EXECUTION COPY
Exhibit 4.02
JABIL CIRCUIT, INC.
and
THE BANK OF NEW YORK,
As Trustee
------------------------
FIRST SUPPLEMENTAL INDENTURE
Dated as of July 21, 2003
--------------------------
Supplemental to Indenture
Dated as of July 21, 2003
------------------
Creating a series of Securities
designated
5.875% Senior Notes due 2010
TABLE OF CONTENTS
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101 Definitions.................................................................................... 2
ARTICLE TWO
THE NOTES
Section 201 Designation of Notes; Establishment of Form.................................................... 3
Section 202 Transfer and Exchange.......................................................................... 4
Section 203 Amount......................................................................................... 5
Section 204 Interest....................................................................................... 6
Section 205 Denominations.................................................................................. 6
Section 206 Place of Payment............................................................................... 6
Section 207 Optional Redemption............................................................................ 7
Section 208 Applicability of Certain Indenture Provisions.................................................. 7
Section 209 Stated Maturity................................................................................ 7
Section 210 Discharge of Liability on Notes................................................................ 7
Section 211 Ranking........................................................................................ 7
ARTICLE THREE
REDEMPTION OF NOTES AT THE OPTION OF THE COMPANY
Section 301 General........................................................................................ 7
ARTICLE FOUR
MISCELLANEOUS PROVISIONS
Section 401 Integral Part.................................................................................. 9
Section 402 General Definitions............................................................................ 9
Section 403 Adoption, Ratification and Confirmation........................................................ 9
Section 404 Counterparts................................................................................... 9
i
Section 405 Governing Law.................................................................................. 10
Section 406 Conflict of Any Provision of Indenture with Trust Indenture Act of 1939........................ 10
Section 407 Effect of Headings............................................................................. 10
Section 408 Severability of Provisions..................................................................... 10
Section 409 Successors and Assigns......................................................................... 10
Section 410 Benefit of Supplemental Indenture.............................................................. 10
Section 411 Acceptance by Trustee.......................................................................... 10
Section 412 Calculations................................................................................... 11
ANNEX A ............................................................................................... A-1
ii
JABIL CIRCUIT, INC.
FIRST SUPPLEMENTAL INDENTURE
THIS FIRST SUPPLEMENTAL INDENTURE, dated as of July 21, 2003, between
Jabil Circuit, Inc., a corporation organized and existing under the laws of the
State of Delaware (the "Company"), and The Bank of New York, a New York banking
corporation, as trustee (the "Trustee").
WITNESSETH
WHEREAS, the Company has heretofore executed and delivered to the
Trustee an Indenture, dated as of July 21, 2003 (the "Indenture"), providing for
the issuance from time to time of its subordinated debentures, notes, bonds or
other evidences of indebtedness (hereinafter called "Securities") in one or more
fully registered series;
WHEREAS, Section 9.1 of the Indenture provides that the Company and the
Trustee may from time to time enter into one or more indentures supplemental
thereto to establish the form or terms of Securities of a new series;
WHEREAS, Section 3.1 of the Indenture provides that the Company may
enter into supplemental indentures to establish the terms and provisions of a
series of Securities issued pursuant to the Indenture;
WHEREAS, the Company desires to issue up to $300,000,000 5.875% Senior
Notes due 2010 (the "Notes"), a new series of Securities, the issuance of which
was authorized by resolutions of the Board of Directors of the Company, dated
July 27, 2000, and by resolution of the Pricing Committee of the Board of
Directors of the Company, dated July 15, 2003;
WHEREAS, the Company, pursuant to the foregoing authority, proposes in
and by this First Supplemental Indenture to supplement and amend in certain
respects the Indenture insofar as it will apply only to the Notes (and not to
any other series); and
WHEREAS, all things necessary have been done to make the Notes, when
executed by the Company and authenticated and delivered hereunder and duly
issued by the Company, the valid obligations of the Company, and to make this
First Supplemental Indenture a valid agreement of the Company, in accordance
with their and its terms.
NOW THEREFORE:
In consideration of the premises provided for herein, the Company and
the Trustee mutually covenant and agree for the equal and proportionate benefit
of all Holders of the Notes as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101 Definitions.
For all purposes of the Indenture and this First Supplemental Indenture
relating to the series of Securities (consisting of Notes) created hereby,
except as otherwise expressly provided or unless the context otherwise requires,
the terms defined in this Article have the meanings assigned to them in this
Article. Each capitalized term that is used in this First Supplemental Indenture
but not defined herein shall have the meaning specified in the Indenture. Except
as otherwise specified, section references are to sections of this First
Supplemental Indenture.
"Agent Members" has the meaning specified in Section 201(b).
"Applicable Procedures" means, with respect to any transfer or exchange
of beneficial ownership interests in a Global Security, the rules and procedures
of the Depository that are applicable to such transfer or exchange.
"Business Day" means any day which is not a Saturday, Sunday that is
neither a legal holiday nor a day on which banking institutions are authorized
or required by regulation or executive order to close in The City of New York.
"Certificated Security" means a Security that is in substantially the
form attached hereto as Annex A.
"Depository" has the meaning specified in Section 201(a).
"Global Security" means a permanent global Security that is in
substantially the form attached hereto as Annex A and which is deposited with
the Depository or the Securities Custodian and registered in the name of the
Depository or its nominee.
"Indenture" has the meaning specified in the first recital hereto.
"Interest Payment Date" has the meaning specified in Section 204.
"Issue Date" of any Note means the date on which the Note was
originally issued or deemed issued as set forth on the face of the Note.
"Notes" has the meaning specified in the fourth recital hereto.
"Redemption Date" has the meaning specified in Section 301.
"Redemption Price" has the meaning specified in Section 301.
"Regular Record Date" has the meaning specified in Section 204.
"Securities" has the meaning specified in the first recital hereto.
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"Securities Custodian" means the Trustee, as custodian with respect to
the Securities in global form, or any successor thereto.
"Securities Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Stated Maturity" has the meaning specified in Section 207.
ARTICLE TWO
THE NOTES
Section 201 Designation of Notes; Establishment of Form.
There shall be a series of Securities designated "5.875% Senior Notes
due 2010" of the Company, and the form thereof shall be substantially as set
forth in Annex A hereto, which is incorporated into and shall be deemed a part
of this First Supplemental Indenture, with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
the 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 as may,
consistently herewith, be determined by the officers of the Company executing
such Notes, as evidenced by their execution of the Notes.
(a) Registered Securities. The certificates for the Notes shall be
Registered Securities and shall be issued initially in the form of one or more
Global Securities, which shall be deposited on behalf of the purchasers of the
Notes represented thereby with the Trustee, at its Corporate Trust Office, as
Securities Custodian for the depositary, The Depository Trust Company (such
depositary, or any successor thereto, being hereinafter referred to as the
"Depository"), and registered in the name of its nominee, Cede & Co., duly
executed by the Company and authenticated by the Trustee as hereinafter
provided.
(b) Global Securities in General. Each Global Security shall
represent such of the Outstanding Notes as shall be specified therein and each
shall provide that it shall represent the aggregate principal amount of
Outstanding Notes and that the aggregate principal amount of Outstanding Notes
represented thereby may from time to time be reduced, as appropriate, to reflect
redemptions or purchases of such Notes. Any decrease in the principal amount of
Outstanding Notes represented thereby shall be made by the Securities Custodian
in accordance with the standing instructions and procedures existing between the
Depository and the Securities Custodian.
Neither any members of, or participants in, the Depository
("Agent Members") nor any other Persons on whose behalf Agent Members may act
shall have rights under the Indenture or this First Supplemental Indenture with
respect to any Global Security held in the name of the Depository or any nominee
thereof, or under the Global Security, and the Depository (including, for this
purpose, its nominee) may be treated by the Company, the Trustee and any agent
of the Company or the Trustee as the absolute owner and Holder of such Global
Security for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall (A) prevent the Company, the Trustee or any agent of the Company or
the Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depository or (B) impair, as
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between the Depository, its Agent Members and any other Person on whose behalf
an Agent Member may act, the operation of customary practices governing the
exercise of the rights of a Holder of any Note.
(c) Certificated Securities. Certificated Securities shall be
issued only under the limited circumstances provided in Sections 202(a)(1)
hereof.
(d) Paying Agent. The Company shall maintain an office or agency
where Notes may be presented for purchase or payment ("Paying Agent"). The
Company may have one or more additional paying agents.
The Company shall enter into an appropriate agency agreement
with any Paying Agent (other than the Trustee). The agreement shall implement
the provisions of the Indenture and this First Supplemental Indenture that
relate to such agent. The Company shall notify the Trustee of the name and
address of any such agent. If the Company fails to maintain a Paying Agent, the
Trustee shall act as such and shall be entitled to appropriate compensation
therefor pursuant to Section 6.6 of the Indenture. The Company or any Subsidiary
or an Affiliate of either of them may act as Paying Agent.
The Company initially appoints the Trustee as Paying Agent in
connection with the Notes.
Section 202 Transfer and Exchange.
(a) Transfer and Exchange of Global Securities.
(1) Certificated Securities shall be issued in
exchange for interests in the Global Securities only if (i) the
Depository notifies the Company that it is unwilling or unable to
continue as depositary for the Global Securities, (ii) the Depository
ceases to be a "clearing agency" registered under the Securities
Exchange Act if so required by applicable law or regulation and a
successor depositary is not appointed by the Company within 90 days,
(iii) the Company in its sole discretion determines that the Global
Securities shall be exchangeable for Certificated Securities or (iv)
there shall have occurred and be continuing an Event of Default. In
either case, the Company shall execute, and the Trustee shall, upon
receipt of a Company Order (which the Company agrees to deliver
promptly), authenticate and deliver Certificated Securities in an
aggregate principal amount equal to the principal amount of such Global
Securities in exchange therefor. Certificated Securities issued in
exchange for beneficial interests in Global Securities shall be
registered in such names and shall be in such authorized denominations
as the Depository, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee
shall deliver or cause to be delivered such Certificated Securities to
the persons in whose names such Certificated Securities are so
registered. Such exchange shall be effected in accordance with the
Applicable Procedures. Nothing herein shall require the Trustee to
communicate directly with beneficial owners, and the Trustee shall in
connection with any transfers hereunder be entitled to rely on
instructions received through the registered Holder.
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In the event that Certificated Securities are issued
in exchange for beneficial interests in Global Securities in accordance
with the foregoing paragraph and, thereafter, the events or conditions
specified in this Section 202(a)(1) which required such exchange shall
have ceased to exist, the Company shall mail notice to the Trustee and
to the Holders stating that Holders may exchange Certificated
Securities for interests in Global Securities by complying with the
procedures set forth in this Indenture and briefly describing such
procedures and the events or circumstances requiring that such notice
be given.
(2) Notwithstanding any other provisions of this
First Supplemental Indenture other than the provisions set forth in
Section 202(a)(1) hereof, a Global Security may not be transferred,
except as a whole by the Depository to a nominee of the Depository or
by a nominee of the Depository to the Depository or another nominee of
the Depository or by the Depository or any such nominee to a successor
Depository or a nominee of such successor Depository. Nothing in this
Section 202(a)(2) shall prohibit or render ineffective any transfer of
a beneficial interest in a Global Security effected in accordance with
the other provisions of this Section 202.
(b) Transfer and Exchange of Certificated Securities. When
Certificated Securities are presented by a Holder to a Security Registrar with a
request:
(1) to register the transfer of the Certificated
Securities to a person who will take delivery thereof in the form of
Certificated Securities only; or
(2) to exchange such Certificated Securities for
an equal principal amount of Certificated Securities of other
authorized denominations,
such Security Registrar shall register the transfer or make the exchange as
requested; provided, however, that the Certificated Securities presented or
surrendered for register of transfer or exchange shall be duly endorsed or
accompanied by a written instrument of transfer in accordance with the tenth
paragraph of Section 3.5 of the Indenture.
(c) Transfers to the Company. Nothing in this First Supplemental
Indenture or in the Notes shall prohibit the sale or other transfer of any Notes
(including beneficial interests in Global Securities) to the Company or any of
its Subsidiaries, which Notes shall thereupon be canceled in accordance with
Section 3.9 of the Indenture.
Section 203 Amount.
(a) The Trustee shall authenticate and deliver Notes for original
issue in an aggregate principal amount of up to $300,000,000 upon one or more
Company Orders for the authentication and delivery of Notes, without any further
action by the Company. The aggregate principal amount of Notes that may be
authenticated and delivered under the Indenture may not exceed the amount set
forth in the foregoing sentence, except for Notes authenticated and delivered
upon registration of transfer of, or in exchange for, or in lieu of, other Notes
pursuant to Section 202 of this First Supplemental Indenture or Sections 3.4,
3.5, 3.6, 9.5 or 11.7 of the Indenture; provided, however, that the Company may,
without the consent of the Holders of Outstanding Notes, increase the principal
amount of the Notes Outstanding by issuing additional
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Notes ("Additional Notes") in the future on the same terms and conditions
(including, without limitation, the right to receive accrued and unpaid
interest), except for differences in the issue price and Issue Date of the
Additional Notes, and with the same CUSIP number as the Notes then Outstanding.
No Additional Notes may be issued if an Event of Default has occurred and is
continuing with respect to the Notes. Any Additional Notes would rank equally
and ratably with the Notes then Outstanding and shall be treated as a single
series for all purposes hereunder and under the Indenture. From and after the
Issue Date of any Additional Notes, any reference herein to "Notes" shall
include such Additional Notes.
(b) The Company may not issue new Notes to replace Notes that it
has paid or delivered to the Trustee for cancellation.
Section 204 Interest.
The principal of the Notes shall bear interest at the rate of 5.875%
per annum from July 21, 2003 or from the most recent Interest Payment Date on
which interest has been paid or duly provided for, payable semiannually in
arrears on January 15 and July 15 of each year (each, an "Interest Payment
Date"), commencing January 15, 2004, to the Persons in whose names the Notes are
registered at the close of business on the January 1 or July 1 (whether or not a
Business Day), as the case may be, immediately preceding such Interest Payment
Date (each, a "Regular Record Date"). Interest on the Notes shall be computed on
the basis of a 360-day year comprised of twelve 30-day months.
If any Interest Payment Date or date of Maturity (including any
Redemption Date) falls on a day that is not a Business Day, then interest will
be paid on the next day that is a Business Day, and, unless the Company defaults
on such payment, no interest will accrue for the period from and after such
Interest Payment Date or date of Maturity. Maturity or redemption of a Note
shall cause interest to cease to accrue on such Note subject to the Company's
obligation to pay interest on overdue amounts in accordance with Section 5.3 of
the Indenture and the terms of the Notes.
Section 205 Denominations.
The Notes shall be issued without coupons in minimum denominations of
$1,000 or any integral multiple thereof.
Section 206 Place of Payment.
The Place of Payment for the Notes and the place or places where the
Notes may be surrendered for registration of transfer, exchange or redemption
and where notices may be given to the Company in respect of the Notes is at the
office of the Trustee in New York, New York and at the agency of the Trustee
maintained for that purpose at the office of the Trustee; provided, however,
that payment of interest may be made at the option of the Company by check
mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register or by wire transfer of immediately available
funds to an account previously specified in writing by such Person to the
Company and the Trustee.
6
Section 207 Redemption.
The Notes may be redeemed in accordance with Article 11 of the
Indenture, as amended by Article 3 of this First Supplemental Indenture, and
otherwise subject to this First Supplemental Indenture. The Notes are not
subject to any sinking fund.
In the event that the Notes are called for redemption pursuant to the
terms of this First Supplemental Indenture, the Holders of Notes shall have all
rights as set forth in this First Supplemental Indenture.
Section 208 Applicability of Certain Indenture Provisions
The provisions of Section 4.2 of the Indenture relating to defeasance
and covenant defeasance shall be applicable to the Notes.
Section 209 Stated Maturity.
The date on which the principal of the Notes is due and payable, unless
earlier accelerated or redeemed pursuant to the Indenture or this First
Supplemental Indenture, shall be July 15, 2010, which shall be the "Stated
Maturity" thereof for the purposes of the Indenture and this First Supplemental
Indenture.
Section 210 Discharge of Liability on Notes.
The Notes may be discharged by the Company in accordance with the
provisions of Article Four of the Indenture.
Section 211 Ranking
The Notes are senior unsecured obligations of the Company.
ARTICLE THREE
REDEMPTION OF NOTES AT THE OPTION OF THE COMPANY
Section 301 General.
The Company may redeem any of the Notes in whole or in part, at its
option, at any time prior to their Stated Maturity, at the redemption price (the
"Redemption Price") equal to the greater of:
(i) 100% of the principal amount of the Notes being redeemed or
(ii) the Make-Whole Amount for the Notes being redeemed.
plus, in each case, accrued interest on such Notes to the date of redemption
(the "Redemption Date"). The Company will, however, pay the interest installment
due on any Interest Payment Date that occurs on or before a Redemption Date to
the Holders of the Notes as of the close of business on the Regular Record Date
immediately preceding that Interest Payment Date.
7
"Make-Whole Amount" means the sum of the present values of the
remaining scheduled payments of principal and interest on the Notes being
redeemed, discounted to the Redemption Date on a semi-annual basis (assuming a
360-day year consisting of twelve 30-day months) at the Treasury Rate plus 37.5
basis points.
"Treasury Rate" means, with respect to any Redemption Date, the rate
per annum equal to the semi-annual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such Redemption Date.
"Comparable Treasury Issue" means the United States Treasury security
selected by the Independent Investment Banker as having a maturity comparable to
the remaining term of the Notes to be redeemed that would be utilized, at the
time of selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable maturity to the
remaining term of such Notes.
"Comparable Treasury Price" means, with respect to any Redemption Date,
(i) the average of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) on the third
business day preceding such Redemption Date, as set forth in the H.15 Daily
Update of the Federal Reserve Bank, or (ii) if such release (or any successor
release) is not published or does not contain prices on such Business Day, the
Reference Treasury Dealer Quotations actually obtained by the Trustee for such
Redemption Date.
"H.15 (519)" means the weekly statistical release entitled "H.15 (519)
Selected Interest Rates" or any successor publication published by the Board of
Governors of the Federal Reserve System.
"H.15 Daily Update" means the daily update of H.15 (519) available
through the worldwide website of the Board of Governors of the Federal Reserve
System or any successor site or publication.
"Independent Investment Banker" means one of the Reference Treasury
Dealers appointed by the Trustee after consultation with the Company.
"Reference Treasury Dealer" means (i) each of Banc One Capital Markets,
Inc., Citigroup Global Markets Inc. and ▇.▇. ▇▇▇▇▇▇ Securities Inc. (or their
respective affiliates that are Primary Treasury Dealers (as defined below)), and
their respective successors; provided, however, that if either of the foregoing
shall cease to be a primary United States Treasury securities dealer in The City
of New York (a "Primary Treasury Dealer") the Company shall substitute therefor
another Primary Treasury Dealer, and (ii) any other Primary Treasury Dealer(s)
selected by the Trustee after consultation with the Company.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any Redemption Date, the average, as determined by
the Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m. on the
third business day preceding such Redemption Date.
8
The Company shall give notice of its intent to redeem the Notes at
least 30 days, but no more than 60 days, prior to the Redemption Date to Holders
of the Notes to be redeemed at their addresses as set forth in the security
register for the Notes. If less than all of the Notes are to be redeemed, the
notes to be redeemed shall be selected by lot by the Depository, in the case of
Notes represented by a Global Security, or by the Trustee by a method the
Trustee deems to be fair and appropriate, in the case of Notes that are not
represented by a Global Security.
If at the time notice of redemption is given the redemption moneys are
not on deposit with the Trustee, the redemption shall be subject to the receipt
of such moneys on or before the Redemption Date, and such notice shall be of no
effect unless such moneys are received.
Upon payment of the Redemption Price, on and after the Redemption Date,
interest will cease to accrue on the Notes or portions thereof called for
redemption.
ARTICLE FOUR
MISCELLANEOUS PROVISIONS
Section 401 Integral Part.
This First Supplemental Indenture constitutes an integral part of the
Indenture with respect to the Notes only.
Section 402 General Definitions.
For all purposes of this First Supplemental Indenture:
(a) capitalized terms used herein without definition shall have
the meanings specified in the Indenture; and
(b) the terms "herein," "hereof," "hereunder" and other words of
similar import refer to this First Supplemental Indenture.
Section 403 Adoption, Ratification and Confirmation.
The Indenture, as supplemented and amended by this First Supplemental
Indenture, is in all respects hereby adopted, ratified and confirmed, and this
First Supplemental Indenture shall be deemed part of the Indenture in the manner
and to the extent herein and therein provided. The provisions of this First
Supplemental Indenture shall, subject to the terms hereof, supersede the
provisions of the Indenture to the extent the Indenture is inconsistent
herewith.
Section 404 Counterparts.
This First Supplemental Indenture may be executed in any number of
counterparts, each of which when so executed shall be deemed an original; and
all such counterparts shall together constitute but one and the same instrument.
9
Section 405 Governing Law.
THIS FIRST SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE
OR INSTRUMENTS ENTERED INTO AND, IN EACH CASE, PERFORMED IN SAID STATE.
Section 406 Conflict of Any Provision of Indenture with Trust Indenture
Act of 1939.
If and to the extent that any provision of this First Supplemental
Indenture limits, qualifies or conflicts with a provision required under the
terms of the Trust Indenture Act of 1939, as amended, such Trust Indenture Act
provision shall control.
Section 407 Effect of Headings.
The Article and Section headings herein are for convenience only and
shall not affect the construction hereof.
Section 408 Severability of Provisions.
In case any provision in this First Supplemental Indenture or in the
Notes 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 409 Successors and Assigns.
All covenants and agreements in this First Supplemental Indenture by
the parties hereto shall bind their respective successors and assigns and inure
to the benefit of their respective successors and assigns, whether so expressed
or not.
Section 410 Benefit of Supplemental Indenture.
Nothing in this First Supplemental Indenture, express or implied, shall
give to any Person, other than the parties hereto, any Security Registrar, any
Paying Agent and their successors hereunder and the Holders of the Notes, any
benefit or any legal or equitable right, remedy or claim under this First
Supplemental Indenture.
Section 411 Acceptance by Trustee.
The Trustee accepts the amendments to the Indenture effected by this
First Supplemental Indenture and agrees to execute the trusts created by the
Indenture as hereby amended, but only upon the terms and conditions set forth in
this First Supplemental Indenture and the Indenture. Without limiting the
generality of the foregoing, the Trustee assumes no responsibility for the
correctness of the recitals contained herein, which shall be taken as the
statements of the Company and except as provided in the Indenture the Trustee
shall not be responsible or accountable in any way whatsoever for or with
respect to the validity or execution or sufficiency of this First Supplemental
Indenture and the Trustee makes no representation with respect thereto.
10
Section 412 Calculations.
The Company shall be responsible for making all calculations called for
under the Notes. The Company shall make all such calculations in good faith and,
absent manifest error, such calculations shall be final and binding on the
Holders of the Notes. The Company shall provide a schedule of its calculations
to the Trustee, and the Trustee is entitled to rely upon the accuracy of the
Company's calculations without independent calculation.
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IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed as of the day and year first above
written.
JABIL CIRCUIT, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. Main
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. Main
Title: President
THE BANK OF NEW YORK,
as Trustee
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
12
ANNEX A
[THIS NOTE IS A GLOBAL SECURITY. UNLESS THIS NOTE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (THE "DEPOSITORY ") TO
THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
REGISTERED PRINCIPAL AMOUNT
No: $
CUSIP: ▇▇▇▇▇▇▇▇▇
JABIL CIRCUIT, INC.
5.875% SENIOR NOTES DUE 2010
JABIL CIRCUIT, INC., a Delaware corporation (the "Company", which term
includes any successor corporation under the Indenture hereinafter referred to),
for value received hereby promises to pay to Cede & Co., or registered assigns,
the principal sum of [ ] DOLLARS ($[ ]) on July 15, 2010 ("Stated Maturity") and
to pay interest thereon from July 21, 2003 or from the most recent date in
respect of which interest has been paid or duly provided for, on January 15 and
July 15 of each year (each, an "Interest Payment Date"), commencing January 15,
2004, and at Stated Maturity or upon such other date on which the principal of
this Note becomes due and payable, whether by declaration of acceleration,
notice of redemption or otherwise, and including any Redemption Date (each such
date, "Maturity"), at the rate of 5.875% per annum, until the principal hereof
and premium, if any, hereon is paid or duly made available for payment and on
any overdue principal or premium, if any, and (to the extent that payout of such
interest is lawful) on any overdue installment of interest at the same rate per
annum during the period in which such principal or premium, if any, or interest
remains unpaid. The interest so payable, and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in the Indenture referred to
below, be paid to the Person in whose name this Note (or one or more Predecessor
Securities) is registered as of the close of business on January 1 or July 1, as
the case may be (whether or not a Business Day), next preceding such Interest
Payment Date (each such date, a "Regular Record Date"). Any such interest that
is payable, but is not punctually paid or duly provided for, on any Interest
Payment Date shall forthwith cease to be payable to the Holder of this Note on
such Regular Record Date by virtue of having been such Holder, and shall be paid
to the Person in whose name this Note (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 Company, notice whereof shall be
given to the Holder of this Note not less than 10 days prior to such Special
Record Date, or may be paid in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Notes may be listed,
A-1
and upon such notice as may be required by such exchange, all as more fully
provided in the Indenture.
Payment of the principal of, and premium, if any, and interest on, this
Note will be made at the office or agency maintained for that purpose in the
Borough of Manhattan, The City of New York, 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; provided, however, that payment of interest may be
made at the option of the Company by check mailed to the Person in whose name
this Note is registered at the close of business on the related record date;
provided further, that, notwithstanding anything else contained herein, if this
Note is a Global Security and is held in book-entry form through the facilities
of the Depository, payments on this Note will be made to the Depository or its
nominee in accordance with the arrangements then in effect between the Trustee
and the Depository.
Reference is hereby made to the further provisions of this Note set
forth on the succeeding pages hereof, which further provisions shall for all
purposes have the same effect as if set forth herein.
IN WITNESS WHEREOF, JABIL CIRCUIT, INC. has caused this instrument to
be duly executed.
JABIL CIRCUIT, INC.
By _____________________________
Name:
Title:
Attest:
By __________________________
Name:
Title:
Date:
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein, referred
to in the within-mentioned Indenture.
THE BANK OF NEW YORK, as Trustee
By _____________________________
Authorized Signatory
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JABIL CIRCUIT, INC.
5.875% SENIOR NOTES DUE 2010
This Note is one of a duly authorized issue of Securities of the
Company issued under an Indenture, dated as of July 21, 2003, and supplemented
July 21, 2003 (the "Indenture"), between the Company and The Bank of New York
(the "Trustee", which term includes any successor trustee under the Indenture),
designated as the 5.875% Senior Notes due 2010 (the "Notes"), limited to
$300,000,000 aggregate principal amount, subject to the provisions of the
Indenture. Reference is made to the Indenture for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Company,
the Trustee and the Holders of the Notes and of the terms upon which the Notes
are, and are to be, authenticated and delivered. All terms used in this Note set
forth below which are not defined herein and which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
The Indenture provides for the defeasance of the Notes and certain
covenants in certain circumstances.
This Note is unsecured as to payment of principal and premium, if any,
and interest, and ranks pari passu with all other unsecured senior indebtedness
of the Company.
Interest payments on this Note will include interest accrued to but
excluding the applicable Interest Payment Date or Maturity hereof, as the case
may be. Interest payments for this Note shall be computed and paid on the basis
of a 360-day year of twelve 30-day months.
In the case where the applicable Interest Payment Date or Maturity with
respect hereto, as the case may be, does not fall on a Business Day, payment of
principal, premium, if any, or interest otherwise payable on such day need not
be made on such day, but may be made on the next succeeding Business Day with
the same force and effect as if made on the Interest Payment Date or at Maturity
and, unless the Company defaults on such payment, no interest shall accrue with
respect to such payment for the period from and after the Interest Payment Date
or such Maturity, as the case may be, to the date of payment. "Business Day"
means any day other than a Saturday, Sunday or other day on which banking
institutions in the City of New York are authorized or obligated by law,
regulation or executive order to close.
The Notes will not be subject to any sinking fund and, except as
provided in the Indenture or herein, will not be redeemable or repayable prior
to their Stated Maturity.
The Notes are redeemable as a whole or in part, at the Company's option
at any time, at a Redemption Price equal to the greater of (i) 100 percent of
the principal amount of the Notes being redeemed or (ii) the sum of the present
values of the remaining scheduled payments of principal and interest on the
Notes being redeemed, discounted to the Redemption Date on a semiannual basis
(assuming a 360-day year consisting of twelve 30-day months) at the Treasury
Rate plus 37.5 basis points, plus, in each case, accrued interest on the Notes
to the Redemption Date. The Company will, however, pay the interest installment
due on any Interest Payment Date that occurs on or before a Redemption Date to
the Holders as of the close of business on the Regular Record Date immediately
preceding that Interest Payment Date.
"Treasury Rate" means, with respect to any Redemption Date, the rate
per annum equal to the semiannual equivalent yield to maturity of the Comparable
Treasury Issue, assuming a
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price for the Comparable Treasury Issue (expressed as a percentage of its
principal amount) equal to the Comparable Treasury price for such Redemption
Date.
"Comparable Treasury Issue" means the United States Treasury security
selected by the Independent Investment Banker as having a maturity comparable to
the remaining term of the Notes to be redeemed that would be utilized, at the
time of selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable maturity to the
remaining term of such Notes.
"Comparable Treasury Price" means, with respect to any Redemption Date,
(i) the average of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) on the third
Business Day preceding such Redemption Date, as set forth in the H.15 Daily
Update of the Federal Reserve Bank, or (ii) if such release (or any successor
release) is not published or does not contain prices on such Business Day, the
Reference Treasury Dealer Quotations actually obtained by the Trustee for such
Redemption Date.
"H.15 (519)" means the weekly statistical release entitled "H.15 (519)
Selected Interest Rates" or any successor publication published by the Board of
Governors of the Federal Reserve System.
"H.15 Daily Update" means the daily update of H.15 (519) available
through the worldwide website of the Board of Governors of the Federal Reserve
System or any successor site or publication.
"Independent Investment Banker" means one of the Reference Treasury
Dealers appointed by the trustee after consultation with the Company.
"Reference Treasury Dealer" means (i) each of Banc One Capital Markets,
Inc., Citigroup Global Markets Inc. and ▇.▇. ▇▇▇▇▇▇ Securities Inc. (or their
respective affiliates that are Primary Treasury Dealers (as defined below)), and
their respective successors; provided, however, that if either of the foregoing
shall cease to be a primary United States Treasury securities dealer in New York
City (a "Primary Treasury Dealer") the Company shall substitute therefor another
Primary Treasury Dealer, and (ii) any other Primary Treasury Dealer(s) selected
by the Trustee after consultation with the Company.
"Reference Treasury Dealer Quotations" means with respect to each
Reference Treasury Dealer and any Redemption Date, the average, as determined by
the Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m. (New York
City Time) on the third Business Day preceding such Redemption Date.
If (a) the Company shall have on any date (the "Succession Date")
consolidated with or merged into, or conveyed or transferred or leased its
properties and assets as an entirety or substantially as an entirety to, any
Person which is organized under the laws of any jurisdiction other than the
United States of America, any State thereof or the District of Columbia, (b) as
result of any change in or any amendment to the laws, regulations or published
tax rulings of such jurisdiction, or of any political subdivision or taxing
authority thereof or therein, affecting taxation, or any change in the official
administration, application or interpretation of such laws, regulations or
published tax rulings either generally or in relation to the Notes, which change
or
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amendment becomes effective after the Succession Date or which change in
official administration, application or interpretation shall not have been
available to the public prior to such Succession Date and is notified to the
Company, such continuing Person would be required to pay any Successor
Additional Amounts pursuant to the Indenture or the terms of the Notes in
respect of interest on any Notes on the next succeeding Interest Payment Date
and (c) such obligation cannot be avoided by the Company or such continuing
Person taking reasonable measures available to it, the Company or such
continuing Person may at its option redeem all (but not less than all) of the
Notes, upon not less than 30 nor more than 60 days' written notice as provided
in the Indenture, at a Redemption Price equal to 100% of the principal amount
thereof plus accrued interest to the date fixed for redemption; provided
however, that (a) no such notice of redemption may be given earlier than 60 days
prior to the earliest date on which a Successor would be obligated to pay such
Successor Additional Amounts were a payment then due in respect of the Notes,
and (b) at the time any such redemption notice is given, such obligation to pay
such Successor Additional Amounts must remain in effect.
Holders of Notes to be redeemed will be given notice of redemption, at
their addresses as set forth in the Security Register for the Notes, at least 30
and not more than 60 days prior to the date fixed for redemption. If less than
all the Notes are to be redeemed, the Notes to be redeemed shall be selected by
lot by the Depository, in the case of Notes represented by a Global Security, or
by the Trustee by a method the Trustee deems to be fair and appropriate, in the
case of the Notes that are not represented by a Global Security.
Unless the Company defaults in payment of the Redemption Price, on and
after the Redemption Date interest will cease to accrue on the Notes or portion
thereof called for redemption.
The payment of principal of, or premium, if any, or interest on, or in
respect of, this Note shall be deemed to include the payment of Successor
Additional Amounts provided for in the Indenture or herein to the extent that,
in such context, Successor Additional Amounts are, were or would be payable in
respect thereof pursuant to the Indenture or this Note.
If any Event of Default with respect to the Notes shall occur and be
continuing, the principal of the Notes may be declared due and payable in the
manner and with the effect provided in the Indenture.
As set forth in, and subject to the provisions of, the Indenture, no
Holder of any Note shall have any right to institute any proceeding, judicial or
otherwise, with respect to the Indenture, the Notes, or for any remedy
thereunder, unless (i) such Holder has previously given to the Trustee written
notice of a continuing Event of Default with respect to the Notes, (ii) the
Holders of not less than 25% in principal amount of the Outstanding Notes have
made written request to the Trustee to institute such proceedings in respect of
such Event of Default in its own name as Trustee thereunder, (iii) such Holder
or Holders have offered to the Trustee such indemnity as is reasonably
satisfactory to it against the costs, expenses and liabilities to be incurred in
compliance with such request, (iv) the Trustee has failed to institute such
proceeding within 60 days after receipt of such written notice, request and
offer of indemnity and (v) the Trustee has not received from the Holders of a
majority in principal amount of the Outstanding Notes a direction inconsistent
with such written request during such 60 day period.
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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 Notes at any time by the Company
and the Trustee by entering into an indenture or indentures supplemental thereto
with the consent of the Holders of not less than a majority in aggregate
principal amount of the Outstanding Notes. The Indenture also permits the
Holders of not less than a majority in principal amount of the Notes at the time
Outstanding, on behalf of the Holders of all of the Notes, to waive compliance
by the Company with certain restrictive provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Note shall be conclusive and binding upon such
Holder and upon all future Holders of any Note issued upon the registration of
transfer hereof or in exchange for or in lieu hereof, whether or not notation of
such consent or waiver is made upon this Note.
No reference to the Indenture and no provision of this Note or of the
Indenture shall alter or impair the obligation of the Company, which is absolute
and unconditional, to pay the principal of and premium, if any, and any interest
on this Note at the times, places and rate, and in the coin or currency, herein
prescribed.
The Notes are issuable only in fully registered form in denominations
of $1,000 and integral multiples in excess thereof. As provided in the Indenture
and subject to certain limitations therein set forth, this Note is exchangeable
for a like aggregate principal amount of Notes of this series and of like tenor
of any authorized denomination, as requested by the Holder surrendering the
same. As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Note is registrable in the Security Register,
upon surrender of this Note for registration of transfer at the office or agency
of the Company in any place where the principal of and any interest on this Note
are payable or at such other offices or agencies as the Company may designate,
duly endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to, the Company and the Security Registrar or any transfer agent
duly executed by the registered owner hereof or his/her attorney duly authorized
in writing, and thereupon one or more new Notes of this series and of like
tenor, of authorized denominations and for the same aggregate principal amount
and Stated Maturity will be issued to the designated transferee or transferees.
Subject to the terms of the Indenture, prior to due presentment of this
Note 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 Note is
registered as the owner hereof for all purposes, whether or not this Note is
overdue, and neither the Company, the Trustee nor any such agent shall be
affected by notice to the contrary.
No service charge shall be made for any registration of transfer or
exchange of this Note, but, subject to certain limitations set forth in the
Indenture, the Company may require payment of a sum sufficient to cover any tax
or other governmental charge payable in connection therewith.
The Indenture and this Note shall be governed by and construed in
accordance with the laws of the State of New York applicable to agreements made
or instruments entered into and, in each case, performed in said State.
This Note shall not be valid or become obligatory for any purpose until
the Trustee's Certificate of Authentication hereon shall have been executed by
the Trustee.
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
Please insert Social Security or other identifying number of assignee
________________________________________________________________________________
(please print or type name and address of assignee)
the within Security and all rights thereunder and does hereby irrevocably
constitute and appoint the aforesaid assignee attorney to transfer the within
Security on the books kept for registration thereof, with full power of
substitution in the premises.
Dated: _________________________ _________________________
In the presence of:
NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Security in every particular, without
alteration or enlargement or any change whatever. When assignment is made by a
guardian, trustee, executor or administrator, an officer of a corporation, or
anyone in a representative capacity, proof of his or her authority to act must
accompany the Security. The signature must be guaranteed by an Institution which
is a member of one of the following recognized signature Guarantee Programs: (i)
The Securities Transfer Agent Medallion Program (STAMP); (ii) The New York Stock
Exchange Medallion Program (MNSP); (iii) The Stock Exchange Medallion Program
(SEMP); or (iv) in such other guarantee program acceptable to the Trustee.
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