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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 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
------------------------
DELL COMPUTER CORPORATION
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
DELAWARE 74-2487834
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
</TABLE>
ONE DELL WAY, ROUND ROCK, TEXAS 78682-2244
(512) 338-4400
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
<TABLE>
<S> <C>
THOMAS J. MEREDITH Copies to:
SENIOR VICE PRESIDENT AND CHIEF FINANCIAL
OFFICER THOMAS H. WELCH, JR.
DELL COMPUTER CORPORATION GENERAL CORPORATE COUNSEL
ONE DELL WAY DELL COMPUTER CORPORATION
ROUND ROCK, TEXAS 78682-2244 ONE DELL WAY
512-338-4400 ROUND ROCK, TEXAS 78682-2244
(Name and address, including zip code,
and telephone number of agent for service)
</TABLE>
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Approximate date of commencement of proposed sale to the public: From time
to time after this Registration Statement becomes effective.
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 being offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ] ______________
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, 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. [X]
CALCULATION OF REGISTRATION FEE
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TITLE OF EACH CLASS PROPOSED MAXIMUM AGGREGATE AMOUNT OF
OF SECURITIES TO BE REGISTERED OFFERING PRICE(1)(2) REGISTRATION FEE
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Debt Securities................................. $500,000,000 $147,500
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</TABLE>
(1) The proposed maximum aggregate offering price has been estimated solely for
the purpose of calculating the registration fee pursuant to Rule 457(o)
under the Securities Act of 1933.
(2) If any Debt Securities are issued at an original issue discount, then the
offering price shall be the greater principal amount as shall result in an
aggregate initial offering price not to exceed $500,000,000; and if any Debt
Securities are issued with a principal amount denominated in a foreign
currency or composite currency, then the offering price shall be the
equivalent principal amount thereof in United States dollars at the time of
initial offering as shall result in an aggregate initial offering price not
to exceed $500,000,000.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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<PAGE> 2
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which the offer, solicitation or sale would be unlawful prior to
registration or qualification under the securities laws of any State.
PROSPECTUS (Subject to Completion)
Issued March 12, 1998
[DELL LOGO]
Dell Computer Corporation
DEBT SECURITIES
------------------------
Dell Computer Corporation, a Delaware corporation (the "Company"), from
time to time may offer its debt securities consisting of senior debentures,
notes, bonds or other evidences of indebtedness in one or more series ("Debt
Securities") with an aggregate initial public offering price of up to $500
million or the equivalent thereof in one or more foreign currencies or composite
currencies, including European Currency Units ("ECU"). The Debt Securities may
be offered in separate series in amounts, at prices and on terms to be set forth
in a supplement to this Prospectus (a "Prospectus Supplement").
The Debt Securities may be sold for U.S. Dollars, one or more foreign
currencies or composite currencies, and the principal of and any interest on the
Debt Securities may likewise be payable in U.S. Dollars, one or more foreign
currencies, composite currencies or amounts determined by reference to an index.
The Debt Securities will rank equally with all other unsubordinated and
unsecured indebtedness of the Company. See "Description of Debt Securities."
The specific terms of the Debt Securities with respect to which this
Prospectus is being delivered, such as (where applicable) the specific
designation, aggregate principal amount, currency, denomination, maturity,
premium, rate (or manner of calculation thereof) and time of payment of
interest, terms for redemption at the option of the Company or the holder or for
sinking fund payments, and the initial public offering price, will be set forth
in an accompanying Prospectus Supplement. See "Description of Debt Securities."
The Debt Securities may be sold through underwriting syndicates led by one
or more managing underwriters or through one or more underwriters acting alone.
The Debt Securities may also be sold directly by the Company or through agents
designated from time to time. If any underwriters or agents are involved in the
sale of the Debt Securities, their names, the principal amount of Debt
Securities to be purchased by them and any applicable fee, commission or
discount arrangements with them will be set forth in the Prospectus Supplement.
See "Plan of Distribution."
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
------------------------
This Prospectus may not be used to consummate sales of Debt Securities
unless accompanied by a Prospectus Supplement.
March , 1998
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CERTAIN PERSONS PARTICIPATING IN AN OFFERING MAY ENGAGE IN TRANSACTIONS
THAT STABILIZE, MAINTAIN OR OTHERWISE AFFECT THE PRICE OF THE DEBT SECURITIES,
INCLUDING OVER-ALLOTMENT, STABILIZING AND SHORT-COVERING TRANSACTIONS IN SUCH
DEBT SECURITIES, AND THE IMPOSITION OF A PENALTY BID, DURING AND AFTER AN
OFFERING. FOR A DESCRIPTION OF THESE ACTIVITIES, SEE "PLAN OF DISTRIBUTION."
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934 (the "Exchange Act"), and in accordance therewith files
reports, proxy statements and other information with the Securities and Exchange
Commission (the "SEC"). Such reports, proxy statements and other information
filed by the Company can be inspected and copied at the public reference
facilities maintained by the SEC at Room 1024, 450 Fifth Street, N.W.,
Washington, D.C. 20549, and at the SEC's Regional Offices located at Citicorp
Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661 and at 7
World Trade Center, Suite 1300, New York, New York 10048. Copies of such
material can be obtained from the Public Reference Section of the SEC, 450 Fifth
Street, N.W., Washington, D.C. 20549, at prescribed rates. The SEC maintains a
World Wide Web site that contains reports, proxy and information statements and
other information regarding registrants that file electronically with the SEC.
The address of the World Wide Web site is http://www.sec.gov. Reports and other
information concerning the Company may be also inspected at the offices of The
Nasdaq Stock Market, 1735 K Street, N.W., Washington, D.C. 20006.
The Company has filed with the SEC a registration statement on Form S-3
(together with all amendments and exhibits, the "Registration Statement") under
the Securities Act of 1933 (the "Securities Act") with respect to the Debt
Securities. This Prospectus, which constitutes part of the Registration
Statement, does not contain all of the information set forth in the Registration
Statement, certain parts of which are omitted in accordance with the rules and
regulations of the SEC. For further information with respect to the Company and
the Debt Securities offered hereby, reference is made to the Registration
Statement and the exhibits and the financial statements, notes and schedules
filed as a part thereof or incorporated by reference therein, which may be
inspected at the public reference facilities of the SEC at the addresses set
forth above or through the SEC's World Wide Web site.
Statements contained in this Prospectus as to the contents of any contract
or other document referred to herein are not necessarily complete and in each
instance are qualified in all respects by reference to the copy of such contract
or document filed as an exhibit to the Registration Statement.
INFORMATION INCORPORATED BY REFERENCE
The following documents have been filed by the Company with the SEC, are
incorporated by reference into this Prospectus and are deemed to be a part of
this Prospectus:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
February 2, 1997; and
(b) The Company's Quarterly Reports on Form 10-Q for the fiscal
periods ended May 4, 1997, August 3, 1997 and November 2, 1997.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act after the date of this Prospectus and prior to the
termination of the offering of the Debt Securities offered hereby shall be
deemed to be incorporated by reference into this Prospectus and be a part hereof
from the date of filing such 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 this Prospectus to the extent that a statement contained herein,
in a Prospectus Supplement or in any other document subsequently filed with the
SEC that 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 this
Prospectus.
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The Company will furnish without charge to each person, including any
beneficial owner, to whom this Prospectus is delivered, on the written or oral
request of such person, a copy of any or all of the documents incorporated by
reference, other than exhibits to such documents (unless such exhibits are
specifically incorporated by reference into such documents). Requests should be
directed to Dell Computer Corporation, Investor Relations, One Dell Way, Round
Rock, Texas 78682-2244 (telephone: (512) 338-4400).
THE COMPANY
Dell Computer Corporation (the "Company") is the world's leading direct
computer systems company and one of the top three computer vendors in the world.
The Company designs, develops, manufactures, markets, services and supports a
wide range of computer systems, including desktops, notebooks, workstations and
network servers, and also markets software, peripherals and service and support
programs.
The Company is a Delaware corporation that was incorporated in 1987,
succeeding to the business of a predecessor Texas corporation that was
originally incorporated in 1984. Based in Round Rock, Texas, the Company
conducts operations worldwide through wholly-owned subsidiaries. Unless
otherwise specified, references herein to the "Company" are references to the
Company and its consolidated subsidiaries.
The Company's principal executive offices are located at One Dell Way,
Round Rock, Texas 78682-2244, and its telephone number at that location is (512)
338-4400. The Company's World Wide Web address is www.dell.com.
USE OF PROCEEDS
Unless otherwise indicated in an accompanying Prospectus Supplement, the
net proceeds to be received by the Company from the sale of the Debt Securities
will be used for general corporate purposes, including capital expenditures.
Pending such uses, the Company intends to invest the net proceeds in marketable
securities.
RATIO OF EARNINGS TO FIXED CHARGES
Set forth below is the ratio of earnings to fixed charges for each of the
periods stated. For the purpose of calculating such ratios, "earnings" consist
of income from continuing operations before income taxes plus fixed charges, and
"fixed charges" consist of interest expense, amortization of debt expense and
discount or premium and the portion of rental expense deemed to be
representative of the interest component.
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<CAPTION>
NINE
MONTHS FISCAL YEAR ENDED
ENDED -------------------------------------------------------------------
NOVEMBER 2, FEBRUARY 2, JANUARY 28, JANUARY 29, JANUARY 30, JANUARY 31,
1997 1997 1996 1995 1994 1993
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<S> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to
Fixed Charges.......... 99.2x 41.0x 16.7x 10.9x (a) 10.1x
</TABLE>
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(a) Earnings were inadequate to cover fixed charges during the fiscal year
ended January 30, 1994. The amount of the deficiency was $19 million.
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SELECTED FINANCIAL DATA
The following selected financial data should be read in conjunction with
the Company's Annual Report on Form 10-K for the fiscal year ended February 2,
1997 and the Quarterly Report on Form 10-Q for the fiscal period ended November
2, 1997. The Company has adopted Statement of Financial Accounting Standards No.
128, "Earnings per Share" ("SFAS 128"). The basic and diluted earnings per
common share information presented below has been restated for SFAS 128.
<TABLE>
<CAPTION>
NINE MONTHS ENDED TWELVE MONTHS ENDED
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NOVEMBER 2, OCTOBER 27, FEBRUARY 2, JANUARY 28, JANUARY 29, JANUARY 30, JANUARY 31,
1997 1996 1997 1996 1995 1994 1993
----------- ----------- ----------- ----------- ----------- ----------- -----------
(IN MILLIONS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C> <C> <C> <C>
STATEMENT OF OPERATIONS
DATA:
Net revenue............... $8,590 $5,347 $7,759 $5,296 $3,475 $2,873 $2,014
Gross margin.............. 1,899 1,142 1,666 1,067 738 433 449
Operating income (loss)... 919 464 714 377 249 (39) 139
Income (loss) before
extraordinary loss...... 659 343 531 272 149 (36) 102
Net income (loss)......... $ 659 $ 330 $ 518 $ 272 $ 149 $ (36) $ 102
Income (loss) before
extraordinary loss per
common share(a)(b):
Basic................... $ 1.00 $ 0.48 $ 0.75 $ 0.36 $ 0.23 $ (.07) $ 0.18
Diluted................. $ 0.89 $ 0.45 $ 0.68 $ 0.33 $ 0.19 $ (.07) $ 0.16
Weighted average shares
outstanding(a):
Basic................... 663 716 710 716 618 597 580
Diluted................. 738 775 782 790 750 597 628
STATEMENT OF FINANCIAL
POSITION DATA:
Working capital......... $1,228 $1,023 $1,089 $1,018 $ 718 $ 510 $ 359
Total assets............ 3,921 2,724 2,993 2,148 1,594 1,140 927
Long-term debt.......... 18 18 18 113 113 100 48
Total stockholders'
equity................ $1,207 $ 851 $ 806 $ 973 $ 652 $ 471 $ 369
</TABLE>
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(a) All share and per share information has been retroactively restated to
reflect the two-for-one split of the common stock paid in March 1998 and
the two-for-one split of the common stock paid in July 1997.
(b) Excludes extraordinary loss of $0.02 basic per common share and $0.02
diluted per common share for fiscal 1997.
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DESCRIPTION OF DEBT SECURITIES
The following statements with respect to the Debt Securities are summaries
of, and are subject to, the detailed provisions of an indenture (the
"Indenture") to be entered into by the Company and one or more commercial banks,
as trustee (the "Trustee"), a copy of which is filed as an exhibit to the
Registration Statement. The following summary of certain provisions of the
Indenture does not purport to be complete and is subject to, and is qualified in
its entirety by reference to, all of the provisions of the Indenture, including
the definitions therein of certain terms. Wherever defined terms of the
Indenture are referred to herein or in a Prospectus Supplement, such defined
terms are incorporated herein or therein by reference.
The Debt Securities may be issued from time to time in one or more series.
The particular terms of each series of Debt Securities will be described in a
Prospectus Supplement relating to such series.
GENERAL
The Indenture does not limit the aggregate principal amount of Debt
Securities that can be issued thereunder. The Debt Securities may be issued in
one or more series as may be authorized from time to time by the Company. The
Debt Securities will be senior unsecured obligations of the Company.
The applicable Prospectus Supplement will describe the following terms of
the series of Debt Securities with respect to which this Prospectus is being
delivered:
(a) The title of the Debt Securities of the series;
(b) Any limit on the aggregate principal amount of the Debt Securities
of the series that may be authenticated and delivered under the Indenture;
(c) The person to whom any interest on a Debt Security shall be
payable, if other than the person in whose name that Debt Security is
registered on the Regular Record Date;
(d) The date or dates on which the principal and premium, if any, of
the Debt Securities of the series are payable;
(e) The rate or rates (which may be fixed or variable) at which the
Debt Securities will bear interest, if any, or the method of determining
the rate or rates, the date or dates from which such interest will accrue,
the Interest Payment Dates on which any such interest will be payable or
the method by which the dates will be determined, the Regular Record Date
for any interest payable on any Interest Payment Date and the basis upon
which interest will be calculated if other than that of a 360-day year of
twelve 30-day months;
(f) The place or places where the principal of and any premium and
interest on the Debt Securities of the series will be payable if other than
the Borough of Manhattan, The City of New York;
(g) The period or periods within which, the price or prices at which
and the terms and conditions upon which the Debt Securities of the series
may be redeemed, in whole or in part, at the option of the Company or
otherwise;
(h) The obligation of the Company, if any, to redeem, purchase or
repay the Debt Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of the holders and the period or
periods within which, the price or prices at which and the terms and
conditions upon which such Debt Securities shall be redeemed, purchased or
repaid, in whole or in part, pursuant to such obligation, and any
provisions for the remarketing of such Debt Securities;
(i) The terms, if any, upon which the Debt Securities of the series
may be convertible into or exchanged for other Debt Securities of the
Company and the terms and conditions upon which the conversion or exchange
shall be effected, including the initial conversion or exchange price or
rate, the conversion or exchange period and any other additional
provisions;
(j) The denominations in which any Debt Securities will be issuable,
if other than denominations of $1,000 and any integral multiple thereof;
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(k) The currency, currencies or currency units in which payment of
principal of and any premium and interest on Debt Securities of the series
shall be payable if other than United States dollars;
(l) Any index, formula or other method used to determine the amount of
payments of principal of and any premium and interest on the Debt
Securities;
(m) If the principal amount payable at the stated maturity of Debt
Securities of the series will not be determinable as of any one or more
dates prior to the stated maturity, the amount that will be deemed to be
the principal amount as of any 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 date (or, in any such case, the manner in which the deemed principal
amount is to be determined), and if necessary, the manner of determining
the equivalent thereof in United States currency;
(n) If the principal of or any premium or interest on any Debt
Securities is to be payable, at the election of the Company or the holders,
in one or more currencies or currency units other than that or those in
which such Debt Securities are stated to be payable, the currency,
currencies or currency units in which payment of the principal of and any
premium and interest on such Debt Securities shall be payable, and the
periods within which and the terms and conditions upon which such election
is to be made;
(o) If other than the principal amount thereof, the portion of the
principal amount of the Debt Securities which will be payable upon
declaration of the acceleration of the maturity thereof or provable in
bankruptcy;
(p) The applicability of, and any addition to or change in, the
covenants and definitions then set forth in the Indenture or in the terms
then set forth in the Indenture relating to permitted consolidations,
mergers or sales of assets;
(q) Any changes or additions to the provisions of the Indenture
dealing with defeasance, including the addition of additional covenants
that may be subject to the Company's covenant defeasance option;
(r) Whether any of the Debt Securities are to be issuable in permanent
global form and, if so, the Depositary or Depositaries for such Global
Security and the terms and conditions, if any, upon which interests in such
Debt Securities in global form may be exchanged, in whole or in part, for
the individual Debt Securities represented thereby in definitive registered
form, and the form of any legend or legends to be borne by the Global
Security in addition to or in lieu of the legend referred to in the
Indenture;
(s) The Trustee and any authenticating or paying agents, transfer
agents or registrars;
(t) The terms, if any, of any guarantee of the payment of principal,
premium and interest with respect to Debt Securities of the series and any
corresponding changes to the provisions of the Indenture as then in effect;
(u) The terms, if any, of the transfer, mortgage, pledge or assignment
as security for the Debt Securities of the series of any properties,
assets, moneys, proceeds, securities or other collateral, including whether
certain provisions of the Trust Indenture Act are applicable and any
corresponding changes to provisions of the Indenture as then in effect;
(v) Any addition to or change in the Events of Default with respect to
the Debt Securities of the series and any change in the right of the
Trustee or the holders to declare the principal, premium and interest with
respect to the Debt Securities due and payable; and
(w) Any other terms of the Debt Securities not inconsistent with the
provisions of the Indenture.
Debt Securities may be issued as Original Issue Discount Securities to be
sold at a substantial discount from their principal amount. United States
federal income tax consequences and other special considerations applicable to
any such Original Issue Discount Securities will be described in the Prospectus
Supplement relating thereto.
If any of the Debt Securities are sold for any foreign currency or currency
unit or if principal of, premium, if any, or interest, if any, on any of the
Debt Securities is payable in any foreign currency or currency unit, the
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restrictions, elections, tax consequences, specific terms and other information
with respect to such Debt Securities and such foreign currency or currency unit
will be specified in the Prospectus Supplement relating thereto.
EXCHANGE, REGISTRATION, TRANSFER AND PAYMENT
Unless otherwise indicated in the applicable Prospectus Supplement, payment
of principal, premium, if any, and interest, if any, on the Debt Securities will
be payable, and the exchange of and the transfer of Debt Securities will be
registrable, at the office or agency of the Company maintained for such purpose
in the Borough of Manhattan, The City of New York and at any other office or
agency maintained for such purpose. Unless otherwise indicated in the applicable
Prospectus Supplement, the Debt Securities will be issued in denominations of
$1,000 or integral multiples thereof. No service charge will be made for any
registration of transfer or exchange of Debt Securities, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge imposed in connection therewith.
All moneys paid by the Company to a Paying Agent for the payment of
principal, premium, if any, or interest, if any, on any Debt Security which
remain unclaimed for two years after such principal, premium or interest has
become due and payable may be repaid to the Company, and thereafter the holder
of such Debt Security may look only to the Company for payment thereof.
In the event of any redemption, the Company shall not be required to (a)
issue, register the transfer of or exchange Debt Securities of any series during
a period beginning at the opening of business 15 days before the day of the
mailing of a notice of redemption of Debt Securities of that series to be
redeemed and ending at the close of business on the day of such mailing or (b)
register the transfer of or exchange any Debt Security, or portion thereof,
called for redemption, except the unredeemed portion of any Debt Security being
redeemed in part.
BOOK-ENTRY SYSTEM
The provisions set forth below in this section headed "Book-Entry System"
will apply to the Debt Securities of any series if the Prospectus Supplement
relating to such series so indicates.
Unless otherwise indicated in the applicable Prospectus Supplement, the
Debt Securities of such series will be represented by one or more global
securities (collectively, a "Global Security") registered in the name of The
Depository Trust Company (the "Depositary") or a nominee of the Depositary
identified in the Prospectus Supplement relating to such series. Except as set
forth below, a Global Security may be transferred, in whole but not in part,
only to the Depositary or another nominee of the Depositary.
Upon the issuance of a Global Security, the Depositary will credit, on its
book-entry registration and transfer system, the respective principal amounts of
the Debt Securities represented by such Global Security to the accounts of
institutions that have accounts with the Depositary or its nominee
("participants"). The accounts to be credited will be designated by the
underwriters, dealers or agents. Ownership of beneficial interests in a Global
Security will be limited to participants or persons that may hold interests
through participants. Ownership of interests in such Global Security will be
shown on, and the transfer of those ownership interests will be effected only
through, records maintained by the Depositary (with respect to participants'
interests) and such participants (with respect to the owners of beneficial
interests in such Global Security). The laws of some jurisdictions may require
that certain purchasers of securities take physical delivery of such securities
in definitive form. Such limits and laws may impair the ability to transfer
beneficial interests in a Global Security.
So long as the Depositary, or its nominee, is the registered holder and
owner of such Global Security, the Depositary or such nominee, as the case may
be, will be considered the sole owner and holder of the related Debt Securities
for all purposes of such Debt Securities and for all purposes under the
Indenture. Except as set forth below or as otherwise provided in the applicable
Prospectus Supplement, owners of beneficial interests in a Global Security will
not be entitled to have the Debt Securities represented by such Global Security
registered in their names, will not receive or be entitled to receive physical
delivery of Debt Securities in definitive form and will not be considered to be
the owners or holders of any Debt Securities under the Indenture or such Global
Security. Accordingly, each person owning a beneficial interest in a Global
Security must rely on the procedures
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of the Depositary and, if such person is not a participant, on the procedures of
the participant through which such person owns its interest, to exercise any
rights of a holder of Debt Securities under the Indenture of such Global
Security. The Company understands that under existing industry practice, in the
event the Company requests any action of holders of Debt Securities or if an
owner of a beneficial interest in a Global Security desires to take any action
that the Depositary, as the holder of such Global Security is entitled to take,
the Depositary would authorize the participants to take such action, and that
the participants would authorize beneficial owners owning through such
participants to take such action or would otherwise act upon the instructions of
beneficial owners owning through them.
The Depositary has advised the Company as follows: The Depositary is a
limited purpose trust company organized under the laws of the State of New York,
a member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code and a "clearing agency"
registered under the Exchange Act. The Depositary was created to hold securities
of its participants and to facilitate the clearance and settlement of securities
transactions among its participants in such securities through electronic
book-entry changes in accounts of the participants, thereby eliminating the need
for physical movement of securities certificates. The Depositary's participants
include securities brokers and dealers, banks, trust companies, clearing
corporations and certain other organizations, some of whom (or their
representatives) own the Depositary. Access to the Depositary's book-entry
system is also available to others such as banks, brokers, dealers and trust
companies that clear through or maintain a custodial relationship with a
participant, either directly or indirectly. The Depositary agrees with and
represents to its participants that it will administer its book-entry system in
accordance with its rules and by-laws and requirements of law.
Payment of principal of and premium, if any, and interest, if any, on Debt
Securities represented by a Global Security will be made to the Depositary or
its nominee, as the case may be, as the registered owner and holder of such
Global Security.
The Company expects that the Depositary, upon receipt of any payment of
principal, premium, if any, or interest, if any, in respect of a Global
Security, will credit immediately participants' accounts with payments in
amounts proportionate to their respective beneficial interests in the principal
amount of such Global Security as shown on the records of the Depositary. The
Company expects that payments by participants to owners of beneficial interests
in a Global Security held through such participants will be governed by standing
instructions and customary practices, as is now the case with securities held
for the accounts of customers in bearer form or registered in "street name," and
will be the responsibility of such participant. Neither the Company nor the
Trustee nor any agent of the Company or the Trustee will have any responsibility
or liability for any aspect of the records relating to, or payments made on
account of, beneficial ownership interests in a Global Security or for
maintaining, supervising or reviewing any records relating to such beneficial
ownership interests or for any other aspect of the relationship between the
Depositary and its participants or the relationship between such participants
and the owners of beneficial interests in such Global Security owning through
such participants.
Unless and until it is exchanged in whole or in part for Debt Securities in
definitive form, a Global Security may not be transferred except as a whole by
the Depositary to a nominee of such Depositary or by a nominee of such
Depositary to such Depositary or another nominee of such Depositary.
Unless otherwise provided in the applicable Prospectus Supplement, Debt
Securities represented by a Global Security will be exchangeable for Debt
Securities in definitive form of like tenor as such Global Security in
denominations of $1,000 and in any greater amount that is an integral multiple
thereof if (a) the Depositary notifies the Company and the Trustee that it is
unwilling or unable to continue as Depositary for such Global Security or if at
any time the Depositary ceases to be a clearing agency registered under the
Exchange Act and a successor Depositary is not appointed by the Company within
90 days, (b) the Company in its sole discretion determines not to have all of
the Debt Securities represented by a Global Security and notifies the Trustee
thereof or (c) there shall have occurred and be continuing an Event of Default
or an event which, with the giving of notice or lapse of time, or both, would
constitute an Event of Default with respect to the Debt Securities. Any Debt
Security that is exchangeable pursuant to the preceding sentence is exchangeable
for Debt Securities registered in such names as the Depositary shall instruct
the Trustee. It is expected that such instructions may be based upon directions
received by the Depositary from its participants with respect to ownership of
beneficial interests in
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such Global Security. Subject to the foregoing, a Global Security is not
exchangeable except for a Global Security or Global Securities of the same
aggregate denominations to be registered in the name of the Depositary or its
nominee.
COVENANTS OF THE COMPANY
Except as set forth below or as otherwise provided in the applicable
Prospectus Supplement with respect to any series of Debt Securities, the Company
is not restricted by the Indenture from incurring, assuming or becoming liable
for any type of debt or other obligations, from paying dividends or making
distributions on its capital stock or purchasing or redeeming its capital stock.
The Indenture does not require the maintenance of any financial ratios or
specified levels of net worth or liquidity. In addition, the Indenture does not
contain any provision that would require the Company to repurchase or redeem or
otherwise modify the terms of any of its Debt Securities upon a change in
control or other events involving the Company that may adversely affect the
creditworthiness of the Debt Securities.
Unless otherwise indicated in the applicable Prospectus Supplement, certain
covenants contained in the Indenture, which are summarized below, will be
applicable (unless waived or amended) to the series of Debt Securities to which
such Prospectus Supplement relates so long as any of the Debt Securities of such
series are outstanding.
Limitations on Liens. The Company covenants that it will not issue, incur,
create, assume or guarantee, and will not permit any Restricted Subsidiary to
issue, incur, create, assume or guarantee, any debt for borrowed money secured
by a mortgage, security interest, pledge, lien, charge or other encumbrance
("liens") upon any Principal Property of the Company or any Restricted
Subsidiary or upon any shares of stock or indebtedness of any Restricted
Subsidiary (whether such Principal Property, shares or indebtedness are now
existing or owed or hereafter created or acquired) without in any such case
effectively providing concurrently with the issuance, incurrence, creation,
assumption or guaranty of any such secured debt that the Debt Securities
(together with, if the Company shall so determine, any other indebtedness of or
guarantee by the Company or such Restricted Subsidiary ranking equally with the
Debt Securities) shall be secured equally and ratably with (or, at the option of
the Company, prior to) such secured debt. The preceding provisions shall not
require the Company to secure the Debt Securities if the liens consist of either
Permitted Liens or liens securing excepted indebtedness (as described below).
Limitations on Sale and Lease-Back Transactions. The Company covenants
that it will not, nor will it permit any Restricted Subsidiary to, enter into
any Sale and Lease-Back Transaction with respect to any Principal Property
unless (a) the Company or such Restricted Subsidiary would be entitled to incur
indebtedness secured by a lien on the Principal Property involved in such
transaction at least equal in amount to the Attributable Debt with respect to
such Sale and Lease-Back Transaction without equally and ratably securing the
Debt Securities pursuant to the limitation in the Indenture on liens, or (b) the
Company shall apply an amount equal to the Attributable Debt with respect to
such Sale and Lease-Back Transaction within six months of such sale to the
defeasance or retirement (other than any mandatory retirement, mandatory
prepayment or sinking fund payment or by payment at maturity) of debt for
borrowed money of the Company or a Restricted Subsidiary that matures more than
one year after the creation of such debt or to the purchase, construction or
development of other comparable property.
Excepted Indebtedness. Notwithstanding the foregoing limitations on liens
and Sale and Lease-Back Transactions, the Company or any Restricted Subsidiary
will be permitted to issue, incur, create, assume or guarantee indebtedness
secured by a lien or may enter into a Sale and Lease-Back Transaction, in either
case, without regard to the restrictions contained in the preceding two
paragraphs if the sum of the aggregate principal amount of all such indebtedness
(or, in the case of a lien, the lesser of such principal amount and the fair
market value of the property subject to such lien, as determined in good faith
by the Company's Board of Directors) and the Attributable Debt of all such Sale
and Lease-Back Transactions, in each case not otherwise permitted in the
preceding two paragraphs, does not exceed the greater of 10% of the Consolidated
Net Tangible Assets of the Company or $350 million.
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Certain Definitions Applicable to Covenants. The term "Attributable Debt"
when used in connection with a Sale and Lease-Back Transaction involving a
Principal Property shall mean, at the time of determination, the lesser of (a)
the fair market value of such property (as determined in good faith by the
Company's Board of Directors), (b) the present value of the total net amount of
rent required to be paid under such lease during the remaining term thereof
(including any renewal term or period for which such lease has been extended),
discounted at the rate of interest set forth or implicit in the terms of such
lease or, if not practicable to determine such rate, the weighted average
interest rate per annum borne by the Debt Securities of each series outstanding
pursuant to the Indenture compounded semi-annually, or (c) if the obligation
with respect to the Sale and Lease-Back Transaction constitutes an obligation
that is required to be classified and accounted for as a capitalized lease for
financial reporting purposes in accordance with generally accepted accounting
principles, the amount equal to the capitalized amount of such obligation
determined in accordance with generally accepted accounting principles and
included in the financial statements of the lessee. For purposes of the
foregoing definition, rent shall not include amounts required to be paid by the
lessee, whether or not designated as rent or additional rent, on account of or
contingent upon maintenance and repairs, insurance, taxes, assessments, water
rates and similar charges. In the case of any lease that is terminable by the
lessee upon the payment of a penalty, such net amount shall be the lesser of the
net amount determined assuming termination upon the first date such lease may be
terminated (in which case the net amount shall also include the amount of the
penalty, but no rent shall be considered as required to be paid under such lease
subsequent to the first date upon which it may be so terminated) or the net
amount determined assuming no such termination.
The term "Consolidated Net Tangible Assets" shall mean, as of any
particular time, the aggregate amount of assets (less applicable reserves and
other properly deductible items) after deducting therefrom (a) all current
liabilities, except for (1) notes and loans payable, (2) current maturities of
long-term debt and (3) current maturities of obligations under capital leases;
and (b) certain intangible assets, to the extent included in such aggregate
amount of assets, all as set forth on the most recent consolidated balance sheet
of the Company and its consolidated subsidiaries and computed in accordance with
generally accepted accounting principles.
The term "Nonrecourse Obligation" shall mean indebtedness or other
obligations substantially related to (a) the acquisition of assets not
previously owned by the Company or any Restricted Subsidiary or (b) the
financing of a project involving the development or expansion of properties of
the Company or any Restricted Subsidiary, as to which the obligee with respect
to such indebtedness or obligation has no recourse to the Company or any
Restricted Subsidiary or any assets of the Company or any Restricted Subsidiary
other than the assets which were acquired with the proceeds of such transaction
or the project financed with the proceeds of such transaction (and the proceeds
thereof).
The term "Permitted Liens" shall mean (a) liens on property, shares of
stock, indebtedness or other assets of any corporation existing at the time such
corporation becomes a Restricted Subsidiary, provided that such liens are not
incurred in anticipation of such corporation becoming a Restricted Subsidiary;
(b)(i) liens on property, shares of stock, indebtedness or other assets existing
at the time of acquisition thereof by the Company or a Restricted Subsidiary, or
liens thereon to secure the payment of all or any part of the purchase price
thereof or (ii) liens on property, shares of stock, indebtedness or other assets
to secure any indebtedness for borrowed money incurred prior to, at the time of,
or within one year after, the latest of the acquisition thereof, or, in the case
of property, the completion of construction, the completion of improvements or
the commencement of substantial commercial operation of such property for the
purpose of financing all or any part of the purchase price thereof, such
construction or the making of such improvements; (c) liens to secure
indebtedness owing to the Company or to a Restricted Subsidiary; (d) liens
existing at the date of the initial issuance of the Debt Securities of such
series; (e) liens on property or other assets of a corporation (which is not a
Subsidiary) existing at the time such corporation is merged into or consolidated
with the Company or a Restricted Subsidiary or at the time of a sale, lease or
other disposition of the properties of a corporation as an entirety or
substantially as an entirety to the Company or a Restricted Subsidiary; (f)
liens in favor of the United States of America or any State, territory or
possession thereof (or the District of Columbia), or any department, agency,
instrumentality or political subdivision of the United States of America or any
State, territory or possession thereof (or the District of Columbia), to secure
partial, progress, advance or other payments pursuant to any contract or statute
or to secure any indebtedness incurred for the purpose of financing all or any
part of the purchase price or the cost of
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constructing or improving the property subject to such liens; (g) liens created
in connection with a project financed with, and created to secure, a Nonrecourse
Obligation; (h) liens on any property to secure bonds for the construction,
installation or financing of pollution control or abatement facilities, or other
forms of industrial revenue bond financing, or indebtedness issued or guaranteed
by the United States, any state or any department, agency or instrumentality
thereof; and (i) extensions, renewals or replacements of any lien referred to in
the foregoing clauses (a) through (h); provided, however, that any liens
permitted by any of the foregoing clauses (a) through (h) shall not extend to or
cover any property of the Company or such Restricted Subsidiary, as the case may
be, other than the property specified in such clauses and improvements thereto.
The term "Principal Property" shall mean the land, land improvements,
buildings and fixtures (to the extent they constitute real property interests)
(including any leasehold interest therein) constituting the principal corporate
office, any manufacturing plant or any manufacturing facility (whether now owned
or hereafter acquired) and the equipment located thereon which (a) is owned by
the Company or any Subsidiary; (b) is located within any of the present 50
States of the United States of America (or the District of Columbia); (c) has
not been determined in good faith by the Board of Directors of the Company not
to be materially important to the total business conducted by the Company and
its Subsidiaries taken as a whole; and (d) has a net book value on the date as
of which the determination is being made in excess of 1% of Consolidated Net
Tangible Assets of the Company as most recently determined on or prior to such
date (including for purposes of such calculation the land, land improvements,
buildings and such fixtures compromising such office, plant or facilities, as
the case may be).
The term "Restricted Subsidiary" shall mean any Subsidiary that owns any
Principal Property; provided, however, that the term "Restricted Subsidiary"
shall not include (a) any Subsidiary that is principally engaged in financing
receivables or that is principally engaged in financing the Company's operations
outside the United States of America or (b) any Subsidiary less than 80% of the
voting stock of which is owned, directly or indirectly, by the Company or by one
or more other Subsidiaries, or by the Company and one or more other Subsidiaries
if the common stock of such Subsidiary is traded on any national securities
exchange or quoted on The Nasdaq National Market or in the over-the-counter
market.
The term "Sale and Lease-Back Transaction" shall mean any arrangement with
any person providing for the leasing by the Company or any Restricted Subsidiary
of any Principal Property, which property has been or is to be sold or
transferred by the Company or such Restricted Subsidiary to such person, other
than (a) any such transaction involving a lease for a term of not more than
three years, (b) any such transaction between the Company and a Restricted
Subsidiary or between Restricted Subsidiaries, or (c) any such transaction
executed by the time of or within one year after the latest of the acquisition,
the completion of construction or improvement or the commencement of commercial
operation of such Principal Property.
The term "Subsidiary" shall mean (a) any corporation of which at least
66 2/3% of the outstanding voting stock is at the time owned, directly or
indirectly, by the Company or by one or more other Subsidiaries or (b) any other
person (other than a corporation) in which the Company or one or more other
Subsidiaries directly or indirectly has at least 66 2/3% equity ownership and
power to direct the policies, management and affairs thereof. "Voting stock"
means stock that ordinarily has voting power for the election of directors,
whether at all times or only so long as no senior class of stock has such voting
power by reason of any contingency.
DEFEASANCE AND COVENANT DEFEASANCE
The Indenture provides that, if such provision is made applicable to the
Debt Securities of any series pursuant to the provisions of the Indenture, the
Company may elect (a) to defease and be discharged from any and all obligations
in respect of such Debt Securities except for certain obligations to register
the transfer or exchange of such Debt Securities, to replace temporary,
destroyed, stolen, lost or mutilated Debt Securities, to maintain paying
agencies and to hold monies for payment in trust ("defeasance") or (b) (i) to
omit to comply with certain restrictive covenants (including the covenants
referred to above under "Covenants of the Company") and (ii) to deem the
occurrence of any event referred to in clauses (d) and (e) under "Events of
Default" below not to be or result in an Event of Default if, in each case with
respect to the Outstanding Debt Securities of such series on or after the date
certain conditions are satisfied ("covenant defeasance"), in either case upon
the deposit with the
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Trustee (or other qualifying trustee), in trust, of money or U.S. Government
Obligations, which through the payment of interest and principal with respect
thereto in accordance with their terms will provide money in an amount
sufficient to pay the principal of and any premium and interest on the Debt
Securities of such series on the respective stated maturities and any mandatory
sinking fund payments or analogous payments on the days payable, in accordance
with the terms of the Indenture and the Debt Securities of such series. Such a
trust may only be established if, among other things, the Company has delivered
to the Trustee an opinion of counsel to the effect that the holders of the
outstanding Debt Securities of such series will not recognize income, gain or
loss for federal income tax purposes as a result of such deposit, defeasance or
covenant defeasance and will be subject to federal income tax on the same
amount, and in the same manner and at the same times as would have been the case
if such deposit, defeasance or covenant defeasance had not occurred. Such
opinion, in the case of defeasance under clause (a) above, must refer to and be
based upon a ruling of the Internal Revenue Service or a change in applicable
federal income tax laws occurring after the date of the Indenture. The
Prospectus Supplement relating to a series may further describe the provisions,
if any, permitting such defeasance or covenant defeasance with respect to the
Debt Securities of a particular series.
EVENTS OF DEFAULT
The following events are defined in the Indenture as "Events of Default"
with respect to a series of Debt Securities (unless such event is specifically
inapplicable to a particular series as described in the Prospectus Supplement
relating thereto): (a) failure to pay any interest on any Debt Security of that
series when due, continued for 30 days; (b) failure to pay principal of or any
premium on any Debt Security of that series when due; (c) failure to deposit any
sinking fund payment, when due, in respect of any Debt Security of that series;
(d) with respect to each series of Debt Securities, failure to perform any other
covenant of the Company applicable to that series, continued for 90 days after
written notice to the Company by the Trustee or to the Company and the Trustee
by the Holders of at least 25% in principal amount of the outstanding Debt
Securities of that series specifying such failure, requiring it to be remedied
and stating that such notice is a "Notice of Default"; (e) (i) failure of the
Company to make any payment by the end of any applicable grace period after
maturity of indebtedness, which term as used in the Indenture means obligations
(other than Nonrecourse Obligations or the Debt Securities of such series) of
the Company for borrowed money or evidenced by bonds, debentures, notes or
similar instruments ("Indebtedness") in an amount in excess of $50,000,000 and
continuance of such failure, or (ii) the acceleration of Indebtedness in an
amount in excess of $50,000,000 because of a default with respect to such
Indebtedness without such Indebtedness having been discharged or such
acceleration having been cured, waived, rescinded or annulled, in the case of
(i) or (ii) above, for a period of 30 days after written notice to the Company
by the Trustee or to the Company and the Trustee by the holders of at least 25%
in principal amount of the outstanding Debt Securities of that series specifying
such failure or acceleration, requiring it to be remedied and stating that such
notice is a "Notice of Default"; provided, however, that if any such failure or
acceleration referred to in (i) or (ii) above shall cease or be cured, waived,
rescinded or annulled, then the Event of Default by reason thereof shall be
deemed not to have occurred; (f) certain events of bankruptcy, insolvency or
reorganization involving the Company; and (g) any other Event of Default
provided with respect to Debt Securities of that series.
Subject to the provisions of the Indenture relating to the duties of the
Trustee during default to act with the required standard of care, the Trustee
will be under no obligation to exercise any of its rights or powers under the
Indenture at the request or direction of any of the holders, unless such holders
shall have offered to the Trustee reasonable indemnity. Subject to such
provisions for the indemnification of the Trustee, the holders of a majority in
principal amount of the outstanding Debt Securities of any series 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.
The Indenture provides that the Company will deliver to the Trustee, within
120 days after the end of each fiscal year, a brief certificate from the
principal executive, financial or accounting officer or treasurer of the Company
as to his or her knowledge of the Company's compliance (without regard to any
period of grace or requirement of notice) with all conditions and covenants of
the Indenture.
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If an Event of Default with respect to Debt Securities of any series at the
time outstanding occurs and is continuing, either the Trustee or the holders of
at least 25% in principal amount of the outstanding Debt Securities of that
series by notice as provided in the Indenture may declare the principal amount
(or, if the Debt Securities of that series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of that series) of all the Debt Securities of that series to be due and
payable immediately. At any time after a declaration of acceleration with
respect to Debt Securities of any series has been made, but before a judgment or
decree for payment of money has been obtained by the Trustee, the holders of a
majority in principal amount of the outstanding Debt Securities of that series
may, under certain circumstances, rescind and annul such acceleration.
No holder of any Debt Security of any series will have any right to
institute any proceeding with respect to the Indenture or for any remedy
thereunder, unless such holder shall have previously given to the Trustee
written notice of a continuing Event of Default and unless the holders of at
least 25% in principal amount of the outstanding Debt Securities of that series
shall have made written request, and offered reasonable indemnity, to the
Trustee to institute such proceeding as trustee, and the Trustee shall not have
received from the holders of a majority in principal amount of the outstanding
Debt Securities of that series a direction inconsistent with such request and
shall have failed to institute such proceeding within 60 days. Such limitations
generally do not apply, however, to a suit instituted by a holder of a Debt
Security for the enforcement of payment of the principal or interest on such
Debt Security on or after the respective due dates expressed in such Debt
Security.
MODIFICATION, WAIVER AND MEETINGS
The Company and the Trustee may enter into supplemental indentures without
the consent of the holders of Debt Securities for one or more of the following
purposes:
(a) To evidence the succession of another person to the Company
pursuant to the provisions of the Indenture relating to consolidations,
mergers and sales of assets and the assumption by the successor of the
covenants, agreements and obligations of the Company in the Indenture and
in the Debt Securities;
(b) To surrender any right or power conferred upon the Company by the
Indenture, to add to the covenants of the Company such further covenants,
restrictions, conditions or provisions for the protection of the holders of
all or any series of Debt Securities as the Board of Directors of the
Company shall consider to be for the protection of the holders of the Debt
Securities, and to make the occurrence, or the occurrence and continuance,
of a default in any of the additional covenants, restrictions, conditions
or provisions a default or an Event of Default under the Indenture
(provided, however, that with respect to any such additional covenant,
restriction, condition or provision, the supplemental indenture may provide
for a period of grace after default, which may be shorter or longer than
that allowed in the case of other defaults, may provide for an immediate
enforcement upon the default, may limit the remedies available to the
Trustee upon the default, or may limit the right of holders of a majority
in aggregate principal amount of any or all series of Debt Securities to
waive the default);
(c) To cure any ambiguity or omission or to correct or supplement any
provision contained in the Indenture, in any supplemental indenture or in
any Debt Securities that may be defective or inconsistent with any other
provision contained therein, to convey, transfer, assign, mortgage or
pledge any property to or with the Trustee, or to make such other
provisions in regard to matters or questions arising under the Indenture,
in each case as shall not adversely affect the interests of any holders of
Debt Securities of any series in any material respect;
(d) To modify or amend the Indenture in such a manner as to permit the
qualification of the Indenture or any supplemental indenture under the
Trust Indenture Act as then in effect;
(e) To add guarantees with respect to any or all of the Debt
Securities or to secure any or all of the Debt Securities;
(f) To make any change that does not adversely affect the rights of
any holder;
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(g) To add to, change or eliminate any of the provisions of the
Indenture with respect to one or more series of Debt Securities, so long as
any such addition, change or elimination not otherwise permitted under the
Indenture shall (1) neither apply to any Debt Security of any series
created prior to the execution of the supplemental indenture and entitled
to the benefit of the provision nor modify the rights of the holders of any
Debt Security with respect to the provision, or (2) become effective only
when there is no such Debt Security outstanding;
(h) To evidence and provide for the acceptance of appointment by a
successor or separate Trustee with respect to the Debt Securities of one or
more series and to add to or change any of the provisions of the Indenture
as shall be necessary to provide for or facilitate the administration of
the Indenture by more than one Trustee;
(i) To establish the form or terms of Debt Securities of any series;
and
(j) To provide for uncertificated Debt Securities in addition to or in
place of certificated Debt Securities (provided that the uncertificated
Debt Securities are issued in registered form for purposes of Section
163(f) of the Internal Revenue Code or in a manner such that the
uncertificated Debt Securities are described in Section 163(f)(2)(B) of
such code).
Modifications and amendments of the Indenture may be made by the Company
and the Trustee with the consent of the holders of a majority in principal
amount of the outstanding Debt Securities of each series affected by such
modification or amendment; provided, however, that no such modification or
amendment may, without the consent of the holder of each outstanding Debt
Security affected thereby, (a) change the stated maturity of the principal of,
or any installment of principal of or interest on, any Debt Security, (b) reduce
the principal amount of, rate of interest on or any premium payable upon the
redemption of any Debt Security, (c) reduce the amount of principal of an
Original Issue Discount Security payable upon acceleration of the maturity
thereof, (d) change the place of payment where, or the coin or currency in
which, any Debt Security or any premium or interest thereon is payable, (e)
impair the right to institute suit for the enforcement of any payment on or with
respect to any Debt Security after the stated maturity, redemption date or
repayment date, (f) reduce the percentage in principal amount of outstanding
Debt Securities of any series, the consent of whose holders is required for
modification or amendment of the Indenture or for waiver of compliance with
certain provisions of the Indenture or for waiver of certain defaults or (g)
modify any of the provisions set forth in this paragraph except to increase any
such percentage or to provide that certain other provisions of the Indenture may
not be modified or waived without the consent of the holder of each outstanding
Debt Security affected thereby.
The holders of a majority in principal amount of the outstanding Debt
Securities of each series may, on behalf of the holders of all the Debt
Securities of that series, waive, insofar as that series is concerned,
compliance by the Company with certain restrictive provisions of the Indenture.
The holders of a majority in principal amount of the outstanding Debt Securities
of each series may, on behalf of all holders of Debt Securities of that series
and any coupons appertaining thereto, waive any past default under the Indenture
with respect to Debt Securities of that series, except a default (a) in the
payment of principal of or any premium or interest on any Debt Security of such
series or (b) in respect of a covenant or provision of the Indenture which
cannot be modified or amended without the consent of each holder of outstanding
Debt Securities of the affected series.
The Indenture provides that in determining whether the holders of the
requisite principal amount of the outstanding Debt Securities have given any
request, demand, authorization, direction, notice, consent or waiver thereunder
or whether a quorum is present at a meeting of holders of Debt Securities (a)
the principal amount of an Original Issue Discount Security that shall be deemed
to be outstanding shall be the amount of the principal thereof that would be due
and payable as of the date of such determination upon acceleration of the
maturity thereof, (b) the principal amount of a Debt Security denominated in
other than U.S. dollars shall be the U.S. dollar equivalent, determined on the
date of original issuance of such Debt Security, of the principal amount of such
Debt Security (or, in the case of an Original Issue Discount Security, the U.S.
dollar equivalent on the date of original issuance of such Debt Security of the
amount determined as provided in (a) above of such Debt Security) and (c) Debt
Securities owned by the Company or any Subsidiary of the Company shall be
disregarded and deemed not to be Outstanding.
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CONSOLIDATION, MERGER AND SALE OF ASSETS
The Company may not consolidate with or merge with or into any person, or
convey, transfer or lease all or substantially all of its assets, or permit any
person to consolidate with or merge into the Company, unless the following
conditions have been satisfied:
(a) Either (1) the Company shall be the continuing person in the case
of a merger or (2) the resulting, surviving or transferee person, if other
than the Company (the "Successor Company"), shall be a corporation
organized and existing under the laws of the United States, any State or
the District of Columbia and shall expressly assume all the obligations of
the Company under the Debt Securities and the Indenture;
(b) Immediately after giving effect to the transaction (and treating
any indebtedness that becomes an obligation of the Successor Company or any
Subsidiary of the Company as a result of the transaction as having been
incurred by the Successor Company or the Subsidiary at the time of the
transaction), no default, Event of Default or event that, after notice or
lapse of time, would become an Event of Default under the Indenture would
occur or be continuing; and
(c) The Company shall have delivered to the Trustee an officers'
certificate and an opinion of counsel, each stating that the consolidation,
merger, transfer or lease complies with the Indenture.
Upon any consolidation by the Company with, or merger by the Company into,
any other person or any conveyance, transfer or lease of the properties and
assets of the Company as an entirety or substantially as an entirety as
described in the preceding paragraph, the Successor Company resulting from such
consolidation or into which the Company is merged or the transferee or lessee to
which such conveyance, transfer or lease is made, will succeed to, and be
substituted for, and may exercise every right and power of, the Company under
the Indenture, and thereafter, except in the case of a lease, the predecessor
(if still in existence) will be released from its obligations and covenants
under the Indenture and all outstanding Debt Securities.
NOTICES
Except as otherwise provided in the Indenture, notices to holders of Debt
Securities will be given by mail to the addresses of such holders as they appear
in the Debt Security Register.
TITLE
Prior to due presentment of a Debt Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the person in whose name such Debt Security is registered as the owner of such
Debt Security for the purpose of receiving payment of principal of and any
premium and any interest (other than defaulted interest or as otherwise provided
in the applicable Prospectus Supplement) on such Debt Security and for all other
purposes whatsoever, whether or not such Debt Security be overdue, and neither
the Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
REPLACEMENT OF DEBT SECURITIES
Any mutilated Debt Security will be replaced by the Company at the expense
of the Holder upon surrender of such Debt Security to the Trustee. Debt
Securities that become destroyed, stolen or lost will be replaced by the Company
at the expense of the Holder upon delivery to the Trustee of the Debt Security
or evidence of the destruction, loss or theft thereof satisfactory to the
Company and the Trustee. In the case of a destroyed, lost or stolen Debt
Security, an indemnity satisfactory to the Trustee and the Company may be
required at the expense of the holder of such Debt Security before a replacement
Debt Security will be issued.
GOVERNING LAW
The Indenture and the Debt Securities will be governed by, and construed in
accordance with, the laws of the State of New York.
15
<PAGE> 17
REGARDING THE TRUSTEE
The Company may appoint a separate Trustee for any series of Debt
Securities. As used herein in the description of a series of Debt Securities,
the term "Trustee" refers to the Trustee appointed with respect to the series of
Debt Securities.
The Indenture contains certain limitations on the right of the Trustee,
should it become a creditor of the Company, to obtain payment of claims in
certain cases or to realize for its own account on certain property received in
respect of any such claim as security or otherwise. The Trustee will be
permitted to engage in certain other transactions; however, if it acquires any
conflicting interest and there is a default under the Debt Securities of any
series for which the Trustee serves as trustee, the Trustee must eliminate such
conflict or resign.
The Trustee or its affiliate may provide certain banking and financial
services to the Company in the ordinary course of business.
PLAN OF DISTRIBUTION
The Company may sell the Debt Securities (a) to one or more underwriters or
dealers for public offering and sale by them and (b) to investors directly or
through agents. The distribution of the Debt Securities may be effected from
time to time in one or more transactions at a fixed price or prices (which may
be changed from time to time), at market prices prevailing at the time of sale,
at prices related to such prevailing market prices or at negotiated prices. Each
Prospectus Supplement will describe the method of distribution of the Debt
Securities offered thereby.
In connection with the sale of the Debt Securities, underwriters, dealers
or agents may receive compensation from the Company or from purchasers of the
Debt Securities for whom they may act as agents, in the form of discounts,
concessions or commissions. The underwriters, dealers or agents which
participate in the distribution of the Debt Securities may be deemed to be
underwriters under the Securities Act and any discounts or commissions received
by them and any profit on the resale of the Debt Securities received by them may
be deemed to be underwriting discounts and commissions thereunder. Any such
underwriter, dealer or agent will be identified and any such compensation
received from the Company will be described in the Prospectus Supplement. Any
initial public offering price and any discounts or concessions allowed or
reallowed or paid to dealers may be changed from time to time.
Under agreements that may be entered into with the Company, underwriters,
dealers and agents may be entitled to indemnification by the Company against
certain civil liabilities, including liabilities under the Securities Act, or to
contribution with respect to payments that the underwriters, dealers or agents
may be required to make with respect thereto.
The Company may grant underwriters who participate in the distribution of
Debt Securities an option to purchase additional Debt 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 Debt Securities, but such
underwriters will not be obligated to do so and may discontinue any market
making at any time without notice. No assurance can be given as to the liquidity
of the trading market for any such Debt Securities.
Certain of the underwriters or agents and their affiliates may be customers
of, engage in transactions with or perform services for the Company in the
ordinary course of business.
LEGAL OPINIONS
The validity of the Debt Securities is being passed upon for the Company by
Vinson & Elkins L.L.P., Dallas, Texas.
16
<PAGE> 18
EXPERTS
The financial statements incorporated in this Prospectus by reference to
the Company's Annual Report on Form 10-K for the year ended February 2, 1997,
have been so incorporated in reliance on the report of Price Waterhouse LLP,
independent accountants, given on the authority of said firm as experts in
auditing and accounting.
17
<PAGE> 19
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14 -- OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth expenses to be incurred by the registrant,
Dell Computer Corporation (the "Company"), in connection with the issuance and
distribution of the securities being registered, other than the underwriting
discount and commissions. Except for the Securities and Exchange Commission
registration fee, all amounts shown are estimates.
<TABLE>
<S> <C>
Registration fee............................................ $147,500
Trustee's fees and expenses................................. 10,000
Accountant's fees and expenses.............................. 15,000
Printing and engraving expenses............................. 30,000
Blue sky and legal investment fees and expenses............. 3,000
Rating agencies' fees....................................... 180,000
Legal fees and expenses..................................... 50,000
Miscellaneous............................................... 10,000
--------
Total............................................. $445,500
========
</TABLE>
ITEM 15 -- INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article Ninth of the Certificate of Incorporation of the Company provides
that the Company must indemnify its officers and directors and may indemnify
certain other persons to the extent allowed by the Delaware General Corporation
Law (the "DGCL"). Pursuant to Section 145 of the DGCL, the Company generally has
the power to indemnify its present and former directors and officers against
expenses and liabilities incurred by them in connection with any suit to which
they are, or are threatened to be made, a party by reason of their serving in
those positions so long as they acted in good faith and in a manner they
reasonably believed to be in, or not opposed to, the best interests of the
Company, and with respect to any criminal action, they had no reasonable cause
to believe their conduct was unlawful. With respect to suits by or in the right
of the Company, however, indemnification is generally limited to attorneys' fees
and other expenses and is not available if the person is adjudged to be liable
to the Company unless the court determines that indemnification is appropriate.
The statute expressly provides that the power to indemnify authorized thereby is
not exclusive of any rights granted under any by-law, agreement, vote of
stockholders or disinterested directors, or otherwise. The Company also has the
power to purchase and maintain insurance for its directors and officers.
Reference is made to the Underwriting Agreement to be included as an
exhibit to this Registration Statement for provisions regarding indemnification
of the Company, officers, directors and controlling persons against certain
liabilities.
The preceding discussion of the Company's Certificate of Incorporation,
Section 145 of the DGCL and the Underwriting Agreement is not intended to be
exhaustive and is qualified in its entirety by the Certificate of Incorporation,
Section 145 of the DGCL and the Underwriting Agreement.
ITEM 16 -- EXHIBITS
There are filed with the Registration Statement the following exhibits:
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
*1.1 -- Underwriting Agreement
*4.1 -- Indenture between the Registrant and one or more
commercial banks to be named, as trustee
*4.2 -- Form of Debt Security
5.1 -- Form of Opinion of Vinson & Elkins L.L.P. as to the
validity of the Debt Securities
12.1 -- Computation of Ratio of Earnings to Fixed Charges
</TABLE>
II-1
<PAGE> 20
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
23.1 -- Consent of Price Waterhouse LLP
23.2 -- Consent of Vinson & Elkins L.L.P. (included in Exhibit
5.1)
24.1 -- Powers of Attorney (set forth on page II-4)
*25.1 -- Form T-1, Statement of Eligibility and Qualification
under the Trust Indenture Act of 1939 of Trustee
</TABLE>
- ---------------
* To be filed
ITEM 17 -- UNDERTAKINGS
The Company hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(a) To include any prospectus required by Section 10(a)(3) of the
Securities Act.
(b) To reflect in the Prospectus any facts or events arising after the
effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
Registration Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the
effective Registration Statement.
(c) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or any
material change to such information in the registration statement.
Provided, however, that the undertakings set forth in clauses (a) and (b) above
shall not apply if the information required to be included in a post-effective
amendment by those clauses is contained in periodic reports filed by the Company
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934
(the "Exchange Act") that are incorporated by reference in this Registration
Statement.
(2) That, for the purpose of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Company's annual report
pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the Company
pursuant to the provisions referred to in Item 15 above, or otherwise, the
Company 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 Company
of expenses incurred or paid by a director, officer or controlling person of the
Company in the successful defense of any action, suit or proceeding) is asserted
by such director, officer or controlling person in connection with the
II-2
<PAGE> 21
securities being registered, the Company 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 Company hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act, 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 Company pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this Registration
Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act,
each post-effective amendment that contains a form of prospectus shall be deemed
to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
The Company hereby undertakes to file an application for the purpose of
determining the eligibility of the trustee to act under subsection (a) of
Section 310 of the Trust Indenture Act in accordance with the rules and
regulations prescribed by the Commission under Section 305(b)(2) of the Trust
Indenture Act.
II-3
<PAGE> 22
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
hereby certifies that it has reasonable grounds to believe that it meets all of
the requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Round Rock, Texas on March 12, 1998.
DELL COMPUTER CORPORATION
By: /s/ MICHAEL S. DELL
----------------------------------
Michael S. Dell,
Chairman of the Board and
Chief Executive Officer
POWERS OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each such person whose signature
appears below constitutes and appoints, jointly and severally, Michael S. Dell
and Thomas J. Meredith his or her attorneys-in-fact, each with the power of
substitution, for him or her in any and all capacities, to sign any amendments
to this Registration Statement on Form S-3 (including post-effective
amendments), 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 to file the same, with
all exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, thereby ratifying and confirming all that
each of said attorneys-in-fact, or his substitute or substitutions, may do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE CAPACITY DATE
--------- -------- ----
<C> <S> <C>
/s/ MICHAEL S. DELL Chairman of the Board and Chief March 12, 1998
- ----------------------------------------------------- Executive Officer (principal
Michael S. Dell executive officer)
/s/ DONALD J. CARTY Director March 12, 1998
- -----------------------------------------------------
Donald J. Carty
/s/ PAUL O. HIRSCHBIEL, JR. Director March 12, 1998
- -----------------------------------------------------
Paul O. Hirschbiel, Jr.
/s/ MICHAEL H. JORDAN Director March 12, 1998
- -----------------------------------------------------
Michael H. Jordan
/s/ THOMAS W. LUCE III Director March 12, 1998
- -----------------------------------------------------
Thomas W. Luce III
/s/ KLAUS S. LUFT Director March 12, 1998
- -----------------------------------------------------
Klaus S. Luft
</TABLE>
II-4
<PAGE> 23
<TABLE>
<CAPTION>
SIGNATURE CAPACITY DATE
--------- -------- ----
<C> <S> <C>
/s/ CLAUDINE B. MALONE Director March 12, 1998
- -----------------------------------------------------
Claudine B. Malone
/s/ ALEX J. MANDL Director March 12, 1998
- -----------------------------------------------------
Alex J. Mandl
/s/ MICHAEL A. MILES Director March 12, 1998
- -----------------------------------------------------
Michael A. Miles
/s/ THOMAS J. MEREDITH Senior Vice President and Chief March 12, 1998
- ----------------------------------------------------- Financial Officer (principal
Thomas J. Meredith financial officer)
/s/ JAMES M. SCHNEIDER Vice President--Finance and Chief March 12, 1998
- ----------------------------------------------------- Accounting Officer (principal
James M. Schneider accounting officer)
</TABLE>
II-5
<PAGE> 24
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT
------- -------
<C> <S>
5.1 -- Form of Opinion of Vinson & Elkins L.L.P. as to the
validity of the Debt Securities
12.1 -- Computation of Ratio of Earnings to Fixed Charges
23.1 -- Consent of Price Waterhouse LLP
</TABLE>
<PAGE> 1
EXHIBIT 5.1
[DRAFT OF MARCH 12, 1998]
(214) 220-7700 (214) 220-7716
March __, 1998
Dell Computer Corporation
One Dell Way
Round Rock, Texas 78682
Re: Dell Computer Corporation
Registration Statement on Form S-3 (No. 333-_____)
Debt Securities
Ladies and Gentlemen:
We have acted as counsel for Dell Computer Corporation, a Delaware
corporation (the "Company"), in connection with the registration under the
Securities Act of 1933 (the "Securities Act") on a Registration Statement on
Form S-3 (No. 333-_____) (the "Registration Statement") of the offer and sale
from time to time pursuant to Rule 415 under the Securities Act of debt
securities of the Company ("Debt Securities") for an aggregate initial offering
price not to exceed $500,000,000.
We have reviewed those agreements, records, documents, and matters of law
as we have deemed relevant in order to render the opinion set forth herein,
including but not limited to (a) the Certificate of Incorporation and
the Bylaws of the Company, (b) resolutions adopted by the Board of Directors of
the Company, and (c) the Indenture in the form of Exhibit 4.1 to the
Registration Statement to be executed by the Company and the trustee (the
"Indenture"), pursuant to which Debt Securities may be issued.
As to certain questions of fact material to our opinion, we have relied
upon certificates from officers of the Company and other persons, as
appropriate, and upon certificates of public officials.
Based upon and subject to the foregoing and subject further to the
assumptions, exceptions and qualifications hereinafter stated, we express the
following opinion:
<PAGE> 2
Dell Computer Corporation
March __, 1998
Page 2
With respect to Debt Securities to be issued under the Indenture, when (A)
the Indenture has been duly authorized and validly executed and delivered to the
trustee by the Company, (B) the Indenture has been duly qualified under the
Trust Indenture Act of 1939, (C) the Board has taken all necessary corporate
action to approve the issuance and terms of such Debt Securities, the terms of
the offering thereof and related matters, and (D) such Debt Securities have been
duly executed, authenticated, issued and delivered in accordance with the
provisions of the Indenture and the applicable definitive purchase, underwriting
or similar agreement approved by the Board upon payment of the consideration
therefor provided for therein, such Debt Securities will be legally issued and
will constitute valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms, except as such enforcement
is subject to any applicable bankruptcy, insolvency, reorganization or other law
relating to or affecting creditors' rights generally and general principles of
equity (regardless of whether such enforceability is considered in a proceeding
in equity or at law).
The opinion expressed above is subject in all respects to the following
assumptions, exceptions and qualifications:
a. We have assumed (i) all information contained in all documents
reviewed by us is true and correct, (ii) all signatures on all documents
reviewed by us are genuine, (iii) all documents submitted to us as originals are
authentic and complete, (iv) all documents submitted to us as certified or
photostatic copies conform to authentic originals thereof, (v) each natural
person signing any document reviewed by us had the legal capacity to do so, (vi)
each person signing in a representative capacity any document reviewed by us had
authority to sign in such capacity, and (vii) the laws of any jurisdiction other
than Texas that govern any of the documents reviewed by us or referenced in this
opinion letter (other than the Company's Certificate of Incorporation and
Bylaws) do not modify the terms that appear in any such document.
b. We have assumed that (i) the Registration Statement and any
amendments thereto (including post-effective amendments) will have become
effective and comply with all applicable laws; (ii) the Registration Statement
will be effective and will comply with all applicable laws at the time the Debt
Securities are offered or issued as contemplated by the Registration Statement
(if such offering or issuance requires the delivery of a prospectus under the
Securities Act or pursuant to any other law); (iii) a Prospectus Supplement
will have been prepared and filed with the Securities and Exchange Commission
describing the Debt Securities offered thereby and will comply with all
applicable laws; (iv) all Debt Securities will be issued and sold in compliance
with applicable federal and state securities laws and in the manner stated in
the Registration Statement and the appropriate Prospectus Supplement; and (v) a
definitive purchase, underwriting or similar agreement with respect to any Debt
Securities offered or issued will have been duly authorized and validly
executed and delivered by the Company and the other parties thereto.
<PAGE> 3
Dell Computer Corporation
March __, 1998
Page 3
c. In rendering this opinion, we have assumed that the trustee is or, at
the time the Indenture is signed, will be qualified to act as trustee under the
Indenture and that the trustee has or will have duly executed and delivered the
Indenture.
d. We express no opinion with respect to (i) the enforceability of
provisions in the Indenture or any other agreement or instrument with respect
to delay or omission of enforcement of rights or remedies, or waivers of
defenses, or waivers of benefits of stay, extension, moratorium, redemption,
statutes of limitation, or other nonwaivable benefits bestowed by operation of
law; or (ii) the enforceability of indemnification or contribution provisions
to the extent they purport to relate to liabilities resulting from or based
upon negligence or any violation of federal or state securities or blue sky
laws.
e. We express no opinion as to the requirements of or compliance with
federal or state securities laws or regulations.
f. The opinion expressed in this letter is limited to the laws of the
State of Texas, the General Corporation Law of the State of Delaware, and the
federal laws of the United States of America. You should be aware that we are
not admitted to the practice of law in the State of Delaware.
We consent to the filing of this opinion of counsel as Exhibit 5.1 to the
Registration Statement. We also consent to the reference to this firm under the
heading "Legal Opinions" in the Prospectus forming a part of the Registration
Statement. In giving this consent, we do not admit that this firm is in the
category of persons whose consent is required under Section 7 of the Securities
Act or the rules and regulations of the Securities and Exchange Commission
promulgated thereunder.
We disclaim any duty to advise you regarding any changes in, or otherwise
communicate with you with respect to, the matters addressed herein.
Very truly yours,
<PAGE> 1
EXHIBIT 12.1
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
Nine
Months Fiscal Year Ended
Ended -----------------------------------------------------------------------
November 2, February 2, January 28, January 29, January 30, January 31,
1997 1997 1996 1995 1994 1993
----------- ----------- ----------- ----------- ----------- -----------
(dollars in millions)
<S> <C> <C> <C> <C> <C> <C>
Income (loss) before income taxes
and extraordinary loss $956 $747 $383 $213 ($39) $143
Fixed Charges:
Interest expense and amortization
of debt discount and premium 1 8 17 15 14 11
Interest factor on rentals 8 11 7 7 6 5
----------- ----------- ----------- ----------- ----------- -----------
Total Fixed Charges 9 19 24 22 20 16
Income (loss) before income taxes,
extraordinary loss, and fixed charges $965 $766 $407 $235 ($19) $159
----------- ----------- ----------- ----------- ----------- -----------
Ratio of Earnings to Fixed Charges(2) 99.2 41.0 16.7 10.9 --(1) 10.1
=========== =========== =========== =========== =========== ===========
(1) Earnings were inadequate to cover combined fixed charges requirements by $19M
(2) Ratios calculated based on underlying data in thousands
</TABLE>
<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
February 25, 1997 appearing on Page 24 of Dell Computer Corporation's Annual
Report on Form 10-K for the year ended February 2, 1997. We also consent to the
reference to us under the heading "Experts" in such Prospectus.
/s/ PRICE WATERHOUSE LLP
PRICE WATERHOUSE LLP
Austin, Texas
March 12, 1998
