<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES AND EXCHANGE ACT OF 1934
JTS Corporation
(Exact name of registrant as
specified in its charter)
Delaware 77-0364572
(State of incorporation) (I.R.S. Employer)
166 Baypointe Parkway, San Jose, CA 95134
(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class to Name of each exchange on which
be so registered each class is to be registered
Common Stock, $0.001 par value American Stock Exchange
5.25% Convertible Subordinated
Debentures due April 29, 2002 American Stock Exchange
Securities to be registered pursuant to Section 12(g) of the Act:
None
<PAGE> 2
ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
A. EQUITY SECURITIES
A description of the Common Stock to be registered hereunder is
contained in the section entitled "Description of Capital Stock of Atari and
JTS," commencing at page 110 of the Registrant's Form S-4 Registration Statement
No. 333-06643 filed with the Securities and Exchange Commission on June 17, 1996
and is incorporated herein by reference.
B. DEBT SECURITIES
The 5 1/4% Convertible Subordinated Debentures Due 2002 (the
"Debentures") are unsecured general obligations of the Company issued under an
Indenture, dated as of April 28, 1987 (the "Indenture"), between Atari
Corporation ("Atari") and Bankers Trust Company, as successor in interest to the
corporate trust business of Security Pacific National Bank (the "Trustee"), as
amended by that certain First Supplemental Indenture, dated on or about July 30,
1996, between the Company and the Trustee, pursuant to which the Company will
assume all the rights and obligations of Atari under the Indenture.
SUBORDINATION OF DEBENTURES
The payment of the principal of and premium, if any, and interest on
the Debentures is subordinated in right of payment, as set forth in the
Indenture, to the payment of all Senior Debt of the Company, whether outstanding
on the date of the Indenture or incurred after that date. Senior Debt is defined
as (a) the principal of, premium, if any, and accrued and unpaid interest on (1)
indebtedness of the Company for money borrowed, (2) guaranties by the Company of
indebtedness for money borrowed by any other person, (3) indebtedness evidenced
by notes, debentures, bonds or other instruments of indebtedness for the payment
of which the Company is responsible or liable, by guaranty or otherwise, and (4)
obligations of the Company under any agreement to lease, or lease of, any real
or personal property, (b) any other indebtedness, liability or obligation,
contingent or otherwise, of the Company and any guaranty, endorsement or other
contingent obligation in respect thereof and (c) modifications, renewals,
extensions and refundings of any such indebtedness, liabilities or obligations,
unless, in the instrument creating or evidencing the same or pursuant to which
the same is outstanding, it is provided that such indebtedness, liabilities or
obligations, or such modification, renewal, extension or refunding, or the
obligations of the Company pursuant to such guaranty are not superior in right
of payment to the Debentures. Senior Debt will not include any obligation of the
Company to any subsidiary of the Company.
There are no restrictions in the Indenture on the amount of Senior Debt
the Company may have outstanding.
No payment on account of principal of or premium, if any, or interest
on the Debentures may be made if at the time of such payment there exists a
default with respect to any Senior Debt and the default is the subject of
judicial proceedings or the Company receives notice from certain authorized
persons that payments may not be made. On any distribution of the assets of the
Company on any dissolution, total or partial liquidation or reorganization of or
similar proceeding relating to the Company, the holders of Senior Debt will be
entitled to receive payment in full before the Debentureholders are entitled to
receive any payment.
1.
<PAGE> 3
CONVERSION RIGHTS
The Debentures are convertible into Common Stock, at a current
conversion price of $16 5/16, at any time on or after the date on which
definitive Debentures are issued in exchange for the temporary Global Debenture
and on or prior to a redemption or maturity date. The right to convert
Debentures called for redemption will terminate at the close of business on the
redemption date.
The right of conversion attaching to any Debenture may be exercised by
the holder by delivering the Debenture at the specified office of a conversion
agent accompanied by a duly signed and completed notice of conversion. Surrender
of Bearer Debentures (as defined under "Form and Denomination") will be accepted
only outside the United States. The conversion date shall be the date on which
the Debenture and the duly signed and completed notice shall have been so
delivered. Each Bearer Debenture delivered for conversion must be delivered with
all unmatured coupons appurtenant thereto as provided in the Indenture. A holder
delivering a Debenture for conversion will not be required to pay any United
States taxes or duties payable in respect of the issue or delivery of Common
Stock on conversion (except cash received in lieu of fractional shares) but will
be required to pay any tax or duty which may be payable in respect of any
transfer involved in the issue or delivery of the Common Stock in a name other
than that of the holder of the Debentures. Certificates representing shares of
Common Stock will not be issued or delivered unless all taxes and duties, if
any, payable by the holder have been paid.
The conversion price is subject to adjustment on the occurrence of
certain events, including the issuance of stock of the Company as a dividend or
distribution on the Common Stock, subdivisions and combinations of the Common
Stock, certain reclassifications, certain consolidations and mergers of the
Company, the issuance to all holders of Common Stock of certain rights or
warrants entitling them to subscribe for Common Stock at less than the then
current market price (as defined), and the distribution to all holders of Common
Stock of capital stock other than Common Stock, debt securities of the Company
or assets (excluding cash dividends or distributions from retained earnings) or
any rights or warrants to purchase securities of the Company. In the event of
the issuance of stock of the Company as a dividend or distribution on the Common
Stock, subdivisions or combinations of the Common Stock, and certain
reclassifications of the Common Stock, the conversion price will be adjusted so
that after such event the holders of the Debentures will be entitled to receive
the same number of shares of Common Stock upon conversion of the Debentures as
the holder would have received upon conversion prior to such event.
In the event the conversion price must be adjusted for any other
reason, such price will be adjusted pursuant to the appropriate formula
described in the Indenture. No adjustment in the conversion price will be
required unless cumulative adjustments would require a change of at least one
percent in the price then in effect. No adjustment need be made for changes in
the par value of the Common Stock, for the issuance of rights to purchase Common
Stock pursuant to a Company plan for reinvestment of dividends or interest or if
Debentureholders participate in the transaction that would have resulted in an
adjustment absent such participation. The Company may at any time reduce the
conversion price by any amount. Upon any adjustment of the conversion price, the
Company will give notice of the adjustment in the manner provided in the
Indenture.
2.
<PAGE> 4
In case of any consolidation or merger of the Company involving a
reclassification, conversion, exchange or cancellation of shares of the Common
Stock, or any sale or transfer of all or substantially all the assets of the
Company, the holder of each Debenture will after such transaction have the right
to convert such Debenture only into the kind and amount of securities or other
property, which may include cash, which such holder would have been entitled to
receive on such transaction if the holder had held the Common Stock issuable on
the conversion of such Debenture immediately before such transaction and if the
holder failed to exercise the holder's rights of election, if any, as to the
kind or amount of securities, cash or other property receivable on such
transaction or, if such kind or amount is not the same for each non-electing
share of Common Stock, the kind and amount receivable per share by a plurality
of the non-electing shares.
Fractional shares or securities representing fractional shares of
Common Stock need not be issued upon conversion, and if a fractional share is
not issued, any fractional interest resulting from conversion will be paid in
cash based on the market price of the Common Stock at the close of business on
the last business day prior to the date of conversion. Registered Debentures (as
defined under "Form and Denomination") surrendered for conversion during any
period from the close of business on any Record Date (as defined under "Payment
and Conversion") next preceding any interest payment date to the opening of
business on such interest payment date (except Registered Debentures or portions
thereof called for redemption on a redemption date within such period) must be
accompanied by payment in clearing house funds or other funds acceptable to the
Company of an amount equal to the interest payable on such interest payment date
on the principal amount of Debentures then being converted which the registered
holder is to receive. Except where Debentures surrendered for conversion must be
accompanied by payment as described above, no interest on converted Debentures
will be payable by the Company on any interest payment date subsequent to the
date of conversion. No other payment or adjustment for interest or payment or
adjustment for dividends is to be made upon conversion.
FORM AND DENOMINATION
The Debentures are issued in either bearer form ("Bearer Debentures")
in denominations of $5,000, with coupons attached, or registered form
("Registered Debentures") in denominations of $5,000 or integral multiples
thereof, without coupons, on or about July 29, 1987.
Each Bearer Debenture and any coupon appertaining thereto carries
substantially the following legend: "Any United States person who holds this
obligation will be subject to limitations under the United States income tax
laws, including the limitations provided in Sections 165(j) and 1287(a) of the
Internal Revenue Code."
3.
<PAGE> 5
PAYMENT AND CONVERSION
Payment of principal of and premium, if any, and interest on Bearer
Debentures will be made in dollars, subject to any applicable laws and
regulations, at such paying agencies outside the United States as the Company
may appoint from time to time and at which, at the option of the holder, such
payment will be made by dollar check drawn on a bank in New York City or by
transfer to a dollar account maintained by the payee with a bank in a European
city. No payment with respect to any Bearer Debenture will be made at the
corporate trust office of the Trustee or any other paying agency maintained by
the Company in the United States nor will any payment be made by transfer to an
account, or by mail to an address, in the United States. Notwithstanding the
foregoing, payments with respect to Bearer Debentures will be made at the
corporate trust office of the Trustee in New York, New York if payment at all
paying agencies outside the United States is illegal or effectively precluded
because of the imposition of exchange controls or other similar restrictions on
the full payment or receipt of such amounts in dollars.
Payment of principal of and premium, if any, on Registered Debentures
will be made against surrender of such Registered Debentures at the corporate
trust office of the Trustee in New York, New York or, subject to any applicable
laws and regulations, at the offices of the paying agents which are also
transfer agents, by dollar check drawn on, or by transfer to a dollar account
maintained by the holder with, a bank in New York City. Payment of any
installment of interest on Registered Debentures will be made to the person in
whose name such Debenture is registered at the close of business on April 14 in
the year of the relevant interest payment date (the "Record Date"). Payments of
such interest will be made by dollar check drawn on a bank in New York mailed to
the holder at such holder's registered address or, upon application by a holder
of a Debenture in the principal amount of $100,000 or more to the Registrar not
later than the Record Date in the year payment is to be received, by transfer to
a dollar account maintained by the payee with a bank in New York City.
Registered Debentures may be surrendered for conversion at the
corporate trust office of the Trustee in New York or, at the option of the
holder and subject to applicable laws and regulations, at the office of any of
the conversion agents. Bearer Debentures may be surrendered for conversion, at
the option of the holder and subject to applicable laws, only at the office of
any conversion agent outside the United States.
The Company has initially appointed the Trustee at its corporate trust
office in New York, New York, as paying agent and conversion agent. The Company
may at any time terminate the appointment of any paying or conversion agent and
appoint additional or other paying and conversion agents, provided that until
the Debentures have been delivered to the Trustee for cancellation, or moneys
sufficient to pay the principal of and premium, if any, and interest on the
Debentures have been made available for payment and either paid or returned to
the Company as provided in the Indenture, a paying and conversion agent will be
maintained in New York City for payments with respect to Registered Debentures
and for the surrender of Registered Debentures for conversion, and in a European
city which, so long as the Debentures are listed on the Luxembourg Stock
Exchange and the Luxembourg Stock Exchange so requires, will be Luxembourg, for
payments with respect to the Bearer Debentures and for the surrender
4.
<PAGE> 6
of Bearer Debentures for conversion. Notice of any such termination or
appointment and of any change in the office through which any paying agent or
conversion agent will act will be given in accordance with "Notices" below.
Bearer Debentures should be presented for payment upon redemption
together with all unmatured coupons, failing which the amount of any missing
unmatured coupons will be deducted from the sum due for payment. Each amount so
deducted will be paid in the manner mentioned above against surrender of the
relevant missing coupon.
All moneys paid by the Company to a paying agent for the payment of
principal of or premium, if any, or interest on any Debenture which remains
unclaimed at the end of two years after such principal, premium or interest
shall have become due and payable will be repaid to the Company, and the holder
of such Debenture or any coupon appertaining thereto will thereafter look only
to the Company for payment thereof.
TRANSFER AND EXCHANGE
At the option of the holder upon request confirmed in writing, and
subject to the terms of the Indenture, Bearer Debentures (with all unmatured
coupons, except as provided below) will be exchangeable into an equal aggregate
principal amount of Registered Debentures, and Registered Debentures will be
exchangeable into an equal aggregate principal amount of Registered Debentures
of different authorized denominations. Bearer Debentures surrendered in exchange
for Registered Debentures between a Record Date and the relevant interest
payment date will not be required to be surrendered with the coupon relating to
such interest payment date. Registered Debentures may not be exchanged for
Bearer Debentures.
Bearer Debentures may be presented for exchange at the office of any
transfer agent outside the United States, and Registered Debentures may be
presented for registration of transfer (accompanied by a duly executed form of
transfer) at the office of any transfer agent or at the office of the Registrar,
without service charge and upon payment of any taxes and other governmental
charges as described in the Indenture. Any registration of transfer or exchange
will be effected upon the transfer agent or the Registrar, as the case may be,
being satisfied with the documents of title and identity of the person making
the request, and subject to such reasonable regulations as to which the Company
may from time to time agree with the transfer agents and the Registrar.
The Company has initially appointed as Registrar and transfer agent for
the Debentures, the Trustee acting through its corporate trust office in New
York, New York. The Company reserves the right to vary or terminate the
appointment of the Registrar or of any transfer agent or to appoint additional
or other Registrars or transfer agents or to approve any change in the office
through which the Registrar or any transfer agent acts, provided that there will
at all times be a transfer agent or Registrar in New York City and a transfer
agent in a European city which, so long as the Debentures are listed on the
Luxembourg Stock Exchange and so long as the Luxembourg Stock Exchange so
requires, shall be Luxembourg.
5.
<PAGE> 7
In the event of a redemption in part, the Company will not be required
(i) to register the transfer of or exchange Registered Debentures or to exchange
Bearer Debentures for Registered Debentures for a period of 15 days immediately
preceding the date notice is given identifying the serial numbers of the
Debentures called for such redemption; (ii) to register the transfer of or
exchange any Registered Debenture, or portion thereof, called for redemption; or
(iii) to exchange any Bearer Debenture called for redemption, provided, however,
that a Bearer Debenture called for redemption may be exchanged for a Registered
Debenture which is simultaneously surrendered to the Registrar or transfer agent
making such exchange with written instruction for payment consistent with the
provisions of "Payment and Conversion" above.
INTEREST
The Debentures will bear interest from April 29, 1987 at the rate of
5 1/4% per annum, payable annually in arrears on April 29, commencing April 29,
1988.
REDEMPTION
Unless previously redeemed or purchased by the Company and cancelled,
the Debentures will mature on April 29, 2002.
The Debentures may be redeemed at the option of the Company, in whole
or in part, at any time and from time to time at 100% of their principal
amount, together with accrued interest to the date fixed for redemption.
The Debentures may also be redeemed in whole, but not in part, at 100%
of their principal amount, together with interest accrued to the date fixed for
redemption, at the option of the Company if, at any time, the Company
determines, based on an opinion of independent legal counsel of recognized
standing, that as a result of any change in or amendment to the laws (or any
regulations or rulings promulgated thereunder) of the United States or any
political subdivision or taxing authority thereof or therein affecting taxation,
or any change in the application or official interpretation of such laws,
regulations or rulings, which change or amendment becomes effective on or after
April 6, 1987, there is a substantial probability that the Company has or will
become obligated to pay additional amounts in respect of the Debentures as
described under "Payment of Additional Amounts."
6.
<PAGE> 8
If the Company shall determine (the "Determination"), based upon an
opinion of independent legal counsel of recognized standing, that any payment
made outside the United States by the Company or any of its paying agents of the
full amount of the next scheduled payment of principal, premium, if any, or
interest due in respect of any Bearer Debenture or coupon appertaining thereto
would, under any current or future laws or regulations of the United States
affecting taxation or otherwise, be subject to any certification, information,
documentation or other reporting requirement of any kind, the effect of which
requirement is the disclosure to the Company, a paying agent or any United
States government authority of the nationality, residence or identity of a
beneficial owner of such Bearer Debenture or coupon who is a United States Alien
(other than such a requirement that (i) would not be applicable to a payment
made to a custodian, nominee or other agent of the beneficial owner or which can
be satisfied by such a custodian, nominee or other agent certifying to the
effect that such beneficial owner is a United States Alien, provided, however,
in each case, that payment by such custodian, nominee or agent to such
beneficial owner is not otherwise subject to any requirement referred to in this
sentence, (ii) is applicable only to a payment by a custodian, nominee or other
agent of the beneficial owner to such beneficial owner or (iii) would not be
applicable to a payment made by any other paying agent of the Company), the
Company shall either (x) redeem the Debentures, as a whole, but not in part, at
a price equal to 100% of the principal amount thereof, together with accrued
interest to the date fixed for redemption, on such date, not later than one year
after the publication of notice of the Determination, as the Company shall elect
by at least 60 days prior notice to the Trustee, unless shorter notice is
acceptable to the Trustee, or (y) if the conditions of the next succeeding
paragraph are satisfied, pay the additional amounts specified in such paragraph.
The Company shall make the Determination as soon as practicable and shall give
prompt notice thereof to the Trustee, stating in the notice the effective date
of such certification, information, documentation or other reporting requirement
and the date by which the redemption shall take place. Upon receipt of such
notice from the Company, the Trustee shall cause notice thereof to be duly
published as provided in "Notices" below. Notwithstanding the foregoing, the
Company shall not so redeem the Debentures if the Company shall subsequently
determine, not less than 30 days prior to the date fixed for redemption, that
subsequent payments would not be subject to any such requirement, in which case
the Company shall give prompt notice of such determination to the Trustee, and
the Trustee shall publish notice in accordance with "Notices" below and any
earlier redemption notice shall be revoked and of no further effect.
Notwithstanding the foregoing, if and so long as the certification,
information, documentation or other reporting requirement referred to in the
preceding paragraph would be fully satisfied by payment of a backup withholding
tax or similar charge, the Company may elect, prior to publication of the notice
of the Determination, to have the provisions of this paragraph apply in lieu of
the provisions of the preceding paragraph. In such event, the Company will pay
as additional amounts such amounts as may be necessary so that every net payment
made following the effective date of such requirement outside the United States
by the Company or any of its paying agents of principal, premium, if any, or
interest due in respect of any Bearer Debenture or any coupon appertaining
thereto of which the beneficial owner is a United States Alien (but without any
requirement that the nationality, residence or identity of the beneficial owner
of such Debenture or coupon be disclosed to the Company, any paying agent or any
governmental authority) after deduction or withholding for or on account of such
7.
<PAGE> 9
backup withholding tax or similar charge (other than a backup withholding tax or
similar charge that (i) would not be applicable in the circumstances referred to
in the second parenthetical of the first sentence of the preceding paragraph or
(ii) is imposed as a result of presentation of such Bearer Debenture or coupon
for payment more than 15 days after the date on which such payment became due
and payable or on which payment thereof is duly provided for, whichever occurs
later), will not be less than the amount provided for in such Bearer Debenture
or such coupon to be then due and payable. If the Company elects to pay such
additional amounts and as long as it is obligated to pay such additional
amounts, the Company may subsequently redeem the Debentures, in whole but not in
part, subject to the last sentence of the preceding paragraph, at any time, at
100% of their principal amount, plus accrued interest and additional amounts to
the date fixed for redemption.
Notice of intention to redeem Debentures will be given in accordance
with "Notices" below. In the case of a partial redemption, notice will be given
twice, the first such notice to be given not more than 75 nor less than 60 days
prior to the date fixed for redemption and the second such notice to be given at
least 30 days thereafter but not less than 30 days prior to the date fixed for
redemption. In the case of a full redemption, notice shall be given at least 30,
but not more than 60 days prior to the date fixed for redemption.
Notices of redemption will specify the date fixed for redemption, the
applicable redemption price and, in the case of a partial redemption, the
aggregate principal amount of Debentures to be redeemed and the aggregate
principal amount of the Debentures which will be outstanding after such partial
redemption. In addition, in the case of a partial redemption, the first notice
will specify the last date on which exchanges or transfers of Debentures may be
made pursuant to the provisions of "Transfer and Exchange" above and the second
notice will specify the serial numbers of the Bearer Debentures called for
redemption or, in the case of Registered Debentures, the serial numbers and the
portions thereof called for redemption, which shall have been selected for
redemption pro rata or by lot.
PAYMENT OF ADDITIONAL AMOUNTS
The Company, subject to the limitations and exceptions set forth below,
will pay to the holder of any Debenture or coupon who is a United States Alien
such amounts as may be necessary in order that every net payment of principal of
or premium, if any, or interest on such Debenture or coupon, after deduction or
withholding for or on account of any present or future tax, assessment or other
governmental charge imposed upon or as a result of such payment by the United
States or any political subdivision or taxing authority thereof or therein, will
not be less than the amount provided for in such Debenture or coupon to be then
due and payable; provided, however that the foregoing obligation to pay
additional amounts shall not apply to:
(a) any tax, assessment or other governmental charge which
would not have been so imposed but for (i) the existence of any present
or former connection between such holder (or between a fiduciary,
settlor, beneficiary, member or shareholder of, or possessor of a power
over, such holder, if such holder is an estate, trust, partnership or
corporation) and the United States, including without limitation, such
holder (or such fiduciary, settlor, beneficiary, member, shareholder or
possessor) being or having been a citizen or resident thereof or being
or having been engaged in a trade or business therein or being or
having been present therein or having or having had a permanent
establishment therein, (ii) the failure of such holder or the
beneficial owner of such Debenture or coupon to comply with any
requirements under United States income tax laws and regulations,
without regard to any tax treaty, to establish entitlement to exemption
from deduction or withholding as a United States Alien, or (iii) such
holder's present or former status as a personal holding company or a
foreign personal holding company with respect to the United States, as
a controlled foreign corporation with respect to the United States, as
a private foundation or other tax-exempt organization, or as a
corporation which accumulates earnings to avoid United States federal
income tax;
8.
<PAGE> 10
(b) any tax, assessment or other governmental charge which
would not have been so imposed but for the presentation by the holder
of such Debenture or coupon for payment on a date more than 15 days
after the date on which such payment became due and payable or the date
on which payment thereof is duly provided for, whichever occurs later;
(c) any estate, inheritance, gift, sales, transfer, capital,
personal property or any similar tax, assessment or governmental
charge;
(d) any tax, assessment or other governmental charge which is
payable otherwise than by deduction and withholding from payments of
principal of, premium, if any, or interest on such Debenture or coupon;
(e) any tax, assessment or other governmental charge imposed
by reason of the holder's present or former status as the actual or
constructive owner of 10% or more of the total combined voting power of
all classes of stock of the Company entitled to vote;
(f) any tax, assessment or other governmental charge required
to be withheld by any paying agent from any payment of principal of,
premium, if any, or interest on such Debenture or coupon, if such
payment could be paid without withholding by any other paying agent;
(g) any combination of items (a), (b), (c), (d), (e) and (f);
nor shall additional amounts be paid with respect to any payment of principal,
premium, if any, or interest to any United States Alien who is a fiduciary or
partnership or other than the sole beneficial owner of a Debenture or coupon to
the extent a beneficiary or settlor with respect to such fiduciary or a member
of such partnership or a beneficial owner of the Debenture or coupon would not
have been entitled to payment of the additional amounts had such beneficiary,
settlor, member or beneficial owner been the holder of the Debenture or coupon.
"United States Alien," as used herein, means any corporation,
partnership, individual or fiduciary that, is for United States federal income
tax purposes (i) a foreign corporation, (ii) a foreign partnership one or more
of the members of which is for United States federal income tax purposes, a
foreign corporation, a non-resident alien individual or a non-resident alien
fiduciary of a foreign estate or trust, (iii) a non-resident alien individual or
(iv) a non-resident alien fiduciary of a foreign estate or trust.
9.
<PAGE> 11
EVENTS OF DEFAULT
An Event of Default under the Indenture includes default for 30 days in
payment of interest on the Debentures, default in payment of principal on the
Debentures, acceleration of any indebtedness for borrowed money of the Company
exceeding $5,000,000 in the aggregate if such acceleration is not cured or
waived within 30 days after notice to the Company from the Trustee or the
holders of 25% in principal amount of the Debentures, failure by the Company for
60 days after notice to it to comply with any of its other agreements in the
Indenture or Debentures, and certain events of bankruptcy or insolvency. If an
Event of Default occurs and is continuing, the Trustee or the holders of at
least 25% in principal amount of the Debentures outstanding may declare the
Debentures to be due and payable immediately subject to the subordination
provisions, but under certain conditions such acceleration may be rescinded by
the holders of a majority in principal amount of the Debentures then
outstanding. The Indenture will require the Company to file with the Trustee
annually a certificate of two Company officers stating whether the signers know
of any default under the Indenture that occurred during the previous fiscal
year.
Debentureholders may not enforce the Indenture or the Debentures except
as provided in the Indenture. The Trustee may refuse to enforce the Indenture or
the Debentures unless it receives indemnity satisfactory to it. Subject to
certain limitations, holders of a majority in principal amount of the Debentures
may direct the Trustee in its exercise of any trust or power under the
Indenture. The Trustee may withhold from Debentureholders notice of any
continuing default (except a default in payment of principal or interest) if it
determines that withholding notice is in their interest.
A director, officer, employee or shareholder, as such, of the Company
will not have any liability for any obligations of the Company under the
Debentures or the Indenture or for any claim based on, in respect of or by
reason of, such obligations or their creation.
CONCERNING THE TRUSTEE
The Indenture provides that, except during an Event of Default, the
Trustee will perform only those duties set forth in the Indenture and that,
during the continuance of an Event of Default, the Trustee will exercise its
rights and powers and use the same degree of care and skill as a prudent person
would exercise or use under the circumstances in the conduct of such person's
own affairs.
The Trustee may be removed by the holders of a majority in principal
amount of the Debentures by notifying such Trustee and the Company. The Company
may remove the Trustee and shall appoint a successor Trustee if (i) the Trustee
fails to comply with the eligibility requirements under the Indenture; (ii) the
Trustee is adjudicated a bankrupt or an insolvent; (iii) a receiver or other
public officer takes charge of the Trustee or its property; or (iv) the Trustee
otherwise becomes incapable of performing the duties set forth in the Indenture.
10.
<PAGE> 12
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Company, without the consent of any holders of Debentures, may
consolidate with or merge into, or transfer all or substantially all its assets
to, another entity, provided (1) the resulting, surviving or transferee entity
assumes all the Company's obligations on the Debentures and under the Indenture,
except as to conversion, (2) that after giving effect to such transaction no
Event of Default, and no event which, after notice or lapse of time or both,
would become an Event of Default, has happened and is continuing and (3) certain
other requirements are met. In the case of a transfer of assets, the predecessor
entity will be relieved of its obligations under the Indenture.
MEETINGS, MODIFICATION AND WAIVER
The Indenture contains provisions for convening meetings of the
Debentureholders to consider matters affecting their interests.
Subject to certain exceptions, the Indenture or the Debentures may be
amended or supplemented with the consent of the holders of at least 66 2/3% in
principal amount of the Debentures then outstanding, and any past default or
compliance with any provisions may be waived with the consent of the holders of
a majority in principal amount of the Debentures then outstanding. Without the
consent of any Debentureholder, the Company may amend or supplement the
Indenture or the Debentures to cure any ambiguity, omission, defect or
inconsistency or to provide for uncertificated Debentures in addition to or in
place of certificated Debentures or to make any change that does not materially
adversely affect the rights of any Debentureholder. Without the consent of any
Debentureholder, the Trustee may waive compliance with any provision of the
Indenture or the Debentures if the waiver does not materially adversely affect
the rights of any Debentureholder.
When a successor corporation, trustee, paying agent or registrar
assumes all the obligations of its predecessor under the Debentures and the
Indenture, the predecessor will be released from those obligations.
TITLE
Title to the temporary Global Debenture, the Bearer Debentures and the
coupons will pass by delivery. The Company, the Trustee, the Registrar, any
transfer agent, any paying agent and any conversion agent may treat the holder
of any Bearer Debenture and the holder of any coupon and the registered owner of
any Registered Debenture as the absolute owner thereof (whether or not such
Debenture or coupon shall be overdue and notwithstanding any notice of ownership
or writing thereon, or any notice of previous loss or theft or other interest
therein) for the purpose of making payment and for all other purposes.
11.
<PAGE> 13
NOTICES
Notices to holders of Bearer Debentures will be given by publication in
a daily newspaper of general circulation, in the official language of the
country of publication, in London and, so long as the Debentures are listed on
the Luxembourg Stock Exchange, in Luxembourg or, if publication in either London
or Luxembourg is not practical, in Europe. Notices to holders of Registered
Debentures will be mailed to such holders at their registered address.
REPLACEMENT OF DEBENTURES AND COUPONS
Debentures (including any coupons appertaining to Bearer Debentures)
that become mutilated, destroyed, stolen or lost will be replaced by the Company
at the expense of the holder upon delivery to the Trustee of the Debentures and
coupons or evidence of the loss, theft or destruction thereof satisfactory to
the Company and the Trustee. In the case of a lost, stolen or destroyed
Debenture or coupon an indemnity satisfactory to the Trustee and the Company may
be required at the expense of the holder of such Debenture or coupon before a
replacement Debenture or coupon, as the case may be, will be issued.
GOVERNING LAW
The Indenture, the Debentures and the coupons will be governed by and
construed in accordance with the laws of the State of New York.
12.
<PAGE> 14
ITEM 2. EXHIBITS.
<TABLE>
<CAPTION>
Exhibit
Number Description
-----------------------------
<S> <C>
1.1 Specimen Certificate for Registrant's Common Stock.
(1)
2.1 Restated Certificate of Incorporation of the
Registrant, as amended. (1)
2.2 Form of Amended and Restated Certificate of
Incorporation to be effective upon the closing of the
merger of the Registrant and Atari Corporation. (1)
2.3 Bylaws of the Registrant. (1)
2.4 Form of Amended and Restated Bylaws of the
Registrant. (1)
3.1 Atari Indenture, dated April 29, 1987. (1)
3.2 Form of First Supplemental Atari Indenture. (1)
</TABLE>
------------------------------
(1) Filed as an exhibit to the Registrant's Form S-4 Registration
Statement No. 333-06643 and incorporated herein by reference.
<PAGE> 15
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the Registrant has caused this registration statement to be signed
on its behalf by the undersigned, thereunto duly authorized.
JTS CORPORATION
---------------------------------
(Registrant)
Date: July 25, 1996 By: /s/ David T. Mitchell
------------------------------
David T. Mitchell
President and Chief Executive
Officer
