United States securities and exchange commission logo
December 30, 2020
Harry A. Wolin
Senior Vice President, General Counsel and Corporate Secretary
Advanced Micro Devices, Inc.
2485 Augustine Drive
Santa Clara, California 95054
Re: Advanced Micro
Devices, Inc.
Registration
Statement on Form S-4
Filed December 4,
2020
File No. 333-251119
Dear Mr. Wolin:
We have reviewed your registration statement and have the
following comments. In
some of our comments, we may ask you to provide us with information so
we may better
understand your disclosure.
Please respond to this letter by amending your registration
statement and providing the
requested information. If you do not believe our comments apply to your
facts and
circumstances or do not believe an amendment is appropriate, please tell
us why in your
response.
After reviewing any amendment to your registration statement and
the information you
provide in response to these comments, we may have additional comments.
Registration Statement on Form S-4 filed December 4, 2020
Cover Page
1. Please revise the cover
page to state the amount of shares of common stock that Advanced
Micro Devices is
expected to issue in the merger. Refer to Item 501(b)(2) of Regulation
S-K.
Summary, page 14
2. Please expand the
disclosure on pages 15-17 to disclose the advisory fees, including the
amounts contingent upon
completion of the merger.
Harry A. Wolin
FirstName LastNameHarry A. Wolin
Advanced Micro Devices, Inc.
Comapany30,
December NameAdvanced
2020 Micro Devices, Inc.
December
Page 2 30, 2020 Page 2
FirstName LastName
Interests of AMD Directors and Executive Officers in the Merger, page 20
3. We note your disclosure that the AMD directors and executive officers
have interests in
the merger that may be different from the interests of AMD
stockholders generally.
Please revise your disclosure in this section to quantify the
interests of the directors and
executive officers. Please make similar revisions to the section
entitled "Interests of
Xilinx Directors and Executive Officers in the Merger" on page 20.
Risks Relating to the Merger, page 38
4. Please include a risk factor to highlight that the combined company
will record goodwill
and intangibles that could become impaired and affect the operating
results.
The merger will involve substantial costs, page 46
5. Please quantify, if practical, the "substantial costs" involved in the
merger.
Background of the Merger, page 74
6. Please revise the disclosure to clarify why AMD's and Xilinx's
respective full boards each
decided to engage two financial advisors in connection with the merger
transaction.
7. Please ensure that you have described how AMD and Xilinx selected
their financial
advisors. Refer to Item 1015(b)(3) of Regulation M-A. For example, we
note that the
disclosure on pages 98 and 117 appears to discuss the qualifications
of DBO and Credit
Suisse, respectively, but does not describe the method of selection.
Recommendation of the AMD Board of Directors; AMD's Reasons for the Merger,
page 89
8. Please revise to clarify the basis for your references on page 89 to
the "industry's strongest
portfolio of high performance processors" and "expanding AMD's total
addressable
market to $110 billion."
Opinions of AMD's Financial Advisors, page 98
9. We note your disclosure here and on page 118 that the four fairness
opinions were
rendered to the AMD and Xilinx boards on October 26, 2020 and
subsequently confirmed
in writing. Please disclose whether there have been any material
changes in either AMD's
or Xilinx's operations or performance since the opinions were
rendered. Please also
disclose whether there have been any material changes to the
projections or assumptions
upon which the financial advisors based their opinions. Finally,
please disclose
whether any material changes are anticipated to occur before the
special meetings.
10. We note that the financial advisors selected certain companies for
purposes of
comparison. Please disclose whether any companies meeting the
selection criteria were
excluded from the analyses, and if so, why they were excluded.
Harry A. Wolin
FirstName LastNameHarry A. Wolin
Advanced Micro Devices, Inc.
Comapany30,
December NameAdvanced
2020 Micro Devices, Inc.
December
Page 3 30, 2020 Page 3
FirstName LastName
Opinion of DBO, page 98
11. We note the disclosure on page 98 that DBO's opinion "was directed to
the AMD board of
directors" and the language on page B-3 of Annex B to the effect that
"[t]his opinion is for
the information of the Board of Directors of Parent only ... consent."
Please revise your
disclosure to state that DBO has consented to the use of the opinion
in your filing.
Other Matters, page 117
12. Please elaborate on the additional payments of up to $10 million that
may be made to
DBO and Credit Suisse. Please explain how the amount of the payment
will be
determined. Please make similar revisions to your disclosure on page
126 with respect to
additional $40 million that Xilinx may pay to Morgan Stanley.
Explanatory Note Regarding the Merger Agreement, page 148
13. Notwithstanding the disclaimers, the representations, warranties, and
covenants in the
merger agreement filed with the proxy statement/prospectus constitute
public disclosure
for purposes of the federal securities laws, and you are responsible
for considering
whether additional specific disclosures of material information about
material contractual
provisions of the merger agreement are required to make the statements
in the proxy
statement/prospectus not misleading. Please include disclosure
acknowledging that if
specific material facts exist that contradict the representations,
warranties, and covenants
in the merger agreement, you have provided corrective disclosure in
the proxy
statement/prospectus. Furthermore, if subsequent information
concerning the subject
matter of the representations, warranties, and covenants in the merger
agreement may or
may not be fully reflected in your public disclosures, please clarify
that your public
disclosures will include any material information necessary to provide
stockholders a
materially complete understanding of the merger agreement disclosures.
U.S. Federal Income Tax Consequences of the Merger, page 198
14. Please revise to clarify why counsel carves out "the unearned income
Medicare
contribution tax" in this context.
Comparison of Stockholders' Rights, page 201
15. We note the exclusive forum provision in Section 7 of Article VI of
the amended and
restated bylaws filed as Exhibit 3.1 to Advanced Micro Devices' 8-K
filed on October 27,
2020 and the provision in Article XII of the bylaws filed as Exhibit
3.1 to Xilinx's 8-K
filed on October 27, 2020. Please disclose such provision in the
context of the
comparison of stockholders' rights.
16. We note Section 7 of Article VI of Advanced Micro Devices' amended and
restated
bylaws contains an exclusive forum provision that identifies the Court
of Chancery of the
State of Delaware as the sole and exclusive forum for certain
litigation, including any
Harry A. Wolin
Advanced Micro Devices, Inc.
December 30, 2020
Page 4
derivative action. Please disclose whether this provision applies
to actions arising under
the Securities Act or Exchange Act. In that regard, we note that Section
27 of the
Exchange Act creates exclusive federal jurisdiction over all suits
brought to enforce any
duty or liability created by the Exchange Act or the rules and
regulations thereunder, and
Section 22 of the Securities Act creates concurrent jurisdiction for
federal and state courts
over all suits brought to enforce any duty or liability created by the
Securities Act or the
rules and regulations thereunder. If the provision applies to Securities
Act claims, please
also revise your disclosure to state that there is uncertainty as to
whether a court would
enforce such provision and that investors cannot waive compliance with
the federal
securities laws and the rules and regulations thereunder. If this
provision does not apply to
actions arising under the Securities Act or Exchange Act, please also
ensure that the
exclusive forum provision in the governing documents states this
clearly, or tell us how
you will inform investors in future filings that the provision does not
apply to any actions
arising under the Securities Act or Exchange Act.
Exhibits 8.1 and 8.2, page II-2
17. We note that you have filed draft opinions. Please file executed tax
opinions in a pre-
effective amendment to the registration statement.
Exhibit 99.2, page II-2
18. We note that the consent applies only to the registration statement and
not to any
amendments or supplements therein. Please file an updated consent as
appropriate.
We remind you that the company and its management are responsible for
the accuracy
and adequacy of their disclosures, notwithstanding any review, comments, action
or absence of
action by the staff.
Refer to Rules 460 and 461 regarding requests for acceleration. Please
allow adequate
time for us to review any amendment prior to the requested effective date of
the registration
statement.
You may contact Mindy Hooker, Staff Accountant, at 202-551-3732 or Anne
McConnell,
Senior Accountant, at 202-551-3709 if you have questions regarding comments on
the financial
statements and related matters. Please contact Thomas Jones, Staff Attorney, at
202-551-3602 or
Erin Purnell, Senior Attorney, at 202-551-3454 with any other questions.
Sincerely,
FirstName LastNameHarry A. Wolin
Comapany NameAdvanced Micro Devices, Inc. Division of
Corporation Finance
Office of
Manufacturing
December 30, 2020 Page 4
cc:
FirstName Tad J. Freese
LastName