EXHIBIT 4.6
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY 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 THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. 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 IS
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE AND, UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
SECURITIES IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITARY.
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION. EACH PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED
THAT THE SELLER OF THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM THE
PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH EMULEX CORPORATION OR ANY
AFFILIATE OF EMULEX CORPORATION WAS THE OWNER OF THIS SECURITY (OR ANY
PREDECESSOR OF SUCH SECURITY) ONLY (A) TO EMULEX CORPORATION OR ANY PARENT OR
SUBSIDIARY THEREOF, (B) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHICH NOTICE IS GIVEN THAT THE
1
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, OR (D)
PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT, SUBJECT TO EMULEX CORPORATION'S AND THE TRUSTEE'S RIGHT
PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D) TO REQUIRE THE
DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FOREGOING CASES, A CERTIFICATE
OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS
COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL BE
REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION
DATE.
THE HOLDER OF THIS SECURITY IS ENTITLED TO THE BENEFITS OF A
REGISTRATION RIGHTS AGREEMENT (AS SUCH TERM IS DEFINED IN THE INDENTURE REFERRED
TO ON THE REVERSE HEREOF) AND, BY ITS ACCEPTANCE HEREOF, AGREES TO BE BOUND BY
AND TO COMPLY WITH THE PROVISIONS OF SUCH REGISTRATION RIGHTS AGREEMENT.
EMULEX CORPORATION
CUSIP: 292475 AC 4 R-1
0.25% CONVERTIBLE SUBORDINATED NOTES DUE DECEMBER 15, 2023
Emulex Corporation, a Delaware corporation (the "Company", which term
shall include any successor corporation under the Indenture referred to on the
reverse hereof), promises to pay to CEDE & CO., or registered assigns, the
principal sum of ________________ ($_________) on December 15, 2023 or such
greater or lesser amount as is indicated on the Schedule of Exchanges of Notes
on the other side of this Note.
Interest Payment Dates: June 15 and December 15.
Regular Record Dates: May 31 and November 30.
This Note is convertible as specified on the other side of this Note.
Additional provisions of this Note are set forth on the other side of this Note.
SIGNATURE PAGE FOLLOWS
2
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
EMULEX CORPORATION
By: _________________________________
Name:
Title:
Attest:
_______________________________________
Name: _________________________________
Title: _________________________________
Dated: _________________________________
Trustee's Certificate of Authentication: This is one of the Securities referred
to in the within-mentioned Indenture.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
_______________________________________
Authorized Signatory
Name: _________________________________
Title: ________________________________
EMULEX CORPORATION
0.25% CONVERTIBLE SUBORDINATED NOTES DUE DECEMBER 15, 2023
1. INTEREST
Emulex Corporation, a Delaware corporation (the "Company", which term
shall include any successor corporation under the Indenture hereinafter referred
to), promises to pay interest on the principal amount of this Note at the rate
of 0.25% per annum. The Company shall pay interest semiannually on June 15 and
December 15 of each year, commencing June 15, 2004. Interest on the Securities
shall accrue from the most recent date to which interest has been paid or, if no
interest has been paid, from December 12, 2003; provided, however, that if there
is not an existing default in the payment of interest and if this Note is
authenticated on or after May 31, 2004 between a Regular Record Date referred to
on the face hereof and the next succeeding Interest Payment Date, interest shall
accrue from such Interest Payment Date. Interest will be computed on the basis
of a 360-day year of twelve 30-day months. Any reference herein to interest
accrued or payable as of any date shall include any Liquidated Damages accrued
or payable on such date as provided in the Registration Rights Agreement.
2. METHOD OF PAYMENT
The Company shall pay interest on this Note (except defaulted interest)
to the person who is the Holder of this Note at the close of business on May 31
or November 30, as the case may be (each, a Regular Record Date) next preceding
the related Interest Payment Date. The Holder must surrender this Note to a
Paying Agent to collect payment of principal. The Company will pay principal and
interest in money of the United States that at the time of payment is legal
tender for payment of public and private debts. The Company may, however, pay
principal and interest in respect of any Certificated Security by check or wire
payable in such money; provided, however, that a Holder with an aggregate
principal amount in excess of $2,000,000 will be paid by wire transfer in
immediately available funds at the election of such Holder if such Holder has
provided wire transfer instructions to the Company. The Company may mail an
interest check to the Holder's registered address. Notwithstanding the
foregoing, so long as this Note is registered in the name of a Depositary or its
nominee, all payments hereon shall be made by wire transfer of immediately
available funds to the account of the Depositary or its nominee.
3. PAYING AGENT, REGISTRAR AND CONVERSION AGENT
Initially, U.S. Bank National Association (the "Trustee", which term
shall include any successor trustee under the Indenture hereinafter referred to)
will act as Paying Agent, Registrar and Conversion Agent. The Company may change
any Paying Agent, Registrar or Conversion Agent without notice to the Holder.
The Company or any of its Subsidiaries may, subject to certain limitations set
forth in the Indenture, act as Paying Agent or Registrar.
4. INDENTURE, LIMITATIONS
This Note is one of a duly authorized issue of Securities of the
Company designated as its 0.25% Convertible Subordinated Notes due December 15,
2023 (the "Notes"), issued under an
4
Indenture dated as of December 12, 2003 (together with any supplemental
indentures thereto, the "Indenture"), between the Company and the Trustee. The
terms of this Note include those stated in the Indenture and those required by
or made part of the Indenture by reference to the Trust Indenture Act of 1939,
as amended, as in effect on the date of the Indenture. This Note is subject to
all such terms, and the Holder of this Note is referred to the Indenture and
said Act for a statement of them.
The Notes are general subordinated unsecured obligations of the Company
limited to $_________ aggregate principal amount (or up to $________ if the
initial purchasers' option to purchase additional notes is exercised). The
Indenture does not limit other debt of the Company, secured or unsecured,
including Senior Indebtedness.
5. REDEMPTION
The Notes may not be redeemed at any time prior to December 20, 2008.
The Notes may be redeemed at the election of the Company, as a whole or from
time to time in part, on or after December 20, 2008 and through December 19,
2010, subject to the terms and conditions of the Indenture, if, but only if (x)
on each of at least 20 Trading Days within a period of 30 consecutive Trading
Days ending on the Trading Day before the date of mailing of the Redemption
Notice (as defined below) the Closing Price of the Common Stock exceeds (y) 120%
of the Conversion Price of the Notes on the 30th Trading Day of such period,
subject to the terms and conditions of the Indenture. Notice of any redemption
pursuant to the preceding sentence must be given on the Business Day after such
30th Trading Day ("Redemption Notice"). The Notes may be redeemed at the
election of the Company, as a whole or from time to time in part, at any time on
or after December 20, 2010, subject to the terms and conditions of the
Indenture. Upon any such redemption, the redemption price shall be equal to 100%
of the principal amount of the Note being redeemed, together with accrued and
unpaid interest, up to, but not including, the Redemption Date; provided, that
if the Redemption Date falls after an Interest Payment Record Date and on or
before an Interest Payment Date, then the interest will be payable to the
Holders in whose name the Notes are registered at the close of business on the
Interest Payment Record Date.
No sinking fund is provided for the Notes.
6. NOTICE OF REDEMPTION
Notice of redemption will be mailed by first-class mail at least 20
days but not more than 60 days before the Redemption Date to each Holder of
Notes to be redeemed at its registered address. Notes in denominations larger
than $1,000 may be redeemed in part, but only in whole multiples of $1,000. On
and after the Redemption Date, subject to the deposit with the Paying Agent of
funds sufficient to pay the principal amount of the Notes being redeemed plus
accrued interest to, but excluding, the Redemption Date, interest shall cease to
accrue on the Notes or portions of them called for redemption.
5
7. REPURCHASE OF NOTES AT OPTION OF HOLDER UPON A CHANGE IN CONTROL
At the option of the Holder and subject to the terms and conditions of
the Indenture, the Company shall become obligated to repurchase all or any part
specified by the Holder (so long as the principal amount of such part is $1,000
or an integral multiple of $1,000 in excess thereof) of the Notes held by such
Holder on the date that is 45 days after the date of the Change in Control
Purchase Notice, at a repurchase price equal to 100% of the principal amount
thereof together with any accrued interest up to, but excluding, the Change in
Control Repurchase Date. The Holder shall have the right to withdraw any Change
in Control Repurchase Notice (in whole or in a portion thereof that is $1,000 or
an integral multiple of $1,000 in excess thereof) at any time prior to the close
of business on the Business Day immediately preceding the Change in Control
Repurchase Date by delivering a written notice of withdrawal to the Paying Agent
in accordance with the terms of the Indenture.
8. PURCHASE OF NOTES AT OPTION OF HOLDER ON SPECIFIED DATES
At the option of the Holder and subject to the terms and conditions of
the Indenture, the Company shall become obligated to purchase for cash all or
any part specified by the Holder (so long as the principal amount of such part
is $1,000 or an integral multiple of $1,000 in excess thereof) of the Notes held
by such Holder on the applicable Put Right Purchase Date at a price equal to
100% of the principal amount thereof plus accrued interest to, but excluding,
the Put Right Purchase Date. The Holder shall have the right to withdraw any Put
Right Purchase Notice (in whole or in a portion thereof that is $1,000 or an
integral multiple of $1,000 in excess thereof) at any time prior to the close of
business on the Put Right Purchase Date by delivering a written notice of
withdrawal to the Paying Agent in accordance with the terms of the Indenture.
9. CONVERSION
Subject to and upon compliance with the provisions of the Indenture, at
the option of the Holder thereof, any Security that is an integral multiple of
$1,000 may be converted into fully paid and nonassessable shares (calculated as
to each conversion to the nearest 1/100th of a share) of Common Stock of the
Company at any time on or prior to the close of business on the Final Maturity
Date at the Conversion Rate, determined as hereinafter provided, in effect at
the time of conversion and subject to the adjustments described below, only
under the following circumstances:
(1) prior to December 15, 2021, on any date during any fiscal
quarter (and only during such fiscal quarter) after the fiscal quarter ending
December 31, 2003, if the Closing Price per share of the Common Stock was more
than 120% of the then current Conversion Price of the Securities for at least 20
Trading Days in the period of the 30 consecutive Trading Days ending on the last
day of the previous fiscal quarter;
(2) on or after December 15, 2021, at all times on or after
any date on which the Closing Price per share of the Common Stock is more than
120% of the then current Conversion Price of the Securities;
6
(3) until the close of business on the Business Day prior to
the Redemption Date if the Company elects and is permitted to redeem the
Securities on or after December 15, 2008;
(4) if the Company distributes to all or substantially all
holders of Common Stock rights, options or warrants entitling them to purchase
Common Stock at less than the Closing Price per share of the Common Stock on the
last Trading Day preceding the declaration for such distribution;
(5) if the Company distributes to all or substantially all
holders of Common Stock cash, assets, debt securities or capital stock, which
distribution has a per share value as determined by the Board of Directors
exceeding 10% of the Closing Price per share of the Common Stock on the last
Trading Day preceding the declaration for such distribution;
(6) if the Company becomes a party to a consolidation, merger
or binding share exchange pursuant to which all or substantially all of the
Common Stock would be converted to cash, securities or other property, or if the
Company undergoes a Change in Control or an event occurs that would have been a
Change in Control but for the existence of one of the Change in Control
exceptions pursuant to Section 3.8(a)(2) of the Indenture; or
(7) for the ten Business Day period after any five consecutive
Trading Day period in which the average Trading Prices for the Securities for
such five Trading Day period was less than 98% of the average Conversion Value
for the Securities during such period; provided, however, that a Holder may not
convert its Securities pursuant to this clause (7) if, on the Conversion Date,
the Closing Price per share of Common Stock is greater than or equal to the then
current Conversion Price of the Securities and less than or equal to 120% of the
then current Conversion Price of the Securities.
Provisions of the Indenture that apply to conversion of all of a
Security also apply to conversion of a portion of a Security.
A Holder of Securities is not entitled to any rights of a holder of
Common Stock until such Holder has converted its Securities into Common Stock,
and only to the extent such Securities are deemed to have been converted into
Common Stock pursuant to Article 4 of the Indenture.
The rate at which shares of Common Stock shall be delivered upon
conversion (herein called the "Conversion Rate") shall be initially 23.1482
shares of Common Stock for each $1,000 principal amount of Securities. The
Conversion Rate shall be adjusted in certain instances as provided in the
Indenture. The "Conversion Price" shall initially equal $1,000 divided by the
Conversion Rate.
No fractional shares will be issued upon conversion; in lieu thereof,
an amount will be paid in cash based upon the Closing Price (as defined in the
Indenture) of the Common Stock on the Trading Day immediately prior to the
Conversion Date.
7
To convert a Note, a Holder must (a) complete and manually sign the
conversion notice set forth below and deliver such notice to a Conversion Agent,
(b) surrender the Note to a Conversion Agent, (c) furnish appropriate
endorsements and transfer documents if required by a Registrar or a Conversion
Agent, and (d) pay any transfer or similar tax, if required. Notes 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 (1) Notes or portions thereof
called for redemption or presented for repurchase upon a Redemption Date, a
Change in Control Repurchase Date or a Put Right Purchase Date, as the case may
be, with such date occurring during the period beginning at the close of
business on a Regular Record Date and ending at the opening of business on the
fifth Business Day after the next succeeding Interest Payment Date or (2) Notes
that are submitted for conversion between the Regular Record Date for the final
interest payment and the opening of business on the final Interest Payment Date)
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 Note then being converted, and such interest shall be
payable to such registered Holder notwithstanding the conversion of such Note,
subject to the provisions of the Indenture relating to the payment of defaulted
interest by the Company. If the Company defaults in the payment of interest
payable on such Interest Payment Date the Company shall promptly repay such
funds to such Holder. A Holder may convert a portion of a Note equal to $1,000
or any integral multiple thereof.
A Note in respect of which a Holder had delivered a Change in Control
Repurchase Notice or Put Right Purchase Notice exercising the option of such
Holder to require the Company to repurchase such Note may be converted only if
the Change in Control Repurchase Notice or Put Right Purchase Notice, as
applicable, is withdrawn in accordance with the terms of the Indenture.
10. SUBORDINATION
The indebtedness evidenced by the Notes is, to the extent and in the
manner provided in the Indenture, subordinate and junior in right of payment to
the prior payment in full of all Senior Indebtedness of the Company. Any Holder
by accepting this Note agrees to and shall be bound by such subordination
provisions and authorizes the Trustee to give them effect. In addition to all
other rights of Senior Indebtedness described in the Indenture, the Senior
Indebtedness shall continue to be Senior Indebtedness and entitled to the
benefits of the subordination provisions irrespective of any amendment,
modification or waiver of any terms of any instrument relating to the Senior
Indebtedness or any extension or renewal of the Senior Indebtedness.
11. DENOMINATIONS, TRANSFER, EXCHANGE
The Notes are in registered form, without coupons, in denominations of
$1,000 and integral multiples of $1,000. A Holder may register the transfer of
or exchange Notes in accordance with the Indenture. The Registrar may require a
Holder, among other things, to furnish appropriate endorsements and transfer
documents and to pay any taxes or other governmental charges that may be imposed
in relation thereto by law or permitted by the Indenture.
8
12. PERSONS DEEMED OWNERS
The Holder of a Note may be treated as the owner of it for all
purposes.
13. UNCLAIMED MONEY
If money for the payment of principal or interest remains unclaimed for
two years, the Trustee or Paying Agent will pay the money back to the Company at
its written request, subject to applicable unclaimed property law. After that,
Holders entitled to money must look to the Company for payment as general
creditors unless an applicable abandoned property law designates another person.
14. AMENDMENT, SUPPLEMENT AND WAIVER
Subject to certain exceptions, the Indenture or the Notes may be
amended or supplemented with the consent of the Holders of at least a majority
in aggregate principal amount of the Notes then outstanding, and an existing
default or Event of Default and its consequence or compliance with any provision
of the Indenture or the Notes may be waived in a particular instance with the
consent of the Holders of a majority in aggregate principal amount of the Notes
then outstanding. Without the consent of or notice to any Holder, the Company
and the Trustee may amend or supplement the Indenture or the Notes to, among
other things, cure any ambiguity, defect or inconsistency or make any other
change that does not adversely affect the rights of any Holder.
15. SUCCESSOR ENTITY
When a successor corporation assumes all the obligations of its
predecessor under the Notes and the Indenture in accordance with the terms and
conditions of the Indenture, the predecessor corporation (except in certain
circumstances specified in the Indenture) shall be released from those
obligations.
16. DEFAULTS AND REMEDIES
Under the Indenture, an Event of Default includes: (i) a default for 30
days in payments of interest (including Liquidated Damages, if any) on any
Notes; (ii) a default in payment of any principal of the Notes when due; (iii)
failure by the Company to deliver shares of Common Stock, together with cash
instead of fractional shares, when those shares of Common Stock or cash instead
of fractional shares are required to be delivered upon conversion of Securities
pursuant to Article 4 of the Indenture, and such failure continues for 10 days
after the date they are required to be delivered; (iv) failure by the Company
for 5 days after notice to provide a notice of a Change in Control; (v) failure
by the Company for 30 days after notice to comply with any of its other terms,
covenants or agreements contained in the Indenture or the Notes; (vi) certain
defaults in the payment of certain indebtedness of the Company or (vii) certain
events of bankruptcy, insolvency or reorganization of the Company or any
Significant Subsidiary.
If an Event of Default (other than as a result of certain events of
bankruptcy, insolvency or reorganization of the Company or any Significant
Subsidiary) occurs and is continuing, the
9
Trustee or the Holders of at least 25% in aggregate principal amount of the
Notes then outstanding may declare all unpaid principal to the date of
acceleration on the Notes then outstanding to be due and payable immediately,
all as and to the extent provided in the Indenture. If an Event of Default
occurs as a result of certain events of bankruptcy, insolvency or reorganization
of the Company or any Significant Subsidiary, unpaid principal of the Notes then
outstanding shall become due and payable immediately without any declaration or
other act on the part of the Trustee or any Holder, all as and to the extent
provided in the Indenture. Holders may not enforce the Indenture or the Notes
except as provided in the Indenture. The Trustee may require indemnity
satisfactory to it before it enforces the Indenture or the Notes. Subject to
certain limitations, Holders of a majority in aggregate principal amount of the
Notes then outstanding may direct the Trustee in its exercise of any trust or
power. The Trustee may withhold from Holders notice of any continuing default
(except a default in payment of principal or interest) if it determines that
withholding notice is in their interests. The Company is required to file
periodic reports with the Trustee as to the absence of default.
17. TRUSTEE DEALINGS WITH THE COMPANY
U.S. Bank National Association, the Trustee under the Indenture, in its
individual or any other capacity, may make loans to, accept deposits from and
perform services for the Company or an Affiliate of the Company, and may
otherwise deal with the Company or an Affiliate of the Company, as if it were
not the Trustee.
18. NO RECOURSE AGAINST OTHERS
A director, officer, employee or stockholder, as such, of the Company
shall not have any liability for any obligations of the Company under the Notes
or the Indenture nor for any claim based on, in respect of or by reason of such
obligations or their creation. The Holder of this Note by accepting this Note
waives and releases all such liability. The waiver and release are part of the
consideration for the issuance of this Note.
19. AUTHENTICATION
This Note shall not be valid until the Trustee or an authenticating
agent manually signs the certificate of authentication on the other side of this
Note.
20. ABBREVIATIONS AND DEFINITIONS
Customary abbreviations may be used in the name of the Holder or an
assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian) and UGMA (= Uniform Gifts to Minors Act).
All terms defined in the Indenture and used in this Note but not
specifically defined herein are defined in the Indenture and are used herein as
so defined.
10
21. INDENTURE TO CONTROL; GOVERNING LAW
In the case of any conflict between the provisions of this Note and the
Indenture, the provisions of the Indenture shall control. This Note shall be
governed by, and construed in accordance with, the laws of the State of New
York, without regard to principals of conflicts of law.
The Company will furnish to any Holder, upon written request and
without charge, a copy of the Indenture. Requests may be made to: Emulex
Corporation, 3535 Harbor Boulevard, Costa Mesa, California 92626 (714) 662-5600,
Attention: Investor Relations.
11
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
________________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint
________________________________________________________________________________
agent to transfer this Note on the books of the Company. The agent may
substitute another to act for him or her.
Your Signature:
Date: ______________________ ___________________________________________
(Sign exactly as your name appears on the
other side of this Note)
*Signature guaranteed by:
By: _________________________
* The signature must be guaranteed by an institution which is a member of
one of the following recognized signature guaranty programs: (i) the
Securities Transfer Agent Medallion Program (STAMP); (ii) the New York
Stock Exchange Medallion Program (MSP); (iii) the Stock Exchange
Medallion Program (SEMP); or (iv) such other guaranty program
acceptable to the Trustee.
12
CONVERSION NOTICE
To convert this Note into Common Stock of the Company, check the
box:[ ]
To convert only part of this Note, state the principal amount to be
converted (must be $1,000 or a integral multiple of $1,000): $_____________
If you want the stock certificate made out in another person's name,
fill in the form below:
________________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
Your Signature:
Date: ______________________ ___________________________________________
(Sign exactly as your name appears on the
other side of this Note)
*Signature guaranteed by:
By: ________________________
* The signature must be guaranteed by an institution which is a member of
one of the following recognized signature guaranty programs: (i) the
Securities Transfer Agent Medallion Program (STAMP); (ii) the New York
Stock Exchange Medallion Program (MSP); (iii) the Stock Exchange
Medallion Program (SEMP); or (iv) such other guaranty program
acceptable to the Trustee.
13
OPTION TO ELECT REPURCHASE
UPON A CHANGE IN CONTROL
To: Emulex Corporation
The undersigned registered owner of this Security hereby irrevocably
acknowledges receipt of a notice from Emulex Corporation (the "Company") as to
the occurrence of a Change in Control with respect to the Company and requests
and instructs the Company to repurchase the entire principal amount of this
Security, or the portion thereof (which is $1,000 or an integral multiple
thereof) below designated, in accordance with the terms of the Indenture
referred to in this Security at the Change in Control Repurchase Price, to the
registered Holder hereof.
Date: ______________________ __________________________________________
__________________________________________
Signature(s)
Signature(s) must be guaranteed by a
qualified guarantor institution with
membership in an approved signature
guarantee program pursuant to Rule 17Ad-15
under the Securities Exchange Act of 1934.
__________________________________________
Signature Guaranty
Principal amount to be redeemed
(in an integral multiple of $1,000, if less than all):
______________________________
NOTICE: The signature to the foregoing Election must correspond to the Name as
written upon the face of this Security in every particular, without alteration
or any change whatsoever.
14
OPTION TO ELECT PURCHASE
ON SPECIFIED DATES
To: Emulex Corporation
The undersigned hereby requests and instructs Emulex Corporation to
purchase the entire principal amount of this Security, or the portion thereof
(which is $1,000 or an integral multiple thereof) below designated, on December
15, ______ in accordance with the terms of the Indenture referred to in this
Security at the Put Right Purchase Price to the registered Holder hereof.
Date: ______________________ ___________________________________________
Signature(s) must be guaranteed by a
qualified guarantor institution with
membership in an approved signature
guarantee program pursuant to Rule 17Ad-15
under the Securities Exchange Act of 1934.
___________________________________________
Signature Guaranty
Principal amount to be redeemed
(in an integral multiple of $1,000, if less than all):
____________________________
NOTICE: The signature to the foregoing Election must correspond to the Name as
written upon the face of this Security in every particular, without alteration
or any change whatsoever.
15
SCHEDULE OF EXCHANGES OF NOTES
The following exchanges, purchase, redemptions, repurchases or
conversions of a part of this global Note have been made:
PRINCIPAL
AMOUNT OF THIS
GLOBAL NOTE AMOUNT OF AMOUNT OF
FOLLOWING SUCH AUTHORIZED DECREASE IN INCREASE IN
DECREASE DATE SIGNATORY OF PRINCIPAL PRINCIPAL
OF EXCHANGE SECURITIES AMOUNT OF THIS AMOUNT OF THIS
(OR INCREASE) CUSTODIAN GLOBAL NOTE GLOBAL NOTE
- -------------- ------------ -------------- --------------
16
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION
OF TRANSFER OF RESTRICTED SECURITIES
Re: 0.25% Convertible Subordinated Notes due December 15, 2023 (the
"Notes") of Emulex Corporation
This certificate relates to $_____________ principal amount of Notes
owned in (check applicable box)
[ ] book-entry or [ ] definitive form by _____________ (the
"Transferor").
The Transferor has requested a Registrar or the Trustee to exchange or
register the transfer of such Notes.
In connection with such request and in respect of each such Note, the
Transferor does hereby certify that the Transferor is familiar with transfer
restrictions relating to the Notes as provided in Section 2.12 of the Indenture
dated as of December 12, 2003 between Emulex Corporation and U.S. Bank National
Association, as trustee (the "Indenture"), and the transfer of such Note is
being made pursuant to an effective registration statement under the Securities
Act of 1933, as amended (the "Securities Act") (check applicable box) or the
transfer or exchange, as the case may be, of such Note does not require
registration under the Securities Act because (check applicable box):
[ ] Such Note is being transferred pursuant to an effective
registration statement under the Securities Act.
[ ] Such Note is being acquired for the Transferor's own account,
without transfer.
[ ] Such Note is being transferred to the Company or a Subsidiary
(as defined in the Indenture) of the Company.
[ ] Such Note is being transferred to a person the Transferor
reasonably believes is a "qualified institutional buyer" (as
defined in Rule 144A or any successor provision thereto ("Rule
144A") under the Securities Act) that is purchasing for its
own account or for the account of a "qualified institutional
buyer", in each case to whom notice has been given that the
transfer is being made in reliance on such Rule 144A, and in
each case in reliance on Rule 144A.
[ ] Such Note is being transferred pursuant to and in compliance
with an exemption from the registration requirements under the
Securities Act in accordance with Rule 144 (or any successor
thereto) ("Rule 144") under the Securities Act.
[ ] Such Note is being transferred to a non-U.S. Person in an
offshore transaction in compliance with Rule 904 of Regulation
S under the Securities Act (or any successor thereto).
17
[ ] Such Note is being transferred pursuant to and in compliance
with an exemption from the registration requirements of the
Securities Act (other than an exertion referred to above) and
as a result of which such Note will, upon such transfer, cease
to be a "restricted security" within the meaning of Rule 144
under the Securities Act.
The Transferor acknowledges and agrees that, if the transferee will
hold any such Notes in the form of beneficial interests in a global Note which
is a "restricted security" within the meaning of Rule 144 under the Securities
Act, then such transfer can only be made pursuant to (i) Rule 144A under the
Securities Act and such transferee must be a "qualified institutional buyer" (as
defined in Rule 144A) or (ii) Regulation S under the Securities Act.
Date: ______________________ ___________________________________________
(Insert Name of Transferor)
18