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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 12, 1998
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CYPRESS SEMICONDUCTOR CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 94-2885898
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER IDENTIFICATION NO.)
INCORPORATION OR ORGANIZATION)
3901 NORTH FIRST STREET
SAN JOSE, CALIFORNIA 95134-1599
(650) 943-2600
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING
AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
T.J. RODGERS
PRESIDENT AND CHIEF EXECUTIVE OFFICER
CYPRESS SEMICONDUCTOR CORPORATION
3901 NORTH FIRST STREET
SAN JOSE, CALIFORNIA 95134-1599
(408) 943-2600
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING
AREA CODE, OF AGENT FOR SERVICE)
COPIES TO:
JOHN A. FORE, ESQ.
WILSON SONSINI GOODRICH & ROSATI
650 PAGE MILL ROAD
PALO ALTO, CALIFORNIA 94304
(650) 493-9300
APPROXIMATE DATE OF COMMENCEMENT OF
PROPOSED SALE TO THE PUBLIC: From time to time after the effective
date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ] __________________
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, please check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ] ____________________________
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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TITLE OF EACH CLASS OF SECURITIES PROPOSED MAXIMUM AMOUNT OF
TO BE REGISTERED OFFERING PRICE (1) (2) REGISTRATION FEE
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<S> <C> <C>
Preferred Stock, $0.01 par value................... ---- ----
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Common Stock, $0.01 par value...................... ---- ----
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Debt Securities.................................... ---- ----
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Total..................................... $300,000,000 $83,400
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</TABLE>
(1) Or (i) if any Debt Securities are issued at an original issue discount,
such greater principal amount as shall result in an aggregate initial
offering price equal to the amount to be registered or (ii) if any Debt
Securities are issued with a principal amount denominated in a foreign
currency or composite currency, such principal amount as shall result
in an aggregate initial offering price equivalent thereto in United
States dollars at the time of initial offering.
(2) These figures are estimates made solely for the purpose of calculating
the registration fee pursuant to Rule 457(o). Exclusive of accrued
interest, if any, on the Debt Securities.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IS NOT SOLICITING AN OFFER TO BUY THESE SECURITIES
IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
Subject to Completion, dated November 12, 1998
PROSPECTUS
CYPRESS SEMICONDUCTOR CORPORATION
3901 NORTH FIRST STREET
SAN JOSE, CALIFORNIA 95134
(408) 943-2600
$300,000,000
COMMON STOCK
PREFERRED STOCK
DEBT SECURITIES
Cypress Semiconductor's Common Stock is traded on the New York Stock
Exchange under the symbol "CY". On November 11, 1998, the last reported
sale price for the Common Stock on the New York Stock Exchange was $11
1/4 per share.
---------------------------
See "Risk Factors" on page 2 for information you should consider before
buying the securities.
---------------------------
We will provide specific terms of these securities in
supplements to this prospectus. You should read this
prospectus and any supplement carefully before you invest.
---------------------------
This prospectus may not be used to offer and sell securities unless
accompanied by a prospectus supplement.
---------------------------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or
determined if this prospectus is truthful or complete. Any
representation to the contrary is a criminal offense.
This prospectus is dated ___________, 1998
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THE COMPANY
Cypress Semiconductor Corporation ("Cypress" or the "Company") is an
international supplier of high-performance integrated circuits with worldwide
headquarters in San Jose. The Company provides a broad range of products for
leading computer, networking, and telecommunications companies worldwide. The
Company's product line includes static RAMs, high-speed PROMs, and specialty
memories; programmable logic devices (PLDs); data communications products; and
timing devices and USB microcontrollers. Cypress commenced operations in 1982
and was incorporated in California in December 1982. In February 1987, the
Company was reincorporated in Delaware. The Company's principal executive
offices are located at 3901 N. First Street, San Jose, California 95134. Its
telephone number is (408) 943-2600. The Internet address of the Company is
http://www.cypress.com.
RISK FACTORS
You should carefully consider the specific risks set forth under the
caption "Risk Factors" in the prospectus supplement before making an investment
decision. The risks and uncertainties described in the prospectus supplement are
not the only ones facing our Company. Additional risks and uncertainties not
presently known to us or that we currently think are immaterial may also impair
our business operations.
USE OF PROCEEDS
Unless otherwise indicated in the applicable prospectus supplement
("Prospectus Supplement"), the net proceeds from the sale of Securities offered
hereby will be used for general corporate purposes, including capital
expenditures and to meet working capital needs. The Company expects from time to
time to evaluate the acquisition of businesses, products and technologies for
which a portion of the net proceeds may be used. Currently, however, the Company
does not have any understandings, commitments or agreements with respect to any
material acquisitions for which a portion of the net proceeds may be used.
Pending such uses, the Company will invest the net proceeds in interest-bearing
securities.
RATIO OF EARNINGS TO FIXED CHARGES
The ratio of earnings to fixed charges for each of the periods indicated is
as follows:
<TABLE>
<CAPTION>
NINE MONTHS ENDED
----------------------------
FISCAL YEAR SEPTEMBER 29, SEPTEMBER 28,
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1993 1994 1995 1996 1997 1997 1998
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges...... 8.7x 14.4x 19.7x 9.3x 2.8x 4.2x(1) (2)
</TABLE>
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(1) The calculation for the nine month period ended September 29, 1997 includes
a $1.6 million write-off of unamortized debt issuance costs related to the
March 1997 redemption of the 1994 convertible subordinated notes. Excluding
this write-off, earnings to fixed charges ratio would have been 4.9x for
the nine month period ended September 29, 1997.
(2) Earnings were inadequate to cover fixed charges by $121.9 million.
These computations include Cypress and our consolidated subsidiaries, and
50% or less equity companies. For these ratios, "earnings" is determined by
adding "total fixed charges" (excluding interest capitalized), income taxes,
minority common stockholders equity in net income and amortization of interest
capitalized to income from continuing operations after eliminating equity in
undistributed earnings and adding back losses of companies in
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which at least 20% but less than 50% equity is owned. For this purpose, "total
fixed charges" consists of (1) interest on all indebtedness and amortization of
debt discount and expense, (2) interest capitalized and (3) an interest factor
attributable to rentals.
GENERAL DESCRIPTION OF SECURITIES
Cypress may from time to time offer under this Prospectus (a) shares of
common stock, $0.01 par value per share ("Common Stock"), (b) shares of
preferred stock, $0.01 par value per share ("Preferred Stock"), in one or more
series, and (c) debt securities ("Debt Securities"), consisting of debentures,
notes and/or other secured or unsecured evidences of indebtedness in one or more
series, or (d) any combination of the foregoing, either individually or as units
consisting of one or more of the foregoing, each at prices and on terms to be
determined at the time of sale. The Common Stock, Preferred Stock and Debt
Securities are collectively referred to herein as the "Securities." The
aggregate offering price of Securities offered by Cypress under this Prospectus
will not exceed $300,000,000 (or its equivalent (based on the applicable
exchange rate at the time of the sale) in one or more foreign currencies,
currency units or composite currencies as shall be designated by the Company).
If Securities are offered as units, the terms of the units will be set forth in
a Prospectus Supplement.
All specific terms of the offering and sale of Securities, including the
initial public offering price, aggregate amount, listing on any securities
exchange or quotation system, specific risk factors and the identity of the
agents, dealers, or underwriters, if any, to be utilized in connection with the
sale of the Securities, as well as information, as applicable, about certain
United States federal income tax considerations relating to the Securities being
sold, will be set forth in a Prospectus Supplement.
With respect to the Preferred Stock, the related Prospectus Supplement will
set forth the specific designation, rights, preferences, privileges and
restrictions thereof, including without limitation dividend rate or rates (or
method of ascertaining the same), dividend payment dates and dates from which
dividends shall accrue, voting rights, liquidation preferences, any conversion
or exchange rights, any redemption or sinking fund provisions and any other
special terms. If so specified in the applicable Prospectus Supplement, the
Preferred Stock or a series may be issued in whole or in part in the form of one
or more temporary or permanent global certificates.
With respect to the Debt Securities, the related Prospectus Supplement will
set forth the title, rights and restrictions thereof, including without
limitation whether they are senior or subordinated, secured or unsecured
obligations, the currencies or currency units in which they are denominated, the
aggregate principal amount, the maturity, premium, if any, interest rate (which
may be fixed, floating or adjustable) and time and method of calculating payment
of interest, if any, the place or places where principal of (and premium, if
any) and interest, if any, on such Debt Securities will be payable, any
conversion, redemption or sinking fund provisions and any other special terms.
If so specified in the applicable Prospectus Supplement, Debt Securities or a
series may be issued in whole or in part in the form of one or more temporary or
permanent global securities.
Unless otherwise specified in a Prospectus Supplement, the Senior Debt
Securities, when issued, will be unsecured and will rank equally with all other
unsecured and unsubordinated indebtedness of the Company. The Subordinated Debt
Securities, when issued, will be subordinated in right of payment to all Senior
Indebtedness (as defined) of the Company, including any outstanding Senior Debt
Securities. See "Description of the Debt Securities -- Subordination of
Subordinated Debt Securities."
DESCRIPTION OF CAPITAL STOCK
The authorized capital stock of the Company consists of 255,000,000 shares
of capital stock, of which 250,000,000 shares have been designated as Common
Stock, $.01 par value, and 5,000,000 shares have been designated as Preferred
Stock, $.01 par value. The only equity securities currently outstanding are
shares of Common Stock.
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COMMON STOCK
As of September 28, 1998, there were approximately 86.0 million shares of
Common Stock issued and outstanding.
The holders of Common Stock are entitled to one vote for each share held of
record on all matters submitted to a vote of stockholders. Subject to
preferences that may be applicable to any outstanding shares of Preferred Stock,
the holders of Common Stock are entitled to receive ratably such dividends as
may be declared by the Board of Directors out of funds legally available for the
payment of dividends. In the event of liquidation, dissolution or winding up of
the Company, the holders of Common Stock are entitled to share ratably in all
assets remaining after the payment of liabilities and liquidation preferences of
any outstanding shares of Preferred Stock. The holders of Common Stock have no
preemptive rights and no rights to convert their Common Stock into any other
securities. There are also no redemption or sinking fund provisions applicable
to the Common Stock. All outstanding shares of Common Stock are fully paid and
nonassessable.
PREFERRED STOCK
As of September 28, 1998, there were no shares of Preferred Stock
outstanding. The Board of Directors has the authority, without further action by
the stockholders, to issue up to 5,000,000 shares of Preferred Stock in one or
more series and to fix the designations, powers, preferences, privileges, and
relative participating, optional or special rights and the qualifications,
limitations or restrictions thereof, including dividend rights, conversion
rights, voting rights, terms of redemption and liquidation preferences, any or
all of which may be greater than the rights of the Common Stock. The Board of
Directors, without stockholder approval, can issue Preferred Stock with voting,
conversion or other rights that could adversely affect the voting power and
other rights of the holders of Common Stock. Preferred Stock could thus be
issued quickly with terms calculated to delay or prevent a change in control of
the Company or make removal of management more difficult. Additionally, the
issuance of Preferred Stock may have the effect of decreasing the market price
of the Common Stock. At present, the Company has no plans to issue any of the
Preferred Stock.
DELAWARE GENERAL CORPORATION LAW SECTION 203
As a corporation organized under the laws of the State of Delaware, the
Company is subject to Section 203 of the Delaware General Corporation Law which
restricts certain business combinations between the Company and an "interested
stockholder" (in general, a stockholder owning 15% or more of the Company's
outstanding voting stock) or its affiliates or associates for a period of three
years following the date on which the stockholder becomes an "interested
stockholder." The restrictions do not apply if: (a) prior to the date on which
such stockholder becomes an interested stockholder the Board of Directors
approves either the business combination or the transaction which resulted in
the person becoming an interested stockholder; (b) upon consummation of the
transaction that resulted in the interested stockholder becoming an interested
stockholder, the interested stockholder owned at least 85% of the corporation's
voting stock outstanding at the time the transaction commenced (excluding from
the 85% calculation shares owned by directors who are also officers of the
target corporation and shares held by employee stock plans which do not permit
employees to decide confidentially whether to accept a tender or exchange
offer); or (c) on or after the date such person becomes an interested
stockholder, the Company's Board of Directors approves the business combination
and it is also approved at a stockholder meeting by 66 2/3% of the voting stock
owned by the interested stockholder.
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for the Company's Common Stock is Boston
Equiserve Limited Partnership, 150 Royall Street, Canton, Massachusetts 02021.
Its phone number is (617) 575-2000.
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DESCRIPTION OF THE PREFERRED STOCK
Under the Company's Certificate of Incorporation, the Company's Board of
Directors may direct the issuance of up to 5,000,000 shares of Preferred Stock
in one or more series and with designations, powers, preferences, privileges,
and relative participating, optional or special rights and the qualifications,
limitations or restrictions thereof, including dividend rights, conversion
rights, voting rights, terms of redemption and liquidation preferences that may
be fixed or designated by the Board of Directors pursuant to a certificate of
designation without any further vote or action by the stockholders of the
Company.
With respect to the undesignated shares of Preferred Stock, the Board of
Directors may authorize and issue Preferred Stock with voting or conversion
rights that could adversely affect the voting power or other rights of the
holders of Common Stock, because the terms of the Preferred Stock that might be
issued could conceivably prohibit the Company's consummation of any merger,
reorganization, sale of substantially all its assets, liquidation or other
extraordinary corporate transaction without approval of the outstanding shares
of Preferred Stock. Thus, the issuance of Preferred Stock may have the effect of
delaying, deferring or preventing a change in control of Cypress.
Preferred Stock, upon issuance against full payment of the purchase price
therefor, will be fully paid and nonassessable. The specific terms of a
particular series of Preferred Stock will be described in the Prospectus
Supplement relating to that series. The description of Preferred Stock set forth
below and the description of the terms of a particular series of Preferred Stock
set forth in the related Prospectus Supplement do not purport to be complete and
are qualified in their entirety by reference to the certificate of designation
relating to that series. The related Prospectus Supplement will contain a
description of certain United States Federal income tax consequences relating to
the purchase and ownership of the series of Preferred Stock described in such
Prospectus Supplement.
The rights, preferences, privileges and restrictions of the Preferred Stock
of each series will be fixed by the certificate of designation relating to such
series. A Prospectus Supplement, relating to each series, will specify the terms
of the Preferred Stock as follows:
(a) The maximum number of shares to constitute the series and
the distinctive designation thereof;
(b) The annual dividend rate, if any, on shares of the series,
whether such rate is fixed or variable or both, the date or dates from
which dividends will begin to accrue or accumulate and whether
dividends will be cumulative;
(c) The price at and the terms and conditions on which the
shares of the series may be redeemed, if at all (including redemption
at the option of the Company or at the option of the holders thereof),
including the time during which shares of the series may be redeemed
and any accumulated dividends thereon or premiums that the holders of
shares of the series shall be entitled to receive upon the redemption
thereof;
(d) The liquidation preference, if any, and any accumulated
dividends thereon, that the holders of shares of the series shall be
entitled to receive upon the liquidation, dissolution or winding up of
the affairs of the Company;
(e) Whether or not the shares of the series will be subject to
operation of a retirement or sinking fund, and, if so, the extent and
manner in which any such fund shall be applied to the purchase or
redemption of the shares of the series for retirement or for other
corporate purposes, and the terms and provisions relating to the
operation of such fund;
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(f) The terms and conditions, if any, on which the shares of
the series shall be convertible into, or exchangeable for, shares of
any other class or classes of capital stock of the Company or any
series of any other class or classes, or of any other series of the
same class, or any other securities or assets, including the price or
prices or the rate or rates of conversion or exchange and the method,
if any, of adjusting the same;
(g) The voting rights, if any, of the shares of the series;
and
(h) Any or all other preferences and relative, participating,
optional or other special rights, privileges or qualifications,
limitations or restrictions thereof.
The Preferred Stock or any series thereof may be represented, in whole or
in part, by one or more global certificates which will have an aggregate
principal amount equal to that of the Preferred Stock represented thereby (a
"Global Certificate"). Each Global Certificate will be registered in the name of
a depositary (the "Depositary") or a nominee thereof identified in the
applicable Prospectus Supplement, will be deposited with such Depositary or
nominee or a custodian therefor and will bear a legend regarding the
restrictions on exchanges and registration of transfer thereof and any such
other matters as may be provided for pursuant to the Certificate of Designation.
DESCRIPTION OF THE DEBT SECURITIES
The Senior Debt Securities are to be issued under an Indenture (the "Senior
Indenture"), between the Company, as issuer, and the Trustee thereunder, as
Trustee (the "Trustee"). The Subordinated Debt Securities are to be issued under
a separate Indenture (the "Subordinated Indenture"), also between the Company,
as issuer, and State Street Bank and Trust Company of California, N.A., as
Trustee. The Senior Indenture and Subordinated Indenture are sometimes referred
to collectively as the "Indentures". A copy of the form of each Indenture is
filed as an exhibit to the Registration Statement of which this Prospectus is a
part. The Debt Securities may be issued from time to time in one or more series.
The particular terms of each series, or of Debt Securities forming a part of a
series, which are offered by a Prospectus Supplement will be described in such
Prospectus Supplement.
The following summaries of certain provisions of the Indentures do not
purport to be complete and are subject, and are qualified in their entirety by
reference, to all the provisions of the Indentures, including the definitions
therein of certain terms, and, with respect to any particular Debt Securities,
to the description of the terms thereof included in the Prospectus Supplement
relating thereto. Wherever particular Sections or defined terms of the
Indentures are referred to herein or in a Prospectus Supplement, such Sections
or defined terms are incorporated by reference herein or therein, as the case
may be. Section and Article references used herein are references to the
Indentures.
GENERAL
The Indentures will provide that the Debt Securities may be issued in
separate series thereunder from time to time without limitation as to aggregate
principal amount. The Company may specify a maximum aggregate principal amount
for the Debt Securities of any series. (Section 301) The Debt Securities are to
have such terms and provisions which are not inconsistent with the Indentures,
including as to maturity, principal and interest, as the Company may determine.
Unless otherwise specified in the applicable Prospectus Supplement, the Senior
Debt Securities when issued will be unsecured and unsubordinated obligations of
the Company and will rank on a parity with all other unsecured and
unsubordinated indebtedness of the Company. The Subordinated Debt Securities
when issued will be subordinated in right of payment to the prior payment in
full of all Senior Indebtedness of the Company, including any outstanding Senior
Debt Securities, as described under "Subordination of Subordinated Debt
Securities" and in the applicable Prospectus Supplement.
The Indentures do not limit the amount of other debt that may be issued by
the Company and do not contain financial or similar restrictive covenants. The
Indentures do not contain any provision intended to provide protection to
holders of Debt Securities against a sudden or dramatic decline in credit
quality of the Company that could, for example, result from a takeover,
recapitalization, special dividend or other restructuring.
The applicable Prospectus Supplement will set forth whether the Debt
Securities offered shall be Senior Debt Securities or Subordinated Debt
Securities and the price or prices at which the Debt Securities to be offered
will be
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issued and will describe the following terms of such Debt Securities: (1) the
title of such Debt Securities; (2) any limit on the aggregate principal amount
of such Debt Securities or the series of which they are a part; (3) the Person
to whom any interest on a Debt Security of the series shall be payable, if other
than the Person in whose name that Debt Security (or one or more predecessor
Debt Securities) is registered at the close of business on the Regular Record
Date for such interest; (4) the date or dates on which the principal of any of
such Debt Securities will be payable; (5) the rate or rates at which any of such
Debt Securities will bear interest, if any, the date or dates from which any
such interest will accrue, the Interest Payment Dates on which any such interest
will be payable and the Regular Record Date for any such interest payable on any
Interest Payment Date; (6) the place or places where the principal of and any
premium and interest on any of such Debt Securities will be payable; (7) the
period or periods within which, the price or prices at which, and the terms and
conditions on which any of such Debt Securities may be redeemed, in whole or in
part, at the option of the Company; (8) the obligation, if any, of the Company
to redeem or purchase any of such Debt Securities pursuant to any sinking fund
or analogous provision or at the option of the Holder thereof, and the period or
periods within which, the price or prices at which, and the terms and conditions
on which any of such Debt Securities will be redeemed or purchased, in whole or
in part, pursuant to any such obligation; (9) the denominations in which any of
such Debt Securities will be issuable, if other than denominations of $1,000 and
any integral multiple thereof; (10) if the amount of principal of or any premium
or interest on any of such Debt Securities may be determined with reference to
an index or pursuant to a formula, the manner in which such amounts will be
determined; (11) if other than the currency of the United States of America, the
currency, currencies or currency units in which the principal of or any premium
or interest on any of such Debt Securities will be payable (and the manner in
which the equivalent of the principal amount thereof in the currency of the
United States of America is to be determined for any purpose, including for the
purpose of determining the principal amount deemed to be Outstanding at any
time); (12) if the principal of or any premium or interest on any of such Debt
Securities is to be payable, at the election of the Company or the Holder
thereof, in one or more currencies or currency units other than those in which
such Debt Securities are stated to be payable, the currency, currencies or
currency units in which payment of any such amount as to which such election is
made will be payable, the periods within which and the terms and conditions upon
which such election is to be made and the amount so payable (or the manner in
which such amount is to be determined); (13) if other than the entire principal
amount thereof, the portion of the principal amount of any of such Debt
Securities which will be payable upon declaration of acceleration of the
Maturity thereof; (14) if the principal amount payable at the Stated Maturity of
any of such Debt Securities will not be determinable as of any one or more dates
prior to the Stated Maturity, the amount which will be deemed to be such
principal amount as of any such date for any purpose, including the principal
amount thereof which will be due and payable upon any Maturity other than the
Stated Maturity or which will be deemed to be Outstanding as of any such date
(or, in any such case, the manner in which such deemed principal amount is to be
determined); (15) if applicable, that such Debt Securities, in whole or any
specified part, are defeasible pursuant to the provisions of the Indentures
described under "Defeasance and Covenant Defeasance -- Defeasance and Discharge"
or "Defeasance and Covenant Defeasance -- Defeasance of Certain Covenants," or
under both such captions; (16) if applicable, the terms of any right to convert
Debt Securities into, or exchange Debt Securities for, shares of Common Stock of
the Company or other securities or property; (17) whether any of such Debt
Securities will be issuable in whole or in part in the form of one or more
Global Securities and, if so, the respective Depositaries for such Global
Securities, the form of any legend or legends to be borne by any such Global
Security in addition to or in lieu of the legends referred to under "Form,
Exchange and Transfer" or "Global Securities" and, if different from those
described under such captions, any circumstances under which any such Global
Security may be exchanged in whole or in part for Securities registered, and any
transfer of such Global Security in whole or in part may be registered, in the
names of Persons other than the Depositary for such Global Security or its
nominee; (18) whether the subordination provisions summarized below or different
subordination provisions, including a different definition of "Senior
Indebtedness" or "Designated Senior Indebtedness," will apply to any such Debt
Securities that are Subordinated Debt Securities; (19) any addition to or change
in the Events of Default applicable to any of such Debt Securities and any
change in the right of the Trustee or the Holders to declare the principal
amount of any of such Debt Securities due and payable; (20) any addition to or
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change in the covenants in the Indentures applicable to any of such Debt
Securities; and (21) any other terms of such Debt Securities not inconsistent
with the provisions of the relevant Indenture. (Section 301)
Debt Securities, including Original Issue Discount Securities, may be sold
at a substantial discount below their stated principal amount. Certain special
United States federal income tax considerations (if any) applicable to Debt
Securities sold at an original issue discount will be described in the
applicable Prospectus Supplement. "Original Issue Discount Security" means any
Debt Security that provides for an amount less than the principal amount thereof
to be due and payable upon the declaration of acceleration of the maturity
thereof in accordance with the terms of the applicable indenture. The applicable
Prospectus Supplement relating to any series of Debt Securities that are
Original Issue Discount Securities will describe the particular provisions
relating to acceleration of the maturity of a portion of the principal amount of
such series of Original Issue Discount Securities upon the occurrence of an
Event of Default (as defined below) and the continuation thereof. In addition,
certain special United States federal income tax or other considerations (if
any) applicable to any Debt Securities which are denominated in a currency or
currency unit other than United States dollars will be described in the
applicable Prospectus Supplement.
CONVERSION RIGHTS
The terms on which Debt Securities of any series are convertible into
Common Stock or other securities or property will be set forth in the Prospectus
Supplement relating thereto. Such terms shall include provisions as to whether
conversion is mandatory or at the option of the Holder and may include
provisions pursuant to which the number of shares of Common Stock or other
securities or property to be received by the Holders of Debt Securities upon
conversion would be calculated according to the market price of Common Stock or
other securities or property as of a time stated in the applicable Prospectus
Supplement. (Article Fourteen)
SUBORDINATION OF SUBORDINATED DEBT SECURITIES
Unless otherwise indicated in the Prospectus Supplement, the following
provisions will apply to the Subordinated Debt Securities.
The indebtedness evidenced by the Subordinated Debt Securities will, to the
extent provided in the Subordinated Indenture, be subordinate in right of
payment to the prior payment in full of all Senior Indebtedness (as defined),
including any outstanding Senior Debt Securities. Upon any distribution of
assets of the Company 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 similar proceedings, all amounts
due or to become due upon all Senior Indebtedness shall first be paid in full
(or duly provided for) in cash or other payment satisfactory to the holders of
Senior Indebtedness, before any payment is made on account of the principal of,
premium, if any, or interest on the Subordinated Debt Securities (except
payments made from monies previously deposited with the Trustee under certain
circumstances). In the event of the acceleration of the Subordinated Debt
Securities because of an Event of Default, no payment or distribution shall be
made in respect of the principal of, premium, if any, or interest on the
Subordinated Debt Securities 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 the Indenture. If
the payment of Subordinated Debt Securities is accelerated because of an Event
of Default, the Company is required under the Subordinated Indenture to promptly
notify holders of Senior Indebtedness of the acceleration. (Section 1502)
The Company also may not make any payment upon or in respect of the
Subordinated Debt Securities if (i) a default in the payment of the principal
of, premium, if any, interest, rent or other obligations (including a default
under any repurchase or redemption obligation) in respect of Designated Senior
Indebtedness occurs and is continuing beyond any applicable period of grace or
(ii) any other default occurs and is continuing with respect to
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Designated Senior Indebtedness (as defined) that permits holders of the
Designated Senior Indebtedness as to which such default relates to accelerate
its maturity and the Trustee receives a notice of such default (a "Payment
Blockage Notice") from the Company, a holder of such Designated Senior
Indebtedness or other person permitted to give such notice under the
Subordinated Indenture. The Company may and shall resume payments on the
Subordinated Debt Securities (a) in the case of a payment default, upon the date
on which such default is cured or waived or ceases to exist and (b) in the case
of a nonpayment default, the earlier of the date on which such nonpayment
default is cured or waived or ceases to exist or 179 days after the date on
which the applicable Payment Blockage Notice is received. No new period of
payment blockage may be commenced pursuant to a Payment Blockage Notice unless
and until 365 days have elapsed since the initial effectiveness of the
immediately prior Payment Blockage Notice. No nonpayment default that existed or
was continuing on the date of delivery of any Payment Blockage Notice to the
Trustee (unless such default was waived, cured or otherwise ceased to exist and
thereafter subsequently reoccurred) shall be, or be made, the basis for a
subsequent Payment Blockage Notice. (Section 1504)
By reason of the subordination provisions described above, in the event of
the Company's bankruptcy, dissolution or reorganization, holders of Senior
Indebtedness may receive more, ratably, and Holders of the Subordinated Debt
Securities may receive less, ratably, than the other creditors of the Company.
Such subordination will not prevent the occurrence of any Event of Default under
the Subordinated Indenture.
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 (as defined) of the Company, whether
outstanding on the date of the Subordinated 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 Subordinated Debt Securities or
expressly provides that such Indebtedness is "pari passu" or "junior" to the
Subordinated Debt Securities. Notwithstanding the foregoing, the term Senior
Indebtedness shall not include (a) 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, (b) any Indebtedness that is not secured
and (c) the Company's 6% Convertible Subordinated Notes due 2002.
The term "Indebtedness" means, with respect to any Person (as defined in
the Subordinated Indenture), and without duplication, (a) all indebtedness,
obligations and other liabilities (contingent or otherwise) of such Person for
borrowed money (including obligations of such Person 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 credit or loan
agreements, 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 trade accounts payable or other accrued current
expense 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) (i) in respect of leases of such Person
required, in conformity with generally accepted accounting principles, to be
accounted for as capitalized lease obligations on the balance sheet of such
Person, (ii) as lessee under other leases for real property (and related assets
leased together therewith), whether or not capitalized, entered into or leased
after the date of the Subordinated Indenture for financing purposes (as
determined by the Company) or (iii) under any lease or related document
(including a purchase agreement) in connection with the lease of real property
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 leased property to the lessor and the obligations of such
Person under such
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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, currency or other swap, cap, floor or collar
agreement, hedge agreement, forward contract, or other similar instrument or
agreement or foreign currency hedge, exchange, purchase or similar instrument or
agreement, (e) all direct or indirect guaranties, agreements to be jointly
liable 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).
The term "Designated Senior Indebtedness" means the Company's obligations
under 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 Senior Indebtedness shall be "Designated Senior Indebtedness" for purposes
of the Subordinated Debenture (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).
The applicable Prospectus Supplement may further describe the provisions,
if any, applicable to the subordination of Subordinated Debt Securities of a
particular series offered thereby.
The Subordinated Debt Securities will be obligations exclusively of the
Company. Since the operations of the Company are partially conducted through its
subsidiaries, the cash flow and the consequent ability to service debt,
including the Subordinated Debt Securities, of the Company will be partially
dependent upon the earnings of any such subsidiaries and the distribution of
those earnings, or upon loans or other payments of funds by those subsidiaries,
to the Company. Such subsidiaries are separate and distinct legal entities and
have no obligation, contingent or otherwise, to pay any amounts due pursuant to
the Subordinated Debt Securities or to make any funds available therefor,
whether by dividends, distributions, loans or other payments. In addition, the
payment of dividends or distributions and the making of loans and advances to
the Company by any such subsidiaries could be subject to statutory or
contractual restrictions, could be contingent upon the earnings of those
subsidiaries and are subject to various business considerations.
Any right of the Company to receive any assets of any of its subsidiaries
upon their liquidation or reorganization (and the consequent right of the
Holders of the Subordinated Debt Securities to participate in those assets) will
be effectively subordinated to the claims of the subsidiary's creditors
(including trade creditors), except to the extent that the Company is itself
recognized as a creditor of such subsidiary, in which case the claims of the
Company would still be subordinate to any security interest in the assets of
such subsidiary and any indebtedness of such subsidiary senior to that held by
the Company.
The Subordinated Indenture does not limit or prohibit the incurrence of
additional Senior Indebtedness, which may include indebtedness that is senior to
the Subordinated Debt Securities, but subordinate to other obligations of the
Company. The Senior Debt Securities, when issued, will constitute Senior
Indebtedness.
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FORM, EXCHANGE AND TRANSFER
The Debt Securities of each series will be issuable only in fully
registered form, without coupons, and, unless otherwise specified in the
applicable Prospectus Supplement, only in denominations of $1,000 and integral
multiples thereof. (Section 302)
At the option of the Holder, subject to the terms of the Indentures and the
limitations applicable to Global Securities, Debt Securities of each series will
be exchangeable for other Debt Securities of the same series of any authorized
denomination and of a like tenor and aggregate principal amount. (Section 305)
Subject to the terms of the Indentures and the limitations applicable to
Global Securities, Debt Securities may be presented for exchange as provided
above or for registration of transfer (duly endorsed or with the form of
transfer endorsed thereon duly executed) at the office of the Security Registrar
or at the office of any transfer agent designated by the Company for such
purpose. No service charge will be imposed for any registration of transfer or
exchange of Debt Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith. Such transfer or exchange will be effected upon the Security
Registrar or such transfer agent, as the case may be, being satisfied with the
documents of title and identity of the person making the request. The Company
has appointed the Trustee as Security Registrar. Any transfer agent (in addition
to the Security Registrar) initially designated by the Company for any Debt
Securities will be named in the applicable Prospectus Supplement. (Section 305)
The Company may at any time designate additional transfer agents or rescind the
designation of any transfer agent or approve a change in the office through
which any transfer agent acts, except that the Company will be required to
maintain a transfer agent in each Place of Payment for the Debt Securities of
each series. (Section 1002)
If the Debt Securities of any series (or of any series and specified tenor)
are to be redeemed in part, the Company will not be required to (i) issue,
register the transfer of or exchange any Debt Security of that series (or of
that series and specified tenor, as the case may be) during a period beginning
at the opening of business 15 days before the day of mailing of a notice of
redemption of any such Debt Security that may be selected for redemption and
ending at the close of business on the day of such mailing or (ii) register the
transfer of or exchange any Debt Security so selected for redemption, in whole
or in part, except the unredeemed portion of any such Debt Security being
redeemed in part. (Section 305)
GLOBAL SECURITIES
Some or all of the Debt Securities of any series may be represented, in
whole or in part, by one or more global securities which will have an aggregate
principal amount equal to that of the Debt Securities represented thereby (a
"Global Security"). Each Global Security will be registered in the name of a
Depositary or a nominee thereof identified in the applicable Prospectus
Supplement, will be deposited with such Depositary or nominee or a custodian
therefor and will bear a legend regarding the restrictions on exchanges and
registration of transfer thereof referred to below and any such other matters as
may be provided for pursuant to the Indentures.
Notwithstanding any provision of the Indentures or any Debt Security
described herein, no Global Security may be exchanged in whole or in part for
Debt Securities registered, and no transfer of a Global Security in whole or in
part may be registered, in the name of any Person other than the Depositary for
such Global Security or any nominee of such Depositary unless (i) the Depositary
has notified the Company that it is unwilling or unable to continue as
Depositary for such Global Security or has ceased to be qualified to act as such
as required by the Indentures, (ii) there shall have occurred and be continuing
an Event of Default with respect to the Debt Securities represented by such
Global Security or (iii) there shall exist such circumstances, if any, in
addition to or in lieu of those described above as may be described in the
applicable Prospectus Supplement. All securities issued in
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exchange for a Global Security or any portion thereof will be registered in such
names as the Depositary may direct. (Sections 204 and 305)
As long as the Depositary, or its nominee, is the registered Holder of a
Global Security, the Depositary or such nominee, as the case may be, will be
considered the sole owner and Holder of such Global Security and the Debt
Securities represented thereby for all purposes under the Debt Securities and
the Indentures. Except in the limited circumstances referred to above, owners of
beneficial interests in a Global Security will not be entitled to have such
Global Security or any Debt Securities represented thereby registered in their
names, will not receive or be entitled to receive physical delivery of
certificated Debt Securities in exchange therefor and will not be considered to
be the owners or Holders of such Global Security or any Debt Securities
represented thereby for any purpose under the Debt Securities or the Indentures.
All payments of principal of and any premium and interest on a Global Security
will be made to the Depositary or its nominee, as the case may be, as the Holder
thereof. The laws of some jurisdictions require that certain purchasers of
securities take physical delivery of such securities in definitive form. These
laws may impair the ability to transfer beneficial interests in a Global
Security.
Ownership of beneficial interests in a Global Security will be limited to
institutions that have accounts with the Depositary or its nominee
("participants") and to persons that may hold beneficial interests through
participants. In connection with the issuance of any Global Security, the
Depositary will credit, on its book-entry registration and transfer system, the
respective principal amounts of Debt Securities represented by the Global
Security to the accounts of its participants. Ownership of beneficial interests
in a Global Security will be shown only on, and the transfer of those ownership
interests will be effected only through, records maintained by the Depositary
(with respect to participants' interests) or any such participant (with respect
to interests of persons held by such participants on their behalf).
Payments, transfers, exchanges and others matters relating to beneficial
interests in a Global Security may be subject to various policies and procedures
adopted by the Depositary from time to time. None of the Company, the Trustee or
any agent of the Company or the Trustee will have any responsibility or
liability for any aspect of the Depositary's or any participant's records
relating to, or for payments made on account of, beneficial interests in a
Global Security, or for maintaining, supervising or reviewing any records
relating to such beneficial interests.
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in the applicable Prospectus Supplement, payment
of interest on a Debt Security on any Interest Payment Date will be made to the
Person in whose name such Debt Security (or one or more Predecessor Debt
Securities) is registered at the close of business on the Regular Record Date
for such interest. (Section 307)
Unless otherwise indicated in the applicable Prospectus Supplement,
principal of and any premium and interest on the Debt Securities of a particular
series will be payable at the office of such Paying Agent or Paying Agents as
the Company may designate for such purpose from time to time, except that at the
option of the Company payment of any interest may be made by check mailed to the
address of the Person entitled thereto as such address appears in the Security
Register. Unless otherwise indicated in the applicable Prospectus Supplement,
the Corporate Trust Office of the Trustee will be designated as the Company's
sole Paying Agent for payments with respect to Debt Securities of each series.
Any other Paying Agents initially designated by the Company for the Debt
Securities of a particular series will be named in the applicable Prospectus
Supplement. The Company may at any time designate additional Paying Agents or
rescind the designation of any Paying Agent or approve a change in the office
through which any Paying Agent acts, except that the Company will be required to
maintain a Paying Agent in each Place of Payment for the Debt Securities of a
particular series. (Section 1002)
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All moneys paid by the Company to a Paying Agent for the payment of the
principal of or any premium or interest on any Debt Security which remain
unclaimed for a period ending the earlier of 10 business days prior to the date
such money would escheat to the State or at the end of two years after such
principal, premium or interest has become due and payable will be repaid to the
Company, and the Holder of such Debt Security thereafter may look only to the
Company for payment thereof. (Section 1003)
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Indentures will provide that the Company may not consolidate with or
merge into any other Person (in a transaction in which the Company is not the
surviving corporation), or convey, transfer or lease its properties and assets
substantially as an entirety to, any Person (a "Successor Person"), unless (i)
the Successor Person (if any) is a corporation, limited liability company,
partnership, trust or other entity organized and existing under the laws of the
United States, or any state thereof, and assumes the Company's obligations on
the Debt Securities and under the Indentures, (ii) immediately after giving
effect to the transaction, and treating any indebtedness which becomes an
obligation of the Company or any Subsidiary as a result of the transaction as
having been incurred by it at the time of the transaction, no Event of Default,
and no event which, after notice or lapse of time or both, would become an Event
of Default, shall have occurred and be continuing, and (iii) certain other
conditions are met. (Section 801)
EVENTS OF DEFAULT
Each of the following will constitute an Event of Default under each
Indenture with respect to Debt Securities of any series outstanding under such
Indenture (unless such event is specifically inapplicable to a particular series
as described in the Prospectus Supplement relating thereto): (a) failure to pay
principal of or any premium on any Debt Security of that series when due,
whether or not such payment is prohibited by the subordination provisions of the
Subordinated Indenture; (b) failure to pay any interest on any Debt Securities
of that series when due, continued for 30 days, whether or not such payment is
prohibited by the subordination provisions of the Subordinated Indenture; (c)
failure to deposit any sinking fund payment, when due, in respect of any Debt
Security of that series, whether or not such deposit is prohibited by the
subordination provisions of the Subordinated Indenture; (d) failure to perform
any other covenant of the Company in the Indenture (other than a covenant
included in the Indentures solely for the benefit of a series other than that
series), continued for 60 days after written notice has been given by the
Trustee, or the Holders of at least 25% in aggregate principal amount of the
Outstanding Securities of that series, as provided in the Indentures; (e)
certain events in bankruptcy, insolvency or reorganization with respect to the
Company; and (f) any other Event of Default specified in the applicable
Prospectus Supplement. (Section 501)
Each Indenture will provide that, if an Event of Default (other than an
Event of Default described in clause (e) above) with respect to the Debt
Securities of any series at the time Outstanding under such Indenture shall
occur and be continuing, either the Trustee or the Holders of at least 25% in
aggregate principal amount of the Outstanding Securities of that series by
notice as provided in the Indenture may declare the principal amount of the Debt
Securities of that series (or, in the case of any Debt Security that is an
Original Issue Discount Security or the principal amount of which is not then
determinable, such portion of the principal amount of such Debt Security, or
such other amount in lieu of such principal amount, as may be specified in the
terms of such Debt Security) to be due and payable immediately. If an Event of
Default described in clause (e) above with respect to the Debt Securities of any
series at the time Outstanding shall occur, the principal amount of all the Debt
Securities of that series (or, in the case of any such Original Issue Discount
Security or other Debt Security, such specified amount) will automatically, and
without any action by the Trustee or any Holder, become immediately due and
payable. Any payment by the Company on the Subordinated Debt Securities
following any such acceleration will be subject to the subordination provisions
of Article Fifteen of the Subordinated Indenture. After any such acceleration,
but before a judgment or decree based on acceleration, the Holders of a majority
in aggregate principal amount of the Outstanding Securities of that series may,
under certain circumstances, rescind and annul such acceleration if all
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Events of Default, other than the non-payment of accelerated principal (or other
specified amount), have been cured or waived as provided in the Indentures.
(Section 502) For information as to waiver of defaults, see "Modification and
Waiver."
Subject to the provisions of the Indentures relating to the duties of the
Trustee in case an Event of Default shall occur and be continuing, the Trustee
will be under no obligation to exercise any of its rights or powers under the
Indentures at the request or direction of any of the Holders, unless such
Holders shall have offered to the Trustee reasonable indemnity. (Section 603)
Subject to such provisions for the indemnification of the Trustee, the Holders
of a majority in aggregate principal amount of the Outstanding Securities of any
series will have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee or exercising any trust
or power conferred on the Trustee with respect to the Debt Securities of that
series. (Section 512)
No Holder of a Debt Security of any series will have any right to institute
any proceeding with respect to the Indentures, or for the appointment of a
receiver or a trustee, or for any other remedy thereunder, unless (i) such
Holder has previously given to the Trustee written notice of a continuing Event
of Default with respect to the Debt Securities of that series, (ii) the Holders
of at least 25% in aggregate principal amount of the Outstanding Securities of
that series have made a written request, and such Holder or Holders have offered
reasonable indemnity, to the Trustee to institute such proceeding as trustee and
(iii) the Trustee has failed to institute such proceeding, and has not received
from the Holders of a majority in aggregate principal amount of the Outstanding
Securities of that series a direction inconsistent with such request, within 60
days after such notice, request and offer. (Section 507) However, such
limitations do not apply to a suit instituted by a Holder of a Debt Security for
the enforcement of payment of the principal of or any premium or interest on
such Debt Security on or after the applicable due date specified in such Debt
Security. (Section 508)
Each Indenture will include a covenant requiring the Company to furnish to
the Trustee annually a statement by certain of its officers as to whether or not
the Company, to their knowledge, is in default in the performance or observance
of any of the terms, provisions and conditions of the Indenture and, if so,
specifying all such known defaults. (Section 1004)
MODIFICATION AND WAIVER
Modifications and amendments of the Indentures may be made by the Company
and the Trustee with the consent of the Holders of a majority in aggregate
principal amount of the Outstanding Securities of each series affected by such
modification or amendment; provided, however, that no such modification or
amendment may, without the consent of the Holder of each Outstanding Security
affected thereby, (a) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Debt Security, (b) reduce the
principal amount of, or any premium or interest on, any Debt Security, (c)
reduce the amount of principal of an Original Issue Discount Security or any
other Debt Security payable upon acceleration of the Maturity thereof, (d)
change the place or currency of payment of principal of, or any premium or
interest on, any Debt Security, (e) impair the right to institute suit for the
enforcement of any payment on or with respect to any Debt Security, (f) in the
case of Subordinated Debt Securities, modify the subordination provisions in a
manner materially adverse to the Holders of the Subordinated Debt Securities,
(g) in the case of Debt Securities that are convertible into Securities or other
securities of the Company, adversely affect the right of Holders to convert any
of the Debt Securities other than as provided in or pursuant to the Indentures,
(h) reduce the percentage in principal amount of Outstanding Securities of any
series, the consent of whose Holders is required for modification or amendment
of the Indentures, (i) reduce the percentage in principal amount of Outstanding
Securities of any series necessary for waiver of compliance with certain
provisions of the Indentures or for waiver of certain defaults or (j) modify
such provisions with respect to modification and waiver. (Section 902)
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The Indentures will provide that the Holders of a majority in aggregate
principal amount of the Outstanding Securities of any series may waive, on
behalf of the Holders of all Debt Securities of such series, compliance by the
Company with certain restrictive provisions of the Indentures. (Sections 1010
and 1008 of the Senior Indenture and the Subordinated Indenture, respectively)
The Holders of not less than a majority in principal amount of the Outstanding
Securities of any series may, on behalf of all Holders of Debt Securities of
that Series, waive any past default under the Indenture with respect to Debt
Securities of that Series, except a default (a) in the payment of principal of
or premium or interest on any Debt Security of that series or (b) in respect of
a covenant or provision of the Indenture which cannot be amended without the
consent of the Holder of each Outstanding Security of such series affected.
(Section 513)
Each Indenture will provide that in determining whether the Holders of the
requisite principal amount of the Outstanding Securities have given or taken any
direction, notice, consent, waiver or other action under the Indenture as of any
date, (i) the principal amount of an Original Issue Discount Security that will
be deemed to be Outstanding will be the amount of the principal thereof that
would be due and payable as of such date upon acceleration of the Maturity
thereof to such date, (ii) if, as of such date, the principal amount payable at
the Stated Maturity of a Debt Security is not determinable (for example, because
it is based on an index), the principal amount of such Debt Security deemed to
be Outstanding as of such date will be an amount determined in the manner
prescribed for such Debt Security and (iii) the principal amount of a Debt
Security denominated in one or more foreign currencies or currency units that
will be deemed to be Outstanding will be the U.S. dollar equivalent, determined
as of such date in the manner prescribed for such Debt Security, of the
principal amount of such Debt Security (or, in the case of a Debt Security
described in clause (i) or (ii) above, of the amount described in such clause).
Certain Debt Securities, including those for whose payment or redemption money
has been deposited or set aside in trust for the Holders and those that have
been fully defeased pursuant to Section 1302, will not be deemed to be
Outstanding. (Section 101)
Except in certain limited circumstances, the Company will be entitled to
set any day as a record date for the purpose of determining the Holders of
Outstanding Securities of any series entitled to give or take any direction,
notice, consent, waiver or other action under the Indentures, in the manner and
subject to the limitations provided in the Indentures. In certain limited
circumstances, the Trustee will be entitled to set a record date for action by
Holders. If a record date is set for any action to be taken by Holders of a
particular series, such action may be taken only by persons who are Holders of
Outstanding Securities of that series on the record date. To be effective, such
action must be taken by Holders of the requisite principal amount of such Debt
Securities within a specified period following the record date. For any
particular record date, this period will be 180 days or such other shorter
period as may be specified by the Company (or the Trustee, if it set the record
date), and may be shortened or lengthened (but not beyond 180 days) from time to
time. (Section 104)
DEFEASANCE AND COVENANT DEFEASANCE
If and to the extent indicated in the applicable Prospectus Supplement, the
Company may elect, at its option at any time, to have the provisions of Section
1302, relating to defeasance and discharge of indebtedness, or Section 1303,
relating to defeasance of certain restrictive covenants in the Indentures,
applied to the Debt Securities of any series, or to any specified part of a
series. (Section 1301)
Defeasance and Discharge. The Indentures will provide that, upon the
Company's exercise of its option (if any) to have Section 1302 applied to any
series (or part thereof) of Debt Securities than with respect to any series of
Subordinated Debt Securities, the provisions of Article Fifteen of the
Subordinated Indenture relating to subordination will cease to be effective and,
with respect to any series (or part thereof) of Debt Securities, the Company
will be discharged from all its obligations with respect thereto (except for
certain obligations to exchange or register the transfer of Debt Securities, to
replace stolen, lost or mutilated Debt Securities, to maintain paying agencies,
to hold moneys for payment in trust and, if applicable, to effect conversion of
Debt Securities) upon the
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deposit in trust for the benefit of the Holders of such Debt Securities of money
or U.S. Government Obligations, or both, which, through the payment of principal
and interest in respect thereof in accordance with their terms, will provide
money in an amount sufficient to pay the principal of and any premium and
interest on such Debt Securities on the respective Stated Maturities in
accordance with the terms of the Indentures and such Debt Securities. Such
defeasance or discharge may occur only if, among other things, the Company has
delivered to the Trustee an Opinion of Counsel to the effect that the Company
has received from, or there has been published by, the United States Internal
Revenue Service a ruling, or there has been a change in tax law, in either case
to the effect that Holders of such Debt Securities will not recognize gain or
loss for federal income tax purposes as a result of such deposit, defeasance and
discharge and will be subject to federal income tax on the same amount, in the
same manner and at the same times as would have been the case if such deposit,
defeasance and discharge were not to occur. (Sections 1302 and 1304)
Defeasance of Certain Covenants. The Indentures will provide that, upon the
Company's exercise of its option (if any) to have Section 1303 applied to any
Debt Securities, the Company may omit to comply with certain restrictive
covenants, including any that may be described in the applicable Prospectus
Supplement, and the occurrence of certain Events of Default, which are described
above in clause (d) (with respect to such restrictive covenants) under "Events
of Default" and any that may be described in the applicable Prospectus
Supplement, will be deemed not to be or result in an Event of Default, in each
case with respect to such Debt Securities, and, in the case of the Subordinated
Indenture, the provisions of Article Fifteen relating to subordination will
cease to be effective with respect to any Subordinated Debt Securities. The
Company, in order to exercise such option, will be required to deposit, in trust
for the benefit of the Holders of such Debt Securities, money or U.S. Government
Obligations, or both, which, through the payment of principal and interest in
respect thereof in accordance with their terms, will provide money in an amount
sufficient to pay the principal of and any premium and interest on such Debt
Securities on the respective Stated Maturities in accordance with the terms of
the Indentures and such Debt Securities. The Company will also be required,
among other things, to deliver to the Trustee an Opinion of Counsel to the
effect that Holders of such Debt Securities will not recognize gain or loss for
federal income tax purposes as a result of such deposit and defeasance of
certain obligations and will be subject to federal income tax on the same
amount, in the same manner and at the same times as would have been the case if
such deposit and defeasance were not to occur. In the event the Company
exercised this option with respect to any Debt Securities and such Debt
Securities were declared due and payable because of the occurrence of any Event
of Default, the amount of money and U.S. Government Obligations so deposited in
trust would be sufficient to pay amounts due on such Debt Securities at the time
of their respective Stated Maturities but may not be sufficient to pay amounts
due on such Debt Securities upon any acceleration resulting from such Event of
Default. In such case, the Company would remain liable for such payments.
(Sections 1303 and 1304)
The Company may, at its option, satisfy and discharge each of the
Indentures (except for certain obligations of the Company and the Trustee,
including, among others the obligations to apply money held in trust) when (i)
either (a) all Debt Securities under such Indenture previously authenticated and
delivered (other than (1) Debt Securities that were destroyed, lost or stolen
and that have been replaced or paid and (2) Debt Securities for the payment of
which money has been deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged from such trust) have
been delivered to the Trustee for cancellation or discharge from such trust) or
(b) all such Debt Securities under such Indenture not theretofore delivered to
the Trustee for cancellation (1) have become due and payable, (2) will become
due and payable at their Stated Maturity within one year, or (3) are to be
called for redemption within one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption by the Trustee in the name and at
the expense of the Company, and the Company has deposited or caused to be
deposited with the Trustee as trust funds in trust for such purpose an amount
sufficient to pay and discharge the entire indebtedness on such Debt Securities
under such Indenture not previously delivered to the Trustee for cancellation,
for principal and any premium and interest to the date of such deposit (in the
case of Debt Securities under such Indenture which have become due and payable)
or to the Stated Maturity or redemption date as the case may be, (ii) the
Company has paid or caused to be paid all other sums payable under
16
<PAGE> 19
such Indenture by the Company, and (iii) the Company has delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel, each to the effect
that all conditions precedent relating to the satisfaction and discharge of such
Indenture have been satisfied.
NOTICES
Notices to Holders of Debt Securities will be given by mail to the
addresses of such Holders as they may appear in the Security Register. (Sections
101 and 106)
TITLE
The Company, the Trustee and any agent of the Company or the Trustee may
treat the Person in whose name a Debt Security is registered as the absolute
owner thereof (whether or not such Debt Security may be overdue) for the purpose
of making payment and for all other purposes. (Section 308)
GOVERNING LAW
The Indentures and the Debt Securities will be governed by, and construed
in accordance with, the law of the State of New York, without giving effect to
such state's conflicts of law principles. (Section 112)
REGARDING THE TRUSTEE
The Indentures contain certain limitations on the right of the Trustee,
should it become a creditor of the Company, to obtain payment of claims in
certain cases or to realize for its own account on certain property received in
respect of any such claim as security or otherwise. (Section 613) The Trustee is
permitted to engage in certain other transactions; however, if it acquires any
conflicting interest and there is a default under the Securities of any series
for which the Trustee serves as trustee, the Trustee must eliminate such
conflict or resign. (Section 608)
PLAN OF DISTRIBUTION
The Company may sell the Securities separately or together, (i) to one or
more underwriters or dealers for public offering and sale by them and (ii) to
investors directly or (iii) through agents. The distribution of the Securities
may be effected from time to time in one or more transactions at a fixed price
or prices (which may be changed from time to time), at market prices prevailing
at the times of sale, at prices related to such prevailing market prices or at
negotiated prices. Each Prospectus Supplement will describe the method of
distribution of the Securities offered thereby.
In connection with the sale of the Securities, underwriters, dealers or
agents may receive compensation from the Company or from purchasers of the
Securities for whom they may act as agents, in the form of discounts,
concessions or commissions. The underwriters, dealers or agents which
participate in the distribution of the Securities may be deemed to be
underwriters under the Securities Act of 1933, as amended (the "Securities Act")
and any discounts or commissions received by them and any profit on the resale
of the Securities received by them may be deemed to be underwriting discounts
and commissions thereunder. Any such underwriter, dealer or agent will be
identified and any such compensation received from the Company will be described
in the Prospectus Supplement. Any initial public offering price and any
discounts or concessions allowed or reallowed or paid to dealers may be changed
from time to time.
Under agreements that may be entered into with the Company, underwriters,
dealers and agents may be entitled to indemnification by the Company against
certain civil liabilities, including liabilities under the Securities Act, or
17
<PAGE> 20
to contribution with respect to payments which the underwriters, dealers or
agents may be required to make in respect thereof.
The Company may grant underwriters who participate in the distribution of
Securities an option to purchase additional Securities to cover over-allotments,
if any.
All Debt Securities will be new issues of securities with no established
trading market. Any underwriters to whom Debt Securities are sold by the Company
for public offering and sale may make a market in such securities, but such
underwriters will not be obligated to do so and may discontinue any market
making at any time without notice. No assurance can be given as to the liquidity
of the trading market for any Debt Securities.
Certain of the underwriters or agents and their associates may be customers
of, engage in transactions with or perform services for the Company in the
ordinary course of business.
LEGAL MATTERS
The validity of the issuance of the Securities offered hereby will be
passed upon for the Company by Wilson Sonsini Goodrich & Rosati, Professional
Corporation, Palo Alto, California. Certain legal matters relating to the
Securities offered will be passed on for any underwriters by the counsel for
such underwriters named in the applicable Prospectus Supplement.
EXPERTS
The consolidated financial statements incorporated by reference in this
Prospectus by reference to the Annual Report on Form 10-K for the fiscal year
ended December 29, 1997 have been so incorporated in reliance on the report of
PricewaterhouseCoopers LLP, independent accountants, given on the authority of
said firm as experts in auditing and accounting.
WHERE YOU CAN FIND MORE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith, files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information filed by the Company can be inspected and
copied at the public reference facilities of the Commission located at Room
1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, and at
the Commission's regional offices at Seven World Trade Center, 13th Floor, New
York, New York 10048; and Northwestern Atrium Center, 500 West Madison Street,
Suite 1400, Chicago, Illinois 60661-2511. Copies of such material can also be
obtained from the Public Reference Section of the Commission at Room 1024,
Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549 at prescribed
rates. Information regarding the operation of the Public Reference Room may be
obtained by calling the Commission at 1-800-SEC-0330. The Commission maintains a
World Wide Web site that contains reports, proxy and information statements and
other information regarding registrants that file electronically with the
Commission. The address of the World Wide Web site is http://www.sec.gov. The
Company's Common Stock is quoted for trading on the New York Stock Exchange,
and, accordingly, reports, proxy statements and other information concerning the
Company may be inspected at the offices of the New York Stock Exchange, Inc., 20
Broad Street, New York, New York 10005.
The Company has filed with the Commission a Registration Statement on Form
S-3 under the Securities Act with respect to the Securities offered hereby. This
Prospectus does not contain all of the information set forth in the Registration
Statement and the exhibits and schedules thereto. For further information with
respect to the Company, reference is made to the Registration Statement and the
exhibits
18
<PAGE> 21
and schedules filed therewith. Statements contained in this Prospectus as to the
contents of any contract or any other document referred to are not necessarily
complete, and in each instance reference is made to the copy of such contract or
other document filed as an exhibit to the Registration Statement, each such
statement being qualified in all respects by such reference. A copy of the
Registration Statement may be inspected, without charge, at the offices of the
Commission in Washington, D.C. and copies of all or any part of the Registration
Statement may be obtained from the Public Reference Section of the Commission at
Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, upon
the payment of the fees prescribed by the Commission.
The following documents filed with the Commission are incorporated herein
by reference:
(i) The Company's Annual Report on Form 10-K for its fiscal
year ended December 29, 1997 (as amended on Form 10-K/A
filed with the Commission on April 16, 1998).
(ii) The Company's Quarterly Reports on Form 10-Q for the
quarters ended March 30, 1998, June 29, 1998 and September
28, 1998.
(iii) The Company's Current Reports on Form 8-K dated January
29, 1998 (as amended on Form 8-K/A filed with the
Commission on February 3, 1998) and March 16, 1998.
(iv) The description of the Company's Common Stock contained
in the Company's Form 8-A filed on May 12, 1986, and any
amendment or report filed for the purpose of updating such
description.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Exchange Act following the date of this Prospectus and prior to
the termination of the offering contemplated hereby shall be deemed to be
incorporated by reference in this Prospectus and to be a part hereof from the
date of filing of such documents (all of such documents, and the documents
enumerated above, being hereinafter referred to as "Incorporated Documents").
The information relating to the Company contained in this Prospectus does not
purport to be comprehensive and should be read together with the information
contained in the Incorporated Documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of the Registration Statement or this Prospectus to the extent that
a statement contained herein, in a Prospectus Supplement or in any other
document subsequently filed with the Commission which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of the Registration Statement or this
Prospectus.
The Company will provide without charge to each person, including any
beneficial owner, to whom this Prospectus is delivered, upon written or oral
request of such person, a copy of any and all of the Incorporated Documents (not
including exhibits to the information that is incorporated by reference unless
such exhibits are specifically incorporated by reference into the information
that this Prospectus incorporates). Requests should be directed to Chief
Financial Officer, Cypress Semiconductor Corporation, 3901 N. First Street, San
Jose, California 95134 (telephone number (408) 943-2600).
19
<PAGE> 22
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The aggregate estimated expenses to be paid by the Registrant in
connection with this offering are as follows:
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee............. $ 83,400
Trustee's fees and expenses..................................... 25,000
Accounting fees and expenses.................................... 75,000
Legal fees and expenses......................................... 200,000
Printing and engraving.......................................... 100,000
Blue sky fees and expenses...................................... 15,000
Transfer agent fees and expenses................................ 15,000
Rating agencies' fees........................................... 75,000
Miscellaneous................................................... 36,600
--------
Total................................................... $625,000
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article 11 of the Company's Certificate of Incorporation provides that,
to the fullest extent permitted by Delaware law, as the same now exists or may
hereafter be amended, a director shall not be personally liable to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director. Delaware law provides that directors of a corporation will
not be personally liable for monetary damages for breach of their fiduciary
duties as directors, except for liability (i) for any breach of their duty of
loyalty to the corporation or its stockholders, (ii) for acts or omissions not
in good faith or that involve intentional misconduct or a knowing violation of
law, (iii) for unlawful payments of dividends or unlawful stock repurchases or
redemptions as provided in Section 174 of the Delaware General Corporation Law,
or (iv) for any transaction from which the director derived an improper personal
benefit.
Article VI of the Company's Bylaws provides that the Company (i) shall
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by or in
the right of the corporation) by reason of the fact that he is or was a director
or officer of the corporation, or is or was serving at the request of the
corporation as a director or officer of another corporation, partnership, joint
venture, trust or other enterprise, and (ii) may indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending or
contemplated action, suit or proceeding, whether civil, criminal, administrative
or investigative (other than an action by or in the right of the corporation) by
reason of the fact that he is or was an employee or agent of the corporation, or
is or was serving at the request of the corporation as an employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The Bylaws provide that
the termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that the person did not act in good
faith and in a manner which he reasonably believed to be
II-1
<PAGE> 23
in or not opposed to the best interest of the corporation, and, with respect to
any criminal action or proceeding, had reasonable cause to believe that his
conduct was unlawful.
Article VI of the Company's Bylaws also provides that the Company (1)
shall indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action or suit by or in the right
of the corporation to procure a judgment in its favor by reason of the fact that
he is or was a director or officer of the corporation, or is or was serving at
the request of the corporation as a director or officer of another corporation,
partnership, joint venture, trust or other enterprise, and (2) may indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that he is
or was an employee or agent of the corporation, or is or was serving at the
request of the corporation as an employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation except that no indemnification shall be made
in respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the corporation unless and only to the extent that the
Delaware Court of Chancery or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of liability but
in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the Delaware Court of
Chancery or such other court shall deem proper.
The Bylaws further provide that, to the extent that a director or
officer of the corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to above, or in defense of
any claim, issue or matter therein, he shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith and to the extent that an employee or agent of the
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to above, or in defense of any claim, issue
or matter therein, he may be indemnified against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection therewith.
The Company's Bylaws also permit the Company to secure insurance on
behalf of any officer, director, employee or other agent for any liability
arising out of his or her actions in such capacity, regardless of whether the
Bylaws would permit indemnification. The Company currently maintains liability
insurance for its officers and directors.
The Company has entered into agreements to indemnify its directors and
officers, in addition to the indemnification provided for in the Company's
Certificate of Incorporation and Bylaws. These agreements, among other things,
indemnify the Company's directors and officers for certain expenses (including
attorney's fees), judgments, fines and settlement amounts incurred by any such
person in any action or proceeding, including any action by or in the right of
the Company, arising out of such person's services as a director or officer of
the Company, any subsidiary of the Company or any other company or enterprise to
which the person provides services at the request of the Company.
The form(s) of proposed Underwriting Agreement(s) to be filed as (an)
Exhibit(s) hereto or incorporated by reference herein may include provisions
regarding the indemnification of officers and directors of the registrant by the
several Underwriters.
II-2
<PAGE> 24
ITEM 16. EXHIBITS
The following exhibits are filed herewith or incorporated by reference
herein:
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT TITLE
------ -------------
<S> <C>
1.1 Form of Underwriting Agreement (Common Stock).*
1.2 Form of Underwriting Agreement (Convertible Securities).*
1.3 Form of Underwriting Agreement (Debt Securities)*
3.1(i) Restated Certificate of Incorporation, as amended.(1)
(ii) Certificate of Amendment of Restated Certificate of
Incorporation, as amended.(2)
(iii) Bylaws, as amended.(1)
4.1 Form of Senior Indenture.*
4.2 Form of Subordinated Indenture.*
4.3 Form of Senior Debt Security (included in Exhibit 4.1).*
4.4 Form of Subordinated Debt Security (included in Exhibit 4.2).*
4.5 Specimen of stock certificate of Registrant's Common Stock.(1)
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation.*
12.1 Computation of Ratios of Earnings to Fixed Charges.
23.1 Consent of PricewaterhouseCoopers LLP, independent
accountants.
23.2 Consent of Wilson Sonsini Goodrich & Rosati, Professional
Corporation (included in Exhibit 5.1).*
24.1 Power of Attorney of certain directors and officers of the
registrant (see page II-6 of initial filing of this Form S-3).
25.1 Form T-1 Statement of Eligibility of Trustee for Senior
Indenture under the Trust Indenture Act of 1939.*
25.2 Form T-1 Statement of Eligibility of Trustee for Subordinated
Indenture under the Trust Indenture Act of 1939.*
</TABLE>
- --------------
* To be filed by amendment or by a report on Form 8-K pursuant
to Section 601 of Regulation S-K.
(1) Incorporated by reference to the Registrant's Registration
Statement on Form S-1 (No. 33-12153) which became effective on
March 4, 1987.
(2) Incorporated by reference to the Company's Annual Report on
Form 10-K for the fiscal year ended December 28, 1992.
ITEM 17. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration
statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or
II-3
<PAGE> 25
decrease in volume of securities offered (if the
total dollar value of securities offered would not
exceed that which was registered) and any deviation
from the low or high end of the estimated maximum
offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20 percent change
in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the
effective registration statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in
the Registration Statement or any material change to
such information in the Registration Statement;
Provided, however, that clauses (i) and (ii) do not apply if the
information required to be included in a post-effective amendment by such
clauses is contained in periodic reports filed with or furnished to the
Securities and Exchange Commission by the Registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act") that
are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed
a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(4) That, for purposes of determining any liability under the
Securities Act, each filing of the Registrant's annual report pursuant
to Section 13(a) or Section 15(d) of the Exchange Act that is
incorporated by reference in this Registration Statement shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions described under Item 15 above, or
otherwise, the Registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form of
prospectus filed as part of this registration statement in reliance
upon Rule 430A and contained in a form of prospectus filed by the
registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the
Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
II-4
<PAGE> 26
(2) For the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that contains a
form of prospectus shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof.
II-5
<PAGE> 27
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement on Form S-3 to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of San Jose, State of California, on this 12th day
of November, 1998.
CYPRESS SEMICONDUCTOR CORPORATION
By: /s/ T. J. RODGERS
---------------------------------------
T. J. Rodgers
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS that each individual whose signature appears
below constitutes and appoints T.J. Rodgers and Emmanuel Hernandez, and each of
them, as his true and lawful attorneys-in-fact and agents, each with the power
of substitution, for him and in his name, place and stead, in any and all
capacities, to sign the Registration Statement filed herewith and any and all
amendments (including post-effective amendments) to this Registration Statement,
and to sign any registration statement for the same offering covered by this
Registration Statement that is to be effective upon filing pursuant to Rule
462(b) promulgated under the Securities Act of 1933, and all post-effective
amendments thereto, and to file the same, with all exhibits thereto and all
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the foregoing, as full to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents or any of them, or his or their
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
<TABLE>
<CAPTION>
NAME TITLE DATE
- ----------------------------------------- ---------------------------------------- ------------------------
<S> <C> <C>
/S/ T. J. RODGERS President and Chief Executive November 12, 1998
- ----------------------------------------- Officer
T. J. Rodgers
/S/ EMMANUEL HERNANDEZ Chief Financial Officer, Vice November 12, 1998
- ----------------------------------------- President, Finance and
Emmanuel Hernandez Administration (Principal
Financial and Accounting Officer)
/S/ ERIC A. BENHAMOU Chairman of the Board of November 12, 1998
- ----------------------------------------- Directors
Eric A. Benhamou
</TABLE>
II-6
<PAGE> 28
<TABLE>
<S> <C> <C>
/S/ FRED B. BIALEK Director November 12, 1998
- -----------------------------------------
Fred B. Bialek
/S/ JOHN C. LEWIS Director November 12, 1998
- -----------------------------------------
John C. Lewis
/S/ ALAN F. SHUGART Director November 12, 1998
- -----------------------------------------
Alan F. Shugart
</TABLE>
II-7
<PAGE> 29
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT TITLE
------ -------------
<S> <C>
1.1 Form of Underwriting Agreement (Common Stock).*
1.2 Form of Underwriting Agreement (Convertible Securities).*
1.3 Form of Underwriting Agreement (Debt Securities)*
3.1(i) Restated Certificate of Incorporation, as amended.(1)
(ii) Certificate of Amendment of Restated Certificate of
Incorporation, as amended.(2)
(iii) Bylaws, as amended.(1)
4.1 Form of Senior Indenture.*
4.2 Form of Subordinated Indenture.*
4.3 Form of Senior Debt Security (included in Exhibit 4.1).*
4.4 Form of Subordinated Debt Security (included in Exhibit 4.2).*
4.5 Specimen of stock certificate of Registrant's Common Stock.(1)
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation.*
12.1 Computation of Ratios of Earnings to Fixed Charges.
23.1 Consent of PricewaterhouseCoopers LLP, independent
accountants.
23.2 Consent of Wilson Sonsini Goodrich & Rosati, Professional
Corporation (included in Exhibit 5.1).*
24.1 Power of Attorney of certain directors and officers of the
registrant (see page II-6 of initial filing of this Form S-3).
25.1 Form T-1 Statement of Eligibility of Trustee for Senior
Indenture under the Trust Indenture Act of 1939.*
25.2 Form T-1 Statement of Eligibility of Trustee for Subordinated
Indenture under the Trust Indenture Act of 1939.*
</TABLE>
- ---------------
* To be filed by amendment or by a report on Form 8-K pursuant
to Section 601 of Regulation S-K.
(1) Incorporated by reference to the Registrant's Registration
Statement on Form S-1 (No. 33-12153) which became effective on
March 4, 1987.
(2) Incorporated by reference to the Company's Annual Report on
Form 10-K for the fiscal year ended December 28, 1992.
<PAGE> 1
EXHIBIT 12.1
COMPUTATION OF RATIOS OF EARNINGS TO FIXED CHARGES
(IN THOUSANDS, EXCEPT RATIO DATA)
<TABLE>
<CAPTION>
NINE MONTHS NINE MONTHS
ENDED ENDED
SEPT. 29, SEPT. 28,
1993 1994 1995 1996 1997 1997 1998
--------- --------- --------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C> <C> <C>
Pretax Income (Loss) from Continuing $ 12,567 $ 80,115 $ 161,384 $ 83,505 $ 24,032 $ 27,934 $(121,857)
Operations:
Loss Recognized On Investment in Less than 50%
Owned Person Accounted for under the Equity
Method 0 0 0 0 343 321 0
Minority Interest in the Loss of Majority-Owned
Subsidiary (967) 0 0 (1,539) (450) (450) 0
--------- --------- --------- --------- --------- --------- ---------
$ 11,600 $ 80,115 $ 161,384 $ 81,966 $ 23,925 $ 27,805 $(121,857)
--------- --------- --------- --------- --------- --------- ---------
Fixed Charges:
Interest Expense and Amortization of Debt
Discount $ 289 $ 4,041 $ 6,239 $ 6,895 $ 6,707 $ 4,043 $ 8,207
Amortization of Debt Expense 0 278 414 414 1,998 1,757 767
Appropriate Portion of Rent Expense Related
to Interest Charges 1,220 1,651 1,998 2,569 4,645 3,038 4,474
--------- --------- --------- --------- --------- --------- ---------
Total Fixed Charges $ 1,509 $ 5,970 $ 8,651 $ 9,878 $ 13,350 $ 8,838 $ 13,448
--------- --------- --------- --------- --------- --------- ---------
Earnings (Loss) Before Income Taxes, Loss on
Investment Accounted for Under Equity
Method, Minority Interest, and Fixed Charges $ 13,109 $ 86,085 $ 170,035 $ 91,844 $ 37,275 $ 36,643 $(108,409)
--------- --------- --------- --------- --------- --------- ---------
Ratio of Earnings to Fixed Charges 8.7x 14.4x 19.7x 9.3x 2.8x 4.2x(1) (2)
========= ========= ========= ========= ========= ========= =========
</TABLE>
(1) The calculation for the nine month period ended September 29, 1997
includes a $1.6 million write-off of unamortized debt issuance costs
related to the March 1997 redemption of the 1994 convertible subordinated
notes. Excluding this write-off, earnings to fixed charges ratio would
have been 4.9x for the nine month period ended September 29, 1997.
(2) Earnings were inadequate to cover fixed charges by $121,857.
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our report dated
January 20, 1998, except as to Note 9, which is of March 6, 1998, appearing on
page 42 of Cypress Semiconductor Corporation's Annual Report on Form 10-K for
the year ended December 29, 1997. We also consent to the reference to us under
the heading "Experts" in such Prospectus.
/s/ PricewaterhouseCoopers LLP
San Jose, California
November 12, 1998
