EXHIBIT 1.1
Advanced Micro Devices, Inc.
$350,000,000
4.50% Convertible Senior Notes Due 2007
Underwriting Agreement
New York, New York
November 19, 2002
Banc of America Securities LLC
Salomon Smith Barney Inc.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
As Representatives of the several Underwriters,
c/o Salomon Smith Barney Inc.
388 Greenwich Street
New York, New York 10013
Ladies and Gentlemen:
Advanced Micro Devices, Inc., a corporation organized under the laws of
Delaware (the "Company"), proposes to sell to the several underwriters named in
Schedule I hereto (the "Underwriters"), for whom you (the "Representatives") are
acting as representatives, $350,000,000 principal amount of its 4.50%
Convertible Senior Notes Due 2007 (the "Firm Securities"). In addition, the
Company has granted the Underwriters an option to purchase up to $52,500,000
additional principal amount of such Notes to cover over-allotments, if any (the
"Option Securities" and, together with the Firm Securities, the "Securities").
The Securities will be convertible into shares of common stock of the Company,
par value $0.01 per share (the "Common Stock") and will be issued under an
indenture dated as of May 8, 1998, between the Company and The Bank of New York,
as trustee (the "Trustee") as supplemented by an officers' certificate
substantially in the form attached hereto as Exhibit A (together, the
"Indenture") to be dated as of November 25, 2002, between the Company and The
Bank of New York, as trustee (the "Trustee"). To the extent there are no
additional Underwriters listed on Schedule I other than you, the term
Representatives as used herein shall mean you, as Underwriters, and the terms
Representatives and Underwriters shall mean either the singular or plural as the
context requires.
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission"), in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations promulgated
thereunder (collectively, the "Securities Act") a registration statement on Form
S-3 (File No. 333-45346), including a prospectus, relating to the Securities,
the Common Stock and certain other securities (the "Base Prospectus"). Such
registration statement, as amended, including exhibits and schedules thereto, in
the form in which they were declared effective by the Commission under the
Securities Act, including all documents incorporated or deemed to be
incorporated by reference therein and any information deemed to be a part
thereof at the time of effectiveness pursuant to Rule 430A under the Securities
Act or the Securities Exchange Act of 1934 and the rules and regulations
promulgated thereunder (collectively, the "Exchange Act"), is called the
"Registration Statement". The Company has filed with, or transmitted for filing
to, or shall promptly hereafter file with or transmit for filing to, the
Commission, a prospectus supplement (the "Prospectus Supplement") specifically
relating to the Securities pursuant to Rule 424 under the Securities Act. The
term "Prospectus" means the Base Prospectus together with the Prospectus
Supplement. The term "Preliminary Prospectus" means a preliminary prospectus
supplement specifically relating to the Securities, together with the Base
Prospectus. As used herein, the terms "Base Prospectus", "Prospectus" and
"Preliminary Prospectus" shall include in each case the documents, if any,
incorporated by reference therein. Any registration statement filed by the
Company pursuant to Rule 462(b) under the Securities Act is called the "Rule
462(b) Registration Statement", and from and after the date and time of filing
of the Rule 462(b) Registration Statement the term "Registration Statement"
shall include the Rule 462(b) Registration Statement. All references in this
Agreement to the Registration Statement, the Rule 462(b) Registration Statement,
a Preliminary Prospectus, or the Prospectus, or any amendments or supplements to
any of the foregoing, shall include any copy thereof filed with the Commission
pursuant to its Electronic Data Gathering, Analysis and Retrieval System
("EDGAR"). All references in this Agreement to financial statements and
schedules and other information which is "contained," "included" or "stated" in
the Registration Statement, the Rule 462(b) Registration Statement, a
Preliminary Prospectus, or the Prospectus, or any amendments or supplements to
any of the foregoing (and all other references of like import) shall be deemed
to mean and include all such financial statements and schedules and other
information which is or is deemed to be incorporated by reference in the
Registration Statement, the Rule 462(b) Registration Statement, a Preliminary
Prospectus, or the Prospectus, or any amendments or supplements to any of the
foregoing, as the case may be. All references in this Agreement to amendments or
supplements to the Registration Statement, the Rule 462(b) Registration
Statement, a Preliminary Prospectus, or the Prospectus shall be deemed to mean
and include the filing of any document under the Exchange Act which is or is
deemed to be incorporated by reference in the Registration Statement, the Rule
462(b) Registration Statement, a Preliminary Prospectus, or the Prospectus, of
the foregoing, as the case may be. Certain terms used herein are defined in
Section 17 hereof.
1. Representations and Warranties. The Company represents and warrants
to each Underwriter as set forth below in this Section 1. To the extent any of
the following representations and warranties contained in this Section 1 are
qualified by disclosure in the Prospectus, such qualification shall not include
any information incorporated by reference in the Prospectus after the Execution
Time.
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(a) The Company meets the requirements for use of Form S-3 under
the Securities Act. Each of the Registration Statement and any Rule
462(b) Registration Statement has become effective under the Securities
Act; no stop order suspending the effectiveness of the Registration
Statement or any Rule 462(b) Registration Statement has been issued under
the Securities Act; no proceedings for that purpose have been instituted
or are pending or, to the knowledge of the Company, are contemplated by
the Commission; and any request on the part of the Commission for
additional information has been complied with.
(b) Each Preliminary Prospectus and the Prospectus, when filed,
complied in all material respects with the Securities Act and, if filed
by electronic transmission pursuant to EDGAR, was identical in all
material respects to the copy thereof delivered to the Underwriters for
use in connection with the offer and sale of the Securities.
(c) Each of the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendment thereto, at the
time it became effective and at all subsequent times prior to and
including the Closing Date, complied and will comply in all material
respects with the Securities Act and did not and prior to and including
the Closing Date 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. The Prospectus,
as amended or supplemented, as of its date and at all subsequent times
prior to and including the Closing Date, did not and will not contain any
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The
representations and warranties set forth in the two immediately preceding
sentences do not apply (A) to statements in or omissions from the
Registration Statement, any Rule 462(b) Registration Statement, or any
post-effective amendment thereto, or the Prospectus, or any amendments or
supplements thereto, made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in
writing by the Representatives expressly for use therein or (B) to that
part of the Registration Statement that constitutes the Statement of
Eligibility (form T-1) under the Trust Indenture Act of the Trustee.
There are no contracts or other documents required to be described in the
Prospectus or to be filed as exhibits to the Registration Statement which
have not been described or filed as required.
(d) 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" within
the meaning of the Investment Company Act, without taking account of any
exemption arising out of the number of holders of the Company's
securities.
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(e) The Company is subject to and in full compliance with the
reporting requirements of Section 13 or Section 15(d) of the Exchange
Act.
(f) The Company has not paid or agreed to pay to any person any
compensation for soliciting another to purchase any securities of the
Company (except as contemplated by this Agreement).
(g) The Company has not taken, directly or indirectly, any action
designed to cause or which has constituted or which might reasonably be
expected to cause or result in, under the Exchange Act or otherwise, the
stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Securities.
(h) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
jurisdiction in which it is chartered or organized with full corporate
power and corporate authority to own or lease, as the case may be, and to
operate its properties and conduct its business as described in the
Prospectus, and is duly qualified to do business as a foreign corporation
and is in good standing under the laws of each jurisdiction which
requires such qualification, except where the failure to be so qualified
would not, individually or in the aggregate, have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
(i) Each of the Company's subsidiaries has been duly incorporated
and is validly existing as a corporation in good standing under the laws
of the jurisdiction in which it is chartered or organized with full
corporate power and corporate authority to own or lease, as the case may
be, and to operate its properties and conduct its business as described
in the Prospectus, and is duly qualified to do business as a foreign
corporation and is in good standing under the laws of each jurisdiction
which requires such qualification, except where the failure to be so
qualified would not, individually or in the aggregate, have a material
adverse effect on the Company and its subsidiaries, taken as a whole.
(j) All the outstanding shares of capital stock of each
subsidiary of the Company have been duly and validly authorized and
issued and are fully paid and nonassessable, and, except as otherwise set
forth in the Prospectus and, except for Advanced Micro Devices, S.A.,
where five shares are held by directors in accordance with French law,
all outstanding shares of capital stock of the subsidiaries are owned by
the Company either directly or through one or more wholly-owned
subsidiaries free and clear of any perfected security interest or any
other security interests, claims, liens or encumbrances.
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(k) The Company's authorized equity capitalization is as set
forth in the Prospectus, and the capital stock of the Company conforms in
all material respects to the description thereof contained in the
Prospectus; the outstanding shares of Common Stock have been duly and
validly authorized and are fully paid and non-assessable; the shares of
Common Stock initially issuable upon conversion of the Securities have
been duly and validly authorized and, when issued upon conversion against
payment of the conversion price and in accordance with the terms of the
Indenture, will be validly issued, fully paid and nonassessable; the
Board of Directors of the Company has duly and validly adopted
resolutions reserving such shares of Common Stock for issuance upon
conversion; the holders of the outstanding shares of capital stock of the
Company are not entitled to any preemptive or other rights to subscribe
for the Securities or the shares of Common Stock issuable upon conversion
thereof; and, except as set forth in the Prospectus as of the date of the
Prospectus, no options, warrants or other rights to purchase, agreements
or other obligations to issue, or rights to convert any obligations into
or exchange any securities for, shares of capital stock of or ownership
interests in the Company are outstanding.
(l) The statements in the Prospectus under the headings "Certain
United States Federal Income Tax Considerations," "Description of Capital
Stock" and "Description of Notes" fairly summarize the matters therein
described.
(m) This Agreement has been duly authorized, executed and
delivered by the Company; the Indenture has been duly authorized by the
Company and, assuming due authorization, execution and delivery thereof
by the Trustee, when executed and delivered by the Company, will have
been duly executed and delivered by the Company and will constitute a
legal, valid and binding instrument of the Company enforceable against
the Company in accordance with its terms (subject, as to the enforcement
of remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium or other laws affecting creditors' rights generally from time
to time in effect and to general principles of equity); and 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, will have been duly
executed and delivered by the Company and will constitute the legal,
valid and binding obligations of the Company enforceable against the
Company in accordance with their terms and entitled to the benefits of
the Indenture (subject, as to the enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium or other laws
affecting creditors' rights generally from time to time in effect and to
general principles of equity) and will be convertible into Common Stock
in accordance with their terms.
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(n) No consent, approval, authorization, filing with or order of
any court or governmental agency or body is required in connection with
the transactions contemplated herein or in the Indenture, except such as
will be obtained under the Securities Act, the Exchange Act and the Trust
Indenture Act and such as may be required under the blue sky laws of any
jurisdiction in connection with the purchase and distribution of the
Securities by the Underwriters in the manner contemplated herein and in
the Prospectus.
(o) 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) 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, (ii) 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, (iii) result in the imposition or creation of (or
the obligation to create or impose) a lien, charge or encumbrance 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 (iv) 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.
(p) The consolidated historical financial statements and related
notes and schedules of the Company and its consolidated subsidiaries
included or incorporated by reference in the Prospectus present fairly in
all material respects the financial condition, results of operations and
cash flows of the Company as of the dates and for the periods indicated,
comply as to form with the applicable accounting requirements of the
Securities Act and have been prepared in conformity with generally
accepted accounting principles in the United States applied on a
consistent basis throughout the periods involved (except as otherwise
noted therein); the selected financial data set forth under the caption
"Selected Consolidated Financial Data" in the Prospectus fairly present,
on the basis stated in the Prospectus, the information included therein.
(q) Except as disclosed in the Prospectus or the documents
incorporated by reference therein, since the date of the latest audited
financial statements included or incorporated by reference in the
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Prospectus there has been no material adverse change, nor any development
involving a prospective material adverse change, in or affecting the
condition (financial or otherwise), earnings, business or properties of
the Company and its subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business, and, except
as disclosed in or contemplated by the Prospectus, there has been no
dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock.
(r) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries or its or their property is pending
or, to the knowledge of the Company, threatened that (i) could be
expected to have a material adverse effect on the performance of this
Agreement or the Indenture or the consummation of any of the transactions
contemplated hereby or thereby or (ii) could reasonably be expected to
have a material adverse effect on the condition (financial or otherwise),
earnings, business or properties of the Company and its subsidiaries,
taken as a whole, whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated in
the Prospectus or the documents incorporated by reference therein.
(s) Each of the Company and its subsidiaries owns, licenses or
leases all such properties as are necessary to the conduct of its
operations as presently conducted.
(t) Neither the Company nor any of its subsidiaries is in
violation of its respective charter or by-laws (or similar organizational
documents) 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.
(u) Ernst & Young LLP, who have certified certain financial
statements of the Company and its consolidated subsidiaries and delivered
their report with respect to the audited consolidated financial
statements and schedules included or incorporated by reference in the
Prospectus, are independent public accountants with respect to the
Company within the meaning of the Securities Act and the applicable
published rules and regulations thereunder.
(v) There are no stamp or other issuance or transfer taxes or
duties or other similar fees or charges required to be paid in connection
with the execution and delivery of this Agreement or the issuance or sale
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by the Company of the Securities or upon the issuance (but not the
transfer) of the Common Stock upon conversion thereof.
(w) 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.
(x) There is (i) no significant unfair labor practice complaint
pending against the Company or any of its subsidiaries or, to the
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
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 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.
(y) 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.
(z) No subsidiary of the Company is currently prohibited, directly
or indirectly, from paying any dividends to the Company, from making any
other distribution on such subsidiary's capital stock, from repaying to
the Company any loans or advances to such subsidiary from the Company or
from transferring any of such subsidiary's property or assets to the
Company or any other subsidiary of the Company, except as described in or
contemplated by the Prospectus or the documents incorporated by reference
therein.
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(aa) The Company and each of its subsidiaries maintain 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.
(bb) Except as set forth or incorporated by reference 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, financial condition or results of
operation of the Company and its subsidiaries, taken as a whole.
(cc) 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 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
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the aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(dd) 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.
(ee) Except for the holders of the Company's 4.75% Convertible
Senior Debentures Due 2022, there are no persons or entities with
registration or other similar rights to require the Company to include
any securities in any registration statement filed pursuant to a
registration agreement or in any offering made pursuant to any such
registration statement.
(ff) The Company and its subsidiaries own, possess, license or
have other rights to use all patents, patent applications, trade and
service marks, trade and service mark registrations, trade names,
copyrights, licenses, inventions, trade secrets, technology, know-how and
other intellectual property (collectively, the "Intellectual Property")
necessary for the conduct of their respective businesses as now conducted
or as proposed in the Prospectus to be conducted 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. Except as
set forth in the Prospectus, (i) there is no material infringement by
third parties of any such Intellectual Property; (ii) to the knowledge of
the Company, there is no pending or threatened action, suit, proceeding
or claim by others challenging the rights of the Company or any of its
subsidiaries in or to any such Intellectual Property; (iii) to the
knowledge of the Company, there is no pending or threatened action, suit,
proceeding or claim by others challenging the validity or scope of any
such Intellectual Property; (iv) to the knowledge of the Company, there
is no pending or threatened action, suit, proceeding or claim by others
that the Company infringes or otherwise violates any patent, trademark,
copyright, trade secret or other proprietary rights of others; (v) to the
knowledge of the Company, there is no U.S. patent or published U.S.
patent application which contains claims that dominate or may dominate
any Intellectual Property described in the Prospectus as being owned by
or licensed to the Company or any of its
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subsidiaries or that interferes with the issued or pending claims or any
such Intellectual Property; and (vi) there is no prior art of which the
Company is aware that may render any U.S. patent held by the Company or
any of its subsidiaries invalid or any U.S. patent application held by
the Company or any of its subsidiaries unpatentable which has not been
disclosed to the U.S. Patent and Trademark Office, except for the
foregoing items set forth in clauses (i) through (vi) of this
subparagraph, which would not, individually or in the aggregate, have a
material adverse effect on the condition (financial or otherwise),
earnings, business or properties of the Company and its subsidiaries,
taken as a whole, whether or not arising from transactions in the
ordinary course of business.
Any certificate signed by any officer of the Company and delivered to the
Representatives or counsel for the Underwriters in connection with the offering
of the Securities shall be deemed a representation and warranty by the Company,
as to matters covered thereby, to each Underwriter.
2. Purchase and Sale.
(a) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company agrees to
sell to each Underwriter, and each Underwriter agrees, severally and not
jointly, to purchase from the Company, at a purchase price of 97.25% of
the principal amount thereof, plus accrued interest, if any, on the
Securities from November 25, 2002, to the Closing Date, the principal
amount of the Firm Securities set forth opposite such Underwriter's name
in Schedule I hereto.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company hereby
grants an option to the several Underwriters, severally and not jointly,
to purchase Option Securities in aggregate principal amount of up to
$52,500,000 at the same price per Security (plus interest, if any,
accrued and unpaid from November 25, 2002 until the applicable Date of
Delivery (as defined herein)), as is applicable to the Firm Securities.
Such option will expire 30 days after the date of this Agreement, and may
be exercised in whole or in part from time to time (but not more than
once) only for the purpose of covering over-allotments that may be made
in connection with the offering and distribution of the Firm Securities,
upon notice by the Representatives to the Company setting forth the
principal amount of Option Securities as to which the several
Underwriters are then exercising the option and the time and date of
payment and delivery for such Option Securities. Any such time and date
of delivery (a "Date of Delivery") shall be determined by the
Representatives, but shall not be later than seven full business days and
not earlier than two full business days after the exercise of said
option, nor in any event prior to the Closing Date, as hereinafter
defined, unless otherwise agreed upon by the Representatives
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and the Company. The principal amount of the Option Securities to be
purchased by each Underwriter shall be the same percentage of the total
principal amount of the Option Securities to be purchased by the several
Underwriters as such Underwriter is purchasing of the Firm Securities,
subject to such adjustments as the Representatives in their absolute
discretion shall make to eliminate any Securities in a principal amount
of less than $1,000.
3. Delivery and Payment. Delivery of and payment for the Firm Securities
and the Option Securities (if the option provided for in Section 2(b) hereof
shall have been exercised on or before the third Business Day prior to the
Closing Date) shall be made at 10:00 AM, New York City time, on November 25,
2002, or at such time on such later date not more than three Business Days after
the foregoing date as the Representatives shall designate, which date and time
may be postponed by agreement between the Representatives and the Company or as
provided in Section 9 hereof (such date and time of delivery and payment for the
Securities being herein called the "Closing Date"). Delivery of the Securities
shall be made to the Representatives for the respective accounts of the several
Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of the
Company by wire transfer payable in same-day funds to the account specified by
the Company. Delivery of the Securities shall be made through the facilities of
The Depository Trust Company unless the Representatives shall otherwise
instruct.
If the option provided for in Section 2(b) hereof is exercised after the
third Business Day prior to the Closing Date, the Company will deliver the
Option Securities (at the expense of the Company) to the Representatives on the
date specified by the Representatives (which shall be within three Business Days
after exercise of said option) for the respective accounts of the several
Underwriters, against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of the
Company by wire transfer payable in same day funds to the account specified by
the Company. If settlement for the Option Securities occurs after the Closing
Date, the Company will deliver to the Representatives on the settlement date,
and the obligation of the Underwriters to purchase the Option Securities shall
be conditioned upon receipt of, supplemental opinions, certificates and letters
confirming as of such date the opinions, certificates and letters delivered on
the Closing Date pursuant to Section 6 hereof
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Securities for sale to the public as set forth
in the Prospectus.
5. Agreements.
The Company agrees with the several Underwriters that:
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(a) The Company will use its reasonable efforts to cause the
Registration Statement, if not effective at the Execution Time, and any
amendment thereof, to become effective. Prior to the termination of the
offering of the Securities, the Company will not file any amendment of
the Registration Statement or supplement to the Prospectus or any Rule
462(b) Registration Statement unless the Company has furnished you a copy
for your review prior to filing and will not file any such proposed
amendment or supplement to which you reasonably object. Subject to the
foregoing sentence, if the Registration Statement has become or becomes
effective pursuant to Rule 430A, or filing of the Prospectus is otherwise
required under Rule 424(b), the Company will cause the Prospectus,
properly completed, and any supplement thereto to be filed with the
Commission pursuant to the applicable paragraph of Rule 424(b) within the
time period prescribed and will provide evidence satisfactory to the
Representatives of such timely filing. The Company will promptly advise
the Representatives (1) when the Registration Statement, if not effective
at the Execution Time, shall have become effective; (2) when the
Prospectus, and any supplement thereto, shall have been filed (if
required) with the Commission pursuant to Rule 424(b) or when any Rule
462(b) Registration Statement shall have been filed with the Commission;
(3) when, prior to termination of the offering of the Securities, any
amendment to the Registration Statement shall have been filed or become
effective; (4) of any request by the Commission or its staff for any
amendment of the Registration Statement, or any Rule 462(b) Registration
Statement, or for any supplement to any Preliminary Prospectus or the
Prospectus or for any additional information; (5) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any
proceeding for that purpose; and (6) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Securities for sale in any jurisdiction or the institution or threatening
of any proceeding for such purpose. The Company will use its reasonable
efforts to prevent the issuance of any such stop order or the suspension
of any such qualification and, if issued, to obtain as soon as possible
the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Securities
is required to be delivered under the Securities Act, any event occurs as
a result of which the Prospectus as then supplemented would include any
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein in the light of the
circumstances under which they were made not misleading, or if it shall
be necessary to amend the Registration Statement or supplement the
Prospectus to comply with the Securities Act or the Exchange Act or the
respective rules thereunder, the Company promptly will (1) notify the
Representatives of such event, (2) prepare and file with the Commission,
subject to the second sentence of paragraph (a) of this Section 5, an
amendment or supplement which will correct such statement or omission or
effect such
13
compliance, and (3) supply any supplemented Prospectus to you in such
quantities as you may reasonably request.
(c) As soon as practicable, the Company will make generally
available to its security holders and to the Representatives an earnings
statement or statements of the Company and its subsidiaries which will
satisfy the provisions of Section 11(a) of the Securities Act and Rule
158 under the Securities Act.
(d) The Company will furnish to the Representatives, the other
Underwriters and counsel for the Underwriters, without charge, a copy of
the Registration Statement (without exhibits thereto) and, so long as
delivery of a prospectus by an Underwriter or dealer may be required by
the Securities Act, as many copies of each Preliminary Prospectus and the
Prospectus and any supplement thereto as the Representatives may
reasonably request. The Company will pay the expenses of printing or
other production of all documents relating to the offering.
(e) The Company will arrange, if necessary, for the qualification
of the Securities for sale under the laws of such jurisdictions as the
Representatives may designate, will maintain such qualifications in
effect so long as required for the distribution of the Securities and
will pay any fee of the National Association of Securities Dealers, Inc.,
in connection with its review of the offering; provided that in no event
shall the Company be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action that
would subject it to taxation in excess of a normal dollar amount or
service of process in suits, other than those arising out of the offering
or sale of the Securities in any jurisdiction where it is not now so
subject.
(f) The Company will not take, directly or indirectly, any action
designed to or that would constitute or that might reasonably be expected
to cause or result in, under the Exchange Act or otherwise, stabilization
or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Securities.
(g) The Company will not, and will not permit any of its
Affiliates to, resell any Securities or Common Stock issuable upon
conversion thereof that have been or may be acquired by any of them.
(h) The Company will reserve and keep available at all times,
free of preemptive rights, the full number of shares of Common Stock
issuable upon conversion of the Securities.
(i) The Company will cooperate with the Representatives and use
its best efforts to permit the Securities to be eligible for clearance
and settlement through The Depository Trust Company.
14
(j) The Company will not for a period of 60 days following the
Execution Time, without the prior written consent of the Representatives,
offer, sell, contract to sell, pledge or otherwise dispose of (or enter
into any transaction which is designed to, or might reasonably be
expected to, result in the disposition (whether by actual disposition or
effective economic disposition due to cash settlement or otherwise) by
the Company or any Affiliate of the Company or any person in privity with
the Company or any Affiliate of the Company), directly or indirectly, or
file (or participate in the filing of) a registration statement with the
Commission in respect of, or establish or increase a put equivalent
position or liquidate or decrease a call equivalent position within the
meaning of Section 16 of the Exchange Act and the rules and regulations
of the Commission promulgated thereunder, or publicly announce an
intention to effect any such transaction mentioned above, with respect
to, any shares of capital stock of the Company or any securities
convertible or exercisable or exchangeable for such capital stock;
provided, however, that (A) the Company may issue and sell Common Stock
pursuant to any employee stock option plan, stock ownership or purchase
plan or dividend reinvestment plan of the Company in effect at the
Execution Time, (B) the Company may issue Common Stock issuable upon the
conversion of securities or the exercise of warrants outstanding at the
Execution Time, and (C) the Company may issue Common Stock upon
conversion of the Securities.
(k) The Company will not, for so long as any Securities are
outstanding, be or become, or be or become owned by, an open-end
investment company, unit investment trust or face-amount certificate
company that is or is required to be registered under Section 8 of the
Investment Company Act, and will not be or become, or be or become owned
by, a closed-end investment company required to be registered but not
registered thereunder.
(l) Between the date hereof and the Closing Date, the Company
will not do or authorize any act or thing that would result in an
adjustment of the conversion price of the Securities.
(m) The Company agrees to pay the costs and expenses relating to
the following matters: (i) the preparation of the Indenture, the issuance
of the Securities and the fees of the Trustee; (ii) the preparation,
printing or reproduction of each Preliminary Prospectus and the
Prospectus and each amendment or supplement thereto; (iii) the printing
(or reproduction) and delivery (including postage, air freight charges
and charges for counting and packaging) of such copies of the Prospectus,
and all amendments or supplements thereto, as may, in each case, be
reasonably requested for use in connection with the offering and sale of
the Securities; (iv) the preparation, printing, authentication, issuance
and delivery of certificates for the Securities, including any stamp or
transfer taxes in
15
connection with the original issuance and sale of the Securities
to the Underwriters; (v) the printing (or reproduction) and
delivery of this Agreement, any blue sky memorandum, the closing
documents and all other agreements or documents printed (or
reproduced) and delivered in connection with the offering of the
Securities; (vi) any registration or qualification of the
Securities for offer and sale under the securities or blue sky
laws of the several states (including filing fees and the
reasonable fees and expenses of counsel for the Underwriters
relating to such registration and qualification); (vii) the
transportation and other expenses incurred by or on behalf of
Company representatives in connection with presentations to
prospective purchasers of the Securities; (viii) the fees and
expenses of the Company's accountants and the fees and expenses
of counsel (including local and special counsel) for the Company;
and (ix) all other costs and expenses incident to the performance
by the Company of its obligations hereunder.
6. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Securities shall be
subject to the accuracy of the representations and warranties on the
part of the Company contained herein as of the Execution Time and the
Closing Date and any applicable Date of Delivery pursuant to Section
2(b) hereof, to the accuracy of the statements of the Company made in
any certificates pursuant to the provisions hereof, to the performance
by the Company of its obligations hereunder and to the following
additional conditions:
(a) If the Registration Statement has not become effective
prior to the Execution Time, unless the Representatives agree in
writing to a later time, the Registration Statement will become
effective not later than (i) 6:00 PM New York City time, on the
date of determination of the public offering price, if such
determination occurred at or prior to 3:00 PM New York City time
on such date or (ii) 9:30 AM on the Business Day following the
day on which the public offering price was determined, if such
determination occurred after 3:00 PM New York City time on such
date; if filing of the Prospectus, or any supplement thereto, is
required pursuant to Rule 424(b), the Prospectus, and any such
supplement, will be filed in the manner and within the time
period required by Rule 424(b); and no stop order suspending the
effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been
instituted or threatened.
(b) The Company shall have requested and caused Latham &
Watkins, counsel for the Company, to furnish to the
Representatives its opinion, dated the Closing Date and addressed
to the Representatives, to the effect that:
(i) the Company is a corporation and is validly
existing and in good standing under the laws of its
jurisdiction of
16
incorporation and has the corporate power and corporate authority
to own, lease and operate its properties and conduct its business
as described in the Prospectus;
(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 nonassessable 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 authorized, executed
and delivered by the Company, has been qualified under the Trust
Indenture Act, 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;
(v) the statements under the captions "Description
of Notes" and "Description of Capital 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;
(vi) no consent, approval, authorization or order of,
or filing with, any New York, California 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 as will be obtained under the
Securities 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;
(vii) 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 and the
Indenture will not result in the violation by the Company of its
Certificate of Incorporation or Bylaws or any New York,
California or federal statute, rule or regulation known to such
17
counsel to be applicable to the Company (other than federal
securities laws, which are specifically addressed in paragraph
(vi) above, or state securities laws, as to which such counsel
need not express an opinion);
(viii) the Company is not an "investment company" as
such term is defined in the Investment Company Act of 1940, as
amended;
(ix) the Registration Statement has become effective
under the Securities Act; . to our knowledge, no stop order
suspending the effectiveness of the Registration Statement has
been issued under the Act and no proceedings therefor have been
initiated by the Commission; any required filing of the
Prospectus and the Prospectus Supplement pursuant to Rule 424
under the Act has been made in accordance with Rule 424 under the
Securities Act; the Registration Statement, as of the date it was
declared effective, and the Prospectus, as of its date, complied
as to form in all material respects with the requirements for
registration statements on Form S-3 under the Securities Act and
the rules and regulations of the Commission thereunder (it being
understood, however, that such counsel expresses no opinion with
respect to the financial statements, schedules, or other
financial data, included in, incorporated by reference in, or
omitted from, the Registration Statement or the Prospectus or
Regulation S-T; and in passing upon the compliance as to form of
the Registration Statement and the Prospectus, such counsel has
assumed that the statements made therein are correct and
complete); and
(x) no facts came to such counsel's attention that
caused it 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 required to be stated
therein or necessary to make the statements therein not
misleading, or that , as of the date of the Prospectus
Supplement, and on the date hereof 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; it being understood that we express no belief with
respect to the financial statements, schedules, or other
financial data included or incorporated by reference in, or
omitted from, the Registration Statement or the Prospectus.
(c) The Company shall have requested and caused Thomas M.
McCoy, Senior Vice President and General Counsel of the Company, to
18
furnish to the Representatives an opinion, dated the Closing Date and
addressed to the Representatives to the effect that:
(i) the Company and each of its subsidiaries
listed on Schedule IV 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
corporate 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,
individually or in the aggregate, 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 (other
than Fujitsu AMD Semiconductor Limited ("FASL")) 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, charge or encumbrance; the Company owns 49.992%
of the capital stock of FASL which shares or interests have
been duly authorized and validly issued and are fully paid
and nonassessable, and are owned by the Company, directly or
indirectly through one or more subsidiaries, free and clear
of any lien, charge or encumbrance;
(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
19
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 Company with all the
provisions hereof and thereof and the consummation of the
transactions contemplated hereby and thereby will not (A)
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, (B) result in the
imposition or creation of (or the obligation to create or
impose) a lien, charge or encumbrance 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 (C) 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) the Company has all requisite corporate
power and authority, has taken all requisite corporate
action, and has received and is in compliance with all
governmental, judicial and other authorizations, approvals
and orders necessary to enter into and perform this
Agreement, the Indenture and the Securities;
(viii) 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 is not adequately
disclosed in the Prospectus, except in each case for
proceedings that, if the subject of an unfavorable decision,
ruling or finding would not singly or in the aggregate,
result in a material adverse change in the condition
(financial or otherwise), earnings, business or properties of
the Company and its subsidiaries, taken as a whole;
(ix) except for such rights that have been
waived or are inapplicable to the issuance and sale of the
Securities, 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
20
file a registration statement under the Securities 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) the Company's authorized equity capitalization is as
set forth in the Prospectus, and the capital stock of the Company
conforms as to legal matters in all material respects to the
description thereof contained in the Prospectus; the Board of
Directors of the Company has duly and validly adopted a
resolution, reserving such shares of Common Stock for issuance
upon conversion; and the holders of the outstanding shares of
capital stock of the Company are not entitled to any preemptive or
other rights to subscribe for the Securities or the shares of
Common Stock issuable upon the conversion thereof; 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.
(d) The Representatives shall have received from Davis Polk &
Wardwell, counsel for the Underwriters, such opinion or opinions, dated
the Closing Date and addressed to the Representatives, with respect to
the issuance and sale of the Securities and, Indenture, the Prospectus
(together with any supplement thereto) and other related matters as the
Representatives may reasonably require, and the Company shall have
furnished to such counsel such documents as they reasonably request for
the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board or the
President and the principal financial or accounting officer of the
Company, dated the Closing Date, to the effect that:
(i) the representations and warranties of the Company in
this Agreement are true and correct in all material respects on
and as of the Closing Date with the same effect as if made on the
Closing Date, and the Company has complied with all the agreements
and satisfied all the conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date;
21
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge,
threatened; and
(iii) since the date of the most recent financial statements
included or incorporated by reference in the Prospectus (exclusive
of any supplement thereto), there has been no material adverse
effect on the condition (financial or otherwise), earnings,
business or properties of the Company and its subsidiaries, taken
as a whole, whether or not arising from transactions in the
ordinary course of business, except as set forth or incorporated
by reference in or contemplated in the Prospectus.
(f) At the date of this Agreement, the Representatives shall have
received an executed lockup agreement in the form attached hereto as
Exhibit B-1 from each of the persons listed on Schedule II and in the
form attached hereto as Exhibit B-2 from each of the persons listed on
Schedule III hereto.
(g) The Representatives shall have received, on each of the
Execution Time and the Closing Date, a letter dated as of the Execution
Time or as of the Closing Date, as the case may be, in form and substance
satisfactory to the Representatives, from Ernst & Young LLP, independent
public accountants, containing statements and information of the type
ordinarily included in accountants' "comfort letters" with respect to the
financial statements and certain financial information contained or
incorporated by reference in the Prospectus. References to the Prospectus
in this Section 6(g) include any amendment or supplement thereto at the
date of the applicable letter.
(h) Subsequent to the Execution Time or, if earlier, the dates as
of which information is given in the Registration Statement (exclusive of
any amendment thereof after the Execution Time) and the Prospectus
(exclusive of any supplement thereto after the Execution Time), there
shall not have been (i) any change or decrease specified in the letter or
letters referred to in paragraph (g) of this Section 6 or (ii) any
change, or any development involving a prospective change, in or
affecting the condition (financial or otherwise), earnings, business or
properties of the Company and its subsidiaries, taken as a whole, whether
or not arising from transactions in the ordinary course of business,
except as set forth in or contemplated in the Prospectus (exclusive of
any supplement thereto after the Execution Time) the effect of which, in
any case referred to in clause (i) or (ii) above, is, in the sole
judgment of the Representatives, so material and adverse as to make it
impractical or inadvisable to proceed with the offering or delivery of
the Securities as contemplated by the Registration Statement (exclusive
of any amendment thereof after the Execution Time)
22
and the Prospectus (exclusive of any supplement thereto after the
Execution Time).
(i) Subsequent to the Execution Time, there shall not have been
any decrease in the rating of any of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Securities Act) or any notice given of
any intended or potential decrease in any such rating or of a possible
change in any such rating that does not indicate the direction of the
possible change.
(j) Prior to the Closing Date, the Company shall have furnished
to the Representatives such further information, certificates and
documents as the Representatives may reasonably request.
(k) If any of the conditions specified in this Section 6 shall
not have been fulfilled in all material respects when and as provided in
this Agreement, or if any of the opinions and certificates mentioned
above or elsewhere in this Agreement shall not be in all material
respects reasonably satisfactory in form and substance to the
Representatives and counsel for the Underwriters, this Agreement and all
obligations of the Underwriters hereunder may be canceled at, or at any
time prior to, the Closing Date by the Representatives. Notice of such
cancellation shall be given to the Company in writing or by telephone or
facsimile confirmed in writing.
(l) The documents required to be delivered by this Section 6
shall be delivered at the office of counsel for the Underwriters at Davis
Polk & Wardwell, 1600 El Camino Real, Menlo Park, CA 94025 on the Closing
Date.
7. Reimbursement of Underwriters' Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 hereof is not satisfied
because of any refusal, inability or failure on the part of the Company to
perform any agreement herein or comply with any provision hereof other than by
reason of a default by any of the Underwriters, the Company will reimburse the
Underwriters severally through Salomon Smith Barney Inc. for all out-of-pocket
expenses (including reasonable fees and disbursements of counsel) that shall
have been incurred by them in connection with the proposed purchase and sale of
the Securities.
8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each
Underwriter, the directors, officers, employees and agents of each
Underwriter and each person who controls any Underwriter within the
23
meaning of either the Securities Act or the Exchange Act against any and
all losses, claims, damages or liabilities, joint or several, to which
they or any of them may become subject under the Securities Act, the
Exchange Act or other federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement for the registration of the
Securities as originally filed or in any amendment thereof, or in any
Preliminary Prospectus or the Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein 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, and agrees to
reimburse each such indemnified party, as incurred, for any legal or
other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or
action; provided, however, that the Company will not be liable in any
such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance
upon and in conformity with written information furnished to the Company
by or on behalf of any Underwriter through the Representatives
specifically for inclusion therein. This indemnity agreement will be in
addition to any liability which the Company may otherwise have.
(b) Each Underwriter severally and not jointly agrees to
indemnify and hold harmless the Company, each of its directors, each of
its officers who signs the Registration Statement, and each person who
controls the Company within the meaning of either the Securities Act or
the Exchange Act, to the same extent as the foregoing indemnity from the
Company to each Underwriter, but only with reference to written
information relating to such Underwriter furnished to the Company by or
on behalf of such Underwriter through the Representatives specifically
for inclusion in the documents referred to in the foregoing indemnity.
This indemnity agreement will be in addition to any liability which any
Underwriter may otherwise have. The Company acknowledges that the
statements set forth (i) in the last paragraph of the cover page
regarding delivery of the Securities and, under the heading
"Underwriting," (ii) the list of Underwriters and their respective
participation in the sale of the Securities, (iii) the sentences related
to concessions and reallowances and (iv) the paragraph related to
stabilization, syndicate covering transactions and penalty bids in any
Preliminary Prospectus and the Prospectus constitute the only information
furnished in writing by or on behalf of the several Underwriters for
inclusion in any Preliminary Prospectus or the Prospectus.
24
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party in
writing of the commencement thereof; but the failure so to notify the
indemnifying party (i) will not relieve it from liability under paragraph
(a) or (b) above unless and to the extent it did not otherwise learn of
such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) will not,
in any event, relieve the indemnifying party from any obligations to any
indemnified party other than the indemnification obligation provided in
paragraph (a) or (b) above. The indemnifying party shall be entitled to
appoint counsel of the indemnifying party's choice at the indemnifying
party's expense to represent the indemnified party in any action for
which indemnification is sought (in which case the indemnifying party
shall not thereafter be responsible for the fees and expenses of any
separate counsel retained by the indemnified party or parties except as
set forth below); provided, however, that such counsel shall be
reasonably satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the
indemnified party in an action, the indemnified party shall have the
right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of
such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such
counsel with a conflict of interest; (ii) the actual or potential
defendants in, or targets of, any such action include both the
indemnified party and the indemnifying party and the indemnified party
shall have reasonably concluded that there may be legal defenses
available to it and/or other indemnified parties which are different from
or additional to those available to the indemnifying party; (iii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable
time after notice of the institution of such action; or (iv) the
indemnifying party shall authorize the indemnified party to employ
separate counsel at the expense of the indemnifying party. An
indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each
indemnified party from all liability arising out of such claim, action,
suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or
(b) of this Section 8 is unavailable to or insufficient to hold harmless
an indemnified party for any reason, the Company and the Underwriters
25
severally agree to contribute to the aggregate losses, claims, damages
and liabilities (including legal or other expenses reasonably incurred in
connection with investigating or defending same) (collectively "Losses")
to which the Company and one or more of the Underwriters may be subject
in such proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and by the Underwriters on the
other from the offering of the Securities; provided, however, that in no
case shall any Underwriter (except as may be provided in any agreement
among underwriters relating to the offering of the Securities) be
responsible for any amount in excess of the underwriting discount or
commission applicable to the Securities purchased by such Underwriter
hereunder. If the allocation provided by the immediately preceding
sentence is unavailable for any reason, the Company and the Underwriters
severally shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of
the Company on the one hand and of the Underwriters on the other in
connection with the statements or omissions which resulted in such Losses
as well as any other relevant equitable considerations. Benefits received
by the Company shall be deemed to be equal to the total net proceeds from
the offering (before deducting expenses) received by it, and benefits
received by the Underwriters shall be deemed to be equal to the total
underwriting discounts and commissions, in each case as set forth on the
cover page of the Prospectus Supplement. Relative fault shall be
determined by reference to, among other things, whether any untrue or any
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information provided by the
Company on the one hand or the Underwriters on the other, the intent of
the parties and their relative knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The
Company and the Underwriters agree that it would not be just and
equitable if contribution were determined by pro rata allocation or any
other method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this
paragraph (d), no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 8, each person who
controls an Underwriter within the meaning of either the Securities Act
or the Exchange Act and each director, officer, employee and agent of an
Underwriter shall have the same rights to contribution as such
Underwriter, and each person who controls the Company within the meaning
of either the Securities Act or the Exchange Act, each officer of the
Company who shall have signed the Registration Statement and each
director of the Company shall have the same rights to contribution as the
Company, subject in each case to the applicable terms and conditions of
this paragraph (d).
26
9. Default by an Underwriter. If any one or more Underwriters shall
fail to purchase and pay for any of the Securities agreed to be purchased by
such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the principal amount of
Securities set forth opposite their names in Schedule I hereto bears to the
aggregate principal amount of Securities set forth opposite the names of all the
remaining Underwriters) the Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase; provided, however, that in the event
that the aggregate principal amount of Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of
the aggregate principal amount of Securities set forth in Schedule I hereto, the
remaining Underwriters shall have the right to purchase all, but shall not be
under any obligation to purchase any, of the Securities, and if such
nondefaulting Underwriters do not purchase all the Securities, this Agreement
will terminate without liability to any nondefaulting Underwriter or the
Company. In the event of a default by any Underwriter as set forth in this
Section 9, the Closing Date shall be postponed for such period, not exceeding
five Business Days, as the Representatives shall determine in order that the
required changes in the Registration Statement and the Prospectus or in any
other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability, if any, to
the Company or any nondefaulting Underwriter for damages occasioned by its
default hereunder.
10. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Company prior
to delivery of and payment for the Securities, if at any time prior to such time
(i) trading in the Company's Common Stock shall have been suspended by the
Commission or the New York Stock Exchange or trading in securities generally on
the New York Stock Exchange shall have been suspended or limited or minimum
prices shall have been established on such Exchange, (ii) a banking moratorium
shall have been declared either by Federal or New York State authorities, (iii)
there shall have occurred any major disruption of settlements of securities,
(iv) there shall have occurred any outbreak or escalation of hostilities,
declaration by the United States of a national emergency or war or other
calamity or crisis or any change or development involving a prospective change
in United States or international, political, financial or economic conditions
the effect of which on financial markets is such as to make it, in the sole
judgment of the Representatives, impracticable or inadvisable to proceed with
the offering or delivery of the Securities as contemplated by the Prospectus
(exclusive of any supplement thereto after the Execution Time).
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation
27
made by or on behalf of any Underwriter or the Company or any of the officers,
directors or controlling persons referred to in Section 8 hereof, and will
survive delivery of and payment for the Securities. The provisions of Sections 7
and 8 hereof shall survive the termination or cancellation of this Agreement.
12. Notices. In all dealings hereunder, the Representatives shall act on
behalf of each Underwriter, and the parties hereto shall be entitled to act and
rely on any statement, request, notice or agreement on behalf of any Underwriter
made or given by the Representatives jointly or by any of the Representatives
individually. All communications hereunder will be in writing and effective only
on receipt, and, (i) if sent to the Representatives, will be mailed, delivered
or faxed as follows:
Salomon Smith Barney Inc.
388 Greenwich Street, 3rd floor
New York, NY 10013
Facsimile No.: (212) 816-7912
Attention: General Counsel
Banc of America Securities LLC
9 West 57/th/ Street, 40/th/ Floor
New York, NY 10019
Facsimile No.: (212) 847-5037
Attention: Eric Hambleton
with copies to:
Davis Polk & Wardwell
1600 El Camino Real
Menlo Park, CA 94025
Facsimile No.: (650) 752-2116
Attention: Alan F. Denenberg, Esq.
(ii) and if sent to the Company, will be mailed, delivered or
telefaxed as follows:
Advanced Micro Devices, Inc.
One AMD Plaza
Sunnyvale, CA 94088
Facsimile No.: (408) 732-6164
Attention: General Counsel
with copies to:
Latham & Watkins
135 Commonwealth Drive
Menlo Park, CA 94025
Facsimile No.: (650) 463-2600
28
Attention: Christopher L. Kaufman, Esq.
13. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 8 hereof and no
other person will have any right or obligation hereunder.
14. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made
and to be performed within the State of New York.
15. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same instrument.
16. Headings. The section headings used herein are for convenience only
and shall not affect the construction hereof.
17. Definitions. The terms which follow, when used in this Agreement,
shall have the meanings indicated.
"Affiliate" shall have the meaning specified in Rule 501(b) of Regulation
D.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in the City of New York.
"Effective Date" shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto and any Rule
462(b) Registration Statement became or become effective.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
"Rule 424", "Rule 430A" and "Rule 462" refer to such rules under the
Securities Act.
"Rule 430A Information" shall mean information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended, and the rules and regulations of the Commission promulgated thereunder.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
29
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
ADVANCED MICRO DEVICES, INC.
By: /s/ Thomas M. McCoy
------------------------
Name: Thomas M. McCoy
Title: Vice President,
General Counsel
and Secretary
30
The foregoing Agreement is hereby confirmed
and accepted as of the date first above written.
SALOMON SMITH BARNEY INC.
By: /s/ William L. Frauenhofer
------------------------------
Name: William L. Frauenhofer
Title: Vice President
BANC OF AMERICA SECURITIES LLC
By: /s/ Robert Messih
------------------------------
Name: Robert Messih
Title: Managing Director
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ Rex Sherry
------------------------------
Name: Rex Sherry
Title: Managing Director
For themselves and the other
several Underwriters named in
Schedule I to the foregoing
Agreement.
31
SCHEDULE I
Principal Amount
of Securities to
Underwriters be Purchased
------------ ------------
Banc of America Securities LLC ........................ $ 157,500,000.00
Salomon Smith Barney Inc............................... $ 157,500,000.00
Merrill Lynch, Pierce, Fenner & Smith Incorporated .... $ 35,000,000.00
-----------------
Total 350,000,000.00
SCHEDULE II
List of persons subject to the Lock-Up Agreement attached hereto as Exhibit B-1
Name Position
---- --------
Hector de J. Ruiz Director, President and Chief
Executive Officer
Robert R. Herb Executive Vice President, Chief
Sales and Marketing Officer
Thomas M. McCoy Senior Vice President, General
Counsel and Secretary
Robert J. Rivet Senior Vice President, Chief
Financial Officer
Dr. Frederick Baur Director
Charles M. Blalark Director
Dr. R. Gene Brown Director
Robert R. Palmer Director
Joe L. Roby Director
Dr. Leonard M. Silverman Director
Benjamin M Anixter Vice President, External Affairs
Bertrand Cambou Group Vice President, Memory Group
Tom Eby Group Vice President, Strategy and
Business Development Group
Dirk Meyer Vice President, Computation
Products Group
Daryl Ostrander Group Vice President, Wafer
Fabrication Technology
Implementation Group
Stan Winvick Senior Vice President, Human
Resources
SCHEDULE III
List of persons subject to the Lock-Up Agreement attached hereto as Exhibit B-2
Name Position
---- --------
W. J. Sanders III Director and Chairman
William T. Siegle Senior Vice President, Technology
Operations and Chief Scientist
SCHEDULE IV
Material Subsidiaries
AMD Saxony Manufacturing GmbH
Fujitsu AMD Semiconductor Limited
EXHIBIT A
Form of Officers' Certificate
EXHIBIT B-1
Form of Lockup Agreement
EXHIBIT B-2
Form of Lockup Agreement