Exhibit 1.01
SYMANTEC CORPORATION
2.750% Senior Notes Due 2015
4.200% Senior Notes Due 2020
Underwriting Agreement
September 13, 2010
J.P. Morgan Securities LLC
Morgan Stanley & Co. Incorporated
UBS Securities LLC
As Representatives of the Underwriters
c/o J.P. Morgan Securities LLC
383 Madison Avenue — 3
rd
Floor
New York, NY 10179
c/o Morgan Stanley & Co. Incorporated
1585 Broadway
New York, NY 10036
c/o UBS Securities LLC
677 Washington Boulevard
Stamford, CT 06901
Ladies and Gentlemen:
Symantec Corporation
,
a corporation organized under the laws of Delaware (the “Company”),
proposes to sell to the several underwriters named in Schedule II hereto (the “Underwriters”), for
whom you (the “Representatives”) are acting as representatives, 2.750% Senior Notes due 2015 of the
Company in the principal amounts identified on Schedule I hereto (the “2015 Notes”) and 4.200%
Senior Notes due 2020 of the Company in the principal amounts identified on Schedule I hereto (the
“2020 Notes”, and together with the 2015 Notes, the “Securities”) to be issued under an indenture
(the “Indenture”), dated as of September 16, 2010, between the Company and Wells Fargo Bank,
National Association, as trustee (the “Trustee”). To the extent there are no additional
Underwriters listed on Schedule II other than you, the term Representatives as used herein shall
mean you as the Underwriters, and the terms Representatives and Underwriters shall mean either the
singular or plural as the context requires.
Any reference herein to the Registration Statement, the Base Prospectus, any Preliminary
Prospectus or the Final Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 which were filed under the
Exchange Act on or before the Effective Date of the Registration Statement or the issue date of the
Base Prospectus, any Preliminary Prospectus or the Final Prospectus, as the case
may be; and any reference herein to the terms “amend,” “amendment” or “supplement” with
respect to the Registration Statement, the Base Prospectus, any Preliminary Prospectus or the Final
Prospectus shall be deemed to refer to and include the filing of any document under the Exchange
Act after the Effective Date of the Registration Statement or the issue date of the Base
Prospectus, any Preliminary Prospectus or the Final Prospectus, as the case may be, deemed to be
incorporated therein by reference. Certain terms used herein are defined in Section 21 hereof.
1.
Representations and Warranties
. The Company represents and warrants to, and agrees
with, each Underwriters as set forth below in this Section 1.
(a) The Company meets the requirements for use of Form S-3 under the Act and has prepared and
filed with the Commission an automatic shelf registration statement, as defined in Rule 405 (the
file number of which is set forth in Schedule I hereto) on Form S-3, including a related Base
Prospectus, for registration under the Act of the offering and sale of the Securities. Such
Registration Statement, including any amendments thereto filed prior to the Execution Time, became
effective upon filing. The Company may have filed with the Commission, as part of an amendment to
the Registration Statement or pursuant to Rule 424(b), one or more preliminary prospectus
supplements relating to the Securities, each of which has previously been furnished to you. The
Company will file with the Commission a final prospectus supplement relating to the Securities in
accordance with Rule 424(b). As filed, such final prospectus supplement shall contain all
information required by the Act and the rules thereunder, and, except to the extent the
Representatives shall agree in writing to a modification, shall be in all substantive respects in
the form furnished to you prior to the Execution Time or, to the extent not completed at the
Execution Time, shall contain only such specific additional information and other changes (beyond
that contained in the Base Prospectus and any Preliminary Prospectus) as the Company has advised
you, prior to the Execution Time, will be included or made therein. The Registration Statement, at
the Execution Time, meets the requirements set forth in Rule 415(a)(1)(x).
(b) On each Effective Date, the Registration Statement did, and when the Final Prospectus is
first filed in accordance with Rule 424(b) and on the Closing Date (as defined herein), the Final
Prospectus (and any supplement thereto) will, comply in all material respects with the applicable
requirements of the Act, the Exchange Act and the Trust Indenture Act and the respective rules
thereunder; on each Effective Date and at the Execution Time, the Registration Statement did not
and will not contain any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements therein not misleading;
on the Effective Date and on the Closing Date the Indenture did or will comply in all material
respects with the applicable requirements of the Trust Indenture Act and the rules thereunder; and
on the date of any filing pursuant to Rule 424(b) and on the Closing Date, the Final Prospectus
(together with any supplement thereto) will not include any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; provided, however, that the Company
makes no representations or warranties as to (i) that part of the Registration Statement which
shall constitute the Statement of Eligibility and Qualification (Form T-1) under the Trust
Indenture Act of the Trustee or (ii) the information contained in or omitted from the Registration
Statement or the Final Prospectus (or any supplement thereto) based upon and in conformity with
information furnished in writing to the Company by or on
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behalf of any Underwriter through the Representatives specifically for use therein (or any
supplement thereto), it being understood and agreed that the only such information furnished by or
on behalf of any Underwriter consists of the information described as such in Section 8(b) hereof.
(c) The Disclosure Package did not, as of the Time of Sale, and at all times through the
Closing Date will not, and each electronic road show, when considered together with the Disclosure
Package as a whole, does not contain any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading. The preceding sentence does not apply to statements in
or omissions from the Disclosure Package based upon and in conformity with written information
furnished to the Company by any Underwriter through the Representatives specifically for use
therein, it being understood and agreed that the only such information furnished by or on behalf of
any Underwriter consists of the information described as such in Section 8(b) hereof.
(d) (i) At the time of filing the Registration Statement, (ii) at the time of the most recent
amendment thereto for the purposes of complying with Section 10(a)(3) of the Act (whether such
amendment was by post-effective amendment, incorporated report filed pursuant to Sections 13 or
15(d) of the Exchange Act or form of prospectus), (iii) at the time the Company or any person
acting on its behalf (within the meaning, for this clause only, of Rule 163(c)) made any offer
relating to the Securities in reliance on the exemption in Rule 163, and (iv) at the Execution Time
(with such date being used as the determination date for purposes of this clause (iv)), the Company
was or is (as the case may be) a Well-Known Seasoned Issuer. The Company agrees to pay the fees
required by the Commission relating to the Securities within the time required by Rule 456(b)(1)
without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r).
(e) (i) At the earliest time after the filing of the Registration Statement that the Company
or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2)) of
the Securities and (ii) as of the Execution Time (with such date being used as the determination
date for purposes of this clause (ii)), the Company was not and is not an Ineligible Issuer (as
defined in Rule 405).
(f) Each Issuer Free Writing Prospectus and the final term sheet prepared and filed pursuant
to Section 5(a) hereto does not include any information that conflicts with the information
contained in the Registration Statement, including any document incorporated therein by reference
and any prospectus supplement deemed to be a part thereof that has not been superseded or modified.
The foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing
Prospectus based upon and in conformity with written information furnished to the Company by any
Underwriter through the Representatives specifically for use therein, it being understood and
agreed that the only such information furnished by or on behalf of any Underwriter consists of the
information described as such in Section 8(b) hereof.
(g) The Company is not, and after giving effect to the offer and sale of the Securities and
the application of the proceeds thereof as described in the Disclosure Package and the Final
Prospectus will not be, required to register as an “investment company” as defined in the
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Investment Company Act, without taking account of any exemption arising out of the number of
holders of the Company’s securities.
(h) The Company has not paid or agreed to pay to any person any compensation for soliciting
another to purchase the Securities (except as contemplated in this Agreement).
(i) The Company has not taken, directly or indirectly, any action designed to or that has
constituted or that might reasonably be expected to cause or result, under the Exchange Act or
otherwise, in stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Securities.
(j) The Company has been duly incorporated and is validly existing as a corporation in good
standing under the laws of the State of Delaware with full corporate power and authority to own or
lease, as the case may be, and to operate its properties and conduct its business as described in
the Disclosure Package and the Final Prospectus and is duly qualified to do business as a foreign
corporation and is in good standing under the laws of each jurisdiction that requires such
qualification, except for such jurisdictions where the failure to be in good standing, have such
corporate power or authority, or to so qualify would not, individually or in the aggregate, have a
material adverse effect on the condition (financial or otherwise), prospects, earnings, business or
properties of the Company and its subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business (a “Material Adverse Effect”); and each of the
significant subsidiaries (as identified in paragraph (hh) below) has been duly incorporated or
formed and is validly existing as a corporation or limited liability company in good standing under
the laws of the jurisdiction in which it is chartered, organized or formed, except where the
failure to be so organized, qualified or in good standing would not, individually or in the
aggregate, have a Material Adverse Effect.
(k) All the outstanding shares of capital stock of each significant subsidiary have been duly
authorized and validly issued and are fully paid and nonassessable, and, except as otherwise set
forth in the Disclosure Package and the Final Prospectus, all outstanding shares of capital stock
of the significant subsidiaries are owned by the Company either directly or through wholly owned
subsidiaries (except for nominal shares held by other shareholders as required in certain
jurisdictions) free and clear of any security interest, claim, lien or encumbrance (other than
intercompany security interests, claims, liens and encumbrances).
(l) The Company’s authorized capitalization is as set forth in the Disclosure Package and the
Final Prospectus; the outstanding shares of the Company’s common stock, par value $0.01 per share
(the “Common Stock”), have been duly authorized and validly issued and are fully paid and
nonassessable; and, except as set forth in the Disclosure Package and the Final Prospectus, no
options, warrants or other rights to purchase, agreements or other obligations to issue, or rights
to convert any obligations into or exchange any securities for, shares of capital stock of or
ownership interests in the Company are outstanding. There is no franchise, contract or other
document of a character required to be described in the Registration Statement or Final Prospectus,
or to be filed as an exhibit thereto, which is not described or filed as required (and the
Preliminary Prospectus contains in all material respects the same description of the foregoing
matters contained in the Final Prospectus).
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(m) The statements in the Disclosure Package and the Final Prospectus under the headings
“United States Federal Income Tax Considerations” and the “Description of Notes” fairly summarize
the matters therein described in all material respects.
(n) This Agreement has been duly authorized, executed and delivered by the Company.
(o) No consent, approval, authorization, filing with or order of any court or governmental
agency or body is required in connection with the issuance and sale of the Securities or the
consummation by the Company of the transactions contemplated herein, except such as have been
obtained under the Act and the Trust Indenture Act and such as may be required under the blue sky
laws of any jurisdiction in which the Securities are offered and sold.
(p) None of the execution and delivery of this Agreement, the Indenture, the issuance and sale
of the Securities, the consummation of any other of the transactions herein or therein contemplated
or the fulfillment of the terms hereof or thereof will conflict with, or result in a breach or
violation or imposition of any lien, charge or encumbrance upon any property or assets of the
Company or any of its significant subsidiaries pursuant to, (i) the charter or bylaws or comparable
constituting documents of the Company or any of its subsidiaries; (ii) the terms of any indenture,
contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement,
obligation, condition, covenant or instrument to which the Company or any of its significant
subsidiaries is a party or bound or to which its or their property is subject; or (iii) any law or
statute, or any rule, regulation, judgment, order or decree of any court, regulatory body,
administrative agency, governmental body, arbitrator or other authority having jurisdiction over
the Company or any of its subsidiaries or any of its or their properties, except, in the case of
clause (ii) above, for any such conflict, breach or violation as would not, individually or in the
aggregate, have a Material Adverse Effect.
(q) The Indenture has been duly authorized and, assuming due authorization, execution and
delivery thereof by the Trustee, when executed and delivered by the Company, will constitute a
legal, valid and binding instrument enforceable against the Company in accordance with its
respective terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in
effect and to general principles of equity, including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing, regardless of whether considered in a proceeding in
equity or at law);
(r) The Securities have been duly authorized and, when executed and authenticated in
accordance with the terms of the Indenture and delivered to and paid for by the Underwriters
pursuant to this Agreement, will constitute legal, valid and binding obligations of the Company
entitled to the benefits of the Indenture (subject, as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights
generally from time to time in effect and to general principles of equity, including, without
limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of
whether considered in a proceeding in equity or at law);
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(s) The consolidated historical financial statements and schedules of the Company and its
consolidated subsidiaries included or incorporated by reference in the Registration Statement, the
Disclosure Package and the Final Prospectus present fairly in all material respects the financial
condition, results of operations and cash flows of the Company as of the dates and for the periods
indicated, comply as to form in all material respects with the applicable accounting requirements
of the Act and have been prepared in conformity with generally accepted accounting principles in
the United States applied on a consistent basis throughout the periods involved (except as
otherwise noted therein); to the extent that the Registration Statement, the Disclosure Package and
the Final Prospectus contain any non-GAAP financial measures (as defined in Regulation S-K under
the Act) such measures have been provided in compliance with Regulation G and, as applicable, Item
10 of Regulation S-K.
(t) No action, suit or proceeding by or before any court or governmental agency, authority or
body or any arbitrator involving the Company or any of its significant subsidiaries or its or their
property is pending or, to the best knowledge of the Company, threatened in writing that (i) could
reasonably be expected to have a material adverse effect on the performance of this Agreement or
the Indenture or the consummation of any of the transactions contemplated hereby or thereby or (ii)
if the subject of a reasonably possible unfavorable decision, ruling or finding, could reasonably
be expected to have a Material Adverse Effect, except as set forth in or contemplated in the
Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(u) Neither the Company nor any of its significant subsidiaries is in violation or default of
(i) any provision of its charter or bylaws or comparable constituting documents; (ii) the terms of
any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other
agreement, obligation, condition, covenant or instrument to which it is a party or bound or to
which its property is subject; or (iii) any statute, law, rule, regulation, judgment, order or
decree applicable to the Company or any of its significant subsidiaries of any court, regulatory
body, administrative agency, governmental body, arbitrator or other authority having jurisdiction
over the Company or such significant subsidiary or any of its properties, as applicable, except, in
the case of each of clauses (ii) and (iii) above, for any such violation or default as would not,
individually or in the aggregate, have a Material Adverse Effect.
(v) KPMG LLP, who have delivered their reports with respect to the audited consolidated
financial statements and schedule, and with respect to management’s assessment of the effectiveness
of internal control over financial reporting and the effectiveness of internal control over
financial reporting included or incorporated by reference in the Disclosure Package and the Final
Prospectus, is an independent registered public accounting firm with respect to the Company within
the meaning of the Act and the applicable rules and regulations thereunder adopted by the SEC and
the Public Company Accounting Oversight Board (United States).
(w) There are no stamp or other issuance or transfer taxes or duties or other similar fees or
charges required to be paid in connection with the execution and delivery of this Agreement or the
issuance or sale of the Securities.
(x) The Company has filed all applicable tax returns that are required to be filed or has
requested extensions thereof (except in any case in which the failure so to file would
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not have a Material Adverse Effect and except as set forth in or contemplated in the
Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto)) and
has paid all taxes required to be paid by it and any other assessment, fine or penalty levied
against it, to the extent that any of the foregoing is due and payable, except for any such
assessment, fine or penalty that is currently being contested in good faith or as would not have a
Material Adverse Effect and except as set forth in or contemplated in the Disclosure Package and
the Final Prospectus (exclusive of any amendment or supplement thereto).
(y) No labor problem or dispute with the employees of the Company or any of its significant
subsidiaries exists or is threatened or imminent, and the Company is not aware of any existing or
imminent labor disturbance by the employees of any of its or its significant subsidiaries’
principal suppliers, contractors or customers, except, in any case, as would not have a Material
Adverse Effect and except as set forth in or contemplated in the Disclosure Package and the Final
Prospectus (exclusive of any amendment or supplement thereto).
(z) To the extent not self-insured, the Company and each of its subsidiaries are insured by
insurers of recognized financial responsibility against such losses and risks and in such amounts
as are prudent and customary in the businesses in which they are engaged; and neither the Company
nor any of its subsidiaries has any reason to believe that it will not be able to renew its
existing insurance coverage as and when such coverage expires or to obtain similar coverage from
similar insurers as may be necessary to continue its business at a cost that would not have a
Material Adverse Effect except as set forth in or contemplated in the Disclosure Package and the
Final Prospectus (exclusive of any amendment or supplement thereto); to the extent the Company or
any of its subsidiaries is self-insured, such entity is self-insured against losses in a manner
such entity believes is commercially reasonable.
(aa) No subsidiary of the Company is currently prohibited, directly or indirectly, from paying
any dividends to the Company, from making any other distribution on such subsidiary’s capital
stock, from repaying to the Company any loans or advances to such subsidiary from the Company or
from transferring any of such subsidiary’s property or assets to the Company, or any other
subsidiary of the Company, as the case may be, except as described in or contemplated in the
Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(bb) Except as would not have a Material Adverse Effect, the Company and its subsidiaries own,
possess, license or have other rights to use on reasonable terms, all patents, trade and service
marks, trade names, copyrights, domain names (in each case including all registrations and
applications to register same), inventions, trade secrets, technology, know-how, and other
intellectual property, (collectively, the “Intellectual Property”) necessary for the conduct of the
Company’s business as now conducted or as proposed in the Disclosure Package and the Final
Prospectus to be conducted. Except as set forth in the Disclosure Package and the Final Prospectus
and except in each case as would not have a Material Adverse Effect, (i) the Company owns, or has
rights to use under license, all such Intellectual Property free and clear in all material respects
of all adverse claims, liens or other encumbrances; (ii) to the knowledge of the Company, there is
no material infringement by third parties of any such Intellectual Property; (iii) there is no
pending or, to the Company’s knowledge, threatened action, suit, proceeding or claim by any third
party challenging the Company’s or its subsidiaries’ rights in or to any such
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Intellectual Property, and the Company is unaware of any facts which would form a reasonable
basis for any such claim; (iv) there is no pending or, to the Company’s knowledge, threatened
action, suit, proceeding or claim by any third party challenging the validity, scope or
enforceability of any such Intellectual Property, and the Company is unaware of any facts that
would form a reasonable basis for any such claim; (v) there is no pending or, to the Company’s
knowledge, threatened action, suit, proceeding or claim by any third party that the Company or any
subsidiary infringes or otherwise violates any patent, trademark, copyright, trade secret or other
proprietary rights of any third party, and the Company is unaware of any other fact which would
form a reasonable basis for a claim of such infringement or violation; and (vi) to the knowledge of
the Company, there is no valid and subsisting patent or published patent application that would
preclude the Company, in any material respect, from practicing any such Intellectual Property.
(cc) The statements contained in the Disclosure Package and the Final Prospectus under the
captions “Risk Factors — Third parties claiming that we infringe their proprietary rights could
cause us to incur significant legal expenses and prevent us from selling our products,” “Risk
Factors — If we do not protect our proprietary information and prevent third parties from making
unauthorized use of our products and technology, our financial results could be harmed,” “Risk
Factors — Some of our products contain “open source” software, and any failure to comply with the
terms of one or more of these open source licenses could negatively affect our business” and “Risk
Factors — Our software products and website may be subject to intentional disruption that could
adversely impact our reputation and future sales” and “Business—Intellectual Property”, insofar as
such statements summarize legal matters, agreements, documents or proceedings discussed therein,
are materially accurate and fair summaries of such legal matters, agreements, documents or
proceedings.
(dd) Except as set forth in or contemplated in the Disclosure Package and the Final Prospectus
(exclusive of any amendment or supplement thereto) and except as would not have a Material Adverse
Effect, the Company and its subsidiaries possess all licenses, certificates, permits and other
authorizations issued by all applicable regulatory authorities necessary to conduct their
respective businesses, and (subject to the foregoing exceptions) the Company and each of its
subsidiaries has not received any notice of proceedings relating to the revocation or modification
of any such certificate, authorization or permit.
(ee) The Company and its subsidiaries, taken as a whole, maintain a system of internal
accounting controls sufficient to provide reasonable assurance that (i) transactions are executed
in accordance with management’s general or specific authorizations; (ii) transactions are recorded
as necessary to permit preparation of financial statements in conformity with generally accepted
accounting principles in the United States and to maintain asset accountability; (iii) access to
assets is permitted only in accordance with management’s general or specific authorization; and
(iv) the recorded accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences. The internal controls
over financial reporting described above were effective as of July 2, 2010, and the Company is not
aware of any material weakness in such internal controls over financial reporting.
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(ff) The Company maintains “disclosure controls and procedures” (as such term is defined in
Rule 13a-15(e) under the Exchange Act) designed to ensure that information required to be disclosed
by the Company in reports that it files or submits under the Exchange Act is recorded, processed,
summarized and reported within the time periods specified in the Commission’s rules and forms, such
disclosure controls and procedures were effective as of July 2, 2010.
(gg) The Company and its subsidiaries are (i) in compliance with any and all applicable laws
and regulations relating to the protection of human health and safety, the environment or hazardous
or toxic substances or wastes, pollutants or contaminants (“Environmental Laws”); (ii) have
received and are in compliance with all permits, licenses or other approvals required of them under
applicable Environmental Laws to conduct their respective businesses; and (iii) have not received
notice of any actual or potential liability under any Environmental Law, except where such
non-compliance with Environmental Laws, failure to receive required permits, licenses or other
approvals, or liability would not, individually or in the aggregate, have a Material Adverse
Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus
(exclusive of any amendment or supplement thereto).
(hh) The subsidiaries listed on Annex A attached hereto are the only “significant
subsidiaries” of the Company (as defined in Rule l-02 of Regulation S-X). References herein to
“significant subsidiaries” are to the subsidiaries so listed. All other subsidiaries of the
Company, when taken together, do not represent a “significant subsidiary” as so defined (except
that, for this purpose only, “30 percent” shall be substituted for all references to “10 percent”
in such definition).
(ii) The operations of the Company and its subsidiaries are and have been conducted at all
times in compliance with applicable financial recordkeeping and reporting requirements and the
money laundering statutes of all jurisdictions, the rules and regulations thereunder and any
related or similar rules, regulations or guidelines, issued, administered or enforced by any
governmental agency (collectively, the “Money Laundering Laws”) and no action, suit or proceeding
by or before any court or governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the
best knowledge of the Company, threatened.
(jj) None of the Company, any of its subsidiaries or, to the knowledge of the Company, any
director, officer, agent, employee or Affiliate of the Company or any of its subsidiaries is
currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the
U.S. Department of the Treasury (“OFAC”); and the Company will not directly or indirectly use the
proceeds of the offering of the Securities hereunder, or lend, contribute or otherwise make
available such proceeds to any subsidiary, joint venture partner or other person or entity, for the
purpose of financing the activities of any person currently subject to any U.S. sanctions
administered by OFAC.
(kk) There is and has been no failure on the part of the Company and any of the Company’s
directors or officers, in their capacities as such, to comply in all material respects with any
provision of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in
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connection therewith (the “Sarbanes-Oxley Act”), including Section 402 relating to loans and
Sections 302 and 906 relating to certifications.
(ll) Neither the Company nor any of its subsidiaries nor, to the knowledge of the Company, any
director, officer, agent, employee or Affiliate of the Company or any of its subsidiaries is aware
of or has taken any action, directly or indirectly, that would result in a violation by such
persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations
thereunder (the “FCPA”), including, without limitation, making use of the mails or any means or
instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to
pay or authorization of the payment of any money, or other property, gift, promise to give, or
authorization of the giving of anything of value to any “foreign official” (as such term is defined
in the FCPA) or any foreign political party or official thereof or any candidate for foreign
political office, in contravention of the FCPA; and the Company, its subsidiaries and, to the
knowledge of the Company, its Affiliates have conducted their businesses in compliance with the
FCPA and have instituted and maintain policies and procedures designed to ensure, and which are
reasonably expected to continue to ensure, continued compliance therewith.
(mm) Since the date of the most recent financial statements of the Company included or
incorporated by reference in the Registration Statement, the Disclosure Package and the Final
Prospectus, there has not been any material adverse change, or any development involving a
prospective material adverse change, in or affecting the condition (financial or otherwise),
prospects, earnings, business or properties of the Company and its subsidiaries taken as a whole,
whether or not arising from transactions in the ordinary course of business, except as set forth in
or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or
supplement thereto).
Any certificate signed by any officer of the Company and delivered to the Representatives or
counsel for the Underwriters in connection with the offering of the Securities shall be deemed a
representation and warranty by the Company, as to matters covered thereby, to each Underwriter.
2.
Purchase and Sale
. Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company agrees to sell to each Underwriter,
and each Underwriter agrees, severally and not jointly, to purchase from the Company, at the
purchase price set forth in Schedule I hereto, the principal amount of Securities set forth
opposite such Underwriter’s name in Schedule II hereto.
3.
Delivery and Payment
. Delivery of and payment for the Securities shall be made at
10:00 a.m., New York City time, on September 16, 2010, or at such time on such later date not more
than one Business Day after the foregoing date as the Representatives shall designate, which date
and time may be postponed by agreement among the Representatives and the Company or as provided in
Section 9 hereof (such date and time of delivery and payment for the Securities being herein called
the “Closing Date”). Delivery of the Securities shall be made to the Representatives for the
respective accounts of the several Underwriters against payment by the several Underwriters through
the Representatives of the purchase price thereof to or upon the order of the Company by wire
transfer payable in same-day funds to the accounts specified by
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the Company. Delivery of the Securities shall be made through the facilities of The
Depository Trust Company unless the Representatives shall otherwise instruct.
4.
Offering by Underwriters
. The Underwriters advise the Company that the several
Underwriters propose to offer the Securities for sale to the public on the terms and in the manner
set forth in the Final Prospectus.
5.
Agreements
.
(a) The Company agrees with the several Underwriters that:
(i) Prior to the termination of the offering of the Securities, the Company
will not file any amendment of the Registration Statement or supplement (including
the Final Prospectus or any Preliminary Prospectus) to the Base Prospectus unless
the Company has furnished you a copy for your review prior to filing and will not
file any such proposed amendment or supplement to which you reasonably object. The
Company will cause the Final Prospectus, properly completed, and any supplement
thereto to be filed in a form approved by the Representatives with the Commission
pursuant to the applicable paragraph of Rule 424(b) within the time period
prescribed therein and will provide evidence satisfactory to the Representatives of
such timely filing. The Company will promptly advise the Representatives (A) when
the Final Prospectus, and any supplement thereto, shall have been filed (if
required) with the Commission pursuant to Rule 424(b), (B) when, prior to
termination of the offering of the Securities, any amendment to the Registration
Statement shall have been filed or become effective, (C) of any request by the
Commission or its staff for any amendment of the Registration Statement, or any Rule
462(b) Registration Statement, or for any supplement to the Final Prospectus or for
any additional information, (D) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of any notice
objecting to its use or the institution or threatening of any proceeding for that
purpose and (E) of the receipt by the Company of any notification with respect to
the suspension of the qualification of the Securities for sale in any jurisdiction
or the institution or threatening of any proceeding for such purpose. The Company
will use its best efforts to prevent the issuance of any such stop order or the
occurrence of any such suspension or objection to the use of the Registration
Statement and, upon such issuance, occurrence or notice of objection, to obtain as
soon as possible the withdrawal of such stop order or relief from such occurrence or
objection, including, if necessary, by filing an amendment to the Registration
Statement or a new registration statement and using its best efforts to have such
amendment or new registration statement declared effective as soon as practicable.
(ii) To prepare a final term sheet, containing solely a description of final
terms of the Securities and the offering thereof, in the form approved by you and
attached as Schedule IV hereto and to file such term sheet pursuant to Rule 433(d)
within the time required by such Rule.
11
(iii) If, at any time prior to the filing of the Final Prospectus pursuant to
Rule 424(b), any event occurs as a result of which the Disclosure Package would
include any untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein in the light of the circumstances under
which they were made not misleading, the Company will (A) notify promptly the
Representatives so that any use of the Disclosure Package may cease until it is
amended or supplemented; (B) amend or supplement the Disclosure Package to correct
such statement or omission; and (C) supply any amendment or supplement to you in
such quantities as you may reasonably request.
(iv) If, at any time when a prospectus relating to the Securities is required
to be delivered under the Act (including in circumstances where such requirement may
be satisfied pursuant to Rule 172), any event occurs as a result of which the
Disclosure Package or the Final Prospectus as then amended or supplemented would
include any untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein in the light of the circumstances under
which they were made at such time not misleading, or if it shall be necessary to
amend the Registration Statement, file a new registration statement or supplement
the Disclosure Package or the Final Prospectus to comply with the Act or the rules
thereunder, including in connection with use or delivery of the Final Prospectus,
the Company promptly will (i) notify the Representatives of any such event, (ii)
prepare and file with the Commission, subject to the second sentence of paragraph
(a)(i) of this Section 5, any such amendment or supplement or new registration
statement which will correct such statement or omission or effect such compliance,
(iii) use its best efforts to have any amendment to the Registration Statement or
new registration statement declared effective as soon as practicable in order to
avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented
Final Prospectus to you or your counsel without charge in such quantities as you may
reasonably request.
(v) As soon as practicable, the Company will make generally available to its
security holders and to the Representatives an earnings statement or statements of
the Company and its subsidiaries which will satisfy the provisions of Section 11(a)
of the Act and Rule 158 covering a period of at least twelve months beginning with
the first fiscal quarter of the Company occurring after the “effective date” (as
defined in Rule 158) of the Registration Statement.
(vi) The Company will furnish to the Representatives and counsel for the
Underwriters, without charge, facsimile copies of the manually signed Registration
Statement (including exhibits thereto) and to each other Underwriter a facsimile
copy of the Registration Statement (without exhibits thereto) and, so long as
delivery of a prospectus by an Underwriter or dealer may be required by the Act
(including in circumstances where such requirement may be satisfied pursuant to Rule
172), as many copies of each Preliminary Prospectus, the Final Prospectus and each
Issuer Free Writing Prospectus and any supplement thereto as the Representatives may
reasonably request. The Company will pay the
12
expenses of printing or other production of all documents relating to the
offering of the Securities.
(vii) The Company will arrange, if necessary, for the qualification of the
Securities for sale by the Underwriters under the laws of such jurisdictions as the
Representatives may reasonably designate and will maintain such qualifications in
effect so long as required for the sale of the Securities;
provided
that in
no event shall the Company be obligated to qualify to do business or as a dealer in
securities in any jurisdiction where it is not now so qualified or to take
any action that would subject it to service of process in suits, other than those
arising solely out of the offer or sale of the Securities, in any jurisdiction where
it is not now so subject or where it would be subject to taxation as a foreign
corporation in respect of doing business in any jurisdiction in which it is not now
so subject. The Company will promptly advise the Representatives of the receipt by
the Company of any notification with respect to the suspension of the qualification
of the Securities for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose.
(viii) The Company agrees that, unless it has or shall have obtained the prior
written consent of the Representatives, and each Underwriter, severally and not
jointly, agrees with the Company that, unless it has or shall have obtained, as the
case may be, the prior written consent of the Company, it has not made and will not
make any offer relating to the Securities that would constitute an Issuer Free
Writing Prospectus or that would otherwise constitute a “free writing prospectus”
(as defined in Rule 405) required to be filed by the Company with the Commission or
retained by the Company under Rule 433, other than a Free Writing Prospectus
containing the information contained in the final term sheet prepared and filed
pursuant to Section 5(a)(ii) hereto; provided that the prior written consent of the
parties hereto shall be deemed to have been given in respect of the Free Writing
Prospectuses included in Schedule III hereto and any electronic road show. Any such
Free Writing Prospectus consented to by the Representatives or the Company is
hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company
agrees that (x) it has treated and will treat, as the case may be, each Permitted
Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied
and will comply, as the case may be, with the requirements of Rules 164 and 433
applicable to any Permitted Free Writing Prospectus, including in respect of timely
filing with the Commission, legending and record keeping.
(ix) The Company will not, without the prior written consent of the
Representatives, directly or indirectly, offer, sell, contract to sell, pledge,
otherwise dispose of, enter into any transaction which is designed to, or might
reasonably be expected to, result in the disposition (whether by actual disposition
or effective economic disposition due to cash settlement or otherwise) by the
Company or any Affiliate of the Company or any person in privity with the Company or
any Affiliate of the Company of, file (or participate in the filing of), directly or
indirectly, a registration statement with the Commission in respect of,
13
or establish or increase a put equivalent position or liquidate or decrease a
call equivalent position within the meaning of Section 16 of the Exchange Act in
respect of, any non-convertible debt securities issued or guaranteed by the Company
(other than the Securities), or publicly announce an intention to effect any such
transaction, until the Business Day set forth on Schedule I hereto.
(x) The Company will not take, directly or indirectly, any action designed to,
or that has constituted or that might reasonably be expected to, cause or result in,
under the Exchange Act or otherwise, stabilization or manipulation of the price of
any security of the Company to facilitate the sale or resale of the Securities.
(xi) The Company will comply in all material respects with all applicable
securities and other laws, rules and regulations, including, without limitation, the
Sarbanes-Oxley Act, and use its best efforts to cause the Company’s directors and
officers, in their capacities as such, to comply in all material respects with such
laws, rules and regulations, including, without limitation, the provisions of the
Sarbanes-Oxley Act.
(b) The Company agrees to pay the costs and expenses relating to the following matters: (i)
the preparation of the Indenture and the preparation, printing or reproduction and filing with the
Commission of the Registration Statement (including financial statements, schedules and exhibits
thereto), each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing
Prospectus, and each amendment or supplement to any of them; (ii) the printing (or reproduction)
and delivery (including postage, air freight charges and charges for counting and packaging) of
such copies of the Registration Statement, each Preliminary Prospectus, the Final Prospectus and
each Issuer Free Writing Prospectus, and all amendments or supplements to any of them, as may, in
each case, be reasonably requested by the Underwriters for use in connection with the offering and
sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of
the Securities and any taxes payable in connection therewith; (iv) the printing (or reproduction)
and delivery of this Agreement, any blue sky memorandum and all other agreements or documents
printed (or reproduced) and delivered by the Company in connection with the offering of the
Securities; (v) any registration or qualification of the Securities for offer and sale under the
securities or blue sky laws of the several states (including filing fees and the reasonable fees
and expenses of counsel for the Underwriters relating to such registration and qualification); (vi)
the transportation and other expenses incurred by or on behalf of Company representatives in
connection with presentations to prospective purchasers of the Securities; (vii) the fees and
expenses of the Company’s accountants and the fees and expenses of counsel (including local and
special counsel) for the Company; (viii) any fees charged by the rating agencies for the rating of
the Securities; and (ix) all other costs and expenses incident to the performance by the Company of
its obligations hereunder.
6.
Conditions to the Obligations of the Underwriters
. The obligations of the
Underwriters to purchase the Securities shall be subject to the accuracy of the representations and
warranties of the Company contained herein at the Time of Sale and the Closing Date, to the
accuracy of the statements of the Company made in any certificates pursuant to the provisions
14
hereof, to the performance by the Company of its obligations hereunder and to the following
additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within
the time period required by Rule 424(b); the final term sheet contemplated by Section 5(a)(ii)
hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under
the Act, shall have been filed with the Commission within the applicable time periods prescribed
for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration
Statement or any notice objecting to its use shall have been issued and no proceedings for that
purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Fenwick & West LLP, counsel for the Company,
to furnish to the Representatives its opinion, dated the Closing Date and addressed to the
Representatives, to the effect that:
(i) the Registration Statement has become effective under the Act; any required
filing of the Base Prospectus, any Preliminary Prospectus and the Final Prospectus,
and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and
within the time period required by Rule 424(b); to the knowledge of such counsel, no
stop order suspending the effectiveness of the Registration Statement or any notice
objecting to its use has been issued, no proceedings for that purpose have been
instituted or threatened; the Registration Statement and the Final Prospectus
excluding the financial statements and other financial and statistical information
contained therein, as well as that part of the Registration Statement that
constitutes the Statement of Eligibility of the Trustee on Form T-1 under the Trust
Indenture Act, as to which, in each case, such counsel need express no opinion)
appeared on their face to be appropriately responsive in all material respects with
the applicable requirements of the Act and the rules thereunder; and the Indenture
appeared on its face to be appropriately responsive in all material respects with
the requirements of the Trust Indenture Act;
(ii) The documents incorporated by reference in the Disclosure Package and the
Final Prospectus (excluding the financial statements and other financial and
statistical information contained therein, as to which such counsel need express no
opinion), when they were filed with the Commission appeared on their face to be
appropriately responsive in all material respects with the requirements of the
Exchange Act and the rules and regulations of the Commission thereunder;
(iii) the Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with full
corporate power and corporate authority to own or lease, as the case may be, and to
operate its properties and conduct its business as described in the Disclosure
Package and the Final Prospectus, and is duly qualified to do business as a foreign
corporation and is in good standing under the laws of each jurisdiction which
requires such qualification, except for such jurisdictions where the failure to be
in
15
good standing, have such corporate power or authority, or to so qualify would
not, individually or in the aggregate, have a Material Adverse Effect;
(iv) the Company’s authorized equity capitalization is as set forth in the
Disclosure Package and the Final Prospectus under the heading “Capitalization”; the
Securities conform to the description thereof contained in the Disclosure Package
and the Final Prospectus;
(v) the Indenture has been duly authorized, executed and delivered by the
Company, has been duly qualified under the Trust Indenture Act, and constitutes a
legal, valid and binding instrument enforceable against the Company in accordance
with its terms (subject, as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting creditors’ rights
generally from time to time in effect and to general principles of equity,
including, without limitation, concepts of materiality, reasonableness, good faith
and fair dealing, regardless of whether considered in a proceeding in equity or at
law);
(vi) the Securities have been duly authorized and executed by the Company and,
when authenticated in accordance with the terms of the Indenture and delivered
against payment therefor pursuant to this Agreement, will constitute legal, valid
and binding obligations of the Company entitled to the benefits of the Indenture
(subject to customary qualifications and assumptions as to enforceability of
remedies and to general principles of equity, including, without limitation,
concepts of materiality, reasonableness, good faith and fair dealing, regardless of
whether considered in a proceeding in equity or at law);
(vii) the statements set forth under the headings “Description of Notes”. and
“United States Federal Tax Considerations” in the Disclosure Package and the Final
Prospectus, insofar as such statements purport to summarize certain provisions of
the Securities and the Indenture or matters of applicable tax law and regulations,
provide in all material respects an accurate and fair summary of such provisions,
laws and regulations;
(viii) the execution and delivery of each of this Agreement, the Indenture, the
issuance and sale of the Securities, and the consummation of any other of the
transactions herein or therein provided, and the fulfillment of the terms hereof or
thereof, do not (A) conflict with or result in a breach of any agreement or
instrument filed as an exhibit pursuant to Item 601(b)(10) of Regulation S-K in the
Company’s annual report on Form 10-K for the fiscal year ended April 2, 2010 (such
list of agreements and instruments having been represented to such counsel by the
Company as a list of all material agreements or instruments to which the Company or
any of its subsidiaries is a party or is bound that would be required to be filed as
an exhibit to the Company’s Annual Report on Form 10-K pursuant to Item 601(b)(10)
of Regulation S-K if such Annual Report on Form 10-K were filed as of the Closing
Date); (B) result in violation of the charter or bylaws of the Company; or (C)
result in the violation of any law or statute or
16
any rule, regulation, judgment, order or decree known to such counsel
specifically naming the Company as being bound of any court, regulatory body,
administrative agency, governmental body, arbitrator or other authority having
jurisdiction over the Company or any of its respective properties (provided that
such counsel shall be entitled to limit their opinion to laws that, in the
experience of such counsel, customarily apply to similar transactions);
(ix) this Agreement has been duly authorized, executed and delivered by the
Company;
(x) no consent, approval, authorization, filing with or order of any court or
governmental agency or body is required in connection with the transactions
contemplated herein, except such as have been obtained under the Act and such as may
be required under the blue sky laws of any jurisdiction in connection with the
purchase and distribution of the Securities by the Underwriters in the manner
contemplated in this Agreement, the Disclosure Package and the Final Prospectus and
such other approvals (specified in such opinion) as have been obtained;
(xi) the Company is not and, after giving effect to the offering and sale of
the Securities and the application of the proceeds thereof as described in the
Disclosure Package and the Final Prospectus, will not be required to register as an
“investment company” as defined in the Investment Company Act, without taking
account of any exemption arising out of the number of holders of the Company’s
securities.
In rendering such opinion, such counsel may rely as to matters of fact, to the extent such counsel
deems proper, on certificates of responsible officers of the Company and public officials. In
addition to the matters set forth above, such opinion shall also include a statement to the effect
that such counsel has no reason to believe that (i) the Registration Statement (including the
documents incorporated by reference therein and excluding the financial statements and other
financial information contained herein, and that part of the Registration Statement that
constitutes the Statement of Eligibility of the Trustee on Form T-1 under the Trust Indenture Act,
in each case, as to which such counsel need express no opinion), as amended or supplemented at the
Effective Date, contained any untrue statement of a material fact or omitted to state any material
fact required to be stated therein or necessary to make the statements therein not misleading; (ii)
the Disclosure Package (but not including any electronic “road shows”), as amended or supplemented
at the Time of Sale, at the Time of Sale contained any untrue statement of a material fact or
omitted to state any material fact necessary in order to make the statements therein, in the light
of circumstances under which they were made, not misleading (in each case, other than the financial
statements, schedule and other financial information contained therein and statistical data derived
therefrom, as to which such counsel need express no opinion), and (iii) the Final Prospectus as of
its date or on the Closing Date (in each case, other than the financial statements, schedule and
other financial information contained therein and statistical data derived therefrom, as to which
such counsel need express no opinion) contained or contains any untrue statement of a material fact
or omitted or omits to state any material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not
17
misleading. References to the Disclosure Package, the Preliminary Prospectus and the Final
Prospectus in this Section 6(b) include any amendment or supplement thereto at the Closing Date.
(c) The Company shall have requested and caused Scott C. Taylor, general counsel for the
Company, to furnish to the Representatives his opinion, dated the Closing Date and addressed to the
Representatives, to the effect that, to his knowledge and other than as set forth in the Disclosure
Package and the Final Prospectus, there is no pending or threatened action, suit or proceeding by
or before any court or governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries or its or their property that would reasonably be expected to
have a Material Adverse Effect
(d) The Representatives shall have received from Simpson Thacher & Bartlett LLP, counsel for
the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the
Representatives, with respect to the issuance and sale of the Securities, the Indenture, the
Registration Statement, the Disclosure Package, the Final Prospectus (as amended or supplemented at
the Closing Date) and other related matters as the Representatives may reasonably require, and the
Company shall have furnished to such counsel such documents as they request for the purpose of
enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives a certificate of the Company,
signed by (x) an executive officer of the Company and (y) the principal financial or accounting
officer of the Company, dated the Closing Date, to the effect that the signers of such certificate
have carefully examined the Registration Statement, the Disclosure Package and the Final Prospectus
and any supplements or amendments thereto, as well as each electronic road show used in connection
with the offering of the Securities and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are
true and correct on and as of the Closing Date with the same effect as if made on
the Closing Date, and the Company has complied with all the agreements and satisfied
all the conditions on its part to be performed or satisfied hereunder at or prior to
the Closing Date; and
(ii) since the date of the most recent financial statements included or
incorporated by reference in the Disclosure Package and the Final Prospectus
(exclusive of any amendment or supplement thereto), there has been no material
adverse change in the condition (financial or otherwise), prospects, earnings,
business or properties of the Company and its subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course of business, except
as set forth in or contemplated in the Disclosure Package and the Final Prospectus
(exclusive of any amendment or supplement thereto).
(f) At the Execution Time and at the Closing Date
,
the Company shall have requested and caused
KPMG LLP to furnish to the Representatives letters
,
dated respectively as of the Execution Time and
as of the Closing Date, in form and substance satisfactory to the Representatives and confirming
that they are independent registered public accountants within the meaning of the Exchange Act and
the applicable published rules and regulations thereunder.
18
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is
given in the Disclosure Package, the Registration Statement (exclusive of any amendment or
supplement thereto) and the Final Prospectus (exclusive of any amendment or supplement thereto),
there shall not have been (i) any change or decrease specified in the letter or letters referred to
in paragraph (f) of this Section 6; or (ii) any change, or any development involving a prospective
change, in or affecting the condition (financial or otherwise), prospects, earnings, business or
properties of the Company and its subsidiaries taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth in or contemplated in the
Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), the
effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of
the Representatives, so material and adverse as to make it impractical or inadvisable to proceed
with the offering or delivery of the Securities as contemplated by the Registration Statement
(exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of
any amendment or supplement thereto).
(h) Subsequent to the Execution Time, there shall not have been any decrease in the rating of
any of the Company’s debt securities by any “nationally recognized statistical rating organization”
(as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or
potential decrease in any such rating or of a possible change in any such rating that indicates a
negative change or does not indicate the direction of the possible change.
(i) On or prior to the Closing Date, the Company shall have furnished to the Representatives
such further information, certificates and documents as the Representatives may reasonably request.
(j) At or prior to the Closing Date, the Company and the Trustee shall have executed and
delivered the Indenture.
If any of the conditions specified in this Section 6 shall not have been fulfilled when and as
provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere
in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives
and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder
may be cancelled at, or at any time prior to, the Closing Date by the Representatives. Notice of
such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed
in writing.
The documents required to be delivered by this Section 6 will be delivered at the office of
counsel for the Underwriters, at Simpson Thacher & Bartlett LLP, 2550 Hanover Street, Palo Alto, CA
94304, on the Closing Date.
7.
Reimbursement of Underwriters’ Expenses
. If the sale of the Securities provided
for herein is not consummated because any condition to the obligations of the Underwriters set
forth in Section 6 hereof is not satisfied, because of any termination pursuant to Section 10
hereof or because of any refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a default by any of
the Underwriters, the Company will reimburse the Underwriters severally through the Representatives
on demand for all expenses (including reasonable fees and
19
disbursements of counsel) that shall have been incurred by them in connection with the
proposed purchase and sale of the Securities.
8.
Indemnification and Contribution
. (a) The Company agrees to indemnify and hold
harmless each Underwriter, the directors, officers, employees, Affiliates and agents of each
Underwriter and each person, if any, who controls any Underwriter within the meaning of either the
Act or the Exchange Act against any and all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject under the Act, the Exchange Act or other
U.S. federal or state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities or actions in respect thereof arise out of or are based upon
(i) any untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement as originally filed or in any amendment thereof or any omission or alleged
omission to state therein a material fact required to be stated therein or necessary in order to
make the statements therein not misleading or (ii) any untrue statement or alleged untrue statement
of a material fact contained in the Base Prospectus, any Preliminary Prospectus or any other
preliminary prospectus supplement relating to the Securities, the Final Prospectus, any Issuer Free
Writing Prospectus or the information contained in the final term sheet required to be prepared and
filed pursuant to Section 5(a)(ii) hereto, or in any amendment thereof or supplement thereto, or
any omission or alleged omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances under which they were
made, not misleading, and agrees to reimburse each such indemnified party, as incurred, for any
legal or other expenses reasonably incurred by them in connection with investigating or defending
any such loss, claim, damage, liability or action;
provided
,
however
, that the
Company will not be liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue statement or alleged untrue statement or
omission or alleged omission made therein, in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Underwriter through the Representatives
specifically for inclusion therein, it being understood and agreed that the only such information
furnished to the Company consists of the information specified in the last sentence of Section 8(b)
hereof. This indemnity agreement will be in addition to any liability that the Company may
otherwise have.
(b) Each Underwriter severally, and not jointly, agrees to indemnify and hold harmless the
Company, each of its directors, each of its officers who signs the Registration Statement, and each
person, if any, who controls the Company within the meaning of either the Act or the Exchange Act,
to the same extent as the foregoing indemnity from the Company to each Underwriter, but only with
reference to written information relating to such Underwriter furnished to the Company by or on
behalf of such Underwriter through the Representatives specifically for inclusion in the documents
referred to in the foregoing indemnity. This indemnity agreement will be in addition to any
liability to which any Underwriter may otherwise have. The Company acknowledges and the
Representatives agree on behalf of all Underwriters that (i) the statement set forth in the last
paragraph of the front cover page of the Final Prospectus regarding delivery of the Securities and
(ii) the third and sixth full paragraphs under the heading “Underwriting” in the Disclosure Package
and Final Prospectus, constitute the only information furnished in writing by or on behalf of the
several Underwriters.
20
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of the
commencement of any action, such indemnified party will, if a claim in respect thereof is to be
made against the indemnifying party under this Section 8, notify the indemnifying party in writing
of the commencement thereof; but the failure so to notify the indemnifying party (i) will not
relieve it from liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the indemnifying party
of substantial rights and defenses and (ii) will not, in any event, relieve the indemnifying party
from any obligations to any indemnified party other than the indemnification obligation provided in
paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint counsel (including
local counsel) of the indemnifying party’s choice at the indemnifying party’s expense to represent
the indemnified party in any action for which indemnification is sought (in which case the
indemnifying party shall not thereafter be responsible for the fees and expenses of any separate
counsel, other than local counsel if not appointed by the indemnifying party, retained by the
indemnified party or parties except as set forth below);
provided
,
however
, that
such counsel shall be satisfactory to the indemnified party. Notwithstanding the indemnifying
party’s election to appoint counsel (including local counsel) to represent the indemnified party in
an action, the indemnified party shall have the right to employ separate counsel (including local
counsel), and the indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel if (i) the use of counsel chosen by the indemnifying party to represent the
indemnified party would present such counsel with a conflict of interest; (ii) the actual or
potential defendants in, or targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded that there may be
legal defenses available to it and/or other indemnified parties that are different from or
additional to those available to the indemnifying party; (iii) the indemnifying party shall not
have employed counsel satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of the institution of such action; or (iv) the indemnifying
party shall authorize the indemnified party to employ separate counsel at the expense of the
indemnifying party. An indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any judgment with respect to
any pending or threatened claim, action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compromise or consent includes
an unconditional release of each indemnified party from all liability arising out of such claim,
action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b) of this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party for any reason, the Company
and the Underwriters severally agree to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in connection with investigating
or defending any loss claim, damage, liability or action) (collectively “Losses”) to which the
Company and one or more of the Underwriters may be subject in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and by the Underwriters on
the other from the offering of the Securities;
provided
,
however
, that in no case
shall any Underwriter (except as may be provided in any agreement among underwriters relating to
the offering of the Securities) be responsible for any amount in excess of the underwriting
discount or commission applicable to the Securities purchased by such Underwriters hereunder.
21
If the allocation provided by the immediately preceding sentence is unavailable for any
reason, the Company and the Underwriters severally shall contribute in such proportion as is
appropriate to reflect not only such relative benefits but also the relative fault of the Company
on one hand and the Underwriters on the other in connection with the statements or omissions that
resulted in such Losses, as well as any other relevant equitable considerations. Benefits received
by the Company shall be deemed to be equal to the total net proceeds from the offering (before
deducting expenses) received by it, and benefits received by the Underwriters shall be deemed to be
equal to the total purchase discounts and commissions, in each case as set forth on the cover page
of the Final Prospectus. Relative fault shall be determined by reference to, among other things,
whether any untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information provided by the Company on one hand or the
Underwriters on the other, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such untrue statement or omission. The Company
and the Underwriters agree that it would not be just and equitable if contribution were determined
by pro rata allocation or any other method of allocation that does not take account of the
equitable considerations referred to above. Notwithstanding the provisions of this paragraph (d),
no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 8, each person who controls an Underwriter within
the meaning of either the Act or the Exchange Act and each director, officer, employee, Affiliate
and agent of an Underwriter shall have the same rights to contribution as such Underwriter, and
each person, if any, who controls the Company within the meaning of either the Act or the Exchange
Act and each officer of the Company who shall have signed the Registration Statement and each
director of the Company shall have the same rights to contribution as the Company, subject in each
case to the applicable terms and conditions of this paragraph (d).
9.
Default by an Underwriter
. If any one or more Underwriters shall fail to purchase
and pay for any of the Securities agreed to be purchased by such Underwriter hereunder and such
failure to purchase shall constitute a default in the performance of its or their obligations under
this Agreement, the remaining Underwriters shall be obligated severally to take up and pay for (in
the respective proportions which principal amount of Securities set forth opposite their names in
Schedule II hereto bears to the aggregate principal amount of Securities set forth opposite the
names of all the remaining Underwriters) the Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase;
provided
,
however
, that in the event
that the aggregate principal amount of Securities which the defaulting Underwriter or Underwriters
agreed but failed to purchase shall exceed 10% of the aggregate principal amount of Securities set
forth in Schedule II hereto, the remaining Underwriters shall have the right to purchase all, but
shall not be under any obligation to purchase any, of the Securities, and if such nondefaulting
Underwriters do not purchase all the Securities, this Agreement will terminate without liability to
any nondefaulting Underwriter or the Company. In the event of a default by any Underwriter as set
forth in this Section 9, the Closing Date shall be postponed for such period, not exceeding five
Business Days, as the Representatives shall determine in order that the required changes in the
Registration Statement and Final Prospectus or in any other documents or arrangements may be
effected. Nothing contained in this Agreement shall relieve any defaulting Underwriter of its
liability, if any, to the Company or any nondefaulting Underwriter for damages occasioned by its
default hereunder.
22
10.
Termination
. This Agreement shall be subject to termination in the absolute
discretion of the Representatives, by notice given to the Company prior to delivery of, and payment
for, the Securities, if at any time prior to such delivery and payment (a) trading in the Company’s
Common Stock shall have been suspended by the Nasdaq Global Select Market or trading in securities
generally on the New York Stock Exchange or the Nasdaq Global Select Market shall have been
suspended or limited or minimum prices shall have been established on any such exchanges; (b) a
banking moratorium shall have been declared either by U.S. federal or New York State authorities;
or (c) there shall have occurred any outbreak or escalation of hostilities, declaration by the
United States of a national emergency or war or other calamity or crisis the effect of which on
financial markets is such as to make it, in the sole judgment of the Representatives, impractical
or inadvisable to proceed with the offering or delivery of the Securities as contemplated by any
Preliminary Prospectus or the Final Prospectus (exclusive of any amendment or supplement thereto).
11.
Representations and Indemnities to Survive
. The respective agreements,
representations, warranties, indemnities and other statements of the Company or its officers and of
the Underwriters set forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf of the Underwriters or the Company or
any of the indemnified persons referred to in Section 8 hereof, and will survive delivery of and
payment for the Securities. The provisions of Sections 7 and 8 hereof shall survive the
termination or cancellation of this Agreement.
12.
Notices
. All communications hereunder will be in writing and effective only on
receipt, and, if sent to the Representatives, will be mailed, delivered or telefaxed to the Morgan
Stanley & Co. Incorporated (fax no.: (212) 507-8999) and confirmed to Morgan Stanley & Co.
Incorporated at 1585 Broadway, 29th Floor New York, New York 10036, Attention: Investment Banking
Division; with a copy of Simpson Thacher & Bartlett LLP, Attention: William H. Hinman, Jr. (fax no.
(650) 251-5002), 2550 Hanover Street, Palo Alto, California 94304; if sent to the Company, will be
mailed, delivered or telefaxed to (650) 429-9137 and confirmed to it at 350 Ellis Street, Mountain
View, California 94043, attention of the Legal Department; with a copy of Fenwick & West LLP,
Attention: Daniel J. Winnike (fax no. (650) 938-5200), 801 California Street, Mountain View,
California 94041.
13.
Successors
. This Agreement will inure to the benefit of and be binding upon the
parties hereto and their respective successors and the indemnified persons referred to in Section 8
hereof and their respective successors, and no other person will have any right or obligation
hereunder.
14.
Jurisdiction
. The Company agrees that any suit, action or proceeding against the
Company brought by any Underwriter, the directors, officers, employees and agents of any
Underwriter, or by any person who controls any Underwriter , arising out of or based upon this
Agreement or the transactions contemplated hereby may be instituted in any State or U.S. federal
court in The City of New York and County of New York, and waives any objection which it may now or
hereafter have to the laying of venue of any such proceeding, and irrevocably submits to the
exclusive jurisdiction of such courts in any suit, action or proceeding.
23
15.
Integration
. This Agreement supersedes all prior agreements and understandings
(whether written or oral) between the Company and the Underwriter, or any of them, with respect to
the subject matter hereof.
16.
Applicable Law
. This Agreement will be governed by and construed in accordance
with the laws of the State of New York applicable to contracts made and to be performed within the
State of New York.
17.
Waiver of Jury Trial
. The Company hereby irrevocably waives, to the fullest
extent permitted by applicable law, any and all right to trial by jury in any legal proceeding
arising out of or relating to this Agreement or the transactions contemplated hereby.
18.
No Fiduciary Duty
. The Company hereby acknowledge that (a) the purchase and sale
of the Securities pursuant to this Agreement is an arm’s-length commercial transaction between the
Company, on the one hand, and the Underwriters and any affiliate through which it may be acting, on
the other, (b) the Underwriters are acting as principals and not as agents or fiduciaries of the
Company and (c) the Company’s engagement of the Underwriters in connection with the
offering and the process leading up to the offering is as independent contractors and not in any
other capacity. Furthermore, the Company agrees that it is solely responsible for making its own
judgments in connection with the offering (irrespective of whether any Underwriter has advised or
is currently advising the Company on related or other matters). The Company agrees that it will
not claim that an Underwriter has rendered advisory services of any nature or respect, or owe an
agency, fiduciary or similar duty to the Company, in connection with such transaction or the
process leading thereto.
19.
Counterparts
. This Agreement may be signed in one or more counterparts, each of
which shall constitute an original and all of which together shall constitute one and the same
agreement.
20.
Headings
. The section headings used herein are for convenience only and shall not
affect the construction hereof.
21.
Definitions
. The terms that follow, when used in this Agreement, shall have the
meanings indicated.
“Act” shall mean the U.S. Securities Act of 1933, as amended, and the rules and regulations of
the Commission promulgated thereunder.
“Affiliate” shall have the meaning specified in Rule 501(b) of Regulation D under the Act.
“Base Prospectus” shall mean the base prospectus referred to in paragraph 1(a) above contained
in the Registration Statement at the Execution Time.
“Business Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or a day
on which banking institutions or trust companies are authorized or obligated by law to close in The
City of New York.
24
“Commission” shall mean the Securities and Exchange Commission.
“Disclosure Package” shall mean (i) the Base Prospectus, (ii) the Preliminary Prospectus used
most recently prior to the Execution Time, (iii) the Issuer Free Writing Prospectuses, if any,
identified in Schedule III hereto, (iv) the final term sheet prepared and filed pursuant to Section
5(a)(ii) hereto, if any, and (v) any other Free Writing Prospectus that the parties hereto shall
hereafter expressly agree in writing to treat as part of the Disclosure Package.
“Effective Date” shall mean each date and time that the Registration Statement and any
post-effective amendment or amendments thereto became or becomes effective.
“Exchange Act” shall mean the U.S. Securities Exchange Act of 1934, as amended, and the rules
and regulations of the Commission promulgated thereunder.
“Execution Time” shall mean the date and time that this Agreement is executed and delivered by
the parties hereto.
“Final Prospectus” shall mean the prospectus supplement relating to the Securities that was
first filed pursuant to Rule 424(b) after the Execution Time, together with the Base Prospectus.
“Free Writing Prospectus” shall mean a free writing prospectus, as defined in Rule 405.
“Investment Company Act” shall mean the U.S. Investment Company Act of 1940, as amended, and
the rules and regulations of the Commission promulgated thereunder.
“Issuer Free Writing Prospectus” shall mean an issuer free writing prospectus, as defined in
Rule 433.
“Preliminary Prospectus” shall mean any preliminary prospectus supplement to the Base
Prospectus which is used prior to the filing of the Final Prospectus, together with the Base
Prospectus.
“Registration Statement” shall mean the registration statement referred to in paragraph 1(a)
above, including exhibits and financial statements and any prospectus supplement relating to the
Securities that is filed with the Commission pursuant to Rule 424(b) and deemed part of such
registration statement pursuant to Rule 430B, as amended on each Effective Date and, in the event
any post-effective amendment thereto becomes effective prior to the Closing Date, shall also mean
such registration statement as so amended.
“Regulation S-X” shall mean Regulation S-X under the Act.
“Rule 158”, “Rule 163”, “Rule 164”, “Rule 172”, “Rule 405”, “Rule 415”, “Rule 424”, “Rule
430B”, “Rule 433”, “Rule 456” and “Rule 457” refer to such rules under the Act.
“Time of Sale” shall mean the time at which sales of the Securities are first made.
25
“Trust Indenture Act” shall mean the Trust Indenture Act of 1939, as amended, and the rules
and regulations of the Commission promulgated thereunder.
“Well-Known Seasoned Issuer” shall mean a well-known seasoned issuer, as defined in Rule 405.
26
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall
represent a binding agreement among the Company and the several Underwriters.
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Very truly yours,
Symantec Corporation
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By:
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/s/ James A. Beer
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Name:
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James A. Beer
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Title:
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Executive Vice President and Chief
Financial Officer
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The foregoing Agreement is hereby
confirmed and accepted as of the date
first above written.
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J.P. Morgan Securities LLC
Morgan Stanley & Co. Incorporated
UBS Securities LLC
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By:
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J.P. Morgan Securities LLC
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By:
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/s/ Stephen L. Sheiner
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Name:
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Stephen L. Sheiner
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Title:
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Executive Director
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By:
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Morgan Stanley & Co. Incorporated
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By:
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/s/ Yurij Slyz
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Name:
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Yurij Slyz
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Title:
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Executive Director
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By:
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UBS Securities LLC
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By:
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/s/ Christian Stewart
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Name:
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Christian Stewart
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Title:
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Managing Director
UBS Investment Bank
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By:
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/s/ Matthew Baldwin
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Name:
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Matthew Baldwin
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Title:
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Associate Director
Debt Capital Markets
UBS Securities LLC
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For themselves and the other several
Underwriters named in Schedule II
to the foregoing Agreement
SCHEDULE I
Underwriting Agreement dated September 13, 2010
Registration Statement No. 333-169330
Representative(s): J.P. Morgan Securities LLC, Morgan Stanley & Co. Incorporated, UBS Securities
LLC
Title, Purchase Price and Description of the 2015 Notes:
Title: 2.750% Senior Notes due 2015
Principal amount: $350,000,000.00
Purchase price (include accrued
interest or amortization, if
any): $348,547,500.00
Sinking fund provisions: None
Redemption provisions: As provided in the Disclosure Package
Title, Purchase Price and Description of the 2020 Notes:
Title: 4.200% Senior Notes due 2020
Principal amount: $750,000,000.00
Purchase price (include accrued
interest or amortization, if
any): $743,715,000.00
Sinking fund provisions: None
Redemption provisions: As provided in the Disclosure Package
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Closing Date, Time and Location:
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September 16, 2010 at 10:00 a.m.,
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New York City time, at
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Simpson Thacher & Bartlett LLP
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2550 Hanover Street
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Palo Alto, California 94304
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Type of Offering: Non-delayed
Date referred to in Section 5(a)(xi) after which the Company may offer or sell non-convertible debt
securities issued or guaranteed by the Company without the consent of the Representative(s): 30
days from the Closing Date
Modification of items to be covered by the letter from
KPMG LLP delivered pursuant to
Section 6(f) at the Execution Time:
SCHEDULE II
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Principal Amount
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Principal Amount
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of 2015 Notes to be
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of 2020 Notes to
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Underwriters
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Purchased
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be Purchased
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J.P. Morgan Securities LLC
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$
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96,845,000
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$
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207,525,000
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Morgan Stanley & Co. Incorporated
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$
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96,845,000
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$
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207,525,000
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UBS Securities LLC
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$
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96,845,000
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$
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207,525,000
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Banc of America Securities LLC
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$
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8,960,000
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$
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19,200,000
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Citigroup Global Markets, Inc.
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$
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8,960,000
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$
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19,200,000
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Credit Suisse Securities (USA) LLC
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$
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8,960,000
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$
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19,200,000
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Wells Fargo Securities, LLC
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$
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8,960,000
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$
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19,200,000
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BNP Paribas Securities Corp.
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$
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7,875,000
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$
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16,875,000
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HSBC Securities (USA) Inc.
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$
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7,875,000
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$
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16,875,000
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Mizuho Securities USA Inc.
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$
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7,875,000
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$
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16,875,000
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Total:
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$
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350,000,000
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$
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750,000,000
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Purchase Price for the 2015 Notes: 99.585% of the Principal Amount thereof
Purchase Price for the 2020 Notes: 99.162% of the Principal Amount thereof
SCHEDULE III
Schedule of Free Writing Prospectuses included in the Disclosure Package:
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•
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Pricing term sheet set forth in Schedule IV
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SCHEDULE IV
Filed Pursuant to Rule 433
Relating to Preliminary Prospectus Supplement dated September 13, 2010
Registration No. 333-169330
September 13, 2010
SYMANTEC CORPORATION
Pricing Term Sheet
2.750% Senior Notes due 2015
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Issuer:
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Symantec Corporation
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Size:
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$350,000,000
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Security Type:
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Senior Notes
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Maturity:
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September 15, 2015
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Coupon:
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2.750%
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Price per bond:
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99.935% of face amount
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Ratings:
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Baa2 by Moody’s Investor Service, Inc.
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BBB by Standard & Poor’s Ratings Services
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Yield to maturity:
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2.764%
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Spread to Benchmark Treasury:
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125 bps
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Benchmark Treasury:
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1.250% due August 31, 2015
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Benchmark Treasury Price and Yield:
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98-23 3/4 1.514%
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Interest Payments:
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Semi-annually on March 15 and
September 15, commencing March 15, 2011
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Make-Whole Premium:
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At any time at a discount rate of
Treasury plus 20 basis points
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Distribution Method:
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Registered
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Trade Date:
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September 13, 2010
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Settlement:
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T+3; September 16, 2010
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Joint Bookrunners:
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J.P. Morgan Securities LLC
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Morgan Stanley & Co. Incorporated
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UBS Securities LLC
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Senior Co-Managers:
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Banc of America Securities LLC
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Citigroup Global Markets, Inc.
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Credit Suisse Securities (USA) LLC
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Wells Fargo Securities, LLC
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Co-Managers:
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BNP Paribas Securities Corp.
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HSBC Securities (USA) Inc.
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Mizuho Securities USA Inc.
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4.200% Senior Notes due 2020
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Issuer:
|
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Symantec Corporation
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Size:
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$750,000,000
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Security Type:
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Senior Notes
|
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Maturity:
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September 15, 2020
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Coupon:
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4.200%
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Price per bond:
|
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99.612% of face amount
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Ratings:
|
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Baa2 by Moody’s Investor Service, Inc.
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BBB by Standard & Poor’s Ratings Services
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Yield to maturity:
|
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4.248%
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Spread to Benchmark Treasury:
|
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150 bps
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Benchmark Treasury:
|
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2.625% due August 15, 2020
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Benchmark Treasury Price and Yield:
|
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98-30 2.748%
|
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|
Interest Payments:
|
|
Semi-annually on March 15 and September 15,
commencing March 15, 2011
|
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Make-Whole Premium:
|
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At any time at a discount rate of
Treasury plus 25 basis points
|
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Distribution Method:
|
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Registered
|
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|
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Trade Date:
|
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September 13, 2010
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Settlement:
|
|
T+3; September 16, 2010
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Joint Bookrunners:
|
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J.P. Morgan Securities LLC
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Morgan Stanley & Co. Incorporated
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|
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UBS Securities LLC
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|
|
Senior Co-Managers:
|
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Banc of America Securities LLC
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|
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Citigroup Global Markets, Inc.
|
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|
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Credit Suisse Securities (USA) LLC
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|
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Wells Fargo Securities, LLC
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Co-Managers:
|
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BNP Paribas Securities Corp.
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HSBC Securities (USA) Inc.
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Mizuho Securities USA Inc.
|
Note: A securities rating is not a recommendation to buy, sell or hold securities and may be
subject to revision or withdrawal at any time.
The issuer has filed a registration statement (including a prospectus and accompanying
prospectus supplement) with the SEC for the offering to which this communication relates. Before
you invest, you should read the prospectus in that registration statement, the accompanying
preliminary prospectus supplement and other documents the issuer has filed with the SEC for more
complete information about the issuer and this offering. You may get these documents for free by
visiting EDGAR on the SEC Web site at www.sec.gov. Alternatively, the issuer, any underwriter or
any dealer participating in the offering will arrange to send you these documents upon request by
contacting any of J.P. Morgan Securities Inc. collect on 212-834-4533, Morgan Stanley & Co.
Incorporated toll-free on 866-718-1649 or UBS Securities LLC toll-free on 877-827-6444, ext
561-3884.
Any disclaimers or other notices that may appear below are not applicable to this communication and
should be disregarded. Such disclaimers or other notices were automatically generated as a result
of this communication being sent via Bloomberg or another email system.
ANNEX A
Significant Subsidiaries
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State or Other Jurisdiction of
|
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Name of Subsidiary
|
|
Incorporation or Organization
|
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Altiris, Inc.
|
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Delaware
|
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Symantec Asia Pacific Pte. Ltd.
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Singapore
|
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Symantec Holdings Limited
|
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Ireland
|
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Symantec International Limited
|
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Ireland
|
|
Symantec Limited
|
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Ireland
|
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Symantec Japan Inc.
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Japan
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Symantec Operating Corporation
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Delaware
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Symantec (UK) Limited
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United Kingdom
|
Exhibit 4.01
SYMANTEC CORPORATION
AND
WELLS FARGO BANK, NATIONAL ASSOCIATION
AS TRUSTEE
_____________________
INDENTURE
DATED AS OF SEPTEMBER 16, 2010
_____________________
SENIOR DEBT SECURITIES
TABLE OF CONTENTS
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Page
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ARTICLE 1 DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
|
|
|
1
|
|
|
Section 1.1 Definitions
|
|
|
1
|
|
|
Section 1.2 Compliance Certificates and Opinions
|
|
|
7
|
|
|
Section 1.3 Form of Documents Delivered to Trustee
|
|
|
7
|
|
|
Section 1.4 Acts of Holders; Record Dates
|
|
|
8
|
|
|
Section 1.5 Notices, Etc., to Trustee and Company
|
|
|
10
|
|
|
Section 1.6 Notice to Holders; Waiver
|
|
|
10
|
|
|
Section 1.7 Conflict with Trust Indenture Act
|
|
|
11
|
|
|
Section 1.8 Effect of Headings and Table of Contents
|
|
|
11
|
|
|
Section 1.9 Successors and Assigns
|
|
|
11
|
|
|
Section 1.10 Separability Clause
|
|
|
11
|
|
|
Section 1.11 Benefits of Indenture
|
|
|
11
|
|
|
Section 1.12 Governing Law; Waiver of Jury Trial
|
|
|
11
|
|
|
Section 1.13 Legal Holidays
|
|
|
11
|
|
|
Section 1.14 Indenture and Securities Solely Corporate Obligations
|
|
|
11
|
|
|
Section 1.15 Force Majeure
|
|
|
12
|
|
|
Section 1.16 U.S.A. Patriot Act
|
|
|
12
|
|
|
|
|
|
|
|
|
ARTICLE 2 SECURITY FORMS
|
|
|
12
|
|
|
Section 2.1 Forms Generally
|
|
|
12
|
|
|
Section 2.2 Form of Face of Security
|
|
|
13
|
|
|
Section 2.3 Form of Reverse of Security
|
|
|
15
|
|
|
Section 2.4 Form of Legend for Global Securities
|
|
|
20
|
|
|
Section 2.5 Form of Trustee’s Certificate of Authentication
|
|
|
20
|
|
|
Section 2.6 Form of Conversion Notice
|
|
|
20
|
|
|
|
|
|
|
|
|
ARTICLE 3 THE SECURITIES
|
|
|
21
|
|
|
Section 3.1 Amount Unlimited; Issuable in Series
|
|
|
21
|
|
|
Section 3.2 Denominations
|
|
|
24
|
|
|
Section 3.3 Execution, Authentication, Delivery and Dating
|
|
|
24
|
|
|
Section 3.4 Temporary Securities
|
|
|
26
|
|
|
Section 3.5 Registration; Registration of Transfer and Exchange
|
|
|
26
|
|
|
Section 3.6 Mutilated, Destroyed, Lost and Stolen Securities
|
|
|
28
|
|
|
Section 3.7 Payment of Interest; Interest Rights Preserved
|
|
|
28
|
|
|
Section 3.8 Persons Deemed Owners
|
|
|
30
|
|
|
Section 3.9 Cancellation
|
|
|
30
|
|
|
Section 3.10 Computation of Interest
|
|
|
30
|
|
|
Section 3.11 CUSIP Numbers
|
|
|
30
|
|
|
|
|
|
|
|
|
ARTICLE 4 SATISFACTION AND DISCHARGE
|
|
|
30
|
|
|
Section 4.1 Satisfaction and Discharge of Indenture
|
|
|
30
|
|
|
Section 4.2 Application of Trust Money
|
|
|
31
|
|
|
|
|
|
|
|
|
ARTICLE 5 REMEDIES
|
|
|
31
|
|
i
|
|
|
|
|
|
|
|
|
Page
|
|
|
Section 5.1 Events of Default
|
|
|
31
|
|
|
Section 5.2 Acceleration of Maturity; Rescission and Annulment
|
|
|
33
|
|
|
Section 5.3 Collection of Indebtedness and Suits for Enforcement by Trustee
|
|
|
33
|
|
|
Section 5.4 Trustee May File Proofs of Claim
|
|
|
34
|
|
|
Section 5.5 Trustee May Enforce Claims Without Possession of Securities
|
|
|
34
|
|
|
Section 5.6 Application of Money Collected
|
|
|
35
|
|
|
Section 5.7 Limitation on Suits
|
|
|
35
|
|
|
Section 5.8 Unconditional Right of Holders to Receive Principal,
Premium and Interest and to Convert
|
|
|
35
|
|
|
Section 5.9 Restoration of Rights and Remedies
|
|
|
36
|
|
|
Section 5.10 Rights and Remedies Cumulative
|
|
|
36
|
|
|
Section 5.11 Delay or Omission Not Waiver
|
|
|
36
|
|
|
Section 5.12 Control by Holders
|
|
|
36
|
|
|
Section 5.13 Waiver of Past Defaults
|
|
|
37
|
|
|
Section 5.14 Undertaking for Costs
|
|
|
37
|
|
|
Section 5.15 Waiver of Usury, Stay or Extension Laws
|
|
|
37
|
|
|
|
|
|
|
|
|
ARTICLE 6 THE TRUSTEE
|
|
|
37
|
|
|
Section 6.1 Certain Duties and Responsibilities
|
|
|
37
|
|
|
Section 6.2 Notice of Defaults
|
|
|
38
|
|
|
Section 6.3 Certain Rights of Trustee
|
|
|
38
|
|
|
Section 6.4 Not Responsible for Recitals or Issuance of Securities
|
|
|
40
|
|
|
Section 6.5 May Hold Securities and Act as Trustee Under Other Indentures
|
|
|
40
|
|
|
Section 6.6 Money Held in Trust
|
|
|
40
|
|
|
Section 6.7 Compensation and Reimbursement
|
|
|
40
|
|
|
Section 6.8 Conflicting Interests
|
|
|
41
|
|
|
Section 6.9 Corporate Trustee Required; Eligibility
|
|
|
41
|
|
|
Section 6.10 Resignation and Removal; Appointment of Successor
|
|
|
41
|
|
|
Section 6.11 Acceptance of Appointment by Successor
|
|
|
43
|
|
|
Section 6.12 Merger, Conversion, Consolidation or Succession to Business
|
|
|
44
|
|
|
Section 6.13 Preferential Collection of Claims Against Company
|
|
|
44
|
|
|
Section 6.14 Appointment of Authenticating Agent
|
|
|
44
|
|
|
|
|
|
|
|
|
ARTICLE 7 HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY
|
|
|
46
|
|
|
Section 7.1 Company to Furnish Trustee Names and Addresses of Holders
|
|
|
46
|
|
|
Section 7.2 Preservation of Information; Communications to Holders
|
|
|
46
|
|
|
Section 7.3 Reports by Trustee
|
|
|
46
|
|
|
Section 7.4 Reports by Company
|
|
|
47
|
|
|
|
|
|
|
|
|
ARTICLE 8 CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
|
|
|
47
|
|
|
Section 8.1 Company May Consolidate, Etc., Only on Certain Terms
|
|
|
47
|
|
|
Section 8.2 Successor Substituted
|
|
|
48
|
|
|
|
|
|
|
|
|
ARTICLE 9 SUPPLEMENTAL INDENTURES
|
|
|
48
|
|
|
Section 9.1 Supplemental Indentures Without Consent of Holders
|
|
|
48
|
|
ii
|
|
|
|
|
|
|
|
|
Page
|
|
|
Section 9.2 Supplemental Indentures With Consent of Holders
|
|
|
49
|
|
|
Section 9.3 Execution of Supplemental Indentures
|
|
|
50
|
|
|
Section 9.4 Effect of Supplemental Indentures
|
|
|
50
|
|
|
Section 9.5 Conformity with Trust Indenture Act
|
|
|
51
|
|
|
Section 9.6 Reference in Securities to Supplemental Indentures
|
|
|
51
|
|
|
|
|
|
|
|
|
ARTICLE 10 COVENANTS
|
|
|
51
|
|
|
Section 10.1 Payment of Principal, Premium and Interest
|
|
|
51
|
|
|
Section 10.2 Maintenance of Office or Agency
|
|
|
51
|
|
|
Section 10.3 Money for Securities Payments to Be Held in Trust
|
|
|
52
|
|
|
Section 10.4 Statement by Officers as to Default
|
|
|
53
|
|
|
Section 10.5 Existence
|
|
|
53
|
|
|
Section 10.6 Maintenance of Properties
|
|
|
53
|
|
|
Section 10.7 Payment of Taxes and Other Claims
|
|
|
53
|
|
|
Section 10.8 Waiver of Certain Covenants
|
|
|
53
|
|
|
Section 10.9 Calculation of Original Issue Discount
|
|
|
54
|
|
|
|
|
|
|
|
|
ARTICLE 11 REDEMPTION OF SECURITIES
|
|
|
54
|
|
|
Section 11.1 Applicability of Article
|
|
|
54
|
|
|
Section 11.2 Election to Redeem; Notice to Trustee
|
|
|
54
|
|
|
Section 11.3 Selection by Trustee of Securities to Be Redeemed
|
|
|
54
|
|
|
Section 11.4 Notice of Redemption
|
|
|
55
|
|
|
Section 11.5 Deposit of Redemption Price
|
|
|
56
|
|
|
Section 11.6 Securities Payable on Redemption Date
|
|
|
56
|
|
|
Section 11.7 Securities Redeemed in Part
|
|
|
56
|
|
|
|
|
|
|
|
|
ARTICLE 12 SINKING FUNDS
|
|
|
57
|
|
|
Section 12.1 Applicability of Article
|
|
|
57
|
|
|
Section 12.2 Satisfaction of Sinking Fund Payments with Securities
|
|
|
57
|
|
|
Section 12.3 Redemption of Securities for Sinking Fund
|
|
|
57
|
|
|
|
|
|
|
|
|
ARTICLE 13 DEFEASANCE AND COVENANT DEFEASANCE
|
|
|
58
|
|
|
Section 13.1 Company’s Option to Effect Defeasance or Covenant Defeasance
|
|
|
58
|
|
|
Section 13.2 Defeasance and Discharge
|
|
|
58
|
|
|
Section 13.3 Covenant Defeasance
|
|
|
58
|
|
|
Section 13.4 Conditions to Defeasance or Covenant Defeasance
|
|
|
59
|
|
|
Section 13.5 Deposited Money and U.S. Government Obligations to Be
Held in Trust; Miscellaneous Provisions
|
|
|
60
|
|
|
Section 13.6 Reinstatement
|
|
|
61
|
|
|
|
|
|
|
|
|
ARTICLE 14 CONVERSION OF SECURITIES
|
|
|
61
|
|
|
Section 14.1 Applicability of Article
|
|
|
61
|
|
|
Section 14.2 Exercise of Conversion Privilege
|
|
|
61
|
|
|
Section 14.3 No Fractional Shares
|
|
|
62
|
|
|
Section 14.4 Adjustment of Conversion Price
|
|
|
63
|
|
|
Section 14.5 Notice of Certain Corporate Actions
|
|
|
63
|
|
iii
|
|
|
|
|
|
|
|
|
Page
|
|
|
Section 14.6 Reservation of Shares of Common Stock
|
|
|
64
|
|
|
Section 14.7 Payment of Certain Taxes Upon Conversion
|
|
|
64
|
|
|
Section 14.8 Nonassessability
|
|
|
64
|
|
|
Section 14.9 Provision in Case of Consolidation, Merger or Sale of Assets
|
|
|
64
|
|
|
Section 14.10 Duties of Trustee Regarding Conversion
|
|
|
65
|
|
|
Section 14.11 Repayment of Certain Funds Upon Conversion
|
|
|
66
|
|
iv
CROSS-REFERENCE TABLE
Certain Sections of this Indenture relating to Sections 310 through 318, inclusive, of the Trust
Indenture Act of 1939:
|
|
|
|
|
|
|
Trust Indenture Act Section:
|
|
Indenture Section:
|
|
310(a)(1)
|
|
|
6.9
|
|
|
(a)(2)
|
|
|
6.9
|
|
|
(a)(3)
|
|
|
N.A.
|
|
|
(a)(4)
|
|
|
N.A.
|
|
|
(b)
|
|
|
6.8, 6.10
|
|
|
(c)
|
|
|
N.A.
|
|
|
311(a)
|
|
|
6.13
|
|
|
(b)
|
|
|
6.13
|
|
|
(c)
|
|
|
N.A.
|
|
|
312(a)
|
|
|
7.1, 7.2
|
|
|
(b)
|
|
|
7.2
|
|
|
(c)
|
|
|
7.2
|
|
|
313(a)
|
|
|
7.3
|
|
|
(b)
|
|
|
7.3
|
|
|
(c)
|
|
|
7.3
|
|
|
(d)
|
|
|
7.3
|
|
|
314(a)
|
|
|
7.4
|
|
|
(a)(4)
|
|
|
1.2, 10.4
|
|
|
(b)
|
|
|
N.A.
|
|
|
(c)(1)
|
|
|
1.2
|
|
|
(c)(2)
|
|
|
1.2
|
|
|
(c)(3)
|
|
|
N.A.
|
|
|
(d)
|
|
|
N.A.
|
|
|
(e)
|
|
|
1.2
|
|
|
315(a)
|
|
|
6.1, 6.3
|
|
|
(b)
|
|
|
6.2
|
|
|
(c)
|
|
|
6.1
|
|
|
(d)
|
|
|
6.3
|
|
|
(e)
|
|
|
5.14
|
|
|
316(a)(1)(A)
|
|
|
5.12
|
|
|
(a)(1)(B)
|
|
|
5.13
|
|
|
(a)(2)
|
|
|
N.A.
|
|
|
(b)
|
|
|
5.8
|
|
|
(c)
|
|
|
1.4
|
|
|
317(a)(1)
|
|
|
5.3
|
|
|
(a)(2)
|
|
|
5.4
|
|
|
(b)
|
|
|
10.3
|
|
|
318(a)
|
|
|
1.7
|
|
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a part of the
Indenture.
N.A. means Not Applicable.
v
INDENTURE, dated as of September 16, 2010, between Symantec Corporation, a corporation duly organized and
existing under the State of Delaware (herein called the “Company”), having its principal executive
office at 350 Ellis Street, Mountain View, California 94043, and Wells Fargo Bank, National
Association, a national banking association duly organized and existing under the laws of the
United States of America, as Trustee (herein called the “Trustee”).
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this Indenture to provide for
the issuance from time to time of its senior, unsecured debentures, notes or other evidences of
indebtedness (herein called the “Securities”), to be issued in one or more series as provided in
this Indenture.
All things necessary to make this Indenture a valid agreement of the Company, in accordance
with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities by the Holders
thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all
Holders of the Securities or of series thereof appertaining, as follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.1 Definitions. For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to them in
this Article and include the plural as well as the singular;
(b) all other terms used herein which are defined in the Trust Indenture Act,
either directly or by reference therein, have the meanings assigned to them therein;
(c) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles, and,
except as otherwise herein expressly provided, the term “generally accepted
accounting principles” with respect to any computation required or permitted
hereunder shall mean such accounting principles as are generally accepted at the
date of such computation;
(d) unless the context otherwise requires, any reference to an “Article” or a
“Section” refers to an Article or a Section, as the case may be, of this Indenture;
and
(e) the words “herein,” “hereof” and “hereunder” and other words of similar
import refer to this Indenture as a whole and not to any particular Article, Section
or other subdivision.
“Act” when used with respect to any Holder, has the meaning specified in Section 1.4.
“Affiliate” of any specified Person means any other Person directly or indirectly controlling
or controlled by or under direct or indirect common control with such specified Person. For the
purposes of this definition, “control” when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms “controlling” and
“controlled” have meanings correlative to the foregoing.
“Authenticating Agent” means any Person authorized by the Trustee pursuant to Section 6.14 to
act on behalf of the Trustee to authenticate Securities of one or more series.
“Board of Directors” means either the board of directors of the Company or any duly authorized
committee of that board empowered to act for it with respect to this Indenture.
“Board Resolution” means a copy of a resolution certified by the Secretary or an Assistant
Secretary of the Company to have been duly adopted by the Board of Directors and to be in full
force and effect on the date of such certification, and delivered to the Trustee.
“Business Day” when used with respect to any Place of Payment, means each Monday, Tuesday,
Wednesday, Thursday and Friday which is not a day on which banking institutions in that Place of
Payment are authorized or obligated by law or executive order to close.
“Commission” means the Securities and Exchange Commission, from time to time constituted,
created under the Exchange Act, or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
“Common Stock” includes any stock of any class of the Company which has no preference in
respect of dividends or of amounts payable in the event of any voluntary or involuntary
liquidation, dissolution or winding-up of the Company and which is not subject to redemption by the
Company
; provided, however
, subject to the provisions of Section 14.9, shares issuable upon
conversion of Securities shall include only shares of the class designated as Common Stock of the
Company at the date of this Indenture or shares of any class or classes resulting from any
reclassification or reclassifications thereof and which have no preference in respect of dividends
or of amounts payable in the event of any voluntary or involuntary liquidation, dissolution or
winding-up of the Company and which are not subject to redemption by the Company
; provided,
further
, that if at any time there shall be more than one such resulting class, the shares of each
such class then so issuable shall be substantially in the proportion which the total number of
shares of such class resulting from all such reclassifications bears to the total number of shares
of all such classes resulting from all such reclassifications.
2
“Company” means the corporation named as the “Company” in the first paragraph of this
instrument until a successor Person shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter “Company” shall mean such successor Person.
“Company Request” or “Company Order” means a written request or order signed in the name of
the Company by its Chairman of the Board, its Vice Chairman of the Board, its President or a Vice
President, and by its principal financial officer, its Treasurer, an Assistant Treasurer, its
Secretary or an Assistant Secretary, and delivered to the Trustee.
“Corporate Trust Office” means the corporate trust office of the Trustee at 707 Wilshire
Blvd., 17th Floor, Los Angeles, California 90017, or such other office, designated by the Trustee
by written notice to the Company, at which at any particular time its corporate trust business
shall be administered.
“corporation” means a corporation, association, company, joint-stock company or business
trust.
“Covenant Defeasance” has the meaning specified in Section 13.3.
“Defaulted Interest” has the meaning specified in Section 3.7.
“Defeasance” has the meaning specified in Section 13.2.
“Depositary” means, with respect to Securities of any series issuable in whole or in part in
the form of one or more Global Securities, a clearing agency registered under the Exchange Act that
is designated to act as Depositary for such Securities as contemplated by Section 3.1.
“Event of Default” has the meaning specified in Section 5.1.
“Exchange Act” means the Securities Exchange Act of 1934 and any statute successor thereto, in
each case as amended from time to time.
“Expiration Date” has the meaning specified in Section 1.4.
“Global Security” means a Security that evidences all or part of the Securities of any series
and bears the legend set forth in Section 2.4 (or such legend as may be specified as contemplated
by Section 3.1 for such Securities).
“Holder” means a Person in whose name a Security is registered in the Security Register.
“Indenture” means this instrument as originally executed and as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof, including, for all purposes of this instrument and any such
supplemental indenture, the provisions of the Trust Indenture Act that are deemed to be a part of
and govern this instrument and any such supplemental indenture, respectively. The term “Indenture”
shall also include the terms of particular series of Securities established as contemplated by
Section 3.1
; provided, however
, that if at any time more than one Person is acting as Trustee under
this Indenture due to the appointment of one or more separate Trustees
3
for any one or more separate series of Securities, “Indenture” shall mean, with respect to
such series of Securities for which any such Person is Trustee, this instrument as originally
executed or as it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof and shall include the
terms of particular series of Securities for which such Person is Trustee established as
contemplated by Section 3.1, exclusive, however, of any provisions or terms which relate solely to
other series of Securities for which such Person is not Trustee, regardless of when such terms or
provisions were adopted, and exclusive of any provisions or terms adopted by means of one or more
indentures supplemental hereto executed and delivered after such person had become such Trustee,
but to which such person, as such Trustee, was not a party
; provided, further
, that in the event
that this Indenture is supplemented or amended by one or more indentures supplemental hereto which
are only applicable to certain series of Securities, the term “Indenture” for a particular series
of Securities shall only include the supplemental indentures applicable thereto.
“interest” when used with respect to an Original Issue Discount Security which by its terms
bears interest only after Maturity, means interest payable after Maturity.
“Interest Payment Date” when used with respect to any Security, means the Stated Maturity of
an installment of interest on such Security.
“Investment Company Act” means the Investment Company Act of 1940 and any statute successor
thereto, in each case as amended from time to time.
“Maturity” when used with respect to any Security, means the date on which the principal of
such Security or an installment of principal becomes due and payable as therein or herein provided,
whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.
“Notice of Default” means a written notice of the kind specified in Section 5.1(d).
“Officers’ Certificate” means a certificate signed in the name of the Company (i) by the
Chairman of the Board, the president or chief executive officer or a Vice President of the Company
and (ii) by the chief financial officer, the chief accounting officer, the treasurer or any
assistant treasurer or the secretary or any assistant secretary of the Company.
“Opinion of Counsel” means a written opinion of counsel, who may be counsel for, or an
employee of, the Company, and who shall be reasonably acceptable to the Trustee.
“Original Issue Discount Security” means any Security which provides for an amount less than
the principal amount thereof to be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 5.2.
“Outstanding” when used with respect to Securities, means, as of the date of determination,
all Securities theretofore authenticated and delivered under this Indenture, except: (1) Securities
theretofore canceled by the Trustee or delivered to the Trustee for cancellation; (2) Securities
for whose payment or redemption money in the necessary amount has been theretofore deposited with
the Trustee or any Paying Agent (other than the Company) in trust or set aside and segregated in
trust by the Company (if the Company shall act as its own Paying Agent) for
4
the Holders of such Securities
; provided
that, if such Securities are to be redeemed, notice
of such redemption has been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made; (3) Securities as to which Defeasance has been effected
pursuant to Section 13.2; and (4) Securities which have been paid pursuant to Section 3.6 or in
exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to
this Indenture, other than any such Securities in respect of which there shall have been presented
to the Trustee proof satisfactory to it that such Securities are held by a bona fide purchaser in
whose hands such Securities are valid obligations of the Company
; provided, however
, that in
determining whether the Holders of the requisite principal amount of the Outstanding Securities
have given, made or taken any request, demand, authorization, direction, notice, consent, waiver or
other action hereunder as of any date, (A) the principal amount of an Original Issue Discount
Security which shall be deemed to be Outstanding shall be the amount of the principal thereof which
would be due and payable as of such date upon acceleration of the Maturity thereof to such date
pursuant to Section 5.2, (B) if, as of such date, the principal amount payable at the Stated
Maturity of a Security is not determinable, the principal amount of such Security which shall be
deemed to be Outstanding shall be the amount as specified or determined as contemplated by Section
3.1, (C) the principal amount of a Security denominated in one or more foreign currencies or
currency units which shall be deemed to be Outstanding shall be the U.S. dollar equivalent,
determined as of such date in the manner provided as contemplated by Section 3.1, of the principal
amount of such Security (or, in the case of a Security described in Clause (A) or (B) above, of the
amount determined as provided in such Clause), and (D) Securities owned by the Company or any other
obligor upon the Securities or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall
be protected in conclusively relying upon any such request, demand, authorization, direction,
notice, consent, waiver or other action, only Securities which a Responsible Officer of the Trustee
actually knows to be so owned shall be so disregarded. Securities so owned which have been pledged
in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is not
the Company or any other obligor upon the Securities or any Affiliate of the Company or of such
other obligor.
“Paying Agent” means any Person authorized by the Company to pay the principal of or any
premium or interest on any Securities on behalf of the Company, which initially, shall be the
Trustee.
“Person” means any individual, corporation, partnership, joint venture, trust, unincorporated
organization or government or any agency or political subdivision thereof.
“Place of Payment” when used with respect to the Securities of any series, means the place or
places where the principal of and any premium and interest on the Securities of that series are
payable as specified as contemplated by Section 3.1.
“Predecessor Security” of any particular Security means every previous Security evidencing all
or a portion of the same debt as that evidenced by such particular Security; and, for the purposes
of this definition, any Security authenticated and delivered under Section 3.6 in exchange for or
in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same
debt as the mutilated, destroyed, lost or stolen Security.
5
“Record Date” means any Regular Record Date or Special Record Date.
“Redemption Date” when used with respect to any Security to be redeemed, means the date fixed
for such redemption by or pursuant to this Indenture.
“Redemption Price” when used with respect to any Security to be redeemed, means the price at
which it is to be redeemed pursuant to this Indenture.
“Regular Record Date” for the interest payable on any Interest Payment Date on the Securities
of any series means the date specified for that purpose as contemplated by Section 3.1.
“Responsible Officer” shall mean, when used with respect to the Trustee, any officer within
the corporate trust department of the Trustee, including any vice president, assistant vice
president, assistant secretary, assistant treasurer, trust officer or any other officer of the
Trustee who customarily performs functions similar to those performed by the Persons who at the
time shall be such officers, respectively, or to whom any corporate trust matter is referred
because of such person’s knowledge of and familiarity with the particular subject and who shall
have direct responsibility for the administration of this Indenture.
“Securities” has the meaning stated in the first recital of this Indenture and more
particularly means any Securities authenticated and delivered under this Indenture.
“Securities Act” means the Securities Act of 1933 and any statute successor thereto, in each
case as amended from time to time.
“Security Register” and “Security Registrar” have the respective meanings specified in Section
3.5.
“Special Record Date” for the payment of any Defaulted Interest means a date fixed by the
Trustee pursuant to Section 3.7.
“Stated Maturity” when used with respect to any Security or any installment of principal
thereof or interest thereon, means the date specified in such Security as the fixed date on which
the principal of such Security or such installment of principal or interest is due and payable.
“Subsidiary” means a corporation of which at least a majority of the outstanding voting stock
having the power to elect a majority of the board of directors of such corporation is at the time
owned, directly or indirectly, by the Company or by one or more other Subsidiaries, or by the
Company and one or more other Subsidiaries, and the accounts of which are consolidated with those
of the Company in its most recent consolidated financial statements in accordance with generally
accepted accounting principles. For the purposes of this definition, “voting stock” means stock
which ordinarily has voting power for the election of directors, whether at all times or only so
long as no senior class of stock has such voting power by reason of any contingency.
“Trust Indenture Act” means the Trust Indenture Act of 1939 as in force at the date as of
which this instrument was executed
; provided, however
, that in the event the Trust Indenture Act of
1939 is amended after such date, “Trust Indenture Act” means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
6
“Trustee” means the Person named as the “Trustee” in the first paragraph of this instrument
until a successor Trustee shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter “Trustee” shall mean or include each Person who is then a Trustee
hereunder, and if at any time there is more than one such Person, “Trustee” as used with respect to
the Securities of any series shall mean the Trustee with respect to Securities of that series.
“U.S. Government Obligation” has the meaning specified in Section 13.4.
“Vice President” when used with respect to the Company or the Trustee, means any vice
president, whether or not designated by a number or a word or words added before or after the title
“vice president.”
Section 1.2 Compliance Certificates and Opinions. Upon any application or request by the
Company to the Trustee to take any action under any provision of this Indenture, the Company shall
furnish to the Trustee such certificates and opinions as may be required under the Trust Indenture
Act. Each such certificate or opinion shall be given in the form of an Officers’ Certificate, if to
be given by an officer of the Company, or an Opinion of Counsel, if to be given by counsel, and
shall comply with the requirements of the Trust Indenture Act and any other requirements set forth
in this Indenture.
Every certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture shall include:
(a) a statement that each individual signing such certificate or opinion has
read such covenant or condition and the definitions herein relating thereto;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such certificate or
opinion are based;
(c) a statement that, in the opinion of each such individual, he or she has
made such examination or investigation as is necessary to enable him or her to
express an informed opinion as to whether or not such covenant or condition has been
complied with; and
(d) a statement as to whether, in the opinion of each such individual, such
condition or covenant has been complied with.
Section 1.3 Form of Documents Delivered to Trustee. In any case where several matters are
required to be certified by, or covered by an opinion of, any specified Person, it is not necessary
that all such matters be certified by, or covered by the opinion of, only one such Person, or that
they be so certified or covered by only one document, but one such Person may certify or give an
opinion with respect to some matters and one or more other such Persons as to other matters, and
any such Person may certify or give an opinion as to such matters in one or several documents.
7
Any certificate or opinion of an officer of the Company may be based, insofar as it relates to
legal matters, upon a certificate or opinion of, or representations by, counsel, unless such
officer knows, or in the exercise of reasonable care should know, that the certificate or opinion
or representations with respect to the matters upon which his or her certificate or opinion is
based are erroneous. Any such certificate or opinion of counsel may be based, insofar as it relates
to factual matters, upon a certificate or opinion of, or representations by, an officer or officers
of the Company stating that the information with respect to such factual matters is in the
possession of the Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such matters are
erroneous.
Where any Person is required to make, give or execute two or more applications, requests,
consents, certificates, statements, opinions or other instruments under this Indenture, they may,
but need not, be consolidated and form one instrument.
Section 1.4 Acts of Holders; Record Dates. Any request, demand, authorization, direction,
notice, consent, waiver or other action provided or permitted by this Indenture to be given, made
or taken by Holders may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Holders in person or by agent duly appointed in writing; and, except
as herein otherwise expressly provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee and, where it is hereby expressly required, to the
Company. The Trustee shall promptly deliver to the Company copies of all such instrument or
instruments delivered to the Trustee. Such instrument or instruments (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as the “Act” of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture and (subject to
Section 6.1) conclusive in favor of the Trustee and the Company, if made in the manner provided in
this Section.
The fact and date of the execution by any Person of any such instrument or writing may be
proved by the affidavit of a witness of such execution or by a certificate of a notary public or
other officer authorized by law to take acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him or her the execution thereof. Where such
execution is by a signer acting in a capacity other than his or her individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his or her authority. The fact
and date of the execution of any such instrument or writing, or the authority of the Person
executing the same, may also be proved in any other manner which the Trustee deems sufficient.
The ownership of Securities shall be proved by the Security Register.
Any request, demand, authorization, direction, notice, consent, waiver or other Act of the
Holder of any Security shall bind every future Holder of the same Security and the Holder of every
Security issued upon the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted or suffered to be done by the Trustee or the Company
in reliance thereon, whether or not notation of such action is made upon such Security.
The Company may set any day as a record date for the purpose of determining the Holders of
Outstanding Securities of any series entitled to give, make or take any request,
8
demand, authorization, direction, vote, notice, consent, waiver or other action provided or
permitted by this Indenture to be given, made or taken by Holders of Securities of such series,
provided that the Company may not set a record date for, and the provisions of this paragraph shall
not apply with respect to, the giving or making of any notice, declaration, request or direction
referred to in the next paragraph. If any record date is set pursuant to this paragraph, the
Holders of Outstanding Securities of the relevant series on such record date, and no other Holders,
shall be entitled to take the relevant action, whether or not such Holders remain Holders after
such record date
; provided
that no such action shall be effective hereunder unless taken on or
prior to the applicable Expiration Date by Holders of the requisite principal amount of Outstanding
Securities of such series on such record date. Nothing in this paragraph shall be construed to
prevent the Company from setting a new record date for any action for which a record date has
previously been set pursuant to this paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be canceled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders of the requisite
principal amount of Outstanding Securities of the relevant series on the date such action is taken.
Promptly after any record date is set pursuant to this paragraph, the Company, at its own expense,
shall cause notice of such record date, the proposed action by Holders and the applicable
Expiration Date to be given to the Trustee in writing and to each Holder of Securities of the
relevant series in the manner set forth in Section 1.6.
The Trustee may set any day as a record date for the purpose of determining the Holders of
Outstanding Securities of any series entitled to join in the giving or making of (i) any Notice of
Default, (ii) any declaration of acceleration referred to in Section 5.2, (iii) any request to
institute proceedings referred to in Section 5.7(b) or (iv) any direction referred to in Section
5.12, in each case with respect to Securities of such series. If any record date is set pursuant to
this paragraph, the Holders of Outstanding Securities of such series on such record date, and no
other Holders, shall be entitled to join in such notice, declaration, request or direction, whether
or not such Holders remain Holders after such record date
; provided
that no such action shall be
effective hereunder unless taken on or prior to the applicable Expiration Date by Holders of the
requisite principal amount of Outstanding Securities of such series on such record date. Nothing in
this paragraph shall be construed to prevent the Trustee from setting a new record date for any
action for which a record date has previously been set pursuant to this paragraph (whereupon the
record date previously set shall automatically and with no action by any Person be canceled and of
no effect), and nothing in this paragraph shall be construed to render ineffective any action taken
by Holders of the requisite principal amount of Outstanding Securities of the relevant series on
the date such action is taken. Promptly after any record date is set pursuant to this paragraph,
the Trustee, at the Company’s expense, shall cause notice of such record date, the proposed action
by Holders and the applicable Expiration Date to be given to the Company in writing and to each
Holder of Securities of the relevant series in the manner set forth in Section 1.6.
With respect to any record date set pursuant to this Section, the party hereto which sets such
record dates may designate any day as the “Expiration Date” and from time to time may change the
Expiration Date to any earlier or later day
; provided
that no such change shall be effective
unless notice of the proposed new Expiration Date is given to the other party hereto in writing,
and to each Holder of Securities of the relevant series in the manner set forth in Section 1.6, on
or prior to the existing Expiration Date. If an Expiration Date is not designated with
9
respect to any record date set pursuant to this Section, the party hereto which set such
record date shall be deemed to have initially designated the 180th day after such record date as
the Expiration Date with respect thereto, subject to its right to change the Expiration Date as
provided in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be later than
the 180th day after the applicable record date.
Without limiting the foregoing, a Holder entitled hereunder to take any action hereunder with
regard to any particular Security may do so with regard to all or any part of the principal amount
of such Security or by one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such principal amount.
Section 1.5 Notices, Etc., to Trustee and Company. Any request, demand, authorization,
direction, notice, consent, waiver or Act of Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with:
(a) the Trustee by any Holder or by the Company shall be sufficient for every purpose
hereunder if made, given, furnished or filed in writing (or by facsimile transmissions,
provided that oral confirmation of receipt shall have been received) to or with the Trustee
at its Corporate Trust Office, Attention: Corporate Trust Services; or
(b) the Company by the Trustee or by any Holder shall be sufficient for every purpose
hereunder (unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, or by overnight delivery service to the Company addressed to it
at the address of its principal office specified in the first paragraph of this instrument
or at any other address previously furnished in writing to the Trustee by the Company,
Attention: Chief Financial Officer.
Section 1.6 Notice to Holders; Waiver. Where this Indenture provides for notice to Holders of
any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to each Holder affected by such event, at its
address as it appears in the Security Register, not later than the latest date (if any), and not
earlier than the earliest date (if any), prescribed for the giving of such notice. In any case
where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect
in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with
respect to other Holders. Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either before or after the
event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall
be filed with the Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason of any other cause it
shall be impracticable to give such notice by mail, then such notification as shall be made with
the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.
10
Notwithstanding the foregoing, the Trustee may provide notice to the Holders of Global
Security by electronic mail or other telecommunication device capable of creating a written notice
that is operative between the parties.
Section 1.7 Conflict with Trust Indenture Act. If any provision hereof limits, qualifies or
conflicts with a provision of the Trust Indenture Act which is required under such Act to be a part
of and govern this Indenture, the latter provision shall control. If any provision of this
Indenture modifies or excludes any provision of the Trust Indenture Act which may be so modified or
excluded, the latter provision shall be deemed to apply to this Indenture as so modified or to be
excluded, as the case may be.
Section 1.8 Effect of Headings and Table of Contents. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the construction hereof.
Section 1.9 Successors and Assigns. All covenants and agreements in this Indenture by the
Company shall bind its successors and assigns, whether so expressed or not.
Section 1.10 Separability Clause. In case any provision in this Indenture or in the
Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 1.11 Benefits of Indenture. Nothing in this Indenture or in the Securities, express
or implied, shall give to any Person, other than the parties hereto and their successors hereunder
and the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture.
Section 1.12 Governing Law; Waiver of Jury Trial. THIS INDENTURE AND THE SECURITIES SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK. EACH OF THE COMPANY
AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY
AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS
INDENTURE, THE NOTES OR THE TRANSACTION CONTEMPLATED HEREBY.
Section 1.13 Legal Holidays. In any case where any Interest Payment Date, Redemption Date or
Stated Maturity of any Security or the last date on which a Holder has the right to convert a
Security at a particular conversion price shall not be a Business Day at any Place of Payment, then
(notwithstanding any other provision of this Indenture or of the Securities (other than a provision
of any Security which specifically states that such provision shall apply in lieu of this Section))
payment of interest or principal (and premium, if any) or, if applicable to a particular series of
Securities, conversion need not be made at such Place of Payment on such date, but may be made on
the next succeeding Business Day at such Place of Payment with the same force and effect as if made
on the Interest Payment Date or Redemption Date, at the Stated Maturity or on such last day for
conversion, as the case may be, and no additional interest shall
accrue.
Section 1.14 Indenture and Securities Solely Corporate Obligations. No recourse for the
payment of the principal of or premium, if any, or interest on any Security, or for any claim
11
based thereon or otherwise in respect thereof, and no recourse under or upon any obligation,
covenant or agreement of the Company in this Indenture or in any supplemental indenture or in any
Security, or because of the creation of any indebtedness represented thereby, shall be had against
any incorporator, stockholder, employee, agent, officer, or director or subsidiary, as such, past,
present or future, of the Company or of any successor corporation, either directly or through the
Company or any successor corporation, whether by virtue of any constitution, statute or rule of
law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood
that all such liability is hereby expressly waived and released as a condition of, and as a
consideration for, the execution of this Indenture and the issue of the Securities.
Section 1.15 Force Majeure. In no event shall the Trustee be responsible or liable for any
failure or delay in the performance of its obligations hereunder arising out of or caused by,
directly or indirectly, forces beyond its control, including, without limitation, strikes, work
stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural
catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications
or computer (software and hardware) services; it being understood that the Trustee shall use
reasonable efforts which are consistent with accepted practices in the banking industry to resume
performance as soon as practicable under the circumstances.
Section 1.16 U.S.A. Patriot Act. The parties hereto acknowledge that in accordance with
Section 326 of the U.S.A. Patriot Act, the Trustee, like all financial institutions and in order to
help fight the funding of terrorism and money laundering, is required to obtain, verify, and record
information that identifies each person or legal entity that establishes a relationship or opens an
account with the Trustee. The parties to this Indenture agree that they will provide the Trustee
with such information as it may request in order for the Trustee to satisfy the requirements of the
U.S.A. Patriot Act.
ARTICLE 2
SECURITY FORMS
Section 2.1 Forms Generally. The Securities of each series shall be in substantially the form
set forth in this Article, or in such other form as shall be established by or pursuant to a Board
Resolution or in one or more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any securities exchange
or Depositary therefor or as may, consistently herewith, be determined by the officers executing
such Securities, as evidenced by their execution thereof. If the form of Securities of any series
is established by action taken pursuant to a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Company Order contemplated by Section
3.3 for the authentication and delivery of such Securities. Any such Board Resolution or record of
such action shall have attached thereto a true and correct copy of the form of Security referred to
therein approved by or pursuant to such Board Resolution.
12
The definitive Securities shall be printed, lithographed or engraved on steel engraved borders
or may be produced in any other manner, all as determined by the officers executing such
Securities, as evidenced by their execution of such Securities.
Section 2.2 Form of Face of Security.
[INSERT ANY LEGEND REQUIRED BY THE INTERNAL REVENUE CODE AND THE REGULATIONS THEREUNDER.]
13
SYMANTEC CORPORATION
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CUSIP
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NO. _________
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$
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_______________________
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Symantec Corporation, a corporation duly organized and existing under the laws of Delaware
(herein called the “Company,” which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to ____________, or registered
assigns, the principal sum of _____________ Dollars on _____________________________ [IF THE
SECURITY IS TO BEAR INTEREST PRIOR TO MATURITY, INSERT — , and to pay interest thereon from
__________ or from the most recent Interest Payment Date to which interest has been paid or duly
provided for, semiannually in arrears on ___________ and __________ in each year, commencing
________., at the rate of ___% per annum, until the principal hereof is paid or made available for
payment [IF APPLICABLE, INSERT — , provided that any principal and premium, and any such
installment of interest, which is overdue shall bear interest at the rate of ___% per annum (to the
extent that the payment of such interest shall be legally enforceable), from the dates such amounts
are due until they are paid or made available for payment, and such interest shall be payable on
demand][and IF APPLICABLE, INSERT — , as may be adjusted in the event of a ratings downgrade].
The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date
will, as provided in such Indenture, be paid to the Person in whose name this Security (or one or
more Predecessor Securities) is registered at the close of business on the Regular Record Date for
such interest, which shall be the ______ or ______ (whether or not a Business Day), as the case may
be, next preceding such Interest Payment Date. Any such interest not so punctually paid or duly
provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may
either be paid to the Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities of this
series not less than 10 days prior to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed, and upon such notice as may be required by such exchange,
all as more fully provided in said Indenture].
[IF THE SECURITY IS NOT TO BEAR INTEREST PRIOR TO MATURITY, INSERT — The principal of this
Security shall not bear interest except in the case of a default in payment of principal upon
acceleration, upon redemption or at Stated Maturity and in such case the overdue principal and any
overdue premium shall bear interest at the rate of ___% per annum (to the extent that the payment
of such interest shall be legally enforceable), from the dates such amounts are due until they are
paid or made available for payment. Interest on any overdue principal or premium shall be payable
on demand. [Any such interest on overdue principal or premium which is not paid on demand shall
bear interest at the rate of ___% per annum (to the extent that the payment of such interest on
interest shall be legally enforceable), from the date of such demand until the amount so demanded
is paid or made available for payment. Interest on any overdue interest shall be payable on
demand.]]
Payment of the principal of (and premium, if any) and [IF APPLICABLE, INSERT — any such]
interest on this Security will be made at the office or agency of the Company
14
maintained
for that purpose in Minneapolis, Minnesota, in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and private debts [IF
APPLICABLE, INSERT —
; provided, however
, that at the option of the Company payment of interest
may be made by check mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register].
Reference is hereby made to the further provisions of this Security set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as if set forth at
this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to
on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under
the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
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SYMANTEC CORPORATION
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By:
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Name:
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Title:
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ATTEST:
Section 2.3 Form of Reverse of Security. This Security is one of a duly authorized issue of
securities of the Company (herein called the “Securities”), issued and to be issued in one or more
series under an Indenture, dated as of __________ (herein called the “Indenture,” which term shall
have the meaning assigned to it in such instrument), between the Company and Wells Fargo Bank,
National Association, as Trustee (herein called the “Trustee,” which term includes any successor
trustee under the Indenture), and reference is hereby made to the Indenture and all indentures
supplemental thereto for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee and the Holders of the Securities and of the
terms upon which the Securities are, and are to be, authenticated and delivered. This Security is
one of the series designated on the face hereof [IF APPLICABLE, INSERT — , limited in aggregate
principal amount to $________].
[IF APPLICABLE, INSERT — The Securities of this series are subject to redemption upon not
less than 30 days’ notice by mail, [IF APPLICABLE, INSERT — (1) on __________ in any year
commencing with the year ________ and ending with the year ________ through operation of the
sinking fund for this series at a Redemption Price equal to 100% of the principal amount, and (2)]
at any time [IF APPLICABLE, INSERT — on or after __________, 20__], as a whole or in part, at the
election of the Company, at the following Redemption Prices (expressed as percentages of the
principal amount): If redeemed [IF APPLICABLE, INSERT — on or before __________, ___%, and if
redeemed] during the 12—month period beginning ____________ of the years indicated,
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YEAR
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REDEMPTION PRICE
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YEAR
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REDEMPTION PRICE
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and thereafter at a Redemption Price equal to ___% of the principal amount, together in the
case of any such redemption [IF APPLICABLE, INSERT — (whether through operation of the sinking
fund or otherwise)] with accrued interest to the Redemption Date, but interest installments whose
Stated Maturity is on or prior to such Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the Indenture.]
[IF APPLICABLE, INSERT — The Securities of this series are subject to redemption upon not
less than 30 days’ notice by mail, (1) on __________ in any year commencing with the year _____ and
ending with the year _____ through operation of the sinking fund for this series at the Redemption
Prices for redemption through operation of the sinking fund (expressed as percentages of the
principal amount) set forth in the table below, and (2) at any time [IF APPLICABLE, INSERT — on or
after __________], as a whole or in part, at the election of the Company, at the Redemption Prices
for redemption otherwise than through operation of the sinking fund (expressed as percentages of
the principal amount) set forth in the table below: If redeemed during the 12-month period
beginning __________ of the years indicated,
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REDEMPTION PRICE FOR REDEMPTION —
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REDEMPTION PRICE FOR REDEMPTION —
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THROUGH OPERATION OF THE
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OTHERWISE THAN THROUGH
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YEAR
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SINKING FUND
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OPERATION OF THE SINKING FUND
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and thereafter at a Redemption Price equal to ____% of the principal amount, together in the
case of any such redemption (whether through operation of the sinking fund or otherwise) with
accrued interest to the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant Record Dates referred to
on the face hereof, all as provided in the Indenture.]
[IF APPLICABLE, INSERT — Notwithstanding the foregoing, the Company may not, prior to
__________, redeem any Securities of this series as contemplated by [IF APPLICABLE, INSERT —
Clause (2) of] the preceding paragraph as a part of, or in anticipation of, any refunding operation
by the application, directly or indirectly, of moneys borrowed having an interest cost to the
Company (calculated in accordance with generally accepted financial practice) of less than ___% per
annum.]
[IF APPLICABLE, INSERT — The sinking fund for this series provides for the redemption on
__________ in each year beginning with the year ______ and ending with the year ______ of [IF
APPLICABLE, INSERT — not less than $_______ (“mandatory sinking fund”) and not more than] $_______
aggregate principal amount of Securities of this series. Securities of this series acquired or
redeemed by the Company otherwise than through [IF APPLICABLE, INSERT — mandatory] sinking fund
payments may be credited against
16
subsequent [if applicable, insert — mandatory] sinking fund payments otherwise required to be
made [IF APPLICABLE, INSERT — , in the inverse order in which they become due].]
[IF THE SECURITY IS SUBJECT TO REDEMPTION OF ANY KIND, INSERT — In the event of redemption of
this Security in part only, a new Security or Securities of this series and of like tenor for the
unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation
hereof.]
[IF APPLICABLE, INSERT — The Indenture contains provisions for defeasance at any time of [the
entire indebtedness of this Security] [or] [certain restrictive covenants and Events of Default
with respect to this Security] [, in each case] upon compliance with certain conditions set forth
in the Indenture.]
[IF APPLICABLE, INSERT — The Indenture contains provisions for interest rate adjustment from
time to time if either of the Ratings assigned to the Notes is downgraded to a non-Investment Grade
Rating.]
[IF THE SECURITY IS CONVERTIBLE INTO COMMON STOCK OF THE COMPANY, INSERT — Subject to the
provisions of the Indenture, the Holder of this Security is entitled, at its option, at any time on
or before [insert date] (except that, in case this Security or any portion hereof shall be called
for redemption, such right shall terminate with respect to this Security or portion hereof, as the
case may be, so called for redemption at the close of business on the first Business Day next
preceding the date fixed for redemption as provided in the Indenture unless the Company defaults in
making the payment due upon redemption), to convert the principal amount of this Security (or any
portion hereof which is $1,000 or an integral multiple thereof), into fully paid and non-assessable
shares (calculated as to each conversion to the nearest 1/100th of a share) of the Common Stock of
the Company, as said shares shall be constituted at the date of conversion, at the conversion price
of $______ principal amount of Securities for each share of Common Stock, or at the adjusted
conversion price in effect at the date of conversion determined as provided in the Indenture, upon
surrender of this Security, together with the conversion notice hereon duly executed, to the
Company at the designated office or agency of the Company in __________, accompanied (if so
required by the Company) by instruments of transfer, in form satisfactory to the Company and to the
Trustee, duly executed by the Holder or by its duly authorized attorney in writing. Such surrender
shall, if made during any period beginning at the close of business on a Regular Record Date and
ending at the opening of business on the Interest Payment Date next following such Regular Record
Date (unless this Security or the portion being converted shall have been called for redemption on
a Redemption Date during the period beginning at the close of business on a Regular Record Date and
ending at the opening of business on the first Business Day after the next succeeding Interest
Payment Date, or if such Interest Payment Date is not a Business Day, the second such Business
Day), also be accompanied by payment in funds acceptable to the Company of an amount equal to the
interest payable on such Interest Payment Date on the principal amount of this Security then being
converted. Subject to the aforesaid requirement for payment and, in the case of a conversion after
the Regular Record Date next preceding any Interest Payment Date and on or before such Interest
Payment Date, to the right of the Holder of this Security (or any Predecessor Security) of record
at such Regular Record Date to receive an installment of interest (with certain exceptions provided
in the Indenture), no adjustment is to be made on conversion for interest
17
accrued hereon or for dividends on shares of Common Stock issued on conversion. The Company is
not required to issue fractional shares upon any such conversion, but shall make adjustment
therefor in cash on the basis of the current market value of such fractional interest as provided
in the Indenture. The conversion price is subject to adjustment as provided in the Indenture. In
addition, the Indenture provides that in case of certain consolidations or mergers to which the
Company is a party or the sale of substantially all of the assets of the Company, the Indenture
shall be amended, without the consent of any Holders of Securities, so that this Security, if then
outstanding, will be convertible thereafter, during the period this Security shall be convertible
as specified above, only into the kind and amount of securities, cash and other property receivable
upon the consolidation, merger or sale by a holder of the number of shares of Common Stock into
which this Security might have been converted immediately prior to such consolidation, merger or
sale (assuming such holder of Common Stock failed to exercise any rights of election and received
per share the kind and amount received per share by a plurality of non-electing shares). In the
event of conversion of this Security in part only, a new Security or Securities for the unconverted
portion hereof shall be issued in the name of the Holder hereof upon the cancellation hereof.]
[IF THE SECURITY IS CONVERTIBLE INTO OTHER SECURITIES OF THE COMPANY, SPECIFY THE CONVERSION
FEATURES.]
[IF THE SECURITY IS NOT AN ORIGINAL ISSUE DISCOUNT SECURITY, INSERT — If an Event of Default
with respect to Securities of this series shall occur and be continuing, the principal of the
Securities of this series may be declared due and payable in the manner and with the effect
provided in the Indenture.]
[IF THE SECURITY IS AN ORIGINAL ISSUE DISCOUNT SECURITY, INSERT — If an Event of Default with
respect to Securities of this series shall occur and be continuing, an amount of principal of the
Securities of this series may be declared due and payable in the manner and with the effect
provided in the Indenture. Such amount shall be equal to — INSERT FORMULA FOR DETERMINING THE
AMOUNT. Upon payment (i) of the amount of principal so declared due and payable and (ii) of
interest on any overdue principal, premium and interest (in each case to the extent that the
payment of such interest shall be legally enforceable), all of the Company’s obligations in respect
of the payment of the principal of and premium and interest, if any, on the Securities of this
series shall terminate.]
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and
the modification of the rights and obligations of the Company and the rights of the Holders of the
Securities of each series to be affected under the Indenture at any time by the Company and the
Trustee with the consent of the Holders of more than 50% in principal amount of the Securities at
the time Outstanding of each series to be affected. The Indenture also contains provisions
permitting the Holders of specified percentages in principal amount of the Securities of each
series at the time Outstanding, on behalf of the Holders of all Securities of such series, to waive
compliance by the Company with certain provisions of the Indenture and certain past defaults under
the Indenture and their consequences. Any such consent or waiver by the Holder of this Security
shall be conclusive and binding upon such Holder and upon all future Holders of this Security and
of any Security issued upon the registration of transfer hereof or in
18
exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made
upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder of this Security
shall not have the right to institute any proceeding with respect to the Indenture or for the
appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall
have previously given the Trustee written notice of a continuing Event of Default with respect to
the Securities of this series, the Holders of not less than 25% in principal amount of the
Securities of this series at the time Outstanding shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default as Trustee and offered the Trustee an
indemnity satisfactory to the Trustee, and the Trustee shall not have received from the Holders of
a majority in principal amount of Securities of this series at the time Outstanding a direction
inconsistent with such request, and shall have failed to institute any such proceeding, for 60 days
after receipt of such notice, request and offer of indemnity. The foregoing shall not apply to any
suit instituted by the Holder of this Security for the enforcement of any payment of principal
hereof or any premium or interest hereon on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security or of the Indenture
shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay
the principal of and any premium and interest on this Security at the times, place and rate, and in
the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the
transfer of this Security is registrable in the Security Register, upon surrender of this Security
for registration of transfer at the office or agency of the Company in any place where the
principal of and any premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or its attorney duly authorized in writing,
and thereupon one or more new Securities of this series and of like tenor, of authorized
denominations and for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
The Securities of this series are issuable only in registered form without coupons in
denominations of $2,000 and integral multiples of $1,000 in excess thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Securities of this series are
exchangeable for a like aggregate principal amount of Securities of this series and of like tenor
of a different authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or exchange, but the
Company may require payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the Person in whose name this
Security is registered as the owner hereof for all purposes, whether or not this Security be
overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
19
All terms used in this Security which are defined in the Indenture shall have the meanings
assigned to them in the Indenture.
Section 2.4 Form of Legend for Global Securities. Unless otherwise specified as contemplated
by Section 3.1 for the Securities evidenced thereby, every Global Security authenticated and
delivered hereunder shall bear a legend in substantially the following form: THIS SECURITY IS A
GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN
THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN
PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN
THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
Section 2.5 Form of Trustee’s Certificate of Authentication. The Trustee’s certificates of
authentication shall be in substantially the following form:
This is one of the Securities of the series designated herein referred to in the
within-mentioned Indenture.
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WELLS FARGO BANK, NATIONAL ASSOCIATION,
As Trustee
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Dated: ___________
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By:
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Authorized Signatory
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Section 2.6 Form of Conversion Notice. Conversion notices shall be in substantially the
following form:
To Symantec Corporation:
The undersigned owner of this Security hereby irrevocably exercises the option to convert this
Security, or portion hereof (which is in denominations of $2,000 and integral multiples of $1,000
in excess thereof) below designated, into shares of Common Stock of the Company in accordance with
the terms of the Indenture referred to in this Security, and directs that the shares issuable and
deliverable upon the conversion, together with any check in payment for fractional shares and any
Securities representing any unconverted principal amount hereof, be issued and delivered to the
registered holder hereof unless a different name has been indicated below. If this Notice is being
delivered on a date after the close of business on a Regular Record Date and prior to the opening
of business on the related Interest Payment Date (unless this Security or the portion thereof being
converted has been called for redemption on a Redemption Date during the period beginning at the
close of business on a Regular Record Date and ending at the opening of business on the first
Business Day after the next succeeding Interest Payment Date, or if such Interest Payment Date is
not a Business Day, the second such Business Day), this Notice is accompanied by payment, in funds
acceptable to the Company, of an amount equal to
20
the interest payable on such Interest Payment Date of the principal of this Security to be
converted. If shares are to be issued in the name of a person other than the undersigned, the
undersigned will pay all transfer taxes payable with respect hereto. Any amount required to be paid
by the undersigned on account of interest accompanies this Security.
PRINCIPAL AMOUNT TO BE CONVERTED (IN DENOMINATIONS OF $2,000 AND IN AN INTEGRAL MULTIPLE OF
$1,000, IF LESS THAN ALL)
U.S. $_________
Dated: __________
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Signature(s) must be guaranteed by an eligible
guarantor institution (banks, stock brokers, savings
and loan associations and credit unions with
membership in an approved signature guarantee
medallion program) pursuant to Securities and
Exchange Commission Rule 17Ad-15.
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Signature Guaranty
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Fill in for registration of shares of Common Stock and Security if to be issued otherwise than
to the registered Holder.
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Name
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Social Security or Other Taxpayer
Identification Number
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Please print Name and Address
(including zip code number)
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[The above conversion notice is to be modified, as appropriate, for conversion into other
securities or property of the Company.]
ARTICLE 3
THE SECURITIES
Section 3.1 Amount Unlimited; Issuable in Series. The aggregate principal amount of
Securities which may be authenticated and delivered under this Indenture is unlimited.
21
The Securities may be issued in one or more series. There shall be established in or pursuant
to a Board Resolution and, subject to Section 3.3, set forth, or determined in the manner provided,
in an Officers’ Certificate, or established in one or more indentures supplemental hereto, prior to
the issuance of Securities of any series:
(a) the title of the Securities of the series (which shall distinguish the Securities
of the series from Securities of any other series);
(b) any limit upon the aggregate principal amount of the Securities of the series which
may be authenticated and delivered under this Indenture (except for Securities authenticated
and delivered upon registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 3.4, Section 3.5, Section 3.6, Section 9.6 or
Section 11.7 and except for any Securities which, pursuant to Section 3.3, are deemed never
to have been authenticated and delivered hereunder);
(c) the Person to whom any interest on a Security of the series shall be payable, if
other than the Person in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such interest;
(d) the date or dates on which the principal of any Securities of the series is
payable;
(e) the rate or rates (which may be fixed or variable), or the method of determination
thereof, at which any Securities of the series shall bear interest, if any, including the
rate of interest applicable on overdue payments of principal or interest, as may be
adjusted, if different from the rate of interest stated in the title of the Security, the
date or dates from which any such interest shall accrue, the Interest Payment Dates on which
any such interest shall be payable and the Regular Record Date for any such interest payable
on any Interest Payment Date;
(f) the place or places where the principal of and any premium and interest on any
Securities of the series shall be payable;
(g) the period or periods within which, the price or prices at which and the terms and
conditions upon which any Securities of the series may be redeemed, in whole or in part, at
the option of the Company and, if other than by a Board Resolution, the manner in which any
election by the Company to redeem the Securities shall be evidenced;
(h) the obligation, if any, of the Company to redeem or purchase any Securities of the
series pursuant to any sinking fund or analogous provisions or at the option of the Holder
thereof and the period or periods within which, the price or prices at which and the terms
and conditions upon which any Securities of the series shall be redeemed or purchased, in
whole or in part, pursuant to such obligation;
22
(i) if other than denominations of $2,000 and any integral multiple of $1,000 in excess
thereof, the denominations in which any Securities of the series shall be issuable;
(j) if the amount of principal of or any premium or interest on any Securities of the
series may be determined with reference to an index or pursuant to a formula, the manner in
which such amounts shall be determined;
(k) if other than the currency of the United States of America, the currency,
currencies or currency units in which the principal of or any premium or interest on any
Securities of the series shall be payable and the manner of determining the equivalent
thereof in the currency of the United States of America for any purpose, including for
purposes of the definition of “Outstanding” in Section 1.1;
(l) if the principal of or any premium or interest on any Securities of the series is
to be payable, at the election of the Company or the Holder thereof, in one or more
currencies or currency units other than that or those in which such Securities are stated to
be payable, the currency, currencies or currency units in which the principal of or any
premium or interest on such Securities as to which such election is made shall be payable,
the periods within which and the terms and conditions upon which such election is to be made
and the amount so payable (or the manner in which such amount shall be determined);
(m) if other than the entire principal amount thereof, the portion of the principal
amount of any Securities of the series which shall be payable upon declaration of
acceleration of the Maturity thereof pursuant to Section 5.2;
(n) if the principal amount payable at the Stated Maturity of any Securities of the
series will not be determinable as of any one or more dates prior to the Stated Maturity,
the amount which shall be deemed to be the principal amount of such Securities as of any
such date for any purpose thereunder or hereunder, including the principal amount thereof
which shall be due and payable upon any Maturity other than the Stated Maturity or which
shall be deemed to be Outstanding as of any date prior to the Stated Maturity (or, in any
such case, the manner in which such amount deemed to be the principal amount shall be
determined);
(o) if applicable, that the Securities of the series, in whole or any specified part,
shall be defeasible pursuant to Section 13.2 or Section 13.3 or both such Sections and, if
other than by a Board Resolution, the manner in which any election by the Company to defease
such Securities shall be evidenced;
(p) if applicable, the terms of any right to convert Securities of the series into, or
exchange Securities of the Series for, shares of Common Stock of the Company or other
securities or property;
(q) if applicable, that any Securities of the series shall be issuable in whole or in
part in the form of one or more Global Securities and, in such case, the respective
Depositaries for such Global Securities, the form of any legend or legends which shall be
23
borne by any such Global Security in addition to or in lieu of that set forth in
Section 2.4 and any circumstances in addition to or in lieu of those set forth in Clause (b)
of the last paragraph of Section 3.5 in which any such Global Security may be exchanged in
whole or in part for Securities registered, and any transfer of such Global Security in
whole or in part may be registered, in the name or names of Persons other than the
Depositary for such Global Security or a nominee thereof;
(r) any addition or deletion to or change in the Events of Default which applies to any
Securities of the series and any change in the right of the Trustee or the requisite Holders
of such Securities to declare the principal amount thereof due and payable pursuant to
Section 5.2;
(s) any addition to or change in the covenants set forth in Article 10 which applies to
Securities of the series; and
(t) any other terms of the series (which terms shall not be inconsistent with the
provisions of this Indenture, except as permitted by Section 9.1(e)).
All Securities of any one series shall be substantially identical except as to denomination
and except as may otherwise be provided in or pursuant to the Board Resolution referred to above
and (subject to Section 3.3) set forth, or determined in the manner provided, in the Officers’
Certificate referred to above or in any such indenture supplemental hereto.
If any of the terms of the series are established by action taken pursuant to a Board
Resolution, a copy of an appropriate record of such action shall be certified by the Secretary or
an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of
the Officers’ Certificate setting forth the terms of the series.
Section 3.2 Denominations. The Securities of each series shall be issuable only in registered
form without coupons and only in such denominations as shall be specified as contemplated by
Section 3.1. In the absence of any such specified denomination with respect to the Securities of
any series, the Securities of such series shall be issuable in denominations of $2,000 and integral
multiples of $1,000 in excess thereof.
Section 3.3 Execution, Authentication, Delivery and Dating. The Securities shall be executed
on behalf of the Company by its Chairman of the Board, its Vice Chairman of the Board, its
principal financial officer, its President or one of its Vice Presidents. The signature of any of
these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who were at any time the
proper officers of the Company shall bind the Company, notwithstanding that such individuals or any
of them have ceased to hold such offices prior to the authentication and delivery of such
Securities or did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this Indenture, the
Company may deliver Securities of any series executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and delivery of such
Securities, and the Trustee in accordance with the Company Order shall authenticate and deliver
24
such Securities. If the form or terms of the Securities of the series have been established by
or pursuant to one or more Board Resolutions as permitted by Section 2.1 and Section 3.1, in
authenticating such Securities, and accepting the additional responsibilities under this Indenture
in relation to such Securities, the Trustee shall receive, and (subject to Section 6.1) shall be
fully protected in conclusively relying upon, a copy of such Board Resolution, the Officers’
Certificate setting forth the terms of the series and an Opinion of Counsel, with such Opinion of
Counsel stating:
(a) if the form of such Securities has been established by or pursuant to Board
Resolution as permitted by Section 2.1, that such form has been established in conformity
with the provisions of this Indenture;
(b) if the terms of such Securities have been established by or pursuant to Board
Resolution as permitted by Section 3.1, that such terms have been established in conformity
with the provisions of this Indenture; and
(c) that such Securities, when authenticated and delivered by the Trustee and issued by
the Company in the manner and subject to any conditions specified in such Opinion of
Counsel, will constitute valid and legally binding obligations of the Company enforceable in
accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating to or
affecting creditors’ rights and to general equity principles.
If such form or terms have been so established, the Trustee shall not be required to
authenticate such Securities if the issue of such Securities pursuant to this Indenture will affect
the Trustee’s own rights, duties or immunities under the Securities and this Indenture or otherwise
in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 3.1 and of the preceding paragraph, if all
Securities of a series are not to be originally issued at one time, it shall not be necessary to
deliver the Officers’ Certificate otherwise required pursuant to Section 3.1 or the Company Order
and Opinion of Counsel otherwise required pursuant to such preceding paragraph at or prior to the
authentication of each Security of such series if such documents are delivered at or prior to the
authentication upon original issuance of the first Security of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be valid or obligatory
for any purpose unless there appears on such Security a certificate of authentication substantially
in the form provided for herein executed by the Trustee by manual signature, and such certificate
upon any Security shall be conclusive evidence, and the only evidence, that such Security has been
duly authenticated and delivered hereunder. Notwithstanding the foregoing, if any Security shall
have been authenticated and delivered hereunder but never issued and sold by the Company, and the
Company shall deliver such Security to the Trustee for cancellation as provided in Section 3.9, for
all purposes of this Indenture such Security shall be deemed never to
25
have been authenticated and delivered hereunder and shall never be entitled to the benefits of
this Indenture.
Section 3.4 Temporary Securities. Pending the preparation of definitive Securities of any
series, the Company may execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of the tenor of the definitive Securities
in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as evidenced by their
execution of such Securities.
If temporary Securities of any series are issued, the Company will cause definitive Securities
of that series to be prepared without unreasonable delay. After the preparation of definitive
Securities of such series, the temporary Securities of such series shall be exchangeable for
definitive Securities of such series upon surrender of the temporary Securities of such series at
the office or agency of the Company in a Place of Payment for that series, without charge to the
Holder. Upon surrender for cancellation of any one or more temporary Securities of any series, the
Company shall execute and the Trustee shall authenticate and deliver in exchange therefor one or
more definitive Securities of the same series, of any authorized denominations and of like tenor
and aggregate principal amount. Until so exchanged, the temporary Securities of any series shall in
all respects be entitled to the same benefits under this Indenture as definitive Securities of such
series and tenor.
Section 3.5 Registration; Registration of Transfer and Exchange. The Company shall cause to
be kept at the Corporate Trust Office of the Trustee a register (the register maintained in such
office and in any other office or agency of the Company in a Place of Payment being herein
sometimes collectively referred to as the “Security Register”) in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration of Securities and
of transfers of Securities. The Trustee is hereby appointed “Security Registrar” for the purpose of
registering Securities and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of a series at the office or
agency of the Company in a Place of Payment for that series, the Company shall execute, and the
Trustee shall authenticate and deliver, in the name of the designated transferee or transferees,
one or more new Securities of the same series, of any authorized denominations and of like tenor
and aggregate principal amount.
At the option of the Holder, Securities of any series may be exchanged for other Securities of
the same series, of any authorized denominations and of like tenor and aggregate principal amount,
upon surrender of the Securities to be exchanged at such office or agency. Whenever any Securities
are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of Securities shall be the
valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under
this Indenture, as the Securities surrendered upon such registration of transfer or exchange.
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Every Security presented or surrendered for registration of transfer or for exchange shall (if
so required by the Company or the Trustee) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security Registrar duly
executed, by the Holder thereof or its attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or exchange of Securities,
but the Company may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 3.4, Section 9.6 or Section 11.7 not involving
any transfer.
If the Securities of any series (or of any series and specified tenor) are to be redeemed in
part, the Company shall not be required (A) to issue, register the transfer of or exchange any
Securities of that series (or of that series and specified tenor, as the case may be) during a
period beginning at the opening of business 15 days before the day of the mailing of a notice of
redemption of any such Securities selected for redemption under Section 11.3 and ending at the
close of business on the day of such mailing, or (B) to register the transfer of or exchange any
Security so selected for redemption in whole or in part, except the unredeemed portion of any
Security being redeemed in part.
The provisions of Clauses (a), (b), (c) and (d) below shall apply only to Global Securities:
(a) Each Global Security authenticated under this Indenture shall be registered in the
name of the Depositary designated for such Global Security or a nominee thereof and
delivered to such Depositary or a nominee thereof or custodian therefor, and each such
Global Security shall constitute a single Security for all purposes of this Indenture.
(b) Notwithstanding any other provision in this Indenture, no Global Security may be
exchanged in whole or in part for Securities registered, and no transfer of a Global
Security in whole or in part may be registered, in the name of any Person other than the
Depositary for such Global Security or a nominee thereof unless (A) such Depositary (i) has
notified the Company that it is unwilling or unable to continue as Depositary for such
Global Security or (ii) has ceased to be a clearing agency registered under the Exchange
Act, (B) there shall have occurred and be continuing an Event of Default with respect to
such Global Security or (C) there shall exist such circumstances, if any, in addition to or
in lieu of the foregoing as have been specified for this purpose as contemplated by Section
3.1.
(c) Subject to Clause (b) above, any exchange of a Global Security for other Securities
may be made in whole or in part, and all Securities issued in exchange for a Global Security
or any portion thereof shall be registered in such names as the Depositary for such Global
Security shall direct.
(d) Every Security authenticated and delivered upon registration of transfer of, or in
exchange for or in lieu of, a Global Security or any portion thereof, whether pursuant to
this Section, Section 3.4, Section 3.6, Section 9.6 or Section 11.7 or otherwise, shall be
authenticated and delivered in the form of, and shall be, a Global
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Security, unless such Security is registered in the name of a Person other than the
Depositary for such Global Security or a nominee thereof.
Neither the Trustee nor any agent shall have any responsibility for any actions taken or not
taken by the Depositary.
Section 3.6 Mutilated, Destroyed, Lost and Stolen Securities. If any mutilated Security is
surrendered to the Trustee, the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence to their satisfaction
of the destruction, loss or theft of any Security and (ii) such security or indemnity as may be
required by them to save each of them and any agent of either of them harmless, then, in the
absence of written notice to the Company or the Trustee that such Security has been acquired by a
bona fide purchaser, the Company shall execute and the Trustee shall authenticate and deliver, in
lieu of any such destroyed, lost or stolen Security, a new Security of the same series and of like
tenor and principal amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become or is about to
become due and payable, the Company in its discretion may, instead of issuing a new Security, pay
such Security.
Upon the issuance of any new Security under this Section, the Company may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trustee) connected
therewith.
Every new Security of any series issued pursuant to this Section in lieu of any destroyed,
lost or stolen Security shall constitute an original additional contractual obligation of the
Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately
with any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the extent lawful) all
other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost
or stolen Securities.
Section 3.7 Payment of Interest; Interest Rights Preserved. Except as otherwise provided as
contemplated by Section 3.1 with respect to any series of Securities, interest on any Security
which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall
be paid to the Person in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such interest.
Any interest on any Security of any series which is payable, but is not punctually paid or
duly provided for, on any Interest Payment Date (herein called “Defaulted Interest”) shall
forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of
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having been such Holder, and such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in Clause (a) or (b) below:
The Company may elect to make payment of any Defaulted Interest to the Persons in whose names
the Securities of such series (or their respective Predecessor Securities) are registered at the
close of business on a Special Record Date for the payment of such Defaulted Interest, which shall
be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Security of such series and the date of the proposed
payment, and at the same time the Company shall deposit with the Trustee an amount of money equal
to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this Clause provided. Thereupon the Trustee shall fix a Special
Record Date for the payment of such Defaulted Interest which shall be not more than 15 days and not
less than 10 days prior to the date of the proposed payment and not less than 10 days after the
receipt by the Trustee of the written notice of the proposed payment. The Trustee shall promptly
notify the Company of such Special Record Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date
therefor to be given to each Holder of Securities of such series in the manner set forth in Section
1.6, not less than 10 days prior to such Special Record Date. Notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business on such Special Record
Date and shall no longer be payable pursuant to the following Clause (b).
The Company may make payment of any Defaulted Interest on the Securities of any series in any
other lawful manner not inconsistent with the requirements of any securities exchange on which such
Securities may be listed, and upon such notice as may be required by such exchange, if, after
written notice given by the Company to the Trustee of the proposed payment pursuant to this Clause,
such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security delivered under this
Indenture upon registration of transfer of or in exchange for or in lieu of any other Security
shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such
other Security.
Subject to the provisions of Section 14.2, in the case of any Security (or any part thereof)
which is converted after any Regular Record Date and on or prior to the next succeeding Interest
Payment Date (other than any Security the principal of (or premium, if any, on) which shall become
due and payable, whether at Stated Maturity or by declaration of acceleration prior to such
Interest Payment Date), interest whose Stated Maturity is on such Interest Payment Date shall be
payable on such Interest Payment Date notwithstanding such conversion and such interest (whether or
not punctually paid or duly provided for) shall be paid to the Person in whose name that Security
(or any one or more Predecessor Securities) is registered at the close of business on such Regular
Record Date. Except as otherwise expressly provided in the
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immediately preceding sentence or in Section 14.2, in the case of any Security (or any part
thereof) which is converted, interest whose Stated Maturity is after the date of conversion of such
Security (or such part thereof) shall not be payable.
Section 3.8 Persons Deemed Owners. Prior to due presentment of a Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person
in whose name such Security is registered as the owner of such Security for the purpose of
receiving payment of principal of and any premium and (subject to Section 3.7) any interest on such
Security and for all other purposes whatsoever, whether or not such Security be overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by
notice to the contrary.
Section 3.9 Cancellation. All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if surrendered to any
Person other than the Trustee, be delivered to the Trustee and shall be promptly canceled by it.
The Company may at any time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever,
and may deliver to the Trustee (or to any other Person for delivery to the Trustee) for
cancellation any Securities previously authenticated hereunder which the Company has not issued and
sold, and all Securities so delivered shall be promptly canceled by the Trustee. No Securities
shall be authenticated in lieu of or in exchange for any Securities canceled as provided in this
Section, except as expressly permitted by this Indenture. All canceled Securities held by the
Trustee shall be disposed of in accordance with its customary procedures.
Section 3.10 Computation of Interest. Except as otherwise specified as contemplated by
Section 3.1 for Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
Section 3.11 CUSIP Numbers. The Company in issuing the Securities may use “CUSIP” numbers (if
then generally in use), and, if so, the Trustee shall use “CUSIP” numbers in notices of redemption
as a convenience to Holders;
provided
that any such notice may state that no representation is made
as to the correctness of such numbers either as printed on the Securities or as contained in any
notice of a redemption and that reliance may be placed only on the other identification numbers
printed on the Securities, and any such redemption shall not be affected by any defect in or
omission of such numbers. The Company will promptly notify the Trustee in writing of any change in
the “CUSIP” numbers.
ARTICLE 4
SATISFACTION AND DISCHARGE
Section 4.1 Satisfaction and Discharge of Indenture. This Indenture shall upon Company
Request cease to be of further effect (except as to any surviving rights of registration of
transfer or exchange of Securities herein expressly provided for), and the Trustee, at the expense
of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this
Indenture, when Article 1 either (A) all Securities theretofore authenticated and
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delivered (other than (i) Securities which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 3.6 and (ii) Securities for whose payment money has
theretofore been deposited in trust or segregated and held in trust by the Trustee or the Company
and thereafter repaid to the Company or discharged from such trust, as provided in Section 10.3)
have been delivered to the Trustee for cancellation; or (B) all such Securities not theretofore
delivered to the Trustee for cancellation (i) have become due and payable, or (ii) will become due
and payable at their Stated Maturity within one year, or (iii) are to be called for redemption
within one year under arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the Company, and the Company, in the
case of (i), (ii) or (iii) above, has deposited or caused to be deposited with the Trustee as trust
funds in trust for the purpose money in an amount sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore delivered to the Trustee for cancellation, for
principal and any premium and interest to the date of such deposit (in the case of Securities which
have become due and payable) or to the Stated Maturity or Redemption Date, as the case may be;
Article 2 the Company has paid or caused to be paid all other sums payable hereunder by the
Company; and Article 3 the Company has delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the
Company to the Trustee under Section 6.7, the obligations of the Company to any Authenticating
Agent under Section 6.14 and, if money shall have been deposited with the Trustee pursuant to
subclause (B) of Clause (a) of this Section, the obligations of the Trustee under Section 4.2 and
the last paragraph of Section 10.3 shall survive.
Section 4.2 Application of Trust Money. Subject to the provisions of the last paragraph of
Section 10.3, all money deposited with the Trustee pursuant to Section 4.1 shall be held in trust
and applied by it, in accordance with the provisions of the Securities and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal and
any premium and interest for whose payment such money has been deposited with the Trustee.
ARTICLE 5
REMEDIES
Section 5.1 Events of Default. “Event of Default,” wherever used herein with respect to
Securities of any series, means any one of the following events (whatever the reason for such Event
of Default and whether it shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) default in the payment of any interest upon any Security of that series when it
becomes due and payable, and continuance of such default for a period of 30 days;
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(b) default in the payment of the principal of or any premium on any Security of that
series at its Maturity;
(c) default in the deposit of any sinking fund payment, when and as due by the terms of
a Security of that series;
(d) default in the performance, or breach, of any covenant or warranty of the Company
in this Indenture (other than a covenant or warranty a default in whose performance or whose
breach is elsewhere in this Section specifically dealt with or which has expressly been
included in this Indenture solely for the benefit of series of Securities other than that
series), and continuance of such default or breach for a period of 60 days after there has
been given, by registered or certified mail, or overnight delivery service to the Company by
the Trustee or to the Company and the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Securities of that series a written notice specifying such default
or breach and requiring it to be remedied and stating that such notice is a “Notice of
Default” hereunder;
(e) the entry by a court having jurisdiction in the premises of (A) a decree or order
for relief in respect of the Company in an involuntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or
(B) a decree or order adjudging the Company a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement, adjustment or composition of
or in respect of the Company under any applicable Federal or State law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official
of the Company or of any substantial part of its property, or ordering the winding up or
liquidation of its affairs, and the continuance of any such decree or order for relief or
any such other decree or order unstayed and in effect for a period of 90 consecutive days;
(f) the commencement by the Company of a voluntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or
of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by
it to the entry of a decree or order for relief in respect of the Company in an involuntary
case or proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any bankruptcy or insolvency
case or proceeding against it, or the filing by it of a petition or answer or consent
seeking reorganization or relief under any applicable Federal or State law, or the consent
by it to the filing of such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official
of the Company or of any substantial part of its property, or the making by it of an
assignment for the benefit of creditors, or the admission by it in writing of its inability
to pay its debts generally as they become due, or the taking of corporate action by the
Company in furtherance of any such action; or
(g) any other Event of Default provided with respect to Securities of that series.
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Section 5.2 Acceleration of Maturity; Rescission and Annulment. If an Event of Default (other
than an Event of Default specified in Section 5.1(e) or Section 5.1(f)) with respect to Securities
of any series at the time Outstanding occurs and is continuing, then in every such case the Trustee
or the Holders of not less than 25% in principal amount of the Outstanding Securities of that
series may declare the principal amount of all the Securities of that series (or, if any Securities
of that series are Original Issue Discount Securities, such portion of the principal amount of such
Securities as may be specified by the terms thereof) to be due and payable immediately, by a notice
in writing to the Company (and to the Trustee if given by Holders), and upon any such declaration
such principal amount (or specified amount) shall become immediately due and payable. If an Event
of Default specified in Section 5.1(e) or Section 5.1(f) with respect to Securities of any series
at the time Outstanding occurs, the principal amount of all the Securities of that series (or, if
any Securities of that series are Original Issue Discount Securities, such portion of the principal
amount of such Securities as may be specified by the terms thereof) shall automatically, and
without any declaration or other action on the part of the Trustee or any Holder, become
immediately due and payable.
At any time after such a declaration of acceleration with respect to Securities of any series
has been made and before a judgment or decree for payment of the money due has been obtained by the
Trustee as hereinafter in this Article provided, the Holders of a majority in principal amount of
the Outstanding Securities of that series, by written notice to the Company and the Trustee, may
rescind and annul such declaration and its consequences if:
(a) the Company has paid or deposited with the Trustee a sum sufficient to pay:
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(i)
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all overdue interest on all Securities of that
series;
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(ii)
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the principal of (and premium, if any, on) any
Securities of that series which have become due otherwise than by such
declaration of acceleration and any interest thereon at the rate or
rates prescribed therefor in such Securities;
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(iii)
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to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate or rates prescribed
therefor in such Securities; and
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(iv)
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all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
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(b) all Events of Default with respect to Securities of that series, other than the
non-payment of the principal of Securities of that series which have become due solely by
such declaration of acceleration, have been cured or waived as provided in Section 5.13. No
such rescission shall affect any subsequent default or impair any right consequent thereon.
Section 5.3 Collection of Indebtedness and Suits for Enforcement by Trustee. The Company
covenants that if:
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(a) default is made in the payment of any interest on any Security when such interest
becomes due and payable and such default continues for a period of 30 days; or
(b) default is made in the payment of the principal of (or premium, if any, on) any
Security at the Maturity thereof, the Company will, upon demand of the Trustee, pay to it,
for the benefit of the Holders of such Securities, the whole amount then due and payable on
such Securities for principal and any premium and interest and, to the extent that payment
of such interest shall be legally enforceable, interest on any overdue principal and premium
and on any overdue interest, at the rate or rates prescribed therefor in such Securities,
and, in addition thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If an Event of Default with respect to Securities of any series occurs and is continuing, the
Trustee may in its discretion proceed to protect and enforce its rights and the rights of the
Holders of Securities of such series by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein,
or to enforce any other proper remedy.
Section 5.4 Trustee May File Proofs of Claim. In case of any judicial proceeding relative to
the Company (or any other obligor upon the Securities), its property or its creditors, the Trustee
shall be entitled and empowered, by intervention in such proceeding or otherwise, to take any and
all actions authorized under the Trust Indenture Act in order to have claims of the Holders and the
Trustee allowed in any such proceeding. In particular, the Trustee shall be authorized to collect
and receive any moneys or other property payable or deliverable on any such claims and to
distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by each Holder to make
such payments to the Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 6.7.
No provision of this Indenture shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights of any Holder thereof or to
authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding
;
provided, however
, that the Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official and be a member of a creditors’ or other similar
committee.
Section 5.5 Trustee May Enforce Claims Without Possession of Securities. All rights of action
and claims under this Indenture or the Securities may be prosecuted and enforced by the Trustee
without the possession of any of the Securities or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment shall, after provision for the
payment of the reasonable compensation, expenses, disbursements and advances of the
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Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities
in respect of which such judgment has been recovered.
Section 5.6 Application of Money Collected. Any money collected by the Trustee pursuant to
this Article shall be applied in the following order, at the date or dates fixed by the Trustee
and, in case of the distribution of such money on account of principal or any premium or interest,
upon presentation of the Securities and the notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 6.7;
SECOND: To the payment of the amounts then due and unpaid for principal of and any premium, if
any, and interest on the Securities in respect of which or for the benefit of which such money has
been collected, ratably, without preference or priority of any kind, according to the amounts due
and payable on such Securities for principal and any premium, if any,
and interest, respectively; and
THIRD:
Any remaining amounts shall be paid to the Company.
Section 5.7 Limitation on Suits. No Holder of any Security of any series shall have any right
to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless:
(a) such Holder has previously given written notice to the Trustee of a continuing
Event of Default with respect to the Securities of that series;
(b) the Holders of not less than 25% in principal amount of the Outstanding Securities
of that series shall have made written request to the Trustee to institute proceedings in
respect of such Event of Default in its own name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee an indemnity satisfactory to the
Trustee against the costs, expenses and liabilities to be incurred in compliance with such
request;
(d)
the Trustee for 90 days after its receipt of such written notice, request and offer
of indemnity has failed to institute any such proceeding; and
(e) no direction inconsistent with such written request has been given to the Trustee
during such 90-day period by the Holders of a majority in principal amount of the
Outstanding Securities of that series; it being understood and intended that no one or more
of such Holders shall have any right in any manner whatever by virtue of, or by availing of,
any provision of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any other of
such Holders or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all of such Holders (it being understood
that the Trustee does not have an affirmative duty to ascertain whether or not such action
or forbearances are unduly prejudicial to such Holders).
Section 5.8 Unconditional Right of Holders to Receive Principal, Premium and Interest and to
Convert. Notwithstanding any other provision in this Indenture, the Holder of any
35
Security shall have the right, which is absolute and unconditional, to receive payment of the
principal of and any premium and (subject to Section 3.7) interest on such Security on the
respective Stated Maturities expressed in such Security (or, in the case of redemption, on the
Redemption Date), to convert such Securities in accordance with Article 14 and to institute suit
for the enforcement of any such payment, and such rights shall not be impaired without the consent
of such Holder.
Section 5.9 Restoration of Rights and Remedies. If the Trustee or any Holder has instituted
any proceeding to enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to
such Holder, then and in every such case, subject to any determination in such proceeding, the
Company, the Trustee and the Holders shall be restored severally and respectively to their former
positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall
continue as though no such proceeding had been instituted.
Section 5.10 Rights and Remedies Cumulative. Except as otherwise provided with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities in the last paragraph of
Section 3.6, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders
is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 5.11 Delay or Omission Not Waiver. No delay or omission of the Trustee or of any
Holder of any Securities to exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to
the Holders may be exercised from time to time, and as often as may be deemed expedient, by the
Trustee (subject to the limitations contained in this Indenture) or by the Holders, as the case may
be.
Section 5.12 Control by Holders. The Holders of a majority in principal amount of the
Outstanding Securities of any series shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee and the Trustee shall not be
liable to any Holder for any action taken or omitted to be taken by it in accordance with such
directions, or exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that:
(a) such direction shall not be in conflict with any rule of law or with this Indenture
and the Trustee shall not have determined that the action so directed would be unjustly
prejudicial to Holders of Securities of that series, or any other series, not taking part in
such direction;
(b) the Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction or this Indenture; and
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(c) the Trustee shall have the right to decline to follow any directions if it has not
been provided indemnity satisfactory to the Trustee against the costs, expenses and
liabilities which might by incurred by it in following such directions.
Section 5.13 Waiver of Past Defaults. The Holders of not less than a majority in principal
amount of the Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such series and its
consequences, except a default:
(a) in the payment of the principal of or any premium or interest on any Security of
such series, or
(b) in respect of a covenant or provision hereof which under Article 9 cannot be
modified or amended without the consent of the Holder of each Outstanding Security of such
series affected.
Upon any such waiver, such default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other default or impair any right consequent thereon.
Section 5.14 Undertaking for Costs. In any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken, suffered or omitted
by it as Trustee, a court may require any party litigant in such suit to file an undertaking to pay
the costs of such suit, and may assess costs against any such party litigant, in the manner and to
the extent provided in the Trust Indenture Act
; provided
that neither this Section nor the Trust
Indenture Act shall be deemed to authorize any court to require such an undertaking or to make such
an assessment in any suit instituted by the Company or the Trustee or in any suit for the
enforcement of the right to convert any Security in accordance with Article 14.
Section 5.15 Waiver of Usury, Stay or Extension Laws. The Company covenants (to the extent
that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any usury, stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants or the performance
of this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly
waives all benefit or advantage of any such law and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
ARTICLE 6
THE TRUSTEE
Section 6.1 Certain Duties and Responsibilities. The Trustee shall, prior to the occurrence
of an Event of Default and after the curing of all Events of Default which may have occurred,
perform such duties and only such duties as are specifically set forth in this Indenture and no
implied covenants, duties or obligations shall be read into this Indenture against the Trustee. The
Trustee shall, during the existence of any Event of Default (which has not been cured), exercise
such of the rights and powers vested in it by this Indenture, and use the same
37
degree of care and skill in their exercise, as a prudent person would exercise or use under
the circumstances in the conduct of such person’s own affairs. Notwithstanding the foregoing, no
provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers if it shall have reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
Whether or not therein expressly so provided, every provision of this Indenture relating to the
conduct or affecting the liability of or affording protection to the Trustee shall be subject to
the provisions of this Section and shall extend to the directors, officers, employees and agents of
the Trustee.
Section 6.2 Notice of Defaults. If a default occurs hereunder with respect to Securities of
any series, the Trustee shall give the Holders of Securities of such series notice of such default
as and to the extent provided by the Trust Indenture Act
; provided, however
, that in the case of
any default of the character specified in Section 5.1(d) with respect to Securities of such series,
no such notice to Holders shall be given until at least 30 days but within 90 days after the
occurrence thereof. For the purpose of this Section, the term “default” means any event which is,
or after notice or lapse of time or both would become, an Event of Default with respect to
Securities of such series. The Trustee shall not be deemed to have knowledge of any default or
Event of Default hereunder unless and until a Responsible Officer shall have actual knowledge
thereof, or shall have received written notice thereof at its Corporate Trust Office. In the
absence of such actual knowledge or notice, the Trustee may conclusively assume that no default has
occurred and is continuing under this Indenture. Except as otherwise expressly provided herein, the
Trustee shall not be bound to ascertain or inquire as to the performance or observance of any of
the terms, conditions, covenants or agreements herein or of any of the documents executed in
connection with the Securities, or as to the existence of a default or Event of Default hereunder.
Section 6.3 Certain Rights of Trustee. Subject to the provisions of Section 6.1:
(a) the Trustee may conclusively rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be sufficiently
evidenced by a Company Request or Company Order, and any resolution of the Board of
Directors shall be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall deem it
desirable that a matter be proved or established prior to taking, suffering or omitting any
action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may
request and is entitled to and may, in the absence of bad faith on its part, conclusively
rely upon an Officers’ Certificate;
(d) the Trustee may consult with counsel of its selection and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
38
protection in respect of any action taken, suffered or omitted by it hereunder in good
faith and in conclusive reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture at the request or direction of any of the Holders pursuant to
this Indenture, unless such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or
other paper or document, but the Trustee, in its discretion, shall make such further inquiry
or investigation into such facts or matters to determine compliance with the requirements of
the Indenture as it may see fit, and, if the Trustee shall determine to make such further
inquiry or investigation, it shall be entitled to examine the books, records and premises of
the Company, personally or by agent or attorney at the sole cost of the Company and shall
incur no liability or additional liability of any kind by reason of such inquiry or
investigation;
(g) the Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any agent or attorney appointed
with due care by it hereunder;
(h) the Trustee shall not be liable for any action taken, suffered or omitted by it in
good faith and reasonably believed by it to be authorized or within the discretion or rights
or powers conferred upon it by this Indenture; the Trustee shall not be liable in connection
with the performance of its duties hereunder, except for its own negligence or willful
misconduct, and except as expressly provided in Section 6.1;
(i) the permissive rights of the Trustee to do things enumerated in this Indenture
shall not be construed as a duty unless so specified herein;
(j) in no event shall the Trustee be responsible or liable for special, indirect,
punitive or consequential loss or damage of any kind whatsoever (including, but not limited
to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood
of such loss or damage and regardless of the form of action;
(k) the Trustee shall not be deemed to have notice of any default or Event of Default
unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written
notice of any event which is in fact such a default is received by the Trustee at the
Corporate Trust Office of the Trustee, and such notice references the Securities and this
Indenture;
(l) the Trustee shall not be required to give any bond or surety in respect of the
performance of its powers and duties hereunder;
39
(m) the rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to, and shall be
enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian
and other Person employed to act hereunder; and
(n) the Trustee may request that the Company deliver a certificate setting forth the
names of individuals and/or titles of officers authorized at such time to take specified
actions pursuant to this Indenture.
Section 6.4 Not Responsible for Recitals or Issuance of Securities. The recitals contained
herein and in the Securities, except the Trustee’s certificates of authentication, shall be taken
as the statements of the Company, and neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. The Trustee makes no representations as to the validity,
sufficiency or priority of this Indenture or of the Securities. Neither the Trustee nor any
Authenticating Agent shall be accountable for the use or application by the Company of Securities
or the proceeds thereof.
Section 6.5 May Hold Securities and Act as Trustee Under Other Indentures. The Trustee, any
Authenticating Agent, any Paying Agent, any Security Registrar or any other agent of the Company,
in its individual or any other capacity, may become the owner or pledgee of Securities and, subject
to Section 6.8 and Section 6.13, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other
agent.
Subject to the limitations imposed by the Trust Indenture Act, nothing in this Indenture shall
prohibit the Trustee from becoming and acting as trustee under other indentures under which other
securities, or certificates of interest of participation in other securities, of the Company are
outstanding in the same manner as if it were not Trustee hereunder.
Section 6.6 Money Held in Trust. Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise agreed in writing
with the Company.
Section 6.7 Compensation and Reimbursement. The Company agrees:
(a) to pay to the Trustee from time to time such compensation as shall be agreed in
writing between the Company and the Trustee for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(b) except as otherwise expressly provided herein, to reimburse the Trustee upon its
request for all reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to its negligence or willful
misconduct; and
40
(c) to indemnify each of the Trustee and any predecessor Trustee for, and to hold it
harmless against, any and all loss, damage, claim liability or expense, including taxes
(other than taxes based on the income of the Trustee) incurred without negligence or willful
misconduct on its part, arising out of or in connection with the acceptance or
administration of the trust or trusts (whether asserted by the Company, a Holder or any
other Person) hereunder, including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance of any of its powers or
duties hereunder.
The obligations of the Company under this Section shall survive resignation or removal of the
Trustee under this Indenture and payment of the Securities and discharge of this Indenture.
When the Trustee incurs expenses or renders services in connection with an Event of Default
specified in Section 5.1, the expenses (including the reasonable charges and expenses of its
counsel) and the compensation for the services are intended to constitute expenses of
administration under any applicable Federal or State bankruptcy, insolvency or other similar law.
Section 6.8 Conflicting Interests. If the Trustee has or shall acquire a conflicting interest
within the meaning of the Trust Indenture Act, the Trustee shall either eliminate such interest or
resign, to the extent and in the manner provided by, and subject to the provisions of, the Trust
Indenture Act and this Indenture. To the extent permitted by such Act, the Trustee shall not be
deemed to have a conflicting interest by virtue of being a trustee under this Indenture with
respect to Securities of more than one series.
Section 6.9 Corporate Trustee Required; Eligibility. There shall at all times be one (and
only one) Trustee hereunder with respect to the Securities of each series, which may be Trustee
hereunder for Securities of one or more other series. Each Trustee shall be a Person that is
eligible pursuant to the Trust Indenture Act to act as such and has (or if the Trustee is a member
of a bank holding company system, its bank holding company shall have) a combined capital and
surplus of at least $50,000,000. If any such Person or bank holding company publishes reports of
condition at least annually, pursuant to law or to the requirements of its supervising or examining
authority, then for the purposes of this Section and to the extent permitted by the Trust Indenture
Act, the combined capital and surplus of such Person or bank holding company shall be deemed to be
its combined capital and surplus as set forth in its most recent report of condition so published.
If at any time the Trustee with respect to the Securities of any series shall cease to be eligible
in accordance with the provisions of this Section, it shall resign immediately in the manner and
with the effect hereinafter specified in this Article.
Section 6.10 Resignation and Removal; Appointment of Successor. No resignation or removal of
the Trustee and no appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 6.11.
41
The Trustee may resign at any time with respect to the Securities of one or more series by
giving written notice thereof to the Company. If the instrument of acceptance by a successor
Trustee required by Section 6.11 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition, at the expense of the
Company, any court of competent jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such series.
The Trustee may be removed at any time with respect to the Securities of any series by Act of
the Holders of a majority in principal amount of the Outstanding Securities of such series,
delivered to the Trustee and to the Company. If the instrument of
acceptance by a successor Trustee required by Section 6.11 shall
not have been delivered to the Trustee within 30 days after the
giving of such notice of removal, the Trustee being removed may
petition, at the expense of the Company, any court of competent
jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such series.
If at any time:
(a) the Trustee shall fail to comply with Section 6.8 after written request therefor by
the Company or by any Holder who has been a bona fide Holder of a Security for at least six
months;
(b) the Trustee shall cease to be eligible under Section 6.9 and shall fail to resign
after written request therefor by the Company or by any such Holder; or
(c) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or
insolvent or a receiver of the Trustee or of its property shall be appointed or any public
officer shall take charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation, then, in any such case, (A) the
Company by a Board Resolution may remove the Trustee with respect to all Securities, or (B)
subject to Section 5.14, any Holder who has been a bona fide Holder of a Security for at
least six months may, on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall
occur in the office of Trustee for any cause, with respect to the Securities of one or more series,
the Company, by a Board Resolution, shall promptly appoint a successor Trustee or Trustees with
respect to the Securities of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of one or more or all of such series and
that at any time there shall be only one Trustee with respect to the Securities of any particular
series) and shall comply with the applicable requirements of Section 6.11. If, within one year
after such resignation, removal or incapability, or the occurrence of such vacancy, a successor
Trustee with respect to the Securities of any series shall be appointed by Act of the Holders of a
majority in principal amount of the Outstanding Securities of such series delivered to the Company
and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section 6.11, become the
successor Trustee with respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee, with respect to the Securities
of any series, shall have been so appointed by the Company or the Holders and accepted appointment
in the manner required by Section 6.11, the retiring Trustee may petition, at the expense of the
Company, or any Holder who has been a bona fide Holder of a Security of
42
such series for at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.
The Company shall give notice of each resignation and each removal of the Trustee with respect
to the Securities of any series and each appointment of a successor Trustee with respect to the
Securities of any series to all Holders of Securities of such series in the manner provided in
Section 1.6. Each notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
Section 6.11 Acceptance of Appointment by Successor. In case of the appointment hereunder of
a successor Trustee with respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring Trustee shall become
effective and such successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder.
In case of the appointment hereunder of a successor Trustee with respect to the Securities of
one or more (but not all) series, the Company, the retiring Trustee and each successor Trustee with
respect to the Securities of one or more series shall execute and deliver an indenture supplemental
hereto wherein each successor Trustee shall accept such appointment and which (b) shall contain
such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to
the Securities of that or those series to which the appointment of such successor Trustee relates,
(c) if the retiring Trustee is not retiring with respect to all Securities, shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(d) shall add to or change any of the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by any other such
Trustee; and upon the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided therein and each such
successor Trustee, without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or
those series to which the appointment of such successor Trustee relates; but, on request of the
Company or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring Trustee hereunder with respect
to the Securities of that or those series to which the appointment of such successor Trustee
relates.
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Upon request of any such successor Trustee, the Company shall execute any and all instruments
for more fully and certainly vesting in and confirming to such successor Trustee all such rights,
powers and trusts referred to in the first or second preceding paragraph, as the case may be.
No successor Trustee shall accept its appointment unless at the time of such acceptance such
successor Trustee shall be qualified and eligible under this Article.
Section 6.12 Merger, Conversion, Consolidation or Succession to Business. Any corporation
into which the Trustee may be merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all the corporate trust business of
the Trustee by sale or otherwise, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article, without the execution or
filing of any paper or any further act on the part of any of the parties hereto. In case any
Securities shall have been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect as if such
successor Trustee had itself authenticated such Securities.
Section 6.13 Preferential Collection of Claims Against Company. If and when the Trustee shall
be or become a creditor of the Company (or any other obligor upon the Securities), the Trustee
shall be subject to the provisions of the Trust Indenture Act regarding the collection of claims
against the Company (or any such other obligor).
Section 6.14 Appointment of Authenticating Agent. The Trustee may appoint an Authenticating
Agent or Agents with respect to one or more series of Securities which shall be authorized to act
on behalf of the Trustee to authenticate Securities of such series issued upon original issue and
upon exchange, registration of transfer or partial redemption thereof or pursuant to Section 3.6,
and Securities so authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee hereunder. Wherever
reference is made in this Indenture to the authentication and delivery of Securities by the Trustee
or the Trustee’s certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating
Agent shall be acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State thereof or the District of
Columbia, authorized under such laws to act as Authenticating Agent, having (or if the
Authenticating Agent is a member of a bank holding company system, its bank holding company has) a
combined capital and surplus of not less than $50,000,000 and subject to supervision or examination
by Federal or State authority. If such Authenticating Agent publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such Authenticating Agent
shall be deemed to be its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, such
44
Authenticating Agent shall resign immediately in the manner and with the effect specified in
this Section.
Any corporation into which an Authenticating Agent may be merged or converted or with which it
may be consolidated, or any corporation resulting from any merger, conversion or consolidation to
which such Authenticating Agent shall be a party, or any corporation succeeding to all or
substantially all the corporate agency or corporate trust business of an Authenticating Agent, by
sale or otherwise, shall continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee
and to the Company. The Trustee may at any time terminate the agency of an Authenticating Agent by
giving written notice thereof to such Authenticating Agent and to the Company. Upon receiving such
a notice of resignation or upon such a termination, or in case at any time such Authenticating
Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee may
appoint a successor Authenticating Agent which shall be acceptable to the Company and shall give
notice of such appointment in the manner provided in Section 1.6 to all Holders of Securities of
the series, with respect to which such Authenticating Agent will serve. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the
rights, powers and duties of its predecessor hereunder, with like effect as if originally named as
an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible under
the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to time reasonable
compensation for its services under this Section.
If an appointment with respect to one or more series is made pursuant to this Section 6.12,
the Securities of such series may have endorsed thereon, in addition to the Trustee’s certificate
of authentication, an alternative certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
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WELLS FARGO BANK, NATIONAL ASSOCIATION,
As Trustee
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By:
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As Authenticating Agent
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By:
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Authorized Signatory
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ARTICLE 7
HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.1 Company to Furnish Trustee Names and Addresses of Holders. The Company will
furnish or cause to be furnished to the Trustee:
(a) semi-annually, not later than 15 days after the Regular Record Date, a list, in
such form as the Trustee may reasonably require, of the names and addresses of the Holders
of Securities of each series as of such Regular Record Date, as the case may be; and
(b) at such other times as the Trustee may request in writing, within 30 days after the
receipt by the Company of any such request, a list of similar form and content as of a date
not more than 15 days prior to the time such list is furnished
; provided
that no such list
need be furnished by the Company to the Trustee so long as the Trustee is acting as Security
Registrar.
Section 7.2 Preservation of Information; Communications to Holders. The Trustee shall
preserve, in as current a form as is reasonably practicable, the names and addresses of Holders
contained in the most recent list furnished to the Trustee as provided in Section 7.1 and the names
and addresses of Holders received by the Trustee in its capacity as Security Registrar. The Trustee
may destroy any list furnished to it as provided in Section 7.1 upon receipt of a new list so
furnished.
The rights of Holders to communicate with other Holders with respect to their rights under
this Indenture or under the Securities, and the corresponding rights and privileges of the Trustee,
shall be as provided by the Trust Indenture Act.
Every Holder of Securities, by receiving and holding the same, agrees with the Company and the
Trustee that neither the Company nor the Trustee nor any agent of either of them shall be held
accountable by reason of any disclosure of information as to names and addresses of Holders made
pursuant to the Trust Indenture Act.
Section 7.3 Reports by Trustee. The Trustee shall transmit to Holders such reports concerning
the Trustee and its actions under this Indenture as may be required pursuant to the Trust Indenture
Act at the times and in the manner provided pursuant thereto.
Reports so required to be transmitted at stated intervals of not more than 12 months shall be
transmitted no later than July 15 in each calendar year, commencing with the first July 15 after
the first issuance of Securities pursuant to this Indenture.
A copy of each such report shall, at the time of such transmission to Holders, be filed by the
Trustee with each stock exchange upon which any Securities are listed, with the Commission and with
the Company. The Company will promptly notify the Trustee in writing when any Securities are listed
on any stock exchange, and of any delisting thereof.
46
Section 7.4 Reports by Company. The Company shall file with the Trustee and the Commission,
and transmit to Holders, such information, documents and other reports, and such summaries thereof,
as may be required pursuant to the Trust Indenture Act at the times and in the manner provided
pursuant to the Trust Indenture Act. In each case that the Company electronically delivers
materials to the Trustee or files documents pursuant to the Commission’s “EDGAR” system (or any
successor electronic filing system), such delivery or filing shall be deemed to be “filed” with the
Trustee for purposes of this Section 7.4,
provided, however
, that the Trustee shall have no
responsibility whatsoever to determine if such filing has occurred. Delivery of such reports,
information and documents to the Trustee is for informational purposes only and the Trustee’s
receipt of such shall not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company’s compliance with any of its
covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers’
Certificates).
ARTICLE 8
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 8.1 Company May Consolidate, Etc., Only on Certain Terms. The Company shall not
consolidate with or merge into any other Person (in a transaction in which the Company is not the
surviving corporation) or convey, transfer or lease its properties and assets substantially as an
entirety to any Person, unless:
(a) in case the Company shall consolidate with or merge into another Person (in a
transaction in which the Company is not the surviving corporation) or convey, transfer or
lease its properties and assets substantially as an entirety to any Person, the Person
formed by such consolidation or into which the Company is merged or the Person which
acquires by conveyance or transfer, or which leases the properties and assets of the Company
substantially as an entirety shall be a corporation, limited liability company, partnership
or trust, shall be organized and validly existing under the laws of the United States of
America, any State thereof or the District of Columbia and shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory
to the Trustee, the due and punctual payment of the principal of and any premium and
interest on all the Securities and the performance or observance of every covenant of this
Indenture on the part of the Company to be performed or observed and the conversion rights
shall be provided for, in accordance with Article 14, if applicable, or as otherwise
specified pursuant to Section 3.1, by supplemental indenture satisfactory in form to the
Trustee, executed and delivered to the Trustee, by the Person (if other than the Company)
formed by such consolidation or into which the Company shall have been merged or by the
Person which shall have acquired the Company’s assets;
(b) immediately after giving effect to such transaction and treating any indebtedness
which becomes an obligation of the Company or any Subsidiary as a result of such transaction
as having been incurred by the Company or such Subsidiary at the time of such transaction,
no Event of Default, and no event which, after notice or lapse of time or both, would become
an Event of Default, shall have happened and be continuing; and
47
(c) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and, if
a supplemental indenture is required in connection with such transaction, such supplemental
indenture comply with this Article and that all conditions precedent herein provided for
relating to such transaction have been complied with and such
supplemental indenture constitutes the legal, valid and binding
obligation of the Company enforceable against the Company in
accordance with its terms.
Section 8.2 Successor Substituted. Upon any consolidation of the Company with, or merger of
the Company into, any other Person or any conveyance, transfer or lease of the properties and
assets of the Company substantially as an entirety in accordance with Section 8.1, the successor
Person formed by such consolidation or into which the Company is merged or to which such
conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise
every right and power of, the Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein, and thereafter, except in the case of a
lease, the predecessor Person shall be relieved of all obligations and covenants under this
Indenture and the Securities.
ARTICLE 9
SUPPLEMENTAL INDENTURES
Section 9.1 Supplemental Indentures Without Consent of Holders. Without the consent of any
Holders, the Company, when authorized by a Board Resolution, and the Trustee, at any time and from
time to time, may enter into one or more indentures supplemental hereto, in form satisfactory to
the Trustee, for any of the following purposes:
(a) to evidence the succession of another Person to the Company, or successive
successions, and the assumption by any such successor of the covenants of the Company herein
and in the Securities;
(b) to add to the covenants of the Company for the benefit of the Holders of all or any
series of Securities (and if such covenants are to be for the benefit of less than all
series of Securities, stating that such covenants are expressly being included solely for
the benefit of such series) or to surrender any right or power herein conferred upon the
Company;
(c) to add any additional Events of Default for the benefit of the Holders of all or
any series of Securities (and if such additional Events of Default are to be for the benefit
of less than all series of Securities, stating that such additional Events of Default are
expressly being included solely for the benefit of such series);
(d) to add to or change any of the provisions of this Indenture to such extent as shall
be necessary to permit or facilitate the issuance of Securities in bearer form, registrable
or not registrable as to principal, and with or without interest coupons, or to permit or
facilitate the issuance of Securities in uncertificated form;
(e) to add to, change, or eliminate any of the provisions of this Indenture in respect
of one or more series of Securities, provided that any such addition, change or elimination
(A) shall neither (i) apply to any Security of any series created prior to the
48
execution of such supplemental indenture and entitled to the benefit of such provision
nor (ii) modify the rights of the Holder of any such Security with respect to such provision
or (B) shall become effective only when there is no such Security Outstanding;
(f) to secure the Securities;
(g) to establish the form or terms of Securities of any series as permitted by Section
2.1 and Section 3.1;
(h) to evidence and provide for the acceptance of appointment hereunder by a successor
Trustee with respect to the Securities of one or more series and to add to or change any of
the provisions of this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, pursuant to the
requirements of Section 6.11;
(i) to make provision with respect to the conversion rights of Holders pursuant to the
requirements of Article 14, including providing for the conversion of the securities into
any security (other than the Common Stock of the Company) or property of the Company;
(j) to cure any ambiguity, to correct or supplement any provision herein which may be
defective or inconsistent with any other provision herein, or to make any other provisions
with respect to matters or questions arising under this Indenture, provided that such action
pursuant to this Clause (j) shall not adversely affect the interests of the Holders of
Securities of any series in any material respect; or
(k) to 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 Securities
pursuant to Articles Four and Thirteen, provided that any such action shall not adversely
affect the interests of the Holders of Securities of such series or any other series of
Securities in any material respect.
Section 9.2 Supplemental Indentures With Consent of Holders. With the consent of the Holders
of a majority in principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the Trustee, the
Company, when authorized by a Board Resolution, and the Trustee may enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Indenture or of modifying in any manner the
rights of the Holders of Securities of such series under this Indenture
; provided, however
, that no
such supplemental indenture shall, without the consent of the Holder of each Outstanding Security
affected thereby:
(a) change the Stated Maturity of the principal of, or any installment of principal of
or interest on, any Security, or reduce the principal amount thereof or the rate of interest
thereon or any premium payable upon the redemption thereof, or reduce the amount of the
principal of an Original Issue Discount Security or any other Security which would be due
and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section
5.2, or change any Place of Payment where, or the coin or
49
currency in which, any Security or any premium or interest thereon is payable, or
impair the right to institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date);
(b) reduce the percentage in principal amount of the Outstanding Securities of any
series, the consent of whose Holders is required for any such supplemental indenture, or the
consent of whose Holders is required for any waiver (of compliance with certain provisions
of this Indenture or certain defaults hereunder and their consequences) provided for in this
Indenture;
(c) modify any of the provisions of this Section, Section 5.13 or Section 10.8, except
to increase the percentage of principal amount of the Outstanding Securities of a particular
series, the consent of whose Holders is required to modify or waive such provisions or to
provide that certain other provisions of this Indenture cannot be modified or waived without
the consent of the Holder of each Outstanding Security affected thereby
; provided, however
,
that this clause shall not be deemed to require the consent of any Holder with respect to
changes in the references to “the Trustee” and concomitant changes in this Section and
Section 10.8, or the deletion of this proviso, in accordance with the requirements of
Section 6.11 and Section 9.1(h); or
(d) if applicable, make any change that adversely affects the right to convert any
security as provided in Article 14 or pursuant to Section 3.1 (except as permitted by
9.01(i)) or decrease the conversion rate or increase the conversion price of any such
security.
A supplemental indenture which changes or eliminates any covenant or other provision of this
Indenture which has expressly been included solely for the benefit of one or more particular series
of Securities, or which modifies the rights of the Holders of Securities of such series with
respect to such covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to approve the particular
form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve
the substance thereof.
Section 9.3 Execution of Supplemental Indentures. In executing, or accepting the additional
trusts created by, any supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall receive, and (subject to Section
6.1 and Section 6.3) shall be fully protected in conclusively relying upon, an Opinion of Counsel
and Officers’ Certificate stating that the execution of such supplemental indenture is authorized
or permitted by this Indenture and that such supplemental indenture is the legal, valid and binding
obligation of the Company, enforceable in accordance with its terms. The Trustee may, but shall not
be obligated to, enter into any such supplemental indenture which affects the Trustee’s own rights,
duties or immunities under this Indenture or otherwise.
Section 9.4 Effect of Supplemental Indentures. Upon the execution of any supplemental
indenture under this Article, this Indenture shall be modified in accordance
50
therewith, and such supplemental indenture shall form a part of this Indenture for all
purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
Section 9.5 Conformity with Trust Indenture Act. Every supplemental indenture executed
pursuant to this Article shall conform to the requirements of the Trust Indenture Act.
Section 9.6 Reference in Securities to Supplemental Indentures. Securities of any series
authenticated and delivered after the execution of any supplemental indenture pursuant to this
Article may, and shall if required by the Trustee, bear a notation in form approved by the Trustee
as to any matter provided for in such supplemental indenture. If the Company shall so determine,
new Securities of any series so modified as to conform, in the opinion of the Trustee and the
Company, to any such supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding Securities of such series.
ARTICLE 10
COVENANTS
Section 10.1 Payment of Principal, Premium and Interest. The Company covenants and agrees for
the benefit of each series of Securities that it will duly and punctually pay the principal of and
any premium and interest on the Securities of that series in accordance with the terms of the
Securities and this Indenture.
Section 10.2 Maintenance of Office or Agency. The Company will maintain in each Place of
Payment for any series of Securities an office or agency where Securities of that series may be
presented or surrendered for payment, where Securities of that series may be surrendered for
registration of transfer or exchange, where Securities of that series may be surrendered for
conversion and where notices and demands to or upon the Company in respect of the Securities of
that series and this Indenture may be served. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of such office or agency. If at any time
the Company shall fail to maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and demands may be made
or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee
as its agent to receive all such presentations, surrenders, notices and demands. Unless otherwise
provided in a supplemental indenture or pursuant to Section 3.1 hereof, the Place of Payment for
any series of Securities shall be the Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or more other offices or agencies where
the Securities of one or more series may be presented or surrendered for any or all such purposes
and may from time to time rescind such designations
; provided, however
, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain an office or
agency in each Place of Payment for Securities of any series for such purposes. The Company will
give prompt written notice to the Trustee of any such designation or rescission and of any change
in the location of any such other office or agency.
51
Section 10.3 Money for Securities Payments to Be Held in Trust. If the Company shall at any
time act as its own Paying Agent with respect to any series of Securities, it will, on or before
each due date of the principal of or any premium or interest on any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum
sufficient to pay the principal and any premium and interest so becoming due until such sums shall
be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the
Trustee in writing of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series of Securities, it
will, on or prior to each due date of the principal of or any premium or interest on any Securities
of that series, deposit with a Paying Agent a sum sufficient to pay such amount, such sum to be
held as provided by the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee in writing of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities other than the Trustee
to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the
Trustee, subject to the provisions of this Section, that such Paying Agent will (a) comply with the
provisions of the Trust Indenture Act applicable to it as a Paying Agent and (b) during the
continuance of any default by the Company (or any other obligor upon the Securities of that series)
in the making of any payment in respect of the Securities of that series, upon the written request
of the Trustee, forthwith pay to the Trustee all sums held in trust by such Paying Agent for
payment in respect of the Securities of that series.
The Company may at any time, for the purpose of obtaining the satisfaction and discharge of
this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay to
the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which such sums were held by the Company or such Paying
Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be
released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of or any premium or interest on any Security of any series
and remaining unclaimed for a period ending on the earlier of the date that is ten Business Days
prior to the date such money would escheat to the State or two years after such principal, premium
or interest has become due and payable, shall be paid to the Company on Company Request, or (if
then held by the Company) shall be discharged from such trust; and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only to the Company for payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such trust money, and all
liability of the Company as trustee thereof, shall thereupon cease
; provided, however
, that the
Trustee or such Paying Agent, before being required to make any such repayment, shall at the
expense of the Company cause to be published once, in a newspaper published in the English
language, customarily published on each Business Day and of general circulation in each Place of
Payment, notice that such money remains unclaimed and that, after a date specified therein, which
shall not be less than 30 days from the date of such publication, any unclaimed balance of such
money then remaining will be repaid to the Company. The Company shall have no right, title, or
interest in or to any moneys held by the Trustee or any Paying Agent
52
pursuant to this Section except as set forth in the preceding sentence. The Trustee or such
Paying Agent shall not be liable to any Holder for interest on funds held by it for the payment and
discharge of the principal, interest, or premium on any of the Securities to any Holder.
Section 10.4 Statement by Officers as to Default. The Company will deliver to the Trustee,
within 120 days after the end of each fiscal year of the Company ending after the date hereof, an
Officers’ Certificate, one of the signers of which shall be the principal executive, principal
financial or principal accounting officer of the Company, stating whether or not to the best
knowledge of the signers thereof the Company is in default in the performance and observance of any
of the terms, provisions and conditions of this Indenture (without regard to any period of grace or
requirement of notice provided hereunder) and, if the Company shall be in default, specifying all
such defaults and the nature and status thereof of which they may have knowledge.
Section 10.5 Existence. Subject to Article 8, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence.
Section 10.6 Maintenance of Properties. The Company will cause all properties used or useful
in the conduct of its business to be maintained and kept in good condition, repair and working
order and supplied with all necessary equipment and will cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as, and to the extent, in the
judgment of the Company, may be necessary so that the business carried on in connection therewith
may be properly and advantageously conducted at all times
; provided, however
, that nothing in this
Section shall prevent the Company from discontinuing the operation or maintenance of any of such
properties if such discontinuance is, in the judgment of the Company, desirable in the conduct of
its business and not disadvantageous in any material respect to the Holders.
Section 10.7 Payment of Taxes and Other Claims. The Company will pay or discharge or cause to
be paid or discharged, before the same shall become delinquent, (a) all taxes, assessments and
governmental charges levied or imposed upon the Company upon the income, profits or property of the
Company, and (b) all lawful claims for labor, materials and supplies which, if unpaid, might by law
become a lien upon the property of the Company
; provided, however
, that the Company shall not be
required to pay or discharge or cause to be paid or discharged any such tax, assessment, charge or
claim (i) whose amount, applicability or validity is being contested in good faith by appropriate
proceedings or (ii) if the failure to pay or discharge would not have a material adverse effect on
the assets, business, operations, properties or condition (financial or otherwise) of the Company
and its Subsidiaries, taken as a whole.
Section 10.8 Waiver of Certain Covenants. Except as otherwise specified as contemplated by
Section 3.1 for Securities of such series, the Company may, with respect to the Securities of any
series, omit in any particular instance to comply with any term, provision or condition set forth
in any covenant provided pursuant to Section 3.1(s), Section 9.1(b), Section 9.1(g), Section 10.6
or Section 10.7, for the benefit of the Holders of such series if before the time for such
compliance the Holders of at least a majority in principal amount of the Outstanding Securities of
such series shall, by Act of such Holders, either waive such compliance in such instance, or
generally waive compliance with such term, provision or
53
condition, but no such waiver shall extend to or affect such term, provision or condition,
except to the extent so expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any such term, provision or
condition shall remain in full force and effect.
Section 10.9
Calculation of Original Issue Discount. With respect to any
(i) written notice specifying the amount of original issue
discount (including daily rates and accrual periods) accrued on
Outstanding Securities as of the end of each calendar year and
(ii) such other specific information relating to such original
issue discount as may then be relevant under the Internal Revenue
Code of 1986, as amended from time to time, which the Company may
file with the Trustee at the end of each such year, the Trustee shall
have no responsibility whatsoever for examining the content of such
notice or for the accuracy of such information.
ARTICLE 11
REDEMPTION OF SECURITIES
Section 11.1 Applicability of Article. Securities of any series which are redeemable before
their Stated Maturity shall be redeemable in accordance with their terms and (except as otherwise
specified as contemplated by Section 3.1 for such Securities) in accordance with this Article.
Section 11.2 Election to Redeem; Notice to Trustee. The election of the Company to redeem any
Securities shall be evidenced by a Board Resolution or in another manner specified as contemplated
by Section 3.1 for such Securities. In case of any redemption at the election of the Company of
less than all the Securities of any series (including any such redemption affecting only a single
Security), the Company shall, at least 45 days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee in writing of
such Redemption Date, of the principal amount of Securities of such series to be redeemed and, if
applicable, of the tenor of the Securities to be redeemed. In the case of any redemption of
Securities prior to the expiration of any restriction on such redemption provided in the terms of
such Securities or elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers’ Certificate evidencing compliance with such restriction.
Section 11.3 Selection by Trustee of Securities to Be Redeemed. If less than all the
Securities of any series are to be redeemed (unless all the Securities of such series and of a
specified tenor are to be redeemed or unless such redemption affects only a single Security), the
particular Securities to be redeemed shall be selected not more than 45 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities of such series not previously
called for redemption, by lot, or in the Trustee’s discretion, on a pro-rata basis, provided that
each of the redeemed portion and the unredeemed portion of the principal amount of any Security
shall be in an authorized denomination (which shall not be less than the minimum authorized
denomination) for such Security. If less than all the Securities of such series and of a specified
tenor are to be redeemed (unless such redemption affects only a single Security), the particular
Securities to be redeemed shall be selected not more than 45 days prior to the Redemption Date by
the Trustee, from the Outstanding Securities of such series and specified tenor not previously
called for redemption in accordance with the preceding sentence.
54
If any Security selected for partial redemption is converted in part before termination of the
conversion right with respect to the portion of the Security so selected, the converted portion of
such Security shall be deemed (so far as may be) to be the portion selected for redemption.
Securities which have been converted during a selection of Securities to be redeemed shall be
treated by the Trustee as Outstanding for the purpose of such selection.
The Trustee shall promptly notify the Company in writing of the Securities selected for
redemption as aforesaid and, in case of any Securities selected for partial redemption as
aforesaid, the principal amount thereof to be redeemed.
The provisions of the two preceding paragraphs shall not apply with respect to any redemption
affecting only a single Security, whether such Security is to be redeemed in whole or in part. In
the case of any such redemption in part, the unredeemed portion of the principal amount of the
Security shall be in an authorized denomination (which shall not be less than the minimum
authorized denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise requires, all provisions
relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to
be redeemed only in part, to the portion of the principal amount of such Securities which has been
or is to be redeemed.
Section 11.4 Notice of Redemption. Notice of redemption shall be given by first-class mail,
postage prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption Date, unless
a shorter period is specified in the Securities to be redeemed, to each Holder of Securities to be
redeemed, at its address appearing in the Security Register.
All notices of redemption shall identify the Securities (including CUSIP number(s)) to be
redeemed and shall state:
(a) the Redemption Date;
(b) the Redemption Price (including accrued interest, if any);
(c) if less than all the Outstanding Securities of any series consisting of more than a
single Security are to be redeemed, the identification (and, in the case of partial
redemption of any such Securities, the principal amounts) of the particular Securities to be
redeemed and, if less than all the Outstanding Securities of any series consisting of a
single Security are to be redeemed, the principal amount of the particular Security to be
redeemed;
(d) that on the Redemption Date the Redemption Price will become due and payable upon
each such Security to be redeemed and, if applicable, that interest thereon will cease to
accrue on and after said date;
(e) the place or places where each such Security is to be surrendered for payment of
the Redemption Price;
55
(f) if applicable, the conversion price, that the date on which the right to convert
the principal of the Securities or the portions thereof to be redeemed will terminate will
be the Redemption Date and the place or places where such Securities may be surrendered for
conversion; and
(g) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of the Company shall be
given by the Company or, at the Company’s written request, by the Trustee in the name and at the
expense of the Company and shall be irrevocable.
Section 11.5
Deposit of Redemption Price. Prior to 11:00 a.m., New York City time, on any
Redemption Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 10.3)
an amount of money sufficient to pay the Redemption Price of, and (except if the Redemption Date
shall be an Interest Payment Date) accrued interest on, all the Securities which are to be redeemed
on that date.
If any Security called for redemption is converted, any money deposited with the Trustee or
with a Paying Agent or so segregated and held in trust for the redemption of such Security shall
(subject to the right of any Holder of such Security to receive interest as provided in the last
paragraph of Section 3.7) be paid to the Company on Company Request, or if then held by the
Company, shall be discharged from such trust.
Section 11.6 Securities Payable on Redemption Date. Notice of redemption having been given as
aforesaid, the Securities so to be redeemed shall, on the Redemption Date, become due and payable
at the Redemption Price therein specified, and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest) such Securities shall cease to
bear interest. Upon surrender of any such Security for redemption in accordance with said notice,
such Security shall be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date
; provided, however
, that, unless otherwise specified as contemplated by
Section 3.1, installments of interest whose Stated Maturity is on or prior to the Redemption Date
will be payable to the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Record Dates according to their terms
and the provisions of Section 3.7.
If any Security called for redemption shall not be so paid upon surrender thereof for
redemption, the principal and any premium shall, until paid, bear interest from the Redemption Date
at the rate prescribed therefor in the Security.
Section 11.7 Securities Redeemed in Part. Any Security which is to be redeemed only in part
shall be surrendered at a Place of Payment therefor (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or its attorney duly authorized in
writing), and the Company shall execute, and the Trustee shall authenticate and deliver to the
Holder of such Security without service charge, a new Security or Securities of the same series and
of like tenor, of any authorized denomination as requested by such Holder, in aggregate
56
principal amount equal to and in exchange for the unredeemed portion of the principal of the
Security so surrendered.
ARTICLE 12
SINKING FUNDS
Section 12.1 Applicability of Article. The provisions of this Article shall be applicable to
any sinking fund for the retirement of Securities of any series except as otherwise specified as
contemplated by Section 3.1 for such Securities.
The minimum amount of any sinking fund payment provided for by the terms of any Securities is
herein referred to as a “mandatory sinking fund payment,” and any payment in excess of such minimum
amount provided for by the terms of such Securities is herein referred to as an “optional sinking
fund payment.” If provided for by the terms of any Securities, the cash amount of any sinking fund
payment may be subject to reduction as provided in Section 12.2. Each sinking fund payment shall be
applied to the redemption of Securities as provided for by the terms of such Securities.
Section 12.2 Satisfaction of Sinking Fund Payments with Securities. The Company Article 6 may
deliver Outstanding Securities of a series (other than any previously called for redemption) and
Article 7 may apply as a credit. Securities of a series which have been redeemed either at the
election of the Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such Securities, in each case in
satisfaction of all or any part of any sinking fund payment with respect to any Securities of such
series required to be made pursuant to the terms of such Securities as and to the extent provided
for by the terms of such Securities
; provided
that the Securities to be so credited have not been
previously so credited. The Securities to be so credited shall be received and credited for such
purpose by the Trustee at the Redemption Price, as specified in the Securities so to be redeemed,
for redemption through operation of the sinking fund and the amount of such sinking fund payment
shall be reduced accordingly.
Section 12.3 Redemption of Securities for Sinking Fund. Not less than 60 days prior to each
sinking fund payment date for any Securities, the Company will deliver to the Trustee an Officers’
Certificate specifying the amount of the next ensuing sinking fund payment for such Securities
pursuant to the terms of such Securities, the portion thereof, if any, which is to be satisfied by
payment of cash and the portion thereof, if any, which is to be satisfied by delivering and
crediting Securities pursuant to Section 12.2 and will also deliver to the Trustee any Securities
to be so delivered. Not less than 30 days prior to each such sinking fund payment date, the Trustee
shall select the Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 11.3 and cause notice of the redemption thereof to be given in the name of and
at the expense of the Company in the manner provided in Section 11.4. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in the manner stated in
Section 11.6 and Section 11.7.
57
ARTICLE 13
DEFEASANCE AND COVENANT DEFEASANCE
Section 13.1 Company’s Option to Effect Defeasance or Covenant Defeasance. The Company may
elect, at its option at any time, to have Section 13.2 or Section 13.3 applied to any Securities or
any series of Securities, as the case may be, designated pursuant to Section 3.1 as being
defeasible pursuant to such Section 13.2 or Section 13.3, in accordance with any applicable
requirements provided pursuant to Section 3.1 and upon compliance with the conditions set forth
below in this Article. Any such election shall be evidenced by a Board Resolution or in another
manner specified as contemplated by Section 3.1 for such Securities.
Section 13.2 Defeasance and Discharge. Upon the Company’s exercise of its option (if any) to
have this Section applied to any Securities or any series of Securities, as the case may be, the
Company shall be deemed to have been discharged from its obligations with respect to such
Securities as provided in this Section on and after the date the conditions set forth in Section
13.4 are satisfied (hereinafter called “Defeasance”). For this purpose, such Defeasance means that
the Company shall be deemed to have paid and discharged the entire indebtedness represented by such
Securities and to have satisfied all its other obligations under such Securities and this Indenture
insofar as such Securities are concerned (and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging the same), subject to the following which shall survive
until otherwise terminated or discharged hereunder: Article 8 the rights of Holders of such
Securities to receive, solely from the trust fund described in Section 13.4 and as more fully set
forth in such Section, payments in respect of the principal of and any premium and interest on such
Securities when payments are due, ARTICLE 9 the Company’s obligations with respect to such
Securities under Section 3.4, Section 3.5, Section 3.6, Section 10.2 and Section 10.3, and, if
applicable, Article 14, Article 10 the rights, powers, trusts, duties and immunities of the Trustee
hereunder and Article 11 this Article. Subject to compliance with this Article, the Company may
exercise its option (if any) to have this Section applied to any Securities notwithstanding the
prior exercise of its option (if any) to have Section 13.3 applied to such Securities.
Section 13.3 Covenant Defeasance. Upon the Company’s exercise of its option (if any) to have
this Section applied to any Securities or any series of Securities, as the case may be:
(a) the Company shall be released from its obligations under Section 10.6 through
Section 10.7, inclusive, and any covenants provided pursuant to Section 3.1(s), Section
9.1(b) or Section 9.1(g) for the benefit of the Holders of such Securities; and
(b) the occurrence of any event specified in Section 5.1(d) (with respect to any of
Section 10.6 through Section 10.7, inclusive, and any such covenants provided pursuant to
Section 3.1(s), Section 9.1(b) or Section 9.1(g)) shall be deemed not to be or result in an
Event of Default, in each case with respect to such Securities as provided in this Section
on and after the date the conditions set forth in Section 13.4 are satisfied (hereinafter
called “Covenant Defeasance”). For this purpose, such Covenant Defeasance means that, with
respect to such Securities, the Company may omit to comply with and shall have no liability
in respect of any term, condition or limitation set forth in any such
58
specified Section (to the extent so specified in the case of Section 5.1(d)), whether
directly or indirectly by reason of any reference elsewhere herein to any such Section or by
reason of any reference in any such Section to any other provision herein or in any other
document, but the remainder of this Indenture and such Securities shall be unaffected
thereby.
Section 13.4 Conditions to Defeasance or Covenant Defeasance. The following shall be the
conditions to the application of Section 13.2 or Section 13.3 to any Securities or any series of
Securities, as the case may be:
(a) the Company shall irrevocably have deposited or caused to be deposited with the
Trustee (or another trustee which satisfies the requirements contemplated by Section 6.9 and
agrees to comply with the provisions of this Article applicable to it) as trust funds in
trust for the purpose of making the following payments, specifically pledged as security
for, and dedicated solely to, the benefits of the Holders of such Securities, (A) money in
an amount, or (B) U.S. Government Obligations which through the scheduled payment of
principal and interest in respect thereof in accordance with their terms will provide, not
later than one day before the due date of any payment, money in an amount, or (C) a
combination thereof, in each case sufficient, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification thereof delivered to
the Trustee, to pay and discharge, and which shall be applied by the Trustee (or any such
other qualifying trustee) to pay and discharge, the principal of and any premium and
interest on such Securities on the respective Stated Maturities, in accordance with the
terms of this Indenture and such Securities. As used herein, “U.S. Government Obligation”
means (x) any security which is (i) a direct obligation of the United States of America for
the payment of which the full faith and credit of the United States of America is pledged or
(ii) an obligation of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States of America, which, in
either case (i) or (ii), is not callable or redeemable at the option of the issuer thereof,
and (y) any depositary receipt issued by a bank (as defined in Section 3(a)(2) of the
Securities Act) as custodian with respect to any U.S. Government Obligation which is
specified in Clause (x) above and held by such bank for the account of the holder of such
depositary receipt, or with respect to any specific payment of principal of or interest on
any U.S. Government Obligation which is so specified and held, provided that (except as
required by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depositary receipt from any amount received by the custodian
in respect of the U.S. Government Obligation or the specific payment of principal or
interest evidenced by such depositary receipt;
(b) In the event of an election to have Section 13.2 apply to any Securities or any
series of Securities, as the case may be, the Company shall have delivered to the Trustee an
Opinion of Counsel stating that (A) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling or (B) since the date of this
instrument, there has been a change in the applicable Federal income tax law, in either case
(A) or (B) to the effect that, and based thereon such opinion shall confirm that, the
59
Holders of such Securities will not recognize income, gain or loss for Federal income
tax purposes as a result of the deposit, Defeasance and discharge to be effected with
respect to such Securities and will be subject to Federal income tax on the same amount, in
the same manner and at the same times as would be the case if such deposit, Defeasance and
discharge were not to occur;
(c) In the event of an election to have Section 13.3 apply to any Securities or any
series of Securities, as the case may be, the Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that the Holders of such Securities will not recognize
income, gain or loss for Federal income tax purposes as a result of the deposit and Covenant
Defeasance to be effected with respect to such Securities and will be subject to Federal
income tax on the same amount, in the same manner and at the same times as would be the case
if such deposit and Covenant Defeasance were not to occur;
(d) The Company shall have delivered to the Trustee an Officers’ Certificate to the
effect that neither such Securities nor any other Securities of the same series, if then
listed on any securities exchange, will be delisted as a result of such deposit;
(e) No event which is, or after notice or lapse of time or both would become, an Event
of Default with respect to such Securities or any other Securities shall have occurred and
be continuing at the time of such deposit or, with regard to any such event specified in
Section 5.1(e) and Section 5.1(f), at any time on or prior to the 90th day after the date of
such deposit (it being understood that this condition shall not be deemed satisfied until
after such 90th day);
(f) Such Defeasance or Covenant Defeasance shall not cause the Trustee to have a
conflicting interest within the meaning of the Trust Indenture Act (assuming all Securities
are in default within the meaning of such Act);
(g) Such Defeasance or Covenant Defeasance shall not result in a breach or violation
of, or constitute a default under, any other agreement or instrument to which the Company is
a party or by which it is bound;
(h) Such Defeasance or Covenant Defeasance shall not result in the trust arising from
such deposit constituting an investment company within the meaning of the Investment Company
Act unless such trust shall be registered under such Act or exempt from registration
thereunder; and
(i) The Company shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that all conditions precedent with respect to such
Defeasance or Covenant Defeasance have been complied with.
Section 13.5 Deposited Money and U.S. Government Obligations to Be Held in Trust;
Miscellaneous Provisions. Subject to the provisions of the last paragraph of Section 10.3, all
money and U.S. Government Obligations (including the proceeds thereof) deposited with the Trustee
or other qualifying trustee (solely for purposes of this Section and Section 13.6, the Trustee and
any such other trustee are referred to collectively as the “Trustee”) pursuant to Section 13.4 in
respect of any Securities shall be held in trust and applied by the Trustee, in
60
accordance with the provisions of such Securities and this Indenture, to the payment, either
directly or through any such Paying Agent (including the Company acting as its own Paying Agent) as
the Trustee may determine, to the Holders of such Securities, of all sums due and to become due
thereon in respect of principal and any premium and interest, but money so held in trust need not
be segregated from other funds except to the extent required by law. The Company shall pay and
indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the U.S.
Government Obligations deposited pursuant to Section 13.4 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for the account of the
Holders of Outstanding Securities. Anything in this Article to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company Request any money or
U.S. Government Obligations held by it as provided in Section 13.4 with respect to any Securities
which, in the opinion of a nationally recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee, are in excess of the amount thereof
which would then be required to be deposited to effect the Defeasance or Covenant Defeasance, as
the case may be, with respect to such Securities.
Section 13.6 Reinstatement. If the Trustee or the Paying Agent is unable to apply any money
in accordance with this Article with respect to any Securities by reason of any order or judgment
of any court or governmental authority enjoining, restraining or otherwise prohibiting such
application, then the obligations under this Indenture and such Securities from which the Company
has been discharged or released pursuant to Section 13.2 or Section 13.3 shall be revived and
reinstated as though no deposit had occurred pursuant to this Article with respect to such
Securities, until such time as the Trustee or Paying Agent is permitted to apply all money held in
trust pursuant to Section 13.5 with respect to such Securities in accordance with this Article
;
provided, however
, that if the Company makes any payment of principal of or any premium or interest
on any such Security following such reinstatement of its obligations, the Company shall be
subrogated to the rights (if any) of the Holders of such Securities to receive such payment from
the money so held in trust.
ARTICLE 14
CONVERSION OF SECURITIES
Section 14.1 Applicability of Article. The provisions of this Article shall be applicable to
the Securities of any series which are convertible into shares of Common Stock of the Company, and
the issuance of such shares of Common Stock upon the conversion of such Securities, except as
otherwise specified as contemplated by Section 3.1 for the Securities of such series.
Section 14.2 Exercise of Conversion Privilege. In order to exercise a conversion privilege,
the Holder of a Security of a series with such a privilege shall surrender such Security to the
Company at the office or agency maintained for that purpose pursuant to Section 10.2, accompanied
by a duly executed conversion notice to the Company substantially in the form set forth in Section
2.6 stating that the Holder elects to convert such Security or a specified portion thereof. Such
notice shall also state, if different from the name and address of such Holder, the name or names
(with address) in which the certificate or certificates for shares of Common Stock
61
which shall be issuable on such conversion shall be issued. Securities surrendered for
conversion shall (if so required by the Company or the Trustee) be duly endorsed by or accompanied
by instruments of transfer in forms satisfactory to the Company and the Trustee duly executed by
the registered Holder or its attorney duly authorized in writing; and Securities so surrendered for
conversion (in whole or in part) during the period from the close of business on any Regular Record
Date to the opening of business on the next succeeding Interest Payment Date (excluding Securities
or portions thereof called for redemption during the period beginning at the close of business on a
Regular Record Date and ending at the opening of business on the first Business Day after the next
succeeding Interest Payment Date, or if such Interest Payment Date is not a Business Day, the
second such Business Day) shall also be accompanied by payment in funds acceptable to the Company
of an amount equal to the interest payable on such Interest Payment Date on the principal amount of
such Security then being converted, and such interest shall be payable to such registered Holder
notwithstanding the conversion of such Security, subject to the provisions of Section 3.7 relating
to the payment of Defaulted Interest by the Company. As promptly as practicable after the receipt
of such notice and of any payment required pursuant to a Board Resolution and, subject to Section
3.3, set forth, or determined in the manner provided, in an Officers’ Certificate, or established
in one or more indentures supplemental hereto setting forth the terms of such series of Security,
and the surrender of such Security in accordance with such reasonable regulations as the Company
may prescribe, the Company shall issue and shall deliver, at the office or agency at which such
Security is surrendered, to such Holder or on its written order, a certificate or certificates for
the number of full shares of Common Stock issuable upon the conversion of such Security (or
specified portion thereof), in accordance with the provisions of such Board Resolution, Officers’
Certificate or supplemental indenture, and cash as provided therein in respect of any fractional
share of such Common Stock otherwise issuable upon such conversion. Such conversion shall be deemed
to have been effected immediately prior to the close of business on the date on which such notice
and such payment, if required, shall have been received in proper order for conversion by the
Company and such Security shall have been surrendered as aforesaid (unless such Holder shall have
so surrendered such Security and shall have instructed the Company to effect the conversion on a
particular date following such surrender and such Holder shall be entitled to convert such Security
on such date, in which case such conversion shall be deemed to be effected immediately prior to the
close of business on such date) and at such time the rights of the Holder of such Security as such
Security Holder shall cease and the person or persons in whose name or names any certificate or
certificates for shares of Common Stock of the Company shall be issuable upon such conversion shall
be deemed to have become the Holder or Holders of record of the shares represented thereby. Except
as set forth above and subject to the final paragraph of Section 3.7, no payment or adjustment
shall be made upon any conversion on account of any interest accrued on the Securities (or any part
thereof) surrendered for conversion or on account of any dividends on the Common Stock of the
Company issued upon such conversion. In the case of any Security which is converted in part only,
upon such conversion the Company shall execute and the Trustee shall authenticate and deliver to or
on the order of the Holder thereof, at the expense of the Company, a new Security or Securities of
the same series, of authorized denominations, in aggregate principal amount equal to the
unconverted portion of such Security.
Section 14.3 No Fractional Shares. No fractional share of Common Stock of the Company shall
be issued upon conversions of Securities of any series. If more than one Security shall be
surrendered for conversion at one time by the same Holder, the number of full shares
62
which shall be issuable upon conversion shall be computed on the basis of the aggregate
principal amount of the Securities (or specified portions thereof to the extent permitted hereby)
so surrendered. If, except for the provisions of this Section 14.3, any Holder of a Security or
Securities would be entitled to a fractional share of Common Stock of the Company upon the
conversion of such Security or Securities, or specified portions thereof, the Company shall pay to
such Holder an amount in cash equal to the current market value of such fractional share computed,
(i) if such Common Stock is listed or admitted to unlisted trading privileges on a national
securities exchange or market, on the basis of the last reported sale price regular way on such
exchange or market on the last trading day prior to the date of conversion upon which such a sale
shall have been effected, or (ii) if such Common Stock is not at the time so listed or admitted to
unlisted trading privileges on a national securities exchange or market, on the basis of the
average of the bid and asked prices of such Common Stock in the over-the-counter market, on the
last trading day prior to the date of conversion, as reported by the National Quotation Bureau,
Incorporated or similar organization if the National Quotation Bureau, Incorporated is no longer
reporting such information, or if not so available, the fair market price as determined by the
Board of Directors. For purposes of this Section, “trading day” shall mean each Monday, Tuesday,
Wednesday, Thursday and Friday other than any day on which the Common Stock is not traded on the
Nasdaq Market, or if the Common Stock is not traded on the Nasdaq Market, on the principal exchange
or market on which the Common Stock is traded or quoted.
Section 14.4 Adjustment of Conversion Price. The conversion price of Securities of any series
that is convertible into Common Stock of the Company shall be adjusted for any stock dividends,
stock splits, reclassifications, combinations or similar transactions in accordance with the terms
of the supplemental indenture or Board Resolutions setting forth the terms of the Securities of
such series. Whenever the conversion price is adjusted, the Company shall compute the adjusted
conversion price in accordance with terms of the applicable Board Resolution or supplemental
indenture and shall prepare an Officers’ Certificate setting forth the adjusted conversion price
and showing in reasonable detail the facts upon which such adjustment is based, and such
certificate shall forthwith be filed at each office or agency maintained for the purpose of
conversion of Securities pursuant to Section 10.2 and, if different, with the Trustee. The Company
shall forthwith cause a notice setting forth the adjusted conversion price to be mailed, first
class postage prepaid, to each Holder of Securities of such series at its address appearing on the
Security Register and to any conversion agent other than the Trustee.
Section 14.5 Notice of Certain Corporate Actions. In case:
(a) the Company shall declare a dividend (or any other distribution) on its Common
Stock payable otherwise than in cash out of its retained earnings (other than a dividend for
which approval of any shareholders of the Company is required) that would require an
adjustment pursuant to Section 14.4;
(b) the Company shall authorize the granting to all or substantially all of the holders
of its Common Stock of rights, options or warrants to subscribe for or purchase any shares
of capital stock of any class or of any other rights (other than any such grant for which
approval of any shareholders of the Company is required);
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(c) of any reclassification of the Common Stock of the Company (other than a
subdivision or combination of its outstanding shares of Common Stock, or of any
consolidation, merger or share exchange to which the Company is a party and for which
approval of any shareholders of the Company is required), or of the sale of all or
substantially all of the assets of the Company; or
(d) of the voluntary or involuntary dissolution, liquidation or winding up of the
Company; then the Company shall cause to be filed with the Trustee, and shall cause to be
mailed to all Holders at their last addresses as they shall appear in the Security Register,
at least 20 days (or 10 days in any case specified in Clause (a) or (b) above) prior to the
applicable record date hereinafter specified, a notice stating (i) the date on which a
record is to be taken for the purpose of such dividend, distribution, rights, options or
warrants, or, if a record is not to be taken, the date as of which the holders of Common
Stock of record to be entitled to such dividend, distribution, rights, options or warrants
are to be determined, or (ii) the date on which such reclassification, consolidation,
merger, share exchange, sale, dissolution, liquidation or winding up is expected to become
effective, and the date as of which it is expected that holders of Common Stock of record
shall be entitled to exchange their shares of Common Stock for securities, cash or other
property deliverable upon such reclassification, consolidation, merger, share exchange,
sale, dissolution, liquidation or winding up. If at any time the Trustee shall not be the
conversion agent, a copy of such notice shall also forthwith be filed by the Company with
the Trustee.
Section 14.6 Reservation of Shares of Common Stock. The Company shall at all times reserve
and keep available, free from preemptive rights, out of its authorized but unissued Common Stock,
for the purpose of effecting the conversion of Securities, the full number of shares of Common
Stock of the Company then issuable upon the conversion of all outstanding Securities of any series
that has conversion rights.
Section 14.7 Payment of Certain Taxes Upon Conversion. Except as provided in the next
sentence, the Company will pay any and all taxes that may be payable in respect of the issue or
delivery of shares of its Common Stock on conversion of Securities pursuant hereto. The Company
shall not, however, be required to pay any tax which may be payable in respect of any transfer
involved in the issue and delivery of shares of its Common Stock in a name other than that of the
Holder of the Security or Securities to be converted, and no such issue or delivery shall be made
unless and until the person requesting such issue has paid to the Company the amount of any such
tax, or has established, to the satisfaction of the Company, that such tax has been paid.
Section 14.8 Nonassessability. The Company covenants that all shares of its Common Stock
which may be issued upon conversion of Securities will upon issue in accordance with the terms
hereof be duly and validly issued and fully paid and nonassessable.
Section 14.9 Provision in Case of Consolidation, Merger or Sale of Assets. In case of any
consolidation or merger of the Company with or into any other Person, any merger of another Person
with or into the Company (other than a merger which does not result in any reclassification,
conversion, exchange or cancellation of outstanding shares of Common Stock of
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the Company) or any conveyance, sale, transfer or lease of all or substantially all of the
assets of the Company, the Person formed by such consolidation or resulting from such merger or
which acquires such assets, as the case may be, shall execute and deliver to the Trustee a
supplemental indenture providing that the Holder of each Security of a series then Outstanding that
is convertible into Common Stock of the Company shall have the right thereafter (which right shall
be the exclusive conversion right thereafter available to said Holder), during the period such
Security shall be convertible, to convert such Security only into the kind and amount of
securities, cash and other property receivable upon such consolidation, merger, conveyance, sale,
transfer or lease by a holder of the number of shares of Common Stock of the Company into which
such Security might have been converted immediately prior to such consolidation, merger,
conveyance, sale, transfer or lease, assuming such holder of Common Stock of the Company (i) is not
a Person with which the Company consolidated or merged with or into or which merged into or with
the Company or to which such conveyance, sale, transfer or lease was made, as the case may be (a
“Constituent Person”), or an Affiliate of a Constituent Person and (ii) failed to exercise his
rights of election, if any, as to the kind or amount of securities, cash and other property
receivable upon such consolidation, merger, conveyance, sale, transfer or lease (provided that if
the kind or amount of securities, cash and other property receivable upon such consolidation,
merger, conveyance, sale, transfer, or lease is not the same for each share of Common Stock of the
Company held immediately prior to such consolidation, merger, conveyance, sale, transfer or lease
by others than a Constituent Person or an Affiliate thereof and in respect of which such rights of
election shall not have been exercised (“Non-electing Share”), then for the purpose of this Section
14.9 the kind and amount of securities, cash and other property receivable upon such consolidation,
merger, conveyance, sale, transfer or lease by the holders of each Non-electing Share shall be
deemed to be the kind and amount so receivable per share by a plurality of the Non-electing
Shares). Such supplemental indenture shall provide for adjustments which, for events subsequent to
the effective date of such supplemental indenture, shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Article or in accordance with the terms of the
supplemental indenture or Board Resolutions setting forth the terms of such adjustments. The above
provisions of this Section 14.9 shall similarly apply to successive consolidations, mergers,
conveyances, sales, transfers or leases. Notice of the execution of such a supplemental indenture
shall be given by the Company to the Holder of each Security of a series that is convertible into
Common Stock of the Company as provided in Section 1.6 promptly upon such execution. Neither the
Trustee nor any conversion agent, if any, shall be under any responsibility to determine the
correctness of any provisions contained in any such supplemental indenture relating either to the
kind or amount of shares of stock or other securities or property or cash receivable by Holders of
Securities of a series convertible into Common Stock of the Company upon the conversion of their
Securities after any such consolidation, merger, conveyance, transfer, sale or lease or to any such
adjustment, but may accept as conclusive evidence of the correctness of any such provisions, and
shall be protected in conclusively relying upon, an Opinion of Counsel with respect thereto, which
the Company shall cause to be furnished to the Trustee.
Section 14.10 Duties of Trustee Regarding Conversion. Neither the Trustee nor any conversion
agent shall at any time be under any duty or responsibility to any Holder of Securities of any
series that is convertible into Common Stock of the Company to determine whether any facts exist
which may require any adjustment of the conversion price, or with respect to the nature or extent
of any such adjustment when made, or with respect to the method employed,
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whether herein or in any supplemental indenture, any resolutions of the Board of Directors or
written instrument executed by one or more officers of the Company provided to be employed in
making the same. Neither the Trustee nor any conversion agent shall be accountable with respect to
the validity or value (or the kind or amount) of any shares of Common Stock of the Company, or of
any securities or property, which may at any time be issued or delivered upon the conversion of any
Securities and neither the Trustee nor any conversion agent makes any representation with respect
thereto. Subject to the provisions of Section 6.1, neither the Trustee nor any conversion agent
shall be responsible for any failure of the Company to issue, transfer or deliver any shares of its
Common Stock or stock certificates or other securities or property upon the surrender of any
Security for the purpose of conversion or to comply with any of the covenants of the Company
contained in this Article 14 or in the applicable supplemental indenture, resolutions of the Board
of Directors or written instrument executed by one or more duly authorized officers of the Company.
Section 14.11 Repayment of Certain Funds Upon Conversion. Any funds which at any time shall
have been deposited by the Company or on its behalf with the Trustee or any other paying agent for
the purpose of paying the principal of, and premium, if any, and interest, if any, on any of the
Securities (including, but not limited to, funds deposited for the sinking fund referred to in
Article 12 hereof and funds deposited pursuant to Article 13 hereof) and which shall not be
required for such purposes because of the conversion of such Securities as provided in this Article
14 shall after such conversion be repaid to the Company by the Trustee upon the Company’s written
request.
This instrument may be executed in any number of counterparts, each of which so executed shall
be deemed to be an original, but all such counterparts shall together constitute but one and the
same instrument. This Indenture may be executed in two or more counterparts, which when so
executed shall constitute one and the same agreement. The exchange of copies of this Indenture and
of signature pages by facsimile or PDF transmission shall constitute effective execution and
delivery of this Indenture as to the parties hereto and may be used in lieu of the original
Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall
be deemed to be their original signatures for all purposes.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of
the day and year first above written.
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SYMANTEC CORPORATION
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By:
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/s/ James A. Beer
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Name:
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James A. Beer
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Title:
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Executive Vice President and
Chief Financial Officer
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ATTEST:
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WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Trustee
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By:
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/s/ Maddy Hall
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Name:
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Maddy Hall
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Title:
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Vice President
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Exhibit 4.02
SYMANTEC CORPORATION
OFFICERS’ CERTIFICATE
Pursuant to Sections 1.2, 2.1 and 3.1 of the Indenture dated as of September 16, 2010 (the
“
Indenture
”) between Symantec Corporation, a Delaware corporation (the “
Company
”),
and Wells Fargo Bank, National Association, as Trustee (the “
Trustee
”), the undersigned
officers of the Company do hereby certify on behalf of the Company, solely in their respective
capacities as officers of the Company and not as individuals, as follows in connection with the
issuance of the Company’s $350,000,000 aggregate principal amount of 2.750% Senior Notes due 2015
(the “
2015 Notes
”) and $750,000,000 aggregate principal amount of 4.200% Senior Notes due
2020 (the “
2020 Notes
,” and together with the 2015 Notes, the “
Securities
”) under
the Indenture:
1. All conditions precedent under the Indenture to the issuance, authentication and delivery
of the Securities have been complied with.
2. The undersigned have read the conditions referred to in paragraph 1 above and the
definitions contained in the Indenture relating thereto.
3. The statements of the undersigned contained herein are based upon their participation in
the issuance of the Securities and a review of the Indenture.
4. Each of the undersigned has made such examination or investigation as is necessary in the
undersigned’s opinion to enable the undersigned to express an informed opinion as to whether the
conditions referred to in paragraph 1 above have been complied with.
5. The terms of the Securities are as follows:
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Title:
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2.750% Senior Notes due 2015
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4.200% Senior Notes due 2020
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Aggregate Principal
Amount at Maturity for
each Series of
Securities:
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$350,000,000 of 2015 Notes
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$750,000,000 of 2020 Notes
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Maturity Date:
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2015 Notes — September 15, 2015
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2020 Notes — September 15, 2020
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Interest:
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2015 Notes — 2.750% per annum, accruing from
September 16, 2010, payable on March 15 and
September 15 of each year to the person in whose
name the 2015 Notes are registered at the close
of business on the March 1 or September 1, as the
case
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may be, immediately preceding the relevant
interest payment date, commencing on March 15,
2011.
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2020 Notes — 4.200% per annum, accruing from
September 16, 2010, payable on March 15 and
September 15 of each year to the person in whose
name the 2020 Notes are registered at the close
of business on the March 1 or September 1, as the
case may be, immediately preceding the relevant
interest payment date, commencing on March 15,
2011.
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Denomination and
Registration:
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The Securities are in registered, book-entry
form, without coupons, in denominations of $2,000
and integral multiples of $1,000 in excess
thereof. The Securities shall be issuable in the
form of one or more Global Securities registered
in the name of Cede & Co., as nominee for The
Depository Trust Company, acting as Depository
for the Securities.
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Optional Redemption:
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The Company may at its option redeem the
Securities, at any time, in whole or in part, on
at least 30 days, but not more than 60 days,
prior notice mailed to the registered address of
each holder of the Securities to be redeemed at a
redemption price equal to the greater of (i) 100%
of the aggregate principal amount of the
Securities to be redeemed or (ii) the sum of the
present values of the Remaining Scheduled
Payments (as defined in the Notes), discounted to
the redemption date on a semi-annual basis
(assuming a 360-day year consisting of twelve
30-day months) using a discount rate equal to the
Treasury Rate plus (x) in the case of the 2015
Notes, 0.20% (20 basis points) or (y) in the case
of the 2020 Notes, 0.25% (25 basis points), plus,
in the case of each of clause (i) or (ii),
accrued and unpaid interest thereon to, but not
including, the redemption date.
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“Treasury Rate” means, with respect to any
redemption date, the rate per annum equal to the
semi-annual equivalent yield to maturity
(computed as of the third business day
immediately preceding that redemption date) of
the applicable Comparable Treasury Issue. In
determining this rate, the Company will assume a
price for the applicable Comparable Treasury
Issue (expressed as a percentage of its principal
amount) equal to the applicable Comparable
Treasury Price for such redemption date.
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“Comparable Treasury Issue” means the United
States Treasury security selected by an
Independent Investment Banker as having an actual
or interpolated maturity comparable to the
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remaining term of the applicable Securities to be
redeemed that would be utilized, at the time of
selection and in accordance with customary
financial practice, in pricing new issues of
corporate debt securities of comparable maturity
to the remaining term of such Securities.
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“Independent Investment Banker” means J.P. Morgan
Securities LLC, Morgan Stanley & Co. Incorporated
or UBS Securities LLC, or their respective
successors as may be appointed from time to time
by the Company; provided, however, that if any of
the foregoing ceases to be a primary U.S.
Government securities dealer in the United States
(a “primary treasury dealer”), the Company will
substitute another primary treasury dealer.
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“Comparable Treasury Price” means, with respect
to any redemption date, (1) the arithmetic
average of the applicable Reference Treasury
Dealer Quotations for such redemption date after
excluding the highest and lowest Reference
Treasury Dealer Quotations, or (2) if the Company
obtains fewer than four applicable Reference
Treasury Dealer Quotations, the arithmetic
average of all applicable Reference Treasury
Dealer Quotations for such redemption date.
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“Reference Treasury Dealer Quotations” means,
with respect to each Reference Treasury Dealer
and any redemption date, the arithmetic average,
as determined by the Company, of the bid and
asked prices for the applicable Comparable
Treasury Issue (expressed in each case as a
percentage of its principal amount) quoted in
writing to the Company by such Reference Treasury
Dealer as of 3:30 p.m., New York City time, on
the third business day preceding such redemption
date.
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“Reference Treasury Dealer” means J.P. Morgan
Securities LLC, Morgan Stanley & Co. Incorporated
or UBS Securities LLC and two other primary
treasury dealers selected by the Company, and
each of their respective successors and any other
primary treasury dealers selected by the Company.
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Purchase of Securities
upon a Change of Control
Repurchase Event:
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Upon the occurrence of a Change of Control
Repurchase Event, unless the Company has
exercised its right to redeem the 2015 Notes or
2020 Notes, the Company will be required to make
an offer to each holder of the 2015 Notes or 2020
Notes, as applicable, to repurchase all or any
part (in excess of $2,000 and in integral
multiples of $1,000) of that holder’s 2015 Notes
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or 2020 Notes, as applicable, at a repurchase
price in cash equal to 101% of the aggregate
principal amount of the Securities repurchased,
plus accrued and unpaid interest to, but not
including, the date of repurchase.
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Within 30 days following any Change of Control
Repurchase Event or, at the option of the
Company, prior to any Change of Control, but
after the public announcement of the Change of
Control, the Company will mail a notice to each
securityholder, with a copy to the Trustee,
stating:
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(1) that a Change of Control has occurred or is
about to occur and that such holder has the right
to require the Company to purchase such holder’s
Securities at a purchase price in cash equal to
101% of the principal amount thereof on the date
of purchase, plus accrued and unpaid interest to,
but not including, the date of purchase (subject
to the right of holders of record on the relevant
record date to receive interest on the relevant
interest payment date);
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(2) the circumstances and relevant facts
regarding such Change of Control Repurchase Event
or, if the Change of Control is about to occur,
the circumstances and relevant facts regarding
such Change of Control;
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(3) the purchase date (which shall be no earlier
than 30 calendar days nor later than 60 calendar
days from the date such notice is mailed);
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(4) the instructions, as determined by the
Company, that a holder must follow in order to
have its Securities purchased; and
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(5) that the offer to purchase is conditioned on
the Change of Control Repurchase Event occurring
on or prior to the specified purchase date, if
mailed prior to the date of consummation of the
Change of Control.
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On the repurchase date following a Change of
Control Repurchase Event, the Company will, to
the extent lawful:
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(1) accept for payment all the Securities or
portions of the Securities properly tendered
pursuant to its offer;
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(2) deposit with the Paying Agent an amount
equal to the aggregate purchase price in respect
of all the Securities or portions of the
Securities properly tendered; and
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(3) deliver or cause to be delivered to the
Trustee the Securities properly accepted,
together with an Officers’ Certificate stating
the aggregate principal amount of Securities
being purchased by the Company.
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The Paying Agent will promptly mail to each
holder of Securities properly tendered the
purchase price for the Securities, and the
Trustee will promptly authenticate and mail (or
cause to be transferred by book-entry) to each
holder a new Security equal in principal amount
to any unpurchased portion of any Securities
surrendered.
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Notwithstanding the foregoing, the Company will
not be required to make an offer to repurchase
the Securities upon a Change of Control
Repurchase Event with respect to a particular
series of Securities, if, with respect to such
series of Securities, a third party makes such an
offer in the manner, at the times and otherwise
in compliance with the requirements for an offer
made by the Company and such third party
purchases all Securities of such series properly
tendered and not withdrawn under its offer.
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The Company shall comply, to the extent
applicable, with the requirements of Section
14(e)(1) of the Exchange Act and any other
securities laws or regulations thereunder to the
extent those laws and regulations are applicable
in connection with the repurchase of the
Securities as a result of Change of Control
Repurchase Event. To the extent that the
provisions of any securities laws or regulations
conflict with the Change of Control Repurchase
Event provisions of the Securities, the Company
will comply with the applicable securities laws
and regulations and will not be deemed to have
breached its obligations under the Change of
Control Repurchase Event provisions of the
Securities by virtue of such conflict.
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“Change of Control” means the occurrence of any
of the following: (1) the direct or indirect
sale, transfer, conveyance or other disposition
(other than by way of merger or consolidation),
in one or a series of related transactions, of
all or substantially all of the properties or
assets of the Company and its subsidiaries taken
as a whole to any “person” (as that term is used
in Section 13(d)(3) of the Securities Exchange
Act of 1934, as amended (the “Exchange Act”))
other than the Company or one of its
subsidiaries; (2) the adoption of a plan relating
to the Company’s liquidation or dissolution; (3)
the consummation of any transaction (including,
without limitation, any merger or consolidation)
the result of which is that any
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“person” (as
defined above) becomes the beneficial owner,
directly or indirectly, of more than 50% of the
then outstanding number of shares of Voting Stock
of the Company; (4) the first day on which a
majority of the members of the board of directors
of the Company are not Continuing Directors; or
(5) the Company consolidates with, or merges with
or into, any “person” (as defined above), or any
“person” (as defined above) consolidates with, or
merges with or into, the Company, in any such
event pursuant to a transaction in which any of
the outstanding voting stock of the Company or
the outstanding voting stock of such other
“person” (as defined above) is converted into or
exchanged for cash, securities or other property,
other than any such transaction where the shares
of the Company’s voting stock outstanding
immediately prior to such transaction constitute,
or are converted into or exchanged for, a
majority of the voting stock of the surviving
“person” (as defined above) immediately after
giving effect to such transaction.
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“Change of Control Repurchase Event” means the
occurrence of both a Change of Control and a
Ratings Event.
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“Continuing Directors” means, as of any date of
determination, any member of the board of
directors of the Company who (1) was a member of
such board of directors on the date of the
issuance of the Securities; or (2) was nominated
for election or elected to such board of
directors with the approval of a majority of the
continuing directors who were members of such
board of directors at the time of such nomination
or election.
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“Investment Grade” means a rating of Baa3 or
better by Moody’s (or its equivalent under any
successor Rating Categories of Moody’s); a rating
of BBB- or better by S&P (or its equivalent under
any successor Rating Categories of S&P); and the
equivalent Investment Grade credit rating from
any additional Rating Agency or Rating Agencies
selected by the Company.
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“Moody’s” means Moody’s Investors Service Inc.,
which term will include any successor thereto.
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“Rating Agency” means (1) each of Moody’s and
S&P; and (2) if either of Moody’s or S&P ceases
to rate the Securities or fails to make a rating
of the Securities publicly available for reasons
outside of the control of the Company, a
“nationally recognized statistical rating
organization” within the meaning of Rule
15c3-l(e)(2)(vi)(F) under the Exchange Act,
selected by the
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Company (as certified by a
resolution of the board of directors of the
Company) as a replacement agency for Moody’s or
S&P, or both, as the case may be.
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“Ratings Event” means, with respect to each of
the 2015 Notes and the 2020 Notes, the occurrence
of the events described in (a), (b) or (c) below
during the period commencing on a Rating Date and
ending 60 days following the occurrence of such
Change of Control (which period shall be extended
so long as the rating of the Securities is under
publicly announced consideration for a possible
downgrade by any of the Rating Agencies): (a) in
the event the applicable Securities are rated by
both Moody’s and S&P on the Rating Date as
Investment Grade, the rating of the applicable
Securities shall be reduced so that the
applicable Securities are rated below Investment
Grade by both Rating Agencies, (b) in the event
the applicable Securities (1) are rated
Investment Grade by one Rating Agency and below
Investment Grade by the other Rating Agency, the
rating of the applicable Securities by such
Rating Agency rating the Securities as Investment
Grade shall be decreased by one or more
gradations (including gradations within Rating
Categories, as well as between Rating Categories)
so that the applicable Securities are then rated
below Investment Grade by both Rating Agencies or
(2) are rated below Investment Grade by both
Rating Agencies on the Rating Date, the rating of
the applicable Securities by either Rating Agency
shall be decreased by one or more gradations
(including gradations within Rating Categories,
as well as between Rating Categories) or (c)
fewer than two Rating Agencies provide a rating
for the Applicable Securities.
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“Rating Date” means the date of the first public
announcement by the Company of the occurrence of
a Change of Control or of the intention by the
Company to effect a Change of Control.
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“Rating Category” means (i) with respect to S&P,
any of the following categories: BBB, BB, B, CCC,
CC, C and D (or equivalent successor categories);
(ii) with respect to Moody’s, any of the
following categories: Baa, Ba, B, Caa, Ca, C and
D (or equivalent successor categories); and (iii)
the equivalent of any such category of S&P or
Moody’s used by another Rating Agency. In
determining whether the rating of the Securities
has decreased by one or more gradations,
gradations within Rating Categories (+ and – for
S&P; 1, 2 and 3 for Moody’s; or the equivalent
gradations for another Rating Agency) shall be
taken into account (e.g., with respect to S&P, a
decline in a rating from BB+ to BB, as well as
from BB- to B+, will constitute a
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decrease of one
gradation).
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“S&P” means Standard & Poor’s Ratings Services, a
division of The McGraw-Hill Companies, Inc.,
which term will include any successor thereto.
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“Voting Stock” of any specified “person” (as that
term is used in Section 13(d)(3) of the Exchange
Act) as of any date means the capital stock of
such person that is at the time entitled to vote
generally in the election of the board of
directors of such person.
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Certain Covenants:
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In addition to the covenants described in Article
10 of the Indenture, while the Notes are
Outstanding, the Company shall be bound by the
following covenants:
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A.
Limitation on Liens
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The Company will not directly or indirectly
incur, and will not permit any of its wholly
owned subsidiaries to directly or indirectly
incur, any indebtedness secured by a mortgage,
security interest, pledge, lien, charge or other
similar encumbrance (collectively, “Liens”) upon
(a) any Principal Property of the Company or any
of its wholly owned subsidiaries or (b) any
shares of stock or indebtedness of any of its
wholly owned subsidiaries (whether such Principal
Property, shares or indebtedness are now existing
or owned or hereafter created or acquired), in
each case, unless prior to or at the same time,
the Securities (together with, at the option of
the Company, any other indebtedness or guarantees
of the Company or any of its subsidiaries ranking
equally in right of payment with the Securities
or such guarantee) are equally and ratably
secured with or, at the option of the Company,
prior to, such secured indebtedness.
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The foregoing restriction does not apply to:
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(1) Liens on property, shares of stock or
indebtedness existing with respect to any person
at the time such person becomes a subsidiary of
the Company or a subsidiary of any subsidiary of
the Company, provided that such Lien was not
incurred in anticipation of such person becoming
a subsidiary;
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(2) Liens on property, shares of stock or
indebtedness existing at the time of acquisition
by the Company or any of its subsidiaries or a
subsidiary of any subsidiary of the Company of
such property, shares of stock or indebtedness
(which may include property previously leased by
the Company or any of
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its subsidiaries and
leasehold interests on such property, provided
that the lease terminates prior to or upon the
acquisition) or Liens on property, shares of
stock or indebtedness to secure the payment of
all or any part of the purchase price of such
property, shares of stock or indebtedness, or
Liens on property, shares of stock or
indebtedness to secure any indebtedness for
borrowed money incurred prior to, at the time of,
or within 18 months after, the latest of the
acquisition of such property, shares of stock or
indebtedness or, in the case of property, the
completion of construction, the completion of
improvements or the commencement of substantial
commercial operation of such property for the
purpose of financing all or any part of the
purchase price of the property and related costs
and expenses, the construction or the making of
the improvements;
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(3) Liens securing indebtedness of the Company
or any of the Company’s subsidiaries owing to the
Company or any of its subsidiaries;
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(4) Liens existing on the date of the initial
issuance of the Securities (other than any
additional Securities);
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(5) Liens on property or assets of a person
existing at the time such person is merged into
or consolidated with the Company or any of its
subsidiaries, at the time such person becomes a
subsidiary of the Company, or at the time of a
sale, lease or other disposition of all or
substantially all of the properties or assets of
a person to the Company or any of its
subsidiaries, provided that such Lien was not
incurred in anticipation of the merger,
consolidation, or sale, lease, other disposition
or other such transaction;
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(6) Liens created in connection with a project
financed with, and created to secure, a
Non-recourse Obligation;
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(7) Liens created to secure the Securities;
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(8) Liens imposed by law, such as carriers’,
warehousemen’s and mechanic’s Liens and other
similar Liens, in each case for sums not yet
overdue by more than 30 calendar days or being
contested in good faith by appropriate
proceedings or other Liens arising out of
judgments or awards against such Person with
respect to which such Person shall then be
proceeding with an appeal or other proceedings
for review and Liens arising solely by virtue of
any statutory or common law provision relating to
banker’s Liens, rights of set-off or similar
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rights and remedies as to deposit accounts or
other funds maintained with a creditor depository
institution;
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(9) Liens for taxes, assessments or other
governmental charges not yet due or payable or
subject to penalties for non-payment or which are
being contested in good faith by appropriate
proceedings;
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(10) Liens to secure the performance of bids,
trade contracts, leases, statutory obligations,
surety and appeal bonds, performance bonds and
other obligations of a like nature; or
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(11) any extensions, renewals or replacements of
any Lien referred to in clauses (1) through (10)
without increase of the principal of the
indebtedness secured by such Lien (except to the
extent of any fees or other costs associated with
any such extension, renewal or replacement);
provided, however, that any Liens permitted by
any of clauses (1) through (10) shall not extend
to or cover any property of the Company or any of
its subsidiaries, as the case may be, other than
the property specified in such clauses and
improvements to such property.
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Notwithstanding the restrictions set forth in the
preceding paragraph, the Company and its wholly
owned subsidiaries will be permitted to incur
indebtedness secured by Liens which would
otherwise be subject to the foregoing
restrictions without equally and ratably securing
the Securities, provided that, after giving
effect to such indebtedness, the aggregate amount
of all indebtedness secured by Liens (not
including Liens permitted under clauses (1)
through (11) above), together with all
Attributable Debt outstanding pursuant to the
second paragraph of the “Limitation on Sale and
Leaseback Transactions” covenant described below,
does not exceed 15% of the Consolidated Net
Tangible Assets of the Company calculated as of
the date of the creation or incurrence of the
Lien. The Company and its subsidiaries also may,
without equally and ratably securing the
Securities, create or incur Liens that extend,
renew, substitute or replace (including
successive extensions, renewals, substitutions or
replacements), in whole or in part, any Lien
permitted pursuant to the preceding sentence.
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B.
Limitation on Sale and Leaseback Transactions
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The Company will not directly or indirectly, and
will not permit any of its wholly owned
subsidiaries directly or indirectly to, enter
into any sale and leaseback transaction for the
sale and
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leasing back of any property, whether
now owned or hereafter acquired, unless:
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(1) such transaction was entered into prior to
the date of the initial issuance of the
Securities (other than any additional
Securities);
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(2) such transaction was for the sale and
leasing back to the Company or any of its wholly
owned subsidiaries of any property by one of its
subsidiaries;
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(3) such transaction involves a lease for not
more than three years (or which may be terminated
by the Company or its subsidiaries within a
period of not more than three years);
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(4) the Company would be entitled to incur
indebtedness secured by a Lien with respect to
such sale and leaseback transaction without
equally and ratably securing the Securities
pursuant to the second paragraph of the
“Limitation on Liens” covenant described above;
or
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(5) the Company applies an amount equal to the
net proceeds from the sale of such property to
the purchase of other property or assets used or
useful in its business or to the retirement of
long-term indebtedness within 365 days before or
after the effective date of any such sale and
leaseback transaction, provided that, in lieu of
applying such amount to the retirement of
long-term indebtedness, the Company may deliver
Securities to the Trustee for cancellation, such
Securities to be credited at the cost thereof to
it.
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Notwithstanding the restrictions set forth in the
preceding paragraph, the Company and its wholly
owned subsidiaries may enter into any sale and
leaseback transaction which would otherwise be
subject to the foregoing restrictions, if after
giving effect thereto the aggregate amount of all
Attributable Debt with respect to such
transactions, together with all indebtedness
outstanding pursuant to the third paragraph of
the “Limitation on Liens” covenant described
above, does not exceed 15% of the Consolidated
Net Tangible Assets of the Company calculated as
of the closing date of the sale and leaseback
transaction.
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Additional Definitions:
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“Attributable Debt” means, with respect to any
sale and leaseback transaction, at the time of
determination, the lesser of (1) the sale price
of the property so leased multiplied by a
fraction the numerator of which is the remaining
portion of the
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base term of the lease included in
such transaction and the denominator of which is
the base term of such lease, and (2) the total
obligation (discounted to the present value at
the implicit interest factor, determined in
accordance with generally accepted accounting
principles in the United States of America
(“GAAP”), included in the rental payments) of the
lessee for rental payments (other than amounts
required to be paid on account of property taxes
as well as maintenance, repairs, insurance, water
rates and other items which do not constitute
payments for property rights) during the
remaining portion of the base term of the lease
included in such transaction.
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“Consolidated Net Tangible Assets” means, as of
the time of determination, the aggregate amount
of the assets of the Company and the assets of
its consolidated subsidiaries after deducting (1)
all goodwill, trade names, trademarks, service
marks, patents, unamortized debt discount and
expense and other intangible assets and (2) all
current liabilities, as reflected on the most
recent consolidated balance sheet prepared by the
Company in accordance with GAAP contained in an
annual report on Form 10-K or a quarterly report
on Form 10-Q timely filed or any amendment
thereto (and not subsequently disclaimed as not
being reliable by the Company) pursuant to the
Exchange Act by the Company prior to the time as
of which “Consolidated Net Tangible Assets” is
being determined.
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“guarantee” means any obligation, contingent or
otherwise, of any person directly or indirectly
guaranteeing any indebtedness of any other person
and any obligation, direct or indirect,
contingent or otherwise, of such person (1) to
purchase or pay (or advance or supply funds for
the purchase or payment of) such indebtedness of
such other person (whether arising by virtue of
partnership arrangements, or by agreement to keep
well, to purchase assets, goods, securities or
services, to take or pay or to maintain financial
statement conditions or otherwise) or (2) entered
into for purposes of assuring in any other manner
the obligee of such indebtedness of the payment
thereof or to protect such obligee against loss
in respect thereof (in whole or in part);
provided, however, that the term “guarantee” will
not include endorsements for collection or
deposit in the ordinary course of business. The
term “guarantee,” when used as a verb, has a
correlative meaning.
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“incur” means issue, assume, guarantee or
otherwise become liable for.
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“indebtedness” means, with respect to any person,
obligations (other than Non-recourse Obligations)
of such person for borrowed money (including,
without limitation, indebtedness for borrowed
money evidenced by notes, bonds, debentures or
similar instruments).
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“Non-recourse Obligation” means indebtedness or
other obligations substantially related to (1)
the acquisition of assets not previously owned by
the Company or any direct or indirect
subsidiaries of the Company or (2) the financing
of a project involving the development or
expansion of properties of the Company or any
direct or indirect subsidiaries of the Company,
as to which the obligee with respect to such
indebtedness or obligation has no recourse to the
Company or any direct or indirect subsidiary of
the Company or such subsidiary’s assets other
than the assets which were acquired with the
proceeds of such transaction or the project
financed with the proceeds of such transaction
(and the proceeds thereof).
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“person” means any individual, corporation,
partnership, limited liability company, joint
venture, association, joint-stock company, trust,
unincorporated organization or government or
political subdivision thereof.
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“Principal Property” means the Company’s
principal offices in Mountain View, California,
each research and development facility and each
service and support facility (in each case
including associated office facilities) located
within the territorial limits of the States of
the United States of America owned by the Company
or any of its wholly owned subsidiaries, except
such as the Company’s board of directors by
resolution determines in good faith (taking into
account, among other things, the importance of
such property to the business, financial
condition and earnings of the Company and its
subsidiaries taken as a whole) not to be of
material importance to the business of the
Company and its subsidiaries, taken as a whole.
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“subsidiary” means, with respect to any person
(the “parent”) at any date, any corporation,
limited liability company, partnership,
association or other entity the accounts of which
would be consolidated with those of the parent in
the parent’s consolidated financial statements if
such financial statements were prepared in
accordance with GAAP as of that date, as well as
any other corporation, limited liability company,
partnership, association or other entity of which
securities or other ownership interests
representing more than 50% of the equity
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or more
than 50% of the ordinary voting power or, in the
case of a partnership, more than 50% of the
general partnership interests are, as of that
date, owned, controlled or held by the parent or
one or more subsidiaries of the parent or by the
parent and one or more subsidiaries of the
parent.
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Additional Events of
Default:
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In addition to the Events of Default described in
Section 5.1 of the Indenture, each of the
following is an Event of Default under the
Indenture: (1) a failure to pay principal of or
premium, if any, on any Security when due at its
stated maturity date, upon optional redemption or
otherwise; (2) a failure to repurchase Securities
of each series tendered for repurchase following
the occurrence of a Change of Control Repurchase
Event in conformity with “Purchase of Securities
upon a Change of Control Repurchase Event” above;
(3)(a) a failure to make any payment at maturity,
including any applicable grace period, on any
indebtedness of the Company (other than
indebtedness of the Company owing to any of its
subsidiaries) outstanding in an amount in excess
of $100,000,000 and continuance of this failure
to pay or (b) a default on any indebtedness of
the Company (other than indebtedness owing to any
of its subsidiaries), which default results in
the acceleration of such indebtedness in an
amount in excess of $100,000,000 without such
indebtedness having been discharged or the
acceleration having been cured, waived, rescinded
or annulled, in the case of clause (a) or (b)
above, for a period of 30 days after written
notice thereof to the Company by the Trustee or
to the Company and the Trustee by the holders of
not less than 25% in principal amount of
outstanding Securities of such series (including
any additional Securities), provided, however,
that if any failure, default or acceleration
referred to in clause (a) or (b) above ceases or
is cured, waived, rescinded or annulled, then the
Event of Default will be deemed cured.
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Modification without
Consent:
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The Company and the Trustee may, without the
consent of any holders, change the Indenture for
the following purposes: (1) to evidence the
succession of another person to the Company and
the assumption by such successor of the covenants
of the Company under the Indenture and the
Securities; (2) to add to the covenants of the
Company for the benefit of holders of the
Securities or to surrender any right or power
conferred upon the Company; (3) to add any
additional Events of Default for the benefit of
holders of the Securities; (4) to add to or
change any of the provisions of the Indenture as
necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not
registrable as to principal, and with or without
interest coupons, or to permit or facilitate the
issuance of the Securities in uncertificated
form; (5) to secure the Securities; (6) to add or
appoint a successor or separate Trustee; (7) to
cure any ambiguity, defect or inconsistency,
provided that the interests of the holders of the
Securities are not adversely affected in any
material respect; or (8) to supplement any of the
provisions of the Indenture to permit or
facilitate the defeasance and discharge of any
series of Securities, provided that the interests
of the holders of Securities are not adversely
affected in any material respect.
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Further Issuances:
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The Company may from time to time, without notice
to or the consent of the holders of Securities,
create and issue additional 2015 Notes or 2020
Notes having the same terms as, and ranking
equally and ratably with the 2015 Notes or the
2020 Notes, as applicable, in all respects
(except for the issue date and, if applicable,
the payment of interest accruing prior to the
issue date of such additional Securities and the
first payment of interest following the issue
date of such additional Securities), provided
that the Company has received an Opinion of
Counsel (as defined in the Indenture) confirming
that the holders of the outstanding Securities
will be subject to federal income tax in the same
amounts, in the same manner and at the same times
as would have been the case if such additional
Securities were not issued. Such additional
Securities may be consolidated and form a single
series with, and will have the same terms as to
ranking, redemption, waivers, amendments or
otherwise, as the 2015 Notes or the 2020 Notes,
as applicable, and will vote together as one
class on all matters with respect to such series.
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Conversion:
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None
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Sinking Fund:
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None
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Miscellaneous:
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The terms of the Notes shall include such other
terms as are set out in the form of the Notes
attached hereto as
Exhibit A
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To the extent that the terms of the Indenture and the Securities conflict, the terms of the
Securities shall govern. Capitalized terms used in this Officers’ Certificate and not otherwise
defined have the meaning given to such terms in the Indenture.
[
Remainder of page intentionally left blank
]
IN WITNESS WHEREOF, the undersigned has executed this Officers’ Certificate on behalf of
Symantec Corporation
Dated: September 16, 2010
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SYMANTEC CORPORATION
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By:
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/s/ James A . Beer
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Name:
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James A. Beer
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Title:
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Executive Vice President and
Chief Financial Officer
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By:
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/s/ Scott C. Taylor
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Name:
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Scott C. Taylor
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Title:
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Executive Vice President,
General Counsel and Secretary
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[Signature Page to Officers’ Certificate to Indenture]
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND
IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED
IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART
MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF,
EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (“DTC”), A NEW YORK CORPORATION, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE
& CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL IN AS
MUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SYMANTEC
CORPORATION
2.750% Senior Notes due 2015
CUSIP NO. 871503 AG3
ISIN NO. US871503AG32
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No. ____
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U.S. $_____________
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Symantec Corporation, a corporation duly organized and existing under the laws of Delaware
(herein called the “
Company
,” which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to CEDE & CO., or registered
assigns, the principal sum of _____________ ($_________) on September 15, 2015, and to pay
interest thereon from September 16, 2010 or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, semiannually in arrears on March 15 and September 15
in each year, commencing March 15, 2011, at the rate of 2.750% per annum, until the principal
hereof is paid or made available for payment, as may be adjusted in the event of a ratings
downgrade. The interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Security
(or one or more Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest, which shall be March 1 or September 1 (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date. Any such interest not so
punctually paid or duly provided for will forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the Person in whose name this Security (or one or
more Predecessor Securities) is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to
Holders of Securities of this series not less than 10 days prior to such Special Record Date, or be
paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities of this series may be listed,
and upon such notice as may be required by such exchange, all as more fully provided in said
Indenture.
Payment of the principal of (and premium, if any) and interest on this Security will be made, and
this Security may be exchanged or transferred, at the office or agency of the Company maintained
for that purpose, which initially shall be the Corporate Trust Office located at 625 Marquette
Avenue, Minneapolis, Minnesota 55402, in such coin or currency of the United States of America as
at the time of payment is legal tender for payment of public and private debts. Payment of
principal of (and premium, if any) and interest on a Global Security registered in the name of or
held by DTC or its nominee will be made in immediately available funds to DTC or its nominee, as
the case may be, as the registered holder of such Global Security. If any of the Securities are no
longer represented by a Global Security, payment of interest on certificated notes in definitive
form may, at the option of Company, be made by (i) check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register, or (ii) upon request of any
Holder of at least $1,000,000 principal amount of Securities, wire transfer to an account located
in the United States maintained by the such payee. Reference is hereby made to the further
provisions of this Security set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Reference is hereby made to the further provisions of this Security set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as if set forth at
this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to
on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under
the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
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SYMANTEC CORPORATION
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By:
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Name:
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James A. Beer
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Title:
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Executive Vice President and
Chief Financial Officer
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ATTEST:
SYMANTEC CORPORATION
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By:
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Name:
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Scott C. Taylor
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Title:
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Executive Vice President,
General Counsel and
Secretary
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[
2.750% Senior Notes due 2015
]
This is one of the Securities of the series designated herein referred to in the
within-mentioned Indenture.
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WELLS FARGO BANK, NATIONAL ASSOCIATION,
As Trustee
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By:
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Authorized Signatory
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Dated: _______________, 2010
[
2.750% Senior Notes due 2015
]
(REVERSE OF NOTE)
This Security is one of a duly authorized issue of securities of the Company (herein called
the “
Securities
”), issued and to be issued in one or more series under an Indenture, dated as of
September 16, 2010 (herein called the “Indenture,” which term shall have the meaning assigned to it
in such instrument), between the Company and Wells Fargo Bank, National Association, as Trustee
(herein called the “Trustee,” which term includes any successor trustee under the Indenture), and
reference is hereby made to the Indenture, the Officers’ Certificate dated September 16, 2010,
pursuant to Sections 1.2 and 3.1 of the Indenture and all indentures supplemental thereto for a
statement of the respective rights, limitations of rights, duties and immunities thereunder of the
Company, the Trustee and the Holders of the Securities and of the terms upon which the Securities
are, and are to be, authenticated and delivered. This Security is one of the series designated on
the face hereof.
The Securities of this series are subject to redemption, in whole or in part, at the election
of the Company upon not less than 30 days’ nor more than 60 days’ notice by mail, at a Redemption
Price equal to the greater of: (1) 100% of the aggregate principal amount of the Securities to be
redeemed, and (2) the sum of the present values of the Remaining Scheduled Payments (as defined
below), plus, in each case, accrued and unpaid interest to, but not including, the Redemption Date.
In determining the present values of the Remaining Scheduled Payments, the Company will discount
such payments to the Redemption Date on a semi-annual basis (assuming a 360-day year consisting of
twelve 30-day months) using a discount rate equal to the Treasury Rate plus 20 basis points.
“
Remaining Scheduled Payments
” means, with respect to any Security to be redeemed, the
remaining scheduled payments of the principal thereof and interest thereon that would be due after
the related Redemption Date but for such redemption; provided, however, that, if such Redemption
Date is not an Interest Payment Date with respect to such Security, the amount of the next
scheduled interest payment thereon will be reduced by the amount of interest accrued thereon to
such Redemption Date.
In the event of redemption of this Security in part only, a new Security or Securities of this
series and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder
hereof upon the cancellation hereof.
Unless the Company defaults in payment of the Redemption Price, on and after the Redemption
Date interest will cease to accrue on the Securities, or portions thereof, called for redemption.
The Indenture contains provisions for defeasance at any time of the entire indebtedness of
this Security or certain restrictive covenants and Events of Default with respect to this Security,
in each case upon compliance with certain conditions set forth in the Indenture.
If an Event of Default with respect to Securities of this series shall occur and be
continuing, the principal of the Securities of this series may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and
the modification of the rights and obligations of the Company and the rights of the Holders of the
Securities of each series to be affected under the Indenture at any time by the Company and the
Trustee with the consent of the Holders of more than 50% in principal amount of the Securities at
the time Outstanding of each series to be affected. The Indenture also contains provisions
permitting the Holders of specified percentages in principal amount of the Securities of each
series at the time Outstanding, on behalf of the Holders of all Securities of such series, to waive
compliance by the Company with certain provisions of the Indenture and certain past defaults under
the Indenture and their consequences. Any such consent or waiver by the Holder of this Security
shall be conclusive and binding upon such Holder and upon all future Holders of this Security and
of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder of this Security
shall not have the right to institute any proceeding with respect to the Indenture or for the
appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall
have previously given the Trustee written notice of a continuing Event of Default with respect to
the Securities of this series, the Holders of not less than 25% in principal amount of the
Securities of this series at the time Outstanding shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default as Trustee and offered the Trustee an
indemnity satisfactory to the Trustee, and the Trustee shall not have received from the Holders of
a majority in principal amount of Securities of this series at the time Outstanding a direction
inconsistent with such request, and shall have failed to institute any such proceeding, for 90 days
after receipt of such notice, request and offer of indemnity. The foregoing shall not apply to any
suit instituted by the Holder of this Security for the enforcement of any payment of principal
hereof or any premium or interest hereon on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security or of the Indenture
shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay
the principal of and any premium and interest on this Security at the times, place and rate, and in
the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the
transfer of this Security is registrable in the Security Register, upon surrender of this Security
for registration of transfer at the office or agency of the Company in any place where the
principal of and any premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or its attorney duly authorized in writing,
and thereupon one or more new Securities of this series and of like tenor, of authorized
denominations and for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
The Securities of this series are issuable only in registered form without coupons in
denominations of $2,000 and any integral multiples of $1,000 thereof. As provided in the Indenture
and subject to certain limitations therein set forth, Securities of this series are exchangeable
for a like aggregate principal amount of Securities of this series and of like tenor of a different
authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or exchange, but the
Company may require payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the Person in whose name this
Security is registered as the owner hereof for all purposes, whether or not this Security be
overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are not defined herein and are defined in the Indenture
or in the Company’s Officers’ Certificate, dated September 16, 2010 and delivered pursuant to the
Indenture, shall have the meanings assigned to them in the Indenture or such Officers’ Certificate.
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND
IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED
IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART
MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF,
EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (“DTC”), A NEW YORK CORPORATION, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE
& CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL IN AS
MUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SYMANTEC CORPORATION
4.200% Senior Notes due 2020
CUSIP NO. 871503 AH1
ISIN NO. US871503AH15
Symantec Corporation, a corporation duly organized and existing under the laws of Delaware
(herein called the “
Company
,” which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to CEDE & CO., or registered
assigns, the principal sum of ______________ ($___________) on September 15, 2020, and to pay
interest thereon from September 16, 2010 or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, semiannually in arrears on March 15 and September 15
in each year, commencing March 15, 2011, at the rate of 4.200% per annum, until the principal
hereof is paid or made available for payment, as may be adjusted in the event of a ratings
downgrade. The interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Security
(or one or more Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest, which shall be March 1 or September 1 (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date. Any such interest not so
punctually paid or duly provided for will forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the Person in whose name this Security (or one or
more Predecessor Securities) is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to
Holders of Securities of this series not less than 10 days
prior to such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the Securities of this
series may be listed, and upon such notice as may be required by such exchange, all as more fully
provided in said Indenture.
Payment of the principal of (and premium, if any) and interest on this Security will be made, and
this Security may be exchanged or transferred, at the office or agency of the Company maintained
for that purpose, which initially shall be the Corporate Trust Office located at 625 Marquette
Avenue, Minneapolis, Minnesota 55402, in such coin or currency of the United States of America as
at the time of payment is legal tender for payment of public and private debts. Payment of
principal of (and premium, if any) and interest on a Global Security registered in the name of or
held by DTC or its nominee will be made in immediately available funds to DTC or its nominee, as
the case may be, as the registered holder of such Global Security. If any of the Securities are no
longer represented by a Global Security, payment of interest on certificated notes in definitive
form may, at the option of Company, be made by (i) check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register, or (ii) upon request of any
Holder of at least $1,000,000 principal amount of Securities, wire transfer to an account located
in the United States maintained by the such payee. Reference is hereby made to the further
provisions of this Security set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Reference is hereby made to the further provisions of this Security set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as if set forth at
this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to
on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under
the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
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SYMANTEC CORPORATION
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By:
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Name:
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James A. Beer
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Title:
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Executive Vice President and
Chief Financial Officer
|
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ATTEST:
SYMANTEC CORPORATION
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By:
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Name:
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Scott C. Taylor
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Title:
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Executive Vice President,
General Counsel and
Secretary
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[
4.200% Senior Notes due 2020
]
This is one of the Securities of the series designated herein referred to in the
within-mentioned Indenture.
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WELLS FARGO BANK, NATIONAL ASSOCIATION,
As Trustee
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By:
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Authorized Signatory
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Dated: _______________, 2010
[
4.200% Senior Notes due 2020
]
(REVERSE OF NOTE)
This Security is one of a duly authorized issue of securities of the Company (herein called
the “
Securities
”), issued and to be issued in one or more series under an Indenture, dated as of
September 16, 2010 (herein called the “Indenture,” which term shall have the meaning assigned to it
in such instrument), between the Company and Wells Fargo Bank, National Association, as Trustee
(herein called the “Trustee,” which term includes any successor trustee under the Indenture), and
reference is hereby made to the Indenture, the Officers’ Certificate dated September 16, 2010,
pursuant to Sections 1.2 and 3.1 of the Indenture and all indentures supplemental thereto for a
statement of the respective rights, limitations of rights, duties and immunities thereunder of the
Company, the Trustee and the Holders of the Securities and of the terms upon which the Securities
are, and are to be, authenticated and delivered. This Security is one of the series designated on
the face hereof.
The Securities of this series are subject to redemption, in whole or in part, at the election
of the Company upon not less than 30 days’ nor more than 60 days’ notice by mail, at a Redemption
Price equal to the greater of: (1) 100% of the aggregate principal amount of the Securities to be
redeemed, and (2) the sum of the present values of the Remaining Scheduled Payments (as defined
below), plus, in each case, accrued and unpaid interest to, but not including, the Redemption Date.
In determining the present values of the Remaining Scheduled Payments, the Company will discount
such payments to the Redemption Date on a semi-annual basis (assuming a 360-day year consisting of
twelve 30-day months) using a discount rate equal to the Treasury Rate plus 25 basis points.
“
Remaining Scheduled Payments
” means, with respect to any Security to be redeemed, the
remaining scheduled payments of the principal thereof and interest thereon that would be due after
the related Redemption Date but for such redemption; provided, however, that, if such Redemption
Date is not an Interest Payment Date with respect to such Security, the amount of the next
scheduled interest payment thereon will be reduced by the amount of interest accrued thereon to
such Redemption Date.
In the event of redemption of this Security in part only, a new Security or Securities of this
series and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder
hereof upon the cancellation hereof.
Unless the Company defaults in payment of the Redemption Price, on and after the Redemption
Date interest will cease to accrue on the Securities, or portions thereof, called for redemption.
The Indenture contains provisions for defeasance at any time of the entire indebtedness of
this Security or certain restrictive covenants and Events of Default with respect to this Security,
in each case upon compliance with certain conditions set forth in the Indenture.
If an Event of Default with respect to Securities of this series shall occur and be
continuing, the principal of the Securities of this series may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and
the modification of the rights and obligations of the Company and the rights of the Holders of the
Securities of each series to be affected under the Indenture at any time by the Company and the
Trustee with the consent of the Holders of more than 50% in principal amount of the Securities at
the time Outstanding of each series to be affected. The Indenture also contains provisions
permitting the Holders of specified percentages in principal amount of the Securities of each
series at the time Outstanding, on behalf of the Holders of all Securities of such series, to waive
compliance by the Company with certain provisions of the Indenture and certain past defaults under
the Indenture and their consequences. Any such consent or waiver by the Holder of this Security
shall be conclusive and binding upon such Holder and upon all future Holders of this Security and
of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder of this Security
shall not have the right to institute any proceeding with respect to the Indenture or for the
appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall
have previously given the Trustee written notice of a continuing Event of Default with respect to
the Securities of this series, the Holders of not less than 25% in principal amount of the
Securities of this series at the time Outstanding shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default as Trustee and offered the Trustee an
indemnity satisfactory to the Trustee, and the Trustee shall not have received from the Holders of
a majority in principal amount of Securities of this series at the time Outstanding a direction
inconsistent with such request, and shall have failed to institute any such proceeding, for 90 days
after receipt of such notice, request and offer of indemnity. The foregoing shall not apply to any
suit instituted by the Holder of this Security for the enforcement of any payment of principal
hereof or any premium or interest hereon on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security or of the Indenture
shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay
the principal of and any premium and interest on this Security at the times, place and rate, and in
the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the
transfer of this Security is registrable in the Security Register, upon surrender of this Security
for registration of transfer at the office or agency of the Company in any place where the
principal of and any premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or its attorney duly authorized in writing,
and thereupon one or more new Securities of this series and of like tenor, of authorized
denominations and for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
The Securities of this series are issuable only in registered form without coupons in
denominations of $2,000 and any integral multiples of $1,000 thereof. As provided in the Indenture
and subject to certain limitations therein set forth, Securities of this series are exchangeable
for a like aggregate principal amount of Securities of this series and of like tenor of a different
authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or exchange, but the
Company may require payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the Person in whose name this
Security is registered as the owner hereof for all purposes, whether or not this Security be
overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are not defined herein and are defined in the Indenture
or in the Company’s Officers’ Certificate, dated September 16, 2010 and delivered pursuant to the
Indenture, shall have the meanings assigned to them in the Indenture or such Officers’ Certificate.