation is, in the opinion of
the Trustee, not reasonably assured to the Trustee by the
security afforded to it by the terms of this Indenture, the
Trustee may require reasonable indemnity against such
expenses or liability as a condition to so proceeding; the
reasonable expenses of every such examination shall be paid
by the Company or, if paid by the Trustee or any predecessor
Trustee, shall be repaid by the Company upon demand; and
(f) the Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either
directly or by or through agents or attorneys and the
Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed by
it with due care hereunder.
Section 8.3 No Responsibility for Recitals, Etc. The
recitals contained herein and in the Notes (except in the
Trustee's certificate of authentication) shall be taken as the
statements of the Company, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee
makes no representations as to the validity or sufficiency of
this Indenture or of the Notes. The Trustee shall not be
accountable for the use or application by the Company of any
Notes or the proceeds of any Notes authenticated and delivered by
the Trustee in conformity with the provisions of this Indenture.
Section 8.4 Trustee, Paying Agents, Conversion Agents or
Registrar May Own Notes. The Trustee, any paying agent, any
conversion agent or Note registrar, in its individual or any
other capacity, may become the owner or pledgee of Notes with the
same rights it would have if it were not Trustee, paying agent,
conversion agent or Note registrar.
Section 8.5 Monies to Be Held in Trust. Subject to the
provisions of Section 13.4, all monies received by the Trustee
shall, until used or applied as herein provided, be held in trust
for the purposes for which they were received. Money held by the
Trustee in trust hereunder need not be segregated from other
funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it
hereunder except as may be agreed from time to time by the
Company and the Trustee.
Section 8.6 Compensation and Expenses of Trustee. The
Company covenants and agrees to pay to the Trustee from time to
time, and the Trustee shall be entitled to, reasonable
compensation for all services rendered by it hereunder in any
capacity (which shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust), and
the Company will pay or reimburse the Trustee upon its request
for all reasonable expenses, disbursements and advances
reasonably incurred or made by the Trustee in accordance with any
of the provisions of this Indenture (including the reasonable
compensation and the expenses and disbursements of its counsel
and of all persons not regularly in its employ) except any such
expense, disbursement or advance as may arise from its
negligence, willful misconduct, recklessness or bad faith. The
Company also covenants to indemnify the Trustee in any capacity
under this Indenture and its agents and any authenticating agent
for, and to hold them harmless against, any loss, liability or
expense incurred without negligence, willful misconduct,
recklessness, or bad faith on the part of the Trustee or such
agent or authenticating agent, as the case may be, and arising
out of or in connection with the acceptance or administration of
this trust or in any other capacity hereunder, including the
costs and expenses of defending themselves against any claim of
liability in the premises. The obligations of the Company under
this Section 8.6 to compensate or indemnify the Trustee and to
pay or reimburse the Trustee for expenses, disbursements and
advances shall be secured by a lien prior to that of the Notes
upon all property and funds held or collected by the Trustee as
such, except funds held in trust for the benefit of the holders
of particular Notes. The obligation of the Company under this
Section shall survive the satisfaction and discharge of this
Indenture.
When the Trustee and its agents and any authenticating agent
incur expenses or render services after an Event of Default
specified in Section 7.1(d) or (e) occurs, the expenses and the
compensation for the services are intended to constitute expenses
of administration under any bankruptcy, insolvency or similar
laws.
Section 8.7 Officers' Certificate as Evidence. Except as
otherwise provided in Section 8.1, whenever in the administration
of the provisions of this Indenture the Trustee shall deem it
necessary or desirable that a matter be proved or established
prior to taking or omitting any action hereunder, such matter
(unless other evidence in respect thereof be herein specifically
prescribed) may, in the absence of negligence, willful
misconduct, recklessness, or bad faith on the part of the
Trustee, be deemed to be conclusively proved and established by
an Officers' Certificate delivered to the Trustee.
Section 8.8 Conflicting Interests of Trustee. If the
Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either
eliminate such interest or resign, to the extent and in the
manner provided by, and subject to the provisions of, the Trust
Indenture Act and this Indenture.
Section 8.9 Eligibility of Trustee. There shall at all
times be a Trustee hereunder which shall be a Person that is
eligible pursuant to the Trust Indenture Act to act as such and
has a combined capital and surplus of at least $50,000,000. If
such person publishes reports of condition at least annually,
pursuant to law or to the requirements of any supervising or
examining authority, then for the purposes of this Section, the
combined capital and surplus of such person shall be deemed to be
its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of
this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
Section 8.10 Resignation or Removal of Trustee.
(a) The Trustee may at any time resign by giving
written notice of such resignation to the Company and to the
holders of Notes. Upon receiving such notice of
resignation, the Company shall promptly appoint a successor
trustee by written instrument, in duplicate, executed by
order of the Board of Directors, one copy of which
instrument shall be delivered to the resigning Trustee and
one copy to the successor trustee. If no successor trustee
shall have been so appointed and have accepted appointment
sixty (60) days after the mailing of such notice of
resignation to the Noteholders, the resigning Trustee may
petition any court of competent jurisdiction for the
appointment of a successor trustee, or any Noteholder who
has been a bona fide holder of a Note or Notes for at least
six months may, subject to the provisions of Section 7.9, on
behalf of himself and all others similarly situated,
petition any such court for the appointment of a successor
trustee. Such court may thereupon, after such notice, if
any, as it may deem proper and prescribe, appoint a
successor trustee.
(b) In case at any time any of the following shall
occur:
(1) the Trustee shall fail to comply with
Section 8.8 after written request therefor by the
Company or by any Noteholder who has been a bona fide
holder of a Note or Notes for at least six months; or
(2) the Trustee shall cease to be eligible in
accordance with the provisions of Section 8.9 and shall
fail to resign after written request therefor by the
Company or by any such Noteholder; or
(3) the Trustee shall become incapable of acting,
or shall be adjudged a bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be
appointed, or any public officer shall take charge or
control of the Trustee or of its property or affairs
for the purpose of rehabilitation, conservation or
liquidation;
then, in any such case, the Company may remove the Trustee
and appoint a successor trustee by written instrument, in
duplicate, executed by order of the Board of Directors, one
copy of which instrument shall be delivered to the Trustee
so removed and one copy to the successor trustee, or,
subject to the provisions of Section 7.9, any Noteholder who
has been a bona fide holder of a Note or Notes for at least
six months may, on behalf of himself and all others
similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee and the
appointment of a successor trustee. Such court may
thereupon, after such notice, if any, as it may deem proper
and prescribe, remove the Trustee and appoint a successor
trustee.
(c) The holders of a majority in aggregate principal
amount of the Notes at the time outstanding may at any time
remove the Trustee and nominate a successor trustee which
shall be deemed appointed as successor trustee unless within
ten (10) days after notice to the Company of such nomination
the Company objects thereto, in which case the Trustee so
removed or any Noteholder, upon the terms and conditions and
otherwise as in Section 8.10(a) provided, may petition any
court of competent jurisdiction for an appointment of a
successor trustee.
(d) Any resignation or removal of the Trustee and
appointment of a successor trustee pursuant to any of the
provisions of this Section 8.10 shall become effective upon
acceptance of appointment by the successor trustee as
provided in Section 8.11.
Section 8.11 Acceptance by Successor Trustee. Any
successor trustee appointed as provided in Section 8.10 shall
execute, acknowledge and deliver to the Company and to its
predecessor trustee an instrument accepting such appointment
hereunder, and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor
trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, duties and obligations
of its predecessor hereunder, with like effect as if originally
named as trustee herein; but, nevertheless, on the written
request of the Company or of the successor trustee, the trustee
ceasing to act shall, upon payment of any amounts then due it
pursuant to the provisions of Section 8.6, execute and deliver an
instrument transferring to such successor trustee all the rights
and powers of the trustee so ceasing to act. Upon request of any
such successor trustee, the Company shall execute any and all
instruments in writing for more fully and certainly vesting in
and confirming to such successor trustee all such rights and
powers. Any trustee ceasing to act shall, nevertheless, retain a
lien upon all property and funds held or collected by such
trustee as such, except for funds held in trust for the benefit
of holders of particular Notes, to secure any amounts then due it
pursuant to the provisions of Section 8.6.
No successor trustee shall accept appointment as provided in
this Section 8.11 unless at the time of such acceptance such
successor trustee shall be qualified under the provisions of
Section 8.8 and be eligible under the provisions of Section 8.9.
Upon acceptance of appointment by a successor trustee as
provided in this Section 8.11, each of the Company and the former
trustee shall mail or cause to be mailed notice of the succession
of such trustee hereunder to the holders of Notes at their
addresses as they shall appear on the Note register. If the
Company fails to mail such notice within ten (10) days after
acceptance of appointment by the successor trustee, the successor
trustee shall cause such notice to be mailed at the expense of
the Company.
Section 8.12 Succession by Merger, Etc. Any corporation
into which the Trustee may be merged or converted or with which
it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be
a party, or any corporation succeeding to all or substantially
all of the trust business of the Trustee, shall be the successor
to the Trustee hereunder without the execution or filing of any
paper or any further act on the part of any of the parties
hereto, provided that in the case of any corporation succeeding
to all or substantially all of the trust business of the Trustee
such corporation shall be qualified under the provisions of
Section 8.8 and eligible under the provisions of Section 8.9.
In case at the time such successor to the Trustee shall
succeed to the trusts created by this Indenture, any of the Notes
shall have been authenticated but not delivered, any such
successor to the Trustee may adopt the certificate of
authentication of any predecessor trustee or authenticating agent
appointed by such predecessor trustee, and deliver such Notes so
authenticated; and in case at that time any of the Notes shall
not have been authenticated, any successor to the Trustee or an
authenticating agent appointed by such successor trustee may
authenticate such Notes either in the name of any predecessor
trustee hereunder or in the name of the successor trustee; and in
all such cases such certificates shall have the full force which
it is anywhere in the Notes or in this Indenture provided that
the certificate of the Trustee shall have; provided, however,
that the right to adopt the certificate of authentication of any
predecessor Trustee or authenticate Notes in the name of any
predecessor Trustee shall apply only to its successor or
successors by merger, conversion or consolidation.
Section 8.13 Limitation on Rights of Trustee as Creditor.
If and when the Trustee shall be or become a creditor of the
Company (or any other obligor upon the Notes), the Trustee shall
be subject to the provisions of the Trust Indenture Act regarding
the collection of the claims against the Company (or any such
other obligor).
ARTICLE IX
CONCERNING THE NOTEHOLDERS
Section 9.1 Action by Noteholders. Whenever in this
Indenture it is provided that the holders of a specified
percentage in aggregate principal amount of the Notes may take
any action (including the making of any demand or request, the
giving of any notice, consent or waiver or the taking of any
other action), the fact that at the time of taking any such
action, the holders of such specified percentage have joined
therein may be evidenced (a) by any instrument or any number of
instruments of similar tenor executed by Noteholders in person or
by agent or proxy appointed in writing, or (b) by the record of
the holders of Notes voting in favor thereof at any meeting of
Noteholders duly called and held in accordance with the
provisions of Article X, or (c) by a combination of such
instrument or instruments and any such record of such a meeting
of Noteholders. Whenever the Company or the Trustee solicits the
taking of any action by the holders of the Notes, the Company or
the Trustee may fix in advance of such solicitation, a date as
the record date for determining holders entitled to take such
action. The record date shall be not more than fifteen (15) days
prior to the date of commencement of solicitation of such action.
Section 9.2 Proof of Execution by Noteholders. Subject
to the provisions of Sections 8.1, 8.2 and 10.5, proof of the
execution of any instrument by a Noteholder or his agent or proxy
shall be sufficient if made in accordance with such reasonable
rules and regulations as may be prescribed by the Trustee or in
such manner as shall be satisfactory to the Trustee. The holding
of Notes shall be proved by the registry of such Notes or by a
certificate of the Note registrar.
The record of any Noteholders' meeting shall be proved in
the manner provided in Section 10.6.
Section 9.3 Who Are Deemed Absolute Owners. The Company,
the Trustee, any paying agent, any conversion agent and any Note
registrar may deem the person in whose name such Note shall be
registered upon the Note register to be, and may treat him as,
the absolute owner of such Note (whether or not such Note shall
be overdue and notwithstanding any notation of ownership or other
writing thereon) for the purpose of receiving payment of or on
account of the principal of, premium, if any, and interest on
such Note, for conversion of such Note and for all other
purposes; and neither the Company nor the Trustee nor any paying
agent nor any conversion agent nor any Note registrar shall be
affected by any notice to the contrary. All such payments so
made to any holder for the time being, or upon his order, shall
be valid, and, to the extent of the sum or sums so paid,
effectual to satisfy and discharge the liability for monies
payable upon any such Note.
Section 9.4 Company-Owned Notes Disregarded. In
determining whether the holders of the requisite aggregate
principal amount of Notes have concurred in any direction,
consent, waiver or other action under this Indenture, Notes which
are owned by the Company or any other obligor on the Notes or by
any person directly or indirectly controlling or controlled by or
under direct or indirect common control with the Company or any
other obligor on the Notes shall be disregarded and deemed not to
be outstanding for the purpose of any such determination;
provided that for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, consent,
waiver or other action only Notes which a Responsible Officer
knows are so owned shall be so disregarded. Notes so owned which
have been pledged in good faith may be regarded as outstanding
for the purposes of this Section 9.4 if the pledgee shall
establish to the satisfaction of the Trustee the pledgee's right
to vote such Notes and that the pledgee is not the Company, any
other obligor on the Notes or a person directly or indirectly
controlling or controlled by or under direct or indirect common
control with the Company or any such other obligor. In the case
of a dispute as to such right, any decision by the Trustee taken
upon the advice of counsel shall be full protection to the
Trustee. Upon request of the Trustee, the Company shall furnish
to the Trustee promptly an Officers' Certificate listing and
identifying all Notes, if any, known by the Company to be owned
or held by or for the account of any of the above described
persons; and, subject to Section 8.1, the Trustee shall be
entitled to accept such Officers' Certificate as conclusive
evidence of the facts therein set forth and of the fact that all
Notes not listed therein are outstanding for the purpose of any
such determination.
Section 9.5 Revocation of Consents: Future Holders Bound.
At any time prior to (but not after) the evidencing to the
Trustee, as provided in Section 9.1, of the taking of any action
by the holders of the percentage in aggregate principal amount of
the Notes specified in this Indenture in connection with such
action, any holder of a Note which is shown by the evidence to be
included in the Notes the holders of which have consented to such
action may, by filing written notice with the Trustee at its
Corporate Trust Office and upon proof of holding as provided in
Section 9.2, revoke such action so far as concerns such Note.
Except as aforesaid, any such action taken by the holder of any
Note shall be conclusive and binding upon such holder and upon
all future holders and owners of such Note and of any Notes
issued in exchange or substitution therefor, irrespective of
whether any notation in regard thereto is made upon such Note or
any Note issued in exchange or substitution therefor.
ARTICLE X
NOTEHOLDERS' MEETINGS
Section 10.1 Purpose of Meetings. A meeting of
Noteholders may be called at any time and from time to time
pursuant to the provisions of this Article X for any of the
following purposes:
(1) to give any notice to the Company or to the
Trustee or to give any directions to the Trustee permitted
under this Indenture, or to consent to the waiving of any
default or Event of Default hereunder and its consequences,
or to take any other action authorized to be taken by
Noteholders pursuant to any of the provisions of
Article VII;
(2) to remove the Trustee and nominate a successor
trustee pursuant to the provisions of Article VIII;
(3) to consent to the execution of an indenture or
indentures supplemental hereto pursuant to the provisions of
Section 11.2; or
(4) to take any other action authorized to be taken by
or on behalf of the holders of any specified aggregate
principal amount of the Notes under any other provision of
this Indenture or under applicable law.
Section 10.2 Call of Meetings by Trustee. The Trustee may
at any time call a meeting of Noteholders to take any action
specified in Section 10.1, to be held at such time and at such
place at a location within 10 miles of the Corporate Trust Office
or the Borough of Manhattan, The City of New York, as the Trustee
shall determine. Notice of every meeting of the Noteholders,
setting forth the time and the place of such meeting and in
general terms the action proposed to be taken at such meeting and
the establishment of any record date pursuant to Section 9.1,
shall be mailed to holders of Notes at their addresses as they
shall appear on the Note register. Such notice shall also be
mailed to the Company. Such notices shall be mailed not less
than twenty (20) nor more than ninety (90) days prior to the date
fixed for the meeting.
Any meeting of Noteholders shall be valid without notice if
the holders of all Notes then outstanding are present in person
or by proxy or if notice is waived before or after the meeting by
the holders of all Notes outstanding, and if the Company and the
Trustee are either present by duly authorized representatives or
have, before or after the meeting, waived notice.
Section 10.3 Call of Meetings by Company or Noteholders.
In case at any time the Company, pursuant to a resolution of its
Board of Directors, or the holders of at least ten percent in
aggregate principal amount of the Notes then outstanding, shall
have requested the Trustee to call a meeting of Noteholders, by
written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not
have mailed the notice of such meeting within twenty (20) days
after receipt of such request, then the Company or such
Noteholders may determine the time and the place at any location
within 10 miles of the Corporate Trust Office or the Borough of
Manhattan, The City of New York for such meeting and may call
such meeting to take any action authorized in Section 10.1, by
mailing notice thereof as provided in Section 10.2.
Section 10.4 Qualifications for Voting. To be entitled to
vote at any meeting of Noteholders a person shall (a) be a holder
of one or more Notes on the record date pertaining to such
meeting or (b) be a person appointed by an instrument in writing
as proxy by a holder of one or more Notes. The only persons who
shall be entitled to be present or to speak at any meeting of
Noteholders shall be the persons entitled to vote at such meeting
and their counsel and any representatives of the Trustee and its
counsel and any representatives of the Company and its counsel.
Section 10.5 Regulations. Notwithstanding any other
provisions of this Indenture, the Trustee may make such
reasonable regulations as it may deem advisable for any meeting
of Noteholders, in regard to proof of the holding of Notes and of
the appointment of proxies, and in regard to the appointment and
duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as
it shall think fit.
The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have
been called by the Company or by Noteholders as provided in
Section 10.3, in which case the Company or the Noteholders
calling the meeting, as the case may be, shall in like manner
appoint a temporary chairman. A permanent chairman and a
permanent secretary of the meeting shall be elected by vote of
the holders of a majority in principal amount of the Notes
represented at the meeting and entitled to vote at the meeting.
Subject to the provisions of Section 9.4, at any meeting
each Noteholder or proxyholder shall be entitled to one vote for
each $1,000 principal amount of Notes held or represented by him;
provided, however, that no vote shall be cast or counted at any
meeting in respect of any Note challenged as not outstanding and
ruled by the chairman of the meeting to be not outstanding. The
chairman of the meeting shall have no right to vote other than by
virtue of Notes held by him or instruments in writing as
aforesaid duly designating him as the proxy to vote on behalf of
other Noteholders. Any meeting of Noteholders duly called
pursuant to the provisions of Section 10.2 or 10.3 may be
adjourned from time to time by the holders of a majority of the
aggregate principal amount of Notes represented at the meeting,
whether or not constituting a quorum, and the meeting may be held
as so adjourned without further notice.
Section 10.6 Voting. The vote upon any resolution
submitted to any meeting of Noteholders shall be by written
ballot on which shall be subscribed the signatures of the holders
of Notes or of their representatives by proxy and the principal
amount of the Notes held or represented by them. The permanent
chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any
resolution and who shall make and file with the secretary of the
meeting their verified written reports in duplicate of all votes
cast at the meeting. A record in duplicate of the proceedings of
each meeting of Noteholders shall be prepared by the secretary of
the meeting and there shall be attached to said record the
original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the
meeting and showing that said notice was mailed as provided in
Section 10.2. The record shall show the principal amount of the
Notes voting in favor of or against any resolution. The record
shall be signed and verified by the affidavits of the permanent
chairman and secretary of the meeting and one of the duplicates
shall be delivered to the Company and the other to the Trustee to
be preserved by the Trustee, the latter to have attached thereto
the ballots voted at the meeting.
Any record so signed and verified shall be conclusive
evidence of the matters therein stated.
Section 10.7 No Delay of Rights by Meeting. Nothing in
this Article X contained shall be deemed or construed to
authorize or permit, by reason of any call of a meeting of
Noteholders or any rights expressly or impliedly conferred
hereunder to make such call, any hindrance or delay in the
exercise of any right or rights conferred upon or reserved to the
Trustee or to the Noteholders under any of the provisions of this
Indenture or of the Notes.
ARTICLE XI
SUPPLEMENTAL INDENTURES
Section 11.1 Supplemental Indentures Without Consent of
Noteholders. The Company, when authorized by the resolutions of
the Board of Directors, and the Trustee may from time to time and
at any time enter into an indenture or indentures supplemental
hereto for one or more of the following purposes:
(a) to make provision with respect to the conversion
rights of the holders of Notes pursuant to the requirements
of Section 15.6;
(b) subject to Article IV, to convey, transfer,
assign, mortgage or pledge to the Trustee as security for
the Notes, any property or assets;
(c) to evidence the succession of another corporation
to the Company, or successive successions, and the
assumption by the successor corporation of the covenants,
agreements and obligations of the Company pursuant to
Article XII;
(d) to add to the covenants of the Company such
further covenants, restrictions or conditions as the Board
of Directors and the Trustee shall consider to be for the
benefit of the holders of Notes, and to make the occurrence,
or the occurrence and continuance, of a default in any such
additional covenants, restrictions or conditions a default
or an Event of Default permitting the enforcement of all or
any of the several remedies provided in this Indenture as
herein set forth; provided, however, that in respect of any
such additional covenant, restriction or condition such
supplemental indenture may provide for a particular period
of grace after default (which period may be shorter or
longer than that allowed in the case of other defaults) or
may provide for an immediate enforcement upon such default
or may limit the remedies available to the Trustee upon such
default;
(e) to provide for the issuance under this Indenture
of Notes in coupon form (including Notes registrable as to
principal only) and to provide for exchangeability of such
Notes with the Notes issued hereunder in fully registered
form and to make all appropriate changes for such purpose;
(f) to cure any ambiguity or to correct or supplement
any provision contained herein or in any supplemental
indenture which may be defective or inconsistent with any
other provision contained herein or in any supplemental
indenture, or to make such other provisions in regard to
matters or questions arising under this Indenture which
shall not materially adversely affect the interests of the
holders of the Notes;
(g) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to
the Notes; or
(h) to modify, eliminate or add to the provisions of
this Indenture to such extent as shall be necessary to
effect the qualifications of this Indenture under the Trust
Indenture Act, or under any similar federal statute
hereafter enacted.
The Trustee is hereby authorized to join with the Company in
the execution of any such supplemental indenture, to make any
further appropriate agreements and stipulations which may be
therein contained and to accept the conveyance, transfer and
assignment of any property thereunder, but the Trustee shall not
be obligated to, but may in its discretion, enter into any
supplemental indenture which affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of
this Section 11.1 may be executed by the Company and the Trustee
without the consent of the holders of any of the Notes at the
time outstanding, notwithstanding any of the provisions of
Section 11.2.
Section 11.2 Supplemental Indentures with Consent of
Noteholders. With the consent (evidenced as provided in
Article IX) of the holders of not less than a majority in
aggregate principal amount of the Notes at the time outstanding,
the Company, when authorized by the resolutions of the Board of
Directors, and the Trustee may from time to time and at any time
enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or any
supplemental indenture or of modifying in any manner the rights
of the holders of the Notes; provided, however, that no such
supplemental indenture shall (i) extend the fixed maturity of any
Note, or reduce the rate or extend the time of payment of
interest thereon, or reduce the principal amount thereof or
premium, if any, thereon, or reduce any amount payable on
redemption thereof, or impair the right of any Noteholder to
institute suit for the payment thereof, or make the principal
thereof or interest or premium, if any, thereon payable in any
coin or currency other than that provided in the Notes, or modify
the provisions of this Indenture with respect to the
subordination of the Notes in a manner adverse to the Noteholders
in any material respect, or change the obligation of the Company
to redeem any Note upon the happening of a Fundamental Change in
a manner adverse to the holder of Notes, or impair the right to
convert the Notes into Common Stock subject to the terms set
forth herein, including Section 15.6, without the consent of the
holder of each Note so affected, or (ii) reduce the aforesaid
percentage of Notes, the holders of which are required to consent
to any such supplemental indenture, without the consent of the
holders of all Notes then outstanding.
Upon the request of the Company, accompanied by a copy of
the resolutions of the Board of Directors certified by its
Secretary or Assistant Secretary authorizing the execution of any
such supplemental indenture, and upon the filing with the Trustee
of evidence of the consent of Noteholders as aforesaid, the
Trustee shall join with the Company in the execution of such
supplemental indenture unless such supplemental indenture affects
the Trustee's own rights, duties or immunities under this
Indenture or otherwise, in which case the Trustee may in is
discretion, but shall not be obligated to, enter into such
supplemental indenture.
It shall not be necessary for the consent of the Noteholders
under this Section 11.2 to approve the particular form of any
proposed supplemental indenture, but it shall be sufficient if
such consent shall approve the substance thereof.
Section 11.3 Effect of Supplemental Indenture. Any
supplemental indenture executed pursuant to the provisions of
this Article XI shall comply with the Trust Indenture Act, as
then in effect; provided that this Section 11.3 shall not require
such supplemental indenture or the Trustee to be qualified under
the Trust Indenture Act prior to the time such qualification is
in fact required under the terms of the Trust Indenture Act or
the Indenture has been qualified under the Trust Indenture Act,
nor shall it constitute any admission or acknowledgment by any
party to such supplemental indenture that any such qualification
is required prior to the time such qualification is in fact
required under the terms of the Trust Indenture Act or the
Indenture has been qualified under the Trust Indenture Act. Upon
the execution of any supplemental indenture pursuant to the
provisions of this Article XI, this Indenture shall be and be
deemed to be modified and amended in accordance therewith and the
respective rights, limitation of rights, obligations, duties and
immunities under this Indenture of the Trustee, the Company and
the holders of Notes shall thereafter be determined, exercised
and enforced hereunder subject in all respects to such
modifications and amendments and all the terms and conditions of
any such supplemental indenture shall be and be deemed to be part
of the terms and conditions of this Indenture for any and all
purposes.
Section 11.4 Notation on Notes. Notes authenticated and
delivered after the execution of any supplemental indenture
pursuant to the provisions of this Article XI may bear a notation
in form approved by the Trustee as to any matter provided for in
such supplemental indenture. If the Company or the Trustee shall
so determine, new Notes so modified as to conform, in the opinion
of the Trustee and the Board of Directors, to any modification of
this Indenture contained in any such supplemental indenture may,
at the Company's expense, be prepared and executed by the
Company, authenticated by the Trustee (or an authenticating agent
duly appointed by the Trustee pursuant to Section 16.11) and
delivered in exchange for the Notes then outstanding, upon
surrender of such Notes then outstanding.
Section 11.5 Evidence of Compliance of Supplemental
Indenture to Be Furnished Trustee. The Trustee, subject to the
provisions of Sections 8.1 and 8.2, may receive an Officers'
Certificate and an Opinion of Counsel as conclusive evidence that
any supplemental indenture executed pursuant hereto complies with
the requirements of this Article XI.
ARTICLE XII
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
Section 12.1 Company May Consolidate Etc. on Certain
Terms. Subject to the provisions of Section 12.2, nothing
contained in this Indenture or in any of the Notes shall prevent
any consolidation or merger of the Company with or into any other
corporation or corporations (whether or not affiliated with the
Company), or successive consolidations or mergers in which the
Company or its successor or successors shall be a party or
parties, or shall prevent any sale, conveyance or lease (or
successive sales, conveyances or leases) of all or substantially
all of the property of the Company, to any other corporation
(whether or not affiliated with the Company), authorized to
acquire and operate the same and which shall be organized under
the laws of the United States of America, any state thereof or
the District of Columbia; provided, that upon any such
consolidation, merger, sale, conveyance or lease, the due and
punctual payment of the principal of and premium, if any, and
interest on all of the Notes, according to their tenor, and the
due and punctual performance and observance of all of the
covenants and conditions of this Indenture to be performed by the
Company, shall be expressly assumed, by supplemental indenture
satisfactory in form to the Trustee, executed and delivered to
the Trustee by the corporation (if other than the Company) formed
by such consolidation, or into which the Company shall have been
merged, or by the corporation which shall have acquired or leased
such property, and such supplemental indenture shall provide for
the applicable conversion rights set forth in Section 15.6.
Section 12.2 Successor Corporation to Be Substituted. In
case of any such consolidation, merger, sale, conveyance or lease
and upon the assumption by the successor corporation, by
supplemental indenture, executed and delivered to the Trustee and
satisfactory in form to the Trustee, of the due and punctual
payment of the principal of and premium, if any, and interest on
all of the Notes and the due and punctual performance of all of
the covenants and conditions of this Indenture to be performed by
the Company, such successor corporation shall succeed to and be
substituted for the Company, with the same effect as if it had
been named herein as the party of the first part. Such successor
corporation thereupon may cause to be signed, and may issue
either in its own name or in the name of Xilinx, Inc. any or all
of the Notes issuable hereunder which theretofore shall not have
been signed by the Company and delivered to the Trustee; and,
upon the order of such successor corporation instead of the
Company and subject to all the terms, conditions and limitations
in this Indenture prescribed, the Trustee shall authenticate and
shall deliver, or cause to be authenticated and delivered, any
Notes which previously shall have been signed and delivered by
the officers of the Company to the Trustee for authentication,
and any Notes which such successor corporation thereafter shall
cause to be signed and delivered to the Trustee for that purpose.
All the Notes so issued shall in all respects have the same legal
rank and benefit under this Indenture as the Notes theretofore or
thereafter issued in accordance with the terms of this Indenture
as though all of such Notes had been issued at the date of the
execution hereof. In the event of any such consolidation,
merger, sale, conveyance or lease, the person named as the
"Company" in the first paragraph of this Indenture or any
successor which shall thereafter have become such in the manner
prescribed in this Article XII may be dissolved, wound up and
liquidated at any time thereafter and such person shall be
released from its liabilities as obligor and maker of the Notes
and from its obligations under this Indenture.
In case of any such consolidation, merger, sale, conveyance
or lease, such changes in phraseology and form (but not in
substance) may be made in the Notes thereafter to be issued as
may be appropriate.
Section 12.3 Opinion of Counsel to Be Given Trustee. The
Trustee, subject to Sections 8.1 and 8.2, shall receive an
Officers' Certificate and an Opinion of Counsel as conclusive
evidence that any such consolidation, merger, sale, conveyance or
lease and any such assumption complies with the provisions of
this Article XII.
ARTICLE XIII
SATISFACTION AND DISCHARGE OF INDENTURE
Section 13.1 Discharge of Indenture. When (a) the Company
shall deliver to the Trustee for cancellation all Notes
theretofore authenticated (other than any Notes which have been
destroyed, lost or stolen and in lieu of or in substitution for
which other Notes shall have been authenticated and delivered)
and not theretofore canceled, or (b) all the Notes not
theretofore canceled or delivered to the Trustee for cancellation
shall have become due and payable, or are by their terms to
become due and payable within one year or are to be called for
redemption within one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption, and the Company
shall deposit with the Trustee, in trust, funds sufficient to pay
at maturity or upon redemption of all of the Notes (other than
any Notes which shall have been mutilated, destroyed, lost or
stolen and in lieu of or in substitution for which other Notes
shall have been authenticated and delivered) not theretofore
canceled or delivered to the Trustee for cancellation, including
principal and premium, if any, and interest due or to become due
to such date of maturity or redemption date, as the case may be,
and if in either case the Company shall also pay or cause to be
paid all other sums payable hereunder by the Company, then this
Indenture shall cease to be of further effect (except as to (i)
remaining rights of registration of transfer, substitution and
exchange and conversion of Notes, (ii) rights hereunder of
Noteholders to receive payments of principal of and premium, if
any, and interest on, the Notes and the other rights, duties and
obligations of Noteholders, as beneficiaries hereof with respect
to the amounts, if any, so deposited with the Trustee and (iii)
the rights, obligations and immunities of the Trustee hereunder),
and the Trustee, on demand of the Company accompanied by an
Officers' Certificate and an Opinion of Counsel as required by
Section 16.5 and at the cost and expense of the Company, shall
execute proper instruments acknowledging satisfaction of and
discharging this Indenture; the Company, however, hereby agreeing
to reimburse the Trustee for any costs or expenses thereafter
reasonably and properly incurred by the Trustee and to compensate
the Trustee for any services thereafter reasonably and properly
rendered by the Trustee in connection with this Indenture or the
Notes.
Section 13.2 Deposited Monies to Be Held in Trust by
Trustee. Subject to Section 13.4, all monies deposited with the
Trustee pursuant to Section 13.1 and not in violation of Article
IV shall be held in trust for the sole benefit of the Noteholders
and not to be subject to the subordination provisions of Article
IV, and such monies shall be applied by the Trustee to the
payment, either directly or through any paying agent (including
the Company if acting as its own paying agent), to the holders of
the particular Notes for the payment or redemption of which such
monies have been deposited with the Trustee, of all sums due and
to become due thereon for principal and interest and premium, if
any.
Section 13.3 Paying Agent to Repay Monies Held. Upon the
satisfaction and discharge of this Indenture, all monies then
held by any paying agent of the Notes (other than the Trustee)
shall, upon written request of the Company, be repaid to it or
paid to the Trustee, and thereupon such paying agent shall be
released from all further liability with respect to such monies.
Section 13.4 Return of Unclaimed Monies. Subject to the
requirements of applicable law, any monies deposited with or paid
to the Trustee for payment of the principal of, premium, if any,
or interest on Notes and not applied but remaining unclaimed by
the holders of Notes for two years after the date upon which the
principal of, premium, if any, or interest on such Notes, as the
case may be, shall have become due and payable, shall be repaid
to the Company by the Trustee on demand and all liability of the
Trustee shall thereupon cease with respect to such monies; and
the holder of any of the Notes shall thereafter look only to the
Company for any payment which such holder may be entitled to
collect unless an applicable abandoned property law designates
another Person.
Section 13.5 Reinstatement. If the Trustee or the paying
agent is unable to apply any money in accordance with
Section 13.2 by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise
prohibiting such application, the Company's obligations under
this Indenture and the Notes shall be revived and reinstated as
though no deposit had occurred pursuant to Section 13.1 until
such time as the Trustee or the paying agent is permitted to
apply all such money in accordance with Section 13.2; provided,
however, that if the Company makes any payment of interest on or
principal of any Note following the reinstatement of its
obligations, the Company shall be subrogated to the rights of the
holders of such Notes to receive such payment from the money held
by the Trustee or paying agent.
ARTICLE XIV
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
Section 14.1 Indenture and Notes Solely Corporate
Obligations. No recourse for the payment of the principal of or
premium, if any, or interest on any Note, or for any claim based
thereon or otherwise in respect thereof, and no recourse under or
upon any obligation, covenant or agreement of the Company in this
Indenture or in any supplemental indenture or in any Note, or
because of the creation of any indebtedness represented thereby,
shall be had against any incorporator, stockholder, employee,
agent, officer, or director or subsidiary, as such, past, present
or future, of the Company or of any successor corporation, either
directly or through the Company or any successor corporation,
whether by virtue of any constitution, statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise; it
being expressly understood that all such liability is hereby
expressly waived and released as a condition of, and as a
consideration for, the execution of this Indenture and the issue
of the Notes.
ARTICLE XV
CONVERSION OF NOTES
Section 15.1 Right to Convert. Subject to and upon
compliance with the provisions of this Indenture, the holder of
any Note shall have the right, at his option, at any time after
sixty (60) days following the latest date of original issuance of
the Notes and prior to the close of business on November 1, 2002
(except that, with respect to any Note or portion of a Note which
shall be called for redemption, such right shall terminate,
except as provided in Section 15.2 or Section 3.4, at the close
of business on the Business Day next preceding the date fixed for
redemption of such Note or portion of a Note unless the Company
shall default in payment due upon redemption thereof) to convert
the principal amount of any such Note, or any portion of such
principal amount which is $1,000 or an integral multiple thereof,
into that number of fully paid and non-assessable shares of
Common Stock (as such shares shall then be constituted) obtained
by dividing the principal amount of the Note or portion thereof
surrendered for conversion by the Conversion Price in effect at
such time, by surrender of the Note so to be converted in whole
or in part in the manner provided, together with any required
funds, in Section 15.2. A holder of Notes is not entitled to any
rights of a holder of Common Stock until such holder has
converted his Notes to Common Stock, and only to the extent such
Notes are deemed to have been converted to Common Stock under
this Article XV.
Section 15.2 Exercise of Conversion Privilege; Issuance of
Common Stock on Conversion; No Adjustment for Interest or
Dividends. In order to exercise the conversion privilege with
respect to any Note in definitive form, the holder of any such
Note to be converted in whole or in part shall surrender such
Note, duly endorsed, at an office or agency maintained by the
Company pursuant to Section 5.2, accompanied by the funds, if
any, required by the penultimate paragraph of this Section 15.2,
and shall give written notice of conversion in the form provided
on the Notes (or such other notice which is acceptable to the
Company) to the office or agency that the holder elects to
convert such Note or the portion thereof specified in said
notice. Such notice shall also state the name or names (with
address or addresses) in which the certificate or certificates
for shares of Common Stock which shall be issuable on such
conversion shall be issued, and shall be accompanied by transfer
taxes, if required pursuant to Section 15.7. Each such Note
surrendered for conversion shall, unless the shares issuable on
conversion are to be issued in the same name as the registration
of such Note, be duly endorsed by, or be accompanied by
instruments of transfer in form satisfactory to the Company duly
executed by, the holder or his duly authorized attorney.
In order to exercise the conversion privilege with respect
to any interest in a Note in global form, the beneficial holder
must complete the appropriate instruction form for conversion
pursuant to the Depository's book-entry conversion program,
deliver by book-entry delivery an interest in such Note in global
form, furnish appropriate endorsements and transfer documents if
required by the Company or the Trustee or conversion agent, and
pay the funds, if any, required by this Section 15.2 and any
transfer taxes if required pursuant to Section 15.7.
As promptly as practicable after satisfaction of the
requirements for conversion set forth above, subject to
compliance with any restrictions on transfer if shares issuable
on conversion are to be issued in a name other than that of the
Noteholder (as if such transfer were a transfer of the Note or
Notes (or portion thereof) so converted), the Company shall issue
and shall deliver to such holder at the office or agency
maintained by the Company for such purpose pursuant to
Section 5.2, a certificate or certificates for the number of full
shares of Common Stock issuable upon the conversion of such Note
or portion thereof in accordance with the provisions of this
Article and a check or cash in respect of any fractional interest
in respect of a share of Common Stock arising upon such
conversion, as provided in Section 15.3. In case any Note of a
denomination greater than $1,000 shall be surrendered for partial
conversion, and subject to Section 2.3, the Company shall execute
and the Trustee shall authenticate and deliver to the holder of
the Note so surrendered, without charge to him, a new Note or
Notes in authorized denominations in an aggregate principal
amount equal to the unconverted portion of the surrendered Note.
Each conversion shall be deemed to have been effected as to
any such Note (or portion thereof) on the date on which the
requirements set forth above in this Section 15.2 have been
satisfied as to such Note (or portion thereof), and the person in
whose name any certificate or certificates for shares of Common
Stock shall be issuable upon such conversion shall be deemed to
have become on said date the holder of record of the shares
represented thereby; provided, however, that any such surrender
on any date when the stock transfer books of the Company shall be
closed shall constitute the person in whose name the certificates
are to be issued as the record holder thereof for all purposes on
the next succeeding day on which such stock transfer books are
open, but such conversion shall be at the Conversion Price in
effect on the date upon which such Note shall be surrendered.
Any Note or portion thereof surrendered for conversion
during the period from the close of business on the record date
for any interest payment date to the close of business on the
Business Day next preceding the following interest payment date
shall (unless such Note or portion thereof being converted shall
have been called for redemption during the period from the close
of business on such record date to the close of business on the
Business Day next preceding the following interest payment date)
be accompanied by payment, in New York Clearing House funds or
other funds acceptable to the Company, of an amount equal to the
interest otherwise payable on such interest payment date on the
principal amount being converted; provided, however, that no such
payment need be made if there shall exist at the time of
conversion a default in the payment of interest on the Notes.
Except as provided above in this Section 15.2, no adjustment
shall be made for interest accrued on any Note converted or for
dividends on any shares issued upon the conversion of such Note
as provided in this Article.
Upon the conversion of an interest in a Note in global form,
the Trustee, or the Custodian at the direction of the Trustee,
shall make a notation on such Note in global form as to the
reduction in the principal amount represented thereby.
Section 15.3 Cash Payments in Lieu of Fractional Shares.
No fractional shares of Common Stock or scrip representing
fractional shares shall be issued upon conversion of Notes. If
more than one Note shall be surrendered for conversion at one
time by the same holder, the number of full shares which shall be
issuable upon conversion shall be computed on the basis of the
aggregate principal amount of the Notes (or specified portions
thereof to the extent permitted hereby) so surrendered. If any
fractional share of stock would be issuable upon the conversion
of any Note or Notes, the Company shall make an adjustment and
payment therefor in cash at the current market value thereof to
the holder of Notes. The current market value of a share of
Common Stock shall be the Closing Price on the first Business Day
immediately preceding the day on which the Notes (or specified
portions thereof) are deemed to have been converted.
Section 15.4 Conversion Price. The conversion price shall
be as specified in the form of Note (herein called the
"Conversion Price") attached as Exhibit A hereto, subject to
adjustment as provided in this Article XV.
Section 15.5 Adjustment of Conversion Price. The
Conversion Price shall be adjusted from time to time by the
Company as follows:
(a) In case the Company shall hereafter pay a dividend
or make a distribution to all holders of the outstanding
Common Stock in shares of Common Stock, the Conversion Price
in effect at the opening of business on the date following
the date fixed for the determination of stockholders
entitled to receive such dividend or other distribution
shall be reduced by multiplying such Conversion Price by a
fraction of which the numerator shall be the number of
shares of Common Stock outstanding at the close of business
on the date fixed for such determination and the denominator
shall be the sum of such number of shares and the total
number of shares constituting such dividend or other
distribution, such reduction to become effective immediately
after the opening of business on the day following the date
fixed for such determination. The Company will not pay any
dividend or make any distribution on shares of Common Stock
held in the treasury of the Company. If any dividend or
distribution of the type described in this Section 15.5(a)
is declared but not so paid or made, the Conversion Price
shall again be adjusted to the Conversion Price which would
then be in effect if such dividend or distribution had not
been declared.
(b) In case the Company shall issue rights or warrants
to all holders of its outstanding shares of Common Stock
entitling them (for a period expiring within 45 days after
the date fixed for determination of stockholders entitled to
receive such rights or warrants) to subscribe for or
purchase shares of Common Stock at a price per share less
than the Current Market Price (as defined below) on the date
fixed for determination of stockholders entitled to receive
such rights or warrants, the Conversion Price shall be
adjusted so that the same shall equal the price determined
by multiplying the Conversion Price in effect immediately
prior to the date fixed for determination of stockholders
entitled to receive such rights or warrants by a fraction of
which the numerator shall be the number of shares of Common
Stock outstanding at the close of business on the date fixed
for determination of stockholders entitled to receive such
rights and warrants plus the number of shares which the
aggregate offering price of the total number of shares so
offered would purchase at such Current Market Price, and of
which the denominator shall be the number of shares of
Common Stock outstanding on the date fixed for determination
of stockholders entitled to receive such rights and warrants
plus the total number of additional shares of Common Stock
offered for subscription or purchase. Such adjustment shall
be successively made whenever any such rights and warrants
are issued, and shall become effective immediately after the
opening of business on the day following the date fixed for
determination of stockholders entitled to receive such
rights or warrants. To the extent that shares of Common
Stock are not delivered after the expiration of such rights
or warrants, the Conversion Price shall be readjusted to the
Conversion Price which would then be in effect had the
adjustments made upon the issuance of such rights or
warrants been made on the basis of delivery of only the
number of shares of Common Stock actually delivered. In the
event that such rights or warrants are not so issued, the
Conversion Price shall again be adjusted to be the
Conversion Price which would then be in effect if such date
fixed for the determination of stockholders entitled to
receive such rights or warrants had not been fixed. In
determining whether any rights or warrants entitle the
holders to subscribe for or purchase shares of Common Stock
at less than such Current Market Price, and in determining
the aggregate offering price of such shares of Common Stock,
there shall be taken into account any consideration received
by the Company for such rights or warrants, the value of
such consideration, if other than cash, to be determined by
the Board of Directors.
(c) In case outstanding shares of Common Stock shall
be subdivided into a greater number of shares of Common
Stock, the Conversion Price in effect at the opening of
business on the day following the day upon which such
subdivision becomes effective shall be proportionately
reduced, and conversely, in case outstanding shares of
Common Stock shall be combined into a smaller number of
shares of Common Stock, the Conversion Price in effect at
the opening of business on the day following the day upon
which such combination becomes effective shall be
proportionately increased, such reduction or increase, as
the case may be, to become effective immediately after the
opening of business on the day following the day upon which
such subdivision or combination becomes effective.
(d) In case the Company shall, by dividend or
otherwise, distribute to all holders of its Common Stock
shares of any class of capital stock of the Company (other
than any dividends or distributions to which Section 15.5(a)
applies) or evidences of its indebtedness or assets
(including securities, but excluding any rights or warrants
referred to in Section 15.5(b), and excluding any dividend
or distribution (x) in connection with the liquidation,
dissolution or winding up of the Company, whether voluntary
or involuntary, (y) paid exclusively in cash or (z) referred
to in Section 15.5(a) (any of the foregoing hereinafter in
this Section 15.5(d) called the "Securities")), then, in
each such case (unless the Company elects to reserve such
Securities for distribution to the Noteholders upon the
conversion of the Notes so that any such holder converting
Notes will receive upon such conversion, in addition to the
shares of Common Stock to which such holder is entitled, the
amount and kind of such Securities which such holder would
have received if such holder had converted its Notes into
Common Stock immediately prior to the Record Date (as
defined in Section 15.5(h) for such distribution of the
Securities)), the Conversion Price shall be reduced so that
the same shall be equal to the price determined by
multiplying the Conversion Price in effect on the Record
Date with respect to such distribution by a fraction of
which the numerator shall be the Current Market Price per
share of the Common Stock on such Record Date less the fair
market value (as determined by the Board of Directors, whose
determination shall be conclusive, and described in a
resolution of the Board of Directors) on the Record Date of
the portion of the Securities so distributed applicable to
one share of Common Stock and the denominator shall be the
Current Market Price per share of the Common Stock, such
reduction to become effective immediately prior to the
opening of business on the day following such Record Date;
provided, however, that in the event the then fair market
value (as so determined) of the portion of the Securities so
distributed applicable to one share of Common Stock is equal
to or greater than the Current Market Price of the Common
Stock on the Record Date, in lieu of the foregoing
adjustment, adequate provision shall be made so that each
Noteholder shall have the right to receive upon conversion
the amount of Securities such holder would have received had
such holder converted each Note on the Record Date. In the
event that such dividend or distribution is not so paid or
made, the Conversion Price shall again be adjusted to be the
Conversion Price which would then be in effect if such
dividend or distribution had not been declared. If the
Board of Directors determines the fair market value of any
distribution for purposes of this Section 15.5(d) by
reference to the actual or when issued trading market for
any securities, it must in doing so consider the prices in
such market over the same period used in computing the
Current Market Price of the Common Stock.
Each share of Common Stock issued upon conversion of
Notes pursuant to this Article XV shall be entitled to
receive the appropriate number of Rights, if any, and the
certificates representing the Common Stock issued upon such
conversion shall bear such legends, if any, in each case as
provided by and subject to the terms of the Rights Agreement
as in effect at the time of such conversion. If the Rights
are separated from the Common Stock in accordance with the
provisions of the Rights Agreement such that the holders of
Notes would thereafter not be entitled to receive any such
Rights in respect to the Common Stock issuable upon
conversion of such Notes, the Conversion Price will be
adjusted as provided in this Section 15.5(d) on the
separation date; provided that if such Rights expire,
terminate or are redeemed by the Company, the Conversion
Price shall again be adjusted to be the Conversion Price
which would then be in effect if such separation had not
occurred. In lieu of any such adjustment, the Company may
amend the Rights Agreement to provide that upon conversion
of the Notes the holders will receive, in addition to the
Common Stock issuable upon such conversion, the Rights which
would have attached to such shares of Common Stock if the
Rights had not become separated from the Common Stock
pursuant to the provisions of the Rights Agreement.
Rights or warrants distributed by the Company to all
holders of Common Stock entitling the holders thereof to
subscribe for or purchase shares of the Company's capital
stock (either initially or under certain circumstances),
which rights or warrants, until the occurrence of a
specified event or events ("Trigger Event"): (i) are deemed
to be transferred with such shares of Common Stock; (ii) are
not exercisable; and (iii) are also issued in respect of
future issuances of Common Stock, shall be deemed not to
have been distributed for purposes of this Section 15.5 (and
no adjustment to the Conversion Price under this
Section 15.5 will be required) until the occurrence of the
earliest Trigger Event, whereupon such rights and warrants
shall be deemed to have been distributed and an appropriate
adjustment (if any is required) to the Conversion Price
shall be made under this Section 15.5(d). If any such right
or warrant, including any such existing rights or warrants
distributed prior to the date of this Indenture, are subject
to events, upon the occurrence of which such rights or
warrants become exercisable to purchase different
securities, evidences of indebtedness or other assets, then
the date of the occurrence of any and each such event shall
be deemed to be the date of distribution and record date
with respect to new rights or warrants with such rights (and
a termination or expiration of the existing rights or
warrants without exercise by any of the holders thereof).
In addition, in the event of any distribution (or deemed
distribution) of rights or warrants, or any Trigger Event or
other event (of the type described in the preceding
sentence) with respect thereto that was counted for purposes
of calculating a distribution amount for which an adjustment
to the Conversion Price under this Section 15.5 was made,
(1) in the case of any such rights or warrants which shall
all have been redeemed or repurchased without exercise by
any holders thereof, the Conversion Price shall be
readjusted upon such final redemption or repurchase to give
effect to such distribution or Trigger Event, as the case
may be, as though it were a cash distribution, equal to the
per share redemption or repurchase price received by a
holder or holders of Common Stock with respect to such
rights or warrants (assuming such holder had retained such
rights or warrants), made to all holders of Common Stock as
of the date of such redemption or repurchase, and (2) in the
case of such rights or warrants which shall have expired or
been terminated without exercise by any holders thereof, the
Conversion Price shall be readjusted as if such rights and
warrants had not been issued.
For purposes of this Section 15.5(d) and
Sections 15.5(a) and (b), any dividend or distribution to
which this Section 15.5(d) is applicable that also includes
shares of Common Stock, or rights or warrants to subscribe
for or purchase shares of Common Stock (or both), shall be
deemed instead to be (1) a dividend or distribution of the
evidences of indebtedness, assets or shares of capital stock
other than such shares of Common Stock or rights or warrants
(and any Conversion Price reduction required by this
Section 15.5(d) with respect to such dividend or
distribution shall then be made) immediately followed by (2)
a dividend or distribution of such shares of Common Stock or
such rights or warrants (and any further Conversion Price
reduction required by Sections 15.5(a) and (b) with respect
to such dividend or distribution shall then be made), except
(A) the Record Date of such dividend or distribution shall
be substituted as "the date fixed for the determination of
stockholders entitled to receive such dividend or other
distribution" and "the date fixed for such determination"
within the meaning of Sections 15.5(a) and (b) and (B) any
shares of Common Stock included in such dividend or
distribution shall not be deemed "outstanding at the close
of business on the date fixed for such determination" within
the meaning of Section 15.5(a).
(e) In case the Company shall, by dividend or
otherwise, distribute to all holders of its Common Stock
cash (excluding (x) any quarterly cash dividend on the
Common Stock to the extent the aggregate cash dividend per
share of Common Stock in any fiscal quarter does not exceed
the greater of (A) the amount per share of Common Stock of
the next preceding quarterly cash dividend on the Common
Stock to the extent that such preceding quarterly dividend
did not require any adjustment of the Conversion Price
pursuant to this Section 15.5(e) (as adjusted to reflect
subdivisions or combinations of the Common Stock), and (B)
3.75% of the arithmetic average of the Closing Price
(determined as set forth in Section 15.5(h)) during the ten
Trading Days (as defined in Section 15.5(h)) immediately
prior to the date of declaration of such dividend, and (y)
any dividend or distribution in connection with the
liquidation, dissolution or winding up of the Company,
whether voluntary or involuntary), then, in such case, the
Conversion Price shall be reduced so that the same shall
equal the price determined by multiplying the Conversion
Price in effect immediately prior to the close of business
on such Record Date by a fraction of which the numerator
shall be the Current Market Price of the Common Stock on the
Record Date less the amount of cash so distributed (and not
excluded as provided above) applicable to one share of
Common Stock and the denominator shall be such Current
Market Price of the Common Stock, such reduction to be
effective immediately prior to the opening of business on
the day following the Record Date; provided, however, that
in the event the portion of the cash so distributed
applicable to one share of Common Stock is equal to or
greater than the Current Market Price of the Common Stock on
the Record Date, in lieu of the foregoing adjustment,
adequate provision shall be made so that each Noteholder
shall have the right to receive upon conversion the amount
of cash such holder would have received had such holder
converted each Note on the Record Date. In the event that
such dividend or distribution is not so paid or made, the
Conversion Price shall again be adjusted to be the
Conversion Price which would then be in effect if such
dividend or distribution had not been declared. If any
adjustment is required to be made as set forth in this
Section 15.5(e) as a result of a distribution that is a
quarterly dividend, such adjustment shall be based upon the
amount by which such distribution exceeds the amount of the
quarterly cash dividend permitted to be excluded pursuant
hereto. If an adjustment is required to be made as set
forth in this Section 15.5(e) above as a result of a
distribution that is not a quarterly dividend, such
adjustment shall be based upon the full amount of the
distribution.
(f) In case a tender or exchange offer made by the
Company or any subsidiary of the Company for all or any
portion of the Common Stock shall expire and such tender or
exchange offer (as amended upon the expiration thereof)
shall require the payment to stockholders of consideration
per share of Common Stock having a fair market value (as
determined by the Board of Directors, whose determination
shall be conclusive and described in a resolution of the
Board if Directors) that as of the last time (the
"Expiration Time") tenders or exchanges may be made pursuant
to such tender or exchange offer (as it may be amended) that
exceeds the Current Market Price of the Common Stock on the
Trading Day next succeeding the Expiration Time, the
Conversion Price shall be reduced so that the same shall
equal the price determined by multiplying the Conversion
Price in effect immediately prior to the Expiration Time by
a fraction of which the numerator shall be the number of
shares of Common Stock outstanding (including any tendered
or exchanged shares) on the Expiration Time multiplied by
the Current Market Price of the Common Stock on the Trading
Day next succeeding the Expiration Time and the denominator
shall be the sum of (x) the fair market value (determined as
aforesaid) of the aggregate consideration payable to
shareholders based on the acceptance (up to any maximum
specified in the terms of the tender or exchange offer) of
all shares validly tendered or exchanged and not withdrawn
as of the Expiration Time (the shares deemed so accepted, up
to any such maximum, being referred to as the "Purchased
Shares") and (y) the product of the number of shares of
Common Stock outstanding (less any Purchased Shares) on the
Expiration Time and the Current Market Price of the Common
Stock on the Trading Day next succeeding the Expiration
Time, such reduction to become effective immediately prior
to the opening of business on the day following the
Expiration Time. In the event that the Company is obligated
to purchase shares pursuant to any such tender or exchange
offer, but the Company is permanently prevented by
applicable law from effecting any such purchases or all such
purchases are rescinded, the Conversion Price shall again be
adjusted to be the Conversion Price which would then be in
effect if such tender or exchange offer had not been made.
(g) In case of a tender or exchange offer made by a
person other than the Company or any Subsidiary for an
amount which increases the offeror's ownership of Common
Stock to more than 25% of the Common Stock outstanding and
shall involve the payment by such person of consideration
per share of Common Stock having a fair market value (as
determined by the Board of Directors, whose determination
shall be conclusive, and described in a resolution of the
Board of Directors) at the last time (the "Expiration Time")
tenders or exchanges may be made pursuant to such tender or
exchange offer (as it shall have been amended) that exceeds
the Current Market Price of the Common Stock on the Trading
Day next succeeding the Expiration Time, and in which, as of
the Expiration Time the Board of Directors is not
recommending rejection of the offer, the Conversion Price
shall be reduced so that the same shall equal the price
determined by multiplying the Conversion Price in effect
immediately prior to the Expiration Time by a fraction of
which the numerator shall be the number of shares of Common
Stock outstanding (including any tendered or exchanged
shares) on the Expiration Time multiplied by the current
Market Price of the Common Stock on the Trading Day next
succeeding the Expiration Time and the denominator shall be
the sum of (x) the fair market value (determined as
aforesaid) of the aggregate consideration payable to
stockholders based on the acceptance (up to any maximum
specified in the terms of the tender or exchange offer) of
all shares validly tendered or exchanged and not withdrawn
as of the Expiration Time (the shares deemed so accepted, up
to any such maximum, being referred to as the "Purchased
Shares") and (y) the product of the number of shares of
Common Stock outstanding (less any Purchased Shares) on the
Expiration Time and the Current Market Price of the Common
Stock on the Trading Day next succeeding the Expiration
Time, such reduction to become effective immediately prior
to the opening of business on the day following the
Expiration Time. In the event that such person is obligated
to purchase shares pursuant to any such tender or exchange
offer, but such person is permanently prevented by
applicable law from effecting any such purchases or all such
purchases are rescinded, the Conversion Price shall again be
adjusted to be the Conversion Price which would then be in
effect if such tender or exchange offer had not been made.
Notwithstanding the foregoing, the adjustment described in
this Section 15.5(g) shall not be made if, as of the
Expiration Time, the offering documents with respect to such
offer disclose a plan or intention to cause the Company to
engage in any transaction described in Article XII.
(h) For purposes of this Section 15.5, the following
terms shall have the meaning indicated:
(1) "Closing Price" with respect to any
securities on any day shall mean the closing sale price
regular way on such day or, in case no such sale takes
place on such day, the average of the reported closing
bid and asked prices, regular way, in each case on the
New York Stock Exchange, or, if such security is not
listed or admitted to trading on such Exchange, on the
principal national security exchange or quotation
system on which such security is quoted or listed or
admitted to trading, or, if not quoted or listed or
admitted to trading on any national securities exchange
or quotation system, the average of the closing bid and
asked prices of such security on the over-the-counter
market on the day in question as reported by the
National Quotation Bureau Incorporated, or a similar
generally accepted reporting service, or if not so
available, in such manner as furnished by any New York
Stock Exchange member firm selected from time to time
by the Board of Directors for that purpose, or a price
determined in good faith by the Board of Directors or,
to the extent permitted by applicable law, a duly
authorized committee thereof, whose determination shall
be conclusive.
(2) "Current Market Price" shall mean the average
of the daily Closing Prices per share of Common Stock
for the ten consecutive Trading Days immediately prior
to the date in question; provided, however, that (1) if
the "ex" date (as hereinafter defined) for any event
(other than the issuance or distribution or Fundamental
Change requiring such computation) that requires an
adjustment to the Conversion Price pursuant to
Section 15.5(a), (b), (c), (d), (e), (f) or (g) occurs
during such ten consecutive Trading Days, the Closing
Price for each Trading Day prior to the "ex" date for
such other event shall be adjusted by multiplying such
Closing Price by the same fraction by which the
Conversion Price is so required to be adjusted as a
result of such other event, (2) if the "ex" date for
any event (other than the issuance, distribution or
Fundamental Change requiring such computation) that
requires an adjustment to the Conversion Price pursuant
to Section 15.5(a), (b), (c), (d), (e), (f) or (g)
occurs on or after the "ex" date for the issuance or
distribution requiring such computation and prior to
the day in question, the Closing Price for each Trading
Day on and after the "ex" date for such other event
shall be adjusted by multiplying such Closing Price by
the reciprocal of the fraction by which the Conversion
Price is so required to be adjusted as a result of such
other event, and (3) if the "ex" date for the issuance,
distribution or Fundamental Change requiring such
computation is prior to the day in question, after
taking into account any adjustment required pursuant to
clause (1) or (2) of this proviso, the Closing Price
for each Trading Day on or after such "ex" date shall
be adjusted by adding thereto the amount of any cash
and the fair market value (as determined by the Board
of Directors or, to the extent permitted by applicable
law, a duly authorized committee thereof in a manner
consistent with any determination of such value for
purposes of Section 15.5(d), (f) or (g), whose
determination shall be conclusive and described in a
resolution of the Board of Directors or such duly
authorized committee thereof, as the case may be) of
the evidences of indebtedness, shares of capital stock
or assets being distributed applicable to one share of
Common Stock as of the close of business on the day
before such "ex" date. For purposes of any computation
under Section 15.5(f) or (g), the Current Market Price
of the Common Stock on any date shall be deemed to be
the average of the daily Closing Prices per share of
Common Stock for such day and the next two succeeding
Trading Days; provided, however, that if the "ex" date
for any event (other than the tender or exchange offer
requiring such computation) that requires an adjustment
to the Conversion Price pursuant to Section 15.5(a),
(b), (c), (d), (e), (f) or (g) occurs on or after the
Expiration Time for the tender or exchange offer
requiring such computation and prior to the day in
question, the Closing Price for each Trading Day on and
after the "ex" date for such other event shall be
adjusted by multiplying such Closing Price by the
reciprocal of the fraction by which the Conversion
Price is so required to be adjusted as a result of such
other event. For purposes of this paragraph, the term
"ex" date, (1) when used with respect to any issuance
or distribution, means the first date on which the
Common Stock trades regular way on the relevant
exchange or in the relevant market from which the
Closing Price was obtained without the right to receive
such issuance or distribution, (2) when used with
respect to any subdivision or combination of shares of
Common Stock, means the first date on which the Common
Stock trades regular way on such exchange or in such
market after the time at which such subdivision or
combination becomes effective, and (3) when used with
respect to any tender or exchange offer means the first
date on which the Common Stock trades regular way on
such exchange or in such market after the Expiration
Time of such offer.
(3) "fair market value" shall mean the amount
which a willing buyer would pay a willing seller in an
arm's length transaction.
(4) "Record Date" shall mean, with respect to any
dividend, distribution or other transaction or event in
which the holders of Common Stock have the right to
receive any cash, securities or other property or in
which the Common Stock (or other applicable security)
is exchanged for or converted into any combination of
cash, securities or other property, the date fixed for
determination of shareholders entitled to receive such
cash, securities or other property (whether such date
is fixed by the Board of Directors or by statute,
contract or otherwise).
(5) "Trading Day" shall mean (x) if the
applicable security is listed or admitted for trading
on the New York Stock Exchange or another national
security exchange, a day on which the New York Stock
Exchange or another national security exchange is open
for business or (y) if the applicable security is
quoted on the Nasdaq National Market, a day on which
trades may be made on thereon or (z) if the applicable
security is not so listed, admitted for trading or
quoted, any day other than a Saturday or Sunday or a
day on which banking institutions in the State of New
York are authorized or obligated by law or executive
order to close.
(i) The Company may make such reductions in the
Conversion Price, in addition to those required by
Sections 15.5 (a), (b), (c), (d), (e), (f) and (g), as the
Board of Directors considers to be advisable to avoid or
diminish any income tax to holders of Common Stock or rights
to purchase Common Stock resulting from any dividend or
distribution of stock (or rights to acquire stock) or from
any event treated as such for income tax purposes.
To the extent permitted by applicable law, the Company
from time to time may reduce the Conversion Price by any
amount for any period of time if the period is at least
twenty (20) days, the reduction is irrevocable during the
period and the Board of Directors shall have made a
determination that such reduction would be in the best
interests of the Company, which determination shall be
conclusive. Whenever the Conversion Price is reduced
pursuant to the preceding sentence, the Company shall mail
to holders of record of the Notes a notice of the reduction
at least fifteen (15) days prior to the date the reduced
Conversion Price takes effect, and such notice shall state
the reduced Conversion Price and the period during which it
will be in effect.
(j) No adjustment in the Conversion Price shall be
required unless such adjustment would require an increase or
decrease of at least 1% in such price; provided, however,
that any adjustments which by reason of this Section 15.5(j)
are not required to be made shall be carried forward and
taken into account in any subsequent adjustment. All
calculations under this Article XV shall be made by the
Company and shall be made to the nearest cent or to the
nearest one hundredth of a share, as the case may be. No
adjustment need be made for rights to purchase Common Stock
pursuant to a Company plan for reinvestment of dividends or
interest. To the extent the Notes become convertible into
cash, assets, property or securities (other than capital
stock of the Company), no adjustment need be made thereafter
as to the cash, assets, property or such securities.
Interest will not accrue on the cash.
(k) Whenever the Conversion Price is adjusted as
herein provided, the Company shall promptly file with the
Trustee and any conversion agent other than the Trustee an
Officers' Certificate setting forth the Conversion Price
after such adjustment and setting forth a brief statement of
the facts requiring such adjustment. Promptly after
delivery of such certificate, the Company shall prepare a
notice of such adjustment of the Conversion Price setting
forth the adjusted Conversion Price and the date on which
each adjustment becomes effective and shall mail such notice
of such adjustment of the Conversion Price to the holder of
each Note at his last address appearing on the Note register
provided for in Section 2.5 of this Indenture, within 20
days after execution thereof. Failure to deliver such
notice shall not affect the legality or validity of any such
adjustment.
(l) In any case in which this Section 15.5 provides
that an adjustment shall become effective immediately after
a record date for an event, the Company may defer until the
occurrence of such event (i) issuing to the holder of any
Note converted after such record date and before the
occurrence of such event the additional shares of Common
Stock issuable upon such conversion by reason of the
adjustment required by such event over and above the Common
Stock issuable upon such conversion before giving effect to
such adjustment and (ii) paying to such holder any amount in
cash in lieu of any fraction pursuant to Section 15.3.
(m) For purposes of this Section 15.5, the number of
shares of Common Stock at any time outstanding shall not
include shares held in the treasury of the Company but shall
include shares issuable in respect of scrip certificates
issued in lieu of fractions of shares of Common Stock. The
Company will not pay any dividend or make any distribution
on shares of Common Stock held in the treasury of the
Company.
Section 15.6 Effect of Reclassification, Consolidation,
Merger or Sale. If any of the following events occur, namely (i)
any reclassification or change of the outstanding shares of
Common Stock (other than a subdivision or combination to which
Section 15.5(c) applies), (ii) any consolidation, merger or
combination of the Company with another corporation as a result
of which holders of Common Stock shall be entitled to receive
stock, securities or other property or assets (including cash)
with respect to or in exchange for such Common Stock, or (iii)
any sale or conveyance of the properties and assets of the
Company as, or substantially as, an entirety to any other
corporation as a result of which holders of Common Stock shall be
entitled to receive stock, securities or other property or assets
(including cash) with respect to or in exchange for such Common
Stock, then the Company or the successor or purchasing
corporation, as the case may be, shall execute with the Trustee a
supplemental indenture (which shall comply with the Trust
Indenture Act as in force at the date of execution of such
supplemental indenture) providing that such Note shall be
convertible into the kind and amount of shares of stock and other
securities or property or assets (including cash) receivable upon
such reclassification, change, consolidation, merger,
combination, sale or conveyance by a holder of a number of shares
of Common Stock issuable upon conversion of such Notes (assuming,
for such purposes, a sufficient number of authorized shares of
Common Stock available to convert all such Notes) immediately
prior to such reclassification, change, consolidation, merger,
combination, sale or conveyance assuming such holder of Common
Stock did not exercise his rights of election, if any, as to the
kind or amount of securities, cash or other property receivable
upon such consolidation, merger, statutory exchange, sale or
conveyance (provided that, if the kind or amount of securities,
cash or other property receivable upon such consolidation,
merger, statutory exchange, sale or conveyance is not the same
for each share of Common Stock in respect of which such rights of
election shall not have been exercised ("nonelecting share")),
then for the purposes of this Section 15.6 the kind and amount of
securities, cash or other property receivable upon such
consolidation, merger, statutory exchange, sale or conveyance for
each non-electing share shall be deemed to be the kind and amount
so receivable per share by a plurality of the non-electing
shares. Such supplemental indenture shall provide for
adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Article.
The Company shall cause notice of the execution of such
supplemental indenture to be mailed to each holder of Notes, at
his address appearing on the Note register provided for in
Section 2.5 of this Indenture, within twenty (20) days after
execution thereof. Failure to deliver such notice shall not
affect the legality or validity of such supplemental indenture.
The above provisions of this Section shall similarly apply
to successive reclassifications, changes, consolidations,
mergers, combinations, sales and conveyances.
If this Section 15.6 applies to any event or occurrence,
Section 15.5 shall not apply.
Section 15.7 Taxes on Shares Issued. The issue of stock
certificates on conversions of Notes shall be made without charge
to the converting Noteholder for any tax in respect of the issue
thereof. The Company shall not, however, be required to pay any
tax which may be payable in respect of any transfer involved in
the issue and delivery of stock in any name other than that of
the holder of any Note converted, and the Company shall not be
required to issue or deliver any such stock certificate unless
and until the person or persons requesting the issue thereof
shall have paid to the Company the amount of such tax or shall
have established to the satisfaction of the Company that such tax
has been paid.
Section 15.8 Reservation of Shares; Shares to Be Fully
Paid; Compliance with Governmental Requirements; Listing of
Common Stock. The Company shall provide, free from preemptive
rights, out of its authorized but unissued shares or shares held
in treasury, sufficient shares of Common Stock to provide for the
conversion of the Notes from time to time as such Notes are
presented for conversion.
Before taking any action which would cause an adjustment
reducing the Conversion Price below the then par value, if any,
of the shares of Common Stock issuable upon conversion of the
Notes, the Company will take all corporate action which may, in
the opinion of its counsel, be necessary in order that the
Company may validly and legally issue shares of such Common Stock
at such adjusted Conversion Price.
The Company covenants that all shares of Common Stock which
may be issued upon conversion of Notes will upon issue be fully
paid and non-assessable by the Company and free from all taxes,
liens and charges with respect to the issue thereof.
The Company covenants that if any shares of Common Stock to
be provided for the purpose of conversion of Notes hereunder
require registration with or approval of any governmental
authority under any federal or state law before such shares may
be validly issued upon conversion, the Company will in good faith
and as expeditiously as possible endeavor to secure such
registration or approval, as the case may be.
The Company further covenants that if at any time the Common
Stock shall be listed on the Nasdaq National Market or any other
national securities exchange or automated quotation system the
Company will, if permitted by the rules of such exchange or
automated quotation system, list and keep listed, so long as the
Common Stock shall be so listed on such exchange or automated
quotation system, all Common Stock issuable upon conversion of
the Notes; provided, however, that if rules of such exchange or
automated quotation system permit the Company to defer the
listing of such Common Stock until the first conversion of the
Notes into Common Stock in accordance with the provisions of this
Indenture, the Company covenants to list such Common Stock
issuable upon conversion of the Notes in accordance with the
requirements of such exchange or automated quotation system at
such time.
Section 15.9 Responsibility of Trustee. The Trustee and
any other conversion agent shall not at any time be under any
duty or responsibility to any holder of Notes to determine
whether any facts exist which may require any adjustment of the
Conversion Price, or with respect to the nature or extent or
calculation of any such adjustment when made, or with respect to
the method employed, or herein or in any supplemental indenture
provided to be employed, in making the same. The Trustee and any
other conversion agent shall not be accountable with respect to
the validity or value (or the kind or amount) of any shares of
Common Stock, or of any securities or property, which may at any
time be issued or delivered upon the conversion of any Note; and
the Trustee and any other conversion agent make no
representations with respect thereto. Subject to the provisions
of Section 8.1, neither the Trustee nor any conversion agent
shall be responsible for any failure of the Company to issue,
transfer or deliver any shares of Common Stock or stock
certificates or other securities or property or cash upon the
surrender of any Note for the purpose of conversion or to comply
with any of the duties, responsibilities or covenants of the
Company contained in this Article. Without limiting the
generality of the foregoing, neither the Trustee nor any
conversion agent shall be under any responsibility to determine
the correctness of any provisions contained in any supplemental
indenture entered into pursuant to Section 15.6 relating either
to the kind or amount of shares of stock or securities or
property (including cash) receivable by Noteholders upon the
conversion of their Notes after any event referred to in such
Section 15.6 or to any adjustment to be made with respect
thereto, but, subject to the provisions of Section 8.1, may
accept as conclusive evidence of the correctness of any such
provisions, and shall be protected in relying upon, the Officers'
Certificate (which the Company shall be obligated to file with
the Trustee prior to the execution of any such supplemental
indenture) with respect thereto.
Section 15.10 Notice to Holders Prior to Certain Actions.
In case:
(a) the Company shall declare a dividend (or any other
distribution) on its Common Stock that would require an
adjustment in the Conversion Price pursuant to Section 15.5;
or
(b) the Company shall authorize the granting to the
holders of its Common Stock of rights or warrants to
subscribe for or purchase any share of any class or any
other rights or warrants; or
(c) of any reclassification or reorganization of the
Common Stock of the Company (other than a subdivision or
combination of its outstanding Common Stock, or a change in
par value, or from par value to no par value, or from no par
value to par value), or of any consolidation or merger to
which the Company is a party and for which approval of any
shareholders of the Company is required, or of the sale or
transfer of all or substantially all of the assets of the
Company; or
(d) of the voluntary or involuntary dissolution,
liquidation or winding-up of the Company;
the Company shall cause to be filed with the Trustee and to be
mailed to each holder of Notes at his address appearing on the
Note register provided for in Section 2.5 of this Indenture, as
promptly as possible but in any event at least fifteen (15) days
prior to the applicable date hereinafter specified, a notice
stating (x) the date on which a record is to be taken for the
purpose of such dividend, distribution or rights or warrants, or,
if a record is not to be taken, the date as of which the holders
of Common Stock of record to be entitled to such dividend,
distribution or rights are to be determined, or (y) the date on
which such reclassification, consolidation, merger, sale,
transfer, dissolution, liquidation or winding-up is expected to
become effective or occur, and the date as of which it is
expected that holders of Common Stock of record shall be entitled
to exchange their Common Stock for securities or other property
deliverable upon such reclassification, consolidation, merger,
sale, transfer, dissolution, liquidation or winding-up. Failure
to give such notice, or any defect therein, shall not affect the
legality or validity of such dividend, distribution,
reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding-up.
ARTICLE XVI
MISCELLANEOUS PROVISIONS
Section 16.1 Provisions Binding on Company's Successors.
All the covenants, stipulations, promises and agreements by the
Company contained in this Indenture shall bind its successors and
assigns whether so expressed or not.
Section 16.2 Official Acts by Successor Corporation. Any
act or proceeding by any provision of this Indenture authorized
or required to be done or performed by any board, committee or
officer of the Company shall and may be done and performed with
like force and effect by the like board, committee or officer of
any corporation that shall at the time be the lawful sole
successor of the Company.
Section 16.3 Addresses for Notices, Etc. Any notice or
demand which by any provision of this Indenture is required or
permitted to be given or served by the Trustee or by the holders
of Notes on the Company shall be deemed to have been sufficiently
given or made, for all purposes, if given or served by being
deposited postage prepaid by registered or certified mail in a
post office letter box addressed (until another address is filed
by the Company with the Trustee) to Xilinx, Inc., 2100 Logic
Drive, San Jose, California 95124, Attention: Chief Financial
Officer. Any notice, direction, request or demand hereunder to
or upon the Trustee shall be deemed to have been sufficiently
given or made, for all purposes, if given or served by being
deposited postage prepaid by registered or certified mail in a
post office letter box addressed to the Corporate Trust Office,
which office is, at the date as of which this Indenture is dated,
located at 2 International Place, 4th Floor, Boston
Massachusetts, 02110, Attention: Corporate Trust Division
(Xilinx, Inc. 5 1/4% Convertible Subordinated Notes due 2002).
The Trustee, by notice to the Company, may designate
additional or different addresses for subsequent notices or
communications.
Any notice or communication mailed to a Noteholder shall be
mailed to him by first class mail, postage prepaid, at his
address as it appears on the Note register and shall be
sufficiently given to him if so mailed within the time
prescribed.
Failure to mail a notice or communication to a Noteholder or
any defect in it shall not affect its sufficiency with respect to
other Noteholders. If a notice or communication is mailed in the
manner provided above, it is duly given, whether or not the
addressee receives it.
Section 16.4 Governing Law. This Indenture and each Note
shall be deemed to be a contract made under the laws of New York,
and for all purposes shall be construed in accordance with the
laws of New York.
Section 16.5 Evidence of Compliance with Conditions
Precedent; Certificates to Trustee. Upon any application or
demand by the Company to the Trustee to take any action under any
of the provisions of this Indenture, the Company shall furnish to
the Trustee an Officers' Certificate stating that all conditions
precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with, and an Opinion of
Counsel stating that, in the opinion of such counsel, all such
conditions precedent have been complied with.
Each certificate or opinion provided for in this Indenture
and delivered to the Trustee with respect to compliance with a
condition or covenant provided for in this Indenture shall
include (1) a statement that the person making such certificate
or opinion has read such covenant or condition; (2) a brief
statement as to the nature and scope of the examination or
investigation upon which the statement or opinion contained in
such certificate or opinion is based; (3) a statement that, in
the opinion of such person, he has made such examination or
investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition
has been complied with; and (4) a statement as to whether or not,
in the opinion of such person, such condition or covenant has
been complied with.
Section 16.6 Legal Holidays. In any case where the date
of maturity of interest on or principal of the Notes or the date
fixed for redemption of any Note will not be a Business Day, then
payment of such interest on or principal of the Notes need not be
made on such date, but may be made on the next succeeding
Business Day with the same force and effect as if made on the
date of maturity or the date fixed for redemption, and no
interest shall accrue for the period from and after such date.
Section 16.7 Trust Indenture Act. This Indenture is
hereby made subject to, and shall be governed by, the provisions
of the Trust Indenture Act required to be part of and to govern
indentures qualified under the Trust Indenture Act; provided,
however, that, unless otherwise required by law, notwithstanding
the foregoing, this Indenture and the Notes issued hereunder
shall not be subject to the provisions of subsections (a)(1),
(a)(2), and (a)(3) of Section 314 of the Trust Indenture Act as
now in effect or as hereafter amended or modified; provided,
further, that this Section 16.7 shall not require this Indenture
or the Trustee to be qualified under the Trust Indenture Act
prior to the time such qualification is in fact required under
the terms of the Trust Indenture Act, nor shall it constitute any
admission or acknowledgment by any party to such supplemental
indenture that any such qualification is required prior to the
time such qualification is in fact required under the terms of
the Trust Indenture Act. If any provision hereof limits,
qualifies or conflicts with another provision hereof which is
required to be included in an indenture qualified under the Trust
Indenture Act, such required provision shall control.
Section 16.8 No Security Interest Created. Nothing in
this Indenture or in the Notes, expressed or implied, shall be
construed to constitute a security interest under the Uniform
Commercial Code or similar legislation, as now or hereafter
enacted and in effect, in any jurisdiction where property of the
Company or its subsidiaries is located.
Section 16.9 Benefits of Indenture. Nothing in this
Indenture or in the Notes, expressed or implied, shall give to
any Person, other than the parties hereto, any paying agent, any
authenticating agent, any Note registrar and their successors
hereunder, the holders of Notes and the holders of Senior
Indebtedness, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
Section 16.10 Table of Contents, Headings, Etc. The table
of contents and the titles and headings of the articles and
sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part hereof, and shall
in no way modify or restrict any of the terms or provisions
hereof.
Section 16.11 Authenticating Agent. The Trustee may
appoint an authenticating agent which shall be authorized to act
on its behalf and subject to its direction in the authentication
and delivery of Notes in connection with the original issuance
thereof and transfers and exchanges of Notes hereunder, including
under Sections 2.4, 2.5, 2.6, 2.7, 3.3 and 3.5, as fully to all
intents and purposes as though the authenticating agent had been
expressly authorized by this Indenture and those Sections to
authenticate and deliver Notes. For all purposes of this
Indenture, the authentication and delivery of Notes by the
authenticating agent shall be deemed to be authentication and
delivery of such Notes "by the Trustee" and a certificate of
authentication executed on behalf of the Trustee by an
authenticating agent shall be deemed to satisfy any requirement
hereunder or in the Notes for the Trustee's certificate of
authentication. Such authenticating agent shall at all times be
a person eligible to serve as trustee hereunder pursuant to
Section 8.9.
Any corporation into which any authenticating agent may be
merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, consolidation or
conversion to which any authenticating agent shall be a party, or
any corporation succeeding to the corporate trust business of any
authenticating agent, shall be the successor of the
authenticating agent hereunder, if such successor corporation is
otherwise eligible under this Section 16.11, without the
execution or filing of any paper or any further act on the part
of the parties hereto or the authenticating agent or such
successor corporation.
Any authenticating agent may at any time resign by giving
written notice of resignation to the Trustee and to the Company.
The Trustee may at any time terminate the agency of any
authenticating agent by giving written notice of termination to
such authenticating agent and to the Company. Upon receiving
such a notice of resignation or upon such a termination, or in
case at any time any authenticating agent shall cease to be
eligible under this Section, the Trustee shall promptly appoint a
successor authenticating agent (which may be the Trustee), shall
give written notice of such appointment to the Company and shall
mail notice of such appointment to all holders of Notes as the
names and addresses of such holders appear on the Note register.
The Trustee agrees to pay to the authenticating agent from
time to time reasonable compensation for its services (to the
extent pre-approved by the Company in writing), and the Trustee
shall be entitled to be reimbursed for such pre-approved
payments, subject to Section 8.6.
The provisions of Sections 8.2, 8.3, 8.4, 9.3 and this
Section 16.11 shall be applicable to any authenticating agent.
Section 16.12 Execution in Counterparts. This Indenture
may be executed in any number of counterparts, each of which
shall be an original, but such counterparts shall together
constitute but one and the same instrument.
State Street Bank and Trust Company hereby accepts the
trusts in this Indenture declared and provided, upon the terms
and conditions hereinabove set forth.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly signed, all as of the date first written
above.
XILINX, INC.
By: /s/ Robert C. Hinckley
Name: Robert C. Hinckley
Title: Vice President
STATE STREET BANK AND TRUST COMPANY,
as Trustee
By: /s/ Gary Dougherty
Name: Gary Dougherty
Title: Assistant Vice President
EXHIBIT 10.13
January 5, 1996
Mr. Willem P. Roelandts
802 Mesa Court
Palo Alto, CA 94306
Dear Wim,
We are pleased to offer you a position with Xilinx, Inc. as Chief
Executive Officer reporting directly to the Board of Directors.
The salary for this position will be $41,667.00 per month
(subject to annual focal review). Your Management Incentive
Bonus will be targeted at 60% of your base pay and will be based
on performance goals set by the Board. The first two FY97
quarters will be guaranteed (April - September 1996).
In addition, you will be offered a nonstatutory stock option to
acquire 800,000 shares of common stock at a price per share
equivalent to the fair market value, which will be set on your
date of hire, in a meeting of the Compensation Committee of the
Board of Directors. These options will vest at the rate of 1.66%
per month for the following five (5) years and will start from
your date of hire.
As an additional company paid benefit, Xilinx will provide you a
6 million dollar Term Life Insurance Policy for a period of 2
years following your commencement of employment with
beneficiaries to be designated at your sole discretion.
Other benefits include, but are not limited to, group medical and
dental insurance for you and your dependent(s) and company paid
life and long-term disability insurance for you.
Upon commencement of your employment, I will ask the Board to
appoint you as a member of the Board of Directors with the
understanding that all board positions are subject to shareholder
approval each year at the Annual Meeting.
In the event of a change in control due to the sale or merger of
the Company, and you are terminated by the Company without cause
within one year of the change in control, you will be eligible
for two years' base pay, two years' target bonus, two years'
medical and dental insurance and all unvested stock options will
be vested. Medical and dental coverage will include premium
payments under COBRA for 18 months continuation of the Company's
existing policies and payment of premiums (not to exceed the
existing premium amounts) for an additional 6 months under a
policy selected by you.
Mr. Willem P. Roelandts
Page Two
January 5, 1996
A "change in control" of the Company shall be deemed to have
occurred if:
(a) any person or entity is or becomes the beneficial
owner, directly or indirectly, of securities
of the company representing 50% or more of the
combined voting power of the Company's then outstanding
securities;
(b) there occurs a merger or consolidation of the Company
with any other corporation, other than 1) a merger or
consolidation which would result in the voting securities
of the Company outstanding immediately prior thereto
continuing to represent(either by remaining outstanding
or by being converted into voting securities of the
surviving entity) more than 50% of the combined voting
power of the voting securities of the Company or such
surviving entity outstanding immediately after such
merger or consolidation or 2) a merger or consolidation
effected to implement a recapitalization of the Company
(or similar transaction) in which no person or entity
acquires more than 50% or more of the combined voting power
of the Company's then outstanding securities; or
(c) the Company sells or disposes of all or substantially
all of the Company's assets.
In the event your employment with Xilinx is terminated for any
reason by Xilinx other than for cause within the first two years
of employment, you will be eligible for two years' base pay, two
years' target bonus, and two years' medical and dental insurance
and the company will vest any unvested shares of your new hire
stock options that would have vested had you remained an employee
for two full years from the commencement of your employment.
Medical and dental coverage will include premium payments under
COBRA for 18 months continuation of the Company's existing
policies and payment of premiums (not to exceed the existing
premium amounts) for an additional 6 months under a policy
selected by you.
In the event you are terminated for cause or leave the company
voluntarily, you will not be eligible for any severance payments.
For purposes of this offer, "cause" is described as the
commission of a felony, or the commission of any act which
materially, adversely affects the Company.
Mr. Willem P. Roelandts
Page Three
January 5, 1996
Should any dispute arise regarding this offer of employment, we
agree that we will arbitrate that dispute under such rules and
procedures as we may agree, or failing to agree, under the rules
and procedures of The American Arbitration Association.
Enclosed is a Employment Eligibility Verification form. Please
read it, complete it, and return it to our Human Resources
Department on your first day of employment, along with the
documents asked for, which we are required by law to examine.
Also enclosed is a Proprietary Information and Inventions
Agreement. This offer is contingent upon your completion of this
form. Also, please complete the enclosed employment application
form and return it to us.
Wim, if you accept our offer, please acknowledge so by signing
and dating the enclosed copy of this letter and returning it to
us as soon as possible.
We look forward to your joining Xilinx, Inc.
Sincerely,
/s/ Bernard V. Vonderschmitt
Bernard V. Vonderschmitt
CEO
ACCEPTED: DATE:
/s/ Willem P.Roelandts 1/11/96
EXHIBIT 10.14
SEPARATION AGREEMENT
This Separation Agreement (the "Agreement") is made and
entered into as of April 8, 1996 (the "Effective Date") by
and between Curt Wozniak ("Mr. Wozniak") and Xilinx, Inc., a
Delaware corporation (the "Company").
In consideration of the mutual promises and covenants
contained herein, it is hereby agreed by and between the parties
hereto as follows:
1. Resignation. Mr. Wozniak tenders and the Company
accepts Mr. Wozniak's resignation from employment by the Company,
effective as of April 15, 1996 ("Separation Date").
2. Payment. On the Separation Date of this Agreement, the
Company will pay Mr. Wozniak the sum of $360,000 plus the target
bonus of $198,000, and any accrued vacation earned as well as
reimbursement for business expenses previously incurred and not
yet paid, less applicable withholding.
In the event that any management bonus or profit
participation is paid which is based upon the Company's
performance during fiscal year 1996, Mr. Wozniak shall receive
full payment of the amount of such bonus or participation which
he would have received had he remained an employee of the Company,
less applicable withholding.
3. Cessation of Compensation and Benefits. Except as
otherwise specifically set forth in this Agreement, all
compensation and Company benefits for Mr. Wozniak shall cease as
of the Separation Date. Mr. Wozniak shall be entitled to convert
his health care coverage to individual coverage pursuant to COBRA
and shall retain beneficial ownership of any amounts held in his
name under the Company's 401(k) Plan and shall be entitled to
receive distributions of such amounts as provided under the 401(k)
Plan and applicable law.
4. Status as Consultant. Beginning April 16, 1996 through
the period ending June 15, 1996, Mr. Wozniak shall serve as a
consultant to the Company (the "Consultancy Period").
During the Consultancy Period the stock options granted to Mr.
Wozniak pursuant to the Company's 1988 Stock Option Plan (the
"Option Plan") shall continue to vest and shall be exercisable
according to the terms of the Option Plan and the applicable
option agreements. The consideration set forth in this Agreement
shall be the sole consideration for such consulting services.
5. Nondisparagement; Information Release. Mr. Wozniak and
the Company agree that neither party will at any time interfere
with or compromise the business matters of the other or disparage
the other in any manner likely to be harmful to the other party,
its or his business reputation, or the personal or business
reputation of its directors, shareholders, and employees,
provided that either party shall respond accurately and fully to
any question, inquiry, or request for information when required
by legal process.
6. Company Property; Personal Effects. Mr. Wozniak hereby
represents and warrants to the Company that, on or before the
Separation Date, he will have returned to the Company all
confidential Company documents (and all copies thereof) and other
Company property which he has in his possession, including, but
not limited to: Company business plans, budget information,
files, drawings, notes, videotapes, slides, records, marketing
information, financial information and forecasts,
computer-recorded information, tangible property (including
without limitation any computer or other electronic equipment the
Company provided to Mr. Wozniak), credit cards, entry cards,
identification badges and keys. Mr. Wozniak will remove his
personal effects from the Company by April 15, 1996.
7. Proprietary Information and Non-Solicitation. Mr.
Wozniak hereby acknowledges his continuing obligations to refrain
from any unauthorized disclosure or use of Company confidential
or proprietary information obtained or developed by him during
his employment with the Company. Mr. Wozniak further acknowledges
that, during his employment with the Company, he has acquired
knowledge of or had access to numerous types of confidential and
proprietary information of the Company, including without
limitation the information in his files and computers as well as
the following types of information:
* Electronic files, including but not limited to,
source code, object code, tapes, diskettes,
disks and any other on-line documentation.
* Product requirements, specifications, designs,
materials, components and testresults.
* Plans for research and development or introduction
of new products.
* Terms of agreements or proposed agreements with
customers, vendors and other companies.
* Sales and marketing information, customer lists,
contacts, sales techniques, plans and surveys.
* Personnel lists and information regarding skill,
compensation and responsibilities of various personnel.
* Financial information, including results of
operations, margins, budgets and business plans.
Mr. Wozniak acknowledges that (i) he has had access to the
types of information described above, (ii) that he is fully aware
of, and agrees to protect, the confidentiality of the Company's
proprietary or confidential information and (iii) that he will
refrain from using or disclosing the company's proprietary or
confidential information; provided, however, that consistent with
Section 16600 of the California Business and Professions Code,
nothing in this Agreement shall prohibit Mr. Wozniak from
engaging in a lawfill profession, trade or business of any kind.
Confidential or proprietary information shall not, for the
purpose of this Agreement, constitute information which Mr.
Wozniak can establish (i) was publicly known and made generally
available in the public domain prior to the time of disclosure to
Mr. Wozniak by Company; (ii) becomes publicly known and made
generally available after disclosure to Mr. Wozniak by Company
through no action or inaction of Mr. Wozniak; or (iii) is in the
possession of Mr. Wozniak without confidentiality restrictions,
at the time of disclosure by Company.
8. Release by Mr. Wozniak Except as otherwise set forth in
this Agreement, Mr. Wozniak hereby releases, acquits, and forever
discharges the Company and its officers, directors, partners,
agents, servants, employees, stockholders, successors, assigns,
of and from any and all claims, liabilities, demands, causes of
action, costs, expenses, attorneys' fees, damages, indemnities
and obligations of every kind and nature, in law, equity, or
otherwise, known and unknown, suspected and unsuspected,
disclosed and undisclosed, arising out of or in any way related
to agreements, events, acts or conduct at any time prior to the
Separation Date, including, but not limited to: all such claims
and demands directly or indirectly arising out of or in any way
connected with the Company's employment of Mr. Wozniak or the
termination of that employment; claims or demands related to
salary, bonuses, commissions, stock, stock options, vacation pay,
severance pay, fringe benefits and expense reimbursements or any
form of compensation or equity interest; claims related to fraud,
misrepresentation, breach of fiduciary duty, breach of duty under
applicable state corporate law, and securities fraud under any
state or federal law; claims pursuant to any federal, state or
local law or causes of action including, but not limited to, the
federal Age Discrimination in Employment Act of 1967 ("ADEA"), as
amended; tort law; contract law; wrongful discharge;
discrimination; defamation; emotional distress; and breach of the
implied covenant of good faith and fair dealing.
Notwithstanding the foregoing, the Company is not releasing
its obligation to defend, indemnify and hold harmless Mr. Wozniak
for claims, actions or proceedings brought against him arising
out of or in any way related to events, acts, conduct or
agreements related to his employment as an officer and employee
of the Company.
9. Release by the Company. Except as otherwise set forth
in this Agreement, the Company hereby releases, acquits, and
forever discharges Mr. Wozniak and his agents, successors, heirs,
assigns, and affiliates, of and from any and all claims,
liabilities, demands, causes of action, costs, expenses,
attorneys' fees, damages, indemnities, and obligations of every
kind and nature, in law, equity or otherwise, known and unknown,
suspected and unsuspected, disclosed and undisclosed, based on
any actions or omissions of Mr. Wozniak within the course and
scope of his employment with the Company.
10. Acknowledgment of Waiver of Claims under ADEA. Mr.
Wozniak acknowledges that he is waiving and releasing any rights
he may have under ADEA and that this waiver and release is
knowing and voluntary. Mr. Wozniak and the Company agree that
this waiver and release does not apply to any rights or daims
that may arise under ADEA after the Effective Date of this
Agreement Mr. Wozniak acknowledges that the consideration given
for this waiver and release Agreement is in addition to anything
of value to which Mr. Wozniak was already entitled. Mr. Wozniak
further acknowledges that he has been advised by this writing
that (a) he should consult with an attorney pnor to executing
this Agreement; (b) he has at least twenty-one (21) days within
which to consider this Agreement; (c) he has at least seven (7)
days following the execution of this Agreement by the parties to
revoke the Agreement; and (d) this Agreement shall not be
effective until the revocation period has expired.
11. Section 1542 Waiver. Mr. Wozniak and the Company
acknowledge that they have read and understand Section 1542 of
the Civil Code ofthe State of California which reads as follows:
A general release does not extend to claims which the
creditor does not know or suspect to exist in his favor at the
time of executing the release, which if known by him must have
materially affected his settlement with the debtor.
Mr. Wozniak and the Company hereby expressly waive and relinquish
all rights and benefits under that section and any law or legal
principle of similar effect in any jurisdiction with respect to
the release granted in this Agreement, included, but not limited
to, any jurisdiction in the United States.
12. Confidentiality. The provisions of this Agreement shall
be held in strictest confidence by Mr. Wozniak and the Company
and shall not be publicized or disclosed in any manner
whatsoever. Notwithstanding the prohibition in the preceding
sentence: (a) Mr Wozniak may disclose this Agreement to his
immediate family; (b) the Company may disdose this Agreement in
confidence to any current or future business partner; (c) the
parties may disclose this Agreement in confidence to their
respective attorneys, accountants, auditors, tax preparers, and
financial advisors; (d) the Company may disclose this Agreement
as necessary to fulfill standard or legally required corporate
reporting or disclosure requirements; and (e) the parties may
disclose this Agreement insofar as such disclosure may be
necessary to enforce its terms or as otherwise required by law.
13. Authority. The Company represents and warrants that the
undersigned has the authority to act on behalf of the Company and
to bind the Company and all who may claim through it to the terms
and conditions of this Agreement. Mr. Wozniak represents and
warrants that he has the capacity to act on his own behalf and on
behalf of all who might claim through him to bind them to the
terms and conditions of this Agreement. Each Party warrants and
represents that there are no liens or daims of lien or
assignments in law or equity or otherwise of or against any of
the claims or causes of action released herein.
14. Dispute Resolution. Prior to the submission of any
dispute hereunder to arbitration in accordance with this
paragraph, the parties shall engage in nonbinding mediation
before a mutually acceptable mediator (Judicial Arbitration and
Mediation Service being preapproved) in Santa Clara County,
California. Disputes arising from the interpretation, breach, or
enforcement of this Agreement, which cannot first be resolved by
such mediation, shall be submitted to fhnal and binding
arbitration in Santa Clara County, California in accordance with
the commercial arbitration rules of the American Arbitration
Association then in effect. Both parties acknowledge that there
may not be an adequate remedy at law if one party breaches the
Agreement. Therefore, the arbitrators shall be empowered to award
any appropriate equitable relief including, without limitation,
specific performance and injunctive relief; and, if necessary to
avoid irreparable harm pending arbitration, such equitable relief
may be sought in a court of law. The arbitrators shall be limited
to such remedies as courts are authorized to impose under
applicable California or Federal statutes and case law.
15. Costs and Fees. Except as expressly set forth herein,
the parties will bear their own costs, expenses, and attorneys'
fees, whether taxable or otherwise, incurred in or arising out of
or in any way related to the matters released herein.
16. Entire Agreement. This Agreement constitutes the
complete, final, and exclusive embodiment of the entire agreement
between the parties with respect to the subject matter hereof.
This Agreement is executed without reliance upon any promise,
warranty or representation, written or oral, by any party or any
representative of any party other than those expressly contained
herein and supersedes any other agreements, promises, warranties
or representations. Each party has carefully read this Agreement,
has been afforded the opportunity to be advised of its meaning
and consequences by his or its respective attorney, and signed
the same of his or its own free will. This Agreement may not be
amended or modified except in a writing signed by both Mr.
Wozniak and an authorized officer of the Company.
17. Applicable Law. This Agreement shall be deemed to have
been entered into and shall be construed and enforced in
accordance with the laws of the State of California, without
reference to its conflicts of laws principles.
18. Successors and Assigns. This Agreement shall bind the
heirs, personal representatives, successors, assigns, executors,
and administrators of each party, and inure to the benefit of
each party, its heirs, successors and assigns.
19. No Admissions. It is understood and agreed by the
parties that this Agreement represents a compromise settlement of
various disputed matters, and that the promises and payments in
consideration of this Agreement shall not be construed to be an
admission of any liability or obligation by either party to the
other party or to any other person.
20. Section Headings. The section and paragraph headings
contained in this Agreement are for reference purposes only and
shall not affect in any way the meaning or interpretation of this
Agreement.
21. Severability. If any provision of this Agreement is
determined to be invalid or unenforceable under applicable law,
in whole or in part, then such provision(s) shall be excluded
from this Agreement and the balance ofthe Agreement shall be
interpreted as if such provision(s) were so excluded and shall be
enforceable in accordance with its terms.
22. Counterparts. This Agreement may be executed in
counterparts, and each counterpart shall have the same force and
effect as an original and shall constitute an effective, binding
agreement on the part of each of the undersigned.
23. Effective Date. This Agreement is effective seven days
after the signature of all parties to this Agreement.
24. Voluntary Execution of Agreement. This Agreement is
executed voluntarily and without any duress or undue influence on
the part or behalfofthe parties hereto, with the full intent of
releasing all claims. The parties acknowledge that:
a. They have read this Agreement;
b. They have been represented in the
preparation, negotiation, and execution of this Agreement by
legal counsel of their own choice or that they have voluntarily
declined to seek such counsel;
c. They understand the terms and consequences of
this Agreement and
d. They are fillly aware of the legal and
binding effect of this
IN WITNESS WHEREOF, the parties have duly authorized and
caused this Agreement to be executed as follows:
Xilinx, Inc.
By: /s/ Curt Wozniak By: /s/ Willem Roelandts
Curt Wozniak
Title: Chief Executive Officer
EXHIBIT 10.15
XILINX, INC.
CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") is made and entered
into as of this 1st day of June, 1996 by and between Xilinx, Inc.
(the "Company"), and Bernard V. Vonderschmitt ("Consultant").
Consultant was the founder of the Company and has served as a
member of the Board of Directors and Chief Executive Officer of
the Company. Consultant has recently resigned as the Chief
Executive Officer, and the Company now desires to retain
Consultant as an independent contractor to perform consulting
services for the Company. In consideration of the mutual
promises contained herein, the parties agree as follows:
1. SERVICES AND COMPENSATION
(a) Consultant agrees to perform for the Company the
services described in Exhibit A ("Services").
(b) The Company agrees to pay Consultant the
compensation set forth in Exhibit A for the performance of the
Services.
2. CONFIDENTIALITY
(a) "Confidential Information" means any Company
proprietary information, technical data, trade secrets or know-
how, including, but not limited to, research, product plans,
products, services, customers, customer lists, markets, software,
developments, inventions, processes, formulas, technology,
designs, drawings, engineering, marketing, finances or other
business information disclosed by the Company either directly or
indirectly in writing, orally or by drawings or inspection of
parts or equipment.
(b) Consultant will not, during or subsequent to the
term of this Agreement, use the Company's Confidential
Information for any purpose whatsoever other than the performance
of the Services on behalf of the Company or disclose the
Company's Confidential Information to any third party, and it is
understood that said Confidential Information shall remain the
sole property of the Company. Confidential Information does not
include information which (i)is known to Consultant at the time
of disclosure to Consultant by the Company as evidenced by
written records of Consultant, (ii) has become publicly known and
made generally available through no wrongful act of Consultant,
or (iii)has been rightfully received by Consultant from a third
party who is authorized to make such disclosure.
(c) Consultant recognizes that the Company has
received and in the future will receive from third parties their
confidential or proprietary information subject to a duty on the
Company's part to maintain the confidentiality of such
information and to use it only for certain limited purposes.
Consultant agrees that Consultant owes the Company and such third
parties, during the term of this Agreement and thereafter, a duty
to hold all such confidential or proprietary information in the
strictest confidence and not to disclose it to any person, firm
or corporation or to use it except as necessary in carrying out
the Services for the Company consistent with the Company's
agreement with such third party.
(d) Upon the termination of this Agreement, or upon
Company's earlier request, Consultant will deliver to the Company
all of the Company's property or Confidential Information in
tangible form that Consultant may have in Consultant's possession
or control.
3. OWNERSHIP
(a) Consultant agrees that all copyrightable material,
notes, records, drawings, designs, inventions, improvements,
developments, discoveries and trade secrets (collectively,
"Inventions") conceived, made or discovered by Consultant, solely
or in collaboration with others, during the period of this
Agreement which relate in any manner to the business of the
Company that Consultant may be directed to undertake, investigate
or experiment with, or which Consultant may become associated
with in work, investigation or experimentation in the line of
business of Company in performing the Services hereunder, are the
sole property of the Company. In addition, any Inventions which
constitute copyrightable subject matter shall be considered
"works made for hire" as that term is defined in the United
States Copyright Act. Consultant further agrees to assign (or
cause to be assigned) and does hereby assign fully to the Company
all such Inventions and any copyrights, patents, mask work rights
or other intellectual property rights relating thereto.
(b) Consultant agrees to assist Company, or its
designee, at the Company's expense, in every proper way to secure
the Company's rights in the Inventions and any copyrights,
patents, mask work rights or other intellectual property rights
relating thereto in any and all countries, including the
disclosure to the Company of all pertinent information and data
with respect thereto, the execution of all applications,
specifications, oaths, assignments and all other instruments
which the Company shall deem necessary in order to apply for and
obtain such rights and in order to assign and convey to the
Company, its successors, assigns and nominees the sole and
exclusive rights, title and interest in and to such Inventions,
and any copyrights, patents, mask work rights or other
intellectual property rights relating thereto. Consultant
further agrees that Consultant's obligation to execute or cause
to be executed, when it is in Consultant's power to do so, any
such instrument or papers shall continue after the termination of
this Agreement.
(c) Consultant agrees that if in the course of
performing the Services, Consultant incorporates into any
Invention developed hereunder any invention, improvement,
development, concept, discovery or other proprietary information
owned by Consultant or in which Consultant has an interest, the
Company is hereby granted and shall have a nonexclusive, royalty-
free, perpetual, irrevocable, worldwide license to make, have
made, modify, use and sell such item as part of or in connection
with such Invention.
(d) Consultant agrees that if the Company is unable
because of Consultant's unavailability, dissolution, mental or
physical incapacity, or for any other reason, to secure
Consultant's signature to apply for or to pursue any application
for any United States or foreign patents or mask work or
copyright registrations covering the Inventions assigned to the
Company above, then Consultant hereby irrevocably designates and
appoints the Company and its duly authorized officers and agents
as Consultant's agent and attorney in fact, to act for and in
Consultant's behalf and stead to execute and file any such
applications and to do all other lawfully permitted acts to
further the prosecution and issuance of patents, copyright and
mask work registrations thereon with the same legal force and
effect as if executed by Consultant.
4. CONFLICTING OBLIGATIONS
Consultant certifies that Consultant has no outstanding
agreement or obligation that is in conflict with any of the
provisions of this Agreement, or that would preclude Consultant
from complying with the provisions hereof, and further certifies
that Consultant will not enter into any such conflicting
Agreement during the term of this Agreement.
5. TERM AND TERMINATION
(a) This Agreement will commence on the date first
written above and will continue until final completion of the
Services or termination as provided below.
(b) The Company or Consultant may terminate this
Agreement upon giving two weeks prior written notice thereof to
the other party.-
(c) Upon such termination all rights and duties of the
parties toward each other shall cease except:
(i) that the Company shall be obliged to pay,
within thirty (30) days of the effective date of termination, all
amounts owing to Consultant for unpaid Services and related
expenses, if any, in accordance with the provisions of Section1
(Services and Compensation) hereof; and
(ii) Sections2 (Confidentiality), 3(Ownership) and
7 (Independent Contractors) shall survive termination of this
Agreement.
6. ASSIGNMENT
Neither this Agreement nor any right hereunder or
interest herein may be assigned or transferred by Consultant
without the express written consent of the Company.
7. INDEPENDENT CONTRACTOR
Nothing in this Agreement shall in any way be construed
to constitute Consultant as an agent, employee or representative
of the Company, but Consultant shall perform the Services
hereunder as an independent contractor. Consultant agrees to
furnish (or reimburse the Company for) all tools and materials
necessary to accomplish this contract, and shall incur all
expenses associated with performance, except as expressly
provided on Exhibit A of this Agreement. Consultant acknowledges
and agrees that Consultant is obligated to report as income all
compensation received by Consultant pursuant to this Agreement,
and Consultant agrees to and acknowledges the obligation to pay
all self-employment and other taxes thereon. Consultant further
agrees to indemnify the Company and hold it harmless to the
extent of any obligation imposed on Company (i)to pay in
withholding taxes or similar items or (ii)resulting from
Consultant's being determined not to be an independent
contractor.
8. ARBITRATION AND EQUITABLE RELIEF
(a) Except as provided in Section9 below, the Company
and Consultant agree that any dispute or controversy arising out
of or relating to any interpretation, construction, performance
or breach of this Agreement, shall be settled by arbitration to
be held in Santa Clara County, California, in accordance with the
rules then in effect of the American Arbitration Association.
The arbitrator may grant injunctions or other relief in such
dispute or controversy. The decision of the arbitrator shall be
final, conclusive and binding on the parties to the arbitration.
Judgment may be entered on the arbitrator's decision in any court
of competent jurisdiction. The Company and Consultant shall each
pay one-half of the costs and expenses of such arbitration, and
each shall separately pay its respective counsel fees and
expenses.
(b) Consultant agrees that it would be impossible or
inadequate to measure and calculate the Company's damages from
any breach of the covenants set forth in Sections2 or 3 herein.
Accordingly, Consultant agrees that if Consultant breaches
Sections2 or 3, the Company will have available, in addition to
any other right or remedy available, the right to obtain from any
court of competent jurisdiction an injunction restraining such
breach or threatened breach and specific performance of any such
provision. Consultant further agrees that no bond or other
security shall be required in obtaining such equitable relief and
Consultant hereby consents to the issuances of such injunction
and to the ordering of such specific performance.
9. GOVERNING LAW
This Agreement shall be governed by the laws of the
State of California, without regard to choice of law rules.
10. ENTIRE AGREEMENT
This Agreement is the entire agreement of the parties
and supersedes any prior agreements between them with respect to
the subject matter hereof.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
CONSULTANT
By: /s/ Bernard V. Vonderschmitt
Bernard V. Vonderschmitt
XILINX, INC.
By: /s/ Willem Roelandts
Willem Roelandts
Title: Chief Executive Officer
EXHIBIT A
SERVICES AND COMPENSATION
1. Contact. Consultant's principal Company contact:
Name: Willem Roelandts
Title: Chief Executive Officer
2. Services. Consultant will render to the Company the
following Services:
Service as Chairman of the Board of the Company and, as
reasonably requested by the Company, provision of advice on
issues of importance to the Company including general corporate,
technological and marketing issues.
3. Compensation.
(a) Continued vesting of all stock options which Consultant
received as Chief Executive Officer of the Company.
(b) The Company shall reimburse Consultant for all
reasonable travel and living expenses incurred by Consultant in
performing Services pursuant to this Agreement.
(c) Consultant shall submit all statements for services and
expenses in a form prescribed by the Company and such statement
shall be approved by the contact person listed above or by his or
her supervisor.
EXHIBIT 10.16
ADVANCE PAYMENT AGREEMENT
AREAS MARKED "***" REPRESENT SECTIONS FOR WHICH CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED. THESE OMITTED SECTIONS HAVE BEEN
FILED SEPARATELY WITH THE COMMISSION.
THIS ADVANCE PAYMENT AGREEMENT (the "Agreement"), is entered into
this 17th day of May, 1996, by and between SEIKO EPSON
CORPORATION, a Japanese corporation having its principal place of
business at 3-5, Owa 3-chome, Suwa-shi, Nagano-ken 392, Japan
("Epson") and Xilinx, Inc., a Delaware corporation having its
principal place of business at 2100 Logic Dr., San Jose, CA
95124, U.S.A.("Xilinx").
1 Background
l.l Epson
Epson is in the business of designing, manufacturing, testing
and selling semiconductor devices, among other products. Epson
manufactures such semiconductor devices at its plant located
at 281 Fujimi, Fujimi-machi, Suwa-gun, Nagano-ken 399-02,
Japan (the "Fujimi Facility") and its plant located at 166-3
Jurizuka, Sakata-shi, Yamagata-ken 998-01, Japan (the "Sakata
Facility").
1.2 Xilinx
Xilinx is in the business of designing, developing and
marketing CMOS programmable logic devices and related
development system software.
1.3 Scope of Agreement
Epson and Xilinx have an ongoing business relationship whereby
Epson fabricates semiconductor devices for Xilinx. The parties
entered into an advance payment agreement dated April 1, 1994
*** The parties desire to expand their relationship.
Specifically, Xilinx desires to develop and sell high
performance, advanced architecture semiconductor devices and
Epson desires to construct *** CMOS process line in order to
fabricate such semiconductor devices (as hereinafter further
defined the "New Facility Wafers"). Accordingly, Epson and
Xilinx agree that, pursuant to the terms and conditions of
this Agreement, Xilinx will pay to Epson Three Hundred Million
U.S. dollars (US$300,000,000) of which Two Hundred Million
U.S. dollars (US$200,000,000) shall be made as an advance
payment (as hereafter further defined the "Advance Payment")
to be used as a credit to purchase New Facility Wafers from
Epson over a specified period of time, and of which One
Hundred Million U.S. dollars (US$100,000,000) shall be made in
such method as will be determined later in accordance with
Article 11 of this Agreement. In exchange for receipt of the
Advance Payment, Epson will commit to provide Xilinx with (a)
*** Wafers over a specified time period and (b) a specified
number of Free Wafers (as hereafter further defined the "Free
Wafers"). However, the ordering, fabrication, testing and
delivery requirements for the New Facility Wafers covered by
this Agreement will be set forth in a purchase agreement
between Xilinx and Epson (as hereafter further defined the
"Purchase Agreement"). The parties acknowledge and agree that
even though their obligations with respect to the quantity of
the Products sold and purchased under this Advance Payment
Agreement are stipulated in terms of "wafers", pricing of New
Facility Wafers, ***, will be done on a "good die basis" under
the Purchase Agreement.
1.4 Responsibility for Process
The parties agree that each party will contribute to the
design and implementation of the process line contemplated by
this Agreement. Epson expects significant contributions from
Xilinx in the construction of the *** Wafer CMOS process line
described above, similar to Xilinx's contributions to previous
process generations, and Xilinx expects to be able to make
significant contributions to the process in order to optimize
the processes for Xilinx products.
2 Definitions
2.1 "Advance Payment" will mean the Two Hundred Million U.S.
Dollar (US$200,000,000) payment to be made by Xilinx to
Epson in the manner described in Article 4.1.
2.2 "Equipment" will mean the semiconductor fabrication equipment
that Epson will install in the New Facility for purposes of
fabricating New Facility Wafers.
2.3 "Existing Agreements" will mean those contracts for the
development, fabrication, testing and/or sale of
semiconductor devices between Epson and Xilinx in effects as of
the date of this Agreement.
2.4 "Free Wafers" will have the meaning ascribed to it in Article
8.
2.5 "Fujimi Facility" will have the meaning ascribed to it in
Article 1.1.
2.6 "New Facility" will mean the *** CMOS process line
constructed at the Site using the Equipment.
2.7 "New Facility Wafers" will mean the semiconductor wafers
fabricated by Epson for Xilinx at the New Facility. The
parties agree that New Facility Wafers will consist of high
performance, advanced architecture semiconductor devices. The
parties do not intend that the New Facility will be used to
fabricate low performance, less advanced architecture
semiconductor devices.
2.8 "Price" will have the meaning ascribed to it in Article 10.1.
2.9 "Products" will mean those specific types of New Facility
Wafers fabricated using the same masks and the same process
flow and identified by the same series or product name or
number. The Products will be ordered, fabricated, delivered
and sold pursuant to the terms and conditions of Purchase
Agreement(s). The Products which the parties desire to
fabricate at the New Facility will be negotiated and agreed by
and between Epson and Xilinx, referring to the Technology Road
Map attached hereto as Exhibit B. which may be reviewed and
amended from time to time by mutual agreement of the parties.
The parties acknowledge, however, that the final determination
of what Products will be fabricated may depend on the results
of joint development and product qualification.
2.10 "Projected Completion Schedule" will have the meaning
ascribed to it in Article 3.1.2.
2.11 "Purchase Agreement(s)" will mean the agreement(s) by and
between Epson and Xilinx pursuant to which Epson agrees to
sell and Xilinx agrees to purchase the Products, and the terms
of which shall be negotiated and agreed by and between the
parties after the execution of this Agreement.
2.12 "Purchase Commitment" will have the meaning ascribed to it
in Article 7.1 and Exhibit C attached hereto.
2.13 "Sakata Facility" will have the meaning ascribed to it in
Article 1.1.
2.14 "Site" will mean that portion of the Sakata Facility where
the New Facility will be constructed.
2.15 "Subsidiary" will mean any corporation, partnership, joint
venture or other legal entity which agrees in writing to be
bound by the terms and conditions of this Agreement and more
than fifty percent (50%) of whose ownership rights are
controlled directly or indirectly by Epson or Xilinx, case may
be, but only so long as such control exists.
2.16 "Supply Commitment" will have the meaning ascribed to it in
Article 6.1 and Exhibit C.
2.17 "*** Process" will mean the ***, CMOS process owned,
licensed or developed by Epson which will be used at the New
Facility. The *** Process will include (a) all process flow,
process steps, process conditions (and modifications thereto)
used to manufacture semiconductor wafers at the New Facility
as well as (b) all methods, formulae, procedures, technology
and know-how associated with such process steps and process
conditions. The *** Micron Process will not include any
methods, formulae, procedures, technology or know-how licensed
or received from Xilinx under this Agreement, the Existing
Agreements or other agreements executed between the parties in
the future unless otherwise agreed in writing. If the parties
find it necessary or convenient to document process flow for
any Product, such documentation will be signed by the parties
and attached to the appropriate Purchase Agreement as an
exhibit.
3 Construction of New Facility
3.1 Construction and Operation of the New Facility
3.1.1 Location and Costs
Epson hereby agrees, subject to its receipt of the full amount
of the Advance Payment as provided in Article 4.1, to
construct the New Facility at the Site and to install the
Equipment therein.
3.1.2 Completion Schedule
The projected completion schedule for the construction of the
New Facility (the "Projected Completion Schedule") is set
forth in Exhibit A attached hereto. In the event Epson has
reason to believe that any item in the Projected Completion
Schedule designated as a "Construction Milestone" will be
delayed by more than thirty (30) calendar days, Epson will
promptly notify Xilinx in writing and (a) explain the reason
for the delay, (b) describe the estimated amount of time that
construction will be delayed and (c) describe the action that
Epson will take to minimize the delay.
3.1.3 Business Interruption Insurance
Epson will use its best efforts to obtain business
interruption insurance coverage for the New Facility once the
construction of the New Facility is complete. The insurance
will cover at least such risks as are usually insured against
by companies engaged in the manufacture of semiconductor
devices in Japan. Epson will maintain such business
interruption insurance coverage during the term of this
Agreement. Epson will furnish to Xilinx, upon written request,
full information concerning the business interruption
insurance coverage.
3.1.4 First Shipment Delay
For every month that Product production shipment is delayed
beyond *** as specified in Exhibit A, Epson shall, in addition
to the Free Wafers as prescribed in Article 8 hereof, provide
additional free wafers, *** .
3.1.5 Design Requirements
Epson acknowledges that Xilinx's insurers have set forth
certain safety and security requirements for semiconductor
fabrication facilities, and Epson agrees to work with Xilinx
to incorporate such requirements into the design of the New
Facility to the extent reasonably requested by Xilinx and
commercially feasible.
3.2 Representations of Epson
In order to induce Xilinx to enter into this Agreement and to
make the Advance Payment hereunder, Epson hereby represents
and warrants that:
3.2.1 Corporate Status
Epson (a) is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its
incorporation, (b) has the corporate power to own or lease its
assets and to transact the business in which it is currently
engaged and (c) is in compliance with all requirements of law
except to the extent that the failure to comply therewith will
not materially affect the ability of Epson to perform its
obligations under this Agreement.
3.2.2 Corporate Authority
(a) Epson has the corporate power, authority and legal right
to execute, deliver and perform this Agreement and has taken
as of the date hereof all necessary corporate action to
execute this Agreement, (b) the person executing this
Agreement has actual authority to do so on behalf of Epson and
(c) there are no outstanding assignments, grants, licenses,
encumbrances, obligations or agreements, either written, oral
or implied, that prohibit execution of this Agreement.
3.2.3 Ownership of the Site
Epson has such right, title and interest in and to the Site
and the structures located thereon as is required to permit
the operation of the Site as currently conducted and
contemplated to be conducted under this Agreement.
3.3 Representations of Xilinx
In order to induce Epson to enter into this Agreement and to
make the Supply Commitment, Xilinx hereby represents and
warrants that:
3.3.1 Corporate Status
Xilinx is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its
incorporation, (b) has the corporate power to own or lease its
assets and to transact the business in which it is currently
engaged and (c) is in compliance with all requirements of law
except to the extent that the failure to comply therewith will
not materially affect the ability of Xilinx to perform its
obligations under this Agreement.
3.3.2 Corporate Authority
(a) Xilinx has the corporate power, authority and legal right
to execute, deliver and perform this Agreement and has taken
as of the date hereof all necessary corporate action to
execute this Agreement, (b) the person executing this
Agreement has actual authority to do so on behalf of Xilinx
and (c) there are no outstanding assignments, grants,
licenses, encumbrances, obligations or agreements, either
written, oral or implied, that prohibit execution of this
Agreement.
4 Advance Payment
4.1 Advance Payment
Xilinx shall pay to Epson an amount equal to Two Hundred
Million U.S. Dollars (US$200,000,000) ("the Advance Payment"),
which Advance Payment will be credited against certain future
purchases by Xilinx of New Facility Wafers as provided in
Article 5. Xilinx will pay the Advance Payment in the
following installments:
a) First installment of Thirty Million U.S. Dollars
(US$30,000,000) by May 28, 1996 or such later date,
which may be designated in writing by Epson.
b) Second installment of Thirty Million U.S. Dollars
(US$30,000,000) by November 1, 1996.
c) Third installment of Thirty Million U.S. Dollars
(US$30,000,000) by May 1, 1997.
d) Fourth installment of Thirty Million U.S. Dollars
(US$30,000,000) by November 1, 1997 or installment and
acceptance of the first wafer stepper, as part of Equipment,
whichever is later.
e) Fifth installment of Thirty Million U.S. Dollars
(US$30,000,000) by February 1, 1998 ors mass
production start, whichever is later.
f) Sixth installment of Fifty Million U.S. Dollars
(US$50,000,000) to become due and payable by
Xilinx on or after the later of April 1,1998 and the date the
unused balance of the Advance Payment becomes less
than One Hundred Twenty-Five Million U.S. dollars
(US$125,000,000) . Payment of such sixth installment shall
be made by Xilinx by the end of the month following
the month during which such sixth installment becomes due.
4.2 Payment Method
All payments made by Xilinx to Epson will be in immediately
available funds and will be made by wire transfer in U.S.
Dollars to the following bank account of Epson at:
Fuji Bank, Head Office
5-5, Otemachi 1-chome, Chiyoda-ku, Tokyo 100, Japan
For the Account of Seiko Epson Corporation.
4.3 Non-Refund of Advance Payment
The Advance Payment will not be refundable except as provided
in Articles 6.4.1 or 15.4.
5 Application of Advance Payment
5.1 Purchase of New Facility Wafers
The Purchase price of all New Facility Wafers purchased by
Xilinx as determined in accordance with Article 10.1 will be
credited against the amount of the Advance Payment until the
aggregate dollar value of all New Facility Wafers purchased,
calculated pursuant to Article 5.2, equals or exceeds the
amount of the Advance Payment.
5.2 Calculation of Aggregate Value of Wafers Purchased
The Advance Payment will be offset and reduced at the end of
each calendar month in the manner set forth in Exhibit D
attached hereto.
5.3 Obligations After the Completion of Off-setting the Advance
Payment
Xilinx will be required to pay for all New Facility Wafers in
accordance with the Purchase Agreements once the Advance
Payment has been fully offset and reduced. Xilinx will make
the payments to Epson in U.S. Dollars based on the Price.
Further, Epson will be required to fulfill the Supply
Commitment and Xilinx will be required to fulfill the Purchase
Commitment until Xilinx has purchased *** New Facility Wafers.
After Xilinx has purchased this fixed volume of the New
Facility Wafers, during the effective period of this
Agreement, Epson and Xilinx will continue to make efforts to
supply and purchase at the rate of *** under fair and
competitive prices to be determined between the parties.
6 Supply Commitment
6.1 Supply Commitment
Epson commits to supply to Xilinx a total of *** New Facility
Wafers and Epson will fabricate such New Facility Wafers on a
monthly basis in the manner set forth in Exhibit C attached
hereto (the "Supply Commitment").
6.2 Purchase Agreements
The Supply Commitment will apply to Products covered by all
Purchase Agreements. The parties anticipate that such Purchase
Agreements will apply to high performance, advanced
architecture semiconductor devices which require fabrication
using the *** Process. The parties will execute all Purchase
Agreements required in connection with this Agreement.
6.3 Excess Capacity
Epson will use its best efforts to provide Xilinx with excess
capacity for the New Facility in the manner specified below:
First, in the event that Xilinx desires to purchase New
Facility Wafers in excess of the Purchase Commitment, Xilinx
will specify in writing the amount of capacity required, the
Product(s) it desires to purchase and the date from which such
capacity is required.
Second, Epson will then determine how much capacity is
available and notify Xilinx of its determination. Epson will
give Xilinx priority over third parties for excess capacity of
the New Facility except to the extent that Epson is already
obligated to provide such third parties with capacity.
Third, the parties will then mutually agree upon a preliminary
excess capacity allocation. Any excess capacity allocated
under this Article 6.3 will be applied to the Supply
Commitment and to the Purchase Commitment.
In order to provide Xilinx with first priority for unused
capacity, Epson agrees to give Xilinx monthly written notice
of any unused capacity for the next six (6) months, and to
provide Xilinx the first right to reserve such unused capacity
for any New Facility Wafers which Xilinx desires to purchase
in excess of the Purchase Commitment. Xilinx will have a
reasonable time to elect to reserve such excess capacity.
6.4 Failure to Meet Supply Commitment
6.4.1 Failure Due to Epson
In the event that (a) Epson fails to fulfill the Supply
Commitment in the manner specified by this Agreement by the
end of any month or (b) Epson has reason to believe that it
will be unable to fabricate the Supply Commitment by the end
of such month, then Epson will take the following measures:
First, Epson will promptly notify Xilinx in writing and
describe the nature of the difficulty.
Second, Epson will use its best efforts to remedy the
difficulty in an expeditious manner by the end of the second
full month following the month in which Epson is unable to
meet the Supply Commitment (in other words, the third month
including the month in which the difficulty occurs).
Third, Epson will use its best efforts to make available
during the above-referenced three (3) month period sufficient
capacity at the Sakata Facility and the Fujimi Facility to
cover the deficiency between the Supply Commitment and the
actual capacity subject to completion of product
qualification. The parties acknowledge, however, that Epson
cannot guarantee the use of capacity at the Sakata Facility or
the Fujimi Facility.
***
Fifth, in the event that the above measures are insufficient
and the parties are unable to negotiate in good faith a
resolution of the difficulty, then Xilinx, at its option, may
elect to be repaid that portion of the Advance Payment
currently outstanding and Xilinx shall have no further
obligations under this Agreement.
6.4.2 Failure Due to Xilinx
Notwithstanding anything contained in Article 6.4 to the
contrary, in the event that Epson fails to fulfill the Supply
Commitment in any month due to (a) design defects in Products
caused by Xilinx, (b) design changes requested by Xilinx, (c)
process flow changes requested by Xilinx or (d) any other
reason caused by Xilinx, Epson will only be required to make
reasonable efforts to fulfill the Supply Commitment in such
month. Provisions concerning Xilinx's failure to fulfill its
Purchase Commitment are set forth in Article 7.2.
6.4.3 Failure Due to Both Parties
Notwithstanding anything contained in Article 6.4.1, 6.4.2 or
7.1 to the contrary, in the event that Epson fails to fulfill
the Supply Commitment (and Xilinx fails to fulfill the
Purchase Commitment) due to difficulties caused jointly by
Xilinx and Epson, the parties will mutually agree in writing
upon a fair and equitable solution.
6.4.4 Failure Due to Catastrophe
In the event that any fire, flood, earthquake, explosion or
any other catastrophe prevents Epson from fabricating New
Facility Wafers for Xilinx, (a) Epson will immediately
implement the measures required by Article 6.4.1, (b) Epson
will permit Xilinx to inspect the New Facility, and (c) the
parties will begin good faith negotiations to agree on a
corrective action plan.
7 Purchase Commitment
7.1 Purchase Commitment for the New Facility Wafers
Xilinx will purchase each month the number of New Facility
Wafers (the "Purchase Commitment") equal to the Supply
Commitment until *** wafers have been purchased. Xilinx will
not be required to fulfill the Purchase Commitment in the
event that Epson fails to fulfill the Supply Commitment in the
manner specified in Article 6.4.1. Instead, Xilinx will be
required to purchase those New Facility Wafers that Epson is
able to fabricate. Xilinx will not be required to fulfill the
Purchase Commitment in the event of difficulties caused by
both Epson and Xilinx. Instead, the parties will mutually
agree in writing upon a fair and equitable solution.
7.2 Sale of Unused Capacity
In the event that Xilinx is unable to fulfill the Purchase
Commitment in any month for reasons not due to Epson, Epson
will use its best efforts to sell unused capacity to other
customers, or to allocate unused capacity for the fabrication
of Epson products during such month. Further, Epson's Supply
Commitment for such month will be reduced to the same extent
that Xilinx is unable to fulfill the Purchase Commitment. When
Xilinx desires to increase its monthly purchases after Epson
has sold or otherwise allocated unused capacity, then Epson
will use its best efforts to increase capacity for Xilinx to
the Supply Commitment in an expeditious manner. The parties
will mutually agree upon the specific rate at which Epson will
be required to ramp up capacity to the Supply Commitment.
8 Free Wafers
Epson will provide Xilinx with *** free wafers of a Product
specified by Xilinx at a time specified by Xilinx for, and in
addition to, every *** New Facility Wafers ordered and
accepted by Xilinx (the "Free Wafers"). Free Wafers will be
provided free of charge to Xilinx and will not be credited
against the amount of the Advanced Payment. Epson will provide
Free Wafers until Xilinx has received *** New Facility Wafers
(excluding the Free Wafers). Epson will provide Xilinx with
Free Wafers as an inducement for Xilinx to enter into this
Agreement.
9 Fabrication and Purchase and Sale of the Product
9.1 General Terms and Conditions
The terms and conditions for the prototype wafer fabrication,
wafer fabrication, order and acceptance, shipping, insurance
and warranty for the Products will be set forth in the
Purchase Agreements. The parties hereby express their
good-faith commitment to sign all Purchase Agreements required
to implement the terms and conditions of this Agreement. Epson
agrees to provide all Products covered by this Agreement in
the manner required by the Purchase Agreements. The parties
acknowledge that a best estimation and target of defect
densities as at the date of this Agreement is set forth in
Exhibit E attached hereto, which will be reviewed and amended
from time to time by the parties hereto, and will be
incorporated into all Purchase Agreements.
9.2 Start of Production
Qualification testing for the Products will be conducted in
the manner mutually agreed upon in writing by the parties.
Once any Product has been qualified, Epson will begin mass
production of such Product.
9.3 Turn Around Time
The parties acknowledge that the lead time for shipment of New
Facility Wafers, defined as the time from Xilinx's process
release until delivery of New Facility Wafers to assembler,
known as a "turn around time", is of the essence, and agree
that the parties shall set annual target turn around time and
make their joint efforts to achieve such target in accordance
with Exhibit F ("Turn Around Time").
10 Wafer Pricing and Payment
10.1 Determination of Price
The parties have already expressly agreed to (a) certain
procedures to annually determine prices of New Facility Wafers
(the "Price") and (b) certain procedures of determining the
price of all Products per die, as described in Exhibit D. The
Price herein shall be applicable until Xilinx has completed
the purchase of *** wafers under the terms of this Agreement.
10.2 Shipping. Insurance. Taxes. Duties and Other Fees
Epson will deliver the Products to Xilinx's designated
facility in Japan or Xilinx's designated carrier in Japan on
an F.O.B. basis. Epson will be responsible for paying, in
connection with such sale and delivery in Japan (a) all
domestic freight, insurance and other shipping expenses and
(b) sales, use, excise, ad valorem, withholding or other
taxes. The risk of loss will pass to Xilinx at F.O.B. point in
Japan. Further, Xilinx will be responsible for paying all
freight, insurance, fees, expenses, taxes, tariffs and duties
required in connection with the export of the Products from
F.O.B. point in Japan and the import into any other country.
10.3 Payment
Other than through offset of the Advance Payment, Xilinx will
not be required to pay for any New Facility Wafers delivered
under this Agreement or any Purchase Agreement until the
Advance Payment has been fully offset and reduced. Once the
Advance Payment is fully offset and reduced, Xilinx will be
required to pay Epson in the manner specified in the Purchase
Agreements based on the Price until Xilinx has purchased ***
New Facility Wafers.
10.4 Die Based Transaction
Notwithstanding anything to the contrary contained herein, the
parties acknowledge and agree that all purchases made pursuant
to Purchase Agreements, starting with the purchase of ***
devices, will be made on a "good die basis" even though the
Supply Commitment, the Purchase Commitment and other
obligations of this Agreement are described on a wafer basis.
Such "good die basis" transaction shall be made in reference
to "Die Pricing Mechanism in Exhibit D" and "Defect Density
Goal" in Exhibit E.
11 Additional Funding by Xilinx
Xilinx agrees to make funding to Epson of one hundred
million U. S. dollars (US$100,000,000) , in addition to its
funding of the Advance Payment, in accordance with the
following conditions:
a) At such time as Xilinx makes the
sixth installment of the Advance Payment pursuant to Section
4.1(f) above (the "Sixth Installment Date"), the parties
shall commence negotiations on the form of the additional
funding comprising the following funding methods:
i) security deposit;
ii) additional advance Payment ("additional Advance
Payment"); or
iii) other commercially reasonable alternative.
b) If Xilinx chooses the security deposit alternative, the
parties shall negotiate in good faith the detailed conditions
of such security deposit, including without limitation the
following: i) discount rate on the Price calculated in Free
Wafers; and
ii) repayment schedule
c) If the parties agree on the additional Advance Payment
alternative, Xilinx's additional funding shall be made
as an additional Advance Payment, and will be deemed to be
a part of the Advance Payment for all purposes
hereunder.
d) Regardless of the form of the funding agreed to by the
parties, Xilinx's additional funding shall be made
subject to the following conditions, unless the parties
agree otherwise:
i) payment shall be made in two installments of
fifty million U.S. dollars (US$50,000,000) each, which
will become due and payable when the unused balance of
the Advance Payment and any previously-paid additional
Advance Payment becomes less than one hundred twenty-five
million U.S. dollars (US$125,000,000), provided that if
the security deposit alternative is chosen, the first
installment shall be made at such time as Xilinx has
purchased fifty million U.S. dollars (US$50,000,000) of
New Facility Wafers subsequent to the Sixth Installment
Date, and the second installment shall be made at such
time as Xilinx has purchased fifty million U.S. dollars
(US$50,000,000) of New Facility Wafers subsequent to the
date the first security deposit installment is paid; and
ii) other conditions, including Free Wafers and
procedures to offset from the additional Advance Payment
shall remain unchanged from those applied to the original
Advance Payment.
12 Technical Cooperation and Support
The parties desire to engage in various types of joint
development and technical cooperation activities required to
fabricate Products and to effectuate the terms and conditions
of this Agreement. The parties agree to negotiate in good
faith a joint development and technical cooperation agreement
in the future. Also the parties will continue to develop
jointly *** process under the terms of separate agreements to
be executed between the parties from time to time for specific
projects or product development work.
13 Intellectual Property Rights
Epson warrants that it has all necessary rights to develop,
manufacture and sell to Xilinx the New Facility Wafers. Epson
will indemnify and hold harmless Xilinx from any loss, damage
or expense (including attorney's fees) arising from claims
that the sale or use of the New Facility Wafers infringes on
the intellectual property rights of third parties except where
such infringement is caused by Xilinx's instruction or
specifications thereto.
14 Confidential Information
14.1 Definitions
"Confidential Information" means technical information,
specifications, data, drawings, designs or know-how disclosed
between Epson and Xilinx in connection with this Agreement.
Confidential Information does not include information or
material that is expressly covered by confidentiality
provisions of Existing Agreements, it being understood that
such provisions will apply.
14.2 Marking
If Confidential Information is provided in a tangible form, it
will be marked as confidential or proprietary. If Confidential
Information is provided orally, it will be treated as
confidential and proprietary if it is treated as confidential
or proprietary at the time of disclosure by the disclosing
party and described as such in a writing provided to the other
party within thirty (30) days of the oral disclosure, which
writing will be marked as confidential or proprietary.
Material that is not marked as required by this Article 14.2
will not be deemed Confidential Information.
14.3 Restrictions on Use
During the term of this Agreement and for a period of ***
years following disclosure of any Confidential Information,
the receiving party will: (a) hold the Confidential
Information in confidence using the same degree of care that
it normally exercises to protect its own proprietary
information but no less than a reasonable degree of care, (b)
restrict disclosure and use of Confidential Information solely
to those employees (including any contract employees or
consultants) of such party on a need-to-know basis, and not
disclose it to other employees or parties, and (c) restrict
the number of copies of Confidential Information to the number
required to carry out its obligations under this Agreement.
14.4 Exceptions to Confidentiality Obligations
Neither party will use or disclose the other party's
Confidential Information except as permitted by this
Agreement. The receiving party, however, will have no
obligations concerning the disclosing party's Confidentiality
Information if the disclosing party's Confidential
Information:
a) is made public before the disclosing party discloses it
to the receiving party;
b) is made public after the disclosing party discloses it to
the receiving party (unless its publication is a breach
of this Agreement or any other agreement between Epson and
Xilinx);
c) is rightfully in the possession of the receiving party
before the disclosing party discloses it to the receiving
party
d) is independently developed by the receiving party without
the use of the Confidential Information, if such
independent development is supported by documentary
evidence; or
e) is rightfully obtained by the receiving party from a
third party who is lawfully in possession of the
information and not in violation of any contractual, legal
or fiduciary obligation to the disclosing party with
respect to the information.
14.5 Return of Confidential Information
Upon termination of this Agreement, a party who has received
Confidential Information from the other party pursuant to this
Agreement will return, within fourteen (14) days of the
disclosing party's request for return, all Confidential
Information that was obtained or learned by the receiving
party from the disposing party, together with all copies,
excerpts and translations thereof.
15 Term and Termination of Agreement
15.1 Term
The term of this Agreement will extend from the date first
written above until March 31, 2002, unless terminated earlier
pursuant to Article 15.2 or 15.3. After the expiration of this
Agreement, Epson and Xilinx shall continue to make efforts to
supply and purchase a certain volume of wafers per month under
fair and competitive prices to be determined between the
parties.
15.2 Termination
Either party may terminate or suspend this Agreement
immediately and without liability upon written notice to the
other party if any one of the following events occurs;:
a) the other party files a voluntary petition in bankruptcy
or otherwise seeks protection under any law for the
protection of debtors;
b) a proceeding is instituted against the other party under
any provision of any bankruptcy laws which is not
dismissed within ninety (90) days;
c) the other party is adjudged bankrupt;
d) a court assumes jurisdiction of all or a substantial
portion of the assets of the other party under a
reorganization law;
e) a trustee or receiver is appointed by a court for all or
a substantial portion of the assets of the other
party;
f) the other party becomes insolvent, ceases or suspends all
or substantially all of its business;
g) the other party makes an assignment of the majority of
its assets for the benefit of creditors; or
h) a direct competitor of one party acquires, through
merger, consolidation, acquisition or otherwise, an
interest in excess of fifty percent (50%) of the voting
securities or assets of the other party.
15.3 Termination for Cause
If either party fails to perform or violates any material
obligation of this Agreement, then, sixty (60) days after
providing written notice to the breaching party specifying the
default (the "Default Notice"), the non-breaching party may
terminate this Agreement, without liability, unless:
a) the breach specified in the Default Notice has been cured
within the sixty (60) day period; or
b) the default reasonably required more than sixty (60) days
to correct, and the defaulting party has begun
substantial corrective action to remedy the default within such
sixty (60) day period and diligently pursues such action,
in which event, the non-breaching party may not terminate
or suspend this Agreement unless one hundred twenty (120) days
has expired from the date of the Default Notice
without such corrective action being completed and the default
remedied.
15.4 Effect of Termination
In the event of any termination of this Agreement, Epson shall
pay to Xilinx within thirty (30) days after such termination
an amount of money equal to the unused balance of the Advance
Payment (including the dollar amount equivalent to the
outstanding balance of Free Wafers, if any, resulting from
delays in wafer shipment as prescribed in Articles 3.1.4 and
6.4.1).
15.5 Survival of Obligations
The following Articles will survive any expiration,
termination or cancellation of this Agreement and the parties
will continue to be bound by the terms and conditions thereof:
13, 14, 15.2,15.3 and 15.4.
16 Miscellaneous
16.1 Order of Precedence
In the event of any conflicts between this Agreement and any
Purchase Agreement, any purchase orders, acceptances,
correspondence, memoranda, listing sheets or other documents
forming part of an order for the Products placed by Xilinx and
accepted by Epson, priority will be given first to this
Agreement, second to the Purchase Agreements, third to Epson's
acceptance, fourth to Xilinx's order and then to any other
documents. In no event, however, will either party's standard
terms and conditions be applicable to the transactions between
the parties, unless expressly accepted in writing by the other
party.
16.2 Dispute Resolution
16.2.1 Meeting of Executives
In the event that any dispute or disagreement between the
parties as to any provision of this Agreement arises, prior to
taking any other action, the matter will be referred to
responsible executives of the parties for consideration and
resolution. Any party may commence such proceedings by
delivering a written request to the other party for a meeting
of such responsible executives. The other party will be
required to set a date for the meeting to be held within
thirty (30) days after receipt of such request and the parties
agree to exercise their best efforts to settle the matter
amicably.
16.2.2 Location of Meeting
In the event that Epson initiates the proceedings described in
Article 16.3.1, the first meeting will be held in San Jose,
California and all subsequent meetings will alternate between
Tokyo, Japan, and San Jose, California. In the event that
Xilinx initiates the proceedings described in Article 16.3.1,
the first meeting will be held in Tokyo, Japan and all
subsequent meetings will alternate between San Jose,
California and Tokyo, Japan.
16.2.3 Demand for Arbitration
Any dispute relating to and/or arising out of this Agreement
will be decided exclusively by binding arbitration under
procedures which ensure efficient and speedy resolution. Such
an arbitration may be commenced by either party involved in
the dispute (i) after the expiration of a sixty (60) day
period following the written request to resolve the dispute,
and/or (ii) at such earlier time as any party involved
repudiates and/or refuses to continue with its obligations to
negotiate in good faith. The arbitration hearing will be
conducted in the State of Hawaii, and will be in the English
language (with translations and interpretations as reasonable
for the presentation of evidence and/or conduct of the
arbitration). Notwithstanding anything to the contrary, any
party may apply to any court of competent jurisdiction for
interim injunctive relief as may be allowed under applicable
law with respect to irreparable harm which cannot be avoided
and/or compensated by such arbitration proceedings, without
breach of this Section 16.3.3 and without any abridgement of
the powers of the arbitrators.
The arbitration will be conducted under the Rules of the Asia
Pacific Arbitration Center. Notwithstanding anything to the
contrary, (i) the arbitrators will have the power to order
discovery to the extent they find such discovery necessary to
achieve a fair and equitable result and (ii) the arbitrators
shall require pre-hearing exchange of documentary evidence to
be relied upon by each of the respective parties in their
respective cases in chief, and pre-hearing exchange of briefs,
witness lists,and summaries of expected testimony.
The arbitrators will make their decision in writing.
16.2.4 Arbitrators
The arbitration will be conducted by three (3) arbitrators. No
person with a beneficial interest in the dispute under
arbitration may be an arbitrator. The parties will make
reasonable efforts to select arbitrators with experience in
the field of computers and law.
16.2.5 Binding Effect
The decision or award rendered or made in connection with such
arbitration will be binding upon the parties and judgment
thereon may be entered in any court having jurisdiction and/or
application may be made to such court for enforcement of such
decision or award. However, the arbitrators will not have the
authority to create any licenses. They will only be permitted
to enforce licenses which the parties have otherwise agreed to
in the Agreement or the Existing Agreements.
16.2.6 Expenses
The expenses of the arbitrators will be shared equally by the
parties; each party will otherwise be responsible for the
costs and attorney's fees incurred by it.
16.3 Consequential Damages
IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY
FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES
(INCLUDING LOST PROFITS) WHETHER BASED ON WARRANTY, CONTRACT,
TORT OR ANY OTHER LEGAL THEORY REGARDLESS OF WHETHER SUCH PARTY
HAD ACTUAL OR CONSTRUCTIVE NOTICE OF SUCH DAMAGES.
16.4 Assignment
Neither party will assign, transfer or otherwise dispose of
this Agreement in whole or in part without the prior consent
of the other party in writing, and such consent will not be
unreasonably withheld. Except as the case set forth in Article
14.2 (h) above, this Agreement may be assigned to any
Subsidiary or to a successor who has acquired a majority of
its business or assets of the assigning party.
16.5 Public Announcements
Neither party will publicly announce the execution or
existence of this Agreement or disclose the terms and
conditions of this Agreement without first submitting the text
of such announcement to the other party and receiving the
approval of the other party of such text, which approval,
unless public disclosure is required by a court or a
government agency, may be withheld for any reason. However,
Xilinx may disclose the existence and the terms of this
Agreement in a registration statement filed with the
Securities and Exchange Commission or in accordance with
generally accepted accounting procedures under the rules of
the Securities and Exchange Commission or National Association
of Securities Dealers Automated Quotations.
16.6 Notice and Communications
Any notices required or permitted to be given hereunder will
be in English and be sent by (i) registered airmail or (ii)
cable, facsimile or telex to be confirmed by registered
airmail, addressed to:
To Epson:
281 Fujimi, Fujimi-machi, Suwa-gun
Nagano-ken 399-02, Japan
Attn: Nobuo Hashizume,
Director and Corporate General Manager
Semiconductor Operations Division
Tel: 81-266-61-1211
Fax: 81-266-61-1270
To Xilinx:
2100 Logic Dr., San Joses CA95124, U.S.A.
Attn: Willem Roelandts
President and Chief Executive Officer
Tel: 1-408-559-7778
Fax: 1-408-559-7114
Any such notice will be deemed given at the time of its receipt
by the addressee.
16.7 Relationship of the Parties
Epson and Xilinx are independent contractors and neither of
them will be nor represent themselves to be the legal agent,
partner or employee of the other party for any purpose.
Neither party will have the authority to make any warranty or
representation on behalf of the other party nor to execute any
contract or otherwise assume any obligation or responsibility
in the name of or on behalf of the other party. In addition,
neither party will be bound by, nor liable to, any third
person for any act or any obligations or debt incurred by the
other party, except to the extent specifically agreed to in
writing by the parties.
16.8 Waiver and Amendment
Failure by either party, at any time, to require performance
by the other party or to claim a breach of any provision of
this Agreement will not be construed as a waiver of any right
accruing under this Agreement, nor will it affect any
subsequent breach or the effectiveness of this Agreement or
any part hereof, or prejudice either party with respect to any
subsequent action. A waiver of any right accruing to either
party pursuant to this Agreement will not be effective unless
given in writing.
16.9 Severability
In the event that any provision of this Agreement will be
unlawful or otherwise unenforceable, such provision will be
severed, and the entire agreement will not fail on account
thereof, the balance continuing in full force and effect, and
the parties will endeavor to replace the severed provision
with a similar provision that is not unlawful or otherwise
unenforceable.
16.10 Rights and Remedies Cumulative
The rights and remedies provided herein will be cumulative and
not exclusive of any other rights or remedies provided by law
or otherwise.
16.11 Headings
The Article headings in this Agreement are for convenience only
and will not be considered a part of, or affect the
interpretation of, any provision of this Agreement.
16.12 Governing Language
This Agreement and all communications pursuant to it will be
in the English language. If there is any conflict between the
English version and any translated version of this Agreement,
the English version will govern.
16.13 Force Majeure
Except as otherwise expressly provided for herein, no party
will be liable in any manner for failure or delay in
fulfillment of all or part of this Agreement directly or
indirectly owing to any causes or circumstances beyond its
control, including, but not limited to, acts of God,
governmental order or restrictions, war, war-like conditions,
hostilities, sanctions, revolutions, riot, looting, strike,
lockout, plague or other epidemics, fire and flood.
16.14 Counterparts
This Agreement may be executed in any number of counterparts,
and all such counterparts will together constitute but one
Agreement.
16.15 Integration
This Agreement sets forth the entire agreement and
understanding between the parties as to its subject matter and
supersedes all prior agreements, understandings and memoranda
between the parties, except for the Existing Agreements. No
amendments or supplements to this Agreement will be effective
for any purpose except by a written agreement signed by the
parties.
16.16 Government Approvals; Export Control Laws
Epson will file all reports and notifications that may be
required to be filed with any agency of the Government of
Japan in order to allow the performance of this agreement
according to its terms. Xilinx will be responsible for
obtaining all licenses and permits required to export the
Products from Japan. Neither party will transmit indirectly or
directly any Products or technical information contained in
the Confidential Information except in accordance with
applicable Japanese and United States export control laws,
regulations and procedures.
IN WITNESS WHEREOF, the parties have signed this Agreement as
of the date first above written.
SEIKO EPSON CORPORATION
By: /s/ Nobuo Hashizume
Name: Nobuo Hashizume
Title: Director and Corporate General Manager
Semiconductor Operations Division
XILINX, INC.
By: /s/ Willem Roelandts
Name: Willem Roelandts
Title: President and Chief Executive Officer
AREAS MARKED "***" REPRESENT SECTIONS FOR WHICH CONFIDENTIAL
TREATMENT AS BEEN REQUESTED. THESE OMITTED SECTIONS HAVE BEEN
FILED SEPARATELY WITH THE COMMISSION.
EXHIBIT A
"Projected Completion Schedule"
EXHIBIT B
"Process Road Map"
EXHIBIT C
"Supply/Purchase Commitment"
EXHIBIT D
"Price Determination Procedure"
"Advance Payment Offset Procedure"
"Die Pricing Mechanism"
EXHIBIT E
"Defect Densities Goal"
EXHIBIT F
"Turn Around Time"
EXHIBIT A
T-Wing Start-Up Schedule
***
EXHIBIT B
Seiko VLSI Technology Roadmap
***
EXHIBIT C
Supply/Purchase Commitment
***
EXHIBIT D
Price Determination Procedure
***
Advance Payment Offset Procedure
***
Die Pricing Mechanism
***
EXHIBIT E
Defect Densities Goal
***
EXHIBIT F
Turn Around Time
***
EXHIBIT 11
<TABLE>
<CAPTION>
XILINX, INC.
STATEMENT OF COMPUTATION OF NET INCOME PER SHARE
(in thousands, except per share amounts)
Years Ended March 31,
1996 1995 1994
--------- -------- --------
<S> <C> <C> <C>
PRIMARY
Weighted average number of
common shares outstanding 71,092 69,414 67,962
Incremental common shares
attributable to outstanding 7,863 4,695 4,275
options
--------- -------- --------
Total shares 78,955 74,109 72,237
--------- -------- --------
Net income $ 101,454 $ 59,278 $ 41,279
--------- -------- --------
Net income per share $ 1.28 $ 0.80 $ 0.57
--------- -------- --------
FULLY DILUTED
Weighted average number of
common shares outstanding 71,092 69,414 67,962
Incremental common shares
attributable to outstanding 8,146 5,124 4,275
options
--------- -------- --------
Total shares 79,238 74,538 72,237
--------- -------- --------
Net income $ 101,454 $ 59,278 $ 41,279
--------- -------- --------
Net income per share $ 1.28 $ 0.80 $ 0.57
--------- -------- --------
</TABLE>
EXHIBIT 12
<TABLE>
<CAPTION>
XILINX, INC.
STATEMENT OF COMPUTATION OF RATIOS OF EARNINGS TO FIXED CHARGES
(in thousands, except ratios)
Years Ended March 31,
1996 1995 1994 1993 1992
--------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C>
Income before taxes $ 170,902 $ 94,845 $ 67,436 $ 43,610 $ 33,758
Add fixed charges 6,356 1,213 1,113 1,181 1,038
--------- -------- -------- -------- --------
Earnings (as defined) $ 177,258 $ 96,058 $ 68,549 $ 44,791 $ 34,796
========= ======== ======== ======== ========
Fixed charges
Interest expense $ 5,282 $ 549 $ 535 $ 659 $ 652
Amortization of debt 363 -- -- -- --
issuance costs
Estimated interest 711 664 578 522 386
component of rent expenses
--------- -------- -------- -------- --------
Total fixed charges $ 6,356 $ 1,213 $ 1,113 $ 1,181 $ 1,038
========= ======== ======== ======== ========
Ratio of earnings to fixed 27.9 79.2 61.6 37.9 33.5
charges ========= ======== ======== ======== ========
</TABLE>
EXHIBIT 22.1
XILINX, INC.
SUBSIDIARIES OF REGISTRANT
PLACE OF
NAME INCORPORATION
OR ORGANIZATION
----------------------- ------------------
Xilinx, Ltd. United Kingdom
Xilinx, KK Japan
Xilinx Development Corporation California
Xilinx, SARL France
Xilinx, GmbH Germany
Xilinx AB Sweden
Xilinx Holding One, Ltd. Ireland
Xilinx Holding Two, Ltd. Ireland
Xilinx Holding Three, Ltd. Cayman Islands
Xilinx, Ireland ULC Ireland
NeoCAD, Inc. Delaware
EXHIBIT 23
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statements (Form S-8 Nos. 33-80075, 33-83036, 33-52184 and 33-
67808) pertaining to the 1988 Stock Option Plan and the 1990
Employee Qualified Stock Purchase Plan of Xilinx, Inc. and
Registration Statement (Form S-3 No. 333-00054) filed in
conjunction with the Company's issuance of convertible
subordinated notes and in the related Prospectuses of our report
dated April 17, 1996, with respect to the consolidated financial
statements and schedule included in this Annual Report (Form 10-
K) for the year ended March 30, 1996.
/s/ Ernst & Young LLP
San Jose, California
June 21, 1996
EXHIBIT 25.1
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Willem P.
Roelandts and Gordon M. Steel, jointly and severally, his
attorneys-in-fact, each with the power of substitution, for him
in any and all capacities, to sign any amendments to this Report
on Form 10-K, and to file the same, with exhibits thereto and
other documents in connection therewith, with the Securities and
Exchange Commission, hereby ratifying and confirming all that
each of said attorneys-in-fact, or his substitute or substitutes,
may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Exchange Act of
1934 this Report on Form 10-K has been signed below by the
following persons on behalf of the Registrant in the capacities
and on the dates indicated.
Signature Title Date
/s/ Bernard V. Vonderschmitt Chairman of June 20, 1996
(Bernard V. Vonderschmitt) the Board
/s/ Willem P. Roelandts Chief Executive Officer
(Willem P. Roelandts) (Principal Executive June 20, 1996
Officer) and Director
/s/ Gordon M. Steel Senior Vice President of June 20, 1996
(Gordon M. Steel) Finance and Chief
Financial Officer
(Principal Accounting and
Financial Officer)
/s/ Philip T. Gianos Director June 20, 1996
(Philip T. Gianos)
/s/ John L. Doyle Director June 20, 1996
(John L. Doyle)
<TABLE>
<CAPTION>
EXHIBIT 26
SCHEDULE II - XILINX, INC.
VALUATION AND QUALIFYING ACCOUNTS
(in thousands)
Description Beginning Charged to Deductions Balance at
of Year Income (a) End of Year
--------- ---------- ---------- -----------
<S> <C> <C> <C> <C>
For the year ended March 31, 1994:
----------------------------------
Allowance for doubtful
accounts and $2,678 $2,500 $1,326 $3,852
customer returns
For the year ended March 31, 1995:
----------------------------------
Allowance for doubtful
accounts and $3,852 $1,775 $764 $4,863
customer returns
For the year ended March 31, 1996:
----------------------------------
Allowance for doubtful
accounts and $4,863 $5,296 $4,960 $5,199
customer returns
(a) Represents amounts written off against the allowance or pricing adjustments to international
distributors.
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1000
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> MAR-30-1996
<PERIOD-START> APR-02-1995
<PERIOD-END> MAR-30-1996
<CASH> 110,893
<SECURITIES> 267,068
<RECEIVABLES> 79,528
<ALLOWANCES> 5,199
<INVENTORY> 39,238
<CURRENT-ASSETS> 538,706
<PP&E> 128,283
<DEPRECIATION> 45,645
<TOTAL-ASSETS> 720,880
<CURRENT-LIABILITIES> 102,636
<BONDS> 250,000
<COMMON> 719
0
0
<OTHER-SE> 367,525
<TOTAL-LIABILITY-AND-EQUITY> 720,880
<SALES> 560,802
<TOTAL-REVENUES> 560,802
<CGS> 203,192
<TOTAL-COSTS> 395,046
<OTHER-EXPENSES> 191,854
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 5,645
<INCOME-PRETAX> 170,902
<INCOME-TAX> 69,448
<INCOME-CONTINUING> 101,454
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 101,454
<EPS-PRIMARY> 1.28
<EPS-DILUTED> 1.28
</TABLE>
