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Exhibit 4.4
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.
SUN MICROSYSTEMS, INC.
% Senior Note due 200_
No. $____________
CUSIP No.
Sun Microsystems, Inc., a corporation duly organized and existing under
the laws of Delaware (herein called the "Company," which term includes any
successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to Cede & Co., or registered assigns, the
principal sum of ___________________ ($____________) on _____________, and to
pay interest thereon from _____________, or from the most recent Interest
Payment Date to which interest has been paid or duly provided for, semi-annually
on _____________ and _____________ in each year, commencing _____________, at
the rate of __% per annum, until the principal hereof is paid or made available
for payment. 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.
Interest on the Security shall be computed on the basis of a 360-day year of
twelve 30-day months, and for any period shorter than a full six-month interest
period, on the basis of the actual days elapsed in such period.
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So long as all of the Securities of this series are represented by
Global Securities, the principal of, premium, if any, and interest, if any on
this Global Security shall be paid in same day funds to the Depositary, or to
such name or entity as is requested by an authorized representative of the
Depositary. If at any time the Securities of this series are no longer
represented by the Global Securities and are issued in definitive form
("Certificated Securities"), then the principal of, premium, if any, and
interest, if any, on each Certificated Security at Maturity shall be paid to the
Holder upon surrender of such Certificated Security at the office of agency
maintained by the Company in the Borough of Manhattan, The City of New York
(which shall initially be the principal corporate trust office of the Bank of
New York) or at such other place or places as may be designated in or pursuant
to the Indenture, provided that such Certificated Security is surrendered to the
Trustee, acting as Paying Agent, in time for the Paying Agent to make such
payments in such funds in accordance with its normal procedures. Payments of
interest with respect to Certificated Securities other than at Maturity may, at
the option of the Company, be made by check mailed to the address of the Person
entitled thereto as it appears on the Security Register on the relevant Regular
or Special Record Date or by wire transfer in same day funds to such account as
may have been appropriately designated to the Paying Agent by such Person in
writing not later than such relevant Regular or Special Record Date.
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.
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
SUN MICROSYSTEMS, INC.
By:
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Attest:
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Trustee's Certificate of Authentication.
This is one of the Securities of the series designated herein referred to in the
within-mentioned Indenture.
Dated:
THE BANK OF NEW YORK
As Trustee
By:
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Authorized Signatory
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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 August 1, 1999 (herein called the
"Indenture," which term shall have the meaning assigned to it in such
instrument), between the Company and The Bank of New York, 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 limited in aggregate principal amount to
$_________________.
The Security is subject to redemption upon receipt of notice by
first-class mail at least 30 days and not more than 60 days prior to the
Redemption Date, at the option of the Company at any time, as a whole or in
part, at a Redemption Price equal to the greater of (i) 100% of the principal
amount of the Security to be redeemed or (ii) an amount, as determined by the
Quotation Agent, equal to the sum of the present values of the remaining
scheduled payments of principal and interest on the Securities to be redeemed,
not including any portion of payments of interest accrued as of the Redemption
Date, discounted to the Redemption Date on a semi-annual basis, assuming a
360-day year comprised of twelve 30-day months, at the adjusted treasury rate
plus ten basis points plus, in each case, accrued and unpaid interest on the
principal amount being redeemed to the Redemption Date; provided, however, that
with respect to interest payments that are due on or prior to the Redemption
Date, the Company will make payments of interest to the Holders of record of the
Securities at the close of business on the regular Record Date.
"Adjusted 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 that Redemption Date.
"Comparable Treasury Issue" means the United States treasury security
selected by the Quotation Agent as having a maturity comparable to the remaining
term of the 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 the Securities.
"Comparable Treasury Rate" 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 by the Federal Reserve
Bank of New York and designated "Composite 3:30 p.m. Quotations for the U.S.
Government Securities," or (ii) if such release, or any successor release, is
not published or does not contain such prices on such Business Day, (1) the
average of the Reference Treasury Dealer Quotations for that Redemption Date,
after excluding the highest and lowest Reference Treasury
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Dealer Quotations, or (2) if the Trustee obtains fewer that four Reference
Treasury Dealer Quotations for the Redemption Date, the average of the Reference
Treasury Dealer Quotations obtained, as determined by the Quotation Agent.
"Quotation Agent" means the Reference Treasury Dealer appointed by the
Company.
"Reference Treasury Dealer" means (i) Xxxxxxx, Xxxxx & Co. or its
successors; provided, however that if any of them ceases to be a primary U.S.
government securities dealer in New York City (a "Primary Treasury Dealer"), the
Company will substitute for it another Primary Treasury Dealer, and (ii) any
other Primary Treasury Dealer(s) selected by the Company.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any Redemption Date, the average, as determined by
the Quotation Agent, 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 the Reference Treasury Dealer at 5:00 p.m. on the
third Business Day preceding that Redemption Date.
Unless the Company defaults in payment of the Redemption Price, no
interest will accrue on the Securities called for redemption for the period from
and after the 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.
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.
In addition to the Events of Default set forth in Section 501 of the
Indenture, the following will be an Event of Default with respect to the
Securities: (i) failure to make any payment at maturity, including any
applicable grace period, in respect of indebtedness, which term means
obligations (other than non-recourse obligations or the Securities) of the
Company for borrowed money or evidenced by bonds, debentures, notes or similar
instruments ("Indebtedness") in an amount in excess of $50,000,000 and
continuance of such failure or (ii) a default with respect to any Indebtedness,
which default results in the acceleration of Indebtedness in an amount in excess
of $50,000,000 without such Indebtedness having been discharged or such
acceleration having been cured, waived, rescinded or annulled, in the case of
(i) or (ii) 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 Securities; provided, however, that if any
such failure, default or acceleration referred to in (i) or (ii) above shall
cease or be cured, waived,
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rescinded or annulled, then the Event of Default by reason thereof shall be
deemed likewise to have been cured.
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 reasonable indemnity, 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.
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The Securities of this series are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple 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.
This Security shall be deemed to be a contract made under the laws of
the State of New York, and for all purposes shall be construed in accordance
with and governed by the laws of said State, without regard to conflict of laws
principles thereof.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
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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
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(Please print or typewrite name and address including postal zip code of
assignee)
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the within Global Note of SUN MICROSYSTEMS, INC. and all rights hereunder,
xxxxxx xxxxxxxxxxx constituting and appointing
attorney
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to transfer said Global Note on the books of the within-named Company, with full
power of substitution in the premises.
Dated:
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SIGN HERE
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NOTICE: THE SIGNATURE TO THIS
ASSIGNMENT MUST CORRESPOND
WITH THE NAME AS WRITTEN
UPON THE FACE OF THE WITHIN
INSTRUMENT IN EVERY
PARTICULAR, WITHOUT
ALTERATION OR ENLARGEMENT
OR ANY CHANGE WHATEVER.
SIGNATURE GUARANTEED
