CONVERTIBLE NOTE PURCHASE AND AMENDMENT AGREEMENT
Exhibit 10.04
Date:
|
September 17, 2010 | |
To:
|
Symantec Corporation (“Counterparty”) 000 Xxxxx Xxxxxx Xxxxxxxx Xxxx, XX 00000 |
|
Telefax No.:
|
(000) 000-0000 | |
Attention:
|
Treasurer | |
From:
|
Bank of America, N.A. (“Dealer”) | |
Telefax No.:
|
(000) 000-0000 |
Transaction Reference Number: NY-22817
The purpose of this convertible note purchase and amendment agreement (this
“Agreement”) is to set forth the terms and conditions of (i) the purchase (the
“Purchase”) by Counterparty, and sale by Dealer, of Convertible Notes and (ii) the
amendment (the “Amendment”) of the confirmation dated as of June 12, 2006, Transaction
Reference Number NY-22817, (the “Confirmation”), which supplemented, formed part of and is
subject to the Master Terms and Conditions for Convertible Bond Hedging Transactions dated as of
June 9, 2006 between Counterparty and Dealer (together with the Confirmation, the “Bond Hedge
Documentation”). Capitalized terms used herein but not otherwise defined shall have the
meanings assigned to them in the Bond Hedge Documentation.
1. Convertible Notes Purchase. Dealer agrees to sell, and Counterparty agrees to buy,
200,000 Convertible Notes (in denominations of USD1,000 principal amount) at a price per
Convertible Note of $994.50 (the “Per Note Purchase Price”), plus accrued and
unpaid interest of $2.02 on such Convertible Note from, and including, June 15, 2010 to, but
excluding, the Payment Date, for a total payment of $199,304,166.67 (the “Aggregate Purchase
Price”). The parties acknowledge and agree that the Per Note Purchase Price with respect to
each Convertible Note of $994.50 equals (i) $1020.00, which represents the payment from
Counterparty to Dealer for such Convertible Note, minus (ii) $25.50, which represents the
amount of consideration for the Amendment. Closing of the Purchase shall take place on September
22, 2010 (the “Payment Date”), on which such date Counterparty shall pay to Dealer the
Aggregate Purchase Price against Dealer’s delivery of the number of Convertible Notes specified
above.
2. Amendment. The parties hereby acknowledge that the Company has agreed on the date
hereof to purchase 300,000 Convertible Notes from a third party on the Payment Date (the
“Additional Purchase”). Effective upon the payment of the Aggregate Purchase Price and
delivery of the number of Convertible Notes specified in paragraph 1 above on the Payment Date, for
the purpose of maintaining the notional size of the Transaction to which the Confirmation relates
unchanged following the purchase contemplated hereby and the Additional Purchase, the following
terms of the Transaction to which the Confirmation relates shall be amended, as follows:
Number of Units: |
600,000 | |||||||
Applicable Percentage: |
58.333% |
If the Additional Purchase is not consummated on the Payment Date, then, notwithstanding the
foregoing, the following terms of the Transaction to which the Confirmation relates shall be
amended, as follows:
Number of Units: |
900,000 | |||||||
Applicable Percentage: |
38.889% |
3. Representations and Warranties.
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(a) Each party represents and warrants to, and agrees with, the other party that:
(i) it is duly organized and validly existing under the laws of the jurisdiction of its
organization or incorporation and, if relevant under such laws, in good standing;
(ii) it has the power to execute this Agreement and any other documentation relating to
this Agreement to which it is a party, to deliver this Agreement and any other documentation
relating to this Agreement that it is required by this Agreement to deliver and to perform
its obligations under this Agreement and has taken all necessary action to authorize such
execution, delivery and performance;
(iii) such execution, delivery and performance do not violate or conflict with any law
applicable to it, any provision of its constitutional documents, any order or judgment of
any court or other agency of government applicable to it or any of its assets or any
contractual restriction binding on or affecting it or any of its assets;
(iv) all governmental and other consents that are required to have been obtained by it
with respect to this Agreement have been obtained and are in full force and effect and all
conditions of any such consents have been complied with;
(v) its obligations under this Agreement constitute its legal, valid and binding
obligations, enforceable in accordance with their respective terms (subject to applicable
bankruptcy, reorganization, insolvency, moratorium or similar laws affecting creditors’
rights generally and subject, as to enforceability, to equitable principles of general
application, regardless of whether enforcement is sought in a proceeding in equity or at
law); and
(vi) it is an “eligible contract participant” as defined in Section 1(a)(12) of the
Commodity Exchange Act, as amended (the “CEA”), and this Agreement is subject to
individual negotiation by the parties and has not been executed or traded on a “trading
facility” as defined in Section 1a(33) of the CEA.
(b) Counterparty represents and warrants to, and agrees with, Dealer as follows:
(i) on the date hereof (A) Counterparty is not aware of any material nonpublic
information regarding Counterparty or the Shares and (B) all reports and other documents
filed by Counterparty with the Securities and Exchange Commission (“SEC”) when
considered as a whole (with the more recent such reports and documents deemed to amend
inconsistent statements contained in any earlier such reports and documents) pursuant to the
Exchange Act of 1934, as amended (the “Exchange Act”) do not contain any untrue
statement of a material fact or any omission of a material fact required to be stated
therein or necessary to make the statements therein, in the light of the circumstances in
which they were made, not misleading;
(ii) without limiting the generality of Section 13.1 of the Definitions, Counterparty
acknowledges that neither Dealer nor any of its affiliates is making any representations or
warranties or taking a position or expressing any view with respect to the treatment of this
Agreement under any accounting standards, including, without limitation, ASC Topic 260,
Earnings Per Share, ASC Topic 815, Derivatives and Hedging, ASC Topic 480, Distinguishing
Liabilities from Equity and ASC Topic 815-40, Derivatives and Hedging — Contracts in
Entity’s Own Equity (or any successor issue statements);
(iii) prior to the date hereof, Counterparty shall deliver to Dealer such evidence of
the authority of Counterparty to enter into and perform the Purchase and the Amendment;
(iv) Counterparty is not, and after giving effect to the transactions contemplated
hereby will not be, required to register as an “investment company” as such term is defined
in the Investment Company Act of 1940, as amended;
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(v) Counterparty understands that no obligations of Dealer to it hereunder will be
entitled to the benefit of deposit insurance and that such obligations will not be
guaranteed by any affiliate of Dealer or any governmental agency; and
(vi) on the date hereof and on the Payment Date, (a) the assets of Counterparty at
their fair valuation exceed the liabilities of Counterparty, including contingent
liabilities, (b) the capital of Counterparty is adequate to conduct the business of
Counterparty and (c) Counterparty has the ability to pay its debts and obligations as such
debts mature and does not intend to, or does not believe that it will, incur debt beyond its
ability to pay as such debts mature.
(c) Counterparty acknowledges that Dealer may purchase Convertible Notes for its own
accounts at a price that is greater than, or less than, the Per Note Purchase Price.
4. Governing Law. THIS AGREEMENT, AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER
OR RELATED TO THIS AGREEMENT, WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK, WITHOUT REFERENCE TO CHOICE OF LAW DOCTRINE (OTHER THAN TITLE 14 OF THE NEW YORK
GENERAL OBLIGATIONS LAW). THE PARTIES HERETO IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF
THE COURTS OF THE STATE OF NEW YORK AND THE UNITED STATES COURT FOR THE SOUTHERN DISTRICT OF NEW
YORK IN CONNECTION WITH ALL MATTERS RELATING HERETO AND WAIVE ANY OBJECTION TO THE LAYING OF VENUE
IN, AND ANY CLAIM OF INCONVENIENT FORUM WITH RESPECT TO, THESE COURTS.
5. Waiver of Trial by Jury. EACH OF COUNTERPARTY AND DEALER HEREBY IRREVOCABLY WAIVES
(ON ITS OWN BEHALF AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ON BEHALF OF ITS STOCKHOLDERS)
ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT,
TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF DEALER OR ITS
AFFILIATES IN THE NEGOTIATION, PERFORMANCE OR ENFORCEMENT HEREOF.
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3. Counterparty hereby agrees (a) to check this Agreement promptly upon receipt so that errors
or discrepancies can be promptly identified and rectified and (b) to confirm that the foregoing
correctly sets forth the terms of the agreement between us with respect to this Agreement, by
manually signing this Agreement and providing any other information requested herein and
immediately returning an executed copy to Xxxx Xxxxxxxx, Facsimile No. (000) 000-0000.
| Yours sincerely, BANK OF AMERICA, N.A. |
||||
| By: | /s/ Xxxx Xxxxxxxxxx | |||
| Name: | Xxxx Xxxxxxxxxx | |||
| Title: | Director | |||
| Confirmed as of the date first above written: SYMANTEC CORPORATION |
||||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | EVP, General Counsel & Secretary | |||
