As filed with the Securities and Exchange Commission on December 19, 2003February 28, 2023
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Under
The Securities Act of 1933
NVIDIA
CorporationCORPORATION
(Exact name of registrant as specified in its charter)
Delaware | | 94-3177549 | | | |
Delaware (State or Other Jurisdictionother jurisdiction of Incorporation incorporation or Organization)organization) | | 94-3177549 (I.R.S. Employer Identification Number) |
2701
2788 San Tomas Expressway
Santa Clara, California
9505095051
(Address, including zip code, and telephone number, including area code, of Registrant’sregistrant’s principal executive offices)
Timothy S. Teter
Executive Vice President,
General Counsel and
Chief Executive OfficerSecretary
2788 San Tomas Expressway
Santa Clara, California
9505095051
(Name, address, including zip code, and telephone number, including area code, of agent for services)service)
Eric C. Jensen
Esq.COOLEY GODWARD
John T. McKenna
Natalie Y. Karam
Cooley LLP
Five Palo Alto Square
3000 El Camino Real
3175 Hanover Street
Palo Alto, California
9430694304
(650) 843-5000
Approximate date of commencement of proposed sale to the public:public: From time to time after the effective date of this registration statement.Registration Statement becomes effective. If the only securities being registered on this formForm are being offered pursuant to dividend or interest reinvestment plans, please check the following box.¨☐ If any of the securities being registered on this formForm are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, as amended, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box.x☒ If this formForm is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨☐ If this formForm is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨☐ If delivery ofthis Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the prospectus is expected to be madeCommission pursuant to Rule 434, please462(e) under the Securities Act, check the following box. ¨☐ CALCULATION OF REGISTRATION FEEIf this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box.
|
Title of Each Class of Securities To Be Registered (1) | | Proposed Maximum Aggregate Offering Price (2) | | Amount of Registration Fee (3) |
|
Common Stock, par value $0.001 per share | | | — | | | — |
Preferred Stock, par value $0.001 per share | | | — | | | — |
Warrants | | | — | | | — |
Debt Securities | | | — | | | — |
Total | | $ | 500,000,000 | | $ | 40,450 |
|
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
(1) | There are being registered hereunder such indeterminate number of shares of common stock and preferred stock, such indeterminate number of warrants to purchase common stock, preferred stock or debt securities and such indeterminate principal amount of debt securities as shall have an aggregate initial offering price not to exceed $500,000,000. If any debt securities are issued at an original issue discount, then the offering price of such debt securities shall be in such greater principal amount as shall result in an aggregate initial offering price not to exceed $500,000,000, less the aggregate dollar amount of all securities previously issued hereunder. Any securities registered hereunder may be sold separately or as units with other securities registered hereunder. The securities registered also include such indeterminate amounts and numbers of common stock, preferred stock and debt securities as may be issued upon conversion of or exchange for preferred stock or debt securities that provide for conversion or exchange, upon exercise of warrants or pursuant to the antidilution provisions of any such securities. | | | | | | | | | | | | | | | | | | | |
| | | | | | |
| Large accelerated filer | ☒ | | Accelerated filer | | ☐ | |
| | | |
| Non-accelerated filer | ☐ | | Smaller reporting company | | ☐ | |
| | | |
| | | Emerging growth company | | ☐ | |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
(2) | The proposed maximum aggregate offering price per class of security will be determined from time to time by the registrant in connection with the issuance by the registrant of the securities registered hereunder and is not specified as to each class of security pursuant to General Instruction II.D of Form S-3 under the Securities Act of 1933, as amended. | | | | | | | |
| | |
(3) | Calculated pursuant to Rule 457(o) under the Securities Act of 1933, as amended. |
The registrant hereby amends this registration statementRegistration Statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment whichthat specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until the registration statement shall become effective on such date as the Securities and Exchange 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 or accept an offer to buy 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 we areit is not soliciting an offeroffers to buy these securities in any state where thesuch offer or sale is not permitted.
PROSPECTUS (Subject to Completion) Dated December 19, 2003February 28, 2023
$10,000,000,000
NVIDIA CORPORATION
COMMON STOCK
PREFERRED STOCK
DEPOSITARY SHARES
DEBT SECURITIES
WARRANTS
STOCK PURCHASE CONTRACTS
STOCK PURCHASE UNITS
$500,000,000
Common Stock
Preferred Stock
Debt Securities
Warrants
From
We may offer and sell from time to time,
we may sell common stock, preferred stock, debt securities and/or warrants.We will provide the specific terms of these securities in one or more supplementsofferings, up to an aggregate of $10,000,000,000 of any combination of the securities described in this prospectus, either individually or as units in combination, at prices and on terms determined at the time of any such offering, (1) shares of our common stock, (2) shares of our preferred stock, which we may issue in one or more series, (3) depositary shares representing preferred stock, (4) debt securities, which may be senior debt securities or subordinated debt securities, (5) warrants, (6) stock purchase contracts or (7) stock purchase units.
We may offer and sell these securities to or through one or more underwriters, dealers and agents, or directly to purchasers, on a continuous or delayed basis. This prospectus describes some of the general terms that may apply to these securities and the general manner in which they may be offered. The specific terms of any securities to be offered, and the specific manner in which they may be offered, will be described in a supplement to this prospectus. You should read this prospectus and
anyeach applicable prospectus supplement carefully before you invest.
This prospectus may not be used to sell securities unless accompanied by a prospectus supplement.
Our common stock
currently tradesis listed on the Nasdaq
NationalGlobal Select Market under the symbol “NVDA.”
On February 27, 2023, the last reported sale price of our common stock was $235.01 per share. The applicable prospectus supplement will contain information, where applicable, as to
any other
listing (if any)listings, if any, on the Nasdaq
NationalGlobal Select Market or
anyother securities exchange of the securities covered by the prospectus supplement.
This We urge you to read carefully this prospectus may not be usedand the accompanying prospectus supplement, which will describe the specific terms of the securities being offered to offer or sell any securities unless accompanied by a prospectus supplement.you, before you make your investment decision.
Investing in our securities involves a high degree of risk. Please seeYou should review carefully the section entitled “Quantitativerisks and Qualitative Disclosures About Market Risk” containeduncertainties described under “Risk Factors” in our most recent annual reportAnnual Report on Form 10-K for the year ended January 29, 2023 contained in, or incorporated by reference into, this prospectus, the applicable prospectus supplement and in our most recent quarterly report on Form 10-Q, as filedany free writing prospectuses we have authorized for use in connection with a specific offering, and under similar headings in the Securities and Exchange Commission, both of whichother documents that are incorporated by reference herein in their entirety.into this prospectus.The
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS PROSPECTUS OR THE ACCOMPANYING PROSPECTUS SUPPLEMENT IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
This prospectus may not be used to sell securities
may be sold directlyunless accompanied by
us to investors, through agents designated from time to time or to or through underwriters or dealers. For additional information on the methods of sale, you should refer to the section entitled “Plan of Distribution.” If any underwriters are involved in the sale of any securities with respect to which this prospectus is being delivered, the names of such underwriters and any applicable commissions or discounts will be set forth in a prospectus supplement.
The net proceeds we expect to receive from such sale will also be set forth in a prospectus supplement.Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is ,
200 2023.
Page
This prospectus contains summaries of certain provisions contained
Unless otherwise indicated or the context otherwise requires, all references in
some of the documents described herein, but reference is made to the actual documents for complete information. All of the summaries are qualified in their entirety by the actual documents. Copies of some of the documents referred to herein have been filed, will be filed or incorporated by reference as exhibits to the registration statement of which this prospectus
is a part, and you may obtain copies of those documents as described below under “Where You Can Find More Information.to “NVIDIA,”
“the company,” “we,” “ours,” “us” or similar terms refer to NVIDIA Corporation, together with its subsidiaries.
ABOUT THIS PROSPECTUS
This prospectus is part of a
“shelf” registration statement
that we filed with the Securities and Exchange Commission
(the “Commission” or
the SEC. You should rely only on the information we have provided or incorporated by reference in this prospectus or any prospectus supplement. We have not authorized anyone to provide you with information different from that contained in this prospectus. No dealer, salesperson or other person is authorized to give any information or to represent anything not contained in this prospectus. You must not rely on any unauthorized information or representation. This prospectus is an offer to sell only the securities offered hereby, but only under circumstances and in jurisdictions where it is lawful to do so. You should assume that the information in this prospectus or any prospectus supplement is accurate only as of the date on the front of the document and that any information we have incorporated by reference is accurate only as of the date of the document incorporated by reference, regardless of the time of delivery of this prospectus or any sale of“SEC”). By using a
security.ABOUT THIS PROSPECTUS
This prospectus is part of ashelf registration statement, that we filed with the SEC using a “shelf” registration process. Under this shelf registration process, we may sell, common stock, preferred stock, debt securities and/or warrantsfrom time to time, in one or more offerings, up to a total dollar amountany combination of $500,000,000. the securities described in this prospectus.
This prospectus provides you with a general description of the securities we may offer. Each time we sell common stock, preferred stock, debt securities, and/or warrants, we will provide a prospectus supplement that will contain more specific information as set forth below inabout the section entitled “The Securities We May Offer.” Weterms of that offering. The accompanying prospectus supplement may also add, update or change in the prospectus supplement any of the information contained in this prospectus. ThisReferences to the “applicable prospectus together with applicablesupplement” are to the prospectus supplements, includes all material information relatingsupplement to this offering. Please carefullyprospectus that describes the specific terms and conditions of the applicable security. You should read both this prospectus and anythe accompanying prospectus supplement together with the additional information described below under the heading “Where You Can Find More Information.”This
We may include agreements as exhibits to the registration statement of which this prospectus forms a part. In reviewing such agreements, please remember that they are included to provide you with information regarding their terms and are not intended to provide any other factual or disclosure information about us or the other parties to the agreements. The agreements may contain representations and warranties by each of the parties to the applicable agreement. These representations and warranties have been made solely for the benefit of the other parties to the applicable agreement and:
•should not in all instances be usedtreated as categorical statements of fact, but rather as a way of allocating the risk to consummate a sale of securities unless it is accompanied by a prospectus supplement.i
NVIDIA CORPORATION
Overview
We are one of the world’s largest “fabless” semiconductor companies, supplying graphics and media communications processors and related software that are integral to personal computers, or PCs, professional workstations, handheld devices and digital entertainment platforms. We provide an architecturally compatible “top-to-bottom” family of award-winning graphics processing units, or GPUs, which set the standard for performance, quality, compatibility and features for a broad range of personal computing platforms. Our graphics and communications processors are used for a wide variety of applications, including games, digital content creation, personal digital image editing, business productivity and product and industrial design. Our mission isparties if those statements prove to be inaccurate;
•may have been qualified by disclosures that were made to the most important visual computing companyother party in connection with the negotiation of the applicable agreement, which disclosures would not necessarily be reflected in the world.Interactive 3D graphics are integralagreement;
•may apply standards of materiality in a way that is different from what may be viewed as material to various computingyou or other investors; and entertainment platforms such
•were made only as workstations, consumer and commercial desktop PCs, Internet appliances and video gaming consoles. 3D graphics is a powerful broadband medium that enables the communication and visualization of information, whether it is in professional applications like digital content creation and computer assisted design and computer assisted manufacturing, or CAD/CAM, or commercial applications like financial analysis and business-to-business collaboration or simply surfing the Internet or playing games. The visually engaging and interactive nature of 3D graphics responds to consumers’ demands for a convincing simulation of reality beyond what is possible with traditional 2D graphics. We expect that the fundamental interactive capability and distributive nature of 3D graphics will make it the primary broadband medium for a digitally connected world. We believe that a substantial market opportunity exists for providers of performance 3D graphics processors, particularly as performance 3D graphics have become an increasingly important requirement and point of differentiation for PC original equipment manufacturers, or OEMs.Our entire product line provides superior processing and rendering power at competitive prices and is designed to deliver the maximum performance from industry standards such as Microsoft’s DirectX API and SGI’s OpenGL API on Windows operating systems and Linux platforms. The GeForce family, representing our desktop GPUs, which also includes the GeForce2, GeForce3, GeForce4 and GeForce FX, is designed to deliver the highest performance and features for every price product line ranging from mainstream to performance PCs. The nForce family represents our platform processors for desktop and notebook PCs. We define a platform processor as a chipset that can off-load system functions, such as audio processing and network communications, and perform these operations independently from the host central processing unit, or CPU. The nForce family is the industry’s first highly-integrated platform processor to incorporate a comprehensive set of multimedia capabilities, such as 2D, 3D, DVD, HDTV, Dolby Digital audio playback and fast broadband and networking communications. The GeForce Go family represents our mobile GPUs, which consists of the GeForce4 Go, GeForce2 Go, Quadro4 GL Go, Quadro2 Godate of the applicable agreement or such other date or dates as may be specified in the agreement and GeForce FX Go GPUs. These are designedsubject to deliver desktop graphics performancemore recent developments.
Accordingly, these representations and features for multiple notebook configurations from desktop replacements, performance notebookswarranties may not describe the actual state of affairs as of the date they were made or at any other time. Additional information about us may be found elsewhere in the registration statement of which this prospectus forms a part and thin-and-lights to mobile workstations. NVIDIA’s Quadro branded products are robust, high-performance workstation solutions for the professional user thatour other public filings, which are available forwithout charge through the high-end, mid-range, entry-level and multi-display product lines. The NVIDIA Quadro products are fully certified for all professional workstation applications, and are designedSEC’s website at http://www.sec.gov.
We have not authorized any other person, including any dealer, salesperson or other individual, to
deliver the graphics performance and precision required by professional applications. The Xbox processors feature the dual-processing architecture of NVIDIA’s XGPU and MCPprovide you with any information or to
power the video game system’s standout graphics, audio and networking capabilities. The GoForce 2150 is the first product from the combined efforts of NVIDIA and MediaQ. The GoForce 2150 offers a host of advanced features for cell phones and PDAs. Using dedicated hardware accelerator engines, the GoForce 2150 delivers exceptionally high performance for multimedia applications and drives high-resolution displays, while extending handheld battery life through a variety of unique power management techniques.Corporate Information
We were incorporated in California in April 1993 and reincorporated in Delaware in April 1998. Our executive offices are located at 2701 San Tomas Expressway, Santa Clara, California 95050, and our telephone
number is (408) 486-2000. Our web site is located at www.nvidia.com. Informationmake any representations other than those contained on our web site should not be deemed to be part of this prospectus.
All NVIDIA brand and product names are trademarks or registered trademarks of NVIDIA Corporation, in the United States and other countries. All other trade names, trademarks and service marks appearing in this prospectus are the property of their respective holders. We do not intend our use or display of other parties’ trade names, or trademarks or service marks to imply a relationship with, or endorsement or sponsorship of, us by these other parties.
QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
Except for the historical information contained in this prospectus or incorporated by reference, this prospectus (and the information incorporated by reference in this prospectus) contains forward-looking statementsprospectus. We take no responsibility for, and can provide no assurance as to the reliability of, any other information that involve risksothers may give you. We are not making an offer to sell these securities in any jurisdiction where the offer or sale is not permitted. You should assume that the information in this prospectus and uncertainties. Our actual results could differ materially from those discussed here orthe documents incorporated by reference. Factors that could cause or contribute to such differences include, but are not limited to, those discussed inreference is accurate only as of their respective dates.
WHERE YOU CAN FIND MORE INFORMATION
We file reports, proxy statements, and other information with the section entitled “QuantitativeSEC. Such reports, proxy statements, and Qualitative Disclosures About Market Risk” contained in our most recent annual reportother information concerning us can be read on Form 10-K, as amended, and contained in our most recent quarterly report on Form 10-Qthe Internet at the SEC’s website http://www.sec.gov.
This prospectus is part of a registration statement filed with the SEC bothby us. The full registration statement can be obtained from the SEC as indicated above, or from us.
The SEC allows us to “incorporate by reference” the information we file with the SEC. This permits us to disclose important information to you by referring to these filed documents. Any information referred to in this way is considered part of
which are incorporated hereinthis prospectus, and any information filed with the SEC by us after the date of this prospectus will automatically be deemed to update and supersede this information. We incorporate by reference
the following documents that have been filed with the SEC (other than information in
their entirety.Investmentsuch documents that is not deemed to be filed):
•Annual Report on Form 10-K for the fiscal year ended January 29, 2023; and •the description of securities contained in Exhibit 4.6 of our Annual Report on Form 10-K for the fiscal year ended January 29, 2023, filed with the SEC on February 24, 2023, including any amendments thereto or reports filed for the purposes of updating this description. We also incorporate by reference any future filings (other than information in such documents that is not deemed to be filed) made with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), until we file a post-effective amendment which indicates the termination of the offering of the securities made by this prospectus.
Our Annual Report on Form 10-K, Quarterly Reports on Form 10-Q and Current Reports on Form 8-K, including any amendments to those reports, and other information that we file with or furnish to the SEC pursuant to Section 13(a) or 15(d) of the Exchange Act can also be accessed free of charge on the Investor Relations section of our website, which is located at investor.nvidia.com. These filings will be available as soon as reasonably practicable after we electronically file such material with, or furnish it to, the SEC. Our website address is www.nvidia.com. Information contained on or accessible through our website is not a part of this prospectus and is not incorporated by reference herein, and the inclusion of our website address in this prospectus is an inactive textual reference only.
RISK FACTORS
Investing in our securities involves a high degree of risk.
YouBefore deciding whether to invest in our securities, you should consider carefully the
“Quantitativerisks and
Qualitative Disclosures About Market Risk”,uncertainties described under the heading “Risk Factors” contained in the applicable prospectus supplement and any related free writing prospectus, and discussed under the section titled “Risk Factors” contained in our most recent Annual Report on Form 10-K, as
well asmay be updated by our subsequent Quarterly Reports on Form 10-Q and other filings we make with the SEC, which are incorporated by reference into this prospectus in their entirety, together with other information in this prospectus,
the documents incorporated by reference and
any free writing prospectus that we may authorize for use in connection with a specific offering. The risks described in these documents are not the
prospectus supplement before purchasingonly ones we face, but those that we consider to be material. There may be other unknown or unpredictable economic, business, competitive, regulatory or other factors that could have material adverse effects on our future results. Past financial performance may not be a reliable indicator of future performance, and historical trends should not be used to anticipate results or trends in future periods. If any of
our securities. Each of these
factors could adversely affectrisks actually occurs, our business,
operating results and financial condition,
as well as adversely affectresults of operations or cash flow could be seriously harmed. This could cause the
valuetrading price of
an investmentour securities to decline, resulting in
our securities.a loss of all or part of your investment. Please also read carefully the section below titled “Special Note Regarding Forward-Looking Statements.”
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated by reference herein contain forward-looking statements. Forward-looking statements are based on our management’s beliefs and assumptions and on information currently available to our management. In some cases, you can identify forward-looking statements by terms such as “may,” “will,” “should,” “could,” “goal,” “would,” “expect,” “plan,” “anticipate,” “believe,” “estimate,” “project,” “predict,” “potential” and similar expressions intended to identify forward-looking statements. These statements involve known and unknown risks, uncertainties and other factors, which may cause our actual results, performance, time frames or achievements to be materially different from any future results, performance, time frames or achievements expressed or implied by the forward-looking statements. We discuss many of these risks, uncertainties and other factors in our Annual Reports on Form 10-K, in our Quarterly Reports on Form 10-Q and in any prospectus supplement related hereto in greater detail under the heading “Risk Factors.” Given these risks, uncertainties and other factors, you should not place undue reliance on these forward-looking statements. Also, these forward-looking statements represent our estimates and assumptions only as of the date of the document containing the applicable statement. You should read this prospectus and the documents incorporated by reference herein completely and with the understanding that our actual future results may be materially different from what we expect. We hereby qualify our forward-looking statements by these cautionary statements. Except as required by law, we assume no obligation to update these forward-looking statements publicly, or to update the reasons actual results could differ materially from those anticipated in these forward-looking statements, even if new information becomes available in the future.
In addition, statements that “we believe” and similar statements reflect our beliefs and opinions on the relevant subject. These statements are based upon information available to us as of the date of this prospectus, and while we believe such information forms a reasonable basis for such statements, such information may be limited or incomplete, and our statements should not be read to indicate that we have conducted an exhaustive inquiry into, or review of, all potentially available relevant information. These statements are inherently uncertain and investors are cautioned not to unduly rely upon these statements.
NVIDIA CORPORATION
We pioneered accelerated computing to help solve the most challenging computational problems. Since our original focus on PC graphics, we have expanded to several other large and important computationally intensive fields. Fueled by the sustained demand for exceptional 3D graphics and the scale of the gaming market, we have leveraged our GPU architecture to create platforms for scientific computing, artificial intelligence, data science, autonomous vehicles, robotics, and metaverse and 3D internet applications.
Our principal executive offices are located at 2788 San Tomas Expressway, Santa Clara, California 95051, and our telephone number is (408) 486-2000.
USE OF PROCEEDS
We intend to use the net proceeds we receive from the sale of securities by us as set forth in the applicable prospectus supplement. Unless otherwise specified in the applicable prospectus supplement, we will not receive any proceeds from the sale of securities by selling securityholders.
DESCRIPTION OF SECURITIES
This prospectus contains a summary of our common stock, preferred stock, depositary shares, debt securities, warrants, stock purchase contracts and stock purchase units. These summaries are not meant to be a complete description of each security. The particular terms of any security to be issued pursuant hereto will be set forth in a related prospectus supplement. This prospectus and the accompanying prospectus supplement will contain the material terms and conditions for each security.
DESCRIPTION OF CAPITAL STOCK
The following description of our capital stock, certain provisions of our certificate of incorporation and bylaws and certain provisions of Delaware law is a summary and is qualified in its entirety by reference to our certificate of incorporation, bylaws and the Delaware General Corporation Law (the “DGCL”). Copies of our certificate of incorporation and our bylaws have been filed with the SEC
thatand are
included or incorporated or deemed to be incorporated by reference in this prospectus include “forward-looking statements” within the meaning of Section 27A of the Securities Act and Section 21E of the Securities Exchange Act of 1934. You can identify these statements by the fact that they do not relate strictly to historical or current facts. Such statements may include words such as “anticipate,” “estimate,��� “expect,” “project,” “intend,” “plan,” “believe” and other words and terms of similar meaning in connection with any discussion of future operating or financial performance. These forward-looking statements include but are not limited to: statements related to industry trends and future growth in the markets for three dimensional, or 3D, graphics and media communication processors; our product development efforts; the timing of our introduction of new products; industry and consumer acceptance of our products; and future profitability.Any or all of our forward-looking statements in this prospectus and in the documents incorporated or deemed to be incorporated by reference in this prospectus may turn out to be wrong. They can be affected by inaccurate assumptions we might make or by known or unknown risks and uncertainties. Many factors mentioned in our discussion in this prospectus will be important in determining future results. Consequently, no forward-looking statement can be guaranteed. Actual future results may vary materially.
We undertake no obligation to publicly update any forward-looking statements, whether as a result of new information, future events or otherwise. We advise you to consult any additional cautionary discussion of risks and uncertainties under “Quantitative and Qualitative Disclosures About Market Risk” contained in our most recent annual report on Form 10-K, as amended, and contained in our most recent quarterly report on Form 10-Q. These are factors that we think could cause our actual results to differ materially from expected results. Other factors besides those listed in our most recent annual report on Form 10-K, as amended, and quarterly report on Form 10-Q could also adversely affect us. This discussion is provided as permitted by the Private Securities Litigation Reform Act of 1995.
THE SECURITIES WE MAY OFFER
We may offer shares of our common stock and preferred stock, various series of debt securities and/or warrants to purchase any of such securities with a total value of up to $500,000,000 from time to time under this prospectus at prices and on terms to be determined by market conditions at the time of offering. This prospectus
provides you with a general description of the securities we may offer. Each time we offer a type or series of securities, we will provide a prospectus supplement that will describe the specific amounts, prices and other important terms of the securities, including, to the extent applicable:
designation or classification;
aggregate principal amount or aggregate offering price;
maturity, if applicable;
rates and times of payment of interest or dividends, if any;
redemption, conversion or sinking fund terms, if any;
voting or other rights, if any;
conversion prices, if any; and
important federal income tax considerations.
The prospectus supplement also may add, update or change information contained in this prospectus or in documents we have incorporated by reference.
We may sell the securities directly to or through agents, underwriters or dealers. We, and our agents or underwriters, reserve the right to accept or reject all or part of any proposed purchase of securities. If we do offer securities through agents or underwriters, we will include in the applicable prospectus supplement:
the names of those agents or underwriters;
applicable fees, discounts and commissions to be paid to them; and
the net proceeds to us.
Common Stock. We may issue shares of our common stock from time to time. Holders of common stock are entitled to one vote per share on all matters submitted to a vote of stockholders. Subject to any preferences of outstanding shares of preferred stock, holders of common stock are entitled to dividends when and if declared by our board of directors.
Preferred Stock. We may issue shares of our preferred stock from time to time, in one or more series. Our board of directors shall determine the rights, preferences, privileges and restrictions of the preferred stock, including dividend rights, conversion rights, voting rights, terms of redemption, liquidation preferences, sinking fund terms and the number of shares constituting any series or the designation of any series. Convertible preferred stock will be convertible into our common stock. Conversion may be mandatory or at your option and would be at prescribed conversion rates. The issuance of preferred stock could adversely affect the voting power of holders of common stock and the likelihood that such holders will receive dividend payments upon liquidation and could have the effect of delaying, deferring or preventing a change in control.
Debt Securities. We may offer debt securities from time to time, in one or more series, as either senior or subordinated debt or as senior or subordinated convertible debt. The senior debt securities will rank equally with any other unsecured and unsubordinated debt. The subordinated debt securities will be subordinate and junior in right of payment, to the extent and in the manner described in the instrument governing the debt, to all of our senior indebtedness. Convertible debt securities will be convertible into or exchangeable for our common stock or our other securities. Conversion may be mandatory or at your option and would be at prescribed conversion rates.
The debt securities will be issued under one or more documents called indentures, which are contracts between us and a national banking association, as trustee. In this prospectus, we have summarized certain general features of the debt securities. We urge you, however, to read the prospectus supplements related to the series of debt securities being offered, as well as the complete indentures that contain the terms of the debt securities. Indentures have been filed as exhibits to the registration statement of which this prospectus isforms a part, and supplemental indentures and forms of debt securities containing the terms of debt securities being offered will be filed as exhibits to the registration statement of which this prospectus is a part or will be incorporated by reference from reports we file with the SEC.
Warrants. We may issue warrants for the purchase of common stock, preferred stock and/or debt securities in one or more series. We may issue warrants independently or together with common stock, preferred stock and/or debt securities, and the warrants may be attached to or separate from these securities. In this prospectus, we have summarized certain general features of the warrants. We urge you, however, to read the prospectus supplements related to the series of warrants being offered, as well as any warrant agreement that contains the terms of the warrants. The warrant agreement and form of warrant containing the terms of the warrants being offered will be filed as exhibits to the registration statement of which this prospectus is a part or will be incorporated by reference from reports we file with the SEC. We will evidence each series of warrants by warrant certificates that we will issue under a separate agreement. We will enter into the warrant agreement with a warrant agent. Each warrant agent will be a bank that we select which has its principal office in the United States and a combined capital and surplus of at least $50,000,000. We will indicate the name and address of the warrant agent in the applicable prospectus supplement relating to a particular series of warrants.
RATIO OF EARNINGS TO FIXED CHARGES
| | | Year Ended
| | Nine Months Ended
|
| | | January 31,
1999
| | January 30,
2000
| | January 28,
2001
| | January 27,
2002
| | January 26,
2003
| | October 27,
2002
| | October 26,
2003
|
| | | (in thousands, except ratio of earnings) |
Fixed Charges: | | | | | | | | | | | | | | | | | | | | | |
Interest expensed and debt cost amortization | | $ | 291 | | $ | 332 | | $ | 4,852 | | $ | 16,173 | | $ | 16,467 | | $ | 12,318 | | $ | 11,915 |
Estimate of interest within rental expense | | | 513 | | | 825 | | | 1,032 | | | 4,565 | | | 8,445 | | | 6,343 | | | 6,481 |
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|
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|
| |
|
| |
|
| |
|
| |
|
|
Total Fixed Charges | | $ | 804 | | $ | 1,157 | | $ | 5,884 | | $ | 20,738 | | $ | 24,912 | | $ | 18,661 | | $ | 18,396 |
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Earnings: | | | | | | | | | | | | | | | | | | | | | |
Pre-tax gain (loss) from continuing operations | | $ | 4,487 | | $ | 60,371 | | $ | 144,808 | | $ | 252,749 | | $ | 150,557 | | $ | 77,791 | | $ | 60,424 |
Fixed charges | | | 804 | | | 1,157 | | | 5,884 | | | 20,738 | | | 24,912 | | | 18,661 | | | 18,396 |
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|
Total earnings (loss) for computation of ratio | | $ | 5,291 | | $ | 61,528 | | $ | 150,692 | | $ | 273,487 | | $ | 175,469 | | $ | 96,452 | | $ | 78,820 |
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Ratio of earnings to fixed charges | | | 6.58 | | | 53.16 | | | 25.61 | | | 13.19 | | | 7.04 | | | 5.17 | | | 4.28 |
USE OF PROCEEDS
Unless otherwise indicated in the applicable prospectus supplement, we intend to use the proceeds for working capital and general corporate purposes. In particular, we expect to incur significant operating expenses in connection with:
part. continuing to develop our technology;
hiring additional personnel;
expanding our sales and marketing organization and activities;
acquiring complementary technologies or businesses; and
capital expenditures.
Pending application of the net proceeds of this offering, we intend to invest the net proceeds in interest-bearing, investment grade securities.
DESCRIPTION OF CAPITAL STOCK
The following description of our capital stock and certain provisions of our certificate of incorporation and bylaws is a summary and is qualified in its entirety by the provisions of our certificate of incorporation and bylaws.
Our authorized capital stock consists of 1,000,000,0008,000,000,000 shares of common stock, $0.001 par value, and 2,000,000 shares of preferred stock, $0.001 par value. As of December 12, 2003,January 29, 2023, there were 163,915,7292,466,136,572 shares of common stock outstanding and no shares of preferred stock outstanding.
The holders of common stock are entitled to one vote for each share held of record on all matters submitted to a vote of the stockholders. The holders of common stock are not entitled to cumulative voting rights with respect to the election of directors, and as a consequence, minority stockholders are not able to elect directors on the basis of their votes alone. Subject to preferences that may be applicable to any shares of preferred stock currently outstanding or issued in the future, holders of common stock are entitled to receive ratably such dividends as may be declared by our board of directors out of funds legally available therefor. In the event of our liquidation, dissolution or winding up, holders of our common stock are entitled to share ratably in all assets remaining after payment of liabilities and the liquidation preference of any then outstanding preferred stock. Holders of common stock have no preemptive rights and no right to convert their common stock into any other securities. There are no redemption or sinking fund provisions applicable to the common stock.
All outstanding shares of common stock are, and all shares of common stock that may be issued under this prospectus will be, fully paid and non-assessable.Our board of directors has the authority, without further action by the stockholders, to issue up to 2,000,000 shares of preferred stock in one or more series and to fix the rights, preferences, privileges and restrictions thereof, including dividend rights, conversion rights, voting rights, terms of redemption, liquidation preferences, sinking fund terms and the number of shares constituting any series or the designation of such
series, without any further vote or action by stockholders.We will fix the rights, preferences, privileges and restrictions of the preferred stock of each series in the certificate of designation relating to that series. We will incorporate by reference as an exhibit to the registration statement that includes this prospectus or as an exhibit to a current report on Form 8-K, the form
The particular terms of any
certificate of designation that describes the terms of the series of preferred stock
we are offering beforewill be described in the
issuance of the relatedprospectus supplement relating to that series of preferred stock.
This description willThose terms may include:
•the title and stated value;
•the number of shares we are offering;
•the liquidation preference per share;
•the purchase price;
•the dividend rate, period and payment date and method of calculation for dividends;
•whether dividends will be cumulative or non-cumulative and, if cumulative, the date from which dividends will accumulate;
•the procedures for any auction and remarketing, if any;
•the provisions for a sinking fund, if any;
•the provisions for redemption or repurchase, if applicable, and any restrictions on our ability to exercise those redemption and repurchase rights;
•any listing of the preferred stock on any securities exchange or market;
•whether the preferred stock will be convertible into our common stock, and, if applicable, the conversion price, or how it will be calculated, and the conversion period;
•whether the preferred stock will be exchangeable into debt securities, and, if applicable, the exchange price, or how it will be calculated, and the exchange period;
•voting rights, if any, of the preferred stock;
•preemption rights, if any;
•restrictions on transfer, sale or other assignment, if any;
•whether interests in the preferred stock will be represented by depositary shares;
•a discussion of any material or special United States federal income tax considerations applicable to the preferred stock;
•the relative ranking and preferences of the preferred stock as to dividend rights and rights if we liquidate, dissolve or wind up our affairs;
•any limitations on issuance of any class or series of preferred stock ranking senior to or on a parity with the series of preferred stock as to dividend rights and rights if we liquidate, dissolve or wind up our affairs; and
•any other specific terms, preferences, rights or limitations of, or restrictions on, the preferred stock.
If we issue shares of preferred stock under this prospectus, the shares will be fully paid and nonassessable and will not have, or be subject to, any preemptive or similar rights.
The
Delaware General Corporation LawDGCL provides that the holders of preferred stock will have the right to vote separately as a class on any proposal involving fundamental changes in the rights of holders of that preferred stock. This right is in addition to any voting rights that may be provided for in the applicable certificate of designation.
The issuance of preferred stock
whether pursuant to this offering or otherwise, could adversely affect the voting power, conversion or other rights of holders of common stock. Preferred stock could be issued quickly with terms calculated to delay or prevent a change in control of our company or make removal of management more difficult. Additionally, the issuance of preferred stock may have the effect of decreasing the market price of
our common stock.
Anti-Takeover Effects of Provisions of Delaware Law and Our Charter
Documents.Documents
Certificate of Incorporation
Our certificate of incorporation provides for our board of directors to be divided into three classes, with staggered three-year terms. As a result, only one class of directors will be elected at each annual meeting of stockholders, with the other classes continuing for the remainder of their respective three-year terms. and Bylaws
Stockholders have no cumulative voting rights.
Our certificate of incorporation also requires that any action required or permitted to be taken by our stockholders must be effected at a duly called annual or special meeting of the stockholders and may not be effected by a consent in writing and that the stockholders may amend our bylaws or adopt new bylaws only by the affirmative vote of 66
2/3% 2/3% of the outstanding voting securities.securities in addition to any vote of the holders of any class or series of stock of the corporation required by law or by our certificate of incorporation. A special meeting of the stockholders may be called by our Chairman, if any, our Chief Executive Officer or a resolution adopted by a majority of the total number of authorized directors. These provisions may have the effect of delaying, deferring or preventing a change in control.The
classification of our board of directors and lack of cumulative voting
willcould make it more difficult for our existing stockholders to replace our board of directors as well as for another party to obtain control of us by replacing our board of directors. Since our board of directors has the power to retain and discharge our officers, these provisions could also make it more difficult for existing stockholders or another party to effect a change in management.
These and other provisions may have the effect of deterring hostile takeovers or delaying changes in control or management. These provisions are intended to enhance the likelihood of continued stability in the composition of our board of directors and in the policies of our board of directors and to discourage certain types of transactions that may involve an actual or threatened change in control. These provisions are designed to reduce our vulnerability to an unsolicited acquisition proposal. The provisions
are also
are intended to discourage certain tactics that may be used in proxy
rights.fights. However, such provisions could have the effect of discouraging others from making tender offers for our shares and, as a consequence, such provisions
may also
may inhibit fluctuations in the market price of our shares that could result from actual or rumored takeover attempts. Such provisions
may also
may have the effect of preventing changes in our management.
Section 203 of the
Delaware General Corporation LawDGCL
We are subject to Section 203 of the
Delaware General Corporation Law,DGCL, which, subject to certain exceptions, prohibits a Delaware corporation from engaging in
any business combinationa “business combination” with any
interested stockholder“interested stockholder” for a period of three years following the time that such stockholder became an
interested“interested stockholder,
” unless:
•prior to such time, the board of directors of the corporation approved either the business combination or the transaction that resulted in the stockholder becoming an interested holder;stockholder;
•upon consummation of the transaction that resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced, excluding for purposes of determining the number of sharesvoting stock outstanding those shares owned (a) by persons who are directors and also officers and (b) by employee stock plans in which employee participants do not have the right to determine confidentially whether shares held subject to the plan will be tendered in a tender or exchange offer; or
| • | at or subsequent to such time, the business combination is approved by the board of directors and authorized at an annual or special meeting of stockholders, and not by written consent, by the affirmative vote of at least 66 2/3% of the outstanding voting stock which is not owned by the interested stockholder. |
•at or subsequent to such time, the business combination is approved by the board of directors and authorized at an annual or special meeting of stockholders, and not by written consent, by the affirmative vote of at least 66 2/3% of the outstanding voting stock which is not owned by the interested stockholder.
In general, Section 203
of the DGCL defines “business combination” to include the following:
•any merger or consolidation involving the corporation and the interested stockholder;
•any sale, transfer, pledge or other disposition of 10% or more of the assets of the corporation involving the interested stockholder;
•subject to certain exceptions, any transaction that results in the issuance or transfer by the corporation of any stock of the corporation to the interested stockholder;
•any transaction involving the corporation that has the effect of increasing the proportionate share of the stock orof any class or series of the corporation beneficially owned by the interested stockholder; or
•the receipt by the interested stockholder of the benefit of any loans, advances, guarantees, pledges or other financial benefits provided by or through the corporation.
In general, Section 203
of the DGCL defines “interested stockholder” as an entity or person
who beneficially
owningowns (or within three years did own) 15% or more of the outstanding voting stock of the corporation and any entity or person affiliated with,
or controlling,
or controlled by
or is under common control with such entity or person.
Our bylaws provide that we will indemnify our directors and executive officers to the fullest extent permitted by Delaware lawthe DGCL and any other applicable law. We are also empowered under our bylaws to indemnify other officers, employees and other agents toas set forth in the fullest extent permitted by Delaware lawDGCL or any other
applicable law,
and to enter into indemnification contracts with our directors and executive officers and to purchase insurance on behalf of any person whom we are required or permitted to indemnify.
In addition, our certificate of incorporation provides that the liability of our directors for monetary damages shall be eliminated
or limited to the fullest extent permissible under
Delaware law.the DGCL. Pursuant to
Delaware law,the DGCL, our directors shall not be liable for monetary damages for breach of the directors’ fiduciary duty of care to us and our stockholders. However, this provision does not eliminate the duty of care, and in appropriate circumstances, equitable remedies such as injunctive or other forms of non-monetary relief that will remain available under
Delaware law.the DGCL. In addition, each director will continue to be subject to liability for
(a)(1) breach of the
directorsdirector’s duty of loyalty to us or our stockholders,
(b)(2) acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law,
(c)(3) violating Section 174 of the
Delaware General Corporation Law,DGCL, or
(d)(4) any transaction from which the director derived an improper personal benefit. The provision also does not affect a director’s responsibilities under any other law, such as the federal securities laws or state or federal environmental laws.
Transfer Agent and Registrar
Mellon Investor Services LLC
Computershare is the transfer agent and registrar for our common stock. Mellon Investor Services’Computershare’s address is 235 Montgomery150 Royall Street, 23Canton, Massachusetts 02021.
Listing
Our common stock is listed on the Nasdaq Global Select Market under the symbol “NVDA.”
DESCRIPTION OF DEPOSITARY SHARES
The depositary shares will be issued under deposit agreements to be entered into between us and a bank or trust company, as depositary, all to be set forth in the applicable prospectus supplement relating to any or all depositary shares in respect of which this prospectus is being delivered. We will file a copy of the deposit agreement and the depositary receipt with the SEC each time we issue a series of depositary shares, and these depositary receipts and deposit agreement will be incorporated by reference into the registration statement of which this prospectus forms a part.
General
If we elect to offer fractional interests in shares of preferred stock, we will provide for the issuance by a depositary to the public of receipts for depositary shares. Each depositary share will represent fractional interests of preferred stock. We will deposit the shares of preferred stock underlying the depositary shares under a deposit agreement between us and a bank or trust company selected by us. The bank or trust company must have its principal office in the United States and a combined capital and surplus of at least $50 million. The depositary receipts will evidence the depositary shares issued under the deposit agreement.
The deposit agreement will contain terms applicable to the holders of depositary shares in addition to the terms stated in the depositary receipts. Each owner of depositary shares will be entitled to all the rights and preferences of the preferred stock underlying the depositary shares in proportion to the applicable fractional interest in the underlying shares of preferred stock. The depositary will issue the depositary receipts to individuals purchasing the fractional interests in shares of the related preferred stock according to the terms of the offering described in a prospectus supplement.
Dividends and Other Distributions
The depositary will distribute all cash dividends or other cash distributions received for the preferred stock to the entitled record holders of depositary shares in proportion to the number of depositary shares that the holder owns on the relevant record date. The depositary will distribute only an amount that can be distributed without attributing to any holder of depositary shares a fraction of one cent. The depositary will add the undistributed balance to and treat it as part of the next sum received by the depositary for distribution to holders of depositary shares.
If there is a non-cash distribution, the depositary will distribute property received by it to the entitled record holders of depositary shares, in proportion, insofar as possible, to the number of depositary shares owned by the holders, unless the depositary determines, after consultation with us, that it is not feasible to make such distribution. If this occurs, the depositary may, with our approval, sell such property and distribute the net proceeds from the sale to the holders. The deposit agreement also will contain provisions relating to how any subscription or similar rights that we may offer to holders of the preferred stock will be available to the holders of the depositary shares.
Conversion, Exchange and Redemption
If any series of preferred stock underlying the depositary shares may be converted or exchanged, each record holder of depositary receipts will have the right or obligation to convert or exchange the depositary shares represented by the depositary receipts.
Whenever we redeem shares of preferred stock held by the depositary, the depositary will redeem, at the same time, the number of depositary shares representing the preferred stock. The depositary will redeem the depositary shares from the proceeds it receives from the corresponding redemption, in whole or in part, of the applicable series of preferred stock. The depositary will mail a notice of redemption to the record holders of the depositary shares that are to be redeemed between 30 and 60 days before the date fixed for redemption. The redemption price per depositary share will be equal to the applicable fraction of the redemption price per share on the applicable series of preferred stock. If less than all the depositary shares are to be redeemed, the depositary will select which shares to be redeemed by lot, proportionate allocation or another method.
After the date fixed for redemption, the depositary shares called for redemption will no longer be outstanding. When the depositary shares are no longer outstanding, all rights of the holders will end, except the right to receive money, securities or other property payable upon redemption.
Voting
When the depositary receives notice of a meeting at which the holders of the preferred stock are entitled to vote, the depositary will mail the particulars of the meeting to the record holders of the depositary shares. Each record holder of depositary shares on the record date may instruct the depositary on how to vote the shares of preferred stock underlying the holder’s depositary shares. The depositary will try, if practical, to vote the number of shares of preferred stock underlying the depositary shares according to the instructions. The depositary will abstain from voting shares of the preferred stock to the extent it does not receive specific instructions from the holders of depositary shares representing such preferred stock. We will agree to take all reasonable action requested by the depositary to enable it to vote as instructed.
Record Date
Whenever (1) any cash dividend or other cash distribution shall become payable, any distribution other than cash shall be made, or any rights, preferences or privileges shall be offered with respect to the preferred stock, or (2) the depositary shall receive notice of any meeting at which holders of preferred stock are entitled to vote or of which holders of preferred stock are entitled to notice, or of the mandatory conversion of or any election on our part to call for the redemption of any preferred stock, the depositary shall in each such instance fix a record date (which shall be the same as the record date for the preferred stock) for the determination of the holders of depositary receipts (x) who shall be entitled to receive such dividend, distribution, rights, preferences or privileges or the net proceeds of the sale thereof or (y) who shall be entitled to give instructions for the exercise of voting rights at any such meeting or to receive notice of such meeting or of such redemption or conversion, subject to the provisions of the deposit agreement.
Amendments
We and the depositary may agree to amend the deposit agreement and the depositary receipt evidencing the depositary shares. Any amendment that (a) imposes or increases certain fees, taxes or other charges payable by the holders of the depositary shares as described in the deposit agreement or (b) otherwise prejudices any substantial existing right of holders of depositary shares, will not take effect until 30 days after the depositary has mailed notice of the amendment to the record holders of depositary shares. Any holder of depositary shares that continues to hold its shares at the end of the 30-day period will be deemed to have agreed to the amendment.
Termination
We may direct the depositary to terminate the deposit agreement by mailing a notice of termination to holders of depositary shares at least 30 days prior to termination. In addition, a deposit agreement will automatically terminate if:
•rdthe depositary has redeemed all related outstanding depositary shares, or
• Floor, San Francisco, CA 94104we have liquidated, terminated or wound up our business and telephone numberthe depositary has distributed the preferred stock of the relevant series to the holders of the related depositary shares.
The depositary may likewise terminate the deposit agreement if at any time 60 days shall have expired after the depositary shall have delivered to us a written notice of its election to resign and a successor depositary shall not have been appointed and accepted its appointment. If any depositary receipts remain outstanding after the date of termination, the depositary thereafter will discontinue the transfer of depositary receipts, will suspend the distribution of dividends to the holders thereof, and will not give any further notices (other than notice of such termination) or perform any further acts under the deposit agreement except as provided below and except that the depositary will continue (1) to collect dividends on the preferred stock and any other distributions with respect thereto and (2) to deliver the preferred stock together with such dividends and distributions and the net proceeds of any sales of rights, preferences, privileges or other property, without liability for interest thereon, in exchange for depositary receipts
surrendered. At any time after the expiration of two years from the date of termination, the depositary may sell the preferred stock then held by it at public or private sales, at such place or places and upon such terms as it deems proper and may thereafter hold the net proceeds of any such sale, together with any money and other property then held by it, without liability for interest thereon, for the pro rata benefit of the holders of depositary receipts which have not been surrendered.
Payment of Fees and Expenses
We will pay all fees, charges and expenses of the depositary, including the initial deposit of the preferred stock and any redemption of the preferred stock. Holders of depositary shares will pay transfer and other taxes and governmental charges and any other charges as are stated in the deposit agreement for their accounts.
Resignation and Removal of Depositary
At any time, the depositary may resign by delivering notice to us, and we may remove the depositary. Resignations or removals will take effect upon the appointment of a successor depositary and its acceptance of the appointment. The successor depositary must be appointed within 60 days after delivery of the notice of resignation or removal and must be a bank or trust company having its principal office in the United States and having a combined capital and surplus of at least $50 million.
Reports
The depositary will forward to the holders of depositary shares all reports and communications from us that are delivered to the depositary and that we are required by law, the rules of an applicable securities exchange or our amended and restated certificate of incorporation to furnish to the holders of the preferred stock. Neither we nor the depositary will be liable if the depositary is (415) 743-1444.prevented or delayed by law or any circumstances beyond its control in performing its obligations under the deposit agreement. The deposit agreement limits our obligations and the depositary’s obligations to performance in good faith of the duties stated in the deposit agreement. Neither we nor the depositary will be obligated to prosecute or defend any legal proceeding connected with any depositary shares or preferred stock unless the holders of depositary shares requesting us to do so furnish us with satisfactory indemnity. In performing our obligations, we and the depositary may rely upon the written advice of our counsel or accountants, on any information that competent people provide to us and on documents that we believe are genuine.
DESCRIPTION OF DEBT SECURITIES
The following description
together with the additional information we include in any applicable prospectus supplements, summarizes the materialbriefly sets forth certain general terms and provisions of the debt
securities that we may offer under this prospectus. While the terms we have summarized below will apply generally to any future debt securities we may offer, we will describe thesecurities. The particular terms of
anythe debt securities
that weoffered by any prospectus supplement and the extent, if any, to which the following general terms and provisions may
offerapply to the debt securities, will be described in
more detail in the applicablean accompanying prospectus supplement.
The terms of anyUnless otherwise specified in an accompanying prospectus supplement, our debt securities
we offerwill be issued in one or more series under
a prospectus supplement may differ from the terms we describe below.We will issue the senior notes under the senioran indenture, which we will enter into with the trustee named in the senior indenture. We will issue the subordinated notes under the subordinateddated as of September 16, 2016, between us and Computershare Trust Company, N.A., as successor to Wells Fargo Bank, National Association, as trustee. The indenture which we will enter into with the trustee named in the subordinated indenture. We have filed forms of these documentsis incorporated by reference as exhibitsan exhibit to the registration statement of which includes this prospectus. We useprospectus forms a part. The terms of the term “indentures” to refer to bothdebt securities will include those set forth in the senior indenture and those made a part of the subordinated indenture.
The indentures will be qualified underindenture by the Trust Indenture Act of 1939. We useYou should read the term “debenture trustee” to refer to either the senior trustee or the subordinated trustee, as applicable.
The following summaries of material provisions of the senior notes, the subordinated notessummary below, any accompanying prospectus supplement and the indentures are subject to, and qualified in their entirety by reference to, all the provisions of the indenture applicablein their entirety before investing in our debt securities. All capitalized terms have the meanings specified in the indenture.
For purposes of this section of this prospectus, references to a particular“we,” “us” and “our” are to NVIDIA Corporation and not to any of its subsidiaries.
General
We may issue, from time to time, debt securities, in one or more series, that will consist of either senior debt (“Senior Debt Securities”), senior subordinated debt (“Senior Subordinated Debt Securities”), subordinated debt (“Subordinated Debt Securities”) or junior subordinated debt (“Junior Subordinated Debt Securities” and, together with the Senior Subordinated Debt Securities and the Subordinated Debt Securities, the “Subordinated Securities”). Debt securities, whether senior, senior subordinated, subordinated or junior subordinated, may be issued as convertible debt securities or exchangeable debt securities.
The indenture does not limit the amount of debt securities. Except assecurities that we may issue. We may, without the consent of the holders of the debt securities of any series, issue additional debt securities ranking equally with, and otherwise indicate,similar in all respects to, the debt securities of the series (except for any differences in the issue price and, if applicable, the initial interest accrual date and interest payment date) so that those additional debt securities will be consolidated and form a single series with the debt securities of the series previously offered and sold; provided that if the additional debt securities are not fungible with the debt securities of the series previously offered or sold for U.S. federal income tax purposes, the additional debt securities will have a separate CUSIP or other identifying number.
The indenture provides that we may issue debt securities up to the principal amount that we may authorize and may be in any currency or currency unit designated by us. Except for the limitations on consolidation, merger and sale of all or substantially all of our assets contained in the indenture, the terms of the senior indenture do not contain any covenants or other provisions designed to afford holders of any debt securities protection with respect to our operations, financial condition or transactions involving us.
We may issue the debt securities issued under the indenture as “discount securities,” which means they may be sold at a discount below their stated principal amount. These debt securities, as well as other debt securities that are not issued at a discount, may, for U.S. federal income tax purposes, be treated as if they were issued with “original issue discount,” because of interest payment and other characteristics. Special U.S. federal income tax considerations applicable to debt securities issued with original issue discount will be described in more detail in any applicable prospectus supplement.
Provisions of the
subordinated indenture are identical.General
We will describe in eachIndenture
The applicable prospectus supplement
the following terms relating tofor a series of debt
securities:securities that we issue will describe, among other things, the title;
following terms of the principal amount being offered debt securities:
•the title and if a series the total amount authorized and the total amount outstanding;designation;
•any limit on the aggregate principal amount that may be issued;
whether or not we will issue the series of debt securities of such series;
•if other than U.S. dollars, the foreign currency or foreign currencies in global form, and if so,which the terms and who debt securities are denominated;
•the depository will be;
the maturity date;
the principal amount dueprice or prices at maturity, and whetherwhich the debt securities will be issued;
•the date or dates on which principal is payable or the method of determination thereof;
•the place or places where and the manner in which principal, premium or interest will be payable and the place or places where the debt securities may be presented for transfer and, if applicable, conversion or exchange;
•interest rates, and the dates from which interest, if any, will accrue, and the dates when interest is payable;
•the terms and conditions of any deferral of interest and the additional interest, if any, thereon, and the right, if any, to extend the interest payment periods and the duration of the extensions;
•the dates on which a record shall be taken for the determination of holders to whom interest is payable and/or the method by which such interest rates shall be determined;
•our right, if any, to redeem the debt securities, in whole or in part, at our option and the period or periods within which, or the date or dates on which, the price or prices at which and any terms and conditions upon which the debt securities may be so redeemed, pursuant to any sinking fund or otherwise;
•our obligations, if any, to redeem, purchase or repay the debt securities pursuant to any mandatory redemption, sinking fund or analogous provisions or at the option of the holder thereof, and the price or prices at which and the period or periods within which or the date or dates on which, and any terms and conditions upon which the debt securities shall be redeemed, purchased or repaid, in whole or in part, pursuant to such obligation;
•conversion or exchange provisions, if any, including conversion or exchange prices or rates and adjustments thereto;
•if other than the coin, currency or currencies in which the debt securities are denominated, the coin, currency or currencies of payment of principal or interest;
•if the principal of or interest on the debt securities are to be payable, at the election of us or a holder thereof, in a coin or currency other than that in which the debt securities are denominated, the period or periods within which, and the terms and conditions upon which, such election may be made;
•the terms applicable to any debt securities issued at a discount from their stated principal amount;
•the terms, if any, pursuant to which any debt securities will be subordinate to any of our other debt;
•if other than denominations of $2,000 and any integral multiple of $1,000 in excess thereof, the denominations in which the debt securities shall be issuable;
•if the amount of payments of principal or interest is to be determined by reference to an index or formula, or based on a coin or currency other than that in which the debt securities are stated to be payable, the manner in which these amounts are determined and the calculation agent, if any, with original issue discount;respect thereto;
•if other than the entire principal amount of the debt securities when issued, the portion of the principal amount payable upon acceleration of maturity as a result of an Event of Default;
•whether and under what circumstances if any, we will pay additional amounts on anythe debt securities held by a person who is not a United StatesU.S. person forin respect of any tax, purposes,assessment or governmental charge withheld or deducted and, if so, whether we canwill have the option to redeem the debt securities if we have torather than pay such additional amounts;
the annual interest rate, which may be fixed or variable, or the method for determining the rate and the date interest will begin to accrue, the dates interest will be payable and the regular record dates for interest payment dates or the method for determining such dates;
whether or not the debt securities will be secured or unsecured, and the terms of any secured debt;
the terms of the subordination of any series of subordinated debt;
the place where payments will be payable;
restrictions on transfer, sale or other assignment, •if any;
our right, if any, to defer payment of interest and the maximum length of any such deferral period;
the date, if any, after which the conditions upon which, and the price at which, we may, at our option, redeem the series of debt securities pursuant to any optional or provisional redemption provisions and the terms of those redemptions provisions;
the date, if any, on which, and the price at which we are obligated, pursuant to any mandatory sinking fund or analogous fund provisions or otherwise, to redeem, or at the holder’s option to purchase, the series of debt securities and the currency or currency unit in which the debt securities are payable;
whether the indenture will restrict our ability to pay dividends, or will require us to maintain any asset ratios or reserves;
whether we will be restricted from incurring any additional indebtedness or issuing additional securities;
a discussion of any material or special United States federal income tax considerations applicable to the debt securities;
information describing any book-entry features;
provisions for a sinking fund purchase or other analogous fund, if any;
any provisions for payment of additional amounts for taxes and any provision for redemption, if we must pay such additional amount with respect to any debt security;
whether the debt securities are to be offered at a priceissuable in definitive form only upon receipt of certain certificates or other documents or satisfaction of other conditions, the form and terms of such that they will be deemed to be offered at an “original issue discount” as defined in paragraph (a)certificates, documents or conditions;
•any trustees, depositaries, authenticating or paying agents, transfer agents or registrars of Section 1273 of the Internal Revenue Code;
the denominations in which we will issue the series of debt securities, if other than denominations of $1,000 and any integral multiple thereof; and
any other specific terms, preferences, rights or limitations of, or restrictions on, the debt securities, including any additional events of default or covenants providedagents with respect to the debt securities;
•any deletion from, modification of or addition to the Events of Default or covenants with respect to the debt securities; and
•any other terms of the debt securities.
The applicable prospectus supplement will set forth certain material U.S. federal income tax considerations for holders of any debt securities and the securities exchange or quotation system on which any terms which may be requireddebt securities are listed or quoted, if any.
Debt securities issued by us will be structurally subordinated to all indebtedness and other liabilities of our subsidiaries, except to the extent any such subsidiary guarantees or advisable under applicable laws or regulations.is otherwise obligated to make payment on such debt securities.
Conversion or Exchange Rights
Senior Debt Securities
Payment of the principal of, and premium, if any, and interest on, Senior Debt Securities will rank on a parity with all of our other unsecured and unsubordinated debt.
Senior Subordinated Debt Securities
Payment of the principal of, and premium, if any, and interest on, Senior Subordinated Debt Securities will be junior in right of payment to the prior payment in full of all of our unsubordinated debt. We will set forth in the applicable prospectus supplement relating to any Senior Subordinated Debt Securities the subordination terms of such securities as well as the aggregate amount of outstanding debt, as of the most recent practicable date, that by its terms would be senior to the Senior Subordinated Debt Securities. We will also set forth in such prospectus supplement limitations, if any, on which a seriesissuance of additional debt ranking senior to the Senior Subordinated Debt Securities.
Subordinated Debt Securities
Payment of the principal of, and premium, if any, and interest on, Subordinated Debt Securities will be subordinated and junior in right of payment to the prior payment in full of all of our unsubordinated and senior subordinated debt. We will set forth in the applicable prospectus supplement relating to any Subordinated Debt Securities the subordination terms of such securities as well as the aggregate amount of outstanding indebtedness, as of the most recent practicable date, that by its terms would be senior to the Subordinated Debt Securities. We will also set forth in such prospectus supplement limitations, if any, on issuance of additional debt ranking senior to the Subordinated Debt Securities.
Junior Subordinated Debt Securities
Payment of the principal of, and premium, if any, and interest on, Junior Subordinated Debt Securities will be subordinated and junior in right of payment to the prior payment in full of all of our unsubordinated, senior subordinated and subordinated debt. We will set forth in the applicable
prospectus supplement relating to any Junior Subordinated Debt Securities the subordination terms of such securities as well as the aggregate amount of outstanding debt, as of the most recent practicable date, that by its terms would be senior to the Junior Subordinated Debt Securities. We will also set forth in such prospectus supplement limitations, if any, on issuance of additional debt ranking senior to the Junior Subordinated Debt Securities.
Conversion or Exchange Rights
Debt securities may be convertible into or exchangeable for our common stock, any other of our securities or securitiesproperty of a third party. We will include provisions as to whetherus. The terms and conditions of conversion or exchange will be set forth in the applicable prospectus supplement. The terms will include, among others, the following:
•the conversion or exchange price;
•the conversion or exchange period;
•provisions regarding the ability of us or the holder to convert or exchange the debt securities;
•events requiring adjustment to the conversion or exchange price; and
•provisions affecting conversion or exchange in the event of our redemption of the debt securities.
Consolidation, Merger or Sale
We cannot consolidate with or merge into any other person, or transfer or lease our properties and assets substantially as an entirety to any person and we shall not permit any other person to consolidate with or merge into us, unless (a) either we shall be the continuing corporation or (b) the successor corporation or person (if other than us) formed by such consolidation or into which we are merged or to which our properties and assets substantially as an entirety are transferred or leased is mandatory,a person organized or formed under the laws of the United States, any state of the United States or the District of Columbia and, if such entity is not a corporation, a co-obligor of the debt securities is a corporation organized or existing under any such laws, and such successor corporation or person, including such co-obligor, if any, shall expressly assume all our obligations under the debt securities and the indenture. In addition, we cannot effect such a transaction unless immediately after giving effect to such transaction and treating any indebtedness which becomes our obligation or an obligation of our subsidiary as a result of such transaction as having been incurred by us or such subsidiary at the optiontime of such transaction, no Event of Default or event, which after notice or lapse of time or both would become an Event of Default, shall have occurred and be continuing.
Events of Default
Unless otherwise indicated, the term “Event of Default,” when used in the indenture with respect to the debt securities of any series, means any of the holderfollowing:
•failure to pay interest for 30 days after the date payment on any debt security of such series is due and payable; provided that an extension of an interest payment period by us in accordance with the terms of the debt securities shall not constitute a failure to pay interest;
•failure to pay principal or premium, if any, on any debt security of such series when due, either at our option. We may include provisions pursuantmaturity, upon any redemption, by declaration or otherwise;
•failure to perform any other covenant or agreement in the indenture or the debt securities of such series for 90 days after written notice that performance was required, which notice must be sent by either the numbertrustee or holders of sharesnot less than 25% of the aggregate principal amount of the outstanding debt securities of such series;
•certain events of bankruptcy, insolvency or reorganization of us; or
•any other Event of Default provided in the applicable resolution of our common stock, any otherboard of our securitiesdirectors or securitiesthe officers’ certificate or supplemental indenture under which we issue such series of debt securities.
An Event of Default for a
third party that the holders of theparticular series of debt securities
receive would be subject to adjustment.Consolidation, Merger or Sale
The indentures in the forms initially filed as exhibits to the registration statementdoes not necessarily constitute an Event of which this prospectus is a part do not containDefault for any covenant which restricts our ability to merge or consolidate, or sell, convey, transfer or otherwise disposeother series of all or substantially all of our assets. However, any successor of ours to or acquirer of such assets must assume all of our obligationsdebt securities issued under the indentures and the debt securities.
indenture.
If
the debt securities are convertible for our other securities or securities of other entities, the person with whom we consolidate or merge or to whom we sell all of our property must make provisions for the conversion of the debt securities into securities which the holders of the debt securities would have received if they had converted the debt securities before the consolidation, merger or sale.Eventsan Event of Default Under the Indenture
The following are(other than an Event of Default relating to events of default under the indentures with respect tobankruptcy, insolvency or reorganization of us) involving any series of debt securities that wehas occurred and is continuing, the trustee or the holders of not less than 25% in aggregate principal amount of the debt securities of each affected series then outstanding may issue:
declare the entire principal amount of all the debt securities of such affected series, and the interest accrued thereon, if we failany, to pay interest whenbe due and payable immediately. The holders of not less than a majority in aggregate principal amount of the debt securities of an affected series may, after satisfying conditions, rescind and our failure continues for 90 daysannul any of the above-described declarations and consequences involving such series.
If an Event of Default relating to events of bankruptcy, insolvency or reorganization of us occurs and is continuing, then the entire principal amount of all of the debt securities outstanding, and the time for payment has not been extended or deferred;
if we fail to pay the principal, or premium,interest accrued thereon, if any, whenwill automatically become due and payable andimmediately, without any declaration or other act by the time for payment has not been extendedtrustee or delayed;
if we fail to observe or perform any other covenant contained in the debt securities or the indentures, other than a covenant specifically relating to another seriesholder.
The indenture imposes limitations on suits brought by holders of debt securities against us with respect to an Event of Default. Except as provided below, no holder of debt securities of any series may institute any action against us under the indenture unless:
•an Event of Default has occurred and our failure continues for 90 days after we receiveis continuing and such holder has previously given to the trustee written notice from of such continuing Event of Default;
•the debenture trustee or holders of at least 25% in aggregate principal amount of the outstanding debt securities of the applicable series;affected series have requested that the trustee institute the action or proceeding in respect of such Event of Default;
•the requesting holders have offered the trustee security or indemnity reasonably satisfactory to it for the costs, expenses and
if specified events of bankruptcy, insolvency or reorganization occur.
If an event of default with respect to debt securities of any series occurs and is continuing, other than an event of default specified in liabilities that may be incurred by bringing the last bullet point above, action;
•the debenture trustee orhas not instituted the holders of at least 25% in aggregate principal amountaction within 60 days of the outstanding debt securities of that series,request; and
•the trustee has not received inconsistent direction by notice to us in writing, and to the debenture trustee if notice is given by such holders, may declare the unpaid principal of, premium, if any, and accrued interest, if any, due and payable immediately. If an event of default specified in the last bullet point above occurs with respect to us, the principal amount of and accrued interest, if any, of each issue of debt securities then outstanding shall be due and payable without any notice or other action on the part of the debenture trustee or any holder.The holders of a majority in principal amount of the outstanding debt securities of anthe affected series.
Notwithstanding the foregoing, each holder of debt securities of any series has the right, which is absolute and unconditional, to receive payment of the principal of, and premium and interest, if any, on, such debt securities when due and to institute suit for the enforcement of any such payment, and such rights may waivenot be impaired without the consent of that holder of debt securities.
We will be required to file annually with the trustee a certificate, signed by one of our officers, stating whether or not the officer knows of any default by us in the performance, observance or eventfulfillment of defaultany condition or covenant of the indenture.
Registered Global Securities
We may issue the debt securities of a series in whole or in part in the form of one or more fully registered global securities that we will deposit with a depositary or with a nominee for a depositary identified in the applicable prospectus supplement and registered in the name of such depositary or nominee. In such case, we will issue one or more registered global securities denominated in an amount equal to the aggregate principal amount of all of the debt securities of the series to be issued and represented by such registered global security or securities.
Unless and until it is exchanged in whole or in part for debt securities in definitive registered form, a registered global security may not be transferred except as a whole:
•by the depositary for such registered global security to its nominee,
•by a nominee of the depositary to the depositary or another nominee of the depositary, or
•by the depositary or its nominee to a successor of the depositary or a nominee of the successor.
The prospectus supplement relating to a series of debt securities will describe the specific terms of the depositary arrangement with respect to any portion of such series represented by a registered global security. We currently anticipate that the following provisions will apply to all depositary arrangements for debt securities:
•ownership of beneficial interests in a registered global security will be limited to persons that have accounts with the depositary for the registered global security, those persons being referred to as “participants,” or persons that may hold interests through participants;
•upon the issuance of a registered global security, the depositary for the registered global security will credit, on its book-entry registration and transfer system, the participants’ accounts with the respective principal amounts of the debt securities represented by the registered global security beneficially owned by the participants;
•any dealers, underwriters, or agents participating in the distribution of the debt securities will designate the accounts to be credited; and
•ownership of any beneficial interest in the registered global security will be shown on, and the transfer of any ownership interest will be effected only through, records maintained by the depositary for the registered global security (with respect to interests of participants) and on the records of participants (with respect to interests of persons holding through participants).
The laws of some jurisdictions may require that certain purchasers of securities take physical delivery of the securities in definitive form. These laws may limit the ability of those persons to own, transfer or pledge beneficial interests in registered global securities.
So long as the depositary for a registered global security, or its nominee, is the registered owner of the registered global security, the depositary or the nominee, as the case may be, will be considered the sole owner or holder of the debt securities represented by the registered global security for all purposes under the indenture. Except as set forth below, owners of beneficial interests in a registered global security:
•will not be entitled to have the debt securities represented by a registered global security registered in their names;
•will not receive or be entitled to receive physical delivery of the debt securities in the definitive form; and
•will not be considered the owners or holders of the debt securities under the indenture.
Accordingly, each person owning a beneficial interest in a registered global security must rely on the procedures of the depositary for the registered global security and, if the person is not a participant, on the procedures of a participant through which the person owns its interest, to exercise any rights of a holder under the indenture.
We understand that under currently existing industry practices, if we request any action of holders or if an owner of a beneficial interest in a registered global security desires to give or take any action that a holder is entitled to give or take under the indenture, the depositary for the registered global security would authorize the participants holding the relevant beneficial interests to give or take the action, and those participants would authorize beneficial owners owning through those participants to give or take the action or would otherwise act upon the instructions of beneficial owners holding through them.
We will make payments of principal and premium, if any, and interest, if any, on debt securities represented by a registered global security registered in the name of a depositary or its nominee to the depositary or its nominee, as the case may be, as the registered owners of the registered global security. None of us, the trustee or any other agent of us or the trustee will be responsible or liable for any aspect of the records relating to, or payments made on account of, beneficial ownership interests in the registered global security or for maintaining, supervising or reviewing any records relating to the beneficial ownership interests.
We expect that the depositary for any debt securities represented by a registered global security, upon receipt of any payments of principal and premium, if any, and interest, if any, in respect of the registered global security, will immediately credit participants’ accounts with payments in amounts proportionate to their respective beneficial interests in the registered global security as shown on the records of the depositary. We also expect that standing customer instructions and customary practices will govern payments by participants to owners of beneficial interests in the registered global security held through the participants, as is now the case with the securities held for the accounts of customers in bearer form or registered in “street name.” We also expect that any of these payments will be the responsibility of the participants.
If the depositary for any debt securities represented by a registered global security is at any time unwilling or unable to continue as depositary or ceases to be a clearing agency registered under the Exchange Act, we will appoint an eligible successor depositary. If we fail to appoint an eligible successor depositary within 90 days, we will issue the debt securities in definitive form in exchange for the registered global security. In addition, we may at any time and in our sole discretion decide not to have any of the debt securities of a series represented by one or more registered global securities. In such event, we will issue debt securities of that series in a definitive form in exchange for all of the registered global securities representing the debt securities. The trustee will register any debt securities issued in definitive form in exchange for a registered global security in such name or names as the depositary, based upon instructions from its participants, shall instruct the trustee.
Discharge, Defeasance and Covenant Defeasance
We can discharge or defease our obligations under the indenture as set forth below. Unless otherwise set forth in the applicable prospectus supplement, the subordination provisions applicable to any Subordinated Securities will be expressly made subject to the discharge and defeasance provisions of the indenture.
We may discharge our obligations to holders of any series of debt securities that have not already been delivered to the trustee for cancellation and that have either become due and payable or are by their terms to become due and payable within one year (or to be called for redemption within one year). We may effect a discharge by irrevocably depositing or causing to be delivered with the trustee cash or, in the case of series of debt securities, the payment on which may only be made in U.S. Dollars, U.S. government obligations, as trust funds, in an amount certified to be sufficient to pay when due, whether at maturity, upon redemption or otherwise, the principal of, and premium, if any, and interest on, the debt securities and any mandatory sinking fund payments.
Unless otherwise provided in the applicable prospectus supplement, we may also discharge any and all of our obligations to holders of any series of debt securities at any time (“legal defeasance”). We also may be released from the obligations imposed by any covenants of any outstanding series of debt securities and provisions of the indenture, and we may omit to comply with those covenants without creating an Event of Default (“covenant defeasance”). We may effect legal defeasance and covenant defeasance only if, among other things:
•we irrevocably deposit with the trustee cash or, in the case of series of debt securities, the payment on which may only be made in U.S. Dollars, U.S. government obligations, as trust funds, in an amount certified to be sufficient to pay when due (whether at maturity, upon redemption, or otherwise) the principal of, and premium, if any, and interest on all outstanding debt securities of the series; and
•we deliver to the trustee an opinion of counsel from a nationally recognized law firm to the effect that the beneficial owners of the series of debt securities will not recognize income, gain or loss for U.S. federal income tax purposes as a result of the legal defeasance or covenant defeasance, as applicable, and its consequences, except defaultsthat legal defeasance or events of default regarding paymentcovenant defeasance, as
applicable, will not otherwise alter the beneficial owners’ U.S. federal income tax treatment of principal, premium, if any,
orand interest
unless we have curedpayments on the
default or eventseries of
defaultdebt securities, which opinion, in
accordance with the
indenture.Subject to the termscase of legal defeasance, must be based on a ruling of the indentures, if an event of defaultInternal Revenue Service, or a change in U.S. federal income tax law.
Although we may discharge or defease our obligations under anthe indenture shall occur and be continuing,as described in the debenture trustee will be under no obligationtwo preceding paragraphs, we may not avoid, among other things, our duty to exercise any of its rightsregister the transfer or powers under such indenture at the request or directionexchange of any series of debt securities, to replace any temporary, mutilated, destroyed, lost or stolen series of debt securities or to maintain an office or agency in respect of any series of debt securities.
We may exercise our legal defeasance option notwithstanding our prior exercise of our covenant defeasance option.
Modifications of the Indenture
The indenture provides that we and the trustee may enter into supplemental indentures without the consent of the holders of debt securities to:
•secure any debt securities;
•evidence the assumption by another person of our obligations, as permitted by the indenture;
•add covenants for the protection of the holders of debt securities of all or any series or to surrender any right or power conferred upon us;
•add any additional events of default for the benefit of holders of the debt securities of all or any series;
•add one or more guarantees for the benefit of holders of the debt securities;
•provide for the issuance of additional debt securities of any series;
•comply with the rules of any applicable securities depository;
•provide for uncertificated debt securities in addition to or in place of certificated debt securities;
•add to, change or eliminate any of the provisions of the indenture in respect of one or more series of debt securities; provided that any such addition, change or elimination (a) shall neither (1) apply to any debt security of any series created prior to the execution of such supplemental indenture and entitled to the benefit of such provision nor (2) modify the rights of the holder of any such debt security with respect to such provision or (b) shall become effective only when there is no debt security described in clause (a)(1) outstanding;
•supplement any of the provisions of the indenture to such extent as shall be necessary to permit or facilitate the defeasance and discharge of any series of debt securities unlesspursuant to the indenture; provided that any such holders have offeredaction shall not adversely affect the debenture trustee reasonable indemnity. Theinterests of the holders of debt securities of such series or any other series of debt securities in any material respect;
•comply with the rules or regulations of any securities exchange or automated quotation system on which any of the debt securities may be listed or traded;
•add to, change or eliminate any of the provisions of the indenture as shall be necessary or desirable in accordance with any amendments to the Trust Indenture Act of 1939, as amended, provided that such action does not adversely affect the rights or interests of any holder of debt securities in any material respect;
•cure or correct any ambiguity, defect, omission or inconsistency in the indenture; provided that such action does not adversely affect the interests of the holders of debt securities of any series in any material respect;
•establish the forms or terms of debt securities of any series;
•evidence and provide for the acceptance of appointment by a successor trustee; and
•add to, change or eliminate any other provision of the indenture; provided that such addition, change or elimination does not adversely affect the interests of the holders of debt securities of any series in any material respect.
The indenture also provides that we and the trustee may, with the consent of the holders of not less than a majority in aggregate principal amount of the outstanding debt securities of all series of Senior Debt Securities or Subordinated Securities, as the case may be, then outstanding and affected thereby (voting as one class), add any provisions to, or change in any manner, eliminate or modify in any way the provisions of, the indenture or modify in any manner the rights of the holders of the debt securities. We and the trustee may not, however, without the consent of the holder of each outstanding debt security affected thereby:
•extend the final maturity of any debt security;
•reduce the principal amount of, or premium, if any, on any debt security;
•reduce the rate or extend the time of payment of interest on any debt security;
•reduce any amount payable on redemption of any debt security;
•change the currency in which the principal (other than as may be provided otherwise with respect to a series), premium, if any, or interest is payable on any debt security;
•reduce the amount of the principal of any debt security issued with an original issue discount that is payable upon acceleration or provable in bankruptcy;
•modify any of the subordination provisions or the definition of senior indebtedness applicable to any Subordinated Securities in a manner adverse to the holders of those securities;
•alter provisions of the indenture relating to the debt securities not denominated in U.S. dollars;
•impair the right to institute suit for the enforcement of any payment on any debt security when due; or
•reduce the percentage of holders of debt securities of any series whose consent is required for any modification of the indenture.
Concerning the Trustee
Computershare Trust Company, N.A., as successor to Wells Fargo Bank, National Association, serves as trustee under the indenture. The trustee assumes (and will have) no responsibility or liability for the accuracy, correctness, or completeness of the information (including such information concerning us or our affiliates or any other party) contained in the registration statement of which this prospectus forms a part or for any failure by us or any other party to disclose events that may have occurred and may affect the significance or accuracy of such information.
The indenture provides that there may be more than one trustee under the indenture, each with respect to one or more series of debt securities. If there are different trustees for different series of debt securities, each trustee will be a trustee of a trust under the indenture separate and apart from the trust administered by any other trustee under the indenture. Except as otherwise indicated in this prospectus or any accompanying prospectus supplement, any action permitted to
be taken by a trustee may be taken by such trustee only with respect to the one or more series of debt securities for which it is the trustee under the indenture. Any trustee under the indenture may resign or be removed with respect to one or more series of debt securities. All payments of principal of, and premium, if any, and interest on, and all registration, transfer, exchange, authentication and delivery (including authentication and delivery on original issuance of the debt securities) of, the debt securities of a series will be effected by the trustee with respect to such series at the corporate trust office designated by the trustee in St. Paul, Minnesota.
The indenture contains limitations on the right of the trustee, should it become a creditor of us, to obtain payment of claims in some cases or to realize on certain property received in respect of any such claim as security or otherwise. The trustee may engage in other transactions. If it acquires any conflicting interest relating to any duties with respect to the debt securities, however, it must eliminate the conflict or resign as trustee.
The holders of a majority in aggregate principal amount of any series of debt securities then outstanding will have the right to direct the time, method and place of conducting any proceeding for
exercising any remedy available to the
debenture trustee, or exercising any trust or power conferred on the debenture trustee with respect to
thesuch series of debt securities,
ofprovided that
series, provided that:the direction so given by the holder iswould not in conflict with any rule of law or with the applicable indenture; and
subject to its duties under the Trust Indenture Act of 1939, the debenture trustee needindenture, would not take any action that might involve it in personal liability or might be unduly prejudicial to the holders not involved in the proceeding.
Arights of another holder of the debt securities, ofand would not involve any series will only have the right to institute a proceeding under the indentures or to appoint a receiver or trustee or to seek other remedies if:
the holder has given written notice to the debenture trustee of a continuing event of default with respect to that series;
the holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series have made written request, and such holders have offered reasonable indemnity to the debenture trustee to institute the proceeding as trustee; and
the debenture trustee does not institute the proceeding, and does not receive from the holders of a majority in aggregate principal amount of the outstanding debt securities of that series other conflicting directions within 90 days after the notice, request and offer.
These limitations do not apply to a suit instituted by a holder of debt securities if we default in the payment of the principal, premium, if any, or interest on, the debt securities.
We will periodically file statements with the debenture trustee regarding our compliance with specified covenants in the indentures.
Modification of Indenture; Waiver
We and the debenture trustee may change an indenture without the consent of any holders with respect to specific matters, including:
to fix any ambiguity, defect or inconsistency in the indenture;
to comply with the provisions described above under “Consolidation, Merger or Sale;”
to comply with any requirements of the SEC in connection with the qualification of any indenture under the Trust Indenture Act of 1939;
to evidence and provide for the acceptance of appointment hereunder by a successor trustee;
to provide for uncertificated debt securities and to make all appropriate changes for such purpose;
to add to, delete from, or revise the conditions, limitations and restrictions on the authorized amount, terms or purposes of issuance, authorization and delivery of debt securities of any series;
to add to our covenants such new covenants, restrictions, conditions or provisions for the protection of the holders, and to make the occurrence, or the occurrence and the continuance, of a default in any such additional covenants, restrictions, conditions or provisions an event of default;
to establish the form of any certifications required to be furnished pursuant to the terms of the indenture or any series of securities; or
to change anything that does not adversely affect the interests of any holder of debt securities of any series in any material respect.
In addition, under the indentures, the rights of holders of a series of debt securities may be changed by us and the debenture trustee with the written consent of the holders of at least a majority in aggregate principal amount of the outstanding debt securities of each series that is affected. However, we and the debenture trustee may only make the following changes with the consent of each holder of any outstanding debt securities affected:
extending the fixed maturity of the series of debt securities;
reducing the principal amount, reducing the rate of or extending the time of payment of interest, or reducing any premium payable upon the redemption of any debt securities; or
reducing the percentage of debt securities, the holders of which are required to consent to any supplemental indenture.
Discharge
Eachpersonal liability. The indenture provides that we can elect toin case an Event of Default shall occur and be discharged from our obligations with respect to one or more series of debt securities, except for obligations to:
register the transfer or exchange of debt securities of the series;
replace stolen, lost or mutilated debt securities of the series;
maintain paying agencies;
hold monies for payment in trust;
recover excess money held by the debenture trustee;
compensate and indemnify the debenture trustee; and
appoint any successor trustee.
In order to exercise our rights to be discharged, we must deposit with the debenture trustee money or government obligations sufficient to pay all the principal of, any premium, if any, and interest on, the debt securities of the series on the dates payments are due.
Form, Exchange and Transfer
We will issue the debt securities of each series only in fully registered form without coupons and, unless we otherwise specify in the applicable prospectus supplement, in denominations of $1,000 and any integral multiple thereof. The indentures provide that we may issue debt securities of a series in temporary or permanent global form and as book-entry securities that will be deposited with, or on behalf of, The Depository Trust Company or another depository named by us and identified in a prospectus supplement with respect to that series. See “Legal Ownership of Securities” for a further description of the terms relatingknown to any book-entry securities.
At the option of the holder, subject to the terms of the indenturestrustee and the limitations applicable to global securities described in the applicable prospectus supplement, the holder of the debt securities of any series can exchange the debt securities for other debt securities of the same series, in any authorized denomination and of like tenor and aggregate principal amount.
Subject to the terms of the indentures and the limitations applicable to global securities set forth in the applicable prospectus supplement, holders of the debt securities may present the debt securities for exchange or for registration of transfer, duly endorsed or with the form of transfer endorsed thereon duly executed if so required by us or the security registrar, at the office of the security registrar or at the office of any transfer agent designated by us for this purpose. Unless otherwise provided in the debt securities that the holder presents for transfer or exchange, we will make no service charge for any registration of transfer or exchange, but we may require payment of any taxes or other governmental charges.
We will name in the applicable prospectus supplement the security registrar, and any transfer agent in addition to the security registrar, that we initially designate for any debt securities. We may at any time designate additional transfer agents or rescind the designation of any transfer agent or approve a change in the office through which any transfer agent acts, except that we will be required to maintain a transfer agent in each place of payment for the debt securities of each series.
If we elect to redeem the debt securities of any series, we will not be required to:
issue, registercured, the transfer of, or exchange any debt securities of that series during a period beginning at the opening of business 15 days before the day of mailing of a notice of redemption of any debt securities that may be selected for redemption and ending at the close of business on the day of the mailing; or
register the transfer of or exchange any debt securities so selected for redemption, in whole or in part, except the unredeemed portion of any debt securities we are redeeming in part.
Information Concerning the Debenture Trustee
The debenture trustee, other than during the occurrence and continuance of an event of default under an indenture, undertakes to perform only those duties as are specifically set forth in the applicable indenture. Upon an event of default under an indenture, the debenture trustee must use the same degree of care as a prudent person would exercise or use in the conduct of his or her own affairs.affairs in the exercise of the trustee’s power. Subject to this provision,these provisions, the debenture trustee iswill be under no obligation to exercise any of its rights or powers under the powers given it by the indenturesindenture at the request of any holder of the holders of the debt securities, unless it isthey shall have offered reasonableto the trustee security and indemnity againstsatisfactory to the costs, expenses and liabilities that it might incur.
Payment and Paying Agents
Unless we otherwise indicate in the applicabletrustee.
The registration statement of which this prospectus supplement, we will make paymentforms a part does not provide a comprehensive description of the interest onrights, benefits, protections, immunities, indemnities, and privileges of the trustee. Rather, the indenture sets forth the trustee’s rights, benefits, protections, immunities, indemnities, and privileges.
No Individual Liability of Incorporators, Stockholders, Officers or Directors
The indenture provides that no incorporator and no past, present or future stockholder, officer or director of us or any
debt securities onsuccessor corporation in their capacity as such shall have any
interest payment date to the person in whose nameindividual liability for any of our obligations, covenants or agreements under the debt securities or
one or more predecessor securities, are registered at the
close of business on the regular record date for the interest.We will pay principal of and any premium and interest on the debt securities of a particular series at the office of the paying agents designated by us, except that unless we otherwise indicate in the applicable prospectus supplement, we will make interest payments by check which we will mail to the holder or by wire transfer to certain holders. Unless we otherwise indicate in a prospectus supplement, we will designate the corporate trust office of the debenture trustee in the City of New York as our sole paying agent for payments with respect to debt securities of each series. We will name in the applicable prospectus supplement any other paying agents that we initially designate for the debt securities of a particular series. We will maintain a paying agent in each place of payment for the debt securities of a particular series.
All money we pay to a paying agent or the debenture trustee for the payment of the principal of or any premium or interest on any debt securities which remains unclaimed at the end of two years after such principal, premium or interest has become due and payable will be repaid to us, and the holder of the security thereafter may look only to us for payment thereof.
indenture.
The
indenturesindenture and the debt securities will be governed by, and construed in accordance with, the laws of the State of New York.
DESCRIPTION OF WARRANTS
General
We may issue debt warrants for the purchase of
Subordinated Debt SecuritiesThe subordinated debt securities or stock warrants for the purchase of preferred stock or common stock.
The warrants will be
unsecuredissued under warrant agreements to be entered into between us and
a bank or trust company, as warrant agent, all to be set forth in the applicable prospectus supplement relating to any or all warrants in respect of which this prospectus is being delivered. We will file a copy of the warrant and warrant agreement with the SEC each time we issue a series of warrants, and these warrants and warrant agreements will be
subordinate and junior in priority of payment to certain of our other indebtedness to the extent described in a prospectus supplement. The indentures in the forms initially filed as exhibits toincorporated by reference into the registration statement of which this prospectus
isforms a
part may limit the amount of indebtedness which we may incur and do not limit us from issuing any other secured or unsecured debt.DESCRIPTION OF WARRANTS
part.
The following description together with the additional information we may include in any applicable prospectus supplements, summarizes the materialsets forth certain general terms and provisions of the warrants that weto which any prospectus supplement may offer under this prospectus and the related warrant agreements and warrant certificates. While the terms summarized below will apply generally to any warrants that we may offer, we will describe therelate. The particular terms of the warrants to which any series ofprospectus supplement may relate and the extent, if any, to which such general provisions may apply to the warrants in more detailso offered will be described in the applicable prospectus supplement. We have filed formsThe following summary of these documents as exhibits tocertain provisions of the registration statement, which includes this prospectus. If we indicate in the prospectus supplement, the terms of any warrants, offered under that prospectus supplement may differ from the terms described below. Specific warrant agreements will contain additional important terms and warrant certificates does not purport to be complete and is subject to, and is qualified in its entirety by express reference to, all the provisions of the warrant agreements and will be incorporated by reference as an exhibitwarrant certificates, including the definitions therein of certain terms.
Debt Warrants
General. Reference is made to the registration statement that includes this prospectus or as an exhibit to a current report on Form 8-K.General
We will describe in the applicable prospectus supplement for the terms of debt warrants in respect of which this prospectus is being delivered, the seriesdebt securities warrant agreement relating to such debt warrants and the debt warrant certificates representing such debt warrants, including the following:
•the designation, aggregate principal amount and terms of the debt securities purchasable upon exercise of such debt warrants including:and the offering priceprocedures and aggregate numberconditions relating to the exercise of warrants offered;such debt warrants;
the currency for which the warrants may be purchased;
if applicable, •the designation and terms of theany related debt securities with which thesuch debt warrants are issued and the number of such debt warrants issued with each such security or each principal amount of suchdebt security;
if applicable, •the date, if any, on and after which thesuch debt warrants and theany related offered securities will be separately transferable;
in the case of warrants to purchase debt securities, •the principal amount of debt securities purchasable upon exercise of oneeach debt warrant and the price at and currency in which thissuch principal amount of debt securities may be purchased upon such exercise;
in •the case of warrants to purchase common stock or preferred stock, the number of shares of common stock or preferred stock, as the case may be, purchasable upon the exercise of one warrant and the price at which these shares may be purchased upon such exercise;
the effect of any merger, consolidation, sale or other disposition of our business on the warrant agreement and the warrants;
the terms of any rights to redeem or call the warrants;
any provisions for changes to or adjustments in the exercise price or number of securities issuable upon exercise of the warrants;
the datesdate on which the right to exercise thesuch debt warrants willshall commence and expire;
the mannerdate on which such right shall expire;
•a discussion of the material U.S. federal income tax considerations applicable to the ownership or exercise of debt warrants;
•whether the debt warrants represented by the debt warrant certificates will be issued in whichregistered or bearer form, and, if registered, where they may be transferred and registered;
•call provisions of such debt warrants, if any; and
•any other terms of the debt warrants.
The debt warrant agreementcertificates will be exchangeable for new debt warrant certificates of different denominations and debt warrants may be modified;
federal income tax consequences of holding or exercisingexercised at the warrants;
the termscorporate trust office of the securities issuable uponwarrant
agent or any other office indicated in the applicable prospectus supplement. Prior to the exercise of the warrants; and
any other specific terms, preferences, rights or limitations of or restrictions on the warrants.
Before exercising their debt warrants, holders of debt warrants will not have any of the rights of holders of the debt securities purchasable upon such exercise including:
in the case of warrantsand will not be entitled to purchase debt securities, the right to receiveany payments of principal of, orand premium, if any, orand interest, if any, on the debt securities purchasable upon exercise or to enforce covenants in the applicable indenture; orsuch exercise.
in the case of warrants to purchase common stock or preferred stock, the right to receive dividends, if any, or, payments upon our liquidation, dissolution or winding up or to exercise voting rights, if any.
Exercise of Debt Warrants
. Each debt warrant will entitle the holder to purchase thefor cash such principal amount of debt securities that we specifyat such exercise price as shall in each case be set forth in, or be determinable as set forth in, the applicable prospectus supplement atrelating to the exercise price that we describe in the applicable prospectus supplement.debt warrants offered thereby. Unless we otherwise specifyspecified in the applicable prospectus supplement, holders of thedebt warrants may exercise the warrantsbe exercised at any time up to 5:00 P.M.p.m., New York City time, on the expiration date that we set forth in the applicable prospectus supplement. After the close of business5:00 p.m., New York City time, on the expiration date, unexercised debt warrants will become void.
Holders of the
Debt warrants may
exercise the warrants by delivering the warrant certificate representing the warrants to be exercised
together with specified information, and paying the required amount to the warrant agent in immediately available funds, as
provided in the applicable prospectus supplement. We will set forth
on the reverse side of the warrant certificate and in the applicable prospectus supplement
the information that the holder of the warrant will be required to deliverrelating to the
warrant agent.debt warrants. Upon receipt of the required payment and the debt warrant certificate properly completed and duly executed at the corporate trust office of the warrant agent or any other office indicated in the applicable prospectus supplement, we will, issue and deliveras soon as practicable, forward the debt securities purchasable upon such exercise. If fewerless than all of the debt warrants represented by thesuch debt warrant certificate are exercised, then we will issue a new debt warrant certificate will be issued for the remaining amount of debt warrants. If we so indicate
Stock Warrants
General. Reference is made to the applicable prospectus supplement for the terms of stock warrants in respect of which this prospectus is being delivered, the stock warrant agreement relating to such stock warrants and the stock warrant certificates representing such stock warrants, including the following:
•the type and number of shares of preferred stock or common stock purchasable upon exercise of such stock warrants and the procedures and conditions relating to the exercise of such stock warrants;
•the date, if any, on and after which such stock warrants and related offered securities will be separately tradeable;
•the offering price of such stock warrants, if any;
•the initial price at which such shares may be purchased upon exercise of stock warrants and any provision with respect to the adjustment thereof;
•the date on which the right to exercise such stock warrants shall commence and the date on which such right shall expire;
•a discussion of the material U.S. federal income tax considerations applicable to the ownership or exercise of stock warrants;
•call provisions of such stock warrants, if any;
•any other terms of the stock warrants;
•anti-dilution provisions of the stock warrants, if any; and
•information relating to any preferred stock purchasable upon exercise of such stock warrants.
The stock warrant certificates will be exchangeable for new stock warrant certificates of different denominations and stock warrants may be exercised at the corporate trust office of the warrant agent or any other office indicated in the applicable prospectus supplement. Prior to the exercise of their stock warrants, holders of stock warrants will not have any of the rights of holders of shares of capital stock purchasable upon such exercise, and will not be entitled to any dividend payments on such capital stock purchasable upon such exercise.
Exercise of Stock Warrants. Each stock warrant will entitle the holder to purchase for cash such number of shares of preferred stock or common stock, as the case may be, at such exercise price as shall in each case be set forth in, or be determinable as set forth in, the applicable prospectus supplement holders ofrelating to the stock warrants offered thereby. Unless otherwise specified in the applicable prospectus supplement, stock warrants may surrender securities as all or part of the exercise price for warrants.Enforceability of Rights by Holders of Warrants
Each warrant agent will act solely as our agent under the applicable warrant agreement and will not assumebe exercised at any obligation or relationship of agency or trust with any holder of any warrant. A single bank or trust company
may act as warrant agent for more than one issue of warrants. A warrant agent will have no duty or responsibility in case of any default by us under the applicable warrant agreement or warrant, including any duty or responsibilitytime up to initiate any proceedings at law or otherwise, or to make any demand upon us. Any holder of a warrant may, without the consent of the related warrant agent or the holder of any other warrant, enforce by appropriate legal action its right to exercise, and receive the securities purchasable upon exercise of, its warrants.
LEGAL OWNERSHIP OF SECURITIES
We can issue securities in registered form or in the form of one or more global securities. We describe global securities in greater detail below. We refer to those persons who have securities registered in their own names5:00 p.m., New York City time, on the books that we or any applicable trustee maintain for this purpose as the “holders” of those securities. These persons are the legal holders of the securities. We refer to those persons who, indirectly through others, own beneficial interests in securities that are not registered in their own names, as “indirect holders” of those securities. As we discuss below, indirect holders are not legal holders, and investors in securities issued in book-entry form or in street name will be indirect holders.
Book-Entry Holders
We may issue securities in book-entry form only, as we will specifyexpiration date set forth in the applicable prospectus supplement. This means securitiesAfter 5:00 p.m., New York City time, on the expiration date, unexercised stock warrants will become void.
Stock warrants may be
represented by one or more global securities registered in the name of a financial institution that holds themexercised as
depositary on behalf of other financial institutions that participate in the depositary’s book-entry system. These participating institutions, which are referred to as participants, in turn, hold beneficial interests in the securities on behalf of themselves or their customers.Only the person in whose name a security is registered is recognized as the holder of that security. Securities issued in global form will be registered in the name of the depositary or its participants. Consequently, for securities issued in global form, we will recognize only the depositary as the holder of the securities, and we will make all payments on the securities to the depositary. The depositary passes along the payments it receives to its participants, which in turn pass the payments along to their customers who are the beneficial owners. The depositary and its participants do so under agreements they have made with one another or with their customers or because they are legally required to do so. They are not obligated to do so under the terms of the securities.
As a result, investors in a book-entry security will not own securities directly. Instead, they will own beneficial interests in a global security, through a bank, broker or other financial institution that participates in the depositary’s book-entry system or holds an interest through a participant. As long as the securities are issued in global form, investors will be indirect holders, and not holders, of the securities.
Street Name Holders
In certain circumstances, we may terminate a global security or issue securities in non-global form. In these cases, investors may choose to hold their securities in their own names or in “street name.” Securities held by an investor in street name would be registered in the name of a bank, broker or other financial institution that the investor chooses, and the investor would hold only a beneficial interest in those securities through an account he or she maintains at that institution.
For securities held in street name, we will recognize only the intermediary banks, brokers and other financial institutions in whose names the securities are registered as the holders of those securities, and we will make all payments on those securities to them. These institutions pass along the payments they receive to their customers who are the beneficial owners, but only because they agree to do so in their customer agreements or because they are legally required to do so. They are not obligated to do so under the terms of the securities. Investors who hold securities in street name will be indirect holders, not holders, of those securities.
Legal Holders
Our obligations, as well as the obligations of any applicable trustee and of any third parties employed by us or a trustee, run only to the legal holders of the securities. We do not have obligations to investors who hold beneficial interests in global securities, in street name or by any other indirect means. This will be the case whether an investor chooses to be an indirect holder of a security or has no choice because we are issuing the securities only in global form.
For example, once we make a payment or give a notice to the holder, we have no further responsibility for the payment or notice even if that holder is required, under agreements with depositary participants or customers or by law, to pass it along to the indirect holders but does not do so. Similarly, we may want to obtain the approval of the holders to amend an indenture, to relieve us of the consequences of a default or of our obligation to comply with a particular provision of the indenture or for other purposes. In such an event, we would seek approval only from the holders, and not the indirect holders, of the securities. Whether and how the holders contact the indirect holders is up to the holders.
Special Considerations For Indirect Holders
If you hold securities through a bank, broker or other financial institution, either in book-entry form or in street name, you should check with your own institution to find out:
how it handles securities payments and notices;
whether it imposes fees or charges;
how it would handle a request for the holders’ consent, if ever required;
whether and how you can instruct it to send you securities registered in your own name so you can be a holder, if that is permitted in the future;
how it would exercise rights under the securities if there were a default or other event triggering the need for holders to act to protect their interests; and
if the securities are in book-entry form, how the depositary’s rules and procedures will affect these matters.
Global Securities
A global security is a security, which represents one or any other number of individual securities held by a depositary. Generally, all securities represented by the same global securities will have the same terms.
Each security issued in book-entry form will be represented by a global security that we deposit with and register in the name of a financial institution or its nominee that we select. The financial institution that we select for this purpose is called the depositary. Unless we specify otherwiseset forth in the applicable prospectus supplement relating thereto. Upon receipt of payment and the Depository Trust Company, New York, New York, known as DTC, will bestock warrant certificates properly completed and duly executed at the depositary for all securities issued in book-entry form.
A global security may not be transferred tocorporate trust office of the warrant agent or registeredany other office indicated in the nameapplicable prospectus supplement, we will, as soon as practicable, forward a certificate representing the number of anyone othershares of capital stock purchasable upon such exercise. If less than all of the depositary, its nominee or a successor depositary, unless special termination situations arise. We describe those situations below under “Special Situations When a Global Security Will Be Terminated.” As a result of these arrangements, the depositary, or its nominee, will be the sole registered owner and holder of all securitiesstock warrants represented by such stock warrant certificate are exercised, a global security, and investors will be permitted to own only beneficial interests in a global security. Beneficial interests must be held by means of an account with a broker, bank or other financial institution that in turn has an account with the depositary or with another institution that does. Thus, an investor whose security is represented by a global security will not be a holder of the security, but only an indirect holder of a beneficial interest in the global security.
If the prospectus supplement for a particular security indicates that the securitynew stock warrant certificate will be issued in global form only, then the security will be represented by a global security at all times unless and until the global security is terminated. If termination occurs, we may issue the securities through another book-entry clearing system or decide that the securities may no longer be held through any book-entry clearing system.
Special Considerations For Global Securities
As an indirect holder, an investor’s rights relating to a global security will be governed by the account rules of the investor’s financial institution and of the depositary, as well as general laws relating to securities transfers. We do not recognize an indirect holder as a holder of securities and instead deal only with the depositary that holds the global security.
If securities are issued only in the form of a global security, an investor should be aware of the following:
An investor cannot cause the securities to be registered in his or her name, and cannot obtain non-global certificates for his or her interest in the securities, except in the special situations we describe below;
An investor will be an indirect holder and must look to his or her own bank or broker for payments on the securities and protection of his or her legal rights relating to the securities, as we describe above;
An investor may not be able to sell interests in the securities to some insurance companies and to other institutions that are required by law to own their securities in non-book-entry form;
An investor may not be able to pledge his or her interest in a global security in circumstances where certificates representing the securities must be delivered to the lender or other beneficiary of the pledge in order for the pledge to be effective;remaining amount of stock warrants.
DESCRIPTION OF STOCK PURCHASE CONTRACTS AND STOCK PURCHASE UNITS
The depositary’s policies, which may change from time to time, will govern payments, transfers, exchanges and other matters relating to an investor’s interest in a global security. We and any applicable trustee have no responsibility for any aspect of the depositary’s actions or for its records of ownership interests in a global security. We and the trustee also do not supervise the depositary in any way;
The depositary may, and we understand that DTC will, require that those who purchase and sell interests in a global security within its book-entry system use immediately available funds, and your broker or bank may require you to do so as well; and
Financial institutions that participate in the depositary’s book-entry system, and through which an investor holds its interest in a global security, may also have their own policies affecting payments, notices and other matters relating to the securities.
There may be more than one financial intermediary in the chain of ownership for an investor. We do not monitor and are not responsible for the actions of any of those intermediaries.
Special Situations When A Global Security Will Be Terminated
In a few special situations described below, the global security will terminate and interests in it will be exchanged for physical certificates representing those interests. After that exchange, the choice of whether to hold securities directly or in street name will be up to the investor. Investors must consult their own banks or brokers to find out how to have their interests in securities transferred to their own name, so that they will be direct holders. We have described the rights of holders and street name investors above.
The global security will terminate when the following special situations occur:
if the depositary notifies us that it is unwilling, unable or no longer qualified to continue as depositary for that global security and we do not appoint another institution to act as depositary within 90 days;
if we notify any applicable trustee that we wish to terminate that global security; or
if an event of default has occurred with regard to securities represented by that global security and has not been cured or waived.
The prospectus supplement may also list additional situations for terminating a global security that would apply only to the particular series of securities covered by the prospectus supplement. When a global security terminates, the depositary, and not we or any applicable trustee, is responsible for deciding the names of the institutions that will be the initial direct holders.
PLAN OF DISTRIBUTION
We may sell the securities through underwriters or dealers, through agents, or directly to one or more purchasers. The prospectus supplement will describe the terms of any stock purchase contracts or stock purchase units and, if applicable, prepaid securities. The description in the prospectus supplement will not purport to be complete and will be qualified in its entirety by reference to the stock purchase contracts, the collateral arrangements and depositary arrangements, if applicable, relating to such stock purchase contracts or stock purchase units and, if applicable, the prepaid securities and the document pursuant to which such prepaid securities will be issued, which will be filed with the SEC each time we issue stock purchase contracts or stock purchase units.
PLAN OF DISTRIBUTION
We may sell common stock, preferred stock, depositary shares, debt securities, warrants, stock purchase contracts or stock purchase units in one or more of the following ways from time to time:
•to or through underwriters or dealers;
•directly to one or more purchasers;
•through agents or dealers; or
•through a combination of any of these methods of sale.
The prospectus supplements relating to an offering of
offered securities will set forth the
securities,terms of such offering, including:
•the name or names of any underwriters, if any;dealers or agents;
•the purchase price of the offered securities and the proceeds we will receiveto us from the sale;
•any over-allotment options under which underwriters may purchase additional securities from us;
anyunderwriting discounts and commissions or agency fees or underwriting discounts and other items constituting underwriters’ or agents’ or underwriters’ compensation; and
•any initial public offering price;
price, any discounts or concessions allowed or reallowed or paid to dealers;dealers and
any securities exchange or marketexchanges on which thesuch offered securities may be listed.
Only underwriters named in the prospectus supplement are underwriters of the securities offered by the prospectus supplement.
Any initial public offering prices, discounts or concessions allowed or reallowed or paid to dealers may be changed from time to time.
If underwriters are used in the sale, theythe underwriters will acquire the offered securities for their own account and may resell them from time to time in one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined at the time of sale. The obligations of the underwriters to purchase theoffered securities willmay be subject to the conditions set forth in the applicable underwriting agreement. We may offer the securitiesoffered either to the public through underwriting syndicates represented by one or more managing underwriters or by one or more underwriters without a syndicate. SubjectUnless otherwise set forth in a prospectus supplement, the obligations of the underwriters to purchase any series of securities will be subject to certain conditions precedent, and the underwriters will be obligated to purchase all theof such series of securities if any are purchased.
In connection with underwritten offerings of the series offered securities and in accordance with applicable law and industry practice, underwriters may over-allot or effect transactions that stabilize, maintain or otherwise affect the market price of the offered securities at levels above those that might otherwise prevail in the open market, including by entering stabilizing bids, effecting syndicate covering transactions or imposing penalty bids, each of which is described below.
•A stabilizing bid means the placing of any bid, or the effecting of any purchase, for the purpose of pegging, fixing or maintaining the price of a security.
•A syndicate covering transaction means the placing of any bid on behalf of the underwriting syndicate or the effecting of any purchase to reduce a short position created in connection with the offering.
•A penalty bid means an arrangement that permits the managing underwriter to reclaim a selling concession from a syndicate member in connection with the offering when offered securities originally sold by the prospectus supplement. Anysyndicate member are purchased in syndicate covering transactions.
These transactions may be effected on the Nasdaq Global Select Market, in the over-the-counter market, or otherwise. Underwriters are not required to engage in any of these activities, or to continue such activities if commenced.
If a dealer is used in the sale, we will sell such offered securities to the dealer, as principal. The dealer may then resell the offered securities to the public
offering priceat varying prices to be determined by that dealer at the time for resale. The names of the dealers and
any discounts or concessions allowed or reallowed or paid to dealers may change from time to time. We may use underwriters with whom we have a material relationship. Wethe terms of the transaction will
describebe set forth in the prospectus supplement
naming the underwriter, the nature of any such relationship.Werelating to that transaction.
Offered securities may
sell securitiesbe sold directly
by us to one or more institutional purchasers, or through agents
we designatedesignated by us from time to
time. We will name anytime, at a fixed price or prices, which may be changed, or at varying prices determined at the time of sale. Any agent involved in the
offering andoffer or sale of
the offered securities
and wein respect of which this prospectus is delivered will
describebe named, and any commissions
wepayable by us to such agent will
pay the agentbe set forth, in the prospectus
supplement.supplement relating to that offering. Unless
theotherwise indicated in such prospectus supplement,
states otherwise, ourany such agent will
actbe acting on a
best-effortsbest efforts basis for the period of its appointment.
We
Underwriters, dealers and agents may
authorize agents or underwritersbe entitled under agreements entered into with us to
solicit offersindemnification by
certain types of institutional investors to purchase securities from us
at the public offering price set forth in the prospectus supplement pursuant to delayed delivery contracts providing for payment and delivery on a specified date in the future. We will describe the conditions to these contracts and the commissions we must pay for solicitation of these contracts in the prospectus supplement.We may provide agents and underwriters with indemnification against certain civil liabilities, including liabilities under the Securities Act of 1933, as amended, or to contribution with respect to payments that the underwriters, dealers or agents or underwriters may be required to make within respect to such liabilities. Agentsthereof. Underwriters, dealers and underwritersagents may be customers of, engage in transactions with, or perform services for us and our affiliates in the ordinary course of business.
All securities we offer, other
Other than
our common stock,
which is listed on the Nasdaq Global Select Market, each of the securities issued hereunder will be
a new
issuesissue of securities,
withwill have no
establishedprior trading
market.market, and may or may not be listed on a national securities exchange. Any
common stock sold pursuant to a prospectus supplement will be listed on the Nasdaq Global Select Market, subject to official notice of issuance. Any underwriters
to whom we sell securities for public offering and sale may make a market in
thesethe securities, but
such underwriters will not be obligated to do so and may discontinue any market making at any time without notice. We cannot
guaranteeassure you that there will be a market for the
liquidity of the trading markets for anyoffered securities.
Any underwriter may engage in overallotment, stabilizing transactions, short covering transactions and penalty bids in accordance with Regulation M under the Exchange Act. Overallotment involves sales in excess of the offering size, which create a short position. Stabilizing transactions permit bids to purchase the underlying security so long as the stabilizing bids do not exceed a specified maximum. Short covering transactions involve purchases of the securities in the open market after the distribution is completed to cover short positions. Penalty bids permit the underwriters to reclaim a selling concession from a dealer when the securities originally sold by the dealer are purchased in a covering transaction to cover short positions. Those activities may cause the price of the securities to be higher than it would otherwise be. If commenced, the underwriters may discontinue any of the activities at any time.
Any underwriters who are qualified market makers on the Nasdaq National Market may engage in passive market making transactions in the securities on the Nasdaq National Market in accordance with Rule 103 of Regulation M, during the business day prior to the pricing of the offering, before the commencement of offers or sales of the securities. Passive market makers must comply with applicable volume and price limitations and must be identified as passive market makers. In general, a passive market maker must display its bid at a price not in excess of the highest independent bid for such security; if all independent bids are lowered below the passive market maker’s bid, however, the passive market maker’s bid must then be lowered when certain purchase limits are exceeded.
The validity of the securities being offered hereby
will beis being passed upon for us by Cooley
Godward LLP, Palo Alto, California. As of the date of this prospectus, certain
partners and associates of Cooley
Godward LLP
attorneys beneficially own an aggregate of
[32,068]71,163 shares of our common stock.
Any underwriters will also be advised about the validity of the securities and other legal matters by their own counsel, which will be named in the applicable prospectus supplement.
The
consolidated financial statements
of NVIDIA Corporation and
subsidiaries as of January 27, 2002 and January 26, 2003, and for eachmanagement’s assessment of the
yearseffectiveness of internal control over financial reporting (which is included in
Management’s Report on Internal Control over Financial Reporting) incorporated in this prospectus by reference to the
three-year periodAnnual Report on Form 10-K for the year ended January
26, 2003 and related financial statement schedule29, 2023 have been
so incorporated
by reference herein, and in the registration statement, in reliance
uponon the report of
KPMGPricewaterhouseCoopers LLP,
an independent
accountants, incorporated by reference herein, and uponregistered public accounting firm, given on the authority of said firm as experts in
accountingauditing and
auditing.accounting.
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the SEC a registration statement on Form S-3 under the Securities Act with respect to the shares of common stock, preferred stock, debt securities and/or warrants that we are offering under this prospectus. This prospectus does not contain all of the information set forth in the registration statement and the exhibits to the registration statement. For further information with respect to us and the securities that we are offering under this prospectus, we refer you to the registration statement and the exhibits and schedules filed as a part of the registration statement.
We are subject to the information and reporting requirements of the Securities Exchange Act of 1934, under which we file periodic reports, proxy statements and other information with the SEC. Copies of the reports, proxy statements and other information may be examined without charge at the Public Reference Section of the SEC, 450 Fifth Street, N.W., Washington, D.C. 20549, and the SEC’s Regional offices located at 5670 Wilshire Boulevard, Los Angeles, California 90036 or on the Internet at www.sec.gov. Copies of all or a portion of such
materials can be obtained from the Public Reference Section of the SEC upon payment of prescribed fees. Please call the SEC at 800-SEC-0330 for further information about the Public Reference Room. These reports, proxy and information statements and other information may also be inspected at the offices of Nasdaq Operations, 1735 K Street, N.W., Washington, D.C. 20006.
We are “incorporating by reference” specified documents that we file with the SEC, which means:
incorporated documents are considered part of this prospectus;we are disclosing important information to you by referring you to those documents; and
information that we file in the future with the SEC automatically will update and supersede earlier information in or incorporated by reference in this prospectus.
We incorporate by reference the documents listed below and any documents that we file in the future with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 after the date of this prospectus and before the completion of the offering (other than current reports furnished under Item 9 or Item 12 of Form 8-K):
our Annual Report on Form 10-K for the fiscal year ended January 26, 2003, filed with the SEC on April 25, 2003;
our Quarterly Report on Form 10-Q for the fiscal quarter ended April 27, 2003, filed with the SEC on May 22, 2003;
our Quarterly Report on Form 10-Q for the fiscal quarter ended July 27, 2003, filed with the SEC on September 9, 2003;
our Quarterly Report on Form 10-Q for the fiscal quarter ended October 26, 2003, filed with the SEC on November 21, 2003;
our Definitive Proxy Statement on Schedule 14A, filed with the SEC on May 20, 2003; and
the description of our common stock set forth in our Registration Statement on Form 8-A, as amended, filed on January 12, 1999, under the Exchange Act.
You may request a copy of these filings, at no cost to you, by writing or telephoning us at: NVIDIA Corporation Attention: Investor Relations, 2701 San Tomas Expressway, Santa Clara, California 95050; Telephone (408)486-2000.
Exhibits to the filings will not be sent, however, unless those exhibits have specifically been incorporated by reference in this document.
In connection with this offering, no person is authorized to give any information or to make any representations not contained in this prospectus. If information is given or representations are made, you may not rely on that information or representations as having been authorized by us. This prospectus is neither an offer to sell nor a solicitation of an offer to buy any securities other than those registered by this prospectus, nor is it an offer to sell or a solicitation of an offer to buy securities where an offer or solicitation would be unlawful. You may not imply from the delivery of this prospectus or from any sale made under this prospectus that our affairs are unchanged since the date of this prospectus or that the information contained in this prospectus is correct as of any time after the date of this prospectus.
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item
ITEM 14.
Other Expenses of Issuance and Distribution. The following table sets forth allthe expenses other than underwriting discountsto be borne by NVIDIA Corporation (“NVIDIA”) in connection with the offerings described in this Registration Statement.
| | | | | |
| SEC registration fee | $1,102,000 |
| The Nasdaq Global Select Market listing fee | * |
| FINRA filing fee | * |
| Printing and engraving expenses | * |
| Legal fees and expenses (other than Blue Sky) | * |
| Accounting fees and expenses | * |
| Blue Sky fees and expenses (including fees of counsel) | * |
| Rating agency fees | * |
| Trustee’s and registrar’s fees and expenses | * |
| Miscellaneous fees and expenses | * |
| Total | * |
* These fees cannot be estimated at this time as they are calculated based on the securities offered and
commissions, payable by usthe number of issuances. An estimate of the aggregate expenses in connection with the sale
and distribution of the securities being
registered. Alloffered will be included in the
amounts shown are estimates except for the registration fee.Registration fee | | $ | 40,450 |
Legal fees and expenses | | $ | 25,000 |
Accounting fees and expenses | | $ | 35,000 |
Printing expenses | | $ | 20,000 |
Miscellaneous | | $ | 4,550 |
| | |
|
|
TOTAL | | $ | 125,000 |
| | |
|
|
applicable prospectus supplement.
Item
ITEM 15.
Indemnification of OfficersDirectors and Directors.Officers.
Under Section 145 of the Delaware General Corporation Law,
we haveNVIDIA has broad powers to indemnify
ourits directors and officers against liabilities they may incur in such capacities, including liabilities under the Securities Act of 1933, as amended (the “Securities Act”).
Our certificate of incorporation, NVIDIA’s Bylaws, as amended and restated on March 3, 2022, require NVIDIA to indemnify its directors and executive officers, and permit NVIDIA to indemnify its other officers, employees and other agents, to the extent permitted by Delaware law.
NVIDIA has entered into indemnity agreements with each of its directors and executive officers. Such indemnity agreements contain provisions which are in some respects broader than the specific indemnification provisions contained in Delaware law.
In addition, NVIDIA’s Amended and Restated Certificate of Incorporation provides for the elimination of liabilitythat its directors shall not be personally liable to NVIDIA or its stockholders for monetary damages for any breach of our directors’ fiduciary duty of care to us and our stockholders. These provisions do not eliminate our directors’ duty of care and, in appropriate circumstances, equitable remedies such an injunctive or other forms of non-monetary relief will remain available under Delaware law. In addition, eachas a director, will continue to be subject toexcept for liability (i) for any breach of the director’s duty of loyalty to us,NVIDIA 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 Delaware General Corporation Law, or (iv) for any transaction from which the director derived an improper personal benefit and for violating Section 174 ofbenefit. If the Delaware General Corporation Law. Law is amended to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of NVIDIA’s directors shall be eliminated or limited to the fullest extent permitted by the Delaware General Corporation Law, as so amended.
The
provision does not affect a director’s responsibilities under any other laws, such as the federal securities laws or state or federal environmental laws.We haveunderwriting agreement to be entered into agreements with our directors and executive officers that require us to indemnify such persons against expenses, judgments, fines, settlements and other amounts actually and reasonably incurred (including expenses of a derivative action) in connection with any proceeding, whether actual or threatened, to which any such person may be made a party by reasonan offering of the factsecurities will contain provisions which indemnify the officers and directors of NVIDIA in certain circumstances.
It is the opinion of the Securities and Exchange Commission that
such person is or was a director or officerindemnification of
us or any of our affiliated enterprises, provided such person acted in good faithdirectors and
in a manner such person reasonably believed to be in or not opposed to the best interests of us and, with respect to any criminal proceeding, had no reasonable cause to believe his or her conduct was unlawful. The indemnification agreements also set forth certain procedures that will apply in the event of a claimofficers for
indemnification thereunder.The underwriting agreement (Exhibit 1.1) will provide for indemnification by any of our underwriters, our directors, our officers who sign the registration statement and our controlling persons for some liabilities, including liabilities arising under the Securities is against public policy and is unenforceable pursuant to Section 14 of the Securities Act.
ITEM 16. Exhibits and Financial Statement SchedulesExhibits.
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Exhibit No. | | Description | | Schedule
/Form | | File Number | | Exhibit | | Filing Date |
| 1.1* | | Form of Underwriting Agreement | | | | | | | | |
| 4.1 | | | | 10-K | | 0-23985 | | 3.1 | | 3/18/2022 |
| 4.2 | | | | 8-K | | 0-23985 | | 3.1 | | 6/6/2022 |
| 4.3 | | | | 8-K | | 0-23985 | | 3.1 | | 3/9/2022 |
| 4.4 | | | | S-1/A | | 333-47495 | | 4.2 | | 4/24/1998 |
| 4.5 | | | | 8-K | | 0-23985 | | 4.1 | | 9/16/2016 |
| 4.6 | | | | 8-K | | 0-23985 | | 4.2 | | 9/16/2016 |
| 4.7* | | Form of Debt Security | | | | | | | | |
| 4.8* | | Form of Deposit Agreement (including form of Deposit Certificate) | | | | | | | | |
| 4.9* | | Form of Warrant Agreement (Stock) (including form of Warrant Certificate) | | | | | | | | |
| 4.10* | | Form of Warrant Agreement (Debt) (including form of Warrant Certificate) | | | | | | | | |
| 4.11* | | Form of Certificate of Designation of Preferred Stock | | | | | | | | |
| 4.12* | | Form of Purchase Contract Agreement (including form of Purchase Contract Certificate) | | | | | | | | |
| 4.13* | | Form of Purchase Unit Agreement (including form of Purchase Unit Certificate) | | | | | | | | |
| 4.14 | | | | 8-K | | 0-23985 | | Annex B-1 to Exhibit 4.2 | | 9/16/2016 |
| 4.15 | | | | 8-K | | 0-23985 | | 4.2 | | 3/31/2020 |
| 4.16 | | | | 8-K | | 0-23985 | | Annex A-1 to Exhibit 4.2 | | 3/31/2020 |
| 4.17 | | | | 8-K | | 0-23985 | | Annex B-1 to Exhibit 4.2 | | 3/31/2020 |
| 4.18 | | | | 8-K | | 0-23985 | | Annex C-1 to Exhibit 4.2 | | 3/31/2020 |
| 4.19 | | | | 8-K | | 0-23985 | | Annex D-1 to Exhibit 4.2 | | 3/31/2020 |
| 4.20 | | | | 8-K | | 0-23985 | | 4.2 | | 6/16/2021 |
| 4.21 | | | | 8-K | | 0-23985 | | Annex A-1 to Exhibit 4.2 | | 6/16/2021 |
| 4.22 | | | | 8-K | | 0-23985 | | Annex B-1 to Exhibit 4.2 | | 6/16/2021 |
| 4.23 | | | | 8-K | | 0-23985 | | Annex C-1 to Exhibit 4.2 | | 6/16/2021 |
| 4.24 | | | | 8-K | | 0-23985 | | Annex D-1 to Exhibit 4.2 | | 6/16/2021 |
| 5.1 | | | | | | | | | | |
| 23.1 | | | | | | | | | | |
| 23.2 | | | | | | | | | | |
Exhibit
Number
| | Description of the Document
|
| |
1.1 | | Underwriting Agreement. (1) |
| |
4.1 | | Amended and Restated Certificate of Incorporation. (2) |
| |
4.2 | | Certificate of Amendment of Amended and Restated Certificate of Incorporation. (3) |
| |
4.3 | | Bylaws, as amended. (4) |
| |
4.4 | | Specimen Stock Certificate. (5) |
| |
4.5 | | Specimen Preferred Stock Certificate and Form of Certificate of Designation of Preferred Stock. (1) |
| |
4.6 | | Second Amended and Restated Investors’ Rights Agreement, dated August 19, 1997 between the Company and the parties indicated thereto and First Amendment to Second Amended and Restated Investors’ Rights Agreement, dated July 22, 1998. (6) |
| |
4.7 | | Second Amendment to Second Amended and Restated Investors’ Rights Agreement, dated April 12, 1999. (7) |
| |
4.8 | | Form of Indemnity Agreement between NVIDIA Corporation and each of its directors and officers. (8) |
| |
4.9 | | Form of Senior Debt Indenture. (9) |
| |
4.10 | | Form of Subordinated Debt Indenture. (9) |
| |
4.11 | | Form of Senior Note. (1) |
| |
4.12 | | Form of Subordinated Note. (1) |
| |
4.13 | | Form of Common Stock Warrant Agreement and Warrant Certificate. (9) |
| |
4.14 | | Form of Preferred Stock Warrant Agreement and Warrant Certificate. (9) |
| |
4.15 | | Form of Debt Securities Warrant Agreement and Warrant Certificate. (9) |
| |
5.1 | | Opinion of Cooley Godward LLP. (9) |
| |
12.1 | | Statement of Computation of Ratio of Earnings to Fixed Charges. (9) |
| |
23.1 | | Consent of KPMG LLP. (9) |
| |
23.2 | | Consent of Cooley Godward LLP (included in Exhibit 5.1). |
| |
| 24.1 | | |
| | | | | | | |
| 25.1 | | |
| | | | | | | |
25.2107 | | Statement of Eligibility of Trustee Under Subordinated Debt Indenture. (9) | | | | | | | | |
* To be filed by amendment or incorporated by reference prior to the offering of securities.
(1) | To be filed by amendment or as an exhibit to a current report of the registrant on Form 8-K and incorporated herein by reference. |
(2) | Previously filed as Exhibit 4.1 to our registration statement on Form S-8 filed on March 23, 1999 (No. 333-74905) and incorporated by reference herein. |
(3) | Previously filed as Exhibit 3.4 to our quarterly report on Form 10-Q for the quarter ended July 28, 2002, filed on September 10, 2002 (No. 000-23985), and incorporated by reference herein. |
(4) | Previously filed as Exhibit 3.1 to our quarterly report on Form 10-Q for the quarter ended July 29, 2001, filed on September 10, 2001 (No. 000-23985), and incorporated by reference herein. |
II-2
(5) | Previously filed as Exhibit 4.2 to our registration statement on Form S-1/A filed April 24, 1998 (No. 333-47495), as amended, and incorporated by reference herein. |
(6) | Previously filed as Exhibit 4.3 to our registration statement on Form S-1/A filed on November 20, 1998 (No. 333-47495), as amended, and incorporated by reference herein. |
(7) | Previously filed as Exhibit 4.4 to our quarterly report on Form 10-Q, for the quarter ended May 2, 1999 filed on June 15, 1999 (No. 000-23985), and incorporated by reference herein. |
(8) | Previously filed as Exhibit 10.1 to our registration statement on Form S-1 filed on March 6, 1998 (No. 333-47495), as amended, and incorporated by reference herein. |
ITEM 17.
UndertakingsUndertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities
Act of 1933;Act;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high
andend of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than
a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement;
and(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
provided, however, that paragraphs
(a)(1)(i)
and , (a)(1)(ii)
doand (a)(1)(iii) shall not apply if
the registration statement is on Form S-3, Form S-8 or Form F-3, and the information required to be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934
(the “Exchange Act”) that are incorporated by reference in the registration
statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act,
of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability under the Securities Act to any purchaser:
(i) Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(ii) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
(5) That, for the purpose of determining liability of the registrant under the Securities Act to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(b) 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
Section 15(d) of the
Securities Exchange Act
of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the
Securities Exchange
Act of 1934)Act) 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.
(c)
To file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the Commission under section 305(b)(2) of the Trust Indenture Act.II-3
(d) 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 Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue.
(e) The undersigned registrant undertakes that: (1) for purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of the registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act of 1933 shall be deemed to be part of the registration statement as of the time it was declared effective; and (2) for the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initialbona fide offering thereof.
II-4
Pursuant to the requirements of the Securities Act of 1933,
the registrantNVIDIA Corporation certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this
registration statementRegistration Statement on Form S-3 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Santa Clara,
County of Santa Clara, State of California, on
December 19, 2003.the 28th day of February 2023.NVIDIA CORPORATION |
| |
By: | | /s/ JEN-HSUN HUANG |
|
|
| | Jen-Hsun Huang
President and Chief Executive Officer
|
NVIDIA CORPORATION
By: /s/ Colette M. Kress
Colette M. Kress
Executive Vice President and
Chief Financial Officer
Each person whose signature appears below
hereby severally constitutes and appoints Jen-Hsun Huang and
Marvin D. Burkett his trueColette M. Kress, and
lawful attorney-in-fact and agent, each
acting alone,of them singly, with
fullthe power to act without the other, as attorneys-in-fact, each with the power of substitution,
and resubstitution, for him
and in his name, place and stead,or her in any and all capacities, to sign any
orand all amendments (including post-effective amendments) to
thethis Registration Statement on Form S-3, and to
sign any registration statement
filed underfor the same offering covered by this Registration Statement that is to be effective upon filing pursuant to Rule 462
promulgated under the Securities Act of 1933,
as amended,and all post-effective amendments thereto, and to file the same, with all exhibits thereto and all documents in connection therewith, with the Securities and Exchange Commission, granting
untoto said
attorney-in-factattorneys-in-fact, and
agent,each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in
and about the premises,connection therewith, as fully to all intents and purposes as he
or she might or could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent,attorneys-in-fact or any of them, or their 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, this
registration statementRegistration Statement on Form S-3 has been signed
below by the following persons in the capacities
andindicated on the
dates indicated:28th day of February 2023.Signature
| | Title
| | | | | | |
| Signature | Title | Date
|
| | |
/s/ JEN-HSUN HUANG
Jen-Hsun Huang | | President, Chief Executive Officer and Director
(Principal Executive Officer) | February 28, 2023 |
December 19, 2003Jen-Hsun Huang |
| | |
/s/ MARVIN D. BURKETT
Marvin D. Burkett
Colette M. Kress | | Executive Vice President and Chief Financial Officer
(Principal Financial and Accounting Officer) | February 28, 2023 |
December 19, 2003Colette M. Kress |
| | |
/s/ TENCH COXE
Tench Coxe
Donald Robertson | Vice President and Chief Accounting Officer
(Principal Accounting Officer) | Director
February 28, 2023 |
| December 19, 2003Donald Robertson |
| | |
/s/ JAMES C. GAITHER
James C. Gaither
Robert K. Burgess | Director | Director
February 28, 2023 |
| December 19, 2003Robert K. Burgess |
| | |
/s/ HARVEY C. JONES
Harvey C. Jones
Tench Coxe | Director | Director
February 28, 2023 |
| Tench Coxe |
| | December 19, 2003 |
| | | | | | | | |
| /s/ John O. Dabiri | Director | February 28, 2023 |
| John O. Dabiri |
| | |
/s/ WILLIAM J. MILLER
William J. Miller
Persis S. Drell | Director | Director
February 28, 2023 |
| December 19, 2003Persis S. Drell |
| | |
/s/ A. BROOKE SEAWELL
A. Brooke Seawell
Dawn Hudson | Director | Director
February 28, 2023 |
| December 19, 2003Dawn Hudson |
| | |
/s/ MARK A. STEVENS
Mark A. Stevens
Harvey C. Jones | Director | Director
| | December 19, 2003February 28, 2023 |
II-5
EXHIBITS INDEX
Exhibit
Number
| | Description of the Document
Harvey C. Jones |
| | |
1.1/s/ Michael G. McCaffery | Director | Underwriting Agreement. (1)February 28, 2023 |
| Michael G. McCaffery |
| | |
4.1/s/ Stephen C. Neal | Director | Amended and Restated Certificate of Incorporation. (2)February 28, 2023 |
| Stephen C. Neal |
| | |
4.2/s/ Mark L. Perry | Director | Certificate of Amendment of Amended and Restated Certificate of Incorporation. (3)February 28, 2023 |
| Mark L. Perry |
| | |
4.3/s/ A. Brooke Seawell | Director | Bylaws, as amended. (4)February 28, 2023 |
| A. Brooke Seawell |
| | |
4.4/s/ Aarti Shah | Director | Specimen Stock Certificate. (5)February 28, 2023 |
| Aarti Shah |
| | |
4.5/s/ Mark A. Stevens | Director | Specimen Preferred Stock Certificate and Form of Certificate of Designation of Preferred Stock. (1)February 28, 2023 |
| Mark A. Stevens |
| |
4.6 | | Second Amended and Restated Investors’ Rights Agreement, dated August 19, 1997 between the Company and the parties indicated thereto and First Amendment to Second Amended and Restated Investors’ Rights Agreement, dated July 22, 1998. (6) |
| |
4.7 | | Second Amendment to Second Amended and Restated Investors’ Rights Agreement, dated April 12, 1999. (7) |
| |
4.8 | | Form of Indemnity Agreement between NVIDIA Corporation and each of its directors and officers. (8) |
| |
4.9 | | Form of Senior Debt Indenture. (9) |
| |
4.10 | | Form of Subordinated Debt Indenture. (9) |
| |
4.11 | | Form of Senior Note. (1) |
| |
4.12 | | Form of Subordinated Note. (1) |
| |
4.13 | | Form of Common Stock Warrant Agreement and Warrant Certificate. (9) |
| |
4.14 | | Form of Preferred Stock Warrant Agreement and Warrant Certificate. (9) |
| |
4.15 | | Form of Debt Securities Warrant Agreement and Warrant Certificate. (9) |
| |
5.1 | | Opinion of Cooley Godward LLP. (9) |
| |
12.1 | | Statement of Computation of Ratio of Earnings to Fixed Charges. (9) |
| |
23.1 | | Consent of KPMG LLP. (9) |
| |
23.2 | | Consent of Cooley Godward LLP (included in Exhibit 5.1). |
| |
24.1 | | Power of Attorney (included in the signature page). |
| |
25.1 | | Statement of Eligibility of Trustee Under Senior Debt Indenture. (9) |
| |
25.2 | | Statement of Eligibility of Trustee Under Subordinated Debt Indenture. (9) |
(1) | To be filed by amendment or as an exhibit to a current report of the registrant on Form 8-K and incorporated herein by reference. |
(2) | Previously filed as Exhibit 4.1 to our registration statement on Form S-8 filed on March 23, 1999 (No. 333-74905) and incorporated by reference herein. |
(3) | Previously filed as Exhibit 3.4 to our quarterly report on Form 10-Q for the quarter ended July 28, 2002, filed on September 10, 2002 (No. 000-23985), and incorporated by reference herein. |
(4) | Previously filed as Exhibit 3.1 to our quarterly report on Form 10-Q for the quarter ended July 29, 2001, filed on September 10, 2001 (No. 000-23985), and incorporated by reference herein. |
(5) | Previously filed as Exhibit 4.2 to our registration statement on Form S-1/A filed on April 24, 1998 (No. 333-47495), as amended, and incorporated by reference herein. |
(6) | Previously filed as Exhibit 4.3 to our registration statement on Form S-1/A filed on November 20, 1998 (No. 333-47495), as amended, and incorporated by reference herein. |
(7) | Previously filed as Exhibit 4.4 to our quarterly report on Form 10-Q, for the quarter ended May 2, 1999 filed on June 15, 1999 (No. 000-23985), and incorporated by reference herein. |
(8) | Previously filed as Exhibit 10.1 to our registration statement on Form S-1 filed on March 6, 1998 (No. 333-47495), as amended, and incorporated by reference herein. |
