EXHIBIT 1.1
EXECUTION COPY
$450,000,000
ADVANCED MICRO DEVICES, INC.
6% Convertible Subordinated Notes due 2005
UNDERWRITING AGREEMENT
----------------------
May 5, 1998
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
XXXXX XXXXXX INC.
c/x Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Advanced Micro Devices, Inc., a Delaware corporation (the "COMPANY"),
proposes to issue and sell $450,000,000 principal amount of its 6% Convertible
Subordinated Notes due 2005 (the "FIRM SECURITIES"), convertible into shares of
the Company's common stock, par value $.01 per share (the "COMMON STOCK"), to
the several underwriters named in Schedule I hereto (the "UNDERWRITERS"). The
Company also proposes to issue and sell to the several Underwriters not more
than $67,500,000 in aggregate principal amount of 6% Convertible Subordinated
Notes due 2005 (the "ADDITIONAL SECURITIES"), if requested by the Underwriters
as provided in Section 2 hereof. The Firm Securities and the Additional
Securities are herein collectively called the Securities. The Securities are to
be issued pursuant to the provisions of an Indenture to be dated as of May 8,
1998 (the
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"INDENTURE") between the Company and The Bank of New York, as Trustee (the
"TRUSTEE"). The terms of the Securities will be set forth in the Indenture as
supplemented by an Officers' Certificate, dated May 8, 1998 (the "OFFICERS'
CERTIFICATE").
Section 1. Registration Statement and Prospectus. Commission (the
"COMMISSION") in accordance with the provisions of the Securities Act of 1933,
as amended, and the rules and regulations of the Commission thereunder
(collectively, the "ACT"), a registration statement on Form S-3 (File No. 333-
47243), including a prospectus relating to the Securities, which may be amended
or supplemented, relating to the registration of debt and other securities under
the Act and the offering thereof from time to time in accordance with Rule 415
under the Act. The registration statement, as amended at the time it became
effective, including the information (if any) deemed to be part of the
registration statement at the time of effectiveness pursuant to Rule 430A under
the Act, is hereinafter referred to as the "REGISTRATION STATEMENT"; and the
prospectus and the prospectus supplement in the form first used to confirm sales
of Securities (including (a) the information contained in any prospectus
supplement relating to the Securities or deemed to be part of the Registration
Statement at effectiveness pursuant to Rule 430A or Rule 434 of the Act, and (b)
any documents or information incorporated or deemed to be incorporated by
reference into such prospectus) is hereinafter referred to as the "PROSPECTUS."
The terms "supplement" and "amendment" or "amend" as used in this Agreement with
respect to the Registration Statement or the Prospectus shall include all
documents subsequently filed by the Company with the Commission pursuant to the
Securities Exchange Act of 1934, as amended, and the rules and regulations of
the Commission thereunder (collectively, the "EXCHANGE ACT") that are deemed to
be incorporated by reference in the Prospectus.
Section 2. Agreements to Sell and Purchase. On the basis of the
representations and warranties contained in this Agreement, and subject to its
terms and conditions, the Company agrees to issue and sell, and each Underwriter
agrees, severally and not jointly, to purchase from the Company the principal
amount of Firm Securities set forth opposite the name of such Underwriter in
Schedule I hereto at 97.50% of the principal amount thereof (the "PURCHASE
PRICE"), plus accrued interest thereon, if any, from May 8, 1998 to the date of
payment and delivery.
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, (i) the Company agrees to
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issue and sell up to all of the Additional Securities and (ii) the Underwriters
shall have the right to purchase, severally and not jointly, up to all of the
Additional Securities from the Company at the Purchase Price. Additional
Securities may be purchased (in integral multiples of $1,000), as provided for
in Section 4 hereof, solely for the purpose of covering over-allotments made in
connection with the offering of the Firm Securities. The Underwriters may
exercise their right to purchase Additional Securities in whole or in part from
time to time by giving written notice thereof to the Company within 30 days
after the date of this Agreement; provided that the Underwriters may exercise
such right no more than twice within such 30-day period. Such notice shall
specify the aggregate amount of Additional Securities to be purchased pursuant
to such exercise and the date for payment and delivery thereof. The date
specified in any such notice shall be a business day (i) no earlier than the
Closing Date (as hereinafter defined), (ii) no later than ten business days
after such notice has been given and (iii) no earlier than two business days
after such notice has been given. If any Additional Securities are to be
purchased, each Underwriter, severally and not jointly, agrees to purchase the
number of Additional Securities which bears the same proportion to the total
amount of Additional Securities to be purchased as the amount of Firm Securities
set forth opposite the name of such Underwriter in Schedule I bears to the total
amount of Firm Securities.
The Company hereby agrees not to (i) offer, pledge, sell, contract to sell,
sell any option or contract to purchase, purchase any option or contract to
sell, grant any option, right or warrant to purchase, or otherwise transfer or
dispose of, directly or indirectly, any shares of Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock or (ii) enter
into any swap or other arrangement that transfers all or a portion of the
economic consequences associated with the ownership of any Common Stock
(regardless of whether any of the transactions described in clause (i) or (ii)
is to be settled by the delivery of Common Stock, or such other securities, in
cash or otherwise), except to the Underwriters pursuant to this Agreement, for a
period of 60 days after the date of the Prospectus without the prior written
consent of Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation. Notwithstanding
the foregoing, during such period (i) the Company may grant stock options
pursuant to the Company's existing stock option plans, (ii) the Company may
issue shares of Common Stock upon the exercise of an option or warrant or the
conversion of a security outstanding on the date hereof or issued pursuant to
clause (i) above and (iii) the Company may issue shares of Common Stock pursuant
to its Employee Stock Purchase Plan. The Company also agrees not to file any
registration statement with respect to any shares of Common Stock or any
securities convertible into or exercisable or
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exchangeable for Common Stock for a period of 60 days after the date of the
Prospectus without the prior written consent of Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation (other than a Registration Statement on Form S-8 with
respect to shares of Common Stock issuable under the Company's 1996 Stock
Incentive Plan). The Company shall, prior to or concurrently with the execution
of this Agreement, deliver an agreement executed by each of the directors and
executive officers of the Company to the effect that such person will not,
during the period commencing on the date such person signs such agreement and
ending 60 days after the date of the Prospectus (but in no event later than July
10, 1998), without the prior written consent of Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation, engage in any of the transactions described in the first
sentence of this paragraph.
Section 3. Terms of Public Offering. The Company is advised by you that the
Underwriters propose (i) to make a public offering of their respective portions
of the Securities as soon after the execution and delivery of this Agreement as
in your judgment is advisable and (ii) initially to offer the Securities upon
the terms set forth in the Prospectus.
Section 4. Delivery and Payment. A global certificate for the Securities
(the "GLOBAL CERTIFICATE") shall be registered in the name of Cede & Co.,
nominee of The Depository Trust Company ("DTC"). The Global Certificate shall be
made available to you for inspection not later than 9:30 A.M., New York City
time, on the business day prior to the Closing Date or, if applicable, each
Option Closing Date. The Global Certificate, or other form agreed to in the
alternative, evidencing the Securities, shall be delivered to the Trustee on
your behalf on the Closing Date or, if applicable, each Option Closing Date,
with any transfer taxes thereon duly paid by the Company, for the respective
accounts of the several Underwriters, against payment to the Company of the
Purchase Price therefore by wire transfer of Federal or other funds immediately
available in New York City. The time and date of delivery and payment for the
Securities shall be 9:00 A.M., New York City time, on May 8, 1998 or such other
time on the same or such other date as Xxxxxxxxx, Lufkin & Xxxxxxxx Securities
Corporation and the Company shall agree in writing. The time and date of such
delivery and payment are hereinafter referred to as the "CLOSING DATE". The time
and date of delivery and payment for the Additional Securities shall be 9:00
A.M., New York City time, on such date or dates (each, an "OPTION CLOSING
DATE"), which may be the same as the Closing Date, but shall in no event be
earlier than the Closing Date, as shall be specified in the applicable exercise
notice given by you pursuant to Section 2. Any such Option Closing Date and the
location of delivery of and the form of payment for such Additional Securities
may be varied by agreement
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between you and the Company.
The documents to be delivered on the Closing Date on behalf of the parties
hereto pursuant to Section 8 of this Agreement shall be delivered at the offices
of Xxxxxx & Xxxxxxx, 00 Xxxxxx Xxxx, Xxxxx Xxxx, Xxxxxxxxxx 00000.
Section 5. Agreements of the Company. The Company agrees with you:
(a) To advise you promptly and, if requested by you, to confirm such advice
in writing, (i) of any request by the Commission for amendments to the
Registration Statement or amendments or supplements to the Prospectus or for
additional information, (ii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of the suspension
of qualification of the Securities for offering or sale in any jurisdiction, or
the initiation of any proceeding for such purposes, (iii) when any post-
effective amendment to the Registration Statement becomes effective, and (iv) of
the happening of any event during the period referred to in Section 5(d) below
which makes any statement of a material fact made in the Registration Statement
or the Prospectus untrue or which requires any additions to or changes in the
Registration Statement or the Prospectus in order to make the statements therein
not misleading. If at any time the Commission shall issue any stop order
suspending the effectiveness of the Registration Statement, the Company will use
its commercially reasonable efforts to obtain the withdrawal or lifting of such
order at the earliest possible time.
(b) To furnish to you three copies of the executed Registration Statement
as first filed with the Commission and of each amendment to it, including all
exhibits and documents incorporated therein by reference, and to furnish to you
and each Underwriter designated by you such number of conformed copies of the
Registration Statement as so filed and of each amendment to it, without exhibits
but including documents incorporated therein by reference, as you may reasonably
request.
(c) To prepare the Prospectus, the form and substance of which shall be
satisfactory to you, and to file the Prospectus in such form with the Commission
within the applicable period specified in Rule 424(b) under the Act; during the
period specified in Section 5(d) below, not to file any further amendment to the
Registration Statement and not to make any amendment or supplement to the
Prospectus of which you shall not previously have been advised or to which you
shall reasonably object after being so advised; and, during such period, to
prepare and file with the Commission, promptly upon your reasonable request, any
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amendment to the Registration Statement or amendment or supplement to the
Prospectus which may be necessary or advisable in connection with the
distribution of the Securities by you, and to use its commercially reasonable
efforts to cause any such amendment to the Registration Statement to become
promptly effective.
(d) To furnish to each of you and each dealer as many copies of the
Prospectus (and of any amendment or supplement to the Prospectus) as you or any
such dealer may reasonably request for such period as in the opinion of counsel
for the Underwriters a prospectus is required by law to be delivered in
connection with sales by you or a dealer.
(e) If during the period specified in Section 5(d), any event shall occur
or condition shall exist as a result of which, in the opinion of counsel for the
Underwriters, it becomes necessary to amend or supplement the Prospectus in
order to make the statements therein, in the light of the circumstances when the
Prospectus is delivered to a purchaser, not misleading, or if, in the opinion of
counsel for the Underwriters, it is necessary to amend or supplement the
Prospectus to comply with applicable law, forthwith to prepare and file with the
Commission an appropriate amendment or supplement to the Prospectus so that the
statements in the Prospectus, as so amended or supplemented, will not in the
light of the circumstances when it is so delivered, be misleading, or so that
the Prospectus will comply with applicable law, and to furnish to each
Underwriter and to any dealer as many copies thereof as such Underwriter or
dealer may reasonably request.
(f) Prior to any public offering of the Securities, to cooperate with
you and counsel for the Underwriters in connection with the registration or
qualification of the Securities for offer and sale by the several Underwriters
and by dealers under the state securities or Blue Sky laws of such jurisdictions
as you may request, to continue such registration or qualification in effect so
long as required for distribution of the Securities and to file such consents to
service of process or other documents as may be necessary in order to effect
such registration or qualification; provided, however, that the Company shall
not be required in connection therewith to qualify as a foreign corporation in
any jurisdiction in which it is not now so qualified or to take any action that
would subject it to general consent to service of process or taxation other than
as to matters and transactions relating to the Prospectus, the Registration
Statement, any preliminary prospectus or the offering or sale of the Securities,
in any jurisdiction in which it is not now so subject.
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(g) To mail and make generally available to its security holders as soon
as reasonably practicable an earnings statement covering a period of at least
twelve months after the date of the Prospectus (but in no event commencing later
than 90 days after such date) that shall satisfy the provisions of Section 11(a)
of the Act, and to advise you in writing when such statement has been so made
available.
(h) So long as the Securities are outstanding, (i) to mail and make
generally available as soon as reasonably practicable after the end of each
fiscal year to the record holders of the Securities a financial report of the
Company and its subsidiaries on a consolidated basis (and a similar financial
report of all unconsolidated subsidiaries, if any), all such financial reports
to include a consolidated balance sheet, a consolidated statement of operations,
a consolidated statement of cash flows and a consolidated statement of
shareholders' equity as of the end of and for such fiscal year, together with
comparable information as of the end of and for the preceding year, certified by
independent public accountants and (ii) to mail and make generally available as
soon as practicable after the end of each quarterly period (except for the last
quarterly period of each fiscal year) to such holders, a consolidated balance
sheet, a consolidated statement of operations and a consolidated statement of
cash flows (and similar financial reports of all unconsolidated subsidiaries, if
any) as of the end of and for such period, and for the period from the beginning
of such year to the close of such quarterly period, together with comparable
information for the corresponding periods of the preceding year.
(i) So long as the Securities are outstanding, to furnish to you as soon as
available copies of all reports or other communications furnished to its
security holders or furnished to or filed with the Commission or any national
securities exchange on which any class of securities of the Company is listed
and such other publicly available information concerning the Company and its
subsidiaries as you may reasonably request.
(j) To pay or cause to be paid all expenses incident to the performance of
its obligations under this Agreement, including: (i) the fees, disbursements and
expenses of the Company's counsel and the Company's accountants in connection
with the registration and delivery of the Securities under the Act and all other
fees and expenses in connection with the preparation, printing, filing and
distribution of the Registration Statement (including financial statements and
exhibits), any preliminary prospectus, the Prospectus and all amendments and
supplements to
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any of the foregoing, including the mailing and delivering of copies thereof to
the Underwriters and dealers in the quantities specified herein, (ii) all costs
and expenses related to the transfer and delivery of the Securities to the
Underwriters, including any transfer or other taxes payable thereon, (iii) all
costs of printing or producing this Agreement and any other agreements or
documents in connection with the offering, purchase, sale or delivery of the
Securities, (iv) all expenses in connection with the registration or
qualification of the Securities for offer and sale under the securities or Blue
Sky laws of the several states and all costs of printing or producing any
Preliminary and Supplemental Blue Sky Memoranda in connection therewith
(including the filing fees and fees and disbursements of counsel for the
Underwriters in connection with such registration or qualification and memoranda
relating thereto), (v) all costs and expenses incident to the listing of the
shares of Common Stock issuable upon conversion of the Securities on the New
York Stock Exchange (the "NYSE"), (vi) the cost of printing certificates
representing the Securities, (vii) the costs and charges of any transfer agent,
registrar and/or depositary (including DTC), (viii) any fees charged by rating
agencies for the rating of the Securities, (ix) the fees and expenses of the
Trustee and the Trustee's counsel in connection with the Indenture and the
Securities and (x) all other costs and expenses incident to the performance of
the obligations of the Company hereunder for which provision is not otherwise
made in this Section.
(k) To use its best efforts to list, subject to notice of issuance, the
shares of Common Stock issuable upon conversion of the Securities on the NYSE
and to maintain the listing of such shares of Common Stock on the NYSE for so
long as the Securities are outstanding.
(l) During the period beginning on the date hereof and continuing to and
including the Closing Date, not to offer, sell, contract to sell or otherwise
transfer or dispose of any debt securities of the Company or any warrants,
rights or options to purchase or otherwise acquire debt securities of the
Company substantially similar to the Securities (other than (i) the Securities
and (ii) commercial paper issued in the ordinary course of business), without
the prior written consent of Xxxxxxxxx, Lufkin & Xxxxxxxx Securities
Corporation.
(m) Not to voluntarily claim, and to actively resist any attempts to claim,
the benefit of any usury laws against the holders of the Securities.
(n) To use its commercially reasonable efforts to do and perform all things
required or necessary to be done and performed under this Agreement by the
Company prior to the Closing Date and to satisfy all conditions precedent to
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the delivery of the Securities.
Section 6. Representations and Warranties of the Company. The Company
represents and warrants to each Underwriter that:
(a) The Registration Statement has become effective; and no stop order
suspending the effectiveness of the Registration Statement is in effect, and no
proceedings for such purpose are pending before or threatened by the Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied or will
comply when so filed in all material respects with the Exchange Act, (ii) the
Registration Statement, when it became effective, did not contain and, as
amended, if applicable, will not contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, (ii) the Registration Statement and
the Prospectus comply and, as amended or supplemented, if applicable, will
comply in all material respects with the Act, and (iv) the Prospectus does not
contain and, as amended or supplemented, if applicable, will not contain any
untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading, except that the representations and warranties
set forth in this paragraph do not apply to statements or omissions in the
Registration Statement or the Prospectus based upon information relating to any
Underwriter furnished to the Company in writing by such Underwriter through you
expressly for use therein.
(c) Each preliminary prospectus or preliminary prospectus supplement filed
as part of the registration statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the Act, complied when so
filed in all material respects with the Act, and did not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that the
representations and warranties set forth in this paragraph do not apply to
statements or omissions in any preliminary prospectus or preliminary prospectus
supplement based upon information relating to any Underwriter furnished to the
Company in writing by such Underwriter through you expressly for use therein.
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(d) The Company meets the requirements for the use of Form S-3 under the
Act.
(e) The Company and each of its subsidiaries has been duly incorporated, is
validly existing as a corporation in good standing under the laws of its
jurisdiction of incorporation and has the corporate power and authority to carry
on its business as described in the Prospectus and to own, lease and operate its
properties, and each is duly qualified and is in good standing as a foreign
corporation authorized to do business in each jurisdiction in which the nature
of its business or its ownership or leasing of property requires such
qualification, except where the failure to be so qualified would not have a
material adverse effect on the Company and its subsidiaries, taken as a whole.
(f) The Company has all necessary corporate power and authority to execute
and deliver this Agreement, the Securities and the Indenture and to perform its
obligations under this Agreement, the Securities and the Indenture, and to
authorize, issue, sell and deliver the Securities as contemplated by this
Agreement.
(g) The Company has an authorized capitalization as set forth in the
Prospectus, and all the outstanding shares of capital stock of the Company have
been duly authorized and validly issued and are fully paid, non-assessable and
not subject to any preemptive or similar rights; and the shares of Common Stock
issuable upon conversion of the Securities have been duly authorized and, when
issued and delivered upon conversion of the Securities in accordance with their
terms, will be validly issued, fully paid and non-assessable, and the issuance
of such shares of Common Stock will not be subject to any preemptive or similar
rights. Upon payment of the Purchase Price and delivery of the Global
Certificate representing the Securities, each of the Underwriters will receive
the Securities free and clear of all liens, security interests or encumbrances.
(h) All of the outstanding shares of capital stock of each of the Company's
subsidiaries have been duly authorized and validly issued and are fully paid and
non-assessable, and are owned by the Company, directly or indirectly through one
or more subsidiaries, free and clear of any security interest, claim, lien,
encumbrance or adverse interest of any nature (each, a "LIEN").
(i) The Indenture has been duly qualified under the Trust Indenture Act of
1939, as amended (the "TRUST INDENTURE ACT"), and has been duly authorized,
executed and delivered by the Company and is a valid and binding
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agreement of the Company, enforceable in accordance with its terms except as (A)
the enforceability thereof may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally and (B) rights of acceleration and
the availability of equitable remedies may be limited by equitable principles of
general applicability.
(j) The Securities have been duly authorized and, on the Closing Date, will
have been validly executed and delivered by the Company. When the Securities
have been executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters in accordance with
the terms of this Agreement, the Securities will be entitled to the benefits of
the Indenture and will be valid and binding obligations of the Company,
enforceable in accordance with their terms except as (A) the enforceability
thereof may be limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (B) rights of acceleration and the availability
of equitable remedies may be limited by equitable principles of general
applicability.
(k) This Agreement has been duly authorized, executed and delivered by the
Company and is a valid and binding agreement of the Company enforceable in
accordance with its terms (except as rights to indemnity and contribution
hereunder may be limited by applicable law).
(l) The Securities conform as to legal matters to the description thereof
contained in the Prospectus.
(m) Neither the Company nor any of its subsidiaries is in violation of its
respective charter or by-laws or in default in the performance of any
obligation, agreement, covenant or condition contained in any indenture, loan
agreement, mortgage, lease or other agreement or instrument that is material to
the Company and its subsidiaries, taken as a whole, to which the Company or any
of its subsidiaries is a party or by which the Company or any of its
subsidiaries or their respective property is bound.
(n) The execution, delivery and performance of this Agreement, the
Indenture and the Securities by the Company, the compliance by the Company with
all the provisions hereof and thereof and the consummation of the transactions
contemplated hereby and thereby will not (i) require any consent, approval,
authorization or other order of, or qualification with, any court or
governmental body or agency (except such as may be required under the securities
or Blue Sky laws of the various states), (ii) conflict with or constitute a
breach of any of the terms or provisions of, or a default under, the charter or
by-laws of the
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Company or any of its subsidiaries or any indenture, loan agreement, mortgage,
lease or other agreement or instrument that is material to the Company and its
subsidiaries, taken as a whole, to which the Company or any of its subsidiaries
is a party or by which the Company or any of its subsidiaries or their
respective property is bound, (iii) violate or conflict with any applicable law
or any rule, regulation, judgment, order or decree of any court or any
governmental body or agency having jurisdiction over the Company, any of its
subsidiaries or their respective property, (iv) result in the imposition or
creation of (or the obligation to create or impose) a Lien under any agreement
or instrument to which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries or their respective property is
bound or (v) result in the suspension, termination or revocation of any
Authorization (as defined below) of the Company or any of its subsidiaries or
any other impairment of the rights of the holder of any such Authorization.
(o) There are no legal or governmental proceedings pending or, to the best
of the Company's knowledge, threatened to which the Company or any of its
subsidiaries is or could be a party or to which any of their respective property
is or could be subject that are required to be described in the Registration
Statement or the Prospectus and are not so described; nor are there any
statutes, regulations, contracts or other documents that are required to be
described in the Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement that are not so described or filed as
required.
(p) Except as set forth in the Prospectus, neither the Company nor any of
its subsidiaries has violated any foreign, federal, state or local law or
regulation relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("ENVIRONMENTAL LAWS"), any provisions of the Employee Retirement
Income Security Act of 1974, as amended, or any provisions of the Foreign
Corrupt Practices Act or the rules and regulations promulgated thereunder,
except for such violations which, singly or in the aggregate, would not have a
material adverse effect on the business, prospects, financial condition or
results of operation of the Company and its subsidiaries, taken as a whole.
(q) Each of the Company and its subsidiaries has such permits, licenses,
consents, exemptions, franchises, authorizations and other approvals (each, an
"AUTHORIZATION") of, and has made all filings with and notices to, all
governmental or regulatory authorities and self-regulatory organizations and all
courts and other tribunals, including, without limitation, under any applicable
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Environmental Laws, as are necessary to own, lease, license and operate its
respective properties and to conduct its business, except where the failure to
have any such Authorization or to make any such filing or notice would not,
singly or in the aggregate, have a material adverse effect on the Company and
its subsidiaries, taken as a whole. Each such Authorization is valid and in full
force and effect and each of the Company and its subsidiaries is in compliance
with all the terms and conditions thereof and with the rules and regulations of
the authorities and governing bodies having jurisdiction with respect thereto;
and no event has occurred (including, without limitation, the receipt of any
notice from any authority or governing body) which allows or, after notice or
lapse of time or both, would allow, revocation, suspension or termination of any
such Authorization or results or, after notice or lapse of time or both, would
result in any other impairment of the rights of the holder of any such
Authorization; and such Authorizations contain no restrictions that are
burdensome to the Company or any of its subsidiaries; except where such failure
to be valid and in full force and effect or to be in compliance, the occurrence
of any such event or the presence of any such restriction would not, singly or
in the aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(r) In the ordinary course of its business, the Company conducts a periodic
review of the effect of Environmental Laws on the business, operations and
properties of the Company and its subsidiaries, in the course of which it
identifies and evaluates associated costs and liabilities (including, without
limitation, any capital or operating expenditures required for clean-up, closure
of properties or compliance with Environmental Laws or any permit, license or
approval, any related constraints on operating activities and any potential
liabilities to third parties). On the basis of such review, the Company has
reasonably concluded that such associated costs and liabilities would not,
singly or in the aggregate, have a material adverse effect on the Company and
its subsidiaries, taken as a whole.
(s) The Company and each of its subsidiaries maintains insurance covering
its properties, operations, personnel and businesses. Such insurance insures
against such losses and risks as are adequate in accordance with customary
industry practice to protect the Company and each of its subsidiaries and its
businesses. Neither the Company nor any of its subsidiaries has received notice
from any insurer or agent of such insurer that substantial capital improvements
or other expenditures will have to be made in order to continue such insurance.
All such insurance is outstanding and duly in force on the date hereof and will
be outstanding and duly in force on the Closing Date.
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(t) Ernst & Young LLP are independent public accountants with respect to
the Company and its subsidiaries as required by the Act.
(u) The consolidated financial statements included or incorporated by
reference in the Registration Statement and the Prospectus (and any amendment or
supplement thereto), together with related schedules and notes, present fairly
the consolidated financial position, results of operations and changes in
financial position of the Company and its subsidiaries on the basis stated
therein at the respective dates or for the respective periods to which they
apply; such statements and related schedules and notes have been prepared in
accordance with generally accepted accounting principles consistently applied
throughout the periods involved, except as disclosed therein; the supporting
schedules, if any, included or incorporated by reference in the Registration
Statement present fairly in accordance with generally accepted accounting
principles the information required to be stated therein; and the other
financial and statistical information and data set forth or incorporated by
reference in the Registration Statement and the Prospectus (and any amendment or
supplement thereto) are, in all material respects, accurately presented and
prepared on a basis consistent with such financial statements and the books and
records of the Company.
(v) The Company is not and, after giving effect to the offering and sale of
the Securities and the application of the proceeds thereof as described in the
Prospectus, will not be, an "investment company" as such term is defined in the
Investment Company Act of 1940, as amended.
(w) There are no contracts, agreements or understandings between the
Company and any person granting such person the right to require the Company to
file a registration statement under the Act with respect to any securities of
the Company or to require the Company to include such securities with the
Securities registered pursuant to the Registration Statement.
(x) Since the date of the Prospectus, no "nationally recognized statistical
rating organization" as such term is defined for purposes of Rule 436(g)(2)
under the Act has indicated to the Company that it is considering (i) the
downgrading, suspension or withdrawal of, or any review for a possible change
that does not indicate the direction of the possible change in, any rating
assigned to the Company or any securities of the Company or (ii) any change in
the outlook for any rating of the Company or any securities of the Company.
14
(y) The Company and its subsidiaries own or possess, or can acquire on
reasonable terms, all patents, patent rights, licenses, inventions, copyrights,
know-how (including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures), trademarks,
service marks and trade names ("INTELLECTUAL PROPERTY") currently employed by
them in connection with the business now operated by them except where the
failure to own or possess or otherwise be able to acquire such intellectual
property would not, singly or in the aggregate, have a material adverse effect
on the Company and its subsidiaries, taken as a whole; and except as set forth
in the Prospectus, neither the Company nor any of its subsidiaries has received
any notice of infringement of or conflict with asserted rights of others with
respect to any of such intellectual property which, singly or in the aggregate,
if the subject of an unfavorable decision, ruling or finding, would have a
material adverse effect on the Company and its subsidiaries, taken as a whole.
(z) Since the respective dates as of which information is given in the
Prospectus other than as set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this Agreement), (i)
there has not occurred any material adverse change or any development involving
a prospective material adverse change in the condition, financial or otherwise,
or the earnings, business, management or operations of the Company and its
subsidiaries, taken as a whole, (ii) there has not been any material adverse
change or any development involving a prospective material adverse change in the
capital stock or in the long-term debt of the Company and its subsidiaries,
taken as a whole and (iii) neither the Company nor any of its subsidiaries has
incurred any liability or obligation, direct or contingent, which is material to
the Company and its subsidiaries, taken as a whole, other than as reflected in
the Registration Statement and the Prospectus.
(aa) There are no outstanding subscriptions, rights, warrants, options,
calls, convertible securities, commitments of sale or liens related to or
entitling any person to purchase or otherwise to acquire any shares of the
capital stock of, or other ownership interest in, the Company or any subsidiary
thereof except as otherwise disclosed in the Registration Statement.
(ab) Except as disclosed in the Prospectus, there are no business
relationships or related party transactions required to be disclosed therein by
Item 404 of Regulation S-K of the Commission.
15
(ac) There is (i) no significant unfair labor practice complaint pending
against the Company or any of its subsidiaries or, to the best knowledge of the
Company, threatened against any of them, before the National Labor Relations
Board or any state or local labor relations board, and no significant grievance
or more significant arbitration proceeding arising out of or under any
collective bargaining agreement is so pending against the Company or any of its
subsidiaries or, to the best knowledge of the Company, threatened against any of
them, and (ii) no significant strike, labor dispute, slowdown or stoppage
pending against the Company or any of its subsidiaries or, to the best knowledge
of the Company, threatened against it or any of its subsidiaries except for such
actions specified in clause (i) or (ii) above, which, singly or in the aggregate
could not reasonably be expected to have a material adverse effect on the
Company and its subsidiaries, taken as a whole.
(ad) The Company and each of its subsidiaries maintains a system of
internal accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or specific
authorizations, (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability, (iii) access to
assets is permitted only in accordance with management's general or specific
authorization, and (iv) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(ae) All material tax returns required to be filed by the Company and each
of its subsidiaries in any jurisdiction have been filed, other than those
filings being contested in good faith, and all material taxes, including
withholding taxes, penalties and interest, assessments, fees and other charges
due pursuant to such returns or pursuant to any assessment received by the
Company or any of its subsidiaries have been paid, other than those being
contested in good faith and for which adequate reserves have been provided.
(af) With the exception of this Agreement, there are no contracts,
agreements or understandings between the Company or any of its subsidiaries and
any person that would give rise to a valid claim against the Company, any of its
subsidiaries or any Underwriter for a brokerage commission, finder's fee or like
payment in connection with the issuance, purchase and sale of the Securities.
(ag) Neither the Company nor any of its subsidiaries has (i) taken,
16
directly or indirectly, any action designed to cause or to result in, or that
has constituted or that might reasonably be expected to constitute, the
stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Securities or (ii) since the initial filing
of the Registration Statement (A) sold, bid for, purchased, or paid anyone any
compensation for soliciting purchases of, the Securities or (B) paid or agreed
to pay to any person any compensation for soliciting another to purchase any
other securities of the Company.
Section 7. Indemnification. (a) The Company agrees to indemnify and hold
harmless each Underwriter, its directors, its officers and each person, if any,
who controls any Underwriter within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, from and against any and all losses, claims,
damages, liabilities and judgments (including, without limitation, any legal or
other expenses incurred in connection with investigating or defending any
matter, including any action, that could give rise to any such losses, claims,
damages, liabilities or judgments) caused by any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement (or
any amendment thereto), the Prospectus (or any amendment or supplement thereto)
or any preliminary prospectus, or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, except insofar as such losses, claims,
damages, liabilities or judgments are caused by any such untrue statement or
omission or alleged untrue statement or omission based upon information relating
to any Underwriter furnished in writing to the Company by such Underwriter
through you expressly for use therein; provided, however, that the foregoing
indemnity agreement with respect to any preliminary prospectus shall not inure
to the benefit of any Underwriter who failed to deliver a Prospectus, as then
amended or supplemented, (so long as the Prospectus and any amendment or
supplemented thereto was provided by the Company to the several Underwriters in
the requisite quantity and on a timely basis to permit proper delivery on or
prior to the Closing Date) to the person asserting any losses, claims, damages,
liabilities or judgements caused by any untrue statement or alleged untrue
statement of a material fact contained in the preliminary prospectus, or caused
by any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading, if
such material misstatement or omission or alleged material misstatement or
omission was cured in the Prospectus, as so amended or supplemented, and such
Prospectus was required by law to be delivered at or prior to the written
confirmation of sale to
17
such person.
(b) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the Registration
Statement and each person, if any, who controls the Company within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act, to the same extent
as the foregoing indemnity from the Company to such Underwriter but only with
reference to information relating to such Underwriter furnished in writing to
the Company by such Underwriter through you expressly for use in the
Registration Statement (or any amendment thereto), the Prospectus (or any
amendment or supplement thereto) or any preliminary prospectus.
(c) In case any action shall be commenced against any person in respect of
which indemnity may be sought pursuant to Section 7(a) or 7(b) (the "indemnified
party"), the indemnified party shall promptly notify the person against whom
such indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party shall assume the defense of such action, including the
employment of counsel reasonably satisfactory to the indemnified party and the
payment of all fees and expenses of such counsel, as incurred (except that in
the case of any action in respect of which indemnity may be sought pursuant to
both Sections 7(a) and 7(b), the Underwriter shall not be required to assume the
defense of such action pursuant to this Section 7(c), but may employ separate
counsel and participate in the defense thereof, but the fees and expenses of
such counsel, except as provided below, shall be at the expense of such
Underwriter). Any indemnified party shall have the right to employ separate
counsel in any such action and participate in the defense thereof, but the fees
and expenses of such counsel shall be at the expense of the indemnified party
unless (i) the employment of such counsel shall have been specifically
authorized in writing by the indemnifying party, (ii) the indemnifying party
shall have failed to assume the defense of such action or employ counsel
reasonably satisfactory to the indemnified party or (iii) the named parties to
any such action (including any impleaded parties) include both the indemnified
party and the indemnifying party, and the indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
indemnifying party (in which case the indemnifying party shall not have the
right to assume the defense of such action on behalf of the indemnified party).
In any such case, the indemnifying party shall not, in connection with any one
action or separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the fees and expenses of more than one separate firm
18
of attorneys (in addition to any local counsel) for all indemnified parties and
all such fees and expenses shall be reimbursed as they are incurred. Such firm
shall be designated in writing by Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities
Corporation, in the case of parties indemnified pursuant to Section 7(a), and by
the Company, in the case of parties indemnified pursuant to Section 7(b). The
indemnifying party shall indemnify and hold harmless the indemnified party from
and against any and all losses, claims, damages, liabilities and judgments by
reason of any settlement of any action (i) effected with its written consent or
(ii) effected without its written consent if the settlement is entered into more
than twenty business days after the indemnifying party shall have received a
request from the indemnified party for reimbursement for the fees and expenses
of counsel (in any case where such fees and expenses are at the expense of the
indemnifying party) and, prior to the date of such settlement, the indemnifying
party shall have failed to comply with such reimbursement request. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement or compromise of, or consent to the entry of
judgment with respect to, any pending or threatened action in respect of which
the indemnified party is or could have been a party and indemnity or
contribution may be or could have been sought hereunder by the indemnified
party, unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability on claims that
are or could have been the subject matter of such action and (ii) does not
include a statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of the indemnified party.
(d) To the extent the indemnification provided for in this Section 7 is
unavailable to an indemnified party or insufficient in respect of any losses,
claims, damages, liabilities or judgments referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities and judgments (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other hand from the offering
of the Securities or (ii) if the allocation provided by clause 7(d)(i) above is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause 7(d)(i) above but also the
relative fault of the Company on the one hand and the Underwriters on the other
hand in connection with the statements or omissions which resulted in such
losses, claims, damages, liabilities or judgments, as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and the Underwriters on the other hand shall be deemed to be in the
same proportion as the total net proceeds from the
19
offering (after deducting underwriting discounts and commissions but before
deducting expenses) received by the Company, and the total underwriting
discounts and commissions received by the Underwriters, bear to the total price
to the public of the Securities, in each case as set forth in the table on the
cover page of the Prospectus. The relative fault of the Company on the one hand
and the Underwriters on the other hand shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company or the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7(d) were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses incurred by such indemnified party in
connection with investigating or defending any matter, including any action,
that could have given rise to such losses, claims, damages, liabilities or
judgments. Notwithstanding the provisions of this Section 7, no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute
pursuant to this Section 7(d) are several in proportion to the respective
principal amount of Securities purchased by each of the Underwriters hereunder
and not joint.
(e) The remedies provided for in this Section 7 are not exclusive and shall
not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
Section 8. Conditions of Underwriters' Obligations. The several
20
obligations of the Underwriters to purchase the Securities under this Agreement
are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company contained in this
Agreement shall be true and correct on the Closing Date and the Option Closing
Date, as applicable, with the same force and effect as if made on and as of the
Closing Date or the Option Closing Date, as the case may be.
(b) At the Closing Date, no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been commenced or shall be pending before or contemplated by
the Commission.
(c) On or after the date hereof, (i) there shall not have occurred any
downgrading, suspension or withdrawal of, nor shall any notice have been given
of any potential or intended downgrading, suspension or withdrawal of, or of any
review (or of any potential or intended review) for a possible change that does
not indicate the direction of the possible change in, any rating of the Company
or any securities of the Company (including, without limitation, the placing of
any of the foregoing ratings on credit watch with negative or developing
implications or under review with an uncertain direction) by any "nationally
recognized statistical rating organization" as such term is defined for purposes
of Rule 436(g)(2) under the Act, and (ii) there shall not have occurred any
change, nor shall any notice have been given of any potential or intended
change, in the outlook for any rating of the Company or any securities of the
Company by any such rating organization.
(d) You shall have received on the Closing Date and the Option Closing Date
a certificate dated the Closing Date or the Option Closing Date, as the case may
be, signed by X.X. Xxxxxxx III and Xxxxxxx Xxxxxxx, in their capacities as the
Chief Executive Officer and Chief Financial Officer, respectively, of the
Company, confirming the matters set forth in Sections 8(a), 8(b), 8(c) and 8(e)
and that the Company has complied with all of the agreements and satisfied all
of the conditions herein contained and required to be complied with or satisfied
by the Company on or prior to the Closing Date or the Option Closing Date, as
the case may be.
(e) Since the respective dates as of which information is given in the
Prospectus other than as set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this Agreement), (i)
there shall
21
not have occurred any material adverse change or any development involving a
prospective material adverse change in the condition, financial or otherwise, or
the earnings, business, management or operations of the Company and its
subsidiaries, taken as a whole, (ii) there shall not have been any change or any
development involving a prospective material adverse change in the capital stock
or in the long-term debt of the Company and its subsidiaries, taken as a whole,
and (iii) the Company and its subsidiaries shall not have incurred any liability
or obligation, direct or contingent, which is material to the Company and its
subsidiaries, taken as a whole, other than as reflected in the Registration
Statement and the Prospectus.
(f) You shall have received on the Closing Date and the Option Closing
Date, as applicable, an opinion (satisfactory to you and counsel for the
Underwriters), dated the Closing Date or the Option Closing Date, as applicable,
of Xxxxxx & Xxxxxxx, counsel for the Company, to the effect that:
(i) the Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of its jurisdiction of
incorporation and has the corporate power and authority to carry on its
business as described in the Prospectus and to own, lease and operate its
properties;
(ii) the Securities have been duly authorized by the Company and, when
executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters in accordance
with the terms of this Agreement, will be legally valid and binding
obligations of the Company, enforceable against the Company in accordance
with their terms; the shares of Common Stock into which the Securities are
convertible have been duly authorized, and when issued upon conversion of
the Securities will be validly issued, fully paid and non-assessable and
not subject to any statutory preemptive rights or, to the knowledge of such
counsel, any other similar rights;
(iii) the Indenture has been duly qualified under the Trust Indenture
Act and has been duly authorized, executed and delivered by the Company and
is a valid and binding agreement of the Company, enforceable in accordance
with its terms;
(iv) this Agreement has been duly authorized, executed and delivered
by the Company;
22
(v) the Registration Statement has become effective under the Act,
and, to such counsel's knowledge, no stop order suspending its
effectiveness has been issued under the Act and no proceedings therefor
have been initiated by the Commission;
(vi) the statements under the captions "Description of Notes",
"Certain Federal Income Tax Considerations", "Description of Debt
Securities" and "Description of Common Stock" in the Prospectus, insofar as
such statements constitute a summary of the legal matters or documents
referred to therein, are accurate in all material respects;
(vii) no consent, approval, authorization or order of, or filing with,
any state or federal court or governmental agency or body is required for
the issuance and sale of the Securities or for the execution, delivery and
performance by the Company of its obligations under this Agreement, the
Indenture or the Securities, except such as have been obtained under the
Act and the Trust Indenture Act and the applicable rules and regulations of
the Commission under the Act and the Trust Indenture Act and such as may be
required under state securities laws in connection with the purchase and
distribution of the Securities by the Underwriters as to which such counsel
need not express an opinion;
(viii) the Company is not in violation of its Certificate of
Incorporation or Bylaws, and the issuance and sale of the Securities being
delivered on the date hereof by the Company and the compliance by the
Company with the provisions of this Agreement will not result in the
violation by the Company of its Certificate of Incorporation or Bylaws or
any state or federal statute, rule or regulation known to such counsel to
be applicable to the Company (other than federal securities laws, which are
specifically addressed in paragraph (vii) above, or state securities laws,
as to which such counsel need not express an opinion);
(ix) the Company is not an "investment company" as such term is
defined in the Investment Company Act of 1940, as amended;
(x) the Registration Statement and the Prospectus, in each case
excluding the documents referred to in paragraph (xi) below, comply as to
form in all material respects with the requirements for Registration
Statements on Form S-3 under the Act and the applicable rules and
23
regulations of the Commission thereunder, except that such counsel need not
express an opinion with respect to the financial statements, schedules and
other financial data included or incorporated in the Registration Statement
or Prospectus or with respect to the Statement of Eligibility of the
Trustee on Form T-1 (the "Form T-1"); and
(xi) each of the documents incorporated by reference in the Prospectus
(the "Incorporated Documents") (other than the financial statements,
schedules and other financial data included or incorporated by reference
therein, as to which such counsel need not express an opinion), when it was
filed with the Commission, appeared on its face to comply as to form in all
material respects with the requirements of the Exchange Act and the
applicable rules and regulations of the Commission thereunder.
In addition, Xxxxxx & Xxxxxxx shall state that it has participated in
conferences with officers and other representatives of the Company,
representatives of the independent public accountants for the Company, and
representatives of the Underwriters, at which the contents of the Registration
Statement and the Prospectus and related matters were discussed and, although
such counsel is not passing upon, and does not assume any responsibility for,
the accuracy, completeness or fairness of the statements contained in the
Registration Statement and the Prospectus and has not made any independent check
or verification thereof (except as set forth in paragraph (vi) above), during
the course of such participation, no facts came to such counsel's attention that
caused such counsel to believe that the Registration Statement, at the time it
became effective, contained an untrue statement of a material fact or omitted to
state a material fact necessary to make the statements therein, not misleading,
or that the Prospectus, as of the date of the Prospectus Supplement or as of the
date of such opinion, contained or contains an untrue statement of a material
fact or omitted or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading (except that such counsel need not express such belief with
respect to the financial statements, schedules or other financial data included
or incorporated by reference in the Registration Statement or the Prospectus or
with respect to the Form T-1).
(g) You shall have received on the Closing Date and the Option Closing
Date, as applicable, an opinion (satisfactory to you and counsel for the
Underwriters), dated the Closing Date or the Option Closing Date, as applicable,
of Xxxxxx X. XxXxx, Vice President and General Counsel of the Company, to
24
the effect that:
(i) each of the subsidiaries of the Company listed on Schedule II
hereto or which constitutes a "significant subsidiary" within the meaning
of Rule 1-02 of Regulation S-X (in each case, individually a "Material
Subsidiary" and collectively, the "Material Subsidiaries") has been duly
incorporated, is validly existing as a corporation in good standing under
the laws of its jurisdiction of incorporation and has the corporate power
and authority to carry on its business as described in the Prospectus and
to own, lease and operate its properties;
(ii) each of the Company and each of the Material Subsidiaries is duly
qualified and is in good standing as a foreign corporation authorized to do
business in each jurisdiction in which the nature of its business or its
ownership or leasing of property requires such qualification, except where
the failure to be so qualified would not have a material adverse effect on
the Company and its subsidiaries, taken as a whole;
(iii) all the outstanding shares of capital stock of the Company have
been duly authorized and validly issued and are fully paid, non-assessable
and not subject to any preemptive or similar rights;
(iv) all of the outstanding shares of capital stock of each of the
Company's Material Subsidiaries have been duly authorized and validly
issued and are fully paid and non-assessable, and are owned by the Company,
directly or indirectly through one or more subsidiaries, free and clear of
any Lien;
(v) neither the Company nor any of its Material Subsidiaries is in
violation of its respective charter or by-laws and, to such counsel's
knowledge after due inquiry, neither the Company nor any of its
subsidiaries is in default in the performance of any obligation, agreement,
covenant or condition contained in any indenture, loan agreement, mortgage,
lease or other agreement or instrument that is material to the Company and
its subsidiaries, taken as a whole, to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries
or their respective property is bound;
(vi) the execution, delivery and performance of this Agreement, the
Indenture and the Securities by the Company, the compliance by the
25
Company with all the provisions hereof and thereof and the consummation of
the transactions contemplated hereby and thereby will not (A) require any
consent, approval, authorization or other order of, or qualification with,
any court or governmental body or agency (except such as may be required
under the securities or Blue Sky laws of the various states), (B) conflict
with or constitute a breach of any of the terms or provisions of, or a
default under, the charter or by-laws of the Company or any of its
subsidiaries or any indenture, loan agreement, mortgage, lease or other
agreement or instrument that is material to the Company and its
subsidiaries, taken as a whole, to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries
or their respective property is bound, (C) violate or conflict with any
applicable law or any rule, regulation, judgment, order or decree of any
court or any governmental body or agency having jurisdiction over the
Company, any of its subsidiaries or their respective property, (D) result
in the imposition or creation of (or the obligation to create or impose) a
Lien under any agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries
or their respective property is bound or (E) result in the suspension,
termination or revocation of any Authorization of the Company or any of its
subsidiaries or any other impairment of the rights of the holder of any
such Authorization;
(vii) after due inquiry, such counsel does not know of any legal or
governmental proceedings pending or threatened to which the Company or any
of its subsidiaries is or could be a party or to which any of their
respective property is or could be subject that are required to be
described in the Registration Statement or the Prospectus and are not so
described, or of any statutes, regulations, contracts or other documents
that are required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement that
are not so described or filed as required;
(viii) neither the Company nor any of its Material Subsidiaries is in
violation of its respective charter or by-laws and, to such counsel's
knowledge after due inquiry, neither the Company nor any of its
subsidiaries is in default in the performance of any obligation, agreement,
covenant or condition contained in any indenture, loan agreement, mortgage,
lease or other agreement or instrument that is material to the Company and
its subsidiaries, taken as a whole, to which the Company or any of its
subsidiaries is a party or by which the Company or
26
any of its subsidiaries or their respective property is bound;
(ix) except for such rights that have been waived or are inapplicable
to the issuance and sale of the Securities pursuant to the Registration
Statement, to such counsel's knowledge after due inquiry, there are no
contracts, agreements or understandings between the Company and any person
granting such person the right to require the Company to file a
registration statement under the Act with respect to any securities of the
Company or to require the Company to include such securities with the
Securities registered pursuant to the Registration Statement; and
(x) to such counsel's knowledge, no action has been taken and no
statute, rule or regulation or order has been enacted, adopted or issued by
any governmental agency or body that prevents the issuance of the
Securities, suspends the effectiveness of the Registration Statement,
presents or suspends the use of any preliminary prospectus or suspends the
sale of the Securities in any jurisdiction referred to in Section 5(f)
hereof; to such counsel's knowledge, no injunction, restraining order or
order of any nature by a federal or state court of competent jurisdiction
has been issued with respect to the Company which would prevent or suspend
the issuance or sale of the Securities, the effectiveness of the
Registration Statement, or the use of any preliminary prospectus in any
jurisdiction referred to in Section 5(f) hereof; to such counsel's
knowledge, no action, suit or proceeding is pending against or threatened
against or affecting the Company before any court or arbitrator or any
governmental body, agency or official, domestic or foreign, which, if
adversely determined, would materially interfere with or adversely affect
the issuance of the Securities or in any manner draw into question the
validity of this Agreement, the Indenture or the Securities; and every
request of the Commission or, to such counsel's knowledge, any securities
authority or agency of any jurisdiction for additional information (to be
included in the Registration Statement or the Prospectus or otherwise) has
been complied with or waived by the Commission or such securities authority
or agency, as applicable.
(h) You shall have received on the Closing Date and the Option Closing Date
an opinion, dated the Closing Date or the Option Closing Date, as applicable, of
Pillsbury Madison & Sutro LLP, counsel for the Underwriters, as to the matters
referred to in Sections 8(f)(ii), 8(f)(iii), 8(f)(iv), 8(f)(x) and the matters
27
set forth in the last paragraph of Section 8(f).
In giving such opinions with respect to the matters covered by Sections
8(f)(x) and 8(f)(xi), Xxxxxx & Xxxxxxx may state that their opinion and belief
are based upon their participation in the preparation of the Registration
Statement and Prospectus and any amendments or supplements thereto and documents
incorporated therein by reference and review and discussion of the contents
thereof, but is without independent check or verification except as specified.
In giving such opinions with respect to the matters covered by Section 8(f)(x),
Pillsbury Madison & Sutro LLP may state that their opinion and belief are based
upon their participation in the preparation of the Registration Statement and
Prospectus and any amendments or supplements thereto (other than the documents
incorporated therein by reference) and review and discussion of the contents
thereof (including the documents incorporated therein by reference), but are
without independent check or verification except as specified.
(i) You shall have received, on each of the date hereof and the Closing
Date and the Option Closing Date, a letter dated the date hereof or the Closing
Date or the Option Closing Date, as the case may be, in form and substance
satisfactory to you, from Ernst & Young LLP, independent public accountants,
containing the information and statements of the type ordinarily included in
accountants' "comfort letters" to Underwriters with respect to the financial
statements and certain financial information contained in or incorporated by
reference into the Registration Statement and the Prospectus.
(j) The Underwriters shall have received a counterpart, conformed as
executed, of the Indenture which shall have been entered into by the Company and
the Trustee.
(k) The Company shall not have failed on or prior to the Closing Date or,
if applicable, the Option Closing Date to perform or comply with any of the
material agreements herein contained and required to be performed or complied
with by the Company on or prior to the Closing Date or the Option Closing Date.
Section 9. Effectiveness of Agreement and Termination . This Agreement
shall become effective upon the execution and delivery of this Agreement by the
parties hereto.
This Agreement may be terminated at any time on or prior to the Closing
Date by you by written notice to the Company if any of the following has
occurred: (i) any outbreak or escalation of hostilities or other national or
28
international calamity or crisis or change in economic conditions or in the
financial markets of the United States or elsewhere that, in your judgment, is
material and adverse and, in your judgment, makes it impracticable to market the
Securities on the terms and in the manner contemplated in the Prospectus, (ii)
the suspension or material limitation of trading in securities or other
instruments on the New York Stock Exchange, the American Stock Exchange or The
Nasdaq Stock Market or limitation on prices for securities or other instruments
on any such exchange or The Nasdaq Stock Market, (iii) the suspension of trading
of any securities of the Company on any exchange or in the over-the-counter
market, (iv) the enactment, publication, decree or other promulgation of any
federal or state statute, regulation, rule or order of any court or other
governmental authority which in your opinion materially and adversely affects,
or will materially and adversely affect, the Company and its subsidiaries, taken
as a whole, (v) the declaration of a banking moratorium by either federal or New
York State authorities or (vi) the taking of any action by any federal, state or
local government or agency in respect of its monetary or fiscal affairs which in
your opinion has a material adverse effect on the financial markets in the
United States.
If on the Closing Date or any Option Closing Date, if applicable, any one
or more of the Underwriters shall fail or refuse to purchase the Securities
which it or they have agreed to purchase hereunder on such date and the
aggregate principal amount of Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than one-tenth
of the aggregate principal amount of Securities to be purchased on such date by
all Underwriters, each non-defaulting Underwriter shall be obligated severally,
in the proportion which the principal amount of Securities set forth opposite
its name in Schedule I bears to the aggregate principal amount of Securities
which all the non-defaulting Underwriters have agreed to purchase, or in such
other proportion as you may specify, to purchase the Securities which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
on such date; provided that in no event shall the aggregate principal amount of
Securities which any Underwriter has agreed to purchase pursuant to Section 2
hereof be increased pursuant to this Section 9 by an amount in excess of one-
ninth of such principal amount of Securities without the written consent of such
Underwriter. If on the Closing Date or an Option Closing Date, as the case may
be, any Underwriter or Underwriters shall fail or refuse to purchase Securities
and the aggregate principal amount of Securities with respect to which such
default occurs is more than one-tenth of the aggregate principal amount of
Securities to be purchased by all Underwriters and arrangements satisfactory to
you and the Company for purchase of such Securities are not made within 48 hours
after such default, this Agreement
29
will terminate without liability on the part of any non-defaulting Underwriter
and the Company. In any such case which does not result in termination of this
Agreement, either you or the Company shall have the right to postpone the
Closing Date or an Option Closing Date, if applicable, but in no event for
longer than seven days, in order that the required changes, if any, in the
Registration Statement and the Prospectus or any other documents or arrangements
may be effected. Any action taken under this paragraph shall not relieve any
defaulting Underwriter from liability in respect of any default of any such
Underwriter under this Agreement.
Section 10. Miscellaneous . Notices given pursuant to any provision of this
Agreement shall be addressed as follows: (i) if to the Company, to Advanced
Micro Devices, Inc., Xxx XXX Xxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000, Attention:
General Counsel and (ii) if to any Underwriter or to you, to you c/x Xxxxxxxxx,
Xxxxxx & Xxxxxxxx Securities Corporation, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Syndicate Department, or in any case to such other address as
the person to be notified may have requested in writing.
The respective indemnities, contribution agreements, representations,
warranties and other statements of the Company and the several Underwriters set
forth in or made pursuant to this Agreement shall remain operative and in full
force and effect, and will survive delivery of and payment for the Securities,
regardless of (i) any investigation, or statement as to the results thereof,
made by or on behalf of any Underwriter, the officers or directors of any
Underwriter, any person controlling any Underwriter, the Company, the officers
or directors of the Company or any person controlling the Company, (ii)
acceptance of the Securities and payment for them hereunder and (iii)
termination of this Agreement.
If for any reason the Securities are not delivered by or on behalf of the
Company as provided herein (other than as a result of any termination of this
Agreement pursuant to Section 9), the Company agrees to reimburse the several
Underwriters for all out-of-pocket expenses (including the fees and
disbursements of counsel) incurred by them. Notwithstanding any termination of
this Agreement, the Company shall be liable for all expenses which it has agreed
to pay pursuant to Section 5(j) hereof. The Company also agrees to reimburse
the several Underwriters, their directors and officers and any persons
controlling any of the Underwriters for any and all fees and expenses
(including, without limitation, the fees disbursements of counsel) incurred by
them in connection with enforcing their rights hereunder (including, without
limitation, pursuant to Section 7 hereof).
30
Except as otherwise provided, this Agreement has been and is made solely
for the benefit of and shall be binding upon the Company, the Underwriters, the
Underwriters' directors and officers, any controlling persons referred to
herein, the Company's directors and the Company's officers who sign the
Registration Statement and their respective successors and assigns, all as and
to the extent provided in this Agreement, and no other person shall acquire or
have any right under or by virtue of this Agreement. The term "successors and
assigns" shall not include a purchaser of any of the Securities from any of the
several Underwriters merely because of such purchase.
This Agreement shall be governed and construed in accordance with the laws
of the State of New York.
This Agreement may be signed in various counterparts which together shall
constitute one and the same instrument.
31
Please confirm that the foregoing correctly sets forth the agreement
between the Company and the several Underwriters.
Very truly yours,
ADVANCED MICRO DEVICES, INC.
By: /s/ X.X. Xxxxxxx III
___________________________
Title: Chairman & CEO
________________________
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
XXXXX XXXXXX INC.
Acting severally on behalf of
themselves and the several
Underwriters named in
Schedule I hereto
By: /s/ Xxx Xxxxxxx
___________________________
Title: Managing Director
________________________
32
SCHEDULE I
----------
Underwriters Principal Amount of
Securities
to be Purchased
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities $225,000,000
Corporation
Xxxxx Xxxxxx Inc. 225,000,000
____________
Total $450,000,000
============
SCHEDULE II
-----------
MATERIAL SUBSIDIARIES
AMD Saxony Manufacturing GmbH
Fujitsu AMD Semiconductor Limited
