|
Exhibit
10.1
Execution
Copy
STOCK PURCHASE
AGREEMENT
Between
WEST COAST HITECH
L.P.
and
ADVANCED MICRO DEVICES,
INC.
Dated as of November 15,
2007
TABLE OF
CONTENTS
|
|
|
|
|
| |
|
|
|
Page |
|
| ARTICLE I |
|
| DEFINITIONS |
|
|
|
|
SECTION 1.01.
|
|
Certain Defined Terms
|
|
1 |
|
SECTION 1.02.
|
|
Interpretation and Rules of
Construction
|
|
6 |
|
| ARTICLE II |
|
| PURCHASE AND SALE |
|
|
|
|
SECTION 2.01.
|
|
Purchase and Sale of the
Shares
|
|
7 |
|
SECTION 2.02.
|
|
Purchase Price
|
|
7 |
|
SECTION 2.03.
|
|
Closing
|
|
7 |
|
SECTION 2.04.
|
|
Closing Deliveries by the
Company
|
|
7 |
|
SECTION 2.05.
|
|
Closing Deliveries by the
Investor
|
|
8 |
|
SECTION 2.06.
|
|
Adjustments to Purchase Price
|
|
8 |
|
| ARTICLE III |
|
|
REPRESENTATIONS AND
WARRANTIES
OF THE COMPANY
|
|
|
|
|
SECTION 3.01.
|
|
Good Standing of the Company
|
|
8 |
|
SECTION 3.02.
|
|
Good Standing of Subsidiaries
|
|
8 |
|
SECTION 3.03.
|
|
Capitalization
|
|
9 |
|
SECTION 3.04.
|
|
Authorization of Agreements;
Enforceability
|
|
9 |
|
SECTION 3.05.
|
|
Authorization of the Shares
|
|
9 |
|
SECTION 3.06.
|
|
S-3 Eligibility as Well-Known Seasoned
Issuer
|
|
9 |
|
SECTION 3.07.
|
|
Registration Statement and
Prospectus
|
|
9 |
|
SECTION 3.08.
|
|
Pending Proceedings and
Examinations
|
|
10 |
|
SECTION 3.09.
|
|
Independent Accountants
|
|
10 |
|
SECTION 3.10.
|
|
Financial Statements
|
|
10 |
|
SECTION 3.11.
|
|
Stock Options
|
|
10 |
|
SECTION 3.12.
|
|
No Material Adverse Change in
Business
|
|
11 |
|
SECTION 3.13.
|
|
Absence of Defaults and
Conflicts
|
|
11 |
|
SECTION 3.14.
|
|
Absence of Proceedings
|
|
11 |
|
SECTION 3.15.
|
|
Absence of Further
Requirements
|
|
11 |
|
SECTION 3.16.
|
|
Absence of Labor Dispute
|
|
12 |
|
SECTION 3.17.
|
|
Intellectual Property
|
|
12 |
|
SECTION 3.18.
|
|
Absence of Manipulation
|
|
12 |
|
SECTION 3.19.
|
|
Possession of Authorizations
|
|
12 |
|
SECTION 3.20.
|
|
Title to Property
|
|
13 |
i
|
|
|
|
|
|
SECTION 3.21.
|
|
Investment Company Act
|
|
13 |
|
SECTION 3.22.
|
|
Not a Real Property Holding
Company
|
|
13 |
|
SECTION 3.23.
|
|
Environmental Laws
|
|
13 |
|
SECTION 3.24.
|
|
ERISA
|
|
13 |
|
SECTION 3.25.
|
|
Foreign Corrupt Practices Act
|
|
13 |
|
SECTION 3.26.
|
|
Tax Returns
|
|
13 |
|
SECTION 3.27.
|
|
Insurance
|
|
13 |
|
SECTION 3.28.
|
|
Internal Controls
|
|
14 |
|
SECTION 3.29.
|
|
Compliance with the Sarbanes-Oxley
Act
|
|
14 |
|
SECTION 3.30.
|
|
Registration Rights
|
|
14 |
|
SECTION 3.31.
|
|
Money Laundering Laws
|
|
14 |
|
SECTION 3.32.
|
|
Officer’s Certificates
|
|
14 |
|
| ARTICLE IV |
|
|
REPRESENTATIONS AND
WARRANTIES
OF THE INVESTOR
|
|
|
|
|
SECTION 4.01.
|
|
Due Organization of the
Investor
|
|
14 |
|
SECTION 4.02.
|
|
Authorization of Agreements;
Enforceability
|
|
14 |
|
SECTION 4.03.
|
|
Absence of Conflicts
|
|
15 |
|
SECTION 4.04.
|
|
Absence of Proceedings
|
|
15 |
|
SECTION 4.05.
|
|
Absence of Further
Requirements
|
|
15 |
|
| ARTICLE V |
|
| ADDITIONAL AGREEMENTS |
|
|
|
|
SECTION 5.01.
|
|
Conduct of Business Prior to the
Closing
|
|
15 |
|
SECTION 5.02.
|
|
Registration Statement
|
|
16 |
|
SECTION 5.03.
|
|
Additional Authorizations
|
|
16 |
|
SECTION 5.04.
|
|
Access to Information
|
|
16 |
|
SECTION 5.05.
|
|
Confidentiality
|
|
17 |
|
SECTION 5.06.
|
|
Notification of Certain
Matters
|
|
17 |
|
SECTION 5.07.
|
|
Authorization for Listing
|
|
17 |
|
SECTION 5.08.
|
|
Use of Proceeds
|
|
17 |
|
SECTION 5.09.
|
|
Registration Rights Agreement
|
|
17 |
|
| ARTICLE VI |
|
| CONDITIONS TO CLOSING |
|
|
|
|
SECTION 6.01.
|
|
Conditions to Obligations of the
Company
|
|
18 |
|
SECTION 6.02.
|
|
Conditions to Obligations of the
Investor
|
|
19 |
ii
|
|
|
|
|
| ARTICLE VII |
|
| TERMINATION |
|
|
|
|
SECTION 7.01.
|
|
Termination
|
|
20 |
|
SECTION 7.02.
|
|
Effect of Termination
|
|
20 |
|
| ARTICLE VIII |
|
| GENERAL PROVISIONS |
|
|
|
|
SECTION 8.01.
|
|
Expenses
|
|
21 |
|
SECTION 8.02.
|
|
Notices
|
|
21 |
|
SECTION 8.03.
|
|
Public Announcements
|
|
22 |
|
SECTION 8.04.
|
|
Severability
|
|
22 |
|
SECTION 8.05.
|
|
Entire Agreement
|
|
22 |
|
SECTION 8.06.
|
|
Assignment
|
|
22 |
|
SECTION 8.07.
|
|
Amendment
|
|
23 |
|
SECTION 8.08.
|
|
Waiver
|
|
23 |
|
SECTION 8.09.
|
|
Survival of Representations and
Warranties
|
|
23 |
|
SECTION 8.10.
|
|
No Third Party Beneficiaries
|
|
23 |
|
SECTION 8.11.
|
|
Governing Law; Arbitration; Waiver of
Jury Trial
|
|
23 |
|
SECTION 8.12.
|
|
Currency
|
|
25 |
|
SECTION 8.13.
|
|
Counterparts
|
|
25 |
|
|
|
|
|
|
Exhibit A
|
|
– |
|
Form of
Latham & Watkins LLP Opinion |
|
Exhibit B
|
|
– |
|
Form of
Opinion of Company’s General Counsel |
iii
STOCK PURCHASE AGREEMENT,
dated as of November 15, 2007 (this “ Agreement
”), between West Coast Hitech L.P. (the “
Investor ”), an exempted limited partnership organized
under the laws of the Cayman Islands, acting through its general
partner, West Coast Hitech G.P., Ltd., and Advanced Micro Devices,
Inc., a Delaware corporation (the “ Company
”).
WHEREAS, the Company desires
to issue and sell to the Investor, and the Investor desires to
purchase from the Company, pursuant to the terms and conditions set
forth in this Agreement, 49,000,000 shares (the “
Shares ”) of the common stock, par value $0.01 per
share (“ Common Stock ”), of the Company;
and
WHEREAS, on or prior to the
date hereof, the Company has filed an Automatic Shelf Registration
Statement (as defined herein).
NOW, THEREFORE, in
consideration of the premises and the mutual agreements and
covenants hereinafter set forth, and intending to be legally bound,
the Company and the Investor hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01.
Certain Defined Terms . For purposes of this
Agreement:
“ Action ”
means any claim, action, suit, arbitration, inquiry, grievance,
proceeding, hearing, investigation, or administrative
decision-making or rulemaking process by or before any Governmental
Authority.
“ Affiliate
” means, with respect to the Company, any other Person that
directly, or indirectly through one or more intermediaries,
controls, is controlled by, or is under common control with, the
Company, and with respect to the Investor, means the
Investor’s immediate parent company and any direct or
indirect subsidiary of such parent company.
“ Aggregate Purchase
Price ” means the product of (a) the number of
Shares to be purchased pursuant to this Agreement and (b) the
Purchase Price.
“ Agreement
” or “ this Agreement ” shall have the
meaning set forth in the Preamble, and shall include the Exhibits
hereto and all amendments hereto made in accordance with the
provisions hereof.
“ Authorization
” means any permit, license, consent, exemption, franchise,
authorization or other approval from any Person or any permit,
license, consent, exemption, franchise, authorization or other
approval from, or any required filing with or notification to, any
Governmental Authority.
“ Automatic Shelf
Registration Statement ” means an “automatic shelf
registration statement,” as defined in Rule 405 under the
Securities Act.
“ Business
” means the business of providing semiconductor solutions for
the computing, graphics and consumer electronics markets throughout
the world, as described in the Prospectus and as currently
conducted by the Company.
“ Business Day
” means any day that is not a Saturday, a Sunday or other day
on which banks are required or authorized by Law to be closed in
The City of New York, NY, London, England or Abu Dhabi, the United
Arab Emirates.
“ Closing
” shall have the meaning set forth in
Section 2.03.
“ Closing Date
” shall have the meaning set forth in
Section 2.03.
“ Code ”
means the Internal Revenue Code of 1986.
“ Common Stock
” shall have the meaning set forth in the
Recitals.
“ Company
” shall have the meaning set forth in the
Preamble.
“ Company Closing
Certificate ” means a certificate, dated the Closing
Date, executed by a duly authorized officer of the Company
certifying to the matters set forth in
Section 6.02(a).
“ Confidentiality
Agreement ” means that certain Reciprocal Confidentiality
Agreement between the Investor’s parent company and the
Company, dated as of April 1, 2007.
“ control
” (including the terms “ controlled by ”
and “ under common control with ”) means, the
possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of a Person, whether
through the ownership of voting securities, as trustee or executor,
by contract or otherwise, including, without limitation, the
ownership, directly or indirectly, of securities having the power
to elect a majority of the board of directors or similar body
governing the affairs of such Person.
“ DTC ”
means The Depository Trust Company, its nominees and their
respective successors.
“ DTC
Participant ” means a Person that is entitled to deposit
securities with DTC in its capacity as a “participant,”
as defined in and pursuant to DTC’s governing
documents.
“ Encumbrance
” means any Lien, violation, charge, lease, license,
encumbrance, adverse claim, reversion, reverter, restrictive
covenant, condition or restriction of any kind, including any
restriction on the use, voting, transfer, receipt of income or
other exercise of any attributes of ownership.
“ Environment
” means surface waters, groundwaters, soil, subsurface strata
and ambient air.
2
“ Environmental
Laws ” means all Laws, now or hereafter in effect and as
amended, relating to the Environment, health, safety, natural
resources or Hazardous Materials, including CERCLA; the Resource
Conservation and Recovery Act, 42 U.S.C. §§ 6901
et seq .; the Hazardous Materials Transportation Act,
49 U.S.C. §§ 6901 et seq .; the Clean
Water Act, 33 U.S.C. §§ 1251 et seq .;
the Toxic Substances Control Act, 15 U.S.C. §§ 2601
et seq .; the Clean Air Act, 42 U.S.C.
§§ 7401 et seq .; the Safe Drinking
Water Act, 42 U.S.C. §§ 300f et seq .;
the Atomic Energy Act, 42 U.S.C. §§ 2011 et
seq .; the Federal Insecticide, Fungicide and Rodenticide
Act, 7 U.S.C. §§ 136 et seq .; and the
Federal Food, Drug and Cosmetic Act, 21 U.S.C.
§§ 301 et seq .
“ Exchange Act
” means the Securities Exchange Act of 1934.
“ Exon-Florio
Provision ” means Section 721 of the Defense
Production Act of 1950.
“ GAAP ”
means United States generally accepted accounting principles in
effect from time to time applied consistently throughout the
periods involved.
“ Governmental
Authority ” means any United States or foreign federal,
national, supranational, state, provincial, municipal, local,
territorial or similar government, governmental, regulatory,
legislative, taxing or administrative authority, agency or
commission or any court, tribunal, or judicial or arbitral
body.
“ Governmental
Order ” means any order, writ, judgment, injunction,
decree, stipulation, determination or award entered by or with any
Governmental Authority.
“ Grant Date
” means, with respect to a Stock Option, the date on which
the grant of such Stock Option was, by its terms, to be
effective.
“ Hazardous
Materials ” means (a) petroleum and petroleum
products, radioactive materials, asbestos-containing materials,
urea formaldehyde foam insulation, transformers or other equipment
that contain polychlorinated biphenyls and radon gas, (b) any
other chemicals, materials or substances defined as or included in
the definition of “hazardous substances,”
“hazardous wastes,” “hazardous materials,”
“extremely hazardous wastes,” “restricted
hazardous wastes,” “toxic substances,”
“toxic pollutants,” “contaminants” or
“pollutants,” or words of similar import, under any
applicable Environmental Law, and (c) any other chemical,
material or substance that is regulated by any Environmental
Law.
“ HSR Act
” means the Hart-Scott-Rodino Antitrust Improvements Act of
1976.
“ Intellectual
Property ” means (a) patents, patent applications
and statutory invention registrations, (b) trademarks, service
marks, domain names, trade dress, logos, trade names, corporate
names and other identifiers of source or goodwill, including
registrations and applications for registration thereof,
(c) mask works and copyrights, including copyrights in
computer software, and registrations and applications for
registration thereof, and (d) confidential and proprietary
information, including trade secrets, know-how and invention
rights.
“ Investor
” shall have the meaning set forth in the
Preamble.
3
“ Investor Closing
Certificate ” means a certificate, dated the Closing
Date, executed by a duly authorized officer of the Investor
certifying to the matters set forth in
Section 6.01(a).
“ Investor
Expenses ” means an amount equal to $14,624,050 to
reimburse Investor for expenses incurred in connection with the
transactions contemplated by this Agreement.
“ Law ”
means any federal, national, supranational, state, provincial,
local or similar statute, law, ordinance, regulation, rule, code,
order, or rule of law (including common law) of any United States
or foreign jurisdiction, and any judicial or administrative
interpretation thereof, including any Governmental
Order.
“ Liabilities
” means any and all debts, liabilities and obligations,
whether accrued or fixed, absolute or contingent, matured or
unmatured or determined or determinable, including those arising
under any Law (including any Environmental Law), Action or
Governmental Order and those arising under any contract, agreement,
arrangement, commitment or undertaking.
“ Lien ”
means any security interest, pledge, hypothecation, mortgage, or
lien (including environmental and tax liens).
“ Material Adverse
Effect ” means any circumstance, change in or effect on
the Business, the Company or any Subsidiary that, individually or
in the aggregate with all other circumstances, changes in, or
effects on the Business, the Company or any Subsidiary: (a) is
materially adverse to the condition, financial or otherwise, or to
the earnings, business affairs, or properties of the Company and
its Subsidiaries, taken as one enterprise; whether or not arising
in the ordinary course of business, or (b) could reasonably be
expected to materially and adversely affect the consummation of the
transactions contemplated in this Agreement or the performance by
the Company of its obligations hereunder.
“ Material
Contract ” means, as to the Company, any agreement
required under the Securities Act to be filed as an exhibit to the
Registration Statement, including, with respect to each such
agreement, any and all amendments, modifications, supplements,
renewals or restatements thereof.
“ Money Laundering
Laws ” means applicable financial recordkeeping and
reporting requirements of the Currency and Foreign Transactions
Reporting Act of 1970 or the Laws administered or promulgated by,
or Actions of, the United States Office of Foreign Asset Controls,
or similar Laws of any jurisdiction.
“ Permitted Investor
Assignee ” means any Affiliate of the Investor that is,
directly or indirectly, wholly-owned by the parent company of the
Investor to which the Investor assigns this Agreement or any of its
rights and obligations hereunder.
“ Person ”
means any individual, partnership, firm, corporation, limited
liability company, association, trust, unincorporated organization
or other entity, as well as any syndicate or group that would be
deemed to be a Person under Section 13(d)(3) of the Exchange
Act.
4
“ Prospectus
” means the prospectus, including the Prospectus Supplement
thereto and the documents incorporated by reference therein, which
is included in the Registration Statement.
“ Prospectus
Supplement ” means the prospectus supplement that relates
to the issuance and sale of the Shares, and which shall be filed
with the SEC in accordance with Rule 424(b) under the
Securities Act.
“ Purchase Price
” shall have the meaning set forth in
Section 2.02.
“ Purchase Price
Bank Account ” means a bank account in the United States
to be designated by the Company in a written notice to the Investor
prior to the Closing.
“ Registration
Expenses ” means all costs and expenses incurred in
connection with the preparation and filing of the Registration
Statement, the Prospectus, and any Prospectus Supplement,
including, without limitation, all registration, qualification and
filing fees, printing expenses, blue sky fees and expenses, and the
expense of any special audit or review by the Company’s
auditors of the Company’s financial statements incident to or
required in connection with any the preparation and filing of the
Registration Statement. Registration Expenses shall not include the
Investor Expenses.
“ Registration
Statement ” means the Company’s Automatic Shelf
Registration Statement filed by the Company on November 15,
2007, including the Prospectus contained therein and all documents
that are incorporated by reference or deemed incorporated by
reference therein under the Securities Act or the Exchange Act, and
all exhibits and schedules thereto.
“ SEC ”
means the United States Securities and Exchange
Commission.
“ Securities Act
” means the Securities Act of 1933.
“ Shares ”
shall have the meaning set forth in the Recitals.
“ Significant
Subsidiary ” means any Subsidiary that is a significant
subsidiary of the Company under Rule 1-02(w) of SEC Regulation
S-X.
“ Stock Option
Plans ” means the Company’s 2004 Equity Incentive
Plan and the Company’s Employee Stock Purchase
Plan.
“ Stock Options
” means options to purchase Common Stock pursuant to the
Stock Option Plans, and other options granted to employees and
directors of the Company that are outstanding as of the date
hereof.
“ Subsidiary
” or “ Subsidiaries ” means any and all
corporations, partnerships, limited liability companies, joint
ventures, associations and other entities controlled by the
Company, directly or indirectly.
5
“ Tax Returns
” means any return, declaration, report, election, claim for
refund or information return or other statement or form relating to
Taxes, filed or required to be filed with any government or taxing
authority, including any schedule or attachment thereto or any
amendment thereof.
“ Taxes ”
means any and all taxes, fees, levies, duties, tariffs, imposts,
and other charges of any kind (together with any and all interest,
penalties, additions to tax and additional amounts imposed with
respect thereto) imposed by any Governmental Authority, including
taxes or other charges on or with respect to income, franchises,
windfall or other profits, gross receipts, property, intangible
property, excise, sales, use, capital stock, accumulation of
earnings, payroll, employment, social security, workers’
compensation, unemployment compensation, or net worth; taxes or
other charges in the nature of excise, withholding, ad valorem,
stamp, transfer, value added, or gains taxes; license, registration
and documentation fees; and customs’ duties, tariffs, and
similar charges. It also includes any withholding taxes which the
Company or any of its Subsidiaries is required by any Governmental
Authority to withhold on behalf of any Person, and to remit to any
Governmental Authority.
“ Termination
Date ” shall have the meaning set forth in
Section 7.01(d).
SECTION 1.02.
Interpretation and Rules of Construction . In this
Agreement, except to the extent otherwise provided or that the
context otherwise requires:
(a) when a reference is made
in this Agreement to an Article, Recital, Section, or Exhibit, such
reference is to an Article, Recital or Section of, or an Exhibit
to, this Agreement unless otherwise indicated;
(b) the table of contents and
headings for this Agreement are for reference purposes only and do
not affect in any way the meaning or interpretation of this
Agreement;
(c) whenever the words
“include,” “includes” or
“including” are used in this Agreement, they are deemed
to be followed by the words “without
limitation”;
(d) the words
“hereof,” “herein” and
“hereunder” and words of similar import, when used in
this Agreement, refer to this Agreement as a whole and not to any
particular provision of this Agreement;
(e) all terms defined in this
Agreement have the defined meanings when used in any certificate or
other document made or delivered pursuant hereto, unless otherwise
defined therein;
(f) the definitions of terms
contained in this Agreement are applicable to the singular as well
as the plural forms of such terms;
(g) any Law defined or
referred to herein or in any agreement or instrument that is
referred to herein means such Law or statute as from time to time
amended, modified or supplemented, including by succession of
comparable successor Laws;
6
(h) when any Law referred to
herein by its statutory title includes a delegation of authority to
an administrative agency to promulgate rules and regulations
implementing such Law, any reference to such Law herein by its
statutory title means such Law and all such rules and regulations
so promulgated;
(i) references to a Person
are also to its successors and permitted assigns;
(j) the use of
“or” is not intended to be exclusive unless expressly
indicated otherwise; and
(k) all references to the
word “state” include the Commonwealth of Puerto Rico
and all territories of the United States.
ARTICLE II
PURCHASE AND SALE
SECTION 2.01.
Purchase and Sale of the Shares . Upon the terms and subject
to the conditions of this Agreement, at the Closing, the Company
shall issue to the Investor (or to a Permitted Investor Assignee),
and the Investor (or such Permitted Investor Assignee) shall
purchase, accept and acquire from the Company, the
Shares.
SECTION 2.02.
Purchase Price . The purchase price per share for the Shares
shall be $12.70 (the “ Purchase Price
”).
SECTION 2.03.
Closing . Subject to the terms and conditions of this
Agreement, the issuance, sale and purchase of the Shares
contemplated by this Agreement shall take place at a closing (the
“ Closing ”) to be held at the opening of
business in New York on the first Business Day after the date
hereof (the “ Closing Date ”), or at such other
date and time as the Company and the Investor may mutually agree
upon in writing.
SECTION 2.04.
Closing Deliveries by the Company . At the Closing, the
Company shall deliver or cause to be delivered to the Investor or
its designated custodian:
(a) the Shares in book entry
form delivered into the account of DTC or a DTC Participant
custodian designated by the Investor;
(b) the executed Company
Closing Certificate;
(c) a receipt for the
Aggregate Purchase Price less the Investor Expenses; and
(d) a true and complete copy,
certified by the Secretary or an Assistant Secretary of the
Company, of the resolutions duly and validly adopted by the board
of directors of the Company evidencing its authorization of the
execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby.
7
SECTION 2.05.
Closing Deliveries by the Investor . At the Closing, the
Investor shall deliver to the Company:
(a) the Aggregate Purchase
Price, less the Investor Expenses, by wire transfer in immediately
available funds to the Purchase Price Bank Account;
(b) the executed Investor
Closing Certificate; and
(c) a true and complete copy,
certified by an authorized representative of the general partner of
the Investor, of the resolutions duly and validly adopted by the
board of directors of the general partner of the Investor
evidencing the Investor’s authorization of the execution and
delivery of this Agreement and the consummation of the transactions
contemplated hereby.
SECTION 2.06.
Adjustments to Purchase Price . The Purchase Price shall be
adjusted to reflect appropriately the effect of any stock split,
reverse stock split, stock dividend (including any dividend or
distribution of securities convertible into Common Stock),
extraordinary cash dividends, reorganization, recapitalization,
reclassification, combination, exchange of shares or other like
change with respect to Common Stock occurring on or after the date
hereof and prior to the Closing.
ARTICLE III
REPRESENTATIONS AND
WARRANTIES
OF THE COMPANY
As an inducement to the
Investor to enter into this Agreement, the Company hereby
represents and warrants to the Investor as follows:
SECTION 3.01. Good
Standing of the Company . The Company has been duly organized
and is validly existing as a corporation in good standing under the
laws of the State of Delaware and has all necessary corporate power
and authority to enter into this Agreement, to carry out its
obligations hereunder, to consummate the transactions contemplated
hereby, and to own, lease and operate its properties, and to
conduct the Business; and the Company is duly qualified as a
foreign corporation to transact business and is in good standing in
each other jurisdiction in which such qualification is required,
except where the failure so to qualify or to be in good standing
would not, individually or in the aggregate, result in a Material
Adverse Effect.
SECTION 3.02. Good
Standing of Subsidiaries . Each of the Subsidiaries has been
duly organized and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation,
has corporate power and authority to own, lease and operate its
properties, and to conduct its business as described in the
Prospectus, and is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in
which such qualification is required, except where the failure so
to qualify or to be in good standing would not, individually or in
the aggregate, result in a Material Adverse Effect; except for
(i) AMD Belgium N.V., six shares of which are owned by an
individual, Thomas M. McCoy, (ii) AMD Fab 36 LLC &
Co. KG, 18.1818% of which is owned by unaffiliated third parties,
(iii) ATI Technologies (Finland) Oy, 3.8% of which is owned by
unaffiliated third parties, and (iv) Commercial Valley Realty
Holding Inc., 50% of which is owned by unaffiliated third parties,
all of the issued and outstanding capital stock of each such
Subsidiary has been duly authorized and
8
validly issued, is fully paid and
non-assessable and, except as set forth in the Prospectus, all
outstanding capital stock of each Subsidiary is owned by the
Company, directly or through Subsidiaries, and is free and clear of
any Encumbrance, except for all shares or interests of AMD Fab 36
LLC & Co KG, AMD Fab 36 Holding Gmbh, AMD Fab 36 Admin and
AMD Fab 36 LLC, which are pledged to lenders in connection with the
Euro 700 Million Term Loan Facility Agreement for Fab 36 LLC and Co
KG dated April 21, 2004.
SECTION 3.03.
Capitalization . The capital stock of the Company conforms
in all material respects to the description thereof contained in
the Prospectus. The shares of issued and outstanding capital stock
of the Company have been duly authorized and validly issued and are
fully paid and non-assessable. As of November 1, 2007, there
were 554,642,636 shares of Common Stock issued and outstanding.
Since November 1, 2007, the Company has not issued any shares
of Common Stock except under the Stock Option Plans or pursuant to
contractual rights described in the Prospectus, and since
November 1, 2007, except pursuant to the Stock Option Plans,
the Company has not granted or issued any, and except as described
in the Prospectus, there do not exist any, options, warrants or
other rights to purchase, agreements or obligations to issue, or
rights to convert any obligations into or exchange any securities
for, shares of capital stock or ownership interests in the
Company.
SECTION 3.04.
Authorization of Agreements; Enforceability . Each of this
Agreement, the performance by the Company of its obligations
hereunder, and the consummation by the Company of the transactions
contemplated hereby, have been duly authorized by all requisite
corporate action on the part of the Company. This Agreement has
been validly executed and delivered by the Company and constitutes
a valid and binding obligation of the Company, enforceable against
the Company in accordance with its terms, except as enforcement may
be limited by general principles of equity, whether applied in a
court of law or a court of equity, and by applicable bankruptcy,
insolvency and similar Laws affecting creditors’ rights and
remedies generally.
SECTION 3.05.
Authorization of the Shares . The Shares have been duly
authorized for issuance and sale to the Investor pursuant to this
Agreement and, when issued and delivered by the Company pursuant to
this Agreement against payment of the consideration set forth
herein, will be validly issued, fully paid and non-assessable. The
issuance of the Shares pursuant to this Agreement is not subject to
the preemptive or other similar rights of any securityholder of the
Company.
SECTION 3.06. S-3
Eligibility as Well-Known Seasoned Issuer . The Company meets
the requirements for use of Form S-3 under the Securities Act and
the Company is a “well-known seasoned issuer” as
defined in Rule 405 under the Securities Act. The Company is not an
“Ineligible Issuer” (as defined in Rule 405 under the
Securities Act) without taking account of any determination by the
SEC pursuant to Rule 405 that it is not necessary that the Company
be considered an Ineligible Issuer.
SECTION 3.07.
Registration Statement and Prospectus . The Company has
filed the Registration Statement with the SEC and has delivered a
copy thereof to the Investor. The Registration Statement became
effective upon filing, remains effective, and no stop order
suspending the effectiveness of the Registration Statement has been
issued under the Securities
9
Act and no proceedings for that purpose
have been instituted or are pending or, to the knowledge of the
Company, are contemplated by the SEC. The Registration Statement,
as of the date hereof, meets the requirements set forth in Rule
415(a)(1)(x) under the Securities Act. The Company will file the
Prospectus Supplement with the SEC pursuant to Rule 424(b) under
the Securities Act. On each effective date thereof, and on the
Closing Date, the Registration Statement did, and when the
Prospectus Supplement is first filed in accordance with Rule 424(b)
under the Securities Act, and on the Closing Date, the Prospectus
will comply in all material respects with the applicable
requirements of the Securities Act and the Exchange Act; on each
effective date thereof, on the date hereof, and on the Closing
Date, the Registration Statement did not and will not contain any
untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make
the statements therein not misleading, and on the date of any
filing pursuant to Rule 424(b), and on the Closing Date, the
Prospectus will not include any untrue statement of a material fact
or omit to state a material fact necessary in order to make the
statements therein, in the
|