AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 1, 1994
REGISTRATION NO. 33-
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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
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ADVANCED MICRO DEVICES, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE One AMD Place 94-1692300
(State or other Sunnyvale, California 94088-3453 (I.R.S. Employer
jurisdiction of (408) 732-2400 Identification Number)
incorporation) (Address, including zip code, and
telephone number, including
area code, of Registrant's principal
executive offices)
MARVIN D. BURKETT
Senior Vice President
Chief Administrative Officer and Secretary
Chief Financial Officer and Treasurer
One AMD Place
Sunnyvale, California 94088-3453
(408) 732-2400
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
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The Commission is requested to send copies of all communications to:
VICTOR J. BACIGALUPI, ESQ. RICHARD H. LOVGREN, ESQ.
Bronson, Bronson & McKinnon Acting General Counsel
505 Montgomery Street Advanced Micro Devices, Inc.
San Francisco, California 94111 One AMD Place, P.O. Box 3453
(415) 986-4200 Sunnyvale, California 94088-3453
(408) 749-2343
Approximate date of commencement of proposed sale to the public:
As soon as practicable after the effective date of this Registration Statement.
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If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. / /
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. / X /
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of Maximum Maximum
Each Class of Amount Offering Aggregate Amount of
Securities to be Price Offering Registration
to be Registered Registered Per Unit Price(1) Fee
- -------------------------------------------------------------------------------------------
Debt Securities......................
Preferred Stock, $0.10 par value.....
Depositary Shares....................
Common Stock, $0.01 par value(2) ...
Warrants to Purchase Common
Stock ..............................
Total.............................. (3) (3) $400,000,000 $137,931.03
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(1) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(o).
(2) Includes Preferred Stock Purchase Rights, which prior to the occurrence of
certain events will not be exercisable or evidenced separately from the
Common Stock.
(3) Not applicable pursuant to General Instruction II(D) to Form S-3 under the
Securities Act of 1933.
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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 SECTION 8(A), MAY DETERMINE.
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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 such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
SUBJECT TO COMPLETION, DATED APRIL 1, 1994
PROSPECTUS [logo]
ADVANCED MICRO DEVICES, INC.
DEBT SECURITIES
PREFERRED STOCK
DEPOSITARY SHARES
COMMON STOCK
WARRANTS TO PURCHASE COMMON STOCK
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Advanced Micro Devices, Inc. (the "Company"), directly or through
agents, dealers or underwriters designated from time to time, may offer,
issue and sell, together or separately, up to $400,000,000 in the aggregate of
(a) secured or unsecured debt securities (the "Debt Securities") of the
Company, which may be either senior debt securities (the "Senior Debt
Securities"), senior subordinated debt securities (the "Senior Subordinated
Debt Securities") or subordinated debt securities (the "Subordinated Debt
Securities"), (b) shares of preferred stock, par value $0.10 per share (the
"Preferred Stock"), of the Company in one or more series, (c) depositary
shares of the Company (the "Depositary Shares") evidencing fractions of
shares of Preferred Stock, (d) shares of common stock, par value $0.01 per
share (the "Common Stock"), of the Company accompanied by preferred
stock purchase rights ("Rights"), and (e) warrants to purchase Common
Stock (the "Warrants"), or any combination of the foregoing, either
individually or as units consisting of one or more of the foregoing, each on
terms to be determined at the time of sale. The Debt Securities may be
issued as exchangeable and/or convertible Debt Securities exchangeable for
or convertible into shares of Common Stock, Preferred Stock or any other
Security. The Preferred Stock may also be exchangeable for and/or
convertible into shares of Common Stock, Preferred Stock or any other
Security. The Debt Securities, the Preferred Stock, the Depositary Shares,
the Common Stock and the Warrants are collectively referred to herein as
the "Securities."
When a particular series of Securities is offered, a supplement to this
Prospectus (each a "Prospectus Supplement") will be delivered with this
Prospectus. For Debt Securities, the Prospectus Supplement will set forth
with respect to such series (the "Offered Debt Securities"): the designation
(including whether senior, senior subordinated or subordinated and whether
convertible or exchangeable); the nature and terms of the security for any
secured Offered Debt Securities; aggregate principal amount; authorized
denominations; maturity; rate or rates (or method of determining the same)
and the time or times of payment of any interest; the purchase price; any
optional or mandatory redemption provisions; any sinking fund provisions;
provisions relating to any conversion or exchange feature of the Offered
Debt Securities; and any other specific terms of the Offered Debt Securities.
For Preferred Stock and Depositary Shares, the Prospectus Supplement will
set forth with respect to such series (the "Offered Preferred Stock" or the
"Offered Depositary Shares"): aggregate number of shares offered; the
public offering price; designation, rights, preferences and limitations,
including rate or rates (or method of determining the same) and the time or
times of payment of dividends; voting rights, if any; liquidation preference;
any conversion, exchange, redemption or sinking fund provisions; and any
other specific terms of the Offered Preferred Stock or the Offered
Depositary Shares. In addition, with respect to the Offered Depositary
Shares, the Prospectus Supplement will set forth the fraction of a share of
Preferred Stock represented by each of the Offered Depositary Shares. For
Common Stock, the Prospectus Supplement will set forth the terms of the
offering and sale. For Warrants, the Prospectus Supplement will set forth
with respect to such series (the "Offered Warrants"): offering price, exercise
price, duration, detachability, call provisions and any other specific terms of
the Offered Warrants.
SEE "INVESTMENT CONSIDERATIONS" FOR A DISCUSSION OF CERTAIN FACTORS THAT
SHOULD BE CONSIDERED BY EACH PROSPECTIVE INVESTOR.
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.
The Securities may be sold directly by the Company, through agents
designated from time to time or to or through underwriters or dealers. The
Company reserves the sole right to accept, and together with its agents,
from time to time, to reject in whole or in part any proposed purchase of
Securities to be made directly or through agents. See "Plan of Distribution."
If any such agents or underwriters are involved in the sale of any Securities,
the names of such agents or underwriters and any applicable fees,
commissions or discounts will be set forth in the applicable Prospectus
Supplement.
This Prospectus may not be used to consummate sales of Securities
unless accompanied by the applicable Prospectus Supplement.
The date of this Prospectus is , 1994.
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR EFFECT
TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE SECURITIES AT
LEVELS ABOVE THOSE WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH
TRANSACTIONS MAY BE EFFECTED ON THE NEW YORK STOCK EXCHANGE, IN THE
OVER-THE-COUNTER MARKET, OR OTHERWISE. SUCH STABILIZING, IF COMMENCED, MAY BE
DISCONTINUED AT ANY TIME.
AVAILABLE INFORMATION
Advanced Micro Devices, Inc. (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 "Commission"). Such reports, proxy statements and other
information can be inspected and copied at the public reference room of the
Commission at Judiciary Plaza, 450 Fifth Street, N.W., Room 1024,
Washington, D.C. 20549, and the public reference facilities in the New York
Regional Office, Seven World Trade Center, 13th Floor, New York, New
York 10048, and Chicago Regional Office, Northwestern Atrium Center, 500
West Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of such
material can be obtained at prescribed rates by writing to the Securities and
Exchange Commission, Public Reference Section, Judiciary Plaza, 450 Fifth
Street, N.W., Washington, D.C. 20549. Such material can also be inspected
at the New York Stock Exchange, 20 Broad Street, New York, New York
10005.
This Prospectus constitutes a part of a registration statement on Form
S-3 (herein, together with all amendments and exhibits, referred to as the
"Registration Statement") filed by the Company under the Securities Act of
1933, as amended, with respect to the Securities offered hereby. This
Prospectus does not contain all the information included in such Registration
Statement, certain items of which are omitted in accordance with the rules
and regulations of the Commission. For further information with respect to
the Company and the Securities offered hereby, reference is made to the
Registration Statement and the exhibits thereto.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents heretofore filed by the Company with the Commission
are incorporated herein by reference: (a) Annual Report on Form 10-K for the
fiscal year ended December 26, 1993, filed pursuant to Section 13 of the
Exchange Act; (b) Current Reports on Form 8-K dated February 10 and March 10,
1994, filed pursuant to Section 13 of the Exchange Act; (c) the description of
the Company's Common Stock contained in the Company's Registration Statement on
Form 8-A filed September 14, 1979; (d) the description of the Company's
Depositary Convertible Exchangeable Preferred Shares, each representing 1/10th
share of $30.00 Convertible Exchangeable Preferred Stock, $0.10 par value,
contained in the Company's Registration Statement on Form 8-A filed February 18,
1987, and Amendment No. 1 thereto filed March 25, 1987; and (e) the description
of the Company's Series A Junior Participating Preferred Stock, $0.10 par value,
and shareholder rights plan contained in the Company's Registration Statement on
Form 8-A filed February 21, 1990.
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 covered by this Prospectus shall be deemed
to be incorporated by reference in this Prospectus and to be a part hereof
from the date of filing of such documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference herein, or
contained in this Prospectus, shall be deemed to be modified or superseded
for purposes of the Registration Statement or this Prospectus to the extent
that a statement contained herein or in any other document subsequently
filed with the Commission which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such statement
so modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of the Registration Statement or this
Prospectus.
The Company will provide without charge to each person to whom this
Prospectus is delivered, upon the written or oral request of any such person,
a copy of any or all of the foregoing documents incorporated herein by
reference other than exhibits to such documents (unless such exhibits are
specifically incorporated by reference in such documents). Requests should
be directed to: Corporate Secretary, Advanced Micro Devices, Inc., One
AMD Place, Sunnyvale, California 94088-3453 (telephone: (408) 732-2400).
The information relating to the Company contained in this Prospectus does
not purport to be comprehensive and should be read together with the
information contained in the documents incorporated or deemed to be
incorporated by reference herein.
THE COMPANY
Advanced Micro Devices, Inc. ("AMD" or the "Company"), a Delaware
corporation, was founded in 1969, became a publicly held company in 1972
and since 1979 has been listed on the New York Stock Exchange ("NYSE")
with the trading symbol of AMD. The Company designs, develops,
manufactures and markets complex monolithic integrated circuits for use by
manufacturers of a broad range of electronic equipment and systems.
The Company has sales offices worldwide, and has manufacturing or
testing facilities in Sunnyvale and Santa Clara, California; Austin, Texas;
Atsugi, Japan; Bangkok, Thailand; Penang, Malaysia; Singapore; and
Basingstoke, England. The Company employs approximately 11,895 people
worldwide. Its executive offices and corporate headquarters are located at
One AMD Place, Sunnyvale, California 94088-3453, and its telephone number
is (408) 732-2400.
INVESTMENT CONSIDERATIONS
Potential investors are encouraged to consider information concerning
the Company's on-going legal proceedings and litigation, including the
litigation with Intel Corporation ("Intel"), described in the Company's
Current Report on Form 8-K dated March 10, 1994, and the factors
described under "Factors That May Affect Future Results of Operations and
Financial Condition" in "Management's Discussion and Analysis of Results of
Operations and Financial Condition" contained in Exhibit 13 to the
Company's Annual Report on Form 10-K for the fiscal year ended December
26, 1993 (the "1993 10-K"), all as modified and superseded by any document
filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Exchange Act after the date of this Prospectus.
The Company is dependent upon a foundry arrangement with Digital
Equipment Corporation ("DEC") to provide sufficient production capacity to
meet the expected demand in 1995 for its Am486TM microprocessor products.
The Company has entered into a strategic alliance with Hewlett-Packard
Corporation ("HP") to collaborate on the development of advanced process
technology to enable the Company to produce microprocessors and logic
devices with 0.35 micron CMOS logic technology, and the Company is
dependent upon this alliance with respect to the development of this
technology. Additional information concerning the Company's relationships
with DEC and HP is set forth under "Business-Process Technology and
Manufacturing" in the 1993 10-K. The Company has entered into a joint
venture relationship with Fujitsu Limited for the development and
manufacturing of EPROMS and Flash memory devices and is dependent on
this relationship with respect to such devices. For additional information
concerning this joint venture, see "Business- Products-Joint Venture with
Fujitsu Limited" in the 1993 10-K.
The Company is currently developing its next generation of central
processing unit ("CPU") microprocessor products, known as the "K series."
The CPU microprocessor products currently produced by the Company
primarily for use in personal computers and workstations are based on the
iAPX architecture originally developed by Intel. The K series products,
however, will be based on superscalar RISC-type architecture. The K series
will face competition not only from iAPX products but also from products
based upon an increased number of different architectures which have been
developed or are under development by HP, IBM Corporation, Motorola,
Inc., Sun Microsystems, Inc. and other manufacturers of integrated circuits. No
assurance can be given that the Company's K series products will achieve market
acceptance. See "Business-Products-Microprocessors" in the 1993 10-K.
USE OF PROCEEDS
Except as otherwise provided in the Prospectus Supplement, the net
proceeds from the sale of Securities offered hereby will be used for general
corporate purposes, which may include the reduction of outstanding
indebtedness, working capital increases and capital expenditures.
RATIOS OF EARNINGS TO FIXED CHARGES AND EARNINGS TO
COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
Ratio of Earnings to Fixed Charges:
The following table sets forth the ratios of earnings to fixed charges for
the Company for the periods indicated.
Fiscal Year Ended
- -----------------------------------------------------------------------------
December 31, December 30, December 29, December 27, December 26,
1989 1990 1991 1992 1993
- ----------- ---------- ---------- ---------- ----------
2.71 x (a) 5.11 x 9.43 x 18.59 x
- ----------
(a) The amount of additional earnings required to cover fixed charges in the
fiscal year ended December 30, 1990, was $63,731,000.
Ratio of Earnings to Combined Fixed Charges and Preferred Stock Dividends:
The following table sets forth the ratios of earnings to combined fixed
charges and preferred stock dividends for the periods indicated.
Fiscal Year Ended
- -----------------------------------------------------------------------------
December 31, December 30, December 29, December 27, December 26,
1989 1990 1991 1992 1993
- ----------- ---------- ---------- ---------- ----------
1.94 x (a) 3.94 x 6.93 x 10.30 x
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(a) The amount of additional earnings required to cover fixed charges and
preferred stock dividends in the fiscal year ended December 30, 1990,
was $74,081,000.
The ratio of earnings to fixed charges has been computed by dividing
earnings by fixed charges. The ratio of earnings to fixed charges and
preferred stock dividends has been computed by dividing earnings by the
sum of fixed charges and preferred stock dividend requirements. Earnings
consist of income before income taxes, amortization of capitalized interest
plus fixed charges other than capitalized interest. Fixed charges consist of
interest on all indebtedness, amortization of debt issuance costs and the
portion of rental expense representative of interest.
GENERAL DESCRIPTION OF SECURITIES
The Company, directly or through agents, dealers or underwriters
designated from time to time, may offer, issue and sell, together or
separately, up to $400,000,000 in the aggregate of (a) secured or unsecured
debt securities (the "Debt Securities") of the Company, which may be senior
debt securities (the "Senior Debt Securities"), senior subordinated debt
securities (the "Senior Subordinated Debt Securities") or subordinated debt
securities (the "Subordinated Debt Securities"), (b) shares of preferred
stock, par value $0.10 per share (the "Preferred Stock"), of the Company in
one or more series, (c) depositary shares of the Company (the "Depositary
Shares") evidencing fractions of shares of Preferred Stock, (d) shares of
common stock, par value $0.01 per share (the "Common Stock") of the
Company, accompanied by preferred stock purchase rights ("Rights"), and
(e) warrants to purchase Common Stock (the "Warrants"), or any
combination of the foregoing, either individually or as units consisting of one
or more of the foregoing, each on terms to be determined at the time of sale.
The Debt Securities may be issued as exchangeable and/or convertible Debt
Securities exchangeable for or convertible into shares of Common Stock,
Preferred Stock or any other Security. The Preferred Stock may also be
exchangeable for and/or convertible into shares of Common Stock, Preferred
Stock or any other Security. The Debt Securities, the Preferred Stock, the
Depositary Shares, the Common Stock and the Warrants are collectively
referred to herein as the "Securities."
DESCRIPTION OF DEBT SECURITIES
The following description sets forth certain general terms and provisions
of the Debt Securities to which any Prospectus Supplement may relate. The
particular terms of the Debt Securities offered by any Prospectus
Supplement and the extent, if any, to which such general provisions do not
apply to the Debt Securities so offered will be described in the Prospectus
Supplement relating to such Debt Securities.
Debt Securities may be issued from time to time in series under an
indenture, and one or more indentures supplemental thereto (collectively,
the "Indenture"), between the Company and a trustee to be identified in the
applicable Prospectus Supplement (the "Trustee"). The terms of the Debt
Securities will include those stated in the Indenture and those made part of
the Indenture by reference to the Trust Indenture Act of 1939 (the "TIA")
as in effect on the date of the Indenture. The Debt Securities will be subject
to all such terms, and potential investors in the Debt Securities are referred
to the Indenture and the TIA for a statement thereof. The following
summary of certain provisions of the Indenture does not purport to be
complete and is qualified in its entirety by reference to the Indenture,
including the definitions therein of certain terms used below. A copy of the
proposed form of Indenture has been filed as an exhibit to the Registration
Statement of which this Prospectus is a part. As used under this caption,
unless the context otherwise requires, Offered Debt Securities shall mean
the Debt Securities offered by this Prospectus and the accompanying
Prospectus Supplement.
GENERAL
The Indenture will provide for the issuance of Debt Securities in series
and will not limit the principal amount of Debt Securities which may be
issued thereunder.
The applicable Prospectus Supplement or Prospectus Supplements will
describe the following terms of the series of Offered Debt Securities in
respect of which this Prospectus is being delivered: (1) the title of the
Offered Debt Securities; (2) whether the Offered Debt Securities are Senior
Debt Securities, Senior Subordinated Debt Securities or Subordinated Debt
Securities or any combination thereof; (3) any limit upon the aggregate
principal amount of the Offered Debt Securities; (4) the date or dates on
which the principal of the Offered Debt Securities is payable; (5) the rate or
rates at which the Offered Debt Securities will bear interest, if any, or the
manner in which such rate or rates are determined; (6) the date or dates
from which any such interest will accrue, the interest payment dates on
which any such interest on the Offered Debt Securities will be payable and
the record dates for the determination of holders to whom interest is
payable; (7) the obligation of the Company, if any, to redeem, purchase or
repay the Offered Debt Securities, in whole or in part, pursuant to any
sinking fund or analogous provisions or at the option of the holders and the
price or prices at which and the period and periods within which and the
terms and conditions upon which the Offered Debt Securities shall be
redeemed, purchased or repaid pursuant to such obligation; (8) the place or
places where the principal of and any interest on the Offered Debt Securities
will be payable; (9) the denominations in which any Offered Debt Securities
will be issuable, if other than denominations of U.S. $1,000 and any integral
multiple thereof; (10) if other than the principal amount thereof, the portion
of the principal amount of the Offered Debt Securities of the series which
will be payable upon declaration of the acceleration of the maturity thereof;
(11) any addition to or change in the covenants which apply to the Offered
Debt Securities; (12) any Events of Default with respect to the Offered Debt
Securities, if not otherwise set forth under "Events of Default;" (13) whether
the Offered Debt Securities will be issued in whole or in part in global form;
the terms and conditions, if any, upon which such global Offered Debt
Securities may be exchanged in whole or in part for other individual
securities, and the depositary for such Offered Debt Securities; (14) the
terms and conditions, if any, upon which the Offered Debt Securities may be
exchanged for or converted into other securities or property; (15) the nature
and terms of the security for any secured Offered Debt Securities; and (16)
any other terms of the Offered Debt Securities, which terms shall not be
inconsistent with the provisions of the Indenture.
Debt Securities may be issued at a discount from their principal amount
("Original Issue Discount Securities"). Federal income tax considerations and
other special considerations applicable to any such Original Issue Discount
Securities will be described in the applicable Prospectus Supplement.
Debt Securities may be issued in bearer form, with or without coupons.
Federal income tax considerations and other special considerations applicable
to bearer securities will be described in the applicable Prospectus
Supplement.
Unless otherwise indicated in this Prospectus or a Prospectus
Supplement, the Debt Securities will be unsecured and will not have the
benefit of any covenants that limit or restrict the Company's business or
operations, the pledging of the Company's assets or the incurrence of
indebtedness by the Company.
STATUS OF DEBT SECURITIES
The Senior Debt Securities will be unsubordinated obligations of the
Company and will rank on a parity with all other unsecured and
unsubordinated indebtedness of the Company.
The obligations of the Company pursuant to Senior Subordinated Debt
Securities will be subordinate and junior in right of payment, to the extent
and in the manner set forth in the Indenture, to all Senior Indebtedness of
the Company. Except to the extent set forth in the Prospectus Supplement,
"Senior Indebtedness" of the Company is defined to mean the principal of,
and premium, if any, and any interest (including interest accruing
subsequent to the commencement of any proceeding for the bankruptcy or
reorganization of the Company under any applicable bankruptcy, insolvency
or similar law now or hereafter in effect) on (a) all indebtedness of the
Company whether heretofore or hereafter incurred (i) for borrowed money
or (ii) incurred in connection with the acquisition by the Company or a
subsidiary of assets other than in the ordinary course of business, for the
payment of which the Company is liable directly or indirectly by guarantee,
letter of credit, obligation to purchase or acquire or otherwise, or the
payment of which is secured by a lien, charge or encumbrance on assets
acquired by the Company, (b) amendments, modifications, renewals,
extensions and deferrals of any such indebtedness, and (c) any indebtedness
issued in exchange for any such indebtedness (clauses (a) through (c) hereof
being collectively referred to herein as "Debt"); provided, however, that the
following will not constitute Senior Indebtedness with respect to Senior
Subordinated Debt Securities: (1) any Debt as to which, in the instrument
evidencing such Debt or pursuant to which such Debt was issued, it is
expressly provided that such Debt is subordinate in right of payment to all
Debt of the Company not expressly subordinated to such Debt; (2) any Debt
which by its terms refers explicitly to the Senior Subordinated Debt
Securities and states that such Debt shall not be senior in right of payment;
and (3) any Debt of the Company in respect of the Senior Subordinated Debt
Securities or any Subordinated Debt Securities. The Company will not issue
Debt which is subordinated in right of payment to any other Debt of the
Company and which is not expressly made pari passu with, or subordinate
and junior in right of payment to, the Senior Subordinated Debt Securities.
The obligations of the Company pursuant to Subordinated Debt
Securities will be subordinate in right of payment to all Senior Indebtedness
of the Company and to any Senior Subordinated Debt Securities; provided,
however, that the following will not constitute Senior Indebtedness with
respect to Subordinated Debt Securities: (1) any Debt as to which, in the
instrument evidencing such Debt or pursuant to which such Debt was
issued, it is expressly provided that such Debt is subordinate in right of
payment to all Debt of the Company not expressly subordinated to such
Debt; and (2) any Debt of the Company in respect of Subordinated Debt
Securities and any Debt which by its terms refers explicitly to the
Subordinated Debt Securities and states that such Debt shall not be senior
in right of payment.
No payment pursuant to the Senior Subordinated Debt Securities or the
Subordinated Debt Securities, as the case may be, may be made unless all
amounts of principal, premium, if any, and interest then due on all applicable
Senior Indebtedness of the Company shall have been paid in full or if there
shall have occurred and be continuing beyond any applicable grace period a
default in any payment with respect to any such Senior Indebtedness, or if
there shall have occurred any event of default with respect to any such
Senior Indebtedness permitting the holders thereof to accelerate the
maturity thereof, or if any judicial proceeding shall be pending with respect
to any such default. However, the Company may make payments pursuant
to the Senior Subordinated Debt Securities or the Subordinated Debt
Securities, as the case may be, if a default in payment or an event of default
with respect to the Senior Indebtedness permitting the holder thereof to
accelerate the maturity thereof has occurred and is continuing and judicial
proceedings with respect thereto have not been commenced within a certain
number of days of such default in payment or event of default. Upon any
distribution of the assets of the Company upon dissolution, winding-up,
liquidation or reorganization, the holders of Senior Indebtedness of the
Company will be entitled to receive payment in full of principal, premium, if
any, and interest (including interest accruing subsequent to the
commencement of any proceeding for the bankruptcy or reorganization of
the Company under any applicable bankruptcy, insolvency or similar law
now or hereafter in effect) before any payment is made on the Senior
Subordinated Debt Securities or Subordinated Debt Securities, as applicable.
By reason of such subordination, in the event of insolvency of the Company,
holders of Senior Indebtedness of the Company may receive more, ratably,
and holders of the Senior Subordinated Debt Securities or Subordinated
Debt Securities, as applicable, having a claim pursuant to the Senior
Subordinated Debt Securities or Subordinated Debt Securities, as applicable,
may receive less, ratably, than the other creditors of the Company. Such
subordination will not prevent the occurrence of any Event of Default in
respect of the Senior Subordinated Debt Securities or the Subordinated
Debt Securities.
CONVERSION RIGHTS
The terms, if any, on which Debt Securities of a series may be
exchanged for or converted into shares of Common Stock, Preferred Stock
or any other Security will be set forth in the Prospectus Supplement
relating thereto.
EXCHANGE, REGISTRATION, TRANSFER AND PAYMENT
Unless otherwise specified in the applicable Prospectus Supplement,
payment of principal, premium, if any, and any interest on the Debt
Securities will be payable, and the exchange of and the transfer of Debt
Securities will be registrable, at the office of the Trustee or at any other
office or agency maintained by the Company for such purpose subject to the
limitations of the Indenture. Unless otherwise indicated in the applicable
Prospectus Supplement, the Debt Securities will be issued in denominations
of U.S. $1,000 or integral multiples thereof. No service charge will be made
for any registration of transfer or exchange of the Debt Securities, but the
Company may require payment of a sum sufficient to cover any transfer tax
or similar governmental charge imposed in connection therewith.
SECURED DEBT SECURITIES
The terms, if any, on which Debt Securities of a series may be secured
will be set forth in the Prospectus Supplement relating thereto. The terms
of the Company's current credit agreements generally prohibit the Company
from encumbering its assets. With certain limited exceptions, so long as
these provisions are in effect, the Company may not issue secured Debt
Securities without having first obtained modifications or waivers of these
provisions.
BOOK-ENTRY DEBT SECURITIES
The Debt Securities of a series may be issued in the form of one or more
Global Securities that will be deposited with a depositary or its nominee
identified in the applicable Prospectus Supplement. In such a case, one or
more Global Securities will be issued in a denomination or aggregate
denominations equal to the portion of the aggregate principal amount of
Outstanding Debt Securities of the series to be represented by such Global
Security or Securities. Each Global Security will be deposited with such
depositary or nominee or a custodian therefor and will bear a legend
regarding the restrictions on exchanges and registration of transfer thereof
referred to below and any such other matters as may be provided for
pursuant to the applicable Indenture.
Notwithstanding any provision of the Indenture or any Debt Security
described herein, no Global Security may be transferred to, or registered or
exchanged for Debt Securities registered in the name of, any Person other
than the depositary for such Global Security or any nominee of such
depositary, and no such transfer may be registered, unless (i) the depositary
has notified the Company that it is unwilling or unable to continue as
depositary for such Global Security or has ceased to be qualified to act as
such as required by the applicable Indenture, (ii) the Company executes and
delivers to the Trustee an order that such Global Security shall be so
transferable, registrable and exchangeable, and such transfers shall be
registrable, or (iii) there shall exist such circumstances, if any, as may be
described in the applicable Prospectus Supplement. All Debt Securities
issued in exchange for a Global Security or any portion thereof will be
registered in such names as the depositary may direct.
The specific terms of the depositary arrangement with respect to any
portion of a series of Debt Securities to be represented by a Global Security
will be described in the applicable Prospectus Supplement. The Company
expects that the following provisions will apply to depositary arrangements.
Unless otherwise specified in the applicable Prospectus Supplement,
Debt Securities which are to be represented by a Global Security to be
deposited with or on behalf of a depositary will be represented by a Global
Security registered in the name of such depositary or its nominee. Upon the
issuance of such Global Security, and the deposit of such Global Security
with or on behalf of the depositary for such 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 such
depositary or its nominee ("participants"). The accounts to be credited will
be designated by the underwriters or agents of such Debt Securities or by
the Company, if such Debt Securities are offered and sold directly by the
Company. Ownership of beneficial interests in such Global Security will be
limited to participants or persons that may hold interests through
participants. Ownership of beneficial interests by participants in such Global
Security will be shown on, and the transfer of that ownership interest will
be effected only through, records maintained by the depositary or its
nominee for such Global Security. Ownership of beneficial interests in such
Global Security by persons that hold through participants will be shown on,
and the transfer of that ownership interest within such participant will be
effected only through, records maintained by such participant. The laws of
some jurisdictions require that certain purchasers of securities take physical
delivery of such securities in certificated form. The foregoing limitations and
such laws may impair the ability to transfer beneficial interests in such
Global Securities.
So long as the depositary for a Global Security, or its nominee, is the
registered owner of such Global Security, such depositary or such nominee,
as the case may be, will be considered the sole owner or holder of the Debt
Securities represented by such Global Security for all purposes under the
Indenture. Unless otherwise specified in the applicable Prospectus
Supplement, owners of beneficial interests in such Global Security will not
be entitled to have Debt Securities of the series represented by such Global
Security registered in their names, will not receive or be entitled to receive
physical delivery of Debt Securities of such series in certified form and will
not be considered the holders thereof for any purposes under the Indenture.
Accordingly, each person owning a beneficial interest in such Global Security
must rely on the procedures of the depositary and, if such person is not a
participant, on the procedures of the participant through which such person
owns its interest, to exercise any rights of a holder under the Indenture.
The Company understands that under existing industry practices, if the
Company requests any action of holders or an owner of a beneficial interest
in such Global Security desires to give any notice or take any action a holder
is entitled to give or take under the Indenture, the depositary would
authorize the participants to give such notice or take such action, and
participants would authorize beneficial owners owning through such
participants to give such notice or take such action or would otherwise act
upon the instructions of beneficial owners owning through them.
Notwithstanding any other provisions to the contrary in the Indenture,
the rights of the beneficial owners of the Debt Securities to receive payment
of the principal and premium, if any, of and interest on such Debt Securities,
on or after the respective due dates expressed in such Debt Securities, or to
institute suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the consent of the
beneficial owners.
Principal of and any interest on a Global Security will be payable in the
manner described in the applicable Prospectus Supplement.
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Company, without the consent of a percentage of the holders of
outstanding Debt Securities, may not consolidate with or merge into, or sell,
assign, transfer, lease, convey or otherwise dispose of all or substantially all
of its property or assets to any person unless (a) the Company is the
surviving corporation or the entity or the person formed by or surviving any
such consolidation or merger (if other than the Company) or to which such
sale, assignment, transfer, lease, conveyance or other disposition shall have
been made is a corporation organized and existing under the laws of the
United States, any state thereof or the District of Columbia; (b) the entity
or person formed by or surviving any such consolidation or merger (if other
than the Company) or the entity or person to which such sale, assignment,
transfer, lease, conveyance or other disposition shall have been made
assumes all the obligations of the Company under the Debt Securities and
the Indenture; and (c) immediately prior to and after the transaction no
Default or Event of Default exists.
COVENANTS OF THE COMPANY
The applicable Prospectus Supplement will describe any material
covenants in respect of a series of Offered Debt Securities. Other than the
covenants of the Company included in the Indenture as described above or
as described in the applicable Prospectus Supplement, there are no
covenants or provisions in the Indenture that may afford holders protection
in the event of a highly leveraged transaction or leveraged buyout involving
the Company.
EVENTS OF DEFAULT
Unless otherwise specified in the applicable Prospectus Supplement, the
following will constitute Events of Default under the Indenture with respect
to Debt Securities of any series:(a) failure to pay any interest on any Debt
Security of that series when due, and the Default continues for 30 days; (b)
failure to pay principal of any Debt Security of that series when due and
payable at maturity, upon redemption or otherwise; (c) an Event of Default,
as defined in the Debt Securities of that series, occurs and is continuing, or
the Company fails to comply with any of its other agreements in the Debt
Securities of that series or in the Indenture with respect to that series and
the Default continues for the period and after the notice provided therein;
and (d) certain events of bankruptcy, insolvency or reorganization. If an
Event of Default with respect to outstanding Debt Securities of any series
(other than an Event or Default relating to certain events of bankruptcy,
insolvency or reorganization) shall occur and be continuing, either the
Trustee or the holders of at least 25% in principal amount of the outstanding
Debt Securities of that series by notice to the Company and the Trustee, as
provided in the Indenture, may declare the unpaid principal amount (or, if
the Debt Securities of that series are Original Issue Discount Securities,
such lesser amount as may be specified in the terms of that series) of and
any accrued interest on all Debt Securities of that series to be due and
payable immediately. However, 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 based on such acceleration has been
obtained, 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. For information as to waiver of defaults, see
"Modification and Waiver" below.
The Indenture will provide that, subject to the duty of the Trustee
during an Event of 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 applicable Indenture at the request or direction of any of the
holders, unless such holders shall have offered to the Trustee reasonable
security or indemnity. Subject to certain provisions, including those
requiring security or 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 Company will be required to furnish to the Trustee under the
Indenture annually a statement as to the performance by the Company of its
obligations under that Indenture and as to any default in such performance.
MODIFICATION AND WAIVER
Subject to certain exceptions, the Company and the Trustee may
supplement or amend the Indenture or the Debt Securities with the written
consent of the holders of a majority in principal amount of the then
outstanding Debt Securities of each series affected by the amendment with
each series voting as a separate class. The holders of a majority in principal
amount of the then outstanding Debt Securities of any series may also waive
compliance in a particular instance by the Company with any provision of
the Indenture with respect to the Debt Securities of that series; provided,
however, that without the consent of each holder of Debt Securities affected,
an amendment or waiver may not (i) reduce the percentage of the principal
amount of Debt Securities whose holders must consent to an amendment or
waiver; (ii) reduce the rate or change the time for payment of interest on
any Debt Security; (iii) reduce the principal of or change the fixed maturity
of any Debt Security, or alter the redemption provisions with respect
thereto; (iv) make any Debt Security payable in money other than that
stated in the Debt Security; (v) make any change in the provisions
concerning waivers of Default or Events of Default by holders or the rights
of holders to recover the principal of or interest on any Debt Security; or
(vi) waive a default in the payment of the principal of, or interest on, any
Debt Security, except as otherwise provided in the Indenture. The Company
and the Trustee may amend the Indenture or the Debt Securities without
notice to or the consent of any holder of a Debt Security: (i) to cure any
ambiguity, defect or inconsistency; (ii) to comply with the Indenture's
provisions with respect to successor corporations; (iii) to comply with any
requirements of the Commission in connection with the qualification of the
Indenture under the TIA; (iv) to provide for Debt Securities in addition to
or in place of certificated Debt Securities; (v) to add to, change or eliminate
any of the provisions of the Indenture in respect of one of more series of
Debt Securities, provided, however, that any such addition, change or
elimination (A) shall neither (1) apply to any Debt Security of any series
created prior to the execution of such amendment and entitled to the benefit
of such provision, nor (2) modify the rights of a holder of any such Debt
Security with respect to such provision, or (B) shall become effective only
when there is no outstanding Debt Security of any series created prior to
such amendment and entitled to the benefit of such provision; (vi) to make
any change that does not adversely affect in any material respect the
interests of the holders of any series of Debt Securities; or (vii) to establish
additional series of Debt Securities as permitted by the Indenture.
Subject to certain exceptions, the holders of a majority in principal
amount of the then outstanding Debt Securities of any series, by notice to
the Trustee, may waive an existing Default or Event of Default and its
consequences with respect to the Debt Securities of that series except a
Default or Event of Default in the payment of the principal of or interest on
any Debt Security.
TERMINATION OF THE COMPANY'S OBLIGATIONS UNDER THE DEBT SECURITIES AND THE
INDENTURE
Except as otherwise described below, the Company may terminate its
obligations under the Debt Securities of any series and the Indenture with
respect to that series if:
(a) all Debt Securities of that series previously authenticated and
delivered (other than destroyed, lost or stolen Debt Securities which
have been replaced or Debt Securities of that series which are paid or
Debt Securities of that series for whose payment money or securities has
theretofore been held in trust and thereafter repaid to the Company)
have been delivered to the Trustee for cancellation and the Company has
paid all sums payable by it under the Indenture with respect to such
series; or
(b) (1) the Debt Securities of that series mature within one year or
all of them are to be called for redemption within one year after
arrangements satisfactory to the Trustee for giving notice of redemption;
and
(2) the Company irrevocably deposits in trust with the Trustee
during such one-year period, under the terms of an irrevocable trust
agreement in form and substance satisfactory to the Trustee, as trust
funds solely for the benefit of the holders of Debt Securities of that
series for that purpose, money or U.S. Government Obligations, or a
combination thereof, with the U.S. Government Obligations maturing as
to principal and interest in such amounts and at such times as are
sufficient, without consideration of any reinvestment of such interest, to
pay principal of and interest on the Debt Securities of that series to
maturity or redemption, as the case may be, and to pay all other sums
payable by it under the Indenture; or
(c) (1) the Company irrevocably deposits in trust with the Trustee
under the terms of an irrevocable trust agreement in form and substance
satisfactory to the Trustee, as trust funds solely for the benefit of the
holders of Debt Securities of that series for that purpose, money or U.S.
Government Obligations, or a combination thereof, with the U.S.
Government Obligations maturing as to principal and interest in such
amounts and at such times as are sufficient, without consideration of any
reinvestment of such interest, to pay principal of and interest on the
Debt Securities of that series to maturity or redemption, as the case may
be;
(2) The Company shall have delivered to the Trustee either (A)
a ruling directed to the Trustee received from the Internal Revenue
Service to the effect that the holders of the Debt Securities of that series
will not recognize income, gain or loss for federal income tax purposes as
a result of the Company's exercise of its option under this clause (c) 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
option had not been exercised, or (B) an opinion of counsel to the same
effect as the ruling described in subclause (A) above accompanied by a
ruling to that effect published by the Internal Revenue Service, unless
there has been a change in the applicable federal income tax law since
the date of the Indenture such that a ruling from the Internal Revenue
Service is no longer required;
(3) The Company has paid or caused to be paid all sums then
payable by the Company under the Indenture; and
(4) the Company has delivered to the Trustee an officers'
certificate and an opinion of counsel, each stating that all conditions
precedent provided for in this clause (c) relating to termination of
obligations of the Company have been complied with.
The Company's obligations under sections of the Indenture relating to
the registrar and the paying agent, their obligations, the maintenance of a
list of holders, transfers of Debt Securities, replacement of securities,
payment (together with payment obligations under the Debt Securities of
that series), compensation and indemnity of the Trustee (Section 7.07),
replacement of the Trustee and repayment to the Company of excess money
held by the Trustee or the paying Agent (Section 8.03), shall survive until
the Debt Securities of that series are no longer outstanding. Thereafter, and
after any discharge pursuant to clause (a) above, only the Company's
obligations in Sections 7.07 and 8.03 of the Indenture shall survive. If the
ruling from the Internal Revenue Service or opinion of counsel referred to in
clause (c)(2) above is based on or assumes that the Company's payment
obligations under the Indenture or its payment obligations under the Debt
Securities will continue (or is silent with respect thereto), then such
discharge shall constitute only a "covenant defeasance" and, consequently,
the Company shall remain liable for the payment of the Debt Securities of
that series. However, if and when a ruling from the Internal Revenue
Service or opinion of counsel referred to in clause (c)(2) above is able to be
provided specifically without regard to, and not in reliance upon, the
continuance of the Company's payment obligations under the Indenture and
its payment obligations under the Debt Securities of that series, then the
Company's payment obligations under the Indenture and the Debt Securities
of that series shall cease upon delivery to the Trustee of such ruling or
opinion of counsel and compliance with the other conditions precedent
provided for in clause (c) above relating to the satisfaction and discharge of
the Indenture. In such a case (a "legal defeasance") holders would be able to
look only to the trust fund for payment of principal or interest on the Debt
Securities.
REGARDING THE TRUSTEES
The Company intends that the Trustee with respect to the first series of
Debt Securities will be United States Trust Company of New York, and its
address is 114 West 47th Street, New York, New York 10036. Other
Trustees may be designated for any subsequent series of Debt Securities.
The Indenture and provisions of the TIA incorporated by reference therein
contain certain limitations on the rights of the Trustee, should it become a
creditor of the Company, to obtain payment of claims in certain cases, or to
realize on certain property received in respect of any such claim, as security
or otherwise. The Trustee and its affiliates engage in, and will be permitted
to continue to engage in, other transactions with the Company and its
affiliates; provided, however, that if it acquires any conflicting interest (as
defined), it must eliminate such conflict or resign.
The holders of a majority in principal amount of the then outstanding
Debt Securities of any series will have the right to direct the time, method
and place of conducting any proceeding for exercising any remedy available
to the Trustee. The TIA and the Indenture provide that in case an Event of
Default shall occur (and be continuing), the Trustee will be required, in the
exercise of its rights and powers, to use the degree of care and skill of a
prudent man in the conduct of his own affairs. Subject to such provision, the
Trustee will be under no obligation to exercise any of its rights or powers
under the Indenture at the request of any of the holders of the Debt
Securities of any series issued thereunder, unless they have offered to the
Trustee indemnity satisfactory to it.
DESCRIPTION OF PREFERRED STOCK
The following description of the terms of the Preferred Stock sets forth
certain general terms and provisions of the Preferred Stock to which any
Prospectus Supplement may relate. Certain other terms of any series of the
Preferred Stock offered by any Prospectus Supplement will be described in
such Prospectus Supplement. The description of certain provisions of the
Preferred Stock set forth below and in any Prospectus Supplement does not
purport to be complete and is subject to and qualified in its entirety by
reference to the Company's Certificate of Incorporation (the "Certificate of
Incorporation"), and the certificate of designations (a "Certificate of
Designations") relating to each series of the Preferred Stock which will be
filed with the Commission and incorporated by reference in the Registration
Statement of which this Prospectus is a part at or prior to the time of the
issuance of such series of the Preferred Stock.
GENERAL
The authorized capital stock of the Company consists of 250,000,000 shares of
Common Stock, $0.01 par value per share, and 1,000,000 shares of preferred
stock, $0.10 par value per share ("preferred stock of the Company," which term,
as used herein, includes the Preferred Stock offered hereby). As of March 30,
1994, the Company had 92,979,749 shares of Common Stock and 344,975 shares of
preferred stock outstanding, of which 171,085 shares of Common Stock were owned
by the Company as treasury stock, and has authorized the issuance of up to
150,000 additional shares of preferred stock pursuant to its shareholder rights
plan. See "-Outstanding Preferred Stock" and "Description of Common Stock."
Under the Certificate of Incorporation, the Board of Directors of the
Company is authorized without further stockholder action to provide for the
issuance of up to 505,000 shares of preferred stock of the Company, in one
or more series, with such voting powers, full or limited, and with such
designations, preferences and relative participating, optional or other special
rights, and qualifications, limitations or restrictions thereof, as shall be
stated in the resolution or resolutions providing for the issue of a series of
such stock adopted, at any time or from time to time, by the Board of
Directors of the Company (as used herein the term "Board of Directors of
the Company" includes any duly authorized committee thereof). Under the
terms of the Company's currently outstanding $30.00 Convertible
Exchangeable Preferred Stock, the Company may not issue Preferred Stock
which by its terms is expressly made senior to the $30.00 Convertible
Exchangeable Preferred Stock either as to dividends or as to the
distribution of assets on any voluntary or involuntary liquidation of the
Company.
As described under "Description of Depositary Shares," the Company
may, at its option, elect to offer Depositary Shares evidenced by depositary
receipts (the "Depositary Receipts"), each representing a fraction (to be
specified in the Prospectus Supplement relating to the particular series of
the Preferred Stock) of a share of the particular series of the Preferred
Stock issued and deposited with a depositary, in lieu of offering full shares of
such series of the Preferred Stock.
The Preferred Stock shall have the dividend, liquidation, redemption and
voting rights set forth below unless otherwise provided in a Prospectus
Supplement relating to a particular series of the Preferred Stock. Reference
is made to the Prospectus Supplement relating to the particular series of the
Preferred Stock offered thereby for specific terms, including: (i) the
designation and stated value per share of such Preferred Stock and the
number of shares offered; (ii) the amount of liquidation preference per share;
(iii) the initial public offering price at which such Preferred Stock will be
issued; (iv) the dividend rate (or method of calculation), the dates on which
dividends shall be payable and the dates from which dividends shall
commence to cumulate, if any; (v) any redemption or sinking fund provisions;
(vi) any conversion or exchange rights; (vii) whether the Company has
elected to offer Depositary Shares as described below under "Description of
Depositary Shares;" and (viii) any additional voting, dividend, liquidation,
redemption, sinking fund and other rights, preferences, privileges,
limitations and restrictions.
The Preferred Stock will, when issued, be fully paid and nonassessable
and will have no preemptive rights. The rights of the holders of each series
of the Preferred Stock will be subordinate to those of the Company's general
creditors.
DIVIDEND RIGHTS
Holders of the Preferred Stock of each series will be entitled to receive,
when, as and if declared by the Board of Directors of the Company, out of funds
of the Company legally available therefor, cash dividends on such dates and at
such rates as are set forth in, or as are determined by the method described in,
the Prospectus Supplement relating to such series of the Preferred Stock. Such
rate may be fixed or variable or both. Each such dividend will be payable to the
holders of record as they appear on the stock books of the Company (or, if
applicable, the records of the Depositary (as hereinafter defined) referred to
under "Description of Depositary Shares") on such record dates, fixed by the
Board of Directors of the Company, as specified in the Prospectus Supplement
relating to such series of Preferred Stock.
Such dividends may be cumulative or noncumulative, as provided in the
Prospectus Supplement relating to such series of Preferred Stock. If the
Board of Directors of the Company fails to declare a dividend payable on a
dividend payment date on any series of Preferred Stock for which dividends
are noncumulative, then the right to receive a dividend in respect of the
dividend period ending on such dividend payment date will be lost, and the
Company will have no obligation to pay any dividend for such period,
whether or not dividends on such series are declared payable on any future
dividend payment dates. Dividends on the shares of each series of Preferred
Stock for which dividends are cumulative will accrue from the date on which
the Company initially issues shares of such series.
The terms of the Company's current credit agreement prohibit the
Company from paying cash dividends on its capital stock, other than
mandatory current dividend payments to the holders of the shares of
Preferred Stock which are currently outstanding. So long as the provision is
in effect, the Company may not offer Preferred Stock with dividend rights
without having first obtained a modification or waiver of this provision.
Unless otherwise specified in the applicable Prospectus Supplement, so
long as the shares of any series of the Preferred Stock are outstanding,
unless (i) full dividends (including if such Preferred Stock is cumulative,
dividends for prior dividend periods) have been paid or declared and set
apart for payment on all outstanding shares of the Preferred Stock of such
series and all other classes and series of preferred stock of the Company
(other than Junior Stock, as defined below) and (ii) the Company is not in
default or in arrears with respect to the mandatory or optional redemption
or mandatory repurchase or other mandatory retirement of, or with respect
to any sinking or other analogous funds for, any shares of Preferred Stock of
such series or any shares of any other preferred stock of the Company of
any class or series (other than Junior Stock, as defined below), the Company
may not declare any dividends on any shares of Common Stock of the
Company or any other stock of the Company ranking as to dividends or
distributions of assets junior to such series of Preferred Stock (the Common
Stock and any such other stock being herein referred to as "Junior Stock"),
or make any payment on account of, or set apart money for, the purchase,
redemption or other retirement of, or for a sinking or other analogous fund
for, any shares of Junior Stock or make any distribution in respect thereof,
whether in cash or property or in obligations of stock of the Company, other
than in Junior Stock which is neither convertible into, nor exchangeable or
LIQUIDATION PREFERENCES
Unless otherwise specified in the applicable Prospectus Supplement, in
the event of any liquidation, dissolution or winding up of the Company,
whether voluntary or involuntary, the holders of each series of the Preferred
Stock will be entitled to receive out of the assets of the Company available
for distribution to stockholders, before any distribution of assets is made to
the holders of Common Stock or any other shares of stock of the Company
ranking junior as to such distribution to such series of the Preferred Stock,
the amount set forth in the Prospectus Supplement relating to such series of
the Preferred Stock. If, upon any voluntary or involuntary liquidation,
dissolution or winding up of the Company, the amounts payable with respect
to the Preferred Stock of any series and any other shares of preferred stock
of the Company (including any other series of the Preferred Stock) ranking
as to any such distribution on a parity with such series of the Preferred
Stock are not paid in full, the holders of the Preferred Stock of such series
and of such other shares of preferred stock of the Company will share
ratably in any such distribution of assets of the Company in proportion to
the full respective preferential amounts to which they are entitled. After
payment to the holders of the Preferred Stock of each series of the full
preferential amounts of the liquidating distribution to which they are
entitled, unless otherwise provided in the applicable Prospectus Supplement,
the holders of each such series of the Preferred Stock will be entitled to no
further participation in any distribution of assets by the Company.
REDEMPTION
A series of the Preferred Stock may be redeemable, in whole or from
time to time in part, at the option of the Company, and may be subject to
mandatory redemption pursuant to a sinking fund or otherwise, in each case
upon terms, at the times and at the redemption prices set forth in the
Prospectus Supplement relating to such series. Shares of the Preferred
Stock redeemed by the Company will be restored to the status of authorized
but unissued shares of preferred stock of the Company.
In the event that fewer than all of the outstanding shares of a series of
the Preferred Stock are to be redeemed, whether by mandatory or optional
redemption, the number of shares to be redeemed will be determined by lot
or pro rata (subject to rounding to avoid fractional shares) as may be
determined by the Company or by any other method as may be determined
by the Company in its sole discretion to be equitable. From and after the
redemption date (unless default is made by the Company in providing for the
payment of the redemption price plus accumulated and unpaid dividends, if
any) dividends will cease to accumulate on the shares of the Preferred Stock
called for redemption and all rights of the holders thereof (except the right
to receive the redemption price plus accumulated and unpaid dividends, if
any) will cease.
Unless otherwise specified in the applicable Prospectus Supplement, so long
as any dividends on shares of any series of the Preferred Stock or any other
series of preferred stock of the Company ranking on a parity as to dividends and
distribution of assets with such series of the Preferred Stock are in arrears,
no shares of any such series of the Preferred Stock or such other series of
preferred stock of the Company will be redeemed (whether by mandatory or
optional redemption) unless all such shares are simultaneously redeemed, and the
Company will not purchase or otherwise acquire any such shares; provided,
however, that the foregoing will not prevent the purchase or acquisition of such
shares pursuant to a purchase or exchange offer made on the same terms to
holders of all such shares outstanding.
CONVERSION AND EXCHANGE RIGHTS
The terms, if any, on which shares of Preferred Stock of any series may
be exchanged for or converted into shares of Common Stock, or another
series of Preferred Stock, or any other Security will be set forth in the
Prospectus Supplement relating thereto. Such terms may include provisions
for conversion, either mandatory, at the option of the holder, or at the
option of the Company, in which case the number of shares of Common
Stock, the shares of another series of Preferred Stock or the amount of any
other securities to be received by the holders of Preferred Stock would be
calculated as of a time and in the manner stated in the Prospectus
Supplement.
VOTING RIGHTS
Except as indicated in a Prospectus Supplement relating to a particular
series of the Preferred Stock, or except as required by applicable law, the
holders of the Preferred Stock will not be entitled to vote for any purpose.
OUTSTANDING PREFERRED STOCK
As of the date hereof, the Company has issued and outstanding 344,975
shares of $30.00 Convertible Exchangeable Preferred Stock which are fully
paid and nonassessable. The Company has also authorized up to 150,000
shares of Series A Junior Participating Preferred Stock in connection with
its preferred stock purchase rights plan. See "Description of Common
Stock-Rights Agreement."
The $30.00 Convertible Exchangeable Preferred Stock bears a
cumulative dividend of $30.00 per share per annum. It is senior to the
Common Stock and to any Series A Junior Participating Cumulative
Preferred Stock which may be issued, as to the payment of dividends and
distributions of assets on liquidation, dissolution and winding up of the
Company. Shares of the $30.00 Convertible Exchangeable Preferred Stock
provide for a liquidation preference of $500.00 per share, plus accrued and
unpaid dividends.
Holders of $30.00 Convertible Exchangeable Preferred Stock have no
general voting rights but have the right to vote in certain events. Whenever
dividends have not been paid on such shares or any other class or series of
stock on a parity with such shares both as to dividends and as to the
distribution of assets upon liquidation ("Parity Shares") in an aggregate
amount equal to six quarterly dividends (whether or not consecutive), the
number of members of the Company's Board of Directors will be increased
by two, and the holders of such shares, voting separately as a class with the
holders of such Parity Shares, will be entitled to elect such two additional
directors. Such voting rights will continue until all dividends in default have
been paid in full.
Each holder of $30.00 Convertible Exchangeable Preferred Stock has the
right, at the holder's option, to convert any or all such shares into Common
Stock at any time at a ratio (subject to adjustment) of 19.873 shares of
Common Stock for each share of $30.00 Convertible Exchangeable Preferred
Stock. The $30.00 Convertible Exchangeable Preferred Stock is
exchangeable at the option of the Company, in whole but not in part, on any
dividend payment date for 6% Convertible Subordinated Debentures due
2012 at the rate of $500 principal amount of debentures for each preferred
share. If exchanged, commencing the first March 15 following the date of
initial issuance of the debentures, the Company is required to make annual
payments into a sinking fund in the amount of 5% of the aggregate principal
amount of debentures issued to provide for the redemption of the
debentures.
The $30.00 Convertible Exchangeable Preferred Stock is redeemable for
cash at any time at the option of the Company, in whole or in part. The
redemption price declines from the current redemption price of $509 per share
to $500 per share on and after March 15, 1997, plus unpaid dividends.
The $30.00 Convertible Exchangeable Preferred Stock is held by The
First National Bank of Boston, as depositary, and 3,450,000 depositary
shares have been issued of which 3,449,750 are outstanding and are listed on
the New York Stock Exchange. Each depositary share represents one-tenth
of a preferred share, with the holder entitled, proportionately, to all the
DESCRIPTION OF DEPOSITARY SHARES
The following description sets forth certain general terms and provisions
of the Depositary Shares to which any Prospectus Supplement may relate.
The particular terms of the Depositary Shares offered by any Prospectus
Supplement and the extent, if any, to which such general provisions do not
apply to the Depositary Shares so offered will be described in the
Prospectus Supplement relating to such Depositary Shares.
Depositary Shares may be issued from time to time under a Deposit Agreement
(the "Deposit Agreement") between the Company and a depositary (the
"Depositary") to be identified in the applicable prospectus supplement. The
terms of the Depositary Shares will be stated in the Deposit Agreement. A copy
of the proposed form of Deposit Agreement has been filed as an exhibit to the
Registration Statement of which this Prospectus is a part.
GENERAL
The Company may, at its option, elect to offer fractional shares of
Preferred Stock rather than full shares of Preferred Stock. In the event
such option is exercised, the Company will issue to the public receipts for
Depositary Shares ("Depositary Receipts"), each of which will represent a
fraction (to be set forth in the Prospectus Supplement relating to a
particular series of the Preferred Stock) of a share of a particular series of
the Preferred Stock as described below.
The shares of any series of the Preferred Stock represented by
Depositary Shares will be deposited under the Deposit Agreement which will
be a separate agreement among the Company, a bank or trust company
selected by the Company to act as the Depositary and the holders from time to
time of the Depositary Receipts. Subject to the terms of the Deposit
Agreement, each owner of a Depositary Share will in general be entitled to
all the rights and preferences of the Preferred Stock represented thereby
(including dividend, voting, redemption and liquidation rights), in proportion
to the applicable fraction of a share of Preferred Stock represented by such
Depositary Share.
The Depositary Shares relating to any series of the Preferred Stock will
be evidenced by Depositary Receipts issued pursuant to the related Deposit
Agreement. Depositary Receipts will be distributed to those persons
purchasing such Depositary Shares in accordance with the terms of the
offering made by the related Prospectus Supplement.
Upon surrender of Depositary Receipts at the office of the Depositary
and upon payment of the charges provided in the Deposit Agreement and
subject to the terms thereof, a holder of Depositary Receipts is entitled to
have the Depositary deliver to such holder the whole shares of Preferred
Stock and any money or other property represented by the Depositary
Shares evidenced by the surrendered Depositary Receipts. Owners of
Depositary Shares will be entitled to receive only whole shares of Preferred
Stock. In no event will fractional shares of Preferred Stock be distributed by
the Depositary.
DIVIDENDS AND OTHER DISTRIBUTIONS
The Depositary will distribute all cash dividends or other cash
distributions received in respect of the Preferred Stock to the record holders
of Depositary Receipts relating to such Preferred Stock in proportion,
insofar as practicable, to the respective numbers of Depositary Shares
evidenced by such Depositary Receipts held by such holders on the relevant
record date. The Depositary will distribute only such amount, however, as
can be distributed without attributing to any holder of Depositary Receipts a
fraction of one cent, and any balance not so distributed will be added to and
treated as part of the next sum received by the Depositary for distribution
to record holders of Depositary Receipts then outstanding.
In the event of a distribution other than in cash, the Depositary will
distribute such amounts of the securities or property received by it as are,
as nearly as practicable, in proportion to the respective numbers of
Depositary Shares evidenced by the Depositary Receipts held by such
holders on the relevant record date, unless the Depositary determines that it
is not feasible to make such distribution, in which case the Depositary may,
with the approval of the Company, adopt such method as it deems equitable
and practicable for the purpose of effecting such distribution, including the
sale of such securities or property and distribution of the net proceeds from
such sale to such holders.
The Deposit Agreement will also contain provisions relating to the
manner in which any subscription or similar rights offered by the Company
to holders of the Preferred Stock shall be made available to holders of
Depositary Receipts.
The amount distributed in all of the foregoing cases will be reduced by
any amounts required to be withheld by the Company or the Depositary on
account of taxes and governmental charges.
REDEMPTION OF DEPOSITARY SHARES
If a series of the Preferred Stock represented by Depositary Shares is
subject to redemption, the Depositary Shares will be redeemed from the
proceeds received by the Depositary resulting from the redemption, in whole
or in part, of such series of the Preferred Stock held by the Depositary. The
Depositary will mail notice of redemption within a specified period prior to
the date fixed for redemption to the record holders of the Depositary
Receipts evidencing the Depositary Shares to be so redeemed at their
respective addresses appearing in the Depositary's books. The redemption
price per Depositary Share will be equal to the applicable fraction of the
redemption price per share payable with respect to such series of the
Preferred Stock plus all money and other property, if any, payable with
respect to such Depositary Share, including all amounts payable by the
Company in respect of any accumulated but unpaid dividends. Whenever the
Company redeems shares of Preferred Stock held by the Depositary, the
Depositary will redeem as of the same redemption date the number of
Depositary Shares representing the shares of Preferred Stock so redeemed.
If less than all the Depositary Shares are to be redeemed, the Depositary
Shares to be redeemed will be selected by lot or pro rata as may be
determined by the Depositary.
After the date fixed for redemption, the Depositary Shares so called for
redemption will no longer be deemed to be outstanding and all rights of the
holders of Depositary Receipts evidencing such Depositary Shares will
cease, except the right to receive the moneys payable upon such redemption
and any money or other property to which such holders were entitled upon
such redemption upon surrender to the Depositary of the Depositary
Receipts evidencing such Depositary Shares.
VOTING THE PREFERRED STOCK
Upon receipt of notice of any meeting at which the holders of the
Preferred Stock are entitled to vote, the Depositary will mail the
information contained in such notice of meeting to the record holders of the
Depositary Receipts evidencing the Depositary Shares relating to such
Preferred Stock. Each record holder of such Depositary Receipts on the
record date (which will be the same date as the record date for the
Preferred Stock) will be entitled to instruct the Depositary as to the
exercise of the voting rights pertaining to the number of shares of the
Preferred Stock represented by the Depositary Shares evidenced by such
holder's Depositary Receipts. The Depositary will endeavor, insofar as
practicable, to vote the number of shares of the Preferred Stock represented
by all Depositary Shares as to which any particular voting instructions are
received, and the Company will agree to take all action which may be
deemed necessary by the Depositary in order to enable the Depositary to do
so. The Depositary will abstain from voting shares of the Preferred Stock to
the extent it does not receive specific instructions from the holders of
Depositary Receipts evidencing Depositary Shares representing such
Preferred Stock.
AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT
The form of Depositary Receipt evidencing the Depositary Shares
relating to any series of Preferred Stock and any provision of the related
Deposit Agreement may at any time and from time to time be amended by
agreement between the Company and the Depositary. However, any
amendment which imposes or increases any fees, taxes or charges upon
holders of Depositary Shares or Depositary Receipts relating to any series of
Preferred Stock (other than taxes and other governmental charges, fees and
other expenses payable by such holders as stated in the relevant Prospectus
Supplement) or which otherwise prejudices any substantial existing right of
such holders will not take effect as to outstanding Depositary Shares until
the expiration of 90 days after notice of such amendment has been mailed to
the record holders of outstanding Depositary Shares.
Whenever directed by the Company, the Depositary will terminate the
Deposit Agreement by mailing notice of such termination to the owners of
all outstanding Depositary Shares at least 60 days prior to the date of
termination. The Depositary may likewise terminate the Deposit Agreement
at any time 60 days after the Depositary shall have delivered to the
Company a written notice of its election to resign and if a successor
depositary shall not theretofore have been appointed and accepted its
appointment. If any Depositary Shares remain outstanding after the date of
termination, the Depositary thereafter will discontinue the transfer of
Depositary Receipts, will suspend the distribution of dividends to the
owners thereof, and will not give any further notices (other than notice of
such termination) or perform any further acts under the Deposit Agreement
except that the Depositary will continue (i) to collect dividends on the
Preferred Shares and any other distributions with respect thereto and (ii) to
deliver Preferred Shares together with such dividends and distributions, and
the net proceeds of any sales of rights, preferences, privileges or other
property, without liability for interest, in exchange for Depositary Shares
surrendered. At any time after the expiration of two years from the date of
termination, the Depositary may sell the Preferred Shares then held by it,
at public or private sales, at such place or places and upon such terms as it
deems proper and may thereafter hold the net proceeds of any such sale,
together with any money and other property then held by it, without
liability for interest, for the pro rata benefit of the owners of Depositary
Shares which shall not theretofore have been surrendered. The Company
does not intend to terminate the Deposit Agreement or to permit the
resignation of the Depositary without appointing a successor depositary.
GENERAL
The Depositary will make available for inspection by holders of
Depositary Shares all reports and communications from the Company which
are delivered to the Depositary and made generally available to the holders
of Preferred Shares.
The Company will pay all transfer and other taxes and governmental
charges arising solely from the existence of the depositary arrangements.
The Company will pay charges of the Depositary in connection with the
initial deposit of the Preferred Stock and the initial issuance of the
Depositary Receipts evidencing the Depositary Shares, any redemption of
the Preferred Stock and any withdrawals of Preferred Stock by the holders
of Depositary Shares. Holders of Depositary Shares will pay transfer and
other taxes and governmental charges and such other charges as are
expressly provided in the Deposit Agreement to be for their accounts.
The Deposit Agreement will contain provisions relating to adjustments in
the fraction of a share of Preferred Stock represented by a Depositary Share
in the event of a change in stated value, split-up, combination or other
reclassification of the Preferred Stock or upon any recapitalization, merger
or sale of substantially all of the assets of the Company.
Neither the Depositary nor the Company will be liable if it is prevented
or delayed by law or any circumstance beyond its control in performing its
obligations under the Deposit Agreement. The obligations of the Company
and the Depositary under the Deposit Agreement are limited to performance
in good faith of their duties thereunder and they are not obligated to
prosecute or defend any legal proceeding in respect of any Depositary
Shares or Preferred Shares unless satisfactory indemnity is furnished. They
may rely upon advice of or information from counsel, accountants or other
persons believed to be competent and on documents believed to be genuine.
The Depositary and the Depositary's agents may own and deal in any
class of securities of the Company and its affiliates and in Depositary
Shares. The Depositary may also act as transfer agent or registrar of any of
the securities of the Company and its affiliates, may loan money to the
Company and its affiliates and may engage in any other business with or for
the Company and its affiliates.
The Depositary may at any time resign or be removed by the Company,
effective upon the acceptance by its successor of its appointment.
DESCRIPTION OF COMMON STOCK
The Company has authority to issue 250,000,000 shares of Common Stock, par
value $0.01 per share, and 1,000,000 shares of preferred stock, $0.10 par value
per share. As of March 30, 1994, the Company had 92,979,749 shares of Common
Stock and 344,975 shares of Preferred Stock outstanding, of which 171,085 shares
of Common Stock were owned by the Company as treasury stock. See "Description of
Preferred Stock." The holders of Common Stock are entitled to one vote per share
on all matters to be voted on by shareholders, including the election of
directors. Shareholders are not entitled to cumulative voting rights, and,
accordingly, the holders of a majority of the shares voting for the election of
directors can elect the entire Board if they choose to do so and, in that event,
the holders of the remaining shares will not be able to elect any person to the
Board of Directors.
The holders of Common Stock are entitled to receive such dividends, if
any, as may be declared from time to time by the Board of Directors, in its
discretion, from funds legally available therefor and subject to prior dividend
rights of holders of any shares of preferred stock which may be outstanding.
However, the terms of the Company's current credit agreement prohibit the
Company from paying cash dividends on its Common Stock. Upon liquidation
or dissolution of the Company subject to prior liquidation rights of the
holders of preferred stock, the holders of Common Stock are entitled to
receive on a pro rata basis the remaining assets of the Company available
for distribution. Holders of Common Stock have no preemptive or other
subscription rights, and there are no conversion rights or redemption or
sinking fund provisions with respect to such shares. All outstanding shares
of Common Stock are, and all shares being offered by this Prospectus will
be, fully paid and not liable to further calls or assessment by the Company.
RIGHTS AGREEMENT
The Company adopted a stockholder rights plan (the "Rights Plan") in
February 1990. The plan is intended to enhance long term stockholder value
and to protect stockholders from unfair or coercive takeover practices. In
accordance with this plan, the Company paid a dividend of one preferred
stock purchase right on each outstanding share of Common Stock pursuant
to a Rights Agreement (the "Rights" and the "Rights Agreement"). Each
Right entitles the registered holder to purchase from the Company one
one-thousandth of a share of Series A Junior Participating Preferred Stock,
$0.10 par value, for a price of $65.00, subject to adjustment. Although the
Rights are not intended to prevent a takeover of the Company at a full and
fair price, they may have certain anti-takeover effects. They may deter an
attempt to acquire the Company in a manner which seeks to deprive the
Company's stockholders of the full and fair value of their investment and
may deter attempts by significant stockholders to take advantage of the
Company and its stockholders through certain selfdealing transactions. The
Rights may cause substantial dilution to a person or group that acquires or
attempts to acquire the Company unless the Rights are redeemed by the
Board of Directors. Accordingly, the Rights should encourage any potential
acquiror to seek to negotiate with the Board of Directors of the Company.
Unless the approval is first obtained from the Board of Directors, the Rights
may deter transactions, including tender offers, which the majority of
stockholders may believe are beneficial to them. The Rights are redeemable
by the Company and expire on December 31, 2000. Under the Rights
Agreement, one Right will be issued with each share of Common Stock
issued by the Company.
A stockholder of the Company has notified the Company that it intends
to offer a proposal regarding the Rights Plan for consideration and approval
by the stockholders of the Company at its Annual Meeting of Stockholders
to be held on April 27, 1994. The proposal, if approved by the affirmative
vote of a majority of the shares present in person or represented by proxy
and entitled to vote on the matter, would request the Board of Directors of
the Company to redeem the Rights unless their issuance is approved by a
binding vote of the stockholders. The Board of Directors of the Company has
recommended that stockholders vote against the proposal. Even if approved,
the proposal would not, by its terms, require the Company to redeem the
Rights or cause them to be redeemed, but would request that the
Board of Directors redeem the Rights unless their issuance is approved by a
binding vote of the stockholders.
DESCRIPTION OF WARRANTS
The following description sets forth certain general terms and provisions
of the Warrants to which any Prospectus Supplement may relate. The
particular terms of the Warrants offered by any Prospectus Supplement
and the extent, if any, to which such general provisions do not apply
to the Warrants so offered will be described in the Prospectus
Supplement relating to such warrants.
Any Warrants offered pursuant to this Prospectus will be warrants to
purchase shares of Common Stock. The following statements with respect to
the Warrants are summaries of, and subject to, the detailed provisions of a
warrant agent agreement ("Warrant Agent Agreement") to be entered into
by the Company and a warrant agent to be selected at the time of issue (the
"Warrant Agent") which Warrant Agent Agreement may include or
incorporate by reference standard warrant provisions substantially in the
form of the Standard Common Stock Warrant Agent Provisions filed as an
exhibit to the Registration Statement.
GENERAL
The Warrants, evidenced by warrant certificates (the "Warrant
Certificates"), may be issued under the Warrant Agent Agreement
independently or together with any other Securities offered by any
Prospectus Supplement and may be attached to or separate from such other
Securities. If Warrants are offered, the related Prospectus Supplement will
describe the terms of the Warrants, including the following: (1) the offering
price, if any; (2) the number of shares of Common Stock purchasable upon
exercise of one Warrant and the initial price at which such shares may be
purchased upon exercise; (3) the date on which the right to exercise the
Warrants shall commence and the date on which such right shall expire; (4)
federal income tax consequences; (5) call provisions, if any; (6) the
antidilution provisions of the Warrants; and (7) any other terms of the
Warrants. The shares of Common Stock issuable upon exercise of the
Warrants will, when issued in accordance with the Warrant Agent
Agreement, be fully paid and nonassessable.
EXERCISE OF WARRANTS
Warrants may be exercised by surrendering to the Warrant Agent the
Warrant Certificate signed by the warrantholder, or its duly authorized
agent, indicating the warrantholder's election to exercise all or a portion of
the Warrants evidenced by the Warrant Certificate. Surrendered Warrant
Certificates shall be accompanied by payment of the aggregate exercise price
of the Warrants to be exercised, as set forth in the related Prospectus
Supplement, which payment may be made in the form of cash or a check
equal to the exercise price. A certificate or certificates evidencing duly
exercised Warrants will be delivered by the Warrant Agent to the transfer
agent for the Common Stock. Upon receipt thereof, the transfer agent shall
deliver or cause to be delivered to, or upon the written order of, the
exercising warrantholder, a certificate representing the number of shares of
Common Stock purchased. If fewer than all of the Warrants evidenced by
any Warrant Certificate are exercised, the Warrant Agent shall deliver to
the exercising warrantholder a new Warrant Certificate or Warrant
Certificates representing the unexercised Warrants.
ANTIDILUTION PROVISIONS
The exercise price payable and the number of shares of Common Stock
purchasable upon the exercise of each Warrant will be subject to adjustment
in certain events, including the issuance of a stock dividend to holders of
Common Stock or a stock split, reverse stock split, combination, subdivision
or reclassification of Common Stock. In lieu of adjusting the number of
shares of Common Stock purchasable upon exercise of each Warrant, the
Company may elect to adjust the number of Warrants. No adjustments in
the number of shares purchasable upon exercise of the Warrants will be
required until cumulative adjustments require an adjustment of at least 1%
thereof. The Company may, at its option, reduce the exercise price at any
time. No fractional shares will be issued upon exercise of Warrants, but the
Company will pay the cash value of any fractional shares otherwise issuable.
Notwithstanding the foregoing, in case of any consolidation, merger, or sale
or conveyance of the property of the Company as an entirety or
substantially as an entirety, the holder of each outstanding Warrant shall
have the right to the kind and amount of shares of stock and other securities
and property (including cash) receivable by a holder of the number of shares
of Common Stock into which such Warrants were exercisable immediately
prior thereto.
NO RIGHTS AS STOCKHOLDERS
Holders of Warrants will not be entitled, by virtue of being such holders,
to vote, to consent, to receive dividends, to receive notice as stockholders
with respect to any meeting of stockholders for the election of directors of
the Company or any other matter, or to exercise any rights whatsoever as
stockholders of the Company.
PLAN OF DISTRIBUTION
The Company may sell the Securities to one or more underwriters for
public offering and sale by them or may sell the Securities to investors
directly or through agents. Any such underwriter or agent involved in the
offer and sale of Securities will be named in the applicable Prospectus
Supplement. The Company has reserved the right to sell Securities directly
to investors on its own behalf in those jurisdictions where and in such
manner as it is authorized to do so.
Underwriters may offer and sell Securities at a fixed price or prices,
which may be changed, at market prices prevailing at the time of sale, at
prices related to such prevailing market prices or at negotiated prices. The
Company or underwriters also may offer and sell Securities in exchange for
one or more of its outstanding issues of the Securities or other securities.
The Company also may, from time to time, authorize dealers, acting as the
Company's agents, to offer and sell Securities upon the terms and conditions
as are set forth in the applicable Prospectus Supplement. In connection with
the sale of Securities, underwriters may receive compensation from the
Company in the form of underwriting discounts or commissions and may also
receive commissions from purchasers of the Securities for whom they may
act as agent. Underwriters may sell Securities to or through dealers, and
such dealers may receive compensation in the form of discounts, concessions
or commissions from the underwriters and/or commissions from the
purchasers for whom they may act as agent.
Any underwriting compensation paid by the Company to underwriters or
agents in connection with the offering of Securities, and any discounts,
concessions or commissions allowed by underwriters to participating dealers,
will be set forth in the applicable Prospectus Supplement. Dealers and
agents participating in the distribution of Securities may be deemed to be
underwriters, and any discounts and commissions received by them and any
profit realized by them on resale of the Securities may be deemed to be
underwriting discounts and commissions. Underwriters, dealers and agents
may be entitled, under agreements entered into with the Company, to
indemnification against and contribution toward certain civil liabilities
including liabilities under the Securities Act of 1933.
Securities may also be offered and sold, if so indicated in the Prospectus
Supplement, in connection with a remarketing upon their purchase, in
accordance with a redemption or repayment pursuant to their terms, or
otherwise, by one or more firms ("remarketing firms"), acting as principals
for their own accounts or as agents for the Company. Any remarketing firm
will be identified and the terms of its agreement, if any, with the Company
and its compensation will be described in the Prospectus Supplement.
Remarketing firms may be entitled under agreements which may be entered
into with the Company to indemnification against and contribution toward
certain liabilities, including liabilities under the Securities Act of 1933, and
may be customers of, engage in transactions with or perform services for the
Company in the ordinary course of business.
If so indicated in the Prospectus Supplement, the Company will
authorize dealers acting as the Company's agents to solicit offers by certain
institutions to purchase the Securities from the Company at the public
offering price set forth in the applicable Prospectus Supplement pursuant to
delayed delivery contracts ("Contracts") providing for payment and delivery
on the date or dates stated in such Prospectus Supplement. Each Contract
will be for an amount not less than, and the aggregate principal amount of
the Securities sold pursuant to Contracts shall not be less nor more than,
the respective amounts stated in the applicable Prospectus Supplement.
Institutions with whom Contracts, when authorized, may be made include
commercial and savings banks, insurance companies, pension funds,
investment companies, educational and charitable institutions, and other
institutions but will in all cases be subject to the approval of the Company.
Contracts will not be subject to any conditions except (i) the purchase by an
institution of the Securities covered by its Contract shall not at the time of
delivery be prohibited under the laws of any jurisdiction in the United
States to which such institution is subject, and (ii) if the Securities are
being sold to underwriters, the Company shall have sold to such underwriters
the total principal amount of such Securities less the principal amount
thereof covered by Contracts.
LEGAL MATTERS
Certain legal matters with respect to the Offered Securities will be
passed upon by Bronson, Bronson & McKinnon, San Francisco, California,
counsel for the Company, and for any agents or underwriters by Latham &
Watkins, San Francisco, California.
EXPERTS
The consolidated financial statements and related schedules of Advanced
Micro Devices, Inc. incorporated by reference in the Company's Annual
Report (Form 10-K) for the year ended December 26, 1993, have been
audited by Ernst & Young, independent auditors, as set forth in their report
thereon (which contains an explanatory paragraph with respect to the
lawsuits mentioned in Note 12 to the consolidated financial statements)
included therein and incorporated herein by reference. Such consolidated
financial statements are incorporated herein by reference in reliance upon
such report given upon the authority of such firm as experts in accounting
and auditing.
==============================================================================
NO DEALER, SALESPERSON OR OTHER INDIVIDUAL PERSON HAS BEEN AUTHORIZED TO
GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATIONS NOT CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS, AND, IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED BY THE COMPANY OR ANY AGENT, DEALER OR UNDERWRITER. THIS
PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO
BUY, TO ANY PERSON IN ANY JURISDICTION WHERE SUCH OFFER OR SOLICITATION WOULD
BE UNLAWFUL. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE
HEREUNDER SHALL CREATE ANY IMPLICATION THAT THE INFORMATION CONTAINED HEREIN
IS CORRECT AS OF ANY TIME SUBSEQUENT TO ITS DATE.
----------
TABLE OF CONTENTS
PAGE
-----
PROSPECTUS
Available Information ................. 2
Incorporation of Certain Documents
by Reference ........................ 2
The Company ........................... 3
Investment Considerations ............ 3
Use of Proceeds ....................... 4
Ratios of Earnings to Fixed Charges
and Earnings to Combined Fixed
Charges and Preferred Stock
Dividends .......................... 4
General Description of Securities .... 4
Description of Debt Securities ........ 5
Description of Preferred Stock ....... 11
Description of Depositary Shares .... 14
Description of Common Stock ......... 17
Description of Warrants ............... 18
Plan of Distribution .................. 19
Legal Matters ......................... 20
Experts ............................... 20
$ 400,000,000
ADVANCED MICRO DEVICES, INC.
DEBT SECURITIES
PREFERRED STOCK
DEPOSITARY SHARES
COMMON STOCK
WARRANTS TO PURCHASE COMMON STOCK
RRANTS TO PURCHASE COMMON STOCK
---------------------
PROSPECTUS
---------------------
, 1994
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Securities and Exchange Commission Registration Fee .... $137,931.03
*Rating Agency Fees...................................... 150,000.00
*Printing Expenses ...................................... 28,000.00
*Blue Sky Fees and Expenses (including legal fees) ...... 5,000.00
*Trustee Fees and Expenses ............................. 35,000.00
*Fees of Depositary and Transfer Agent .................. 4,000.00
*Legal Fees ............................................. 175,000.00
*Accountants' Fees ...................................... 80,000.00
*Miscellaneous........................................... 15,000.00
----------
Total ................................................. $629,931.03
- ----------
* Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Delaware Corporation Law provides for the indemnification of
directors and officers under certain conditions. The By-Laws of the
Company permit indemnification to the maximum extent permitted by
Delaware law. In addition, the Company is bound by agreements with
certain of its directors and officers which obligate the Company to indemnify
such persons in various circumstances. Insofar as indemnification for
liabilities arising under the Securities Act of 1933, as amended (the "Act"),
may be permitted to directors, officers and controlling persons of the
Company pursuant to the foregoing provisions, 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
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 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 Act
and will be governed by the final adjudication of such issue.
The Company has in effect a directors and officers liability insurance
policy indemnifying the directors and officers of the Company and the
directors and officers of the Company's subsidiaries within a specific limit for
certain liabilities incurred by them, including liabilities under the Act. The
Company pays the entire premium of this policy.
The Company's Certificate of Incorporation contains a provision which
eliminates the personal liability of directors of the Company for monetary
damages for certain breaches of fiduciary duty, as permitted by Section
102(b)(7) of the General Corporation Law of Delaware.
ITEM 16. EXHIBITS
EXHIBIT
NUMBER
- --------
4.1....Certificate of Incorporation, as amended, filed as Exhibit 3.1 to the
Company's Annual Report on Form 10-K for the fiscal period ended
December 27, 1987, is hereby incorporated herein by reference.
4.2....Certificate of Designations for Series A Junior Participating Preferred
Stock, filed as Exhibit 3.3 to the Company's Annual Report on Form 10-K
for the fiscal period ended December 31, 1989, is hereby incorporated
herein by reference.
4.3....By-Laws, as amended, filed as Exhibit 3.4 to the Company's Annual Report
on Form 10-K for the fiscal period ended December 27, 1987, are hereby
incorporated herein by reference.
4.4....Rights Agreement, dated as of February 7, 1990, between the Company and
Bank of America N.T. & S.A., filed as Exhibit 1 to the Company's
Registration Statement on Form 8-A filed on February 21, 1990, is hereby
incorporated herein by reference.
4.5....Rights Certificate relating to the Company's shareholder rights plan
(attached as Exhibit B to Exhibit 4.4 hereto).
4.6 ...Form of Indenture Agreement.
4.7 ...Form of Deposit Agreement.
4.8 ...Form of Depositary Receipt (attached as Exhibit A to Deposit Agreement
included as Exhibit 4.7 hereto).
4.9 ...Standard Common Stock Warrant Agent Provisions.
5 .....Opinion of Bronson, Bronson & McKinnon.
12.....Statement of Computation of Ratios of Earnings to Fixed Charges and
Earnings to Fixed Charges and Preferred Stock Dividends.
23.1...Consent of Bronson, Bronson & McKinnon (included in its opinion filed as
Exhibit 5 hereto).
23.2...Consent of Ernst & Young.
24.....Powers of Attorney (See page II-4).
25.....Statement of Eligibility and Qualification of Trustee under Trust
Indenture Act of 1939.
ITEM 17. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set
forth in the registration statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
provided, however, that the information required to be included in a
post-effective amendment by paragraphs (a)(1)(i) and (a)(1)(ii) above may be
contained in periodic reports filed by the registrant pursuant to Section 13
or 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(4) That, for the purpose of determining any liability under the
Securities Act of 1933, each filing of the Registrant's annual report
pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act
of 1934 (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Securities Exchange Act
of 1934) 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;
(5) That, for the purpose of determining any liability under the
Securities Act of 1933, the information omitted from the form of
prospectus filed as part of this Registration Statement in reliance upon
Rule 430A and contained in the form of prospectus filed by the registrant
pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act of
1933 shall be deemed to be part of this Registration Statement as of the
time it was declared effective;
(6) That, for the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that contains a
form of prospectus shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof; and
(7) 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 (the "Act") in accordance with the rules and regulations
prescribed by the Commission under Section 305(b)(2) of the Act.
(b) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant, pursuant to the provisions referred to above at Item 15, or
otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act of 1933 and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act of 1933 and will be
governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Sunnyvale and the State of California, on this 31st
day of March, 1994. ADVANCED MICRO DEVICES, INC.
By /s/ Marvin D. Burkett
------------------------------------
MARVIN D. BURKETT
Senior Vice President
Chief Administrative Officer and Secretary
Chief Financial Officer and Treasurer
POWER OF ATTORNEY
Know All Men By These Presents, that each person whose signature appears
below constitutes and appoints W.J. Sanders III and Marvin D. Burkett, and each
of them, his true and lawful attorneys-in-fact, and agents, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement and to file the same, with all
exhibits thereto and documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each
of them, full power and authority to do and to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them, or their or his substitute or substitutes, may lawfully
do so or cause to be done by virtue hereof.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED:
SIGNATURE TITLE DATE
--------- ----- ----
/s/ W.J. SANDERS III Chairman of the Board and Chief March 31, 1994
- ------------------------ Executive Officer (Principal
(W.J. SANDERS III) Executive Officer)
/s/ ANTHONY B. HOLBROOK Vice Chairman and Chief Technical March 31, 1994
- ------------------------ Officer
(ANTHONY B. HOLBROOK)
/s/ RICHARD PREVITE Director, President and Chief March 31, 1994
- ------------------------ Operating Officer
(RICHARD PREVITE)
/s/ CHARLES M. BLALACK Director March 31, 1994
- -------------------------
(CHARLES M. BLALACK)
/s/ R. GENE BROWN Director March 31, 1994
- -------------------------
(R. GENE BROWN)
/s/ JOE L. ROBY Director March 31, 1994
- -------------------------
(JOE L. ROBY)
/s/ MARVIN D. BURKETT Senior Vice President, Chief March 31, 1994
- ------------------------- Administrative Officer and
(MARVIN D. BURKETT) Secretary, Chief Financial
Officer and Treasurer
(Principal Financial Officer)
/s/ LARRY R. CARTER Vice President and Corporate March 31, 1994
- ------------------------- Controller (Principal Accounting
(LARRY R. CARTER) Officer)
CONSENT OF NOMINEE FOR DIRECTOR
The undersigned has been nominated for election as a Director of
Advanced Micro Devices, Inc. (the "Corporation") and is named as a
nominee for Director in the Proxy Statement of the Corporation with
respect to its Annual Meeting of stockholders to be held April 27, 1994. The
Proxy Statement is incorporated by reference in the Registration Statement
(Form S-3) and related Prospectus of the Corporation. The undersigned
consents to the reference to him as a nominee for Director contained in the
Registration Statement and the related Prospectus of the Corporation by
means of the incorporation by reference therein of the Proxy Statement.
/s/ Friedrich Baur
-------------------------------
FRIEDRICH BAUR
March 31, 1994
CONSENT OF NOMINEE FOR DIRECTOR
The undersigned has been nominated for election as a Director of
Advanced Micro Devices, Inc. (the "Corporation") and is named as a
nominee for Director in the Proxy Statement of the Corporation with
respect to its Annual Meeting of stockholders to be held April 27, 1994. The
Proxy Statement is incorporated by reference in the Registration Statement
(Form S-3) and related Prospectus of the Corporation. The undersigned
consents to the reference to him as a nominee for Director contained in the
Registration Statement and the related Prospectus of the Corporation by
means of the incorporation by reference therein of the Proxy Statement.
/s/ Leonard Silverman
----------------------------------
LEONARD SILVERMAN
March 31, 1994
INDEX TO EXHIBITS
Sequentially
Numbered
Number Exhibit Page
------ ---------- ----------
4.1....Certificate of Incorporation, as amended, filed as Exhibit 3.1 to the
Company's Annual Report on Form 10-K for the fiscal period ended
December 27, 1987, is hereby incorporated herein by reference.
4.2....Certificate of Designations for Series A Junior Participating Preferred
Stock, filed as Exhibit 3.3 to the Company's Annual Report on Form 10-K
for the fiscal period ended December 31, 1989, is hereby incorporated
herein by reference.
4.3....By-Laws, as amended, filed as Exhibit 3.4 to the Company's Annual
Report on Form 10-K for the fiscal period ended December 27, 1987, are
hereby incorporated herein by reference.
4.4....Rights Agreement, dated as of February 7, 1990, between the Company and
Bank of America N.T. & S.A., filed as Exhibit 1 to the Company's
Registration Statement on Form 8-A filed on February 21, 1990, is
hereby incorporated herein by reference.
4.5....Rights Certificate relating to the Company's shareholder rights plan
(attached as Exhibit B to Exhibit 4.4 hereto).
4.6....Form of Indenture Agreement.
4.7....Form of Deposit Agreement.
4.8....Form of Depositary Receipt (attached as Exhibit A to Deposit Agreement
included as Exhibit 4.7 hereto).
4.9 ...Standard Common Stock Warrant Agent Provisions.
5......Opinion of Bronson, Bronson & McKinnon.
12......Statement of Computation of Ratios of Earnings to Fixed Charges and
Earnings to Fixed Charges and Preferred Stock Dividends.
23.1 ...Consent of Bronson, Bronson & McKinnon (included in its opinion filed
as Exhibit 5 hereto).
23.2....Consent of Ernst & Young.
24......Powers of Attorney (See page II-4).
25......Statement of Eligibility and Qualification of Trustee under Trust
Indenture Act of 1939.