As filed with the Securities and Exchange Commission on October 15, 1999
Registration No. 333-
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------------------
TEXAS INSTRUMENTS INCORPORATED
(Exact name of Registrant as specified in its charter)
Delaware 3600 75-0289970
(State or jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
8505 Forest Lane
P.O. Box 660199
Dallas, Texas 75266-0199
(972) 995-3773
(Address, including zip code, and telephone number,
including area code, of Registrant's principal executive offices)
Richard J. Agnich,
Senior Vice President, Secretary and General Counsel
Texas Instruments Incorporated
8505 Forest Lane
P.O. Box 660199
Dallas, Texas 75266-0199
(972) 995-3773
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
-----------------------
Copies of all communications to:
Bruce K. Dallas, Esq.
Davis Polk & Wardwell
450 Lexington Avenue
New York, New York 10017
(212) 450-4000
-----------------------
Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of this Registration Statement.
If the Securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box: [ ]
CALCULATION OF REGISTRATION FEE
=======================================================================================================================
Proposed Proposed
Maximum Maximum Amount of
Title of Each Class of Amount to Be Aggregate Price Aggregate Registration Fee
Securities Being Registered Registered Per Unit Offering Price (1)
- -----------------------------------------------------------------------------------------------------------------------
7% senior notes due 2004......................... $400,000,000 100% $400,000,000 $111,200
=======================================================================================================================
(1) Calculated pursuant to Rule 457(f) of the rules and regulations under the
Securities Act of 1933.
The registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act or until the Registration Statement shall become effective
on such date as the Commission, acting pursuant to said Section 8(a), may
determine.
===============================================================================
The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an
offer to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
Subject to Completion, dated October 15, 1999
Prospectus
o, 1999
TEXAS INSTRUMENTS INCORPORATED
Offer to Exchange
$400,000,000 7% senior notes due 2004
for
$400,000,000 7% senior exchange notes due 2004
-----------------------
We are offering to exchange up to $400,000,000 of our new 7% senior
exchange notes due 2004 for up to $400,000,000 of our existing 7% senior notes
due 2004. We are offering to issue the new notes to satisfy our obligations
contained in the registration rights agreement entered into when the old notes
were sold in transactions permitted by Rule 144A and Regulation S under the
Securities Act.
The terms of the new notes are identical in all material respects to the
terms of the old notes, except that the transfer restrictions, registration
rights and additional interest provisions relating to the old notes do not
apply to the new notes.
To exchange your old notes for new notes:
o You must complete and send the letter of transmittal that accompanies
this prospectus to the exchange agent by 5:00 p.m., New York time, on
o, 1999.
o If your old notes are held in book-entry form at The Depository Trust
Company, you must instruct DTC, through your signed letter of
transmittal, that you wish to exchange your old notes for new notes.
When the exchange offer closes, your DTC account will be changed to
reflect your exchange of old notes for new notes.
o You should read the section called "The Exchange Offer" for
additional information on how to exchange your old notes for new
notes.
-----------------------
The Securities and Exchange Commission and state securities regulators have not
approved or disapproved these securities, or determined if this prospectus is
truthful or complete. Any representation to the contrary is a criminal offense.
WHERE YOU CAN FIND MORE INFORMATION
We are subject to the informational requirements of the Securities
Exchange Act of 1934, as amended, and we file reports, proxy statements and
other information with the Securities and Exchange Commission. These reports,
proxy statements and other information can be inspected and copied at public
reference facilities maintained by the SEC at Room 1024, Judiciary Plaza, 450
Fifth Street, N.W., Washington, D.C. 20549, as well as at the following
Regional Offices of the SEC: Chicago Regional Office, 500 West Madison Street,
Suite 1400, Chicago, Illinois 60661-2511 and New York Regional Office, 7 World
Trade Center, New York, New York 10048. Such material can also be accessed
electronically by means of the SEC's home page on the Internet at
http://www.sec.gov and inspected and copied at the offices of the New York
Stock Exchange, Inc., 20 Broad Street, New York, New York 10005.
We may "incorporate by reference" into this prospectus certain of the
information we file with the SEC. This means that we can disclose important
financial and other information to you by referring you to the publicly filed
documents containing this information. All information incorporated by
reference is part of this prospectus, unless that information is superseded by
the information contained in this prospectus. Information we file later with
the SEC that is incorporated by reference will automatically update and
supersede any previous information that is part of this prospectus. We
incorporate by reference the documents listed below and any future filings made
with the SEC under Section 13(a), 13(c), 14, or 15(d) of the Securities
Exchange Act of 1934 until we sell all of the Notes we offer with this
prospectus:
o Our Annual Report on Form 10-K, as amended by Form 10-K/A, for the
fiscal year ended December 31, 1998;
o Our Quarterly Report on Form 10-Q, as amended by Form 10-Q/A, and our
Quarterly Report on Form 10-Q, for the quarters ending March 31, 1999
and June 30, 1999, respectively;
o Our Proxy Statement for our 1999 annual meeting of stockholders; and
o Our Current Report on Form 8-K dated May 23, 1999.
We will provide without charge to each person to whom this prospectus is
delivered, upon request of such person, a copy of any or all documents that are
incorporated into this prospectus by reference, other than exhibits to such
documents. You should direct such request to:
Texas Instruments Incorporated
8505 Forest Lane
P.O. Box 660199
Dallas, Texas 75266-0199
(972) 995-3773
2
FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated in this prospectus by
reference contain "forward-looking statements" intended to qualify for the safe
harbor from liability established by the Private Securities Litigation Reform
Act of 1995. These forward-looking statements generally can be identified by
phrases such as TI or its management "believes," "expects," "anticipates,"
"foresees," "forecasts," "estimates" or other words or phrases of similar
import. Similarly, such statements herein that describe the company's business
strategy, outlook, objectives, plans, intentions or goals also are
forward-looking statements. All such forward-looking statements are subject to
certain risks and uncertainties that could cause actual results to differ
materially from those in forward-looking statements.
We urge you to carefully consider the following important factors that
could cause actual results to differ materially from the expectations of the
company or its management:
o Market demand for semiconductors, particularly for digital signal
processors and analog chips in key markets, such as
telecommunications and computers;
o TI's ability to develop, manufacture and market innovative products
in a rapidly changing technological environment;
o TI's ability to compete in products and prices in an intensely
competitive industry;
o TI's ability to maintain and enforce a strong intellectual property
portfolio and obtain needed licenses from third parties;
o Timely completion by customers and suppliers of their Year 2000
programs, accurate assessment of TI's Year 2000 readiness and of
risks associated with its current and past products, and effective
implementation of contingency plans and corrective actions;
o Timely completion of announced acquisitions;
o Global economic, social and political conditions in the countries in
which TI and its customers and suppliers operate, including
fluctuations in foreign currency exchange rates;
o Losses or curtailments of purchases from key customers;
o TI's ability to recruit and retain skilled personnel;
o Availability of raw materials and critical manufacturing equipment;
and
o Realization of savings from announced worldwide corporate
restructuring efforts and consolidation of manufacturing operations.
For a more detailed discussion of these factors, see the text under the
heading "Cautionary Statements Regarding Future Operations" in Item 1 of our
annual report on Form 10-K for 1998. The forward-looking statements included in
this prospectus are made only as of the date of this prospectus and we
undertake no obligation to publicly update the forward-looking statements to
reflect subsequent events or circumstances.
3
PROSPECTUS SUMMARY
The following summary contains basic information about this offering. It
may not contain all the information that is important to you in making your
investment decision. Therefore, you should read the entire document carefully
before deciding to invest in the notes. The "Description of Notes" section of
this prospectus contains more detailed information regarding the terms and
conditions of the notes. Unless the context indicates otherwise, the words
"company," "we," "our," "ours," "us" and "TI" refer to Texas Instruments
Incorporated and its consolidated subsidiaries.
The Company
TI is a global semiconductor company and the world's leading designer and
supplier of digital signal processors and analog integrated circuits, the
engines driving the digitization of electronics. These two types of
semiconductor products work together in digital electronic devices such as
digital cellular phones. Analog technology converts analog signals like sound,
light, temperature and pressure into the digital language of zeros and ones,
which can then be processed in real-time by a digital signal processor. Analog
integrated circuits also translate digital signals back to analog. Digital
signal processors and analog integrated circuits enable a wide range of new
products and features for TI's more than 30,000 customers in commercial,
industrial and consumer markets.
TI also is a world leader in the design and manufacturing of other
semiconductor products. Those products include standard logic,
application-specific integrated circuits, reduced instruction-set computing
microprocessors, and microcontrollers.
The semiconductor business comprised 80% of TI's 1998 revenues when the
divested memory business is excluded. TI's semiconductor products are used in a
diverse range of electronic systems, including digital cell phones, computers,
printers, hard disk drives, modems, networking equipment, digital cameras and
video recorders, motor controls, autos, and home appliances. Products are sold
primarily to original-equipment manufacturers and through distributors. TI's
semiconductor patent portfolio has been established as an ongoing contributor
to semiconductor revenues. Revenues generated from sales to TI's top three
semiconductor customers accounted for approximately 24% of total semiconductor
revenues in 1998.
In addition to semiconductors, TI has two other principal segments. The
largest, representing 12% of TI's 1998 revenues when the memory business is
excluded, is Materials & Controls (M&C). This business sells electrical and
electronic controls, electronic connectors, sensors, radio-frequency
identification systems and clad metals into commercial and industrial markets.
Revenues generated from sales to TI's top three M&C customers accounted for
approximately 15% of total M&C revenues in 1998.
Educational & Productivity Solutions (E&PS) represents 6% of TI's 1998
revenues when the memory business is excluded, and is a leading supplier of
educational and graphing calculators. Revenues generated from sales to TI's top
three E&PS customers accounted for approximately 26% of total E&PS revenues in
1998.
In addition, TI continues to invest in digital imaging, an emerging
business that produces micro-mirror-based devices that enable brightness and
clarity in large-screen video displays.
4
Summary Consolidated Financial Data
The following summary consolidated financial data is derived from our
audited consolidated financial statements, except for the financial data for the
six months ended June 30 that is derived from our unaudited consolidated
financial statements. You should read the financial data presented below in
conjunction with the consolidated financial statements, accompanying notes and
management's discussion and analysis of results of operations and financial
condition of TI, which are incorporated by reference into this prospectus.
(In Millions of Dollars, Except Ratios) As of or For the
As of or For the Six Months
Year Ended December 31 Ended June 30
----------------------------------------------------- ---------------------
1994 1995 1996 1997 1998 1998 1999(1)
-------- --------- -------- --------- --------- --------- ----------
Operating Data:
Net revenues..........................$ 8,608 $ 11,409 $ 9,940 $ 9,750 $ 8,460 $ 4,353 $ 4,385
Operating costs and expenses.......... 7,682 9,970 9,966 9,135 8,061 4,413 3,632
Profit (loss) from operations......... 926 1,439 (26) 615 399 (60) 753
Other income (expense) net............ 6 79 76 192 293 193 143
Interest on loans..................... 45 48 73 94 75 37 37
Income (loss) from continuing
operations before extraordinary
item...............................$ 592 $ 996 $ (46) $ 302 $ 407 $ 96 $ 859
Net income............................$ 691 $ 1,088 $ 63 $ 1,805 $ 407 $ 63 $ 567
Balance Sheet Data:
Working capital.......................$ 1,965 $ 2,566 $ 1,968 $ 3,607 $ 2,650 $ 3,345 $ 2,743
Property, plant and equipment (net)... 2,277 2,894 4,162 4,180 3,373 4,281 3,407
Total assets.......................... 6,468 8,748 9,360 10,849 11,250 10,264 11,047
Long-term debt........................ 808 804 1,697 1,286 1,027 1,230 960
Stockholders' equity.................. 3,039 4,095 4,097 5,914 6,527 5,968 6,721
Other Data:
Depreciation..........................$ 580 $ 681 $ 904 $ 1,109 $ 1,169 $ 583 $ 461
Capital expenditures.................. 1,020 1,351 2,063 1,238 1,031 698 505
Ratio of earnings to fixed charges(2). 10.0 14.3 --(3) 5.5 6.0 2.5 15.6
- ---------
(1) In the first quarter of 1999, the company announced a consolidation of
semiconductor manufacturing operations in Japan to improve manufacturing
efficiencies and reduce costs. The consolidation is expected to be
completed by the end of the year 2000. The action resulted in a pretax
charge of $14 million in the first quarter, of which $13 million was for
severance for the elimination of 153 jobs in Hatogaya, Japan and $1
million for other related costs. At June 30, 1999, the pay-out of the
severance cost obligation had not yet begun. Of the $14 million charge,
$11 million was included in cost of revenues and $3 million in marketing,
general and administrative expense.
(2) For the purpose of computing the ratio of earnings to fixed charges,
"earnings" consist of income (loss) before provision for income taxes,
interest expense, amortization of capitalized interest and that portion of
rental and lease expense which is representative of interest; and "fixed
charges" consist of interest incurred (expensed and capitalized) and that
portion of rental and lease expense which is representative of interest.
(3) The ratio for 1996 is not meaningful because the coverage deficiency was
$43 million.
5
The Exchange Offer
Exchange Notes......................... $400,000,000 in principal amount of 7% senior exchange
notes due 2004.
The Exchange Offer..................... We are offering to issue the exchange notes in exchange for
a like principal amount of outstanding 7% senior notes due
2004, issued by TI on August 17, 1999. We are offering to
issue the exchange notes to satisfy our obligations contained
in the registration rights agreement entered into when the
old notes were sold in transactions pursuant to Rule 144A
and Regulation S under the Securities Act and therefore
subject to transfer restrictions that will not apply to the
exchange notes.
Maturity Date.......................... August 15, 2004.
Interest Payment Dates................. February 15 and August 15, beginning on February 15,
2000.
Ranking................................ The exchange notes are unsecured senior obligations of TI
and will rank pari passu with all other unsecured senior
indebtedness of TI.
Optional Redemption.................... We may redeem some or all of the exchange notes at any
time at the redemption price described in the "Description
of Exchange Notes" section under the heading "--Optional
Redemption," plus accrued interest to the date of
redemption.
Certain Covenants...................... The indenture governing the exchange notes will contain
covenants that limit our ability and our subsidiaries' ability
to:
o enter into certain sale and lease-back transactions;
o incur liens on our assets to secure debt;
o merge or consolidate with another company; and
o transfer or sell substantially all of our assets.
For more details, see the section under the heading "Description
of Exchange Notes" in this prospectus.
Use of Proceeds........................ We will not receive any proceeds from the issuance of the
exchange notes.
Denomination of Exchange Notes......... The exchange notes will be issued only in registered form
without coupons, in denominations of $1,000 and multiples
of $1,000, except that exchange notes in certificate form
6
will be in denominations of $250,000 and multiples of
$1,000 in excess of $250,000.
Tenders, Expiration Date, Withdrawal... The exchange offer will expire at 5:00 p.m. New York City
time on o, 1999, unless it is extended. If you decide to
exchange your old notes for exchange notes, you must
acknowledge that you are not engaging in, and do not
intend to engage in, a distribution of the exchange notes. If
you decide to tender your old notes pursuant to the
exchange offer, you may withdraw them at any time prior
to o, 1999. If we decide for any reason not to accept any
old notes for exchange, your old notes will be returned to
you without expense promptly after the exchange offer
expires.
Federal Income Tax Consequences........ Your exchange of old notes for exchange notes pursuant to
the exchange offer will not result in any income, gain or
loss to you for federal income tax purposes. See "Material
United States Tax Consequences of the Exchange Offer."
Exchange Agent......................... Citibank, N.A. is the exchange agent for the exchange offer.
Failure to Tender Your Old Notes....... If you fail to tender your old notes in the exchange offer,
you will not have any further rights under the registration
rights agreement, including any right to require us to
register your old notes or to pay your liquidated damages.
7
DESCRIPTION OF EXCHANGE NOTES
The old notes were, and the exchange notes will be, issued under an
indenture dated as of July 15, 1996 between us and Citibank, N.A., as trustee.
The following summary of certain provisions of the indenture does not purport
to be complete and is qualified in its entirety by reference to the indenture.
The numerical references below are to provisions of the indenture. Whenever a
defined term is indicated but not defined in this section, the relevant
definition is contained in the indenture.
In this section, "we", "our," "us" and "TI" mean Texas Instruments
Incorporated excluding, unless the context otherwise requires or as otherwise
expressly stated, our subsidiaries.
The terms of the exchange notes are identical in all material respects to
the terms of the old notes, except that the transfer restrictions, registration
rights and additional interest provisions relating to the old notes do not
apply to the exchange notes.
General
The exchange notes
o will be limited to $400,000,000 aggregate principal amount;
o will mature on August 15, 2004; and
o will bear interest at a rate of 7% per annum.
The exchange notes will bear interest from August 20, 1999, payable on
February 15, and August 15, of each year, commencing February 15, 2000, to the
persons in whose names the exchange notes are registered at the close of
business on the preceding February 1, and August 1. Unless other arrangements
are made, interest payments will be paid by checks mailed to record holders at
their registered addresses. All payments of principal and interest will be
payable in U.S. dollars.
The exchange notes will be unsecured and will rank on a parity with any of
our other unsecured and unsubordinated obligations. Thus, we will not issue any
unsecured indebtedness that is senior to the exchange notes. As of June 30,
1999, we had no long-term indebtedness outstanding that was secured by any of
our assets. If, however, we issue indebtedness secured by any of our assets,
such secured indebtedness generally will be senior, with respect to such
assets, to the exchange notes offered hereby. The indenture does not contain
any covenants or provisions that may afford holders of the exchange notes
protection in the event of a highly leveraged transaction.
The exchange notes are redeemable prior to maturity as set forth below
under "--Optional Redemption." The exchange notes are not subject to any
sinking funds provisions.
The indenture does not limit the amount of debentures, notes or other
evidence of indebtedness that may be issued under the indenture. In this
section, we refer to securities issued under the indenture as "debt
securities".
The exchange notes will be issued only in registered form without coupons,
in denominations of $1,000 and multiples of $1,000, except that exchange notes
in certificate form will be in denominations of $250,000 and multiples of
$1,000 in excess of $250,000. We will not impose any service charge for any
registration of transfer or any exchange of the old notes, but we may require
payment of a sum sufficient to cover any related transfer tax or similar
governmental charge.
8
Optional Redemption
At our option, we may redeem the exchange notes, in whole or in part, at
any time, at a redemption price equal to the greater of:
o 100% of the principal amount of the exchange notes then outstanding;
or
o the sum of the present values of the remaining scheduled payments of
principal and interest thereon (not including any portion of such
payments of interest accrued to the date of redemption) discounted to
the redemption date on a semiannual basis (assuming a 360-day year
consisting of twelve 30-day months) at the adjusted treasury rate,
plus 15 basis points;
plus, in either of the above cases, accrued and unpaid interest thereon to
the date of redemption.
"Adjusted treasury rate" means, with respect to any redemption date:
o the yield, under the heading which represents the average for the
immediately preceding week, appearing in the most recently published
statistical release designated "H.15(519)" or any successor
publication that is published weekly by the Board of Governors of the
Federal Reserve System and that establishes yields on actively traded
United States treasury securities adjusted to constant maturity under
the caption "Treasury Constant Maturities," for the maturity
corresponding to the comparable treasury issue (if no maturity is
within three months before or after the remaining term of the
exchange notes, yields for the two published maturities most closely
corresponding to the comparable treasury issue shall be determined
and the adjusted treasury rate shall be interpolated or extrapolated
from such yields on a straight line basis, rounding to the nearest
month); or
o if such release (or any successor release) is not published during
the week preceding the calculation date or does not contain such
yields, the rate per annum equal to the semi-annual equivalent yield
to maturity of the comparable treasury issue, calculated using a
price for the comparable treasury issue, expressed as a percentage of
its principal amount, equal to the comparable treasury price for the
relevant redemption date.
The adjusted treasury rate shall be calculated on the third business day
preceding the redemption date.
"Comparable treasury issue" means the United States treasury security
selected by an independent investment banker as having a maturity comparable to
the remaining term of the exchange notes to be redeemed that would be utilized,
at the time of selection and in accordance with customary financial practice,
in pricing new issues of corporate debt securities of comparable maturity to
the remaining term of the exchange notes.
"Comparable treasury price" means (1) the average of four reference
treasury dealer quotations for such redemption date, after excluding the
highest and lowest reference treasury dealer quotations, or (2) if the
independent investment banker obtains fewer than four reference treasury dealer
quotations, the average of all such quotations.
"Independent investment banker" means one of the reference treasury
dealers appointed by the trustee after consultation with us.
"Reference treasury dealer" means:
o each of Morgan Stanley & Co. Incorporated, Salomon Smith Barney Inc.,
ABN AMRO Incorporated, Banc of America Securities LLC and their
respective successors; provided, however, that if any of them cease
to be a primary U.S. Government securities dealer in New York City,
we will substitute another primary treasury dealer, and
9
o any other primary treasury dealer selected by us.
"Reference treasury dealer quotations" means, with respect to each
reference treasury dealer and any redemption date, the average, as determined
by the independent investment banker, of the bid and asked prices for the
comparable treasury issue, expressed in each case as a percentage of its
principal amount, quoted in writing to the independent investment banker at
5:00 p.m., New York City time, on the third business day preceding such
redemption date.
We will mail a notice of redemption at least 30 days but not more than 60
days before the redemption date to each holder of exchange notes to be
redeemed. If we elect to partially redeem the exchange notes, the trustee will
select in a fair and appropriate manner the exchange notes to be redeemed.
(Section 12.2).
Once we have given notice of redemption for any exchange notes, those
exchange notes will become due and payable on the date and at the place stated
in such notice at the applicable redemption price, together with interest
accrued to the date fixed for redemption. On and after the date fixed for
redemption, those exchange notes will, with limited exceptions, cease to accrue
interest. (Section 12.4).
Certain Covenants of TI
The following covenants apply to the exchange notes:
Certain Definitions. The term "attributable debt" in respect of a sale and
leaseback transaction means, at the time of determination, the present value
(discounted at the interest rate implicit in the lease or, if it is not
practicable to determine such rate, then at the incremental borrowing rate of
TI determined in accordance with generally accepted accounting principles) of
the obligation of the lessee for net rental payments during the remaining term
of any lease.
(Section 3.7).
The term "consolidated net tangible assets" means, at any date, the total
assets appearing on the audited annual consolidated balance sheet of TI and its
subsidiaries for TI's most recently completed fiscal year, prepared in
accordance with generally accepted accounting principles, less (a) all current
liabilities as shown on such balance sheet, and (b) intangible assets. (Section
1.1).
The term "funded debt" means all debt whether incurred, assumed or
guaranteed, including purchase money indebtedness, maturing by its terms more
than one year from the date of creation thereof or which is renewable or
extendable at the sole option of the obligor in such manner that it may become
payable more than one year from the date of creation thereof. (Section 1.1).
The term "principal manufacturing property" means each manufacturing or
processing plant or facility of TI or a subsidiary located in the United States
of America (other than its territories and possessions) or Puerto Rico, except
any such manufacturing or processing plant or facility which the board of
directors by resolution reasonably determines not to be of material importance
to the total business conducted by TI and its consolidated subsidiaries.
(Section 1.1).
The term "restricted subsidiary" means:
(a) any subsidiary of TI which owns or is the lessee of any principal
manufacturing property; provided, however, that the term "restricted
subsidiary" shall not include (1) any subsidiary primarily engaged in
financing the operations of TI or its subsidiaries or both or (2) any
subsidiary acquired or organized for the purpose of business
acquisitions, or
(b) any other subsidiary which is hereafter designated by the board of
directors as a restricted subsidiary. (Section 1.1).
10
Restrictions on Liens. TI will not nor will it permit any restricted
subsidiary to issue or assume any debt for money borrowed (which, including
guarantees of debt for borrowed money, we refer to as "debt"), if the debt is
secured by a mortgage, pledge, lien or other encumbrance (which we refer to as
a "mortgage") upon any principal manufacturing property or on any shares of
stock or debt of any restricted subsidiary (whether such principal
manufacturing property, shares of stock or debt is now owned or subsequently
acquired) without in any such case effectively providing that the exchange
notes shall be secured equally and ratably with the debt. The foregoing
restrictions shall not apply to:
(a) mortgages on property existing at the time of or within 120 days
after acquisition of the property and certain purchase money
mortgages;
(b) mortgages on property of a corporation existing at the time that
corporation is merged into or consolidated with TI or a restricted
subsidiary;
(c) mortgages in favor of the United States or any political subdivision
or any instrumentality thereof, to secure certain payments pursuant
to any contract or statute or to secure any indebtedness incurred for
the purpose of financing all or any part of the purchase price or the
cost of construction of the property subject to the mortgages;
(d) any extension, renewal or replacement (or successive extensions,
renewals or replacements), in whole or in part, of any mortgage
referred to in clauses (a) through (c) above; and
(e) mortgages securing the indebtedness of a restricted subsidiary to TI
or to another restricted subsidiary. (Section 3.6).
Restrictions on Sale and Leaseback Transactions. TI will not, and will not
permit any restricted subsidiary to, enter into any lease longer than three
years covering any principal manufacturing property that is sold to any other
person in connection with such lease unless the proceeds from such sale or
transfer shall be at least equal to the fair value of such property as
determined by resolution by TI's board of directors and either:
(a) TI or such restricted subsidiary would be entitled, pursuant to the
"Restrictions on Liens" described above, to incur debt secured by a
mortgage on the principal manufacturing property involved in an
amount at least equal to the attributable debt in respect of the
principal manufacturing property without equally and ratably securing
the exchange notes, provided, that such attributable debt shall
thereupon be deemed to be Debt subject to the provisions of such
restrictions on liens, or
(b) within a period commencing twelve months prior to the consummation of
the sale and leaseback transaction and ending twelve months after
consummation of such transaction, TI or such restricted subsidiary
has expended or will expend for principal manufacturing property an
amount equal to
(1) the proceeds of such sale and leaseback transaction and TI
elects to designate such amount as a credit against such
transaction, or
(2) a part of the proceeds of such sale and leaseback transaction
and TI elects to designate such amount as a credit against such
transaction and treats an amount equal to the remainder of the
proceeds as provided in clause (3) below, or
(3) such attributable debt (less any amount elected under clause (2)
above) (A) is applied within 120 days after the transaction to
the retirement of funded debt or (B) is considered attributable
debt for purposes of the calculation of exempted debt and, after
giving effect to the exempted debt, the exempted debt does not
exceed 5% of consolidated net tangible assets. (Section 3.7).
11
Exempted Debt. Notwithstanding the restrictions on mortgages and sale and
leaseback transactions described above, TI and its restricted subsidiaries may,
in addition to amounts permitted under such restrictions, create debt secured
by mortgages, or enter into sale and leaseback transactions, which would
otherwise be subject to the foregoing restrictions, without equally and ratably
securing the exchange notes and without any obligation to make expenditures for
principal manufacturing property or to retire any debt, provided, that after
giving effect thereto, the aggregate additional outstanding amount of such debt
secured by mortgages plus attributable debt resulting from such sale and
leaseback transactions does not exceed 5% of consolidated net tangible assets.
(Sections 3.6 and 3.7).
Events of Default
An event of default will occur under the indenture with respect to the
exchange notes if:
(a) TI shall fail to pay when due any installment of interest on the
exchange notes and such default shall continue for 30 days;
(b) TI shall fail to pay when due all or any part of the principal of
(and premium, if any, on) the exchange notes (whether at maturity,
upon redemption, upon acceleration or otherwise);
(c) TI shall fail to perform or observe any other term, covenant or
agreement contained in the indenture (other than a covenant included
in the indenture solely for the benefit of a series of debt
securities other than the exchange notes) for a period of 90 days
after written notice thereof, as provided in the indenture;
(d) certain events of bankruptcy, insolvency or reorganization shall have
occurred;
(e) TI shall fail to convert any of the debt securities in accordance
with the indenture and such default shall continue for 45 days; or
(f) TI has not complied with any other covenant the noncompliance with
which would specifically constitute an event of default with respect
to the exchange notes. (Section 5.1).
The indenture provides that,
(a) if an event of default due to the default in payment of principal of,
or interest on, any series of debt securities, or due to the default
in performance or breach of any other covenant or warranty of TI
applicable to the debt securities of such series but not applicable
to all outstanding debt securities, or due to the default in the
conversion of any series of debt securities, shall have occurred and
be continuing, either the trustee or the holders of 25% in principal
amount of the debt securities of such series then outstanding may
declare the principal of all the exchange notes and interest accrued
thereon to be due and payable immediately, and
(b) if an event of default due to a default in the performance of any
other of the covenants or agreements in the indenture applicable to
all outstanding debt securities, or due to certain events of
bankruptcy, insolvency and reorganization of TI, shall have occurred
and be continuing, either the trustee or the holders of 25% in
principal amount of all debt securities then outstanding (treated as
one class) may declare the principal of all debt securities and
interest accrued thereon to be due and payable immediately, but upon
certain conditions such declarations may be annulled and past
defaults may be waived (except a continuing default in payment of
principal of (or premium, if any) or interest on the debt securities
or in the conversion of any debt security in accordance with the
indenture) by the holders of a majority in principal amount of the
debt securities of any series (or of all series, as the case may be)
then outstanding. (Sections 5.1 and 5.10).
The holders of a majority in principal amount of the outstanding exchange
notes may direct the time, method and place of conducting any proceeding for
any remedy available to the trustee or exercising any trust or power conferred
on the trustee; provided that such direction shall not be in conflict with any
rule of law or the indenture. (Section 5.9).
12
Before proceeding to exercise any right or power under the indenture at the
direction of such holders, the trustee shall be entitled to receive from such
holders reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with any such
direction. (Section 5.6).
TI will be required to furnish to the trustee annually a certificate of
certain officers of TI to the effect that, to the best of their knowledge, TI
is not in default in the performance or fulfillment of, or compliance with, the
terms of the indenture or, if they have knowledge that TI is in default,
specifying such default. (Section 3.5).
The indenture requires the trustee to give to all holders of outstanding
exchange notes notice of any default by TI with respect to the exchange notes,
unless such default shall have been cured or waived; however, except in the
case of a default in the payment of principal of (and premium, if any) or
interest on any outstanding exchange notes, the trustee is entitled to withhold
such notice in the event that the board of directors, the executive committee
or a trust committee of directors or certain officers of the trustee in good
faith determine that withholding such notice is in the interest of the holders
of the outstanding exchange notes. (Section 5.11).
Defeasance and Discharge
The indenture provides that TI will be discharged from its obligations in
respect of the indenture and the outstanding exchange notes (including its
obligation to comply with the provisions referred to under "-- Certain
Covenants of TI," if applicable, but excluding certain other obligations, such
as the obligation to pay principal of, premium, if any, and interest, if any,
on the exchange notes then outstanding, obligations of TI in the event of
acceleration following default referred to in clause (a) above under "-- Events
of Default" and obligations to register the transfer of, convert or exchange
such outstanding exchange notes and to replace stolen, lost or mutilated
certificates), upon the irrevocable deposit, in trust, of cash or U.S.
Government Obligations (as defined) that through the payment of interest and
principal thereof in accordance with their terms will provide cash in an amount
sufficient to pay any installment of principal of (and premium, if any) and
interest on such exchange notes on the stated maturity of such payments in
accordance with the terms of the indenture and such outstanding exchange notes,
provided that TI has received an opinion of counsel to the effect that such a
discharge will not be deemed, or result in, a taxable event with respect to
holders of the outstanding exchange notes and that certain other conditions are
met. (Section 10.1).
Modification of the Indenture
The indenture provides that TI and the trustee may enter into supplemental
indentures without the consent of the holders of the exchange notes to:
(a) secure any debt securities;
(b) evidence the assumption by a successor corporation of the obligations
of TI;
(c) add covenants for the protection of the holders of any debt
securities;
(d) cure any ambiguity or correct any inconsistency in the indenture;
(e) establish the form or terms of the debt securities of any series; and
(f) evidence the acceptance of appointment by a successor trustee.
(Section 8.1).
The indenture also contains provisions permitting TI and the trustee, with
the consent of the holders of not less than a majority in principal amount of
debt securities of each series then outstanding and affected, to add any
provisions to, or change in any manner or eliminate any of the provisions of,
the indenture or modify in any manner the rights of the holders of the debt
securities so affected, provided that TI and the trustee may not, without the
consent of the holder of each outstanding debt security affected thereby,
13
o extend the stated maturity of the principal of any debt security;
o reduce the principal amount thereof;
o reduce the rate or extend the time of payment of interest thereon;
o reduce any amount payable on redemption thereof;
o impair the right to institute suit for the enforcement of any such
payment when due or of any conversion right thereof, or affect any
right to convert any debt security;
o change the currency in which the principal thereof or interest
thereon is payable; or
o reduce the aforesaid percentage in principal amount of the debt
security the consent of the holders of which is required for any such
modification. (Section 8.2).
Consolidation, Merger, Conveyance or Transfer
TI may, without the consent of the trustee or the holders of the exchange
notes, consolidate or merge with, or convey, transfer or lease its properties
and assets substantially as an entirety to, any other corporation, provided
that any successor corporation is a corporation organized under the laws of the
United States of America or any state thereof or it agrees to indemnify and
hold harmless the holders of the exchange notes against certain taxes and
expenses and that such successor corporation expressly assumes all obligations
of TI under the exchange notes and that certain other conditions are met, and,
thereafter, except in the case of a lease, TI shall be relieved of all
obligations thereunder. (Article Nine).
Applicable Law
The exchange notes and the indenture will be governed by and construed in
accordance with the laws of the State of New York. (Section 11.8).
Book-Entry, Delivery and Form
The certificates representing the exchange notes will be issued in fully
registered form, without coupons. Except as described below, the exchange notes
will be deposited with, or on behalf of, the Depository Trust Company, New
York, New York, and registered in the name of DTC's nominee, in the form of a
global note.
We expect that pursuant to procedures established by DTC:
o upon deposit of the global note, DTC or its custodian will credit on
its internal system interests in the global notes to the accounts of
persons who have accounts with DTC ("participants"); and
o ownership of the global note will be shown on, and the transfer of
ownership thereof will be effected only through, records maintained
by DTC or its nominee (with respect to interests of participants) and
the records of participants (with respect to interests of persons
other than participants). Ownership of beneficial interests in the
global note will be limited to participants or persons who hold
interests through participants.
The descriptions of the operations and procedures of DTC, Euroclear and
Cedelbank set forth below are provided solely as a matter of convenience. These
operations and procedures are solely within the control of the respective
settlement systems and are subject to change by them from time to time. We do
not take any responsibility for these operations or procedures, and investors
are urged to contact the relevant system or its participants directly to
discuss these matters.
14
DTC has advised us that it is:
o a limited-purpose trust company organized under the laws of the State
of New York;
o a "banking organization" within the meaning of the New York Banking
Law;
o a member of the Federal Reserve System;
o a "clearing corporation" within the meaning of the New York Uniform
Commercial Code, as amended; and
o a "clearing agency" registered pursuant to the provisions of Section
17A of the Securities Exchange Act of 1934, as amended.
DTC was created to hold securities for its participants and to facilitate
the clearance and settlement of securities transactions between participants
through electronic book-entry changes to the accounts of its participants,
thereby eliminating the need for physical transfer and delivery of
certificates. DTC's participants include securities brokers and dealers, banks
and trust companies, clearing corporations and certain other organizations.
Indirect access to DTC's system is also available to other entities such as
banks, brokers, dealers and trust companies (collectively, the "indirect
participants") that clear through or maintain a custodial relationship with a
participant, either directly or indirectly. Investors who are not participants
may beneficially own securities held by or on behalf of DTC only through
participants or indirect participants.
We expect that pursuant to procedures established by DTC (i) upon deposit
of each global note, DTC will credit, on its book-entry registration and
transfer system, the designated accounts of participants with an interest in
the global note and (ii) ownership of beneficial interests in the exchange
notes will be shown on, and the transfer of ownership interests thereof will be
shown on, and effected only through, records maintained by DTC (with respect to
the interests of participants) and the participants and indirect participants
(with respect to the interests of persons other than participants).
The laws of some jurisdictions may require that certain purchasers of
securities take physical delivery of such securities in definitive form.
Accordingly, the ability to transfer beneficial interests in the exchange notes
represented by a global note to such persons may be limited. In addition,
because DTC can act only on behalf of its participants, who in turn act on
behalf of persons who hold interests through participants, the ability of a
person having a beneficial interest in the exchange notes represented by a
global note to pledge or transfer such interest to persons or entities that do
not participate in DTC's system, or to otherwise take actions in respect of
such interest, may be affected by the lack of physical definitive security in
respect of such interest.
So long as DTC or its nominee is the registered owner of a global note,
DTC or such nominee, as the case may be, will be considered the sole owner or
holder of the exchange notes represented by the global note for all purposes of
such exchange notes and under the indenture. Except as provided below, owners
of beneficial interests in a global note will not be entitled to have the
exchange notes represented by such global note registered in their names, will
not receive or be entitled to receive physical delivery of certificated notes,
and will not be considered the owners or holders thereof under the indenture
for any purpose, including with respect to the giving of any direction,
instruction or approval to the trustee thereunder. Accordingly, each holder
owning a beneficial interest in a global note must rely on procedures of DTC
and, if such holder is not a participant or an indirect participant, on the
procedures of the participant through which such holder owns its interest, to
exercise any rights of a holder of exchange notes under the indenture or such
global note. We understand that under existing industry practice, in the event
that we request any action of holders of exchange notes, or a holder that is an
owner of a beneficial interest in a global note desires to take any action that
DTC, as the holder of such global note, is entitled to take, DTC would
authorize the participants to take such action and the participants would
authorize holders owning through such participants to take such action or would
otherwise act upon the instruction of such holders. Neither we nor the trustee
will have any responsibility or liability for any
15
aspect of the records relating to or payments made on account of exchange notes
by DTC, or for maintaining, supervising or reviewing any records of DTC
relating to such exchange notes.
Payments with respect to principal of and premium, if any, and interest
on, any exchange notes represented by a global note registered in the name of
DTC or its nominee on the applicable record date will be payable by the trustee
to or at the direction of DTC or its nominee in its capacity as the registered
holder of the global note representing such exchange notes under the indenture.
Under the terms of the indenture, we and the trustee may treat the persons in
whose names the exchange notes, including the global notes, are registered as
the owners thereof for the purpose of receiving payment thereon and for any and
all other purposes whatsoever. Accordingly, neither we nor the trustee has or
will have any responsibility or liability for the payment of such amounts to
owners of beneficial interests in a global note (including principal, premium,
if any, and interest). Payments by the participants and the indirect
participants to the owners of beneficial interest in a global note will be
governed by standing instructions and customary industry practice and will be
the responsibility of the participants or the indirect participants and DTC.
DTC management is aware that some computer applications, systems, and the
like for processing data that are dependent upon calendar dates, including
dates before, on, and after January 1, 2000, may encounter "year 2000
problems." DTC has informed its participants and other members of the financial
community that it has developed and is implementing a program so that its
systems, as the same relate to the timely payment of distributions (including
principal and income payments) to securityholders, book-entry deliveries, and
settlement of trades within DTC continue to function appropriately. This
program includes a technical assessment and a remediation plan, each of which
is complete. Additionally, DTC's plan includes a testing phase, which is
expected to be completed within appropriate time frames.
However, DTC's ability to perform properly its services is also dependent
upon other parties, including but not limited to issuers and their agents, as
well as third party vendors from whom DTC licenses software and hardware, and
third party vendors on whom DTC relies for information or the provision of
services, including telecommunication and electrical utility service providers,
among others. DTC has informed the industry that it is contacting (and will
continue to contact) third party vendors from whom DTC acquires services to:
(i) impress upon them the importance of such services being year 2000
compliant; and (ii) determine the extent of their efforts for year 2000
remediation (and as appropriate, testing) of their services. In addition, DTC
is in the process of developing such contingency plans as it deems appropriate.
According to DTC, the foregoing information with respect to DTC has been
provided to the industry for informational purposes only and is not intended to
serve as a representation, warranty, or contract modification of any kind.
Transfers between participants in DTC will be effected in accordance with
DTC's procedures, and will be settled in same-day funds. Transfers between
participants in Euroclear and Cedelbank will be effected in the ordinary way in
accordance with their respective rules and operating procedures.
Subject to compliance with the transfer restrictions applicable to the
exchange notes, cross-market transfers between the participants in DTC, on the
one hand, and Euroclear and Cedelbank participants, on the other hand, will be
effected through DTC in accordance with DTC's rules on behalf of Euroclear and
Cedelbank, as the case may be, by its respective depositary; however, such
cross-market transactions will require delivery of instructions to Euroclear or
Cedelbank, as the case may be, by the counterparty in such system in accordance
with the rules and procedures and within the established deadlines (Brussels
time) of such system. Euroclear or Cedelbank, as the case may be, will, if the
transaction meets its settlement requirements, deliver instructions to its
respective depositary to take action to effect final settlement on its behalf
by delivering or receiving interests in the relevant global notes in DTC, and
making or receiving payment in accordance with normal procedures for same-day
funds settlement applicable to DTC. Euroclear participants and Cedelbank
participants may not deliver instructions directly to the depositaries for
Euroclear or Cedelbank.
16
Because of time zone differences, the securities account of a Euroclear or
Cedelbank participant purchasing an interest in a global note from a
participant in DTC will be credited, and any such crediting will be reported to
the relevant Euroclear or Cedelbank participant, during the securities
settlement processing day (which must be a business day for Euroclear or
Cedelbank) immediately following the settlement date of DTC. Cash received in
Euroclear or Cedelbank as a result of sales of interests in a global note by or
through a Euroclear or Cedelbank participant to a participant in DTC will be
received with value on the settlement date of DTC but will be available in the
relevant Euroclear or Cedelbank cash account only as of the business day for
Euroclear or Cedelbank following DTC's settlement date.
Although DTC, Euroclear and Cedelbank have agreed to the foregoing
procedures to facilitate transfers of interests in the global notes among
participants in DTC, Euroclear and Cedelbank, they are under no obligation to
perform or to continue to perform such procedures, and such procedures may be
discontinued at any time. Neither we nor the trustee will have any
responsibility for the performance by DTC, Euroclear or Cedelbank or their
respective participants or indirect participants of their respective
obligations under the rules and procedures governing their operations.
Certificated Notes
If DTC is at any time unwilling or unable to continue as depositary and we
do not appoint a successor depositary within 90 days, we will issue exchange
notes in definitive form in exchange for such global note. In addition, we may
at any time and in our sole discretion determine not to have any of the
exchange notes represented by one or more global notes and, in such event, will
issue certificated notes in exchange for all of the global note or global notes
representing such exchange notes. Upon any such issuance, the trustee is
required to register such certificated notes in the name of such person or
persons (or the nominee of any thereof) and cause the same to be delivered
thereto.
Neither we nor the trustee shall be liable for any delay by DTC or any
participant or indirect participant in identifying the beneficial owners of the
related exchange notes and each such person may conclusively rely on, and shall
be protected in relying on, instructions from DTC for all purposes (including
with respect to the registration and delivery, and the respective principal
amounts, of the exchange notes to be issued).
17
THE EXCHANGE OFFER
Pursuant to a registration rights agreement between TI and the initial
purchasers, we agreed to use our reasonable best efforts to cause to become
effective a registration statement with respect to an issue of notes identical
in all material respects to the old notes and, upon becoming effective, to
offer the holders of the old notes the opportunity to exchange their old notes
for the exchange notes. Under existing SEC interpretations set forth in several
no-action letters to third parties, the exchange notes are, in general, freely
transferable (other than by holders who are broker-dealers or by an affiliate
of TI) after the exchange offer without further registration under the
Securities Act. In the event that due to a change in current interpretations by
the SEC, we are not permitted to effect such exchange offer, it is contemplated
that we will instead file a shelf registration statement covering resales by
the holders of the old notes and will use our reasonable best efforts to cause
such shelf registration statement to become effective and to keep such shelf
registration statement effective for a maximum of two years from the closing
date, which is the date we delivered the old notes to the initial purchasers.
Terms of the Exchange Offer; Period for Tendering Old Notes
Upon the terms and subject to the conditions set forth in this prospectus
and in the accompanying letter of transmittal, we will:
o accept for exchange old notes, which are properly tendered on or
prior to the expiration date and not withdrawn as permitted below;
and
o keep the exchange offer open for not less than 20 business days (or
longer if required by applicable law) after the date notice of the
exchange offer is mailed to the holders of the old notes.
The term "expiration date" means 5:00 p.m., New York City time, on o ,
1999; provided, however, that if we, in our sole discretion, have extended the
period of time for which the exchange offer is open, the term "expiration date"
means the latest time and date to which the exchange offer is extended.
As of the date of this prospectus, $400,000,000 in aggregate principal
amount of the old notes were outstanding. The exchange offer is not conditioned
upon any minimum principal amount of old notes being tendered. This prospectus,
together with the letter of transmittal, is first being sent on or about the
date set forth on the cover page to all holders of old notes at the addresses
set forth in the security register with respect to old notes maintained by the
trustee.
We expressly reserve the right:
o at any time or from time to time, to extend the period of time during
which the exchange offer is open, and thereby delay acceptance of any
old notes; and
o to amend or terminate the exchange offer, and not to accept for
exchange any old notes not previously accepted for exchange, upon the
occurrence of any of the conditions of the exchange offer specified
below under "Certain Conditions to the Exchange Offer."
We will give oral or written notice of any extension, amendment,
non-acceptance or termination to the holders of the old notes as promptly as
practicable, such notice in the case of any extension to be issued by means of
a press release or other public announcement no later than 9:00 a.m., New York
City time, on the next business day after the previously scheduled expiration
date. Without limiting the manner in which we may choose to make any public
announcement and subject to applicable law, we shall have no obligation to
publish, advertise or otherwise communicate any such public announcement other
than by issuing a release to the Dow Jones News Service.
18
Holders of old notes do not have appraisal or dissenters' rights in
connection with the exchange offer. Old notes that are not tendered for
exchange or are tendered but not accepted in connection with the exchange offer
will remain outstanding and be entitled to the benefits of the indenture, but
will not be entitled to any further registration rights under the registration
rights agreement. We intend to conduct the exchange offer in accordance with
the applicable requirements of the Exchange Act and the relevant rules and
regulations of the SEC.
Procedures for Tendering Old Notes
The tender to us of old notes by a holder as set forth below and the
acceptance of the old notes by us will constitute a binding agreement between
the tendering holder and us upon the terms and subject to the conditions set
forth in this prospectus and in the accompanying letter of transmittal. Except
as set forth below, a holder who wishes to tender old notes for exchange
pursuant to the exchange offer must transmit a properly completed and duly
executed letter of transmittal, including all other documents required by such
letter of transmittal, to Citibank, N.A., who is acting as our exchange agent,
at the address set forth below under "exchange agent" on or prior to the
expiration date. In addition:
o certificates for such old notes must be received by the exchange
agent along with the letter of transmittal;
o a timely confirmation of a book-entry transfer of such old notes, if
such procedure is available, into the exchange agent's account at DTC
pursuant to the procedure for book-entry transfer described below,
must be received by the exchange agent prior to the expiration date;
or
o the holder must comply with the guaranteed delivery procedures
described below.
The method of delivery of old notes, letters of transmittal and all other
required documents is at the election and risk of the holders. If such delivery
is by mail, it is recommended that registered mail, properly insured, with
return receipt requested, be used. In all cases, sufficient time should be
allowed to assure timely delivery. No letters of transmittal or old notes
should be sent to TI.
Signatures on a letter of transmittal or a notice of withdrawal, as the
case may be, must be guaranteed unless the old notes surrendered for exchange
pursuant thereto are tendered:
o by a registered holder of the old notes who has not completed the box
entitled "Special Issuance Instructions" or "Special Delivery
Instructions" on the letter of transmittal; or
o for the account of an eligible institution.
If signatures on a letter of transmittal or a notice of withdrawal, as the case
may be, are required to be guaranteed, such guarantees must be by an eligible
institution, which is a firm that is a member of a registered national
securities exchange or a member of the National Association of Securities
Dealers, Inc., or a commercial bank or trust company having an office or
correspondent in the United States. If old notes are registered in the name of
a person other than the person signing the letter of transmittal, the old notes
surrendered for exchange must be endorsed by, or be accompanied by a written
instrument or instruments of transfer or exchange, in satisfactory form as
determined by us in our sole discretion, duly executed by the registered holder
with the signature thereon guaranteed by an eligible institution.
All questions as to the validity, form, eligibility (including time of
receipt) and acceptance of old notes tendered for exchange will be determined
by us in our sole discretion, which determination will be final and binding. We
reserve the absolute right:
o to reject any and all tenders of any particular old notes not
properly tendered or to not accept any particular old notes which
acceptance might, in our judgment or the judgment of our counsel, be
unlawful; and
19
o to waive any defects or irregularities or conditions of the exchange
offer as to any particular old notes either before or after the
expiration date (including the right to waive the ineligibility of
any holder who seeks to tender old notes in the exchange offer).
Unless waived, any defects or irregularities in connection with the tender
of old notes for exchange must be cured within such reasonable period of time
as we determine. Neither we, the exchange agent nor any other person will be
under any duty to give notification of any defect or irregularity with respect
to any tender of old notes for exchange, nor will any of them incur any
liability for failure to give such notification.
If the letter of transmittal is signed by a person or persons other than
the registered holder or holders of old notes, such old notes must be endorsed
or accompanied by appropriate powers of attorney, in either case signed exactly
as the name or names of the registered holder or holders that appear on the old
notes.
If the letter of transmittal or any old notes or powers of attorney are
signed by trustees, executors, administrators, guardians, attorneys-in-fact,
officers or corporations or others acting in a fiduciary or representative
capacity, such person should so indicate when signing and, unless waived by us,
proper evidence satisfactory to us of its authority to so act must be
submitted.
By executing, or otherwise becoming bound by a letter of transmittal, each
holder of the old notes (other than certain specified holders) will represent
that:
o it is not our affiliate;
o any exchange notes to be received by it were acquired in the ordinary
course of business; and
o it has no arrangement with any person to participate in the
distribution (within the meaning of the Securities Act) of the
exchange notes.
If the tendering holder is a broker-dealer that will receive exchange notes for
its own account in exchange for old notes that were acquired as a result of
market-making activities or other trading activities, it will be required to
acknowledge that it will deliver a prospectus in connection with any resale of
such exchange notes. See "--Resale of the Exchange Notes."
Acceptance of Old Notes for Exchange; Delivery of Exchange Notes
Upon satisfaction or waiver of all of the conditions to the exchange
offer, we will accept, promptly after the expiration date, all old notes
properly tendered and will issue the exchange notes promptly after acceptance
of the old notes. See "Certain Conditions to the Exchange Offer" below. For
purposes of the exchange offer, we will be deemed to have accepted properly
tendered old notes for exchange if and when we have given oral or written
notice thereof to the exchange agent.
In all cases, issuance of exchange notes for old notes that are accepted
for exchange pursuant to the exchange offer will be made only after timely
receipt by the exchange agent of certificates for such old notes or a timely
book-entry confirmation of such old notes into the exchange agent's account at
DTC pursuant to the book-entry transfer procedures described below, a properly
completed and duly executed letter of transmittal and all other required
documents. If any tendered old notes are not accepted for any reason set forth
in the terms and conditions of the exchange offer or if certificates
representing old notes are submitted for a greater principal amount than the
holder desires to exchange, such unaccepted or non-exchanged old notes will be
returned without expense to the tendering holder thereof (or, in the case of
old notes tendered by book-entry transfer into the exchange agent's account at
DTC pursuant to the book-entry transfer procedures described below, such
non-exchanged old notes will be credited to an account maintained with DTC) as
promptly as practicable after the expiration or termination of the exchange
offer.
20
Book-Entry Transfer
The exchange agent will make a request to establish an account with
respect to the old notes at DTC for purposes of the exchange offer promptly
after the date of this prospectus. Any financial institution that is a
participant in DTC's systems may make book-entry delivery of old notes by
causing DTC to transfer such old notes into the exchange agent's account in
accordance with DTC's Automated Tender Offer Program, ATOP, procedures for
transfer. However, the exchange for the old notes so tendered will only be made
after timely confirmation of such book-entry transfer of old notes into the
exchange agent's account, and timely receipt by the exchange agent of an
agent's message and any other documents required by the letter of transmittal.
The term "agent's message" means a message, transmitted by DTC and received by
the exchange agent and forming a part of a book-entry confirmation, which
states that DTC has received an express acknowledgment from a participant
tendering old notes that are the subject of such book-entry confirmation, that
such participant has received and agrees to be bound by the terms of the letter
of transmittal, and that we may enforce such agreement against such
participant.
Although delivery of old notes may be effected through book-entry transfer
into the exchange agent's account at DTC, the letter of transmittal (or
facsimile thereof), properly completed and duly executed, with any required
signature guarantees and any other required documents, must in any case be
delivered to and received by the exchange agent at its address set forth under
"--Exchange Agent" on or prior to the expiration date, or the guaranteed
delivery procedure set forth below must be complied with.
Delivery of documents to DTC in accordance with its procedures does not
constitute delivery to the Exchange Agent.
Guaranteed Delivery Procedures
If a registered holder of the old notes desires to tender such old notes
and the old notes are not immediately available, or time will not permit such
holder's old notes or other required documents to reach the exchange agent
before the expiration date, or the procedure for book-entry transfer cannot be
completed on a timely basis, a tender may be effected if:
o the tender is made through an eligible institution;
o prior to the expiration date, the exchange agent receives from such
eligible institution a properly completed and duly executed letter of
transmittal (or a facsimile letter of transmittal) and notice of
guaranteed delivery, substantially in the form provided by us (by
telegram, telex, facsimile transmission, mail or hand delivery),
setting forth the name and address of the holder of old notes and the
amount of old notes tendered, stating that the tender is being made
thereby and guaranteeing that within five New York Stock Exchange
trading days after the date of execution of the notice of guaranteed
delivery, the certificates of all physically tendered old notes, in
proper form for transfer, or a book-entry confirmation, as the case
may be, and any other documents required by the letter of transmittal
will be deposited by the eligible institution with the exchange
agent; and
o the certificates for all physically tendered old notes, in proper
form for transfer, or a book-entry confirmation, as the case may be,
and all other documents required by the letter of transmittal, are
received by the exchange agent within five NYSE trading days after
the date of execution of the notice of guaranteed delivery.
Withdrawal Rights
Tenders of old notes may be withdrawn at any time prior to the expiration
date.
For a withdrawal to be effective, a written notice of withdrawal must be
received by the exchange agent at one of the addresses set forth below under
"Exchange Agent." Any such notice of withdrawal must specify:
21
o the name of the person having tendered the old notes to be withdrawn;
o the old notes to be withdrawn (including the principal amount of such
old notes); and
o where certificates for old notes have been transmitted, the name in
which such old notes are registered, if different from that of the
withdrawing holder.
If certificates for old notes have been delivered or otherwise identified
to the exchange agent, then, prior to the release of such certificates, the
withdrawing holder must also submit the serial numbers of the particular
certificates to be withdrawn and a signed notice of withdrawal with signatures
guaranteed by an eligible institution unless such holder is an eligible
institution. If old notes have been tendered pursuant to the procedure for
book-entry transfer described above, any notice of withdrawal must specify the
name and number of the account at DTC to be credited with the withdrawn old
notes and otherwise comply with the procedures of such facility. All questions
as to the validity, form and eligibility (including time of receipt) of such
notices will be determined by us, and our determination will be final and
binding on all parties.
Any old notes so withdrawn will be deemed not to have been validly
tendered for exchange for purposes of the exchange offer. Any old notes which
have been tendered for exchange but which are not exchanged for any reason will
be returned to the holder thereof without cost to such holder (or, in the case
of old notes tendered by book-entry transfer into the exchange agent's account
at DTC pursuant to the book-entry transfer procedures described above, such old
notes will be credited to an account maintained with DTC for the old notes) as
soon as practicable after withdrawal, rejection of tender or termination of the
exchange offer. Properly withdrawn old notes may be re-entered by following one
of the procedures described under "Procedures for Tendering Old Notes" above at
any time on or prior to the expiration date.
Certain Conditions to the Exchange Offer
Notwithstanding any other provisions of the exchange offer, we are not
required to accept for exchange, or to issue exchange notes in exchange for,
any old notes and may terminate or amend the exchange offer, if at any time
before the acceptance of such old notes for exchange or the exchange of the
exchange notes for such old notes, such acceptance or issuance would violate
applicable law or any interpretation of the SEC's staff.
The condition in the paragraph immediately above is for our sole benefit
and may be asserted by us regardless of the circumstances giving rise to such
condition. Our failure at any time to exercise the foregoing rights is not to
be deemed a waiver of any such right and each such right shall be deemed an
ongoing right which may be asserted at any time and from time to time.
In addition, we will not accept for exchange any old notes tendered, and
no exchange notes will be issued in exchange for any such old notes, if at such
time any stop order is threatened or in effect with respect to the registration
statement of which this prospectus constitutes a part or the qualification of
the indenture under the Trust Indenture Act.
22
Exchange Agent
Citibank, N.A. has been appointed as the exchange agent for the exchange
offer. All executed letters of transmittal should be directed to the exchange
agent at one of the addresses set forth below. Questions and requests for
assistance, requests for additional copies of this prospectus or of the letter
of transmittal and requests for notices of guaranteed delivery should be
directed to the exchange agent, addressed as follows:
Deliver To:
Citibank, N.A., Exchange Agent
By Mail or By Hand:
Corporate Trust Window
111 Wall Street, 5th Floor
New York, NY 10043
By Facsimile:
(212) 657-4009
Confirm by Telephone:
(212) 657-8476
Delivery to an address other than as set forth above or transmission of
instructions via facsimile other than as set forth above does not constitute a
valid delivery.
Fees and Expenses
The principal solicitation is being made by mail; however, additional
solicitation may be made by telegraph, telephone or in person by our officers,
regular employees and affiliates. We will not pay any additional compensation
to any such officers and employees who engage in soliciting tenders. We will
not make any payment to brokers, dealers, or others soliciting acceptances of
the exchange offer. However, we will pay the exchange agent reasonable and
customary fees for its services and will reimburse it for its reasonable
out-of-pocket expenses in connection therewith.
The estimated cash expenses to be incurred in connection with the exchange
offer will be paid by us and are estimated in the aggregate to be $350,000.
Transfer Taxes
Holders who tender their old notes for exchange will not be obligated to
pay any transfer taxes in connection therewith, except that holders who
instruct us to register exchange notes in the name of, or request that old
notes not tendered or not accepted in the exchange offer to be returned to, a
person other than the registered tendering holder will be responsible for the
payment of any applicable transfer tax thereon.
Resale of the Exchange Notes
Under existing interpretations of the SEC's staff contained in several
no-action letters to third parties, the exchange notes would be freely
transferable after the exchange offer without further registration under the
Securities Act. However, any purchaser of old notes who is an "affiliate" of
ours or who intends to participate in the exchange offer for the purpose of
distributing the exchange notes:
23
o will not be able to rely on the interpretation of the SEC's staff;
o will not be able to tender its old notes in the exchange offer; and
o must comply with the registration and prospectus delivery
requirements of the Securities Act in connection with any sale or
transfer of the old notes unless such sale or transfer is made
pursuant to an exemption from such requirements.
By executing, or otherwise becoming bound by, the letter of transmittal
each holder of the old notes (other than certain specified holders) will
represent that:
o it is not our "affiliate";
o any exchange notes to be received by it were acquired in the ordinary
course of its business; and
o it has no arrangement with any person to participate in the
distribution (within the meaning of the Securities Act) of the
exchange notes.
In addition, in connection with any resales of exchange notes, any
participating broker-dealer who acquired the old notes for its own account as a
result of market-making or other trading activities must deliver a prospectus
meeting the requirements of the Securities Act. The SEC has taken the position
that participating broker-dealers may fulfill their prospectus delivery
requirements with respect to the exchange notes (other than a resale of an
unsold allotment from the original sale of the old notes) with the prospectus
contained in the exchange offer registration statement. Under the registration
rights agreement, we are required to allow participating broker-dealers and
other persons, if any, subject to similar prospectus delivery requirements to
use this prospectus as it may be amended or supplemented from time to time, in
connection with the resale of such exchange notes.
MATERIAL UNITED STATES TAX CONSEQUENCES OF THE EXCHANGE OFFER
The exchange of old notes for exchange notes pursuant to the exchange
offer will not result in any United States federal income tax consequences to
holders. When a holder exchanges an old note for an exchange note pursuant to
the exchange offer, the holder will have the same adjusted basis and holding
period in the exchange note as in the old note immediately before the exchange.
PLAN OF DISTRIBUTION
Each participating broker-dealer in connection with the exchange offer
must acknowledge that it will deliver a prospectus in connection with any
resale of exchange notes. This prospectus, as it may be amended or supplemented
from time to time, may be used by a participating broker-dealer in connection
with resales of exchange notes received in exchange for old notes where such
old notes were acquired as a result of market-making activities or other
trading activities. We have agreed that we will make this prospectus, as
amended or supplemented, available to any participating broker-dealer for use
in connection with any such resale and participating broker-dealers shall be
authorized to deliver this prospectus for a period not exceeding 90 days after
the expiration date.
We will not receive any proceeds from any sales of the exchange notes by
participating broker-dealers. Exchange notes received by participating
broker-dealers for their own account pursuant to the exchange offer may be sold
from time to time, in one or more transactions in the over-the-counter market,
in negotiated transactions, through the writing of options on the exchange
notes or a combination of such methods of resale, at market prices prevailing
at the time of resale, at prices related to such prevailing market prices or at
negotiated prices. Any such resale may be made directly to purchasers or to or
through brokers or dealers who may receive compensation in the form of
commissions
24
or concessions from any such participating broker-dealer that resells the
exchange notes that were received by it for its own account pursuant to the
exchange offer. Any broker or dealer that participates in a distribution of such
exchange notes may be deemed to be an "underwriter" within the meaning of the
Securities Act and any profit on any such resale of exchange notes and any
omissions or concessions received by any such persons may be deemed to be
underwriting compensation under the Securities Act. The letter of transmittal
states that by acknowledging that it will deliver and by delivering a
prospectus, a participating broker-dealer will not be deemed to admit that it is
an "underwriter" within the meaning of the Securities Act.
We will promptly send additional copies of this prospectus and any
amendment or supplement to this prospectus to any participating broker-dealer
that requests such documents in the letter of transmittal. See "The Exchange
Offer."
LEGAL MATTERS
The validity of the notes offered hereby will be passed upon for us by
Davis Polk & Wardwell, New York, New York.
INDEPENDENT AUDITORS
The consolidated financial statements included in our Annual Report on
Form 10-K/A for the year ended December 31, 1998 have been audited by Ernst &
Young LLP, independent auditors, as set forth in their report therein.
25
=========================================================
You should rely only on the information
contained in this document or that we have
referred you to. We have not authorized anyone to
provide you with information that is different. We
are not making an offer of these securities in any
state where the offer is not permitted. You should
not assume that the information in this prospectus
or any prospectus supplement is accurate as of any
date other than the date on the front of those
documents.
----------------------
TABLE OF CONTENTS
Page
----
Where You Can Find More Information.................2
Forward-Looking Statements..........................3
Prospectus Summary..................................4
Summary Consolidated Financial Data.................5
The Exchange Offer..................................6
Description of Exchange Notes.......................8
Material United States Tax Consequences of the
Exchange Offer..................................24
Plan of Distribution...............................24
Legal Matters......................................25
Independent Auditors...............................25
=========================================================
=========================================================
$400,000,000
Texas Instruments
Incorporated
[LOGO]
7% senior exchange notes
due 2004
----------
Prospectus
----------
o, 1999
=========================================================
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 20. Indemnification of Directors and Officers.
The General Corporation Law of the State of Delaware, at Section 145,
provides, in pertinent part, that a corporation may indemnify any person who
was or is a party or is threatened to be made a party to any threatened,
pending or complete action, suit or proceeding, whether civil, criminal,
administrative or investigative, other than an action by or in the right of the
corporation, by reason of the fact that he is or was a director, officer,
employee or agent of the corporation, or is or was serving at the request of
the corporation as the director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses, including attorneys' fees, judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction or upon a
plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful. In addition, the
indemnification of expenses, including attorneys' fees, is allowed in
derivative actions, except no indemnification is allowed in respect to any
claim, issue or matter as to which any such person has been adjudged to be
liable to the corporation, unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought decides that
indemnification is proper. To the extent that any such person succeeds on the
merits or otherwise, he shall be indemnified against expenses, including
attorney's fees, actually and reasonably incurred by him in connection
therewith. The determination that the person to be indemnified met the
applicable standard of conduct, if not made by a court, is made by the
directors of the corporation by a majority vote of the directors not party to
such an action, suit or proceeding even though less than a quorum, by a
committee of such directors designated by majority vote of such directors even
though less than a quorum, or if there are no such directors, or if such
directors so direct, by independent legal counsel in a written opinion or by
the stockholders. Expenses may be paid in advance upon the receipt, in the case
of officers and directors, of undertakings to repay such amount if it shall
ultimately be determined that the person is not entitled to be indemnified by
the corporation as authorized in this section. A corporation may purchase
indemnity insurance.
The above described indemnification and advancement of expenses, unless
otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director, officer, employee or agent and inure to the benefit of
such person's heirs, executors and administrators. Article VI, Section 2 of the
Texas Instruments' By-laws provides that Texas Instruments shall indemnify its
officers and directors for such expenses, judgments, fines and amounts paid in
settlement to the full extent permitted by the laws of the State of Delaware.
Section 102(b)(7) of the General Corporation Law of the State of Delaware, as
amended, permits a corporation to provide in its certificate of incorporation
that a director of the corporation shall not be personally liable to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the General Corporation
Law of the State of Delaware, or (iv) for any transaction from which the
director derived an improper personal benefit. Article Seventh of Texas
Instruments' Restated Certificate of Incorporation contains such a provision.
Under insurance policies of Texas Instruments, directors and officers of
Texas Instruments may be indemnified against certain losses arising from
certain claims, including claims under the Securities Act of 1933, which may be
made against such persons by reason of their being such directors or officers.
II-1
Item 21. Exhibits and Financial Statement Schedules
(a) Exhibits (see index to exhibits at E-1).
Item 22. Undertakings
(a) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act
of 1934) that is incorporated by reference in the registration statement shall
be deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(b) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
(c) The undersigned registrant hereby undertakes to respond to requests
for information that is incorporated by reference into the prospectus pursuant
to Item 4, 10(b), 11, or 13 of this form, within one business day of receipt of
such request, and to send the incorporated documents by first class mail or
other equally prompt means. This includes information contained in documents
filed subsequent to the effective date of the registration statement through
the date of responding to the request.
(d) The undersigned registrant hereby undertakes to supply by means of a
post-effective amendment all information concerning a transaction, and the
company being acquired involved therein, that was not the subject of and
included in the registration statement when it became effective.
II-2
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
registrant has duly caused this Registration Statement on Form S-4 to be signed
on its behalf by the undersigned, thereunto duly authorized, in Dallas, Texas,
on the 15th day of October, 1999.
TEXAS INSTRUMENTS INCORPORATED
By: /s/ WILLIAM A. AYLESWORTH
-----------------------------------
William A. Aylesworth
Senior Vice President,
Treasurer and
Chief Financial Officer
The registrant and each person whose signature appears below constitutes
and appoints each of Thomas J. Engibous, Richard J. Agnich, William A.
Aylesworth, and M. Samuel Self, or any of them, each acting alone, his true and
lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign and file (i) a registration statement, and any and all
amendments, thereto, relating to the offering covered hereby filed pursuant to
Rule 462(b) under the Securities Act of 1933, as amended, and (ii) any and all
amendments (including post-effective amendments) to this registration
statement, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorney-in-fact and agent, full power and authority to do and perform each and
every act and thing requisite or necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement on Form S-4 has been signed below by the following
persons in the capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
- ---------------------------
James R. Adams Director October 15, 1999
/s/ DAVID L. BOREN
- ---------------------------
David L. Boren Director October 15, 1999
/s/ JAMES B. BUSEY IV
- ---------------------------
James B. Busey IV Director October 15, 1999
/s/ DANIEL A. CARP
- ---------------------------
Daniel A. Carp Director October 15, 1999
II-3
Signature Title Date
--------- ----- ----
/s/ THOMAS J. ENGIBOUS
- --------------------------- Chairman of the Board; President;
Thomas J. Engibous Chief Executive Officer; Director October 15, 1999
/s/ GERALD W. FRONTERHOUSE
- ---------------------------
Gerald W. Fronterhouse Director October 15, 1999
/s/ DAVID R. GOODE
- ---------------------------
David R. Goode Director October 15, 1999
/s/ WAYNE R. SANDERS
- ---------------------------
Wayne R. Sanders Director October 15, 1999
/s/ RUTH J. SIMMONS
- ---------------------------
Ruth J. Simmons Director October 15, 1999
/s/ CLAYTON K. YEUTTER
- ---------------------------
Clayton K. Yeutter Director October 15, 1999
/s/ WILLIAM A. AYLESWORTH
- --------------------------- Senior Vice President; Treasurer;
William A. Aylesworth Chief Financial Officer October 15, 1999
/s/ M. SAMUEL SELF
- --------------------------- Senior Vice President; Controller; October 15, 1999
M. Samuel Self Chief Accounting Officer
II-4
EXHIBIT INDEX
Exhibit No. Document
- ----------- --------
1.1 Registration Rights Agreement dated as of August 17, 1999
between Texas Instruments, Incorporated, Morgan Stanley & Co.
Incorporated, Salomon Smith Barney Inc., ABN AMRO Incorporated
and Banc of America Securities LLC, as initial purchasers
*4.1 Indenture, dated as of July 15, 1996 between Texas Instruments
Incorporated and the trustee
5.1 Opinion of Davis Polk & Wardwell with respect to the exchange
notes
12.1 Computation of Ratio of Earnings to Fixed Charges
23.1 Consent of Davis Polk & Wardwell (contained in their
opinion filed as Exhibit 5.1)
23.2 Consent of Ernst & Young LLP
24.1 Power of Attorney (included on the signature page of this
registration statement)
25.1 Statement of Eligibility of Citibank, N.A. on Form T-1
99.1 Form of Letter of Transmittal
99.2 Form of Notice of Guaranteed Delivery
99.3 Form of Letter to Clients
99.4 Form of Letter to Nominees
99.5 Form of Instructions to Registered Holder and/or Book-Entry
Transfer participant from Owner
- ---------
* Incorporated by reference to the Exhibits filed with Texas Instruments'
Registration Statement No. 333-03571 on Form S-3 filed on May 13, 1996.
E-1
EXHIBIT 1.1
===============================================================================
REGISTRATION RIGHTS AGREEMENT
Dated August 17, 1999
between
TEXAS INSTRUMENTS INCORPORATED
and
MORGAN STANLEY & CO. INCORPORATED
SALOMON SMITH BARNEY INC
ABN AMRO INCORPORATED
BANC OF AMERICA SECURITIES LLC
===============================================================================
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and entered
into August 17, 1999, between TEXAS INSTRUMENTS INCORPORATED, a Delaware
corporation (the "Company"), and MORGAN STANLEY & CO. INCORPORATED, SALOMON
SMITH BARNEY INC, ABN AMRO INCORPORATED and BANC OF AMERICA SECURITIES LLC (the
"Initial Purchasers").
This Agreement is made pursuant to the Purchase Agreement dated August 17,
1999, between the Company and the Initial Purchasers (the "Purchase
Agreement"), which provides for the sale by the Company to the Initial
Purchasers of an aggregate of $400,000,000 principal amount of the Company's 7%
Senior Notes Due 2004 (the "Securities"). In order to induce the Initial
Purchasers to enter into the Purchase Agreement, the Company has agreed to
provide to the Initial Purchasers and their direct and indirect transferees the
registration rights set forth in this Agreement. The execution of this
Agreement is a condition to the closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. Definitions.
As used in this Agreement, the following capitalized defined terms shall
have the following meanings:
"1933 Act" shall mean the Securities Act of 1933, as amended from
time to time.
"1934 Act" shall mean the Securities Exchange Act of 1934, as amended
from time to time.
"Closing Date" shall mean the Closing Date as defined in the Purchase
Agreement.
"Company" shall have the meaning set forth in the preamble and shall
also include the Company's successors.
"Effectiveness Deadline" shall have the meaning set forth in Section
2(a) hereof.
"Exchange Offer" shall mean the exchange offer by the Company of
Exchange Securities for Registrable Securities pursuant to Section 2(a)
hereof.
"Exchange Offer Registration" shall mean a registration under the
1933 Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an exchange offer
registration statement on Form S-4 (or, if applicable, on another
appropriate form) and all
2
amendments and supplements to such registration statement, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Exchange Securities" shall mean securities issued by the Company
under the Indenture containing terms identical to the Securities (except
for references to certain interest rate provisions, restrictions on
transfers and restrictive legends) and to be offered to Holders of
Securities in exchange for Securities pursuant to the Exchange Offer.
"Holder" shall mean the Initial Purchasers, for so long as they own
any Registrable Securities, and each of their successors, assigns and
direct and indirect transferees who become registered owners of
Registrable Securities under the Indenture; provided that for purposes of
Sections 4 and 5 of this Agreement, the term "Holder" shall include
Participating Broker-Dealers (as defined in Section 4(a)) hereof.
"Indenture" shall mean the Indenture relating to the Securities dated
as of July 15, 1996, between the Company and Citibank, N.A., as Trustee,
as the same may be supplemented or amended from time to time in accordance
with the terms thereof.
"Initial Purchasers" shall have the meaning set forth in the
preamble.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of outstanding Registrable Securities; provided
that whenever the consent or approval of Holders of a specified percentage
of Registrable Securities is required hereunder, Registrable Securities
held by the Company or any of its affiliates (as such term is defined in
Rule 405 under the 1933 Act) (other than the Initial Purchasers or
subsequent Holders of Registrable Securities if such subsequent holders
are deemed to be such affiliates solely by reason of their holding of such
Registrable Securities) shall not be counted in determining whether such
consent or approval was given by the Holders of such required percentage
or amount.
"Person" shall mean an individual, partnership, limited liability
company, corporation, trust or unincorporated organization, or a
government or agency or political subdivision thereof.
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus
as amended or supplemented by any prospectus supplement, including a
prospectus supplement with respect to the terms of the offering of any
portion of the Registrable Securities covered by a Shelf Registration
Statement, and by all other amendments and supplements to such prospectus,
and in each case including all material incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the
preamble.
2
3
"Registrable Securities" shall mean the Securities; provided,
however, that the Securities shall cease to be Registrable Securities (i)
when a Registration Statement with respect to such Securities shall have
been declared effective under the 1933 Act and such Securities shall have
been disposed of pursuant to such Registration Statement, (ii) when such
Securities have been sold to the public pursuant to Rule 144(k) (or any
similar provision then in force, but not Rule 144A) under the 1933 Act,
(iii) when such Securities shall have ceased to be outstanding or (iv)
when such Securities have been exchanged (other than by a Participating
Broker-Dealer) for Exchange Securities upon consummation of the Exchange
Offer.
"Registration Expenses" shall mean any and all reasonable expenses
incident to performance of or compliance by the Company with this
Agreement, including without limitation: (i) all SEC, stock exchange or
National Association of Securities Dealers, Inc., registration and filing
fees, (ii) all fees and expenses incurred in connection with compliance
with state securities or blue sky laws (including reasonable fees and
disbursements of counsel for any underwriters or Holders in connection
with blue sky qualification of any of the Exchange Securities or
Registrable Securities), (iii) all expenses of any Persons in preparing or
assisting in preparing, word processing, printing and distributing any
Registration Statement, any Prospectus, any amendments or supplements
thereto, any underwriting agreements, securities sales agreements and
other documents relating to the performance of and compliance with this
Agreement, (iv) all rating agency fees, (v) all fees and disbursements
relating to the qualification of the Indenture under applicable securities
laws, (vi) the fees and disbursements of the Trustee and its counsel,
(vii) the fees and disbursements of counsel for the Company and, in the
case of a Shelf Registration Statement, the fees and disbursements of one
counsel for the Holders (which counsel shall be selected by the Majority
Holders and which counsel may also be counsel for the Initial Purchasers)
and (viii) the fees and disbursements of the independent public
accountants of the Company, including the expenses of any special audits
or "cold comfort" letters required by or incident to such performance and
compliance, but excluding fees and expenses of counsel to the underwriters
(other than fees and expenses set forth in clause (ii) above) or the
Holders and underwriting discounts and commissions and transfer taxes, if
any, relating to the sale or disposition of Registrable Securities by a
Holder.
"Registration Statement" shall mean any registration statement of the
Company that covers any of the Exchange Securities or Registrable
Securities pursuant to the provisions of this Agreement and all amendments
and supplements to any such Registration Statement including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"SEC" shall mean the Securities and Exchange Commission.
4
"Shelf Registration" shall mean a registration effected pursuant to
Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Company pursuant to the provisions of Section 2(b) of
this Agreement which covers all of the Registrable Securities (but no
other securities unless approved by the Majority Holders whose Registrable
Securities are covered by such Shelf Registration Statement) on an
appropriate form under Rule 415 under the 1933 Act, or any similar rule
that may be adopted by the SEC, and all amendments and supplements to such
registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Trustee" shall mean the trustee with respect to the Securities under
the Indenture.
"Underwriter" shall have the meaning set forth in Section 3 hereof.
"Underwritten Registration" or "Underwritten Offering" shall mean a
registration in which Registrable Securities are sold to an Underwriter
for reoffering to the public.
2. Registration Under the 1933 Act.
(a) To the extent not prohibited by any applicable law or applicable
interpretation of the Staff of the SEC, the Company shall (A) use its
reasonable best efforts to prepare and, as soon as practicable but not later
than 90 days following the Closing Date, file with the SEC an Exchange Offer
Registration Statement on an appropriate form under the 1933 Act with respect
to a proposed Exchange Offer and the issuance and delivery to the Holders, in
exchange for the Registrable Securities, of a like principal amount of Exchange
Securities, (B) use its reasonable best efforts to cause the Exchange Offer
Registration Statement to be declared effective under the 1933 Act not later
than 180 days of the Closing Date (the "Effectiveness Deadline"), (C) use its
reasonable best efforts to keep the Exchange Offer Registration Statement
effective until the closing of the Exchange Offer and (D) use its reasonable
best efforts to cause the Exchange Offer to be consummated as promptly as
practicable, but in any event prior to 30 business days after the Effectiveness
Deadline. The Company shall commence the Exchange Offer by mailing the related
Exchange Offer Prospectus and accompanying documents to each Holder stating, in
addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Agreement
and that all Registrable Securities validly tendered will be accepted for
exchange;
(ii) the dates of acceptance for exchange (which shall be a period of
at least 20 business days from the date such notice is mailed) (the
"Exchange Dates");
5
(iii) that any Registrable Security not tendered will remain
outstanding and continue to accrue interest, but will not retain any
rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged
pursuant to the Exchange Offer will be required to surrender such
Registrable Security, together with the enclosed letters of transmittal,
prior to the close of business on the last Exchange Date to the
institution and at the address (located in the Borough of Manhattan, The
City of New York) specified in the notice; and
(v) that Holders will be entitled to withdraw their election, not
later than the close of business on the last Exchange Date, by sending to
the institution and at the address (located in the Borough of Manhattan,
The City of New York) specified in the notice a telegram, telex, facsimile
transmission or letter setting forth the name of such Holder, the
principal amount of Registrable Securities delivered for exchange and a
statement that such Holder is withdrawing his election to have such
Securities exchanged.
As soon as practicable after the last Exchange Date, the Company shall:
(i) accept for exchange Registrable Securities or portions thereof
tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for
cancellation all Registrable Securities or portions thereof so accepted
for exchange by the Company and issue, and cause the Trustee to promptly
authenticate and mail to each Holder, an Exchange Security equal in
principal amount to the principal amount of the Registrable Securities
surrendered by such Holder.
The Company shall use its reasonable best efforts to complete the Exchange
Offer as provided above and shall comply with the applicable requirements of
the 1933 Act, the 1934 Act and other applicable laws and regulations in
connection with the Exchange Offer. The Exchange Offer shall not be subject to
any conditions, other than that the Exchange Offer does not violate applicable
law or any applicable interpretation of the Staff of the SEC. The Company shall
inform the Initial Purchasers of the names and addresses of the Holders to whom
the Exchange Offer is made, and the Initial Purchasers shall have the right,
subject to applicable law, to contact such Holders and otherwise facilitate the
tender of Registrable Securities in the Exchange Offer.
(b) In the event that (i) the Company determines that the Exchange Offer
Registration provided for in Section 2(a) above is not available or may not be
consummated as soon as practicable after the last Exchange Date because it
would violate applicable law or the applicable interpretations of the Staff of
the SEC, (ii) the Exchange Offer is not for any other reason consummated by the
30th business day following the Effectiveness Deadline or (iii) the Exchange
Offer has been completed and in the opinion of counsel for the Initial
Purchasers a
6
Registration Statement must be filed and a Prospectus must be delivered by the
Initial Purchasers in connection with any offering or sale of Registrable
Securities, the Company shall use its reasonable best efforts to cause to be
filed as soon as practicable after such determination, date or notice of such
opinion of counsel is given to the Company, as the case may be, a Shelf
Registration Statement providing for the sale by the Holders of all of the
Registrable Securities and to have such Shelf Registration Statement declared
effective by the SEC. In the event the Company is required to file a Shelf
Registration Statement solely as a result of the matters referred to in clause
(iii) of the preceding sentence, the Company shall use its reasonable best
efforts to file and have declared effective by the SEC both an Exchange Offer
Registration Statement pursuant to Section 2(a) with respect to all Registrable
Securities and a Shelf Registration Statement (which may be a combined
Registration Statement with the Exchange Offer Registration Statement) with
respect to offers and sales of Registrable Securities held by the Initial
Purchasers after completion of the Exchange Offer. The Company agrees to use
its reasonable best efforts to keep the Shelf Registration Statement
continuously effective until the expiration of the period referred to in Rule
144(k) with respect to the Registrable Securities or such shorter period that
will terminate when all of the Registrable Securities covered by the Shelf
Registration Statement have been sold pursuant to the Shelf Registration
Statement. The Company further agrees to supplement or amend the Shelf
Registration Statement if required by the rules, regulations or instructions
applicable to the registration form used by the Company for such Shelf
Registration Statement or by the 1933 Act or by any other rules and regulations
thereunder for shelf registration or if reasonably requested by a Holder with
respect to information relating to such Holder, and to use its reasonable best
efforts to cause any such amendment to become effective and such Shelf
Registration Statement to become usable as soon as thereafter practicable. The
Company agrees to furnish to the Holders of Registrable Securities copies of
any such supplement or amendment promptly after its being used or filed with
the SEC.
(c) The Company shall pay all Registration Expenses in connection with the
registration pursuant to Section 2(a) and Section 2(b). Each Holder shall pay
all underwriting discounts and commissions and transfer taxes, if any, relating
to the sale, or disposition of such Holder's Registrable Securities pursuant to
the Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a)
hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will
not be deemed to have become effective unless it has been declared effective by
the SEC; provided, however, that, if, after it has been declared effective, the
offering of Registrable Securities pursuant to a Shelf Registration Statement
is interfered with by any stop order, injunction or other order or requirement
of the SEC or any other governmental agency or court, such Registration
Statement will be deemed not to have become effective during the period of such
interference until the offering of Registrable Securities pursuant to such
Registration Statement may legally resume.
(e) Additional cash interest (the "Additional Interest") shall be assessed
as follows:
(i) If the Exchange Offer Registration Statement or Shelf
Registration Statement is not filed within 90 days following the Closing
Date, then commencing on the 91st day
7
after the Closing Date, Additional Interest shall be accrued on the
Securities over and above the accrued interest at a rate of .25% per
annum, or
(ii) If an Exchange Offer Registration Statement or Shelf
Registration Statement is filed pursuant to (i) above and is not declared
effective within 180 days following the Closing Date, then commencing on
the 181st day after the Closing Date, Additional Interest shall accrue on
the Securities over and above the accrued interest at a rate of .25% per
annum, or
(iii) If either (A) we have not exchanged Exchange Securities for all
Securities validly tendered in accordance with the terms of the Exchange
Offer on or prior to 30 business days after the date on which the Exchange
Offer Registration Statement was declared effective, or (B) if
applicable, the Shelf Registration Statement has been declared effective
but such Shelf Registration Statement ceases to be effective at any time
prior to the expiration of the holding period referred to in Rule 144(k),
then Additional Interest shall accrue on the Securities over and above the
accrued interest at a rate of .25% per annum immediately following the (x)
31st business day after such effective date, in the case of (A) above, or
(y) the day such Shelf Registration Statement ceases to be effective in
the case of (B) above;
provided, however, that the Additional Interest rate on the Securities may
in no event exceed .25% per annum; and; provided, further, that (1) upon the
filing of the Exchange Offer Registration Statement or Shelf Registration
Statement (in the case of (i) above), (2) upon the effectiveness of the
Exchange Offer Registration Statement or Shelf Registration Statement (in the
case (ii) above), or (3) upon the exchange of Exchange Notes for all
Registrable Securities tendered or upon the effectiveness of the Shelf
Registration Statement which had ceased to remain effective prior to the
expiration of the holding period referred to in Rule 144(k) (in the case of
(iii) above), Additional Interest on the Securities as a result of such clause
(i), (ii) or (iii) shall cease to accrue.
Any amount of Additional Interest due pursuant to clauses (i), (ii) or
(iii) above will be payable in cash, on the same original payment dates of the
Securities. The amounts of Additional Interest will be determined by
multiplying the applicable Additional Interest rate by the principal amount of
the Securities, multiplied by a fraction, the numerator of which is the number
of days such Additional Interest rate was applicable during such period
(determined on the basis of a 360-day year comprised of twelve 30-day months)
and the denominator of which is 360.
(f) Without limiting the remedies available to the Initial Purchasers and
the Holders, the Company acknowledges that any failure by the Company to comply
with its obligations under Section 2(a) and Section 2(b) hereof may result in
material irreparable injury to the Initial Purchasers or the Holders for which
there is no adequate remedy at law, that it will not be possible to measure
damages for such injuries precisely and that, in the event of any such failure,
the Initial Purchasers or any Holder may obtain such relief as may be required
to
8
specifically enforce the Company's obligations under Section 2(a) and Section
2(b) hereof; provided that, in the case of any terms of this Agreement for
which Additional Interest pursuant to Section 2(e) is expressly provided as a
remedy of a violation of such terms, such Additional Interest shall be the sole
monetary damages for such violation.
3. Registration Procedures.
In connection with the obligations of the Company with respect to the
Registration Statements pursuant to Section 2(a) and Section 2(b) hereof, the
Company shall as expeditiously as practicable:
(a) prepare and file with the SEC a Registration Statement on the
appropriate form under the 1933 Act, which form (x) shall be selected by the
Company and (y) shall, in the case of a Shelf Registration, be available for
the sale of the Registrable Securities by the selling Holders thereof and (z)
shall comply as to form in all material respects with the requirements of the
applicable form and include all financial statements required by the SEC to be
filed therewith, and use its reasonable best efforts to cause such Registration
Statement to become effective and remain effective in accordance with Section 2
hereof;
(b) prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary to keep such
Registration Statement effective for the applicable period and cause each
Prospectus to be supplemented by any required Prospectus supplement and, as so
supplemented, to be filed pursuant to Rule 424 under the 1933 Act; to keep each
Prospectus current during the period described under Section 4(3) and Rule 174
under the 1933 Act that is applicable to transactions by brokers or dealers
with respect to the Registrable Securities or Exchange Securities;
(c) in the case of a Shelf Registration, furnish to each Holder of
Registrable Securities, to counsel for the Initial Purchasers, to counsel for
the Holders and to each Underwriter of an Underwritten Offering of Registrable
Securities, if any, without charge, as many copies of each Prospectus,
including each preliminary Prospectus, and any amendment or supplement thereto
and such other documents as such Holder or such counsel named above or
Underwriter may reasonably request, in order to facilitate the public sale or
other disposition of the Registrable Securities; and the Company consents to
the use of such Prospectus and any amendment or supplement thereto in
accordance with applicable law by each of the selling Holders of Registrable
Securities and any such Underwriters in connection with the offering and sale
of the Registrable Securities covered by and in the manner described in such
Prospectus or any amendment or supplement thereto in accordance with applicable
law;
(d) use its reasonable best efforts to register or qualify the Registrable
Securities under all applicable state securities or "blue sky" laws of such
jurisdictions as
9
any Holder of Registrable Securities covered by a Registration Statement shall
reasonably request in writing by the time the applicable Registration Statement
is declared effective by the SEC, to cooperate with such Holders in connection
with any filings required to be made with the National Association of
Securities Dealers, Inc. and do any and all other acts and things which may be
reasonably necessary or advisable to enable such Holder to consummate the
disposition in each such jurisdiction of such Registrable Securities owned by
such Holder; provided, however, that the Company shall not be required to (i)
qualify as a foreign corporation or as a dealer in securities in any
jurisdiction where it would not otherwise be required to qualify but for this
Section 3(d), (ii) give any general consent to service of process or (iii)
subject itself to taxation in any such jurisdiction if it is not so subject;
(e) in the case of a Shelf Registration, notify each Holder of Registrable
Securities, counsel for the Holders and counsel for the Initial Purchasers
promptly and, if requested by any such Holder or counsel, confirm such advice
in writing (i) when a Registration Statement has become effective and when any
post-effective amendment thereto has been filed and becomes effective, (ii) of
any request by the SEC or any state securities authority for amendments and
supplements to a Registration Statement and Prospectus or for additional
information after the Registration Statement has become effective, (iii) of the
issuance by the SEC or any state securities authority of any stop order
suspending the effectiveness of a Registration Statement or the initiation of
any proceedings for that purpose, (iv) if, between the effective date of a
Registration Statement and the closing of any sale of Registrable Securities
covered thereby, the representations and warranties of the Company contained in
any underwriting agreement, securities sales agreement or other similar
agreement if any, relating to the offering cease to be true and correct in all
material respects or if the Company receives any notification with respect to
the suspension of the qualification of the Registrable Securities for sale in
any jurisdiction or the initiation of any proceeding for such purpose, (v) of
the happening of any event during the period a Registration Statement is
effective which makes any statement made in such Registration Statement or the
related Prospectus untrue in any material respect or which requires the making
of any changes in such Registration Statement or Prospectus in order to make
the statements therein not misleading and (vi) of any determination by the
Company that a post-effective amendment to a Registration Statement would be
appropriate;
(f) make every reasonable effort to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement at the earliest
possible moment and provide immediate notice to each Holder of the withdrawal
of any such order;
(g) in the case of a Shelf Registration, furnish to each Holder of
Registrable Securities, without charge, at least one conformed copy of each
Registration Statement and any post-effective amendment thereto (without
documents incorporated therein by reference or exhibits thereto, unless
requested);
(h) in the case of a Shelf Registration, cooperate with the selling
Holders of Registrable Securities to facilitate the timely preparation and
delivery of certificates representing
10
Registrable Securities to be sold and not bearing any restrictive legends and
enable such Registrable Securities to be in such denominations (consistent with
the provisions of the Indenture) and registered in such names as the selling
Holders may reasonably request at least one day prior to the closing of any
sale of Registrable Securities;
(i) in the case of a Shelf Registration, upon the occurrence of any event
contemplated by Section 3(e)(v) hereof, use its reasonable best efforts to
prepare and file with the SEC a supplement or post-effective amendment to a
Registration Statement or the related Prospectus or any document incorporated
therein by reference or file any other required document so that, as thereafter
delivered to the purchasers of the Registrable Securities, such Prospectus will
not contain any untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading. The Company agrees to notify the
Holders to suspend use of the Prospectus as promptly as practicable after the
occurrence of such an event, and the Holders hereby agree to suspend use of the
Prospectus until the Company has amended or supplemented the Prospectus to
correct such misstatement or omission;
(j) a reasonable time prior to the filing of any Registration Statement,
any Prospectus, any amendment to a Registration Statement or amendment or
supplement to a Prospectus or any document which is to be incorporated by
reference into a Registration Statement or a Prospectus after initial filing of
a Registration Statement, provide copies of such document to the Initial
Purchasers and their counsel (and, in the case of a Shelf Registration
Statement, the Holders and their counsel) and make such of the representatives
of the Company as shall be reasonably requested by the Initial Purchasers or
their counsel (and, in the case of a Shelf Registration Statement, the Holders
or their counsel) available for discussion of such document, and shall not at
any time file or make any amendment to the Registration Statement, any
Prospectus or any amendment of or supplement to a Registration Statement or a
Prospectus or any document which is to be incorporated by reference into a
Registration Statement or a Prospectus, of which the Initial Purchasers and
their counsel (and, in the case of a Shelf Registration Statement, the Holders
and their counsel) shall not have previously been advised and furnished a copy
or to which the Initial Purchasers or their counsel (and, in the case of a
Shelf Registration Statement, the Holders or their counsel) shall object,
unless the Company and its counsel reasonably determine that it is required by
law to file such amendment or supplement;
(k) obtain a CUSIP number for all Exchange Securities or Registrable
Securities, as the case may be, not later than the effective date of a
Registration Statement;
(l) cause the Indenture to be qualified under the Trust Indenture Act of
1939, as amended (the "TIA"), in connection with the registration of the
Exchange Securities or Registrable Securities, as the case may be, cooperate
with the Trustee and the Holders to effect such changes to the Indenture as may
be required for the Indenture to be so qualified in accordance with the terms
of the TIA and execute, and use its reasonable best efforts to cause the
Trustee to execute, all documents as may be required to effect such changes and
all other forms
11
and documents required to be filed with the SEC to enable the Indenture to be
so qualified in a timely manner;
(m) in the case of a Shelf Registration, make available for inspection by
a representative of the Holders of the Registrable Securities, any Underwriter
participating in any disposition pursuant to such Shelf Registration Statement,
and attorneys and accountants designated by the Holders, at reasonable times
and in a reasonable manner, all financial and other records, pertinent
documents and properties of the Company, and cause the respective officers,
directors and employees of the Company to supply all information reasonably
requested by any such representative, Underwriter, attorney or accountant in
connection with a Shelf Registration Statement;
(n) in the case of a Shelf Registration, if similar securities issued by
the Company are then listed on any securities exchange or any automated
quotation system, use its reasonable best efforts to cause all Registrable
Securities to be listed on such securities exchange or automated quotation
system if requested by the Majority Holders, to the extent such Registrable
Securities satisfy applicable listing requirements;
(o) use its reasonable best efforts to cause the Exchange Securities or
Registrable Securities, as the case may be, to be rated by two nationally
recognized statistical rating organizations (as such term is defined in Rule
436(g)(2) under the 1933 Act);
(p) if reasonably requested by any Holder of Registrable Securities
covered by a Registration Statement, (i) promptly incorporate in a Prospectus
supplement or post-effective amendment such information with respect to such
Holder as such Holder reasonably requests to be included therein and (ii) make
all required filings of such Prospectus supplement or such post-effective
amendment as soon as the Company has received notification of the matters to be
incorporated in such filing; and
(q) in the case of a Shelf Registration, enter into such customary
agreements and take all such other actions in connection therewith (including
those requested by the Majority Holders of the Registrable Securities being
sold) in order to expedite or facilitate the disposition of such Registrable
Securities including, but not limited to, an Underwritten Offering and in such
connection, (i) to the extent possible, make such representations and
warranties to the Holders and any Underwriters of such Registrable Securities
with respect to the business of the Company and its subsidiaries, the
Registration Statement, Prospectus and documents incorporated by reference or
deemed incorporated by reference, if any, in each case, in form, substance, and
scope as are customarily made by issuers to underwriters in underwritten
offerings and confirm the same, if and when reasonably requested, (ii) obtain
opinions of counsel to the Company (which counsel and opinions, in form, scope
and substance, shall be reasonably satisfactory to the Holders and such
Underwriters and their respective counsel) addressed to each selling Holder and
Underwriter of Registrable Securities, covering the matters customarily covered
in opinions requested in underwritten offerings, (iii) obtain "cold comfort"
letters from the independent certified public accountants of the Company (and,
if necessary, any other certified public
12
accountant of any subsidiary of the Company, or of any business acquired by the
Company for which financial statements and financial data are or are required
to be included in the Registration Statement) addressed to each selling Holder
and Underwriter of Registrable Securities, such letters to be in customary form
and covering matters of the type customarily covered in "cold comfort" letters
in connection with underwritten offerings, and (v) deliver such documents and
certificates as may be reasonably requested by the Majority Holders in
principal amount of the Registrable Securities being sold or the Underwriters,
and which are customarily delivered in underwritten offerings, to evidence the
continued validity of the representations and warranties of the Company made
pursuant to clause (i) above and to evidence compliance with any customary
conditions contained in an underwriting agreement.
In the case of a Shelf Registration Statement, the Company may require
each Holder of Registrable Securities to furnish to the Company such
information regarding the Holder and the proposed distribution by such Holder
of such Registrable Securities as the Company may from time to time reasonably
request in writing.
In the case of a Shelf Registration Statement, each Holder agrees that,
upon receipt of any notice from the Company of the happening of any event of
the kind described in Section 3(e)(v) hereof, such Holder will forthwith
discontinue disposition of Registrable Securities pursuant to a Registration
Statement until such Holder's receipt of the copies of the supplemented or
amended Prospectus contemplated by Section 3(i) hereof, and, if so directed by
the Company, such Holder will deliver to the Company (at its expense) all
copies in its possession, other than permanent file copies then in such
Holder's possession, of the Prospectus covering such Registrable Securities
current at the time of receipt of such notice. If the Company shall give any
such notice to suspend the disposition of Registrable Securities pursuant to a
Registration Statement, the Company shall extend the period during which the
Registration Statement shall be maintained effective pursuant to this Agreement
by the number of days during the period from and including the date of the
giving of such notice to and including the date when the Holders shall have
received copies of the supplemented or amended Prospectus necessary to resume
such dispositions. The Company may not give any such notice more than once
during any three month period or more than three times in any twelve month
period and the period in which the disposition of Registrable Securities is
suspended shall not exceed 30 days.
The Holders of Registrable Securities covered by a Shelf Registration
Statement who desire to do so may sell such Registrable Securities in an
Underwritten Offering. In any such Underwritten Offering, the investment banker
or investment bankers and manager or managers (the "Underwriters") that will
administer the offering will be selected by the Majority Holders of the
Registrable Securities included in such offering.
4. Participation of Broker-Dealers in Exchange Offer.
(a) The Staff of the SEC has taken the position that any broker-dealer
that receives Exchange Securities for its own account in the Exchange Offer in
exchange for Securities that were acquired by such broker-dealer as a result of
market-making or other trading
13
activities (a "Participating Broker-Dealer"), may be deemed to be an
"underwriter" within the meaning of the 1933 Act and must deliver a Prospectus
meeting the requirements of the 1933 Act in connection with any resale of such
Exchange Securities.
The Company understands that it is the Staff's position that if the
Prospectus contained in the Exchange Offer Registration Statement includes a
plan of distribution containing a statement to the above effect and the means
by which Participating Broker-Dealers may resell the Exchange Securities,
without naming the Participating Broker-Dealers or specifying the amount of
Exchange Securities owned by them, such Prospectus may be delivered by
Participating Broker-Dealers to satisfy their Prospectus delivery obligation
under the 1933 Act in connection with resales of Exchange Securities for their
own accounts, so long as the Prospectus otherwise meets the requirements of the
1933 Act.
(b) In light of the above, notwithstanding the other provisions of this
Agreement, the Company agrees that the provisions of this Agreement as they
relate to a Shelf Registration shall also apply to an Exchange Offer
Registration to the extent, and with such reasonable modifications thereto as
may be reasonably requested by the Initial Purchasers or by one or more
Participating Broker-Dealers, in each case as provided in clause (ii) below, in
order to expedite or facilitate the disposition of any Exchange Securities by
Participating Broker-Dealers consistent with the positions of the Staff recited
in Section 4(a) above; provided that:
(i) the Company shall not be required to amend or supplement the
Prospectus contained in the Exchange Offer Registration Statement, as
would otherwise be contemplated by Section 3(i), after 180 days after the
last Exchange Date (as such period may be extended pursuant to the
penultimate paragraph of Section 3 of this Agreement) and Participating
Broker-Dealers shall not be authorized by the Company to deliver and shall
not deliver such Prospectus after such period in connection with the
resales contemplated by this Section 4; and
(ii) the application of the Shelf Registration procedures set forth
in Section 3 of this Agreement to an Exchange Offer Registration, to the
extent not required by the positions of the Staff of the SEC or the 1933
Act and the rules and regulations thereunder, will be in conformity with
the reasonable request to the Company by the Initial Purchasers or with
the reasonable request in writing to the Company by one or more
broker-dealers who certify to the Initial Purchasers and the Company in
writing that they anticipate that they will be Participating
Broker-Dealers; and provided further that, in connection with such
application of the Shelf Registration procedures set forth in Section 3 to
an Exchange Offer Registration, the Company shall be obligated (x) to deal
only with one entity representing the Participating Broker-Dealers, which
shall be Morgan Stanley & Co. Incorporated unless it elects not to act as
such representative, (y) to pay the fees and expenses of only one counsel
representing the Participating Broker-Dealers, which may be counsel to the
Initial Purchasers and (z) to cause to be delivered only one, if any,
"cold comfort" letter with respect to the Prospectus in the form existing
on the last
14
Exchange Date and with respect to each subsequent amendment or supplement,
if any, effected during the period specified in clause (i) above.
(c) The Initial Purchasers shall have no liability to the Company or any
Holder with respect to any request that it may make pursuant to Section 4(b)
above.
5. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless the Initial
Purchasers, each Holder and each Person, if any, who controls any Initial
Purchaser or any Holder within the meaning of either Section 15 of the 1933 Act
or Section 20 of the 1934 Act, or is under common control with, or is
controlled by, any Initial Purchaser or any Holder, from and against all
losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred by the Initial Purchasers, any
Holder or any such controlling or affiliated Person in connection with
defending or investigating any such action or claim) caused by any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement (or any amendment thereto) pursuant to which Exchange
Securities or Registrable Securities were registered under the 1933 Act,
including all documents incorporated therein by reference, 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, or
caused by any untrue statement or alleged untrue statement of a material fact
contained in any Prospectus (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto), or caused by any
omission or alleged omission to state therein a material fact necessary to make
the statements therein in light of the circumstances under which they were made
not misleading, except insofar as such losses, claims, damages or liabilities
are caused by any such untrue statement or omission or alleged untrue statement
or omission based upon information relating to the Initial Purchasers or any
Holder furnished to the Company in writing by or through Morgan Stanley & Co.
Incorporated or any selling Holder expressly for use therein; provided that the
Company shall not be liable to any Initial Purchaser, any Holder or any such
controlling or affiliated Person to the extent that any such losses, claims,
damages or liabilities ("Losses") arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact or omission or alleged
omission if either (A)(i) such Initial Purchaser or Holder was required by law
to send or deliver, and failed to send or deliver, a copy of the Prospectus
with or prior to delivery of written confirmation of the sale by such Initial
Purchaser or Holder to the person asserting the claims from which such Losses
arise and (ii) the Prospectus previously delivered by the Company to the
Initial Purchaser would have corrected such untrue statement or alleged untrue
statement or omission or alleged omission, (B)(x) such untrue statement or
alleged untrue statement or omission or alleged omission is corrected in an
amendment to the Prospectus and (y) having been previously furnished by or on
behalf of the Company with copies of the Prospectus as so amended or
supplemented, such Initial Purchaser or Holder failed to send or deliver a copy
of such amendment to the Prospectus with or prior to the delivery of written
confirmation of the sale of a Registrable Security to the person asserting the
claim from which such Losses arise or (C)(i) such Holder disposed of
Registrable Securities to the person asserting the claim from which such Losses
arise pursuant to a Registration
15
Statement and sent or delivered, or was required by law to send or deliver, a
Prospectus to such person in connection with such disposition, (ii) such Holder
received a suspension notice as provided in Section 3(q) hereof in writing at
least four business days prior to the date of such disposition and (iii) such
untrue statement or alleged untrue statement or omission or alleged omission
was the reason for such suspension notice. In connection with any Underwritten
Offering permitted by Section 3, the Company will also indemnify the
Underwriters, if any, selling brokers, dealers and similar securities industry
professionals participating in the distribution, their officers and directors
and each Person who controls such Persons (within the meaning of the 1933 Act
and the 1934 Act) to the same extent as provided above with respect to the
indemnification of the Holders, if requested in connection with any
Registration Statement.
(b) Each Holder agrees, severally and not jointly, to indemnify and hold
harmless the Company, the Initial Purchasers and the other selling Holders, and
each of their respective directors, officers who sign the Registration
Statement and each Person, if any, who controls the Company, any Initial
Purchasers and any other selling Holder within the meaning of either Section 15
of the 1933 Act or Section 20 of the 1934 Act, or is under common control with,
or is controlled by the Company, the Initial Purchasers or any other selling
Holder to the same extent as the foregoing indemnity from the Company to the
Initial Purchasers and the Holders, but only (i) with reference to information
relating to such Holder furnished to the Company in writing by such Holder
expressly for use in any Registration Statement (or any amendment thereto) or
any Prospectus (or any amendment or supplement thereto) and (ii) with respect
to any Losses that may arise as a result of the disposition by such Holder of
Registrable Securities to the person asserting the claim from which such Losses
arise pursuant to a Registration Statement if such Holder sent or delivered, or
was required by law to send or deliver, a Prospectus in connection with such
disposition, such Holder received a suspension notice as provided in Section
3(q) hereof in writing at least four business days prior to the date of such
disposition and the untrue statement or alleged untrue statement or omission or
alleged omission was the reason for the suspension notice.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any Person in respect of which indemnity may be
sought pursuant to either paragraph (a) or paragraph (b) above, such Person
(the "indemnified party") shall promptly notify the Person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding
and shall pay the reasonable fees and disbursements of such counsel related to
such proceeding. In any such proceeding, any indemnified party shall have the
right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i) the indemnifying
party and the indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified
party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It
is understood that the indemnifying party shall not, in connection with any
proceeding or related
16
proceedings in the same jurisdiction, be liable for (a) the fees and expenses
of more than one separate firm (in addition to any local counsel) for the
Initial Purchasers and all Persons, if any, who control any Initial Purchaser
within the meaning of either Section 15 of the 1933 Act or Section 20 of the
1934 Act, (b) the fees and expenses of more than one separate firm (in addition
to any local counsel) for the Company, its directors, its officers who sign the
Registration Statement and each Person, if any, who controls the Company within
the meaning of either such Section and (c) the fees and expenses of more than
one separate firm (in addition to any local counsel) for all Holders and all
Persons, if any, who control any Holders within the meaning of either such
Section, and that all such fees and expenses shall be reimbursed as they are
incurred. In such case involving the Initial Purchasers and Persons who control
the Initial Purchasers, such firm shall be designated in writing by Morgan
Stanley & Co. Incorporated. In such case involving the Holders and such Persons
who control Holders, such firm shall be designated in writing by the Majority
Holders. In all other cases, such firm shall be designated by the Company. The
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent but, if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by
reason of such settlement or judgment. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which such indemnified party is
or could have been a party and indemnity could have been sought hereunder by
such indemnified party, unless such settlement includes an unconditional
release of such indemnified party from all liability on claims that are the
subject matter of such proceeding.
(d) If the indemnification provided for in paragraph (a) or paragraph (b)
of this Section 5 is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities, then each indemnifying
party under such paragraph, in lieu of indemnifying such indemnified party
thereunder, shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages or liabilities in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party or parties on the one hand and of the indemnified party or parties on the
other hand in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the Company and the Holders 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 by the
Holders and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Holders'
respective obligations to contribute pursuant to this Section 5(d) are several
in proportion to the respective principal amount of Registrable Securities of
such Holder that were registered pursuant to a Registration Statement.
(e) The Company and each Holder agree that it would not be just or
equitable if contribution pursuant to this Section 5 were determined by pro
rata allocation or by any other method of allocation that does not take account
of the equitable considerations referred to in paragraph (d) above. The amount
paid or payable by an indemnified party as a result of the
17
losses, claims, damages and liabilities referred to in paragraph (d) above
shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 5, no Holder shall be required
to indemnify or contribute any amount in excess of the amount by which the
total price at which Registrable Securities were sold by such Holder exceeds
the amount of any damages that such Holder 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 1933 Act) shall be entitled to contribution from any
Person who was not guilty of such fraudulent misrepresentation. The remedies
provided for in this Section 5 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.
The indemnity and contribution provisions contained in this Section 5
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
the Initial Purchasers, any Holder or any Person controlling any Initial
Purchaser or any Holder, or by or on behalf of the Company, its officers or
directors or any Person controlling the Company, (iii) acceptance of any of the
Exchange Securities and (iv) any sale of Registrable Securities pursuant to a
Shelf Registration Statement.
6. Miscellaneous.
(a) Rule 144 and Rule 144A. For so long as the Company is subject to the
reporting requirements of Section 13 or 15 of the 1934 Act, the Company
covenants that it will file the reports required to be filed by it under the
1933 Act and Section 13(a) or 15(d) of the 1934 Act and the rules and
regulations adopted by the SEC thereunder. If the Company ceases to be so
required to file such reports, the Company covenants that it will upon the
request of any Holder of Registrable Securities (a) make publicly available
such information as is necessary to permit sales pursuant to Rule 144 under the
1933 Act, (b) deliver such information to a prospective purchaser as is
necessary to permit sales pursuant to Rule 144A under the 1933 Act and it will
take such further action as any Holder of Registrable Securities may reasonably
request, and (c) take such further action that is reasonable in the
circumstances, in each case, to the extent required from time to time to enable
such Holder to sell its Registrable Securities without registration under the
1933 Act within the limitation of the exemptions provided by (i) Rule 144 under
the 1933 Act, as such Rule may be amended from time to time, (ii) Rule 144A
under the 1933 Act, as such Rule may be amended from time to time, or (iii) any
similar rules or regulations hereafter adopted by the SEC. Upon the request of
any Holder of Registrable Securities, the Company will deliver to such Holder a
written statement as to whether it has complied with such requirements.
(b) No Inconsistent Agreements. The Company has not entered into, and on
or after the date of this Agreement will not enter into, any agreement which is
inconsistent with the rights granted to the Holders of Registrable Securities
in this Agreement or otherwise conflicts with the provisions hereof. The rights
granted to the Holders hereunder do not in any
18
way conflict with and are not inconsistent with the rights granted to the
holders of the Company's other issued and outstanding securities under any such
agreements.
(c) Amendments and Waivers. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be
given unless the Company has obtained the written consent of Holders of at
least a majority in aggregate principal amount of the outstanding Registrable
Securities affected by such amendment, modification, supplement, waiver or
consent; provided, however, that no amendment, modification, supplement, waiver
or consent to any departure from the provisions of Section 5 hereof shall be
effective as against any Holder of Registrable Securities unless consented to
in writing by such Holder.
(d) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery (i) if to a Holder, at the most current address given by such Holder
to the Company by means of a notice given in accordance with the provisions of
this Section 6(d), which address initially is, with respect to the Initial
Purchasers, the address listed in the Offering Memorandum; and (ii) if to the
Company, initially at the Company's address set forth in the Purchase Agreement
and thereafter at such other address, notice of which is given in accordance
with the provisions of this Section 6(d).
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt is acknowledged, if telecopied; and on
the next business day if timely delivered to an air courier guaranteeing
overnight delivery.
Copies of all such notices, demands, or other communications shall be
concurrently delivered by the Person giving the same to the Trustee, at the
address specified in the Indenture.
(e) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors, assigns and transferees of each of the
parties, including, without limitation and without the need for an express
assignment, subsequent Holders; provided that nothing herein shall be deemed to
permit any assignment, transfer or other disposition of Registrable Securities
in violation of the terms of the Purchase Agreement. If any transferee of any
Holder shall acquire Registrable Securities, in any manner, whether by
operation of law or otherwise, such Registrable Securities shall be held
subject to all of the terms of this Agreement, and by taking and holding such
Registrable Securities such Person shall be conclusively deemed to have agreed
to be bound by and to perform all of the terms and provisions of this Agreement
and such Person shall be entitled to receive the benefits hereof. The Initial
Purchasers (in their capacity as Initial Purchasers) shall have no liability or
obligation to the Company with respect to any failure by a Holder to comply
with, or any breach by any Holder of, any of the obligations of such Holder
under this Agreement.
19
(f) Purchases and Sales of Securities. The Company shall not, and shall
use its reasonable best efforts to cause its affiliates (as defined in Rule 405
under the 1933 Act) not to, purchase and then resell or otherwise transfer any
Securities.
(g) Third Party Beneficiary. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Company, on the one
hand, and the Initial Purchasers, on the other hand, and shall have the right
to enforce such agreements directly to the extent it deems such enforcement
necessary or advisable to protect its rights or the rights of Holders
hereunder.
(h) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(i) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(j) Governing Law. This Agreement and the rights and duties of the parties
hereunder shall be governed by, and construed in accordance with, the laws of
the State of New York.
(k) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
20
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
TEXAS INSTRUMENTS INCORPORATED
By /s/ WILLIAM A. AYLESWORTH
-------------------------------------
Name: William A. Aylesworth
Title: Senior Vice President, Treasurer and
Chief Financial Officer
Confirmed and accepted as of the date
first above written:
MORGAN STANLEY & CO. INCORPORATED
SALOMON SMITH BARNEY INC
ABN AMRO INCORPORATED
BANC OF AMERICA SECURITIES LLC
By: MORGAN STANLEY & CO. INCORPORATED
By /s/ HAROLD HENDERSHOT III
------------------------------------
Name: Harold Hendershot III
Title: Vice President
Exhibit 5.1
212-450-4000
October 15, 1999
Texas Instruments Incorporated
8505 Forest Lane
P.O. Box 660199
Dallas, Texas 75266-0199
Ladies and Gentlemen:
We have acted as special counsel to Texas Instruments Incorporated, a
Delaware corporation (the "Company"), in connection with the Company's offer
(the "Exchange Offer") to exchange its 7% Senior Exchange Notes Due August 15,
2004 (the "New Notes") for any and all of its outstanding 7% Senior Notes Due
August 15, 2004 (the "Old Notes").
We have examined originals or copies, certified or otherwise identified
to our satisfaction, of such documents, corporate records, certificates of
public officials and other instruments as we have deemed necessary or advisable
for the purpose of rendering this opinion.
Upon the basis of the foregoing and assuming the due execution and
delivery of the New Notes, we are of the opinion that the New Notes, when
authenticated, issued and delivered in exchange for the Old Notes in accordance
with the Exchange Offer and the Indenture will be valid and binding obligations
of the Company enforceable against the Company in accordance with their terms,
except (i) as such enforcement may be limited by bankruptcy, insolvency,
fraudulent conveyance or similar laws affecting creditors' rights generally,
(ii) as such enforcement may be limited by general principles of equity,
regardless of whether enforcement is sought in a proceeding at law or in equity
and (iii) to the extent that a waiver of rights under any usury or stay law may
be unenforceable.
We are members of the Bar of the State of New York and the foregoing
opinion is limited to the laws of the State of New York, the federal laws of the
Texas Instruments Incorporated 2 October 15, 1999
United States of America and the General Corporation Law of the State of
Delaware.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement relating to the Exchange Offer. We also consent to the
references to us under the captions "Legal Matters" and "Certain United States
Tax Consequences of the Exchange Offer" in the Prospectus contained in such
Registration Statement.
This opinion is rendered solely to you in connection with the above
matter. This opinion may not be relied upon by you for any other purpose or
relied upon by or furnished to any other person without our prior written
consent except that Citibank, N.A., as Exchange Agent for the Exchange Offer,
may rely upon this opinion as if it were addressed directly to it.
Very truly yours,
/s/ Davis Polk & Wardwell
EXHIBIT 12.1
TEXAS INSTRUMENTS INCORPORATED AND SUBSIDIARIES
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(Dollars in millions)
For Six Months
Ended June 30
---------------
1994 1995 1996 1997 1998 1998 1999
Income from continuing operations before
income taxes and fixed charges:
Income before extraordinary item and
interest expense on loans, capitalized
interest amortized, and provision for
income taxes.............................. $ 943 $1,530 $ 65 $ 825 $ 710 $ 140 $ 904
Add interest attributable to rental and lease
expense................................... 40 41 44 44 41 20 19
--- ----- --- --- --- --- ----
$ 983 $1,571 $ 109 $ 869 $ 751 $ 160 $ 923
==== ===== === === === === ====
Fixed charges:
Total interest on loans (expensed and
capitalized)................................. $ 58 $ 69 $ 108 $ 114 $ 85 $ 43 $ 40
Interest attributable to rental and lease
expense...................................... 40 41 44 44 41 20 19
Fixed charges...................................... $ 98 $ 110 $ 152 $ 158 $ 126 $ 63 $ 59
==== ===== === === === === ====
Ratio of earnings to fixed charges................. 10.0 14.3 * 5.5 6.0 2.5 15.6
==== ===== === === === === ====
*Not meaningful. The coverage deficiency was $43 million in 1996.
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Independent Auditors"
in the Registration Statement (Form S-4) and related Prospectus of Texas
Instruments Incorporated and to the incorporation by reference therein of our
report dated January 19, 1999, with respect to the consolidated financial
statements and schedule of Texas Instruments Incorporated included in its Annual
Report on Form 10-K/A (Amendment No. 1) for the year ended December 31, 1998,
filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
Dallas, Texas
October 13, 1999
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an application to determine eligibility of a Trustee
pursuant to Section 305(b)(2) ____
-------------------------
CITIBANK, N.A.
(Exact name of trustee as specified in its charter)
13-5266470
(I.R.S. employer
identification no.)
399 Park Avenue, New York, New York 10043
(Address of principal executive office) (Zip Code)
-------------------------
Delaware 75-0289970
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
8505 Forest Lane
P.O. Box 660199
Dallas, Texas 75266-0199
(Address of principal executive offices) (Zip Code)
-------------------------
Debt Securities
(Title of the indenture securities)
1) Texas Instruments Incorporated 6.875% Notes due 07/15/2000
2) Texas Instruments Incorporated 7.000% Notes due 08/15/2004
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising
authority to which it is subject.
Name Address
---- -------
Comptroller of the Currency Washington, D.C.
Federal Reserve Bank of New York New York, NY
33 Liberty Street
New York, NY
Federal Deposit Insurance Corporation Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliates with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
Item 16. List of Exhibits.
List below all exhibits filed as a part of this Statement of
Eligibility.
Exhibits identified in parentheses below, on file with the
Commission, are incorporated herein by reference as exhibits
hereto.
Exhibit 1 - Copy of Articles of Association of the Trustee,
as now in effect. (Exhibit 1 to T-1 to Registration
Statement No. 2-79983)
2
Exhibit 2 - Copy of certificate of authority of the Trustee
to commence business. (Exhibit 2 to T-1 of Registration
Statement No. 2-29577).
Exhibit 3 - Copy of authorization of the Trustee to exercise
corporate trust powers. (Exhibit 3 to T-1 to Registration
Statement No. 2-55519)
Exhibit 4 - Copy of existing By-Laws of the Trustee.
(Exhibit 4 to T-1 to Registration Statement No. 33-34988)
Exhibit 5 - Not applicable.
Exhibit 6 - The consent of the Trustee required by Section
321(b) of the Trust Indenture Act of 1939. (Exhibit 6 to T-1
to Registration Statement No. 33-19227)
Exhibit 7 - Copy of the latest Report of Condition of
Citibank, N.A. (as of June 30, 1999 - attached)
Exhibit 8 - Not applicable.
Exhibit 9 - Not applicable.
3
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
Trustee, Citibank, N.A., a national banking association organized and existing
under the laws of the United States of America, has duly caused this statement
of eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in The City of New York and State of New York, on the 14th day
of October, 1999.
CITIBANK, N.A.
By: /s/ CINDY TSANG
------------------------------
Cindy Tsang
Assistant Vice President
4
Exhibit 99.1
LETTER OF TRANSMITTAL
TEXAS INSTRUMENTS INCORPORATED
Offer to Exchange Its
7% Senior Exchange Notes Due August 15, 2004
For Any and All of Its Outstanding
7% Senior Notes Due August 15, 2004
Pursuant to the Prospectus
Dated o, 1999
- --------------------------------------------------------------------------------
THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., NEW YORK
CITY TIME, ON o, UNLESS THE OFFER IS EXTENDED.
- --------------------------------------------------------------------------------
THE EXCHANGE AGENT FOR THE EXCHANGE OFFER IS:
Citibank, N.A.
By Registered or Certified Mail: By Overnight Delivery or Hand:
Citibank, N.A. Citibank, N.A.
Corporate Trust Window Corporate Trust Window
111 Wall Street, 5th Floor 111 Wall Street, 5th Floor
New York, New York 10043 New York, New York 10043
Attn: Douglas Tienken Attn: Douglas Tienken
To Confirm by Telephone Facsimile Transmissions:
or for Information: (212) 657-4009
(212) 657-8476
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET
FORTH ABOVE OR TRANSMISSION OF THIS LETTER OF TRANSMITTAL VIA FACSIMILE TO A
NUMBER OTHER THAN AS SET FORTH ABOVE DOES NOT CONSTITUTE A VALID DELIVERY.
THE INSTRUCTIONS CONTAINED HEREIN SHOULD BE READ CAREFULLY BEFORE THIS
LETTER OF TRANSMITTAL IS COMPLETED.
Capitalized terms used but not defined herein shall have the same meaning
given them in the Prospectus (as defined below).
This Letter of Transmittal is to be completed by holders of Old Notes (as
defined below) if Old Notes are to be forwarded herewith. If tenders of Old
Notes are to be made by book-entry transfer to an account maintained by
Citibank, N.A. (the "Exchange Agent") at The Depository Trust Company ("DTC")
pursuant to the procedures set forth in "The Exchange Offer--Book-Entry
Transfer" in the Prospectus and in accordance with the Automated Tender
Offer Program ("ATOP") established by DTC, a tendering holder will become bound
by the terms and conditions hereof in accordance with the procedures established
under ATOP.
Holders of Old Notes whose certificates (the "certificates") for such Old
Notes are not immediately available or who cannot deliver their certificates and
all other required documents to the Exchange Agent on or prior to the expiration
date (as defined in the Prospectus) or who cannot complete the procedures for
book-entry transfer on a timely basis, must tender their Old Notes according to
the guaranteed delivery procedures set forth in "The Exchange Offer--Guaranteed
Delivery Procedures" in the Prospectus. SEE INSTRUCTION 1. DELIVERY OF DOCUMENTS
TO DTC IN ACCORDANCE WITH ITS PROCEDURES DOES NOT CONSTITUTE DELIVERY TO THE
EXCHANGE AGENT.
2
NOTE: SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
ALL TENDERING HOLDERS COMPLETE THIS BOX:
- ------------------------------------------------------------------------------------------------------------------
DESCRIPTION OF OLD NOTES TENDERED
- ------------------------------------------------------------------------------------------------------------------
Name(s) and address(es) of Registered Holder(s) Old Notes Tendered
(Please fill in, if blank) (attach additional list if necessary)
- ------------------------------------------------------------------------------------------------------------------
Principal Amount of
Certificate Principal Amount Old Notes Tendered
Number(s)* of Old Notes* (if less than all)**
- ------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------
Total Amount
Tendered
- ------------------------------------------------------------------------------------------------------------------
* Need not be completed by book-entry holders.
** Old Notes may be tendered in whole or in part in denominations of $1,000
and integral multiples thereof. All Old Notes held shall be deemed tendered
unless a lesser number is specified in this column.
(BOXES BELOW TO BE CHECKED BY ELIGIBLE INSTITUTIONS ONLY)
[ ] CHECK HERE IF TENDERED OLD NOTES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER
MADE TO THE ACCOUNT MAINTAINED BY THE EXCHANGE AGENT WITH DTC AND COMPLETE
THE FOLLOWING:
Name of Tendering Institution _____________________________________________
DTC Account Number ________________________________________________________
Transaction Code Number ___________________________________________________
[ ] CHECK HERE AND ENCLOSE A PHOTOCOPY OF THE NOTICE OF GUARANTEED DELIVERY IF
TENDERED OLD NOTES ARE BEING DELIVERED PURSUANT TO A NOTICE OF GUARANTEED
DELIVERY PREVIOUSLY SENT TO THE EXCHANGE AGENT AND COMPLETE THE FOLLOWING:
Name of Registered Holder(s) ______________________________________________
Window Ticket Number (if any) _____________________________________________
Date of Execution of Notice of Guaranteed Delivery ________________________
Name of Institution which Guaranteed ______________________________________
If Guaranteed Delivery is to be made by Book-Entry Transfer:
Name of Tendering Institution _____________________________________________
DTC Account Number ________________________________________________________
Transaction Code Number ___________________________________________________
[ ] CHECK HERE IF TENDERED BY BOOK-ENTRY TRANSFER AND NON-EXCHANGED OLD NOTES
ARE TO BE RETURNED BY CREDITING THE DTC ACCOUNT NUMBER SET FORTH ABOVE.
3
[ ] CHECK HERE IF YOU ARE A BROKER-DEALER WHO ACQUIRED THE OLD NOTES FOR ITS
OWN ACCOUNT AS A RESULT OF MARKET MAKING OR OTHER TRADING ACTIVITIES (A
"PARTICIPATING BROKER-DEALER") AND WISH TO RECEIVE 10 ADDITIONAL COPIES OF
THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO.
Name: _____________________________________________________________________
Address: __________________________________________________________________
__________________________________________________________________
4
Ladies and Gentlemen:
The undersigned hereby tenders to Texas Instruments Incorporated, a
Delaware corporation (the "Company"), the principal amount of the Company's 7%
Senior Notes Due August 15, 2004 (the "Old Notes") specified above in exchange
for a like aggregate principal amount of the Company's 7% Senior Exchange Notes
Due August 15, 2004 (the "New Notes"), upon the terms and subject to the
conditions set forth in the Prospectus dated o, 1999 (as the same may be amended
or supplemented from time to time, the "Prospectus"), receipt of which is
acknowledged, and in this Letter of Transmittal (which, together with the
Prospectus, constitute the "Exchange Offer"). The Exchange Offer has been
registered under the Securities Act of 1933, as amended (the "Securities Act").
Subject to and effective upon the acceptance for exchange of all or any
portion of the Old Notes tendered herewith in accordance with the terms and
conditions of the Exchange Offer (including, if the Exchange Offer is extended
or amended, the terms and conditions of any such extension or amendment), the
undersigned hereby sells, assigns and transfers to or upon the order of the
Company all right, title and interest in and to such Old Notes as are being
tendered herewith. The undersigned hereby irrevocably constitutes and appoints
the Exchange Agent as its agent and attorney-in-fact (with full knowledge that
the Exchange Agent is also acting as agent of the Company in connection with the
Exchange Offer) with respect to the tendered Old Notes, with full power of
substitution (such power of attorney being deemed to be an irrevocable power
coupled with an interest), subject only to the right of withdrawal described in
the Prospectus, to (i) deliver certificates for Old Notes to the Company
together with all accompanying evidences of transfer and authenticity to, or
upon the order of, the Company, upon receipt by the Exchange Agent, as the
undersigned's agent, of the New Notes to be issued in exchange for such Old
Notes, (ii) present certificates for such Old Notes for transfer, and to
transfer the Old Notes on the books of the Company, and (iii) receive for the
account of the Company all benefits and otherwise exercise all rights of
beneficial ownership of such Old Notes, all in accordance with the terms and
conditions of the Exchange Offer.
THE UNDERSIGNED HEREBY REPRESENTS AND WARRANTS THAT THE UNDERSIGNED HAS
FULL POWER AND AUTHORITY TO TENDER, EXCHANGE, SELL, ASSIGN AND TRANSFER THE OLD
NOTES TENDERED HEREBY AND THAT, WHEN THE SAME ARE ACCEPTED FOR EXCHANGE, THE
COMPANY WILL ACQUIRE GOOD, MARKETABLE AND UNENCUMBERED TITLE THERETO, FREE AND
CLEAR OF ALL LIENS, RESTRICTIONS, CHARGES AND ENCUMBRANCES, AND THAT THE OLD
NOTES TENDERED HEREBY ARE NOT SUBJECT TO ANY ADVERSE CLAIMS OR PROXIES. THE
UNDERSIGNED WILL, UPON REQUEST, EXECUTE AND DELIVER ANY ADDITIONAL DOCUMENTS
DEEMED BY THE COMPANY OR THE EXCHANGE AGENT TO BE NECESSARY OR DESIRABLE TO
COMPLETE THE EXCHANGE, ASSIGNMENT AND TRANSFER OF THE OLD NOTES TENDERED HEREBY,
AND THE UNDERSIGNED WILL COMPLY WITH ITS OBLIGATIONS UNDER THE REGISTRATION
RIGHTS AGREEMENT. THE UNDERSIGNED HAS READ AND AGREES TO ALL OF THE TERMS OF THE
EXCHANGE OFFER.
The name(s) and address(es) of the registered holder(s) of the Old Notes
tendered hereby should be printed above, if they are not already set forth
above, as they appear on the certificates representing such Old Notes. The
certificate number(s) and the Old Notes that the undersigned wishes to tender
should be indicated in the appropriate boxes above.
If any tendered Old Notes are not exchanged pursuant to the Exchange Offer
for any reason, or if certificates are submitted for more Old Notes than are
tendered or accepted for exchange, certificates for such unaccepted or
nonexchanged Old Notes will be returned (or, in the case of Old Notes tendered
by book-entry transfer, such Old Notes will be credited to an account maintained
at DTC), without expense to the tendering holder, promptly following the
expiration or termination of the Exchange Offer.
The undersigned understands that tenders of Old Notes pursuant to any one
of the procedures described in "The Exchange Offer--Procedures for Tendering Old
Notes" in the Prospectus and in the instructions hereto will, upon the Company's
acceptance for exchange of such tendered Old Notes, constitute a binding
agreement between the undersigned and the Company upon the terms and subject to
the conditions of the Exchange Offer. In all cases in which a Participant elects
to accept the Exchange Offer by transmitting an express acknowledgment in
accordance with the established ATOP procedures, such Participant shall be bound
by all of the terms and conditions of this Letter of Transmittal. The
undersigned recognizes that, under certain circumstances set forth in the
Prospectus, the Company may not be required to accept for exchange any of the
Old Notes tendered hereby.
Unless otherwise indicated herein in the box entitled "Special Issuance
Instructions" below, the undersigned hereby directs that the New Notes be issued
in the name(s) of the undersigned or, in the case of a book-entry transfer of
Old Notes, that such New Notes be credited to the account indicated above
maintained at DTC. If applicable, substitute certificates representing Old Notes
not exchanged or not accepted for exchange will be issued to the undersigned or,
in the case of a book-entry transfer of Old Notes, will be credited to the
account indicated above maintained at DTC. Similarly, unless otherwise indicated
under "Special Delivery Instructions," please deliver New Notes to the
undersigned at the address shown below the undersigned's signature.
5
By tendering Old Notes and executing, or otherwise becoming bound by, this
Letter of Transmittal, the undersigned hereby represents and agrees that
(i) the undersigned is not an "affiliate" of the Company,
(ii) any New Notes to be received by the undersigned are being acquired in
the ordinary course of its business, and
(iii) the undersigned has no arrangement or understanding with any person
to participate in a distribution (within the meaning of the Securities Act) of
such New Notes.
By tendering Old Notes pursuant to the exchange offer and executing, or
otherwise becoming bound by, this Letter of Transmittal, a holder of Old Notes
which is a broker-dealer represents and agrees, consistent with certain
interpretive letters issued by the staff of the Division of Corporation Finance
of the Securities and Exchange Commission to third parties, that (a) such Old
Notes held by the broker-dealer are held only as a nominee, or (b) such Old
Notes were acquired by such broker-dealer for its own account as a result of
market-making activities or other trading activities and it will deliver the
prospectus (as amended or supplemented from time to time) meeting the
requirements of the Securities Act in connection with any resale of such New
Notes (provided that, by so acknowledging and by delivering a prospectus, such
broker-dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act).
The Company has agreed that, subject to the provisions of the Registration
Rights Agreement, the Prospectus, as it may be amended or supplemented from time
to time, may be used by a participating broker-dealer (as defined below) in
connection with resales of New Notes received in exchange for Old Notes, where
such Old Notes were acquired by such participating broker-dealer for its own
account as a result of market-making activities or other trading activities, for
a period ending 135 days after the expiration date (subject to extension under
certain limited circumstances) or, if earlier, when all such New Notes have been
disposed of by such participating broker-dealer. In that regard, each broker
dealer who acquired Old Notes for its own account as a result of market-making
or other trading activities (a "participating broker-dealer"), by tendering such
Old Notes and executing, or otherwise becoming bound by, this Letter of
Transmittal, agrees that, upon receipt of notice from the Company of the
occurrence of any event or the discovery of any fact which makes any statement
contained in the Prospectus untrue in any material respect or which causes the
Prospectus to omit to state a material fact necessary in order to make the
statements contained therein, in light of the circumstances under which they
were made, not misleading or of the occurrence of certain other events specified
in the Registration Rights Agreement, such participating broker-dealer will
suspend the sale of New Notes pursuant to the Prospectus until the Company has
amended or supplemented the Prospectus to correct such misstatement or omission
and has furnished copies of the amended or supplemented Prospectus to the
participating broker-dealer or the Company has given notice that the sale of the
New Notes may be resumed, as the case may be. If the Company gives such notice
to suspend the sale of the New Notes, it shall extend the 135-day period
referred to above during which participating broker-dealers are entitled to use
the Prospectus in connection with the resale of New Notes by the number of days
during the period from and including the date of the giving of such notice to
and including the date when participating broker-dealers shall have received
copies of the supplemented or amended Prospectus necessary to permit resales of
the New Notes or to and including the date on which the Company has given notice
that the sale of New Notes may be resumed, as the case may be.
All authority herein conferred or agreed to be conferred in this Letter of
Transmittal shall survive the death or incapacity of the undersigned and any
obligation of the undersigned hereunder shall be binding upon the heirs,
executors, administrators, personal representatives, trustees in bankruptcy,
legal representatives successors and assigns of the undersigned. Except as
stated in the Prospectus, this tender is irrevocable.
6
HOLDER(S) SIGN HERE
(See Instructions 2, 5 and 6)
(Note: Signature(s) Must be Guaranteed if Required by Instruction 2)
Must be signed by registered holder(s) exactly as name(s) appear(s) on
certificate(s) for the Old Notes hereby tendered or on a security position
listing, or by any person(s) authorized to become the registered holder(s) by
endorsements and documents transmitted herewith. If signature is by an
attorney-in-fact, executor, administrator, trustee, guardian, officer of a
corporation or another acting in a fiduciary or representative capacity, please
set forth the signer's full title. See Instruction 5.
- --------------------------------------------------------------------------------
(Signature(s) of Holder(s))
Date , 1999
--------------------------------------------------------------------
Name(s)
------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Please Print)
Capacity:
----------------------------------------------------------------------
(Include Full Title)
Address
------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Include Zip Code)
Area Code and Telephone Number
-------------------------------------------------
- --------------------------------------------------------------------------------
(Tax Identification or Social Security Number(s))
GUARANTEE OF SIGNATURE(S)
(See Instructions 2 and 5)
Authorized Signature
-----------------------------------------------------------
Name
---------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Please Print)
Date , 1999
--------------------------------------------------------------------
Capacity or Title
--------------------------------------------------------------
Name of Firm
-------------------------------------------------------------------
Address
------------------------------------------------------------------------
(Include Zip Code)
Area Code and Telephone Number
-------------------------------------------------
7
SPECIAL ISSUANCE INSTRUCTIONS
(See Instructions 1, 5 and 6)
To be completed ONLY if the New Notes are to be issued in the name of someone
other than the registered holder of the Old Notes whose name(s) appear(s) above.
Issue New Notes to:
Name
---------------------------------------------------------------------------
(Please Print)
- --------------------------------------------------------------------------------
Address
------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Include Zip Code)
- --------------------------------------------------------------------------------
(Taxpayer Identification or
Social Security Number)
- --------------------------------------------------------------------------------
SPECIAL DELIVERY INSTRUCTIONS
(See Instructions 1, 5 and 6)
To be completed ONLY if New Notes are to be sent to someone other than the
registered holder of the Old Notes whose name(s) appear(s) above, or to such
registered holder(s) at an address other than that shown above.
Mail New Notes To:
Name
--------------------------------------------------------------------------
(Please Print)
- --------------------------------------------------------------------------------
Address
-----------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Include Zip Code)
- --------------------------------------------------------------------------------
(Taxpayer Identification or
Social Security Number)
8
INSTRUCTIONS
Forming Part of the Terms and Conditions of the Exchange Offer
1. DELIVERY OF LETTER OF TRANSMITTAL AND CERTIFICATES; GUARANTEED DELIVERY
PROCEDURES. This Letter of Transmittal is to be completed if certificates are to
be forwarded herewith. If tenders are to be made pursuant to the procedures for
tender by book-entry transfer set forth in "The Exchange Offer--Book- Entry
Transfer" in the Prospectus and in accordance with ATOP established by DTC, a
tendering holder will become bound by the terms and conditions hereof in
accordance with the procedures established under ATOP. Certificates, or timely
confirmation of a book-entry transfer of such Old Notes into the Exchange
Agent's account at DTC, as well as this Letter of Transmittal (or facsimile
thereof), if required, properly completed and duly executed, with any required
signature guarantees, must be received by the Exchange Agent at one of its
addresses set forth herein on or prior to the expiration date. Old Notes may be
tendered in whole or in part in the principal amount of $1,000 and integral
multiples of $1,000.
Holders who wish to tender their Old Notes and (i) whose Old Notes are not
immediately available or (ii) who cannot deliver their Old Notes and this Letter
of Transmittal to the Exchange Agent on or prior to the expiration date or (iii)
who cannot complete the procedures for delivery by book-entry transfer on a
timely basis, may tender their Old Notes by properly completing and duly
executing a Notice of Guaranteed Delivery pursuant to the guaranteed delivery
procedures set forth in "The Exchange Offer--Guaranteed Delivery Procedures" in
the Prospectus. Pursuant to such procedures: (i) such tender must be made by or
through an Eligible Institution (as defined below); (ii) a properly completed
and duly executed Letter of Transmittal (or facsimile) thereof and Notice of
Guaranteed Delivery, substantially in the form made available by the Company,
must be received by the Exchange Agent on or prior to the expiration date; and
(iii) the certificates (or a book-entry confirmation (as defined in the
Prospectus)) representing all tendered Old Notes, in proper form for transfer,
must be received by the Exchange Agent within five New York Stock Exchange
trading days after the date of execution of such Notice of Guaranteed Delivery,
all as provided in "The Exchange Offer--Guaranteed Delivery Procedures" in the
Prospectus.
The Notice of Guaranteed Delivery may be delivered by hand or transmitted
by telegram, telex, facsimile or mail to the Exchange Agent, and must include a
guarantee by an Eligible Institution in the form set forth in such Notice. For
Old Notes to be properly tendered pursuant to the guaranteed delivery procedure,
the Exchange Agent must receive a Notice of Guaranteed Delivery on or prior to
the expiration date. As used herein and in the Prospectus, "Eligible
Institution" means a firm which is a member of a registered national securities
exchange or a member of the National Association of Securities Dealers, Inc. or
a commercial bank or trust company having an office or correspondent in the
United States.
THE METHOD OF DELIVERY OF OLD NOTES, THIS LETTER OF TRANSMITTAL AND ALL
OTHER REQUIRED DOCUMENTS IS AT THE ELECTION AND RISK OF THE TENDERING HOLDER. IF
SUCH DELIVERY IS BY MAIL, IT IS RECOMMENDED THAT REGISTERED MAIL WITH RETURN
RECEIPT REQUESTED, PROPERLY INSURED, BE USED. IN ALL CASES, SUFFICIENT TIME
SHOULD BE ALLOWED TO ASSURE TIMELY DELIVERY. NO LETTERS OF TRANSMITTAL OR OLD
NOTES SHOULD BE SENT TO THE COMPANY.
The Company will not accept any alternative, conditional or contingent
tenders. Each tendering holder, by execution of a Letter of Transmittal (or
facsimile thereof), or any Agent's Message in lieu thereof, waives any right to
receive any notice of the acceptance of such tender.
2. GUARANTEE OF SIGNATURES. No signature guarantee on this Letter of
Transmittal is required if:
(i) this Letter of Transmittal is signed by the registered holder
(which term, for purposes of this document, shall include any participant
in DTC whose name appears on a security position listing as the owner of
the Old Notes) of Old Notes tendered herewith, unless such holder(s) has
completed either the box entitled "Special Issuance Instructions" or the
box entitled "Special Delivery Instructions" above, or
(ii) such Old Notes are tendered for the account of a firm that is an
Eligible Institution.
9
In all other cases, an Eligible Institution must guarantee the
signature(s) on this Letter of Transmittal. See Instruction 5.
3. INADEQUATE SPACE. If the space provided in the box captioned
"Description of Old Notes" is inadequate, the certificate number(s) and/or the
principal amount of Old Notes and any other required information should be
listed on a separate signed schedule which is attached to this Letter of
Transmittal.
4. PARTIAL TENDERS AND WITHDRAWAL RIGHTS. Tenders of Old Notes will be
accepted only in the principal amount of $1,000 and integral multiples thereof.
If less than all the Old Notes evidenced by any certificate submitted are to be
tendered, fill in the principal amount of Old Notes which are to be tendered in
the box entitled "Principal Amount of Old Notes Tendered (if less than all)." In
such case, new certificate(s) for the remainder of the Old Notes that were
evidenced by your old certificate(s) will only be sent to the holder of the Old
Note, promptly after the expiration date. All Old Notes represented by
certificates delivered to the Exchange Agent will be deemed to have been
tendered unless otherwise indicated.
Except as otherwise provided herein, tenders of Old Notes may be withdrawn
at any time on or prior to the expiration date. In order for a withdrawal to be
effective on or prior to that time, a written notice of withdrawal must be
timely received by the Exchange Agent at one of its addresses set forth above or
in the Prospectus on or prior to the expiration date. Any such notice of
withdrawal must specify the name of the person who tendered the Old Notes to be
withdrawn, identify the Old Notes to be withdrawn (including the principal
amount of such Old Notes) and (where certificates for Old Notes have been
transmitted) specify the name in which such Old Notes are registered, if
different from that of the withdrawing holder. If certificates for the Old Notes
have been delivered or otherwise identified to the Exchange Agent, then prior to
the release of such certificates, the withdrawing holder must submit the serial
numbers of the particular certificates for the Old Notes to be withdrawn and a
signed notice of withdrawal with signatures guaranteed by an Eligible
Institution, unless such holder is an Eligible Institution. If Old Notes have
been tendered pursuant to the procedures for book-entry transfer set forth in
the Prospectus under "The Exchange Offer--Book-Entry Transfer," any notice of
withdrawal must specify the name and number of the account at DTC to be credited
with the withdrawal of Old Notes and otherwise comply with the procedures of
such facility. Old Notes properly withdrawn will not be deemed validly tendered
for purposes of the Exchange Offer, but may be retendered at any time on or
prior to the expiration date by following one of the procedures described in the
Prospectus under "The Exchange Offer--Procedures for Tendering Old Notes."
All questions as to the validity, form and eligibility (including time of
receipt) of such withdrawal notices will be determined by the Company, whose
determination shall be final and binding on all parties. Any Old Notes which
have been tendered for exchange but which are not exchanged for any reason will
be returned to the holder thereof without cost to such holder (or, in the case
of Old Notes tendered by book-entry transfer into the Exchange Agent's account
at DTC pursuant to the book-entry procedures described in the Prospectus under
"The Exchange Offer--Book-Entry Transfer" such Old Notes will be credited to an
account maintained with DTC for the Old Notes) as soon as practicable after
withdrawal, rejection of tender or termination of the Exchange Offer.
5. SIGNATURES ON LETTER OF TRANSMITTAL, ASSIGNMENTS AND ENDORSEMENTS.
If this Letter of Transmittal is signed by the registered holder(s) of the Old
Notes tendered hereby, the signature(s) must correspond exactly with the name(s)
as written on the face of the certificate(s) without alteration, enlargement or
any change whatsoever.
If any of the Old Notes tendered hereby are owned of record by two or more
joint owners, all such owners must sign this Letter of Transmittal.
If any tendered Old Notes are registered in different names on several
certificates, it will be necessary to complete, sign and submit as many separate
Letters of Transmittal (or facsimiles thereof) as there are different
registrations of certificates.
10
If this Letter of Transmittal or any certificates or powers of attorney
are signed by trustees, executors, administrators, guardians, attorneys-in-fact,
officers of corporations or others acting in a fiduciary or representative
capacity, such persons should so indicate when signing and, unless waived by the
Company, proper evidence satisfactory to the Company of such persons' authority
to so act must be submitted.
When this Letter of Transmittal is signed by the registered holder(s) of
the Old Notes listed and transmitted hereby, no endorsement(s) of certificate(s)
or written instrument or instruments of transfer or exchange are required unless
New Notes are to be issued in the name of a person other than the registered
holder(s). Signature(s) on such certificate(s) or written instrument or
instruments of transfer or exchange must be guaranteed by an Eligible
Institution.
If this Letter of Transmittal is signed by a person other than the
registered holder(s) of the Old Notes listed, the certificates must be endorsed
or accompanied by a written instrument or instruments of transfer or exchange,
in satisfactory form as determined by the Company in its sole discretion and
executed by the registered holder(s), in either case signed exactly as the name
or names of the registered holder(s) appear(s) on the certificates. Signatures
on such certificates or written instrument or instruments of transfer or
exchange must be guaranteed by an Eligible Institution.
6. SPECIAL ISSUANCE AND DELIVERY INSTRUCTIONS. If New Notes are to be
issued in the name of a person other than the signer of this Letter of
Transmittal, or if New Notes are to be sent to someone other than the signer of
this Letter of Transmittal or to an address other than that shown above, the
appropriate boxes on this Letter of Transmittal should be completed.
Certificates for Old Notes not exchanged will be returned by mail or, if
tendered by book-entry transfer, by crediting the account indicated above
maintained at DTC. See Instruction 4.
7. IRREGULARITIES. The Company will determine, in its sole discretion, all
questions as to the form, validity, eligibility (including time of receipt) and
acceptance for exchange of any tender of Old Notes, which determination shall be
final and binding. The Company reserves the absolute right to reject any and all
tenders of any particular Old Notes not properly tendered or to not accept any
particular Old Notes which acceptance might, in the judgment of the Company or
its counsel, be unlawful. The Company also reserves the absolute right, in its
sole discretion, to waive any defects or irregularities or conditions of the
Exchange Offer as to any particular Old Notes either before or after the
expiration date (including the right to waive the ineligibility of any holder
who seeks to tender Old Notes in the Exchange Offer). The interpretation of the
terms and conditions of the Exchange Offer as to any particular Old Notes either
before or after the expiration date (including the Letter of Transmittal and the
instructions thereto) by the Company shall be final and binding on all parties.
Unless waived, any defects or irregularities in connection with the tender of
Old Notes for exchange must be cured within such reasonable period of time as
the Company shall determine. Neither the Company, the Exchange Agent nor any
other person shall be under any duty to give notification of any defect or
irregularity with respect to any tender of Old Notes for exchange, nor shall any
of them incur any liability for failure to give such notification.
8. QUESTIONS, REQUESTS FOR ASSISTANCE AND ADDITIONAL COPIES. Questions and
requests for assistance may be directed to the Exchange Agent at its address and
telephone number set forth on the front of this Letter of Transmittal.
Additional copies of the Prospectus, the Notice of Guaranteed Delivery and the
Letter of Transmittal may be obtained from the Exchange Agent or from your
broker, dealer, commercial bank, trust company or other nominee.
9. LOST, DESTROYED OR STOLEN CERTIFICATES. If any certificate(s)
representing Old Notes have been lost, destroyed or stolen, the holder should
promptly notify the Exchange Agent. The holder will then be instructed as to the
steps that must be taken in order to replace the certificate(s). This Letter of
Transmittal and related documents cannot be processed until the procedures for
replacing lost, destroyed or stolen certificate(s) have been followed.
10. SECURITY TRANSFER TAXES. Holders who tender their Old Notes for
exchange will not be obligated to pay any transfer taxes in connection
therewith, except that holders who instruct the Company to register New Notes in
the name of or request that Old Notes not tendered or not accepted in the
Exchange Offer to be returned to, a person other than the registered tendering
holder will be responsible for the payment of any applicable transfer tax
thereon.
IMPORTANT: THIS LETTER OF TRANSMITTAL (OR FACSIMILE THEREOF),
11
OR AN AGENT'S MESSAGE IN LIEU THEREOF, AND ALL OTHER REQUIRED
DOCUMENTS MUST BE RECEIVED BY THE EXCHANGE AGENT
ON OR PRIOR TO THE EXPIRATION DATE.
12
Exhibit 99.2
NOTICE OF GUARANTEED DELIVERY
For Tender Of
7% Senior Notes Due August 15, 2004
of
Texas Instruments Incorporated
This Notice of Guaranteed Delivery or one substantially equivalent
hereto must be used to accept the Exchange Offer (as defined below) if (i)
certificates for the Company's (as defined below) 7% Senior Notes Due August 15,
2004 (the "Old Notes") are not immediately available, (ii) Old Notes, the Letter
of Transmittal and any other documents required by the Letter of Transmittal
cannot be delivered to Citibank, N.A. (the "Exchange Agent") on or prior to the
Expiration Date (as defined in the Prospectus referred to below) or (iii) the
procedures for book-entry transfer cannot be completed on a timely basis. This
Notice of Guaranteed Delivery may be delivered by hand or sent by facsimile
transmission, overnight courier, telex, telegram or mail to the Exchange Agent.
See "The Exchange Offer - Guaranteed Delivery Procedures" in the Prospectus
dated o, 1999 (which, together with the related Letter of Transmittal,
constitutes the "Exchange Offer") of Texas Instruments Incorporated, a Delaware
corporation (the "Company").
The Exchange Agent for the Exchange Offer is:
CITIBANK, N.A.
By Hand or Facsimile Transmissions: By Registered Or
Overnight Delivery: (Eligible Institutions Only) Certified Mail:
Citibank, N.A. Citibank, N.A.
Corporate Trust Window (212) 657-4009 Corporate Trust Window
111 Wall Street, 5th Floor 111 Wall Street, 5th Floor
New York, New York 10043 To Confirm by Telephone New York, New York 10043
Attn: Douglas Tienken or for Information Call: Attn: Douglas Tienken
(212) 657-8476
DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS OTHER THAN
AS SET FORTH ABOVE OR TRANSMISSION OF THIS NOTICE OF GUARANTEED DELIVERY VIA A
FACSIMILE TRANSMISSION TO A NUMBER OTHER THAN AS SET FORTH ABOVE WILL NOT
CONSTITUTE A VALID DELIVERY.
THIS NOTICE OF GUARANTEED DELIVERY IS NOT TO BE USED TO GUARANTEE
SIGNATURES. IF A SIGNATURE ON A LETTER OF TRANSMITTAL IS REQUIRED TO BE
GUARANTEED BY AN "ELIGIBLE INSTITUTION" UNDER THE INSTRUCTIONS THERETO, SUCH
SIGNATURE GUARANTEE MUST APPEAR IN THE APPLICABLE SPACE PROVIDED ON THE LETTER
OF TRANSMITTAL.
2
THE FOLLOWING GUARANTEE MUST BE COMPLETED
GUARANTEE OF DELIVERY
(Not to be used for Signature Guarantee)
The undersigned, a firm that is a member of a registered national
securities exchange or a member of the National Association of Securities
Dealers, Inc. or a commercial bank or trust company having an office or
correspondent in the United States, hereby guarantees to deliver to the Exchange
Agent, at one of its addresses set forth above, either the certificates for all
physically tendered Old Notes, in proper form for transfer, or confirmation of
the book-entry transfer of such Old Notes to the Exchange Agent's account at The
Depository Trust Company ("DTC"), pursuant to the procedures for book-entry
transfer set forth in the Prospectus, in either case together with any other
documents required by the Letter of Transmittal, within three New York Stock
Exchange trading days after the date of execution of this Notice of Guaranteed
Delivery.
The undersigned acknowledges that it must deliver the Old Notes tendered
hereby to the Exchange Agent within the time period set forth above and that
failure to do so could result in a financial loss to the undersigned.
Name of Firm:_________________________ _____________________________
(Authorized Signature)
Address:______________________________ Title:_______________________
______________________________________ Name:________________________
(Please type or print)
Area Code and Telephone Number: Date:________________________
______________________________________
NOTE: DO NOT SEND OLD NOTES WITH THIS NOTICE OF GUARANTEED DELIVERY. ACTUAL
SURRENDER OF OLD NOTES MUST BE MADE PURSUANT TO, AND BE ACCOMPANIED BY, A
PROPERLY COMPLETED AND FULLY EXECUTED LETTER OF TRANSMITTAL AND ANY OTHER
REQUIRED DOCUMENTS.
3
Exhibit 99.3
TEXAS INSTRUMENTS INCORPORATED
Offer to Exchange Its
7% Senior Exchange Notes Due August 15, 2004
For Any and All of Its Outstanding
7% Senior Notes Due August 15, 2004
To Our Clients:
Enclosed is a Prospectus, dated o, 1999, of Texas Instruments
Incorporated, a Delaware corporation (the "Company"), and a related Letter of
Transmittal (which together constitute the "Exchange Offer") relating to the
offer by the Company to exchange its 7% Senior Exchange Notes Due August 15,
2004 (the "New Notes"), pursuant to an offering registered under the Securities
Act of 1933, as amended (the "Securities Act"), for a like principal amount of
its issued and outstanding 7% Senior Notes Due August 15, 2004 (the "Old Notes")
upon the terms and subject to the conditions set forth in the Exchange Offer.
Please note that the Exchange Offer will expire at 5:00 p.m., New York
City time, on o, unless extended.
The Exchange Offer is not conditioned upon any minimum number of Old
Notes being tendered.
We are the holder of record and/or participant in the book-entry
transfer facility of Old Notes held by us for your account. A tender of such Old
Notes can be made only by us as the record holder and/or participant in the
book-entry transfer facility and pursuant to your instructions. The Letter of
Transmittal is furnished to you for your information only and cannot be used by
you to tender Old Notes held by us for your account.
We request instructions as to whether you wish to tender any or all of
the Old Notes held by us for your account pursuant to the terms and conditions
of the Exchange Offer. We also request that you confirm that we may on your
behalf make the representations contained in the Letter of Transmittal.
Pursuant to the Letter of Transmittal, each holder of Old Notes will
represent to the Company that (i) the holder is not an "affiliate" of the
Company, (ii) any New Notes to be received by the holder are being acquired in
the ordinary course of its business, and (iii) the holder has no arrangement or
understanding with any person to participate in a distribution (within the
meaning of the Securities Act) of such New Notes. If the tendering holder is a
broker-dealer that will receive New Notes for its own account in exchange for
Old Notes, we will represent on behalf of such broker-dealer that the Old Notes
to be exchanged for the New Notes were acquired by it as a result of
market-making activities or other trading activities, and acknowledge on behalf
of such broker-dealer that it will deliver a prospectus meeting the requirements
of the Securities Act in connection with any resale of such New Notes. By
acknowledging that it will deliver and by delivering a prospectus meeting the
requirements of the Securities Act in connection with any resale of such New
Notes, such broker-dealer is not deemed to admit that it is an "underwriter"
within the meaning of the Securities Act.
Very truly yours,
2
Exhibit 99.4
TEXAS INSTRUMENTS INCORPORATED
Offer to Exchange Its
7% Senior Exchange Notes Due August 15, 2004
For Any and All of Its Outstanding
7% Senior Notes Due August 15, 2004
To Registered Holders and The Depository
Trust Company Participants:
Enclosed are the materials listed below relating to the offer by Texas
Instruments Incorporated, a Delaware corporation (the "Company"), to exchange
its 7% Senior Exchange Notes Due August 15, 2004 (the "New Notes"), pursuant to
an offering registered under the Securities Act of 1933, as amended (the
"Securities Act"), for a like principal amount of its issued and outstanding 7%
Senior Notes Due August 15, 2004 (the "Old Notes") upon the terms and subject to
the conditions set forth in the Company's Prospectus, dated o, 1999, and the
related Letter of Transmittal (which together constitute the "Exchange Offer").
Enclosed herewith are copies of the following documents:
1. Prospectus dated o, 1999;
2. Letter of Transmittal;
3. Notice of Guaranteed Delivery;
4. Instruction to Registered Holder and/or Book-Entry Transfer
Participant from Owner; and
5. Letter which may be sent to your clients for whose account you hold
Old Notes in your name or in the name of your nominee, to accompany
the instruction form referred to above, for obtaining such client's
instruction with regard to the Exchange Offer.
We urge you to contact your clients promptly. Please note that the
Exchange Offer will expire at 5:00 p.m., New York City time, on o unless
extended.
The Exchange Offer is not conditioned upon any minimum number of Old
Notes being tendered.
Pursuant to the Letter of Transmittal, each holder of Old Notes will
represent to the Company that (i) the holder is not an "affiliate" of the
Company, (ii) any New Notes to be received by it are being acquired in the
ordinary course of its business, and (iii) the holder has no arrangement or
understanding with any person to participate in a distribution (within the
meaning of the Securities Act) of such New Notes. If the tendering holder is a
broker-dealer that will receive New Notes for its own account in exchange for
Old Notes, you will represent on behalf of such broker-dealer that the Old Notes
to be exchanged for the New Notes were acquired by it as a result of
market-making activities or other trading activities, and acknowledge on behalf
of such broker-dealer that it will deliver a prospectus meeting the requirements
of the Securities Act in connection with any resale of such New Notes. By
acknowledging that it will deliver and by delivering a prospectus meeting the
requirements of the Securities Act in connection with any resale of such New
Notes, such broker-dealer is not deemed to admit that it is an "underwriter"
within the meaning of the Securities Act.
The enclosed Instruction to Registered Holder and/or Book-Entry Transfer
Participant from Owner contains an authorization by the beneficial owners of the
Old Notes for you to make the foregoing representations.
The Company will not pay any fee or commission to any broker or dealer
or to any other persons (other than the Exchange Agent) in connection with the
solicitation of tenders of Old Notes pursuant to the Exchange Offer. The Company
will pay or cause to be paid any transfer taxes payable on the transfer of Old
Notes to it, except as otherwise provided in Instruction 10 of the enclosed
Letter of Transmittal.
Additional copies of the enclosed material may be obtained from the
undersigned.
Very truly yours,
CITIBANK, N.A.
NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL MAKE YOU THE AGENT
OF TEXAS INSTRUMENTS INCORPORATED OR CITIBANK, N.A., OR AUTHORIZE YOU TO USE ANY
DOCUMENT OR MAKE ANY STATEMENT ON THEIR BEHALF IN CONNECTION WITH THE
2
EXCHANGE OFFER OTHER THAN THE DOCUMENTS ENCLOSED HEREWITH
AND THE STATEMENTS CONTAINED THEREIN.
3
Exhibit 99.5
INSTRUCTION TO REGISTERED HOLDER AND/OR
BOOK-ENTRY TRANSFER FACILITY PARTICIPANT FROM OWNER
OF
TEXAS INSTRUMENTS INCORPORATED
7% Senior Notes Due August 15, 2004
(the "Old Notes")
To Registered Holder and/or Participant of the Book-Entry Transfer
Facility:
The undersigned hereby acknowledges receipt of the Prospectus dated o,
1999 (the "Prospectus") of Texas Instruments Incorporated, a Delaware
corporation (the "Company"), and the accompanying Letter of Transmittal (the
"Letter of Transmittal"), that together constitute the Company's offer (the
"Exchange Offer"). Capitalized terms used but not defined herein have the
meanings as ascribed to them in the Prospectus or the Letter of Transmittal.
This will instruct you, the registered holder and/or book-entry transfer
facility participant, as to the action to be taken by you relating to the
Exchange Offer with respect to the Old Notes held by you for the account of the
undersigned.
The aggregate face amount of the Old Notes held by you for the account
of the undersigned is (fill in amount):
$___________ of the 7% Senior Notes Due August 15, 2004
With respect to the Exchange Offer, the undersigned hereby instructs you
(check appropriate box):
[ ] To TENDER the following Old Notes held by you for the account of the
undersigned (insert principal amount of Old Notes to be tendered, if any):
$___________ of the 7% Senior Notes Due August 15, 2004
[ ] NOT to TENDER any Old Notes held by you for the account of the undersigned.
If the undersigned instructs you to tender the Old Notes held by you for
the account of the undersigned, it is understood that you are authorized to
make, on behalf of the undersigned (and the undersigned, by its signature below,
hereby makes to you), the representations and warranties contained in the Letter
of Transmittal that are to be made with respect to the undersigned as a
beneficial owner, including but not limited to the representations, that (i) the
holder is not an "affiliate" of the Company, (ii) any New Notes to be received
by the holder are being acquired in the ordinary course of its business, and
(iii) the holder has no arrangement or understanding with any person to
participate in a distribution (within the meaning of the Securities Act) of such
New Notes. If the undersigned is a broker-dealer that will receive New Notes for
its own account in exchange for Old Notes, it represents that such Old Notes
were acquired as a result of market-making activities or other trading
activities, and it acknowledges that it will deliver a prospectus meeting the
requirements of the Securities Act in connection with any resale of such New
Notes. By acknowledging that it will deliver and by delivering a prospectus
meeting the requirements of the Securities Act in connection with any resale of
such New Notes, such broker-dealer is not deemed to admit that it is an
"underwriter" within the meaning of the Securities Act of 1933, as amended.
2
SIGN HERE
Name of beneficial owner(s):
---------------------------------------------------
Signature(s):
------------------------------------------------------------------
Name(s) (please print):
--------------------------------------------------------
Address:
-----------------------------------------------------------------------
- --------------------------------------------------------------------------------
Telephone Number:
--------------------------------------------------------------
Taxpayer Identification or Social Security Number:
-----------------------------
- --------------------------------------------------------------------------------
Date:
--------------------------------------------------------------------------
3