UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
April 29, 2014
Date of Report (date of earliest event reported)
APPLE INC.
(Exact name of Registrant as specified in its charter)
California | 000-10030 | 94-2404110 | ||
(State or other jurisdiction of incorporation or organization) |
(Commission File Number) |
(I.R.S. Employer Identification Number) |
1 Infinite Loop
Cupertino, California 95014
(Address of principal executive offices) (Zip Code)
(408) 996-1010
(Registrants telephone number, including area code)
Not applicable
(Former name or former address, if changed since last report.)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 8.01 Other Events.
On April 29, 2014, Apple Inc. (Apple) entered into an underwriting agreement (the Underwriting Agreement) with Goldman, Sachs & Co. and Deutsche Bank Securities Inc., as representatives of the several underwriters named therein, for the issuance and sale by Apple of $1,000,000,000 aggregate principal amount of Apples Floating Rate Notes due 2017 (the 2017 Floating Rate Notes), $1,000,000,000 aggregate principal amount of Apples Floating Rate Notes due 2019 (the 2019 Floating Rate Notes and together with the 2017 Floating Rate Notes, the Floating Rate Notes), $1,500,000,000 aggregate principal amount of Apples 1.05% Notes due 2017 (the 2017 Fixed Rate Notes), $2,000,000,000 aggregate principal amount of Apples 2.10% Notes due 2019 (the 2019 Fixed Rate Notes), $3,000,000,000 aggregate principal amount of Apples 2.85% Notes due 2021 (the 2021 Fixed Rate Notes), $2,500,000,000 aggregate principal amount of Apples 3.45% Notes due 2024 (the 2024 Fixed Rate Notes) and $1,000,000,000 aggregate principal amount of Apples 4.45% Notes due 2044 (the 2044 Fixed Rate Notes and together with the 2017 Fixed Rate Notes, the 2019 Fixed Rate Notes, the 2021 Fixed Rate Notes and the 2024 Fixed Rate Notes, the Fixed Rate Notes).
The Fixed Rate Notes and the Floating Rate Notes (together, the Notes) will be issued pursuant to an indenture, dated as of April 29, 2013 (the Indenture), between Apple and The Bank of New York Mellon Trust Company, N.A., as trustee (the Trustee), together with the officers certificate dated as of May 6, 2014 issued pursuant thereto establishing the terms of each series of the Notes (the Officers Certificate).
The Notes are being issued pursuant to Apples Registration Statement on Form S-3 filed with the Securities and Exchange Commission on April 29, 2013 (Reg. No. 333-188191) (the Registration Statement).
Interest on the Floating Rate Notes will be payable quarterly in arrears on February 6, May 6, August 6 and November 6 of each year, beginning on August 6, 2014, and on the applicable maturity date for each series of Floating Rate Notes. Interest on the Fixed Rate Notes will be payable semi-annually on May 6 and November 6 of each year, beginning on November 6, 2014, and on the applicable maturity date for each series of Fixed Rate Notes.
The 2017 Floating Rate Notes will mature on May 5, 2017; the 2019 Floating Rate Notes will mature on May 6, 2019; the 2017 Fixed Rate Notes will mature on May 5, 2017; the 2019 Fixed Rate Notes will mature on May 6, 2019; the 2021 Fixed Rate Notes will mature on May 6, 2021; the 2024 Fixed Rate Notes will mature on May 6, 2024; and the 2044 Fixed Rate Notes will mature on May 6, 2044.
The Notes will be Apples senior unsecured obligations and will rank equally with Apples other unsecured and unsubordinated debt from time to time outstanding.
The foregoing descriptions of the Underwriting Agreement, the Indenture and the Officers Certificate (including the forms of the Notes) are qualified in their entirety by the terms of such agreements and documents. The Underwriting Agreement and the Officers Certificate (including the forms of the Notes) are attached hereto as Exhibits 1.1 and 4.1 through 4.8, respectively, and incorporated herein by reference. The Indenture is filed as Exhibit 4.1 to the Registration Statement.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
Exhibit No. | Description | |
1.1 | Underwriting Agreement, dated as of April 29, 2014, among Apple Inc. and Goldman, Sachs & Co. and Deutsche Bank Securities Inc., as representatives of the several underwriters named therein | |
4.1 | Officers Certificate of Apple Inc., dated as of May 6, 2014 | |
4.2 | Form of Global Note representing the 2017 Floating Rate Notes (included in Exhibit 4.1) | |
4.3 | Form of Global Note representing the 2019 Floating Rate Notes (included in Exhibit 4.1) | |
4.4 | Form of Global Note representing the 2017 Fixed Rate Notes (included in Exhibit 4.1) | |
4.5 | Form of Global Note representing the 2019 Fixed Rate Notes (included in Exhibit 4.1) | |
4.6 | Form of Global Note representing the 2021 Fixed Rate Notes (included in Exhibit 4.1) | |
4.7 | Form of Global Note representing the 2024 Fixed Rate Notes (included in Exhibit 4.1) | |
4.8 | Form of Global Note representing the 2044 Fixed Rate Notes (included in Exhibit 4.1) | |
5.1 | Opinion of Hogan Lovells US LLP | |
12.1 | Computation of Ratio of Earnings to Fixed Charges | |
23.1 | Consent of Hogan Lovells US LLP (included in the opinion filed as Exhibit 5.1) |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned, hereunto duly authorized.
APPLE INC. (Registrant) | ||||||||
By: |
/s/ Peter Oppenheimer | |||||||
Date: May 6, 2014 |
Peter Oppenheimer | |||||||
Senior Vice President, Chief Financial Officer |
INDEX TO EXHIBITS
Exhibit No. | Description | |
1.1 | Underwriting Agreement, dated as of April 29, 2014, among Apple Inc. and Goldman, Sachs & Co. and Deutsche Bank Securities Inc., as representatives of the several underwriters named therein | |
4.1 | Officers Certificate of Apple Inc., dated as of May 6, 2014 | |
4.2 | Form of Global Note representing the 2017 Floating Rate Notes (included in Exhibit 4.1) | |
4.3 | Form of Global Note representing the 2019 Floating Rate Notes (included in Exhibit 4.1) | |
4.4 | Form of Global Note representing the 2017 Fixed Rate Notes (included in Exhibit 4.1) | |
4.5 | Form of Global Note representing the 2019 Fixed Rate Notes (included in Exhibit 4.1) | |
4.6 | Form of Global Note representing the 2021 Fixed Rate Notes (included in Exhibit 4.1) | |
4.7 | Form of Global Note representing the 2024 Fixed Rate Notes (included in Exhibit 4.1) | |
4.8 | Form of Global Note representing the 2044 Fixed Rate Notes (included in Exhibit 4.1) | |
5.1 | Opinion of Hogan Lovells US LLP | |
12.1 | Computation of Ratio of Earnings to Fixed Charges | |
23.1 | Consent of Hogan Lovells US LLP (included in the opinion filed as Exhibit 5.1) |
Exhibit 1.1
Apple Inc.
$1,500,000,000 1.05% Notes due 2017
$1,000,000,000 Floating Rate Notes due 2017
$2,000,000,000 2.10% Notes due 2019
$1,000,000,000 Floating Rate Notes due 2019
$3,000,000,000 2.85% Notes due 2021
$2,500,000,000 3.45% Notes due 2024
$1,000,000,000 4.45% Notes due 2044
Underwriting Agreement
April 29, 2014
Goldman, Sachs & Co.
Deutsche Bank Securities Inc.,
As representatives of the several Underwriters
named in Schedule I hereto,
c/o Goldman, Sachs & Co.
200 West Street,
New York, New York 10282-2198
and
c/o Deutsche Bank Securities Inc.
60 Wall Street
New York, New York 10005
Ladies and Gentlemen:
Apple Inc., a California corporation (the Company), proposes, subject to the terms and conditions stated herein, to issue and sell to the Underwriters named in Schedule I hereto (the Underwriters) $1,500,000,000 aggregate principal amount of the Companys 1.05% Notes due 2017 (the 2017 Fixed Rate Notes), $1,000,000,000 aggregate principal amount of the Companys Floating Rate Notes due 2017 (the 2017
Floating Rate Notes), $2,000,000,000 aggregate principal amount of the Companys 2.10% Notes due 2019 (the 2019 Fixed Rate Notes), $1,000,000,000 aggregate principal amount of the Companys Floating Rate Notes due 2019 (the 2019 Floating Rate Notes), $3,000,000,000 aggregate principal amount of the Companys 2.85% Notes due 2021 (the 2021 Notes), $2,500,000,000 aggregate principal amount of the Companys 3.45% Notes due 2024 (the 2024 Notes) and $1,000,000,000 aggregate principal amount of the Companys 4.45% Notes due 2044 (the 2044 Notes, and together with the 2017 Fixed Rate Notes, 2017 Floating Rate Notes, 2019 Fixed Rate Notes, 2019 Floating Rate Notes, 2021 Notes and 2024 Notes, the Securities).
1. The Company represents and warrants to, and agrees with, each of the Underwriters that:
(a) An automatic shelf registration statement as defined under Rule 405 under the Securities Act of 1933, as amended (the Act) on Form S-3 (File No. 333-188191) in respect of the Securities has been filed with the Securities and Exchange Commission (the Commission) not earlier than three years prior to the date hereof; such registration statement, and any post-effective amendment thereto, became effective on filing; and no stop order suspending the effectiveness of such registration statement or any part thereof has been issued and no proceeding for that purpose has been initiated or, to the knowledge of the Company, threatened by the Commission, and no notice of objection of the Commission to the use of such registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act has been received by the Company (the base prospectus filed as part of such registration statement, in the form in which it has most recently been filed with the Commission on or prior to the date of this Agreement, is hereinafter called the Basic Prospectus; any preliminary prospectus (including any preliminary prospectus supplement) relating to the Securities filed with the Commission pursuant to Rule 424(b) under the Act is hereinafter called a Preliminary Prospectus; the various parts of such registration statement, including all exhibits thereto but excluding Form T-1 and including any prospectus supplement relating to the Securities that is filed with the Commission and deemed by virtue of Rule 430B to be part of such registration statement, each as amended at the time such part of the registration statement became effective, are hereinafter collectively called the Registration Statement; the Basic Prospectus, as amended and supplemented immediately prior to the Applicable Time (as defined in Section 1(c) hereof), is hereinafter called the Pricing Prospectus; the form of the final prospectus relating to the Securities filed with the Commission pursuant to Rule 424(b) under the Act in accordance with Section 5(a) hereof is hereinafter called the Prospectus; any reference herein to the Basic Prospectus, the Pricing Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the Act, as of the date of such prospectus; any reference to any amendment or supplement to the Basic Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any post-effective amendment
-2-
to the Registration Statement, any prospectus supplement relating to the Securities filed with the Commission pursuant to Rule 424(b) under the Act and any documents filed under the Securities Exchange Act of 1934, as amended (the Exchange Act), and incorporated therein, in each case after the date of the Basic Prospectus, such Preliminary Prospectus, or the Prospectus, as the case may be; any reference to any amendment to the Registration Statement shall be deemed to refer to and include any annual report of the Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act after the effective date of the Registration Statement that is incorporated by reference in the Registration Statement; and any issuer free writing prospectus as defined in Rule 433 under the Act relating to the Securities is hereinafter called an Issuer Free Writing Prospectus);
(b) No order preventing or suspending the use of any Preliminary Prospectus or any Issuer Free Writing Prospectus has been issued by the Commission, and each Preliminary Prospectus, at the time of filing thereof, conformed in all material respects to the requirements of the Act and the Trust Indenture Act of 1939, as amended (the Trust Indenture Act) and the rules and regulations of the Commission thereunder, and did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by an Underwriter through Goldman, Sachs & Co. or Deutsche Bank Securities Inc. expressly for use therein;
(c) For the purposes of this Agreement, the Applicable Time is 4:30 p.m. (Eastern time) on the date of this Agreement; the Pricing Prospectus as supplemented by the final term sheet prepared and filed pursuant to Section 5(a) hereof, taken together (collectively, the Pricing Disclosure Package) as of the Applicable Time, did not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and each Issuer Free Writing Prospectus listed on Schedule II(a) hereto does not conflict with the information contained in the Registration Statement, the Pricing Prospectus or the Prospectus and each such Issuer Free Writing Prospectus, as supplemented by and taken together with the Pricing Disclosure Package as of the Applicable Time, did not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to statements or omissions made in an Issuer Free Writing Prospectus in reliance upon and in conformity with information furnished in writing to the Company by an Underwriter through Goldman, Sachs & Co. or Deutsche Bank Securities Inc. expressly for use therein;
-3-
(d) The documents incorporated by reference in the Pricing Prospectus and the Prospectus (including, without limitation, the interactive data in eXtensible Business Reporting Language included or incorporated by reference therein), when they became effective or were filed with the Commission, as the case may be, conformed in all material respects to the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder, and none of such documents contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; any further documents so filed and incorporated by reference in the Prospectus or any further amendment or supplement thereto (including, without limitation, the interactive data in eXtensible Business Reporting Language included or incorporated by reference therein), when such documents become effective or are filed with the Commission, as the case may be, will conform in all material respects to the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by an Underwriter through Goldman, Sachs & Co. or Deutsche Bank Securities Inc. expressly for use therein; and no such documents were filed with the Commission since the Commissions close of business on the business day immediately prior to the date of this Agreement and prior to the execution of this Agreement, except as set forth on Schedule II(b) hereto;
(e) The Registration Statement conforms, and the Prospectus and any further amendments or supplements to the Registration Statement and the Prospectus will conform, in all material respects to the requirements of the Act and the Trust Indenture Act and the rules and regulations of the Commission thereunder and do not and will not, as of the applicable effective date as to each part of the Registration Statement and as of the applicable filing date as to the Prospectus and any amendment or supplement thereto, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that this representation and warranty shall not apply to any (i) statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by an Underwriter through Goldman, Sachs & Co. or Deutsche Bank Securities Inc. expressly for use therein or (ii) statements in or omissions from the part of the Registration Statement that constitutes the Statement of Eligibility and Qualification on Form T-1 of the Trustee under the Trust Indenture Act;
(f) The Company and its subsidiaries, taken as a whole, (i) have not sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any material loss or
-4-
interference with their business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus; and, (ii) since the respective dates as of which information is given in the Registration Statement and the Pricing Prospectus, there has not been any material adverse change in the capital stock or long term debt of the Company and its subsidiaries, taken as a whole, or any Material Adverse Effect, in each case otherwise than as set forth or contemplated in the Pricing Prospectus. For purposes of this Agreement, Material Adverse Effect means any material adverse change in or affecting the business of the Company and its subsidiaries, taken as a whole;
(g) The Company has been (i) duly incorporated and is validly existing as a corporation in good standing under the laws of the State of California, with power and authority (corporate and other) to own its properties and conduct its business as described in the Pricing Prospectus and, (ii) except to the extent that the failure to be so qualified or be in good standing in such jurisdictions would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect, has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification;
(h) All of the issued equity interests of each subsidiary of the Company that is a significant subsidiary as defined in Rule 405 of the Act (each such subsidiary, a Subsidiary and, collectively, the Subsidiaries) are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims, except to the extent that such liens, encumbrances, equities or claims would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect;
(i) Each Subsidiary has been duly incorporated and is validly existing and in good standing under the laws of its jurisdiction of organization, with power and authority (corporate and other) to own its properties and conduct its business as described in the Pricing Prospectus, and has been duly qualified to transact business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except to the extent that the failure to have such power, be so qualified or be in good standing would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect;
(j) The Securities have been duly authorized and, when issued and delivered pursuant to this Agreement, will have been duly executed, authenticated, issued and delivered and will constitute valid and legally binding obligations of the Company entitled to the benefits provided by the indenture dated as of April 29, 2013 (the Base Indenture) between the Company and The
-5-
Bank of New York Mellon Trust Company, N.A., as Trustee (the Trustee), which is substantially in the form filed as an exhibit to the Registration Statement, as supplemented by the Officers Certificate, to be dated May 6, 2014, in respect of the Securities (the Officers Certificate and, together with the Base Indenture, the Indenture), subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors rights and to general equity principles; the Base Indenture has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Act and, assuming due authorization, execution and delivery by the Trustee, constitutes a valid and legally binding instrument, enforceable against the Company in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors rights and to general equity principles, and the Officers Certificate has been duly authorized by the Company and at the Time of Delivery will be duly executed and delivered by the Company, and when the Officers Certificate is duly executed and delivered in accordance with its terms and the terms of the Base Indenture, the Indenture will constitute a valid and legally binding instrument enforceable against the Company in accordance with its terms subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors rights and to general equity principles; the Securities and the Indenture will conform to the descriptions thereof in the Pricing Disclosure Package and the Prospectus; and at the Time of Delivery, the Indenture will conform in all material respects to the requirements of the Trust Indenture Act and the rules and regulations of the Commission applicable to an indenture that is qualified thereunder;
(k) The issue and sale of the Securities and the compliance by the Company with all of the provisions of the Securities, the Indenture and this Agreement and the consummation of the transactions herein and therein contemplated (i) will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, (ii) nor will such action result in any violation of the provisions of the Amended and Restated Articles of Incorporation or Amended and Restated Bylaws of the Company, (iii) nor will such action result in any violation of any statute, order, rule or regulation of any court or governmental agency or body or any administrative agency, regulatory body or other authority (hereinafter referred to as a Governmental Agency) having jurisdiction over the Company or any of its properties; and (iv) no consent, approval, authorization, order, registration or qualification of or with any such court or Governmental Agency (hereinafter referred to as Governmental Authorizations) is required for the issue and sale of the Securities or the consummation by the Company of the transactions contemplated by this Agreement or the Indenture except such as have been obtained under the Act and
-6-
the Trust Indenture Act and such Governmental Authorizations as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Securities by the Underwriters, and except, with respect to (i), (iii) and (iv), as would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect;
(l) There are no legal or governmental proceedings pending or, to the Companys knowledge, threatened to which the Company or any of its Subsidiaries is a party or to which any of the properties of the Company or any of its Subsidiaries is subject that are required to be described in the Registration Statement or the Pricing Disclosure Package and are not so described or any statutes, regulations, contracts or other documents that are required to be described in the Registration Statement or the Pricing Disclosure Package or to be filed as exhibits to the Registration Statement that are not described or filed as required;
(m) The Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof, will not be an investment company, as such term is defined in the Investment Company Act of 1940, as amended (the Investment Company Act);
(n) (A) (i) At the time of filing the Registration Statement, (ii) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), and (iii) at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 under the Act, the Company was a well-known seasoned issuer as defined in Rule 405 under the Act; and (B) at the earliest time after the filing of the Registration Statement that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) under the Act) of the Securities, the Company was not an ineligible issuer as defined in Rule 405 under the Act;
(o) The financial statements and the related notes thereto included or incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Basic Prospectus comply or will comply in all material respects with the applicable requirements of the Act and the Exchange Act, as applicable, and present fairly the financial position of the Company and its subsidiaries as of the dates indicated and the results of their operations and the changes in their cash flows for the periods specified; such financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods covered thereby, and the supporting schedules included or incorporated by reference in the Registration Statement present fairly the information required to be stated therein; and the
-7-
other financial information included or incorporated by reference in the Registration Statement or Pricing Disclosure Package has been derived from the accounting records of the Company and its subsidiaries and presents fairly the information shown thereby; and
(p) This Agreement has been duly authorized, executed and delivered by the Company.
2. Subject to the terms and conditions herein set forth, the Company agrees to issue and sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Company the respective principal amount of Securities set forth opposite the name of such Underwriter in Schedule I hereto at a purchase price of 99.847% of the principal amount of the 2017 Fixed Rate Notes, 99.900% of the principal amount of the 2017 Floating Rate Notes, 99.812% of the principal amount of the 2019 Fixed Rate Notes, 99.850% of the principal amount of the 2019 Floating Rate Notes, 99.574% of the principal amount of the 2021 Notes, 99.716% of the principal amount of the 2024 Notes and 98.809% of the principal amount of the 2044 Notes, plus, in each case, accrued interest, if any, from May 6, 2014 to the Time of Delivery (as defined below) hereunder.
3. Upon the authorization by you of the release of the Securities, the several Underwriters propose to offer the Securities for sale upon the terms and conditions set forth in the Prospectus.
4. (a) The Securities to be purchased by each Underwriter hereunder will be represented by one or more definitive global Securities in book-entry form which will be deposited by or on behalf of the Company with The Depository Trust Company (DTC) or its designated custodian. The Company will deliver the Securities to Goldman, Sachs & Co., for the account of each Underwriter, against payment by or on behalf of such Underwriter of the purchase price therefor by wire transfer of Federal (same-day) funds to the account specified by the Company to Goldman, Sachs & Co. at least forty-eight hours in advance, by causing DTC to credit the Securities to the account of Goldman, Sachs & Co. at DTC. The Company will cause the certificates representing the Securities to be made available to Goldman, Sachs & Co. for review at least twenty-four hours prior to the Time of Delivery (as defined below) at the office of DTC or its designated custodian (the Designated Office). The time and date of such delivery and payment shall be 9:30 a.m., New York City time, on May 6, 2014 or such other time and date as Goldman, Sachs & Co. and the Company may agree upon in writing. Such time and date are herein called the Time of Delivery.
(b) The documents to be delivered at the Time of Delivery by or on behalf of the parties hereto pursuant to Section 8 hereof, including the cross-receipt for the Securities and any additional documents requested by the Underwriters, will be delivered at the offices of Simpson Thacher & Bartlett LLP, 2475 Hanover Street, Palo Alto, CA 94304 (the Closing Location), and the Securities will be delivered at the Designated Office, all at the Time of Delivery. Final drafts of the documents to be delivered pursuant to the preceding sentence will be made available for review by the parties hereto on the
-8-
New York Business Day next preceding the Time of Delivery. For the purposes of this Section 4, New York Business Day shall mean each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in New York City are generally authorized or obligated by law or executive order to close.
5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by you and to file such Prospectus pursuant to Rule 424(b) under the Act not later than the Commissions close of business on the second business day following the date of this Agreement; to make no further amendment or any supplement to the Registration Statement, the Basic Prospectus or the Prospectus prior to the Time of Delivery which shall be reasonably disapproved by you promptly after reasonable notice thereof; to advise you, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to the Prospectus has been filed and to furnish you with copies thereof; to prepare a final term sheet, containing solely a description of the Securities, in a form approved by you and to file such term sheet pursuant to Rule 433(d) under the Act within the time required by such Rule; to file promptly all other material required to be filed by the Company with the Commission pursuant to Rule 433(d) under the Act; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is required in connection with the offering or sale of the Securities; to advise you, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or other prospectus in respect of the Securities, of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act, of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or other prospectus or suspending any such qualification, to promptly use its reasonable best efforts to obtain the withdrawal of such order; and in the event of any such issuance of a notice of objection, promptly to take such steps including, without limitation, amending the Registration Statement or filing a new registration statement, at its own expense, as may be necessary to permit offers and sales of the Securities by the Underwriters (references herein to the Registration Statement shall include any such amendment or new registration statement);
(b) If required by Rule 430B(h) under the Act, to prepare a form of prospectus in a form approved by you and to file such form of prospectus pursuant to Rule 424(b) under the Act not later than may be required by Rule 424(b) under the Act; and to make
-9-
no further amendment or supplement to such form of prospectus which shall be reasonably disapproved by you promptly after reasonable notice thereof;
(c) Promptly from time to time to take such action as you may reasonably request to qualify the Securities for offering and sale under the securities laws of such jurisdictions as you may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Securities, provided that in connection therewith the Company shall not be required to qualify as a foreign corporation, to file a general consent to service of process in any jurisdiction or to subject itself to taxation in any jurisdiction in which it is not so subject;
(d) On the New York Business Day next succeeding the date of this Agreement and from time to time, to furnish the Underwriters with copies of the Prospectus in New York City in such quantities as you may reasonably request (excluding any documents incorporated by reference therein to the extent available through the Commissions EDGAR system), and, if the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is required at any time after the time of issue of the Prospectus in connection with the offering or sale of the Securities and if at such time any event shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is delivered, not misleading, or, if for any other reason it shall be necessary during such same period to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Act, the Exchange Act or the Trust Indenture Act, to notify you and upon your request to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance;
(e) To make generally available to its securityholders as soon as practicable, but in any event not later than sixteen months after the effective date of the Registration Statement (as defined in Rule 158(c) under the Act), an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Act and the rules and regulations of the Commission thereunder (including, at the option of the Company, Rule 158);
(f) During the period beginning from the date hereof and continuing to and including the later of the Time of Delivery and such earlier time as you may notify the Company, not to offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise transfer or dispose of, directly or indirectly, or file with the Commission a registration statement under the Act relating to any securities of the
-10-
Company that are substantially similar to the Securities, or publicly disclose the intention to make any such offer, sale, pledge, disposition or filing;
(g) To pay the required Commission filing fees relating to the Securities within the time required by Rule 456(b)(1) under the Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Act; and
6.
(a) (i) The Company represents and agrees that, other than the final term sheet prepared and filed pursuant to Section 5(a) hereof, without the prior consent of Goldman, Sachs & Co. and Deutsche Bank Securities Inc., it has not made and will not make any offer relating to the Securities that would constitute a free writing prospectus as defined in Rule 405 under the Act;
(ii) each Underwriter represents and agrees that, without the prior consent of the Company, Goldman, Sachs & Co. and Deutsche Bank Securities Inc., other than one or more term sheets relating to the Securities containing customary information and conveyed to purchasers of Securities, it has not made and will not make any offer relating to the Securities that would constitute a free writing prospectus; and
(iii) any such free writing prospectus the use of which has been consented to by the Company, Goldman, Sachs & Co. and Deutsche Bank Securities Inc. (other than the final term sheet prepared and filed pursuant to Section 5(a) hereof) is listed on Schedule II(a) hereto;
(b) The Company has complied and will comply with the requirements of Rule 433 under the Act applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission or retention where required and legending; and
(c) The Company agrees that if at any time following issuance of an Issuer Free Writing Prospectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus would conflict with the information in the Registration Statement, the Pricing Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, the Company will give prompt notice thereof to Goldman, Sachs & Co. and Deutsche Bank Securities Inc. and, if requested by Goldman, Sachs & Co. and Deutsche Bank Securities Inc., will prepare and furnish without charge to each Underwriter an Issuer Free Writing Prospectus or other document which will correct such conflict, statement or omission; provided, however, that this representation and warranty shall not apply to any statements or omissions in an Issuer Free Writing Prospectus made in reliance upon and in conformity with information furnished in writing to the Company by an Underwriter through Goldman, Sachs & Co. or Deutsche Bank Securities Inc. expressly for use therein.
-11-
7. The Company covenants and agrees with the several Underwriters that the Company will pay or cause to be paid the following: (i) the fees, disbursements and expenses of the Companys counsel and accountants in connection with the registration of the Securities under the Act and all other expenses in connection with the preparation, printing, reproduction and filing of the Basic Prospectus, any Preliminary Prospectus, any Issuer Free Writing Prospectus and the Prospectus and amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters and dealers; (ii) all expenses in connection with the qualification of the Securities for offering and sale under state securities laws as provided in Section 5(c) hereof, including the fees and disbursements of counsel for the Underwriters in connection with such qualification and in connection with the Blue Sky Memorandum (not to exceed $5,000); (iii) any fees charged by securities rating services for rating the Securities; (iv) the cost of preparing the Securities; (v) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities; and (vi) all other costs and expenses incident to the performance of its obligations hereunder which are not otherwise specifically provided for in this Section. It is understood, however, that, except as provided in this Section, and Sections 9 and 12 hereof, the Underwriters will pay all of their own costs and expenses, including the fees of their counsel, transfer taxes on resale of any of the Securities by them, and any advertising expenses connected with any offers they may make.
8. The obligations of the Underwriters hereunder shall be subject, in their discretion, to the condition that all representations and warranties and other statements of the Company herein are, at and as of the Time of Delivery, true and correct, the condition that the Company shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a) hereof; the final term sheet contemplated by Section 5(a) hereof, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction;
(b) Simpson Thacher & Bartlett LLP, counsel for the Underwriters, shall have furnished to you such written opinion or opinions, dated the Time of Delivery, in form and substance satisfactory to you, with respect to the issuance and sale of the Securities,
-12-
the Indenture, the Registration Statement, the Pricing Disclosure Package, the Prospectus (together with any supplement thereto) and such other related matters as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(c) Hogan Lovells US LLP, counsel for the Company, shall have furnished to you its written opinion and negative assurance letter, each dated the Time of Delivery, in form and substance satisfactory to you, substantially in the forms attached hereto as Annex II(a)(i) and Annex II(a)(ii), respectively.
(d) Gene D. Levoff, Senior Director, Corporate Law of the Company, shall have furnished to you his written opinion, dated the Time of Delivery, in form and substance satisfactory to you, substantially in the form attached hereto as Annex II(b).
(e) Wilmer Cutler Pickering Hale and Dorr LLP, counsel for the Company, shall have furnished to you its written opinion, dated the Time of Delivery, in form and substance satisfactory to you to the effect that the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof, will not be an investment company, as such term is defined in the Investment Company Act.
(f) On the date of the Prospectus at a time prior to the execution of this Agreement, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at the Time of Delivery, Ernst & Young LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you, containing statements and information of the type customarily included in accountants comfort letters to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Pricing Disclosure Package and the Prospectus;
(g) (i) The Company and its subsidiaries, taken as a whole, shall not have sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any loss or interference with their business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any material adverse change in the capital stock or long term debt of the Company and its subsidiaries, taken as a whole, or any Material Adverse Effect, in each case otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in your reasonable judgment so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities on the terms and in the manner contemplated in the Prospectus;
(h) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Companys debt securities by any nationally recognized statistical rating organization, as that term is defined by the Commission for purposes of
-13-
Rule 3(a)(62) under the Exchange Act, and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Companys debt securities;
(i) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange or on NASDAQ; (ii) a suspension or material limitation in trading in the Companys securities on NASDAQ; (iii) a general moratorium on commercial banking activities declared by either Federal or New York State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in your reasonable judgment makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities on the terms and in the manner contemplated in the Prospectus;
(j) The Company shall have complied with the provisions of Section 5(d) hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; and
(k) The Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such time, as to the performance by the Company of all of its obligations hereunder to be performed at or prior to such time, as to the matters set forth in subsections (a) and (g) of this Section and as to such other matters as you may reasonably request.
9. (a) The Company will indemnify and hold harmless each Underwriter against any losses, claims, damages or liabilities, joint or several, to which such Underwriter may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon (i) an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, or any amendment thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading or (ii) an untrue statement or alleged untrue statement of a material fact contained in the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement thereto, any Issuer Free Writing Prospectus or any issuer information filed or required to be filed pursuant to Rule 433(d) under the Act, or arise out of or are based upon the omission or alleged omission to state therein a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and will reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that the
-14-
Company shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in (I) the Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by any Underwriter through Goldman, Sachs & Co. or Deutsche Bank Securities Inc. expressly for use therein or (II) that portion of the Registration Statement that constitutes the Statement of Eligibility and Qualification on Form T-1 of the Trustee under the Trust Indenture Act.
(b) Each Underwriter will indemnify and hold harmless the Company against any losses, claims, damages or liabilities to which the Company may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon (i) an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, or any amendment thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading or (ii) an untrue statement or alleged untrue statement of a material fact contained in the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission to state therein a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus or any such amendment or supplement thereto, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by such Underwriter through Goldman, Sachs & Co. or Deutsche Bank Securities Inc. expressly for use therein; and will reimburse the Company for any legal or other expenses reasonably incurred by the Company in connection with investigating or defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall not relieve it from any liability which it may have to any indemnified party otherwise than under such subsection. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after notice from the
-15-
indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. No indemnifying party shall, without the written consent of the indemnified party, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 9 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters on the other from the offering of the Securities. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law or if the indemnified party failed to give the notice required under subsection (c) above, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company on the one hand and the Underwriters on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from the offering (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by the Underwriters, in each case as set forth in the table on the cover page of the Prospectus. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company on the one hand or the Underwriters on the other and the parties relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this subsection (d) were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this subsection (d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such
-16-
indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this subsection (d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters obligations in this subsection (d) to contribute are several in proportion to their respective underwriting obligations and not joint.
(e) The obligations of the Company under this Section 9 shall be in addition to any liability which the Company may otherwise have and shall extend, upon the same terms and conditions, to each person, if any, who controls any Underwriter within the meaning of the Act and each broker-dealer affiliate of any Underwriter; and the obligations of the Underwriters under this Section 9 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and to each person, if any, who controls the Company within the meaning of the Act.
10. (a) If any Underwriter shall default in its obligation to purchase the Securities which it has agreed to purchase hereunder, you may in your discretion arrange for you or another party or other parties to purchase such Securities on the terms contained herein. If within thirty six hours after such default by any Underwriter you do not arrange for the purchase of such Securities, then the Company shall be entitled to a further period of thirty six hours within which to procure another party or other parties satisfactory to you to purchase such Securities on such terms. In the event that, within the respective prescribed periods, you notify the Company that you have so arranged for the purchase of such Securities, or the Company notifies you that it has so arranged for the purchase of such Securities, you or the Company shall have the right to postpone the Time of Delivery for a period of not more than seven days, in order to effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company agrees to file promptly any amendments or supplements to the Registration Statement or the Prospectus that in your opinion may thereby be made necessary. The term Underwriter as used in this Agreement shall include any person substituted under this Section with like effect as if such person had originally been a party to this Agreement with respect to such Securities.
(b) If, after giving effect to any arrangements for the purchase of the Securities of a defaulting Underwriter or Underwriters by you and the Company as provided in subsection (a) above, the aggregate principal amount of such Securities which remains unpurchased does not exceed one tenth of the aggregate principal amount of all the Securities, then the Company shall have the right to require each non-defaulting Underwriter to purchase the principal amount of Securities which such Underwriter agreed to purchase hereunder and, in addition, to require each non-defaulting Underwriter
-17-
to purchase its pro rata share (based on the principal amount of Securities which such Underwriter agreed to purchase hereunder) of the Securities of such defaulting Underwriter or Underwriters for which such arrangements have not been made; but nothing herein shall relieve a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the Securities of a defaulting Underwriter or Underwriters by you and the Company as provided in subsection (a) above, the aggregate principal amount of Securities which remains unpurchased exceeds one tenth of the aggregate principal amount of all the Securities, or if the Company shall not exercise the right described in subsection (b) above to require non-defaulting Underwriters to purchase Securities of a defaulting Underwriter or Underwriters, then this Agreement shall thereupon terminate, without liability on the part of any non-defaulting Underwriter or the Company, except for the expenses to be borne by the Company and the Underwriters as provided in Section 7 hereof and the indemnity and contribution agreements in Section 9 hereof; but nothing herein shall relieve a defaulting Underwriter from liability for its default.
11. The respective indemnities, agreements, representations, warranties and other statements of the Company and the several Underwriters, as set forth in this Agreement or made by or on behalf of them, respectively, pursuant to this Agreement, shall remain in full force and effect, regardless of any investigation (or any statement as to the results thereof) made by or on behalf of any Underwriter or any controlling person of any Underwriter, or the Company, or any officer or director or controlling person of the Company, and shall survive delivery of and payment for the Securities.
12. If this Agreement shall be terminated pursuant to Section 10 hereof, the Company shall not then be under any liability to any Underwriter except as provided in Sections 7 and 9 hereof; but, if for any other reason, the Securities are not delivered by or on behalf of the Company as provided herein, the Company will reimburse the Underwriters through you for all out-of-pocket expenses approved in writing by you, including fees and disbursements of counsel, reasonably incurred by the Underwriters in making preparations for the purchase, sale and delivery of the Securities, but the Company shall then be under no further liability to any Underwriter except as provided in Sections 7 and 9 hereof.
13. In all dealings hereunder, you shall act on behalf of each of the Underwriters, and the parties hereto shall be entitled to act and rely upon any statement, request, notice or agreement on behalf of any Underwriter made or given by you jointly or by Goldman, Sachs & Co. or Deutsche Bank Securities Inc. on behalf of you as the representatives.
All statements, requests, notices and agreements hereunder shall be in writing, and if to the Underwriters shall be delivered or sent by mail, telex or facsimile transmission to you as the representatives in care of Goldman, Sachs & Co., 200 West Street, New York, New York 10282-2198, Attention: Registration Department; Deutsche Bank Securities Inc., 60 Wall Street, New York, New York 10005, Attention: Debt Capital Markets Syndicate (fax: (212) 797-4877), with a copy to the General Counsel (fax: (212)
-18-
797-4561); and if to the Company shall be delivered or sent by mail, telex or facsimile transmission to the address of the Company set forth in the Registration Statement, Attention: Secretary; provided, however, that any notice to an Underwriter pursuant to Section 9(c) hereof shall be delivered or sent by mail, telex or facsimile transmission to such Underwriter at its address set forth in its Underwriters Questionnaire, or telex constituting such Questionnaire, which address will be supplied to the Company by you upon request. Any such statements, requests, notices or agreements shall take effect upon receipt thereof.
In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the underwriters are required to obtain, verify and record information that identifies their respective clients, including the Company, which information may include the name and address of their respective clients, as well as other information that will allow the underwriters to properly identify their respective clients.
14. This Agreement shall be binding upon, and inure solely to the benefit of, the Underwriters, the Company and, to the extent provided in Sections 9 and 11 hereof, the officers and directors of the Company and each person who controls the Company or any Underwriter, and their respective heirs, executors, administrators, successors and assigns, and no other person shall acquire or have any right under or by virtue of this Agreement. No purchaser of any of the Securities from any Underwriter shall be deemed a successor or assign by reason merely of such purchase.
15. Time shall be of the essence of this Agreement. As used herein, the term business day shall mean any day when the Commissions office in Washington, D.C. is open for business.
16. The Company acknowledges and agrees that (i) the purchase and sale of the Securities pursuant to this Agreement is an arms-length commercial transaction between the Company, on the one hand, and the several Underwriters, on the other, (ii) in connection therewith and with the process leading to such transaction each Underwriter is acting solely as a principal and not the agent or fiduciary of the Company, (iii) no Underwriter has assumed an advisory or fiduciary responsibility in favor of the Company with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company on other matters) or any other obligation to the Company except the obligations expressly set forth in this Agreement and (iv) the Company has consulted its own legal and financial advisors to the extent it deemed appropriate. The Company agrees that it will not claim that the Underwriters, or any of them, has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to the Company, in connection with such transaction or the process leading thereto.
17. This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Company and the Underwriters, or any of them, with respect to the subject matter hereof.
-19-
18. THIS AGREEMENT AND ANY MATTERS RELATED TO THIS TRANSACTION SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE LAWS OF THE STATE OF NEW YORK.
19. The Company and each of the Underwriters hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
20. This Agreement may be executed by any one or more of the parties hereto in any number of counterparts (which may include counterparts delivered by any standard form of telecommunications), each of which shall be deemed to be an original, but all such respective counterparts shall together constitute one and the same instrument.
-20-
If the foregoing is in accordance with your understanding, please sign and return to us counterparts hereof, and upon the acceptance hereof by you, on behalf of each of the Underwriters, this letter and such acceptance hereof shall constitute a binding agreement between each of the Underwriters and the Company. It is understood that your acceptance of this letter on behalf of each of the Underwriters is pursuant to the authority set forth in a form of Agreement among Underwriters, the form of which shall be submitted to the Company for examination upon request, but without warranty on your part as to the authority of the signers thereof.
Very truly yours, | ||
Apple Inc. | ||
By: |
/s/ Luca Maestri | |
Name: Luca Maestri | ||
Title: Vice President and Corporate Controller |
[Signature page to Underwriting Agreement]
Accepted as of the date hereof:
GOLDMAN, SACHS & CO.
DEUTSCHE BANK SECURITIES INC.
on behalf of each of the Underwriters
GOLDMAN, SACHS & CO. | ||
By: |
/s/ Adam Greene | |
Name: Adam Greene | ||
Title: Vice President |
[Signature page to Underwriting Agreement]
Accepted as of the date hereof:
GOLDMAN, SACHS & CO.
DEUTSCHE BANK SECURITIES INC.
on behalf of each of the Underwriters
DEUTSCHE BANK SECURITIES INC.
By: |
/s/ Marc Fratepietro | |
Name: Marc Fratepietro | ||
Title: Managing Director |
By: |
/s/ Jenn C McCabe | |
Name: Jenn C McCabe | ||
Title: Director |
[Signature page to Underwriting Agreement]
SCHEDULE I
Underwriter
|
Principal Amount of Securities to be Purchased
|
|||||||||||||||||||||||||||
2017 Fixed |
2017 Floating Rate Notes |
2019 Fixed Rate Notes |
2019 Floating Rate Notes |
2021 Notes | 2024 Notes | 2044 Notes | ||||||||||||||||||||||
Goldman, Sachs & Co. |
$ | 960,000,000 | $ | 640,000,000 | $ | 1,280,000,000 | $ | 640,000,000 | $ | 1,920,000,000 | $ | 1,600,000,000 | $ | 640,000,000 | ||||||||||||||
Deutsche Bank Securities Inc. |
$ | 300,000,000 | $ | 200,000,000 | $ | 400,000,000 | $ | 200,000,000 | $ | 600,000,000 | $ | 500,000,000 | $ | 200,000,000 | ||||||||||||||
J.P. Morgan Securities LLC |
$ | 75,000,000 | $ | 50,000,000 | $ | 100,000,000 | $ | 50,000,000 | $ | 150,000,000 | $ | 125,000,000 | $ | 50,000,000 | ||||||||||||||
Merrill Lynch, Pierce, Fenner & Smith Incorporated |
$ | 75,000,000 | $ | 50,000,000 | $ | 100,000,000 | $ | 50,000,000 | $ | 150,000,000 | $ | 125,000,000 | $ | 50,000,000 | ||||||||||||||
Barclays Capital Inc. |
$ | 30,000,000 | $ | 20,000,000 | $ | 40,000,000 | $ | 20,000,000 | $ | 60,000,000 | $ | 50,000,000 | $ | 20,000,000 | ||||||||||||||
Citigroup Global Markets Inc. |
$ | 30,000,000 | $ | 20,000,000 | $ | 40,000,000 | $ | 20,000,000 | $ | 60,000,000 | $ | 50,000,000 | $ | 20,000,000 | ||||||||||||||
Wells Fargo Securities, LLC |
$ | 30,000,000 | $ | 20,000,000 | $ | 40,000,000 | $ | 20,000,000 | $ | 60,000,000 | $ | 50,000,000 | $ | 20,000,000 | ||||||||||||||
|
|
|
|
|||||||||||||||||||||||||
Total |
$ | 1,500,000,000 | $ | 1,000,000,000 | $ | 2,000,000,000 | $ | 1,000,000,000 | $ | 3,000,000,000 | $ | 2,500,000,000 | $ | 1,000,000,000 | ||||||||||||||
|
|
|
|
-1-
SCHEDULE II
(a) Issuer Free Writing Prospectuses not included in the Pricing Disclosure Package:
None
(b) Additional Documents Incorporated by Reference:
None
Annex II(a)(i)
FORM OF OPINION OF HOGAN LOVELLS US LLP
(a) The Notes have been duly executed, issued and delivered by the Company and, when authenticated by the Trustee in the manner provided for in the Indenture, against payment therefor in accordance with the Agreement, will constitute valid and binding obligations of the Company entitled to the benefits of the Indenture and enforceable against the Company in accordance with their terms.
(b) The Indenture (i) has been duly qualified under the Trust Indenture Act, (ii) has been duly executed and delivered on behalf of the Company, and (iii) constitutes a valid and binding obligation of the Company enforceable against the Company in accordance with its terms.
(c) The Notes and the Indenture conform as to legal matters in all material respects to the descriptions thereof set forth in the Preliminary Prospectus and the Prospectus under the captions Description of the Notes and Description of the Debt Securities.
(d) The information in the Preliminary Prospectus and the Prospectus under the captions Description of the Notes and Description of the Debt Securities, to the extent that such information constitutes descriptions of the terms of the Notes or the Indenture, has been reviewed by us and is accurate in all material respects.
(e) The information in the Preliminary Prospectus and the Prospectus under the caption Certain U.S. Federal Income Tax Considerations, to the extent that such information constitutes matters of law or legal conclusions, has been reviewed by us and is correct in all material respects.
(f) At the time the Registration Statement became effective and at the date hereof, the Registration Statement and the Prospectus (except for the financial statements and schedules included therein, as to which we express no opinion) comply as to form in all material respects with the requirements of the Trust Indenture Act and the Securities Act and the applicable rules and regulations thereunder.
(g) The documents incorporated by reference in the Prospectus pursuant to Item 12 of Form S-3 under the Securities Act (other than the financial statements and schedules and financial information and data derived from such financial statements included therein or omitted therefrom, as to which we express no opinion), at the time they were filed with the Commission, complied as to form in all material respects with the requirements of the Exchange Act and the applicable rules and regulations thereunder.
(h) The issuance and sale of the Notes to the Underwriters and the execution, delivery and performance by the Company of the Agreement, the Indenture and the Notes do not (i) violate any provision of Applicable Federal Law or any provision of Applicable State Law, (ii) violate any of the Company Orders, or (iii) breach or constitute a default under any of the
Company Contracts (except that we express no opinion with respect to any matters that would require a mathematical calculation or a financial or accounting determination).
(i) No approval or consent of, or registration or filing with, any federal governmental agency or state governmental agency is required to be obtained or made by the Company under Applicable Federal Law or Applicable State Law in connection with the issuance and sale of the Notes to the Underwriters and the execution, delivery and performance by the Company of the Agreement, the Indenture and the Notes.
(j) The Agreement has been executed and delivered by the Company.
(k) Based solely upon our review of the information regarding the Company provided through the EDGAR System on the Commissions website, the Registration Statement became effective under the Securities Act, and, to our knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act and no proceedings for that purpose have been instituted or threatened by the Commission.
-2-
Annex II(a)(ii)
FORM OF NEGATIVE ASSURANCE LETTER OF HOGAN LOVELLS US LLP
No facts have come to our attention that cause us to believe that:
(i) the Registration Statement, as of the date of the Agreement, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
(ii) the Prospectus, as of its date and as of the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(iii) the Pricing Disclosure Package, as of 4:30 P.M. (Eastern time) on April 29, 2014, (which you have informed us is a time prior to the time of the first sale of the Notes by any Underwriter), contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(iv) there are any legal or governmental proceedings pending or threatened against the Company that are required to be disclosed in the Registration Statement, the Pricing Disclosure Package, or the Prospectus, other than those disclosed therein; or
(v) there are any contracts or documents of a character required to be described in the Registration Statement, the Pricing Disclosure Package, or the Prospectus or to be filed as exhibits to the Registration Statement that are not described or referred to therein or so filed.
-3-
Annex II(b)
FORM OF OPINION OF GENE D. LEVOFF
(a) The Company has been duly incorporated and is validly existing as a corporation and in good standing as of the date of such opinion under the laws of the State of California. The Company has the corporate power to own and operate its current properties and to conduct its business as described in the Prospectus and to enter into the Agreement.
(b) The issuance, sale, execution and delivery of the Notes pursuant to the Agreement have been duly authorized by all necessary corporate action of the Company.
(c) No authorization, consent, order or approval of, or filing or registration with, or exemption by, any California government or regulatory authority having jurisdiction over the Company or any of its properties or assets is required for the validity of the Notes or for the issuance, sale and delivery of the Notes by the Company pursuant to the Agreement or for the execution and delivery of the Agreement or the Indenture by the Company and the performance by the Company of the Agreement, the Indenture and the Notes, except such as have been obtained and made by the Company and are in full force and effect under the Securities Act and such as may be required under state securities or blue sky laws.
(d) The execution and delivery of the Agreement and the Indenture by the Company has been duly authorized by all necessary corporate action on the part of the Company.
(e) The execution, delivery and performance by the Company of the Agreement, Indenture and the Notes (including the consummation of the transactions contemplated therein and compliance with the terms and provisions therein) do not violate the California General Corporation Law or the Articles of Incorporation or Bylaws of the Company.
Exhibit 4.1
APPLE INC.
Officers Certificate
Pursuant to Sections 102 and 301 of the Indenture dated as of April 29, 2013 (the Indenture) by and between Apple Inc. (the Issuer) and The Bank of New York Mellon Trust Company, N.A., as trustee (the Trustee), the undersigned officer does hereby certify, in connection with the issuance of (i) $1,000,000,000 aggregate principal amount of Floating Rate Notes due 2017 (Floating Rate Notes due 2017), (ii) $1,000,000,000 aggregate principal amount of Floating Rate Notes due 2019 (Floating Rate Notes due 2019, and, together with the Floating Rate Notes due 2017, the Floating Rate Notes), (iii) $1,500,000,000 aggregate principal amount of 1.05% Notes due 2017 (2017 Notes), (iv) $2,000,000,000 aggregate principal amount of 2.10% Notes due 2019 (2019 Notes), (v) $3,000,000,000 aggregate principal amount of 2.85% Notes due 2021 (2021 Notes), (vi) $2,500,000,000 aggregate principal amount of 3.45% Notes due 2024 (2024 Notes) and (vii) $1,000,000,000 aggregate principal amount of 4.45% Notes due 2044 (2044 Notes and, together with the Floating Rate Notes, 2017 Notes, 2019 Notes, 2021 Notes and 2024 Notes, the Notes), that the terms of the Notes are as follows:
Capitalized terms used but not otherwise defined herein shall have the meanings specified in the Indenture.
1. | Floating Rate Notes due 2017 |
Title: | Floating Rate Notes due 2017 | |
Issuer: | Apple Inc. | |
Trustee, Registrar, Transfer Agent, Authenticating Agent, and Paying Agent: | The Bank of New York Mellon Trust Company, N.A. | |
Aggregate Principal Amount at Maturity. | $1,000,000,000 | |
Principal Payment Date: | May 5, 2017 | |
Interest: | Floating rate equal to three-month LIBOR plus 0.07% | |
Date from which Interest will Accrue: | May 6, 2014 | |
Interest Payment Dates: | February 6, May 6, August 6 and November 6, beginning on August 6, 2014 and on the principal payment date; provided, that if an Interest Payment Date for this Note falls on a day that is not a Business Day the Interest Payment Date shall be postponed to the next |
succeeding Business Day, unless such next succeeding Business Day would be in the following month, in which case the Interest Payment Date shall be the immediately preceding Business Day. | ||
Conversion: | None | |
Sinking Fund: | None | |
Redemption: | The Floating Rate Notes due 2017 shall not be redeemable prior to their maturity. | |
Denominations: | $2,000 and any integral multiple of $1,000 in excess thereof. | |
Miscellaneous: | The terms of the Floating Rate Notes due 2017 shall include such other terms as are set forth in the form of Floating Rate Notes due 2017 attached hereto as Exhibit A and in the Indenture. In addition, the global notes for the Floating Rate Notes due 2017 shall include the following language: To the extent the terms of the Indenture and this Note are inconsistent, the terms of the Indenture shall govern. |
2. | Floating Rate Notes due 2019 |
Title: | Floating Rate Notes due 2019 | |
Issuer: | Apple Inc. | |
Trustee, Registrar, Transfer Agent, Authenticating Agent, and Paying Agent: | The Bank of New York Mellon Trust Company, N.A. | |
Aggregate Principal Amount at Maturity: | $1,000,000,000 | |
Principal Payment Date: | May 6, 2019 | |
Interest: | Floating rate equal to three-month LIBOR plus 0.30% | |
Date from which Interest will Accrue: | May 6, 2014 | |
Interest Payment Dates: | February 6, May 6, August 6 and November 6, beginning on August 6, 2014; provided, that if an Interest Payment Date for this Note falls on a day that is not a Business Day the Interest Payment Date shall be |
2
postponed to the next succeeding Business Day, unless such next succeeding Business Day would be in the following month, in which case the Interest Payment Date shall be the immediately preceding Business Day. | ||
Conversion: | None | |
Sinking Fund: | None | |
Redemption: | The Floating Rate Notes due 2019 shall not be redeemable prior to their maturity. | |
Denominations: | $2,000 and any integral multiple of $1,000 in excess thereof. | |
Miscellaneous: | The terms of the Floating Rate Notes due 2019 shall include such other terms as are set forth in the form of Floating Rate Notes due 2019 attached hereto as Exhibit B and in the Indenture. In addition, the global notes for the Floating Rate Notes due 2019 shall include the following language: To the extent the terms of the Indenture and this Note are inconsistent, the terms of the Indenture shall govern. |
3. | 2017 Notes |
Title: | 1.05% Notes due 2017 | |
Issuer: | Apple Inc. | |
Trustee, Registrar, Transfer Agent, Authenticating Agent, and Paying Agent: | The Bank of New York Mellon Trust Company, N.A. | |
Aggregate Principal Amount at Maturity. | $1,500,000,000 | |
Principal Payment Date: | May 5, 2017 | |
Interest: | 1.05% per annum | |
Date from which Interest will Accrue: | May 6, 2014 | |
Interest Payment Dates: | May 6 and November 6, beginning on November 6, 2014 and on the principal payment date | |
Redemption: | The Issuer may at its option redeem the 2017 Notes in |
3
whole or in part, at any time or from time to time prior to their maturity, on at least 30 days, but not more than 60 days, prior notice mailed or electronically delivered to the registered address of each holder of record of the 2017 Notes, at a redemption price, calculated by the Issuer, equal to the greater of:
(i) 100% of the principal amount of the 2017 Notes being redeemed; or
(ii) the sum of the present values of the remaining scheduled payments of principal and interest on the notes to be redeemed (exclusive of interest accrued to the date of redemption) discounted to the date of redemption on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at a rate equal to the sum of the applicable Treasury Rate (as defined in the 2017 Notes) plus 5 basis points,
plus, in each case, accrued and unpaid interest thereon to the date of redemption. | ||
Conversion: | None | |
Sinking Fund: | None | |
Denominations: | $2,000 and any integral multiple of $1,000 in excess thereof. | |
Miscellaneous: | The terms of the 2017 Notes shall include such other terms as are set forth in the form of 2017 Notes attached hereto as Exhibit C and in the Indenture. In addition, the global notes for the 2017 Notes shall include the following language: To the extent the terms of the Indenture and this Note are inconsistent, the terms of the Indenture shall govern. |
4. | 2019 Notes |
Title: | 2.10% Notes due 2019 | |
Issuer: | Apple Inc. | |
Trustee, Registrar, Transfer Agent, Authenticating Agent, and Paying Agent: | The Bank of New York Mellon Trust Company, N.A. |
4
Aggregate Principal Amount at Maturity. | $2,000,000,000 | |
Principal Payment Date: | May 6, 2019 | |
Interest: | 2.10% per annum | |
Date from which Interest will Accrue: | May 6, 2014 | |
Interest Payment Dates: | May 6 and November 6, beginning on November 6, 2014 | |
Redemption: | The Issuer may at its option redeem the 2019 Notes in whole or in part, at any time or from time to time prior to their maturity, on at least 30 days, but not more than 60 days, prior notice mailed or electronically delivered to the registered address of each holder of record of the 2019 Notes, at a redemption price, calculated by the Issuer, equal to the greater of:
(i) 100% of the principal amount of the 2019 Notes being redeemed; or
(ii) the sum of the present values of the remaining scheduled payments of principal and interest on the notes to be redeemed (exclusive of interest accrued to the date of redemption) discounted to the date of redemption on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at a rate equal to the sum of the applicable Treasury Rate (as defined in the 2019 Notes) plus 10 basis points,
plus, in each case, accrued and unpaid interest thereon to the date of redemption. | |
Conversion: | None | |
Sinking Fund: | None | |
Denominations: | $2,000 and any integral multiple of $1,000 in excess thereof. | |
Miscellaneous: | The terms of the 2019 Notes shall include such other terms as are set forth in the form of 2019 Notes attached hereto as Exhibit D and in the Indenture. In addition, the global notes for the 2019 Notes shall include the following language: To the extent the terms of the |
5
Indenture and this Note are inconsistent, the terms of the Indenture shall govern. |
5. | 2021 Notes |
Title: | 2.85% Notes due 2021 | |
Issuer: | Apple Inc. | |
Trustee, Registrar, Transfer Agent, Authenticating Agent, and Paying Agent: | The Bank of New York Mellon Trust Company, N.A. | |
Aggregate Principal Amount at Maturity. | $3,000,000,000 | |
Principal Payment Date: | May 6, 2021 | |
Interest: | 2.85% per annum | |
Date from which Interest will Accrue: | May 6, 2014 | |
Interest Payment Dates: | May 6 and November 6, beginning on November 6, 2014 | |
Redemption: | The Issuer may at its option redeem the 2021 Notes in whole or in part, at any time or from time to time prior to their maturity, on at least 30 days, but not more than 60 days, prior notice mailed or electronically delivered to the registered address of each holder of record of the 2021 Notes, at a redemption price, calculated by the Issuer, equal to the greater of:
(i) 100% of the principal amount of the 2021 Notes being redeemed; or
(ii) the sum of the present values of the remaining scheduled payments of principal and interest on the notes to be redeemed (exclusive of interest accrued to the date of redemption) discounted to the date of redemption on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at a rate equal to the sum of the applicable Treasury Rate (as defined in the 2021 Notes) plus 10 basis points,
plus, in each case, accrued and unpaid interest thereon to |
6
the date of redemption. | ||
Conversion: | None | |
Sinking Fund: | None | |
Denominations: | $2,000 and any integral multiple of $1,000 in excess thereof. | |
Miscellaneous: | The terms of the 2021 Notes shall include such other terms as are set forth in the form of 2021 Notes attached hereto as Exhibit E and in the Indenture. In addition, the global notes for the 2021 Notes shall include the following language: To the extent the terms of the Indenture and this Note are inconsistent, the terms of the Indenture shall govern. |
6. | 2024 Notes |
Title: | 3.45% Notes due 2024 | |
Issuer: | Apple Inc. | |
Trustee, Registrar, Transfer Agent, Authenticating Agent, and Paying Agent: | The Bank of New York Mellon Trust Company, N.A. | |
Aggregate Principal Amount at Maturity. | $2,500,000,000 | |
Principal Payment Date: | May 6, 2024 | |
Interest: | 3.45% per annum | |
Date from which Interest will Accrue: | May 6, 2014 | |
Interest Payment Dates: | May 6 and November 6, beginning on November 6, 2014 | |
Redemption: | The Issuer may at its option redeem the 2024 Notes in whole or in part, at any time or from time to time prior to their maturity, on at least 30 days, but not more than 60 days, prior notice mailed or electronically delivered to the registered address of each holder of record of the 2024 Notes, at a redemption price, calculated by the Issuer, equal to the greater of: |
7
(i) 100% of the principal amount of the 2024 Notes being redeemed; or
(ii) the sum of the present values of the remaining scheduled payments of principal and interest on the notes to be redeemed (exclusive of interest accrued to the date of redemption) discounted to the date of redemption on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at a rate equal to the sum of the applicable Treasury Rate (as defined in the 2024 Notes) plus 15 basis points,
plus, in each case, accrued and unpaid interest thereon to the date of redemption. | ||
Conversion: | None | |
Sinking Fund: | None | |
Denominations: | $2,000 and any integral multiple of $1,000 in excess thereof. | |
Miscellaneous: | The terms of the 2024 Notes shall include such other terms as are set forth in the form of 2024 Notes attached hereto as Exhibit F and in the Indenture. In addition, the global notes for the 2024 Notes shall include the following language: To the extent the terms of the Indenture and this Note are inconsistent, the terms of the Indenture shall govern. |
7. | 2044 Notes |
Title: | 4.45% Notes due 2044 | |
Issuer: | Apple Inc. | |
Trustee, Registrar, Transfer Agent, Authenticating Agent, and Paying Agent: | The Bank of New York Mellon Trust Company, N.A. | |
Aggregate Principal Amount at Maturity. | $1,000,000,000 | |
Principal Payment Date: | May 6, 2044 | |
Interest: | 4.45% per annum |
8
Date from which Interest will Accrue: | May 6, 2014 | |
Interest Payment Dates: | May 6 and November 6, beginning on November 6, 2014 | |
Redemption: | The Issuer may at its option redeem the 2044 Notes in whole or in part, at any time or from time to time prior to their maturity, on at least 30 days, but not more than 60 days, prior notice mailed or electronically delivered to the registered address of each holder of record of the 2044 Notes, at a redemption price, calculated by the Issuer, equal to the greater of:
(i) 100% of the principal amount of the 2044 Notes being redeemed; or
(ii) the sum of the present values of the remaining scheduled payments of principal and interest on the notes to be redeemed (exclusive of interest accrued to the date of redemption) discounted to the date of redemption on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at a rate equal to the sum of the applicable Treasury Rate (as defined in the 2044 Notes) plus 15 basis points,
plus, in each case, accrued and unpaid interest thereon to the date of redemption. | |
Conversion: | None | |
Sinking Fund: | None | |
Denominations: | $2,000 and any integral multiple of $1,000 in excess thereof. | |
Miscellaneous: | The terms of the 2044 Notes shall include such other terms as are set forth in the form of 2044 Notes attached hereto as Exhibit G and in the Indenture. In addition, the global notes for the 2044 Notes shall include the following language: To the extent the terms of the Indenture and this Note are inconsistent, the terms of the Indenture shall govern. |
Subject to the covenants described in the Indenture, as amended or supplemented from time to time, the Issuer shall be entitled, subject to authorization by the Board of Directors of the Issuer and an Officers Certificate, to issue additional notes from time to time under each series of notes issued hereby. Any such additional notes of a series shall have identical terms as the
9
Floating Rate Notes due 2017, Floating Rate Notes due 2019, 2017 Notes, 2019 Notes, 2021 Notes, 2024 Notes and 2044 Notes, as the case may be, issued on the issue date, other than with respect to the date of issuance and the issue price (together the Additional Notes). Any Additional Notes will be issued in accordance with Section 301 of the Indenture.
The officer has read and understands the provisions of the Indenture and the definitions relating thereto. The statements made in this Officers Certificate are based upon the examination of the provisions of the Indenture and upon the relevant books and records of the Issuer. In such officers opinion, they have made such examination or investigation as is necessary to enable such officer to express an informed opinion as to whether or not the covenants and conditions of such Indenture relating to the issuance, authentication and delivery of the Notes have been complied with. In such officers opinion, such covenants and conditions have been complied with.
10
IN WITNESS WHEREOF, the undersigned officer of the Issuer has duly executed this certificate as of May 6, 2014.
APPLE INC.
By: /s/ Gary Wipfler
Gary Wipfler
Vice President and Corporate Treasurer
EXHIBIT A
FORM OF FLOATING RATE NOTE DUE 2017
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (DTC), TO THE ISSUER 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 IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS A BENEFICIAL INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY ARE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSORS NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY ARE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE REFERRED TO HEREIN 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.
APPLE INC.
Floating Rate Note due 2017
No. |
CUSIP No.: 037833 AN0 | |
ISIN No.: US037833AN08 | ||
$500,000,000 |
APPLE INC., a California corporation (the Issuer), for value received promises to pay to CEDE & CO. or registered assigns the principal sum of 500,000,000 DOLLARS on May 5, 2017.
Interest Payment Dates: February 6, May 6, August 6 and November 6, beginning on August 6, 2014, and on the principal payment date (each, an Interest Payment Date).
Interest Record Dates: the Business Day preceding the Interest Payment Date (the Interest Record Date).
Reference is made to the further provisions of this Note contained herein, which will for all purposes have the same effect as if set forth at this place.
IN WITNESS WHEREOF, the Issuer has caused this Note to be signed manually or by facsimile by its duly authorized officer.
APPLE INC. | ||
By: |
| |
Name: | ||
Title: |
This is one of the Securities of the series designated therein and referred to in the within-mentioned Indenture.
Dated: May 6, 2014
The Bank of New York Mellon Trust Company, N.A., as Trustee | ||
By: |
| |
Authorized Signatory |
(REVERSE OF NOTE)
APPLE INC.
Floating Rate Note due 2017
1. | Interest |
Apple Inc. (the Issuer) promises to pay interest on the principal amount of this Note at the rate per annum described below. Cash interest on the Notes will accrue from May 6, 2014, or the most recent Interest Payment Date to which payment has been paid or provided for; provided, that if an Interest Payment Date for this Note falls on a day that is not a Business Day the Interest Payment Date shall be postponed to the next succeeding Business Day, unless such next succeeding Business Day would be in the following month, in which case the Interest Payment Date shall be the immediately preceding Business Day. Interest on this Note will be paid to but excluding the relevant Interest Payment Date. The Issuer will pay interest quarterly in arrears on each Interest Payment Date, commencing August 6, 2014. Interest will be computed on the basis of the actual number of days in an interest period and a 360-day year.
The Issuer shall pay interest on overdue principal from time to time on demand at the rate borne by the Notes and on overdue installments of interest (without regard to any applicable grace periods) to the extent lawful.
The interest rate for each interest period will be determined by the Trustee (as defined below) or its successor. The interest rate for a particular interest period will be a per annum rate equal to three-month LIBOR as determined on the interest determination date plus 0.07%. The interest determination date for an interest period will be the second London business day preceding the first day of such interest period.
A London business day is a day on which dealings in deposits in U.S. dollars are transacted in the London interbank market.
On any interest determination date, LIBOR will be equal to the offered rate for deposits in U.S. dollars having an index maturity of three months, as such rate appears on the Reuters Page LIBOR 01 (or on such other page as may replace Reuters Page LIBOR 01 on that service, or, if on such interest determination date, the three-month LIBOR does not appear or is not available on the designated Reuters Page, the Bloomberg L.P. page BBAM or such other page as may replace the Bloomberg L.P. page BBAM on that service) as of approximately 11:00 a.m., London time, on such interest determination date.
If no offered rate appears on Reuters Page LIBOR 01 or Bloomberg L.P. page BBAM on an interest determination date at approximately 11:00 a.m., London time, then the Issuer (after consultation with the Trustee) will select four major reference banks in the London interbank market and the Trustee shall request each of their principal London offices to provide a quotation of the rate at which three-month deposits in U.S. dollars in amounts of at least $1,000,000 are offered by it to prime banks in the London interbank market, on that date and at that time, that is representative of single transactions at that time. If at least two quotations are provided, LIBOR will be the arithmetic average of the quotations provided. Otherwise, the Issuer (after
consultation with the Trustee) will select three major reference banks in New York City and shall request each of them to provide a quotation of the rate offered by them at approximately 11:00 a.m., New York City time, on the interest determination date for loans in U.S. dollars to leading European banks having an index maturity of three months for the applicable interest period in an amount of at least $1,000,000 that is representative of single transactions at that time. If three quotations are provided, LIBOR will be the arithmetic average of the quotations provided. If the banks selected by the Issuer (after consultation with the Trustee) are not providing quotations in the manner specified above, the rate of LIBOR for the next interest period will be set equal to the three-month LIBOR in effect prior to such interest determination date.
All percentages resulting from any calculation of any interest rate for this Note will be rounded, if necessary, to the nearest one hundred thousandth of a percentage point, with five one-millionths of a percentage point rounded upward (e.g., 3.876545% (or .03876545) would be rounded to 3.87655% (or .0387655)), and all U.S. dollar amounts will be rounded to the nearest cent, with one-half cent being rounded upward. Each calculation of the interest rate on this Note by the Trustee will (in the absence of manifest error) be final and binding on the Holders of this Note and the Issuer.
Upon written request from any Holder, the Trustee will provide the interest rate in effect on the Notes for the current interest period and, if it has been determined, the interest rate to be in effect for the next interest period.
The interest rate on this Note will in no event be higher than the maximum rate permitted by New York law as the same may be modified by United States law of general application.
2. | Paying Agent. |
Initially, The Bank of New York Mellon Trust Company, N.A. (the Trustee) will act as paying agent. The Issuer may change any paying agent without notice to the Holders.
3. | Indenture; Defined Terms. |
This Note is one of the Floating Rate Notes due 2017 (the Notes) issued under an indenture dated as of April 29, 2013 (the Base Indenture) by and between the Issuer and the Trustee, as supplemented by an Officers Certificate dated May 6, 2014, issued pursuant to Section 301 of the Indenture (together with the Base Indenture, the Indenture). This Note is a Security and the Notes are Securities under the Indenture.
For purposes of this Note, unless otherwise defined herein, capitalized terms herein are used as defined in the Indenture. The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act as in effect on the date on which the Indenture was qualified under the Trust Indenture Act. Notwithstanding anything to the contrary herein, the Notes are subject to all such terms, and holders of Notes are referred to the Indenture and the Trust Indenture Act for a statement of them.
To the extent the terms of the Indenture and this Note are inconsistent, the terms of the Indenture shall govern.
4. | Denominations; Transfer; Exchange. |
The Notes are in registered form, without coupons, in denominations of $2,000 and any integral multiple of $1,000 in excess thereof. A Holder shall register the transfer or exchange of Notes in accordance with the Indenture. The Issuer may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and to pay certain transfer taxes or similar governmental charges payable in connection therewith as permitted by the Indenture.
5. | Amendment; Supplement; Waiver. |
Subject to certain exceptions, the Notes and the provisions of the Indenture relating to the Notes may be amended or supplemented and any existing default or Event of Default or compliance with certain provisions may be waived with the written consent of the Holders of at least a majority in aggregate principal amount of each series of Outstanding Securities (including the Notes) under the Indenture that is affected by such amendment, supplement or waiver (voting as a single class). Without notice to or consent of any Holder, the parties thereto may amend or supplement the Indenture and the Notes to, among other things, cure any ambiguity, defect or inconsistency or comply with any requirements of the Commission in connection with the qualification of the Indenture under the Trust Indenture Act, or make any other change that does not adversely affect the rights of any Holder of a Note.
6. | Defaults and Remedies. |
If an Event of Default (other than certain bankruptcy Events of Default with respect to the Issuer) under the Indenture occurs with respect to the Notes and is continuing, then the Trustee may and, at the direction of the Holders of at least 25% in principal amount of the outstanding Notes, shall by written notice, require the Issuer to repay immediately the entire principal amount of the Outstanding Notes, together with all accrued and unpaid interest and premium, if any. If a bankruptcy Event of Default with respect to the Issuer occurs and is continuing, then the entire principal amount of the Outstanding Notes together with all accrued and unpaid interest and premium, if any, will automatically become due immediately and payable without any declaration or other act on the part of the Trustee or any Holder. Holders of Notes may not enforce the Indenture or the Notes except as provided in the Indenture. The Trustee is not obligated to enforce the Indenture or the Notes unless it has received indemnity as it reasonably requires. The Indenture permits, subject to certain limitations therein provided, Holders of a majority in aggregate principal amount of the Notes then outstanding to direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders of Notes notice of certain continuing defaults or Events of Default if it determines that withholding notice is not opposed to their interest.
7. | Authentication. |
This Note shall not be valid until the Trustee manually signs the certificate of authentication on this Note.
8. | Abbreviations and Defined Terms. |
Customary abbreviations may be used in the name of a Holder of a Note 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 U/G/M/A (= Uniform Gifts to Minors Act).
9. | CUSIP Numbers. |
Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Issuer has caused CUSIP numbers to be printed on the Notes as a convenience to the Holders of the Notes. No representation is made as to the accuracy of such numbers as printed on the Notes and reliance may be placed only on the other identification numbers printed hereon.
10. | Governing Law. |
The Indenture and the Notes shall be governed by, and construed in accordance with, the law of the State of New York.
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
(Print or type assignees name, address and zip code)
(Insert assignees soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Note on the books of the Issuer. The agent may substitute another to act for him.
Date: Your Signature:
Sign exactly as your name appears on the other side of this Note.
| ||||||
Signature | ||||||
Signature Guarantee: | ||||||
|
| |||||
Signature must be guaranteed |
Signature |
Signatures must be guaranteed by an eligible guarantor institution meeting the requirements of the Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (STAMP) or such other signature guarantee program as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the United States Securities Exchange Act of 1934, as amended.
SCHEDULE OF EXCHANGES OF NOTES
The following exchanges of a part of this Global Note for physical Notes or a part of another Global Note have been made:
Date of Exchange |
Amount of decrease in principal amount of this Global Note |
Amount of increase in principal amount of this Global Note |
Principal amount of
this Global Note following such decrease (or increase) |
Signature of authorized officer of Trustee |
EXHIBIT B
FORM OF FLOATING RATE NOTE DUE 2019
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (DTC), TO THE ISSUER 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 IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS A BENEFICIAL INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY ARE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSORS NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY ARE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE REFERRED TO HEREIN 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.
APPLE INC.
Floating Rate Note due 2019
No. |
CUSIP No.: 037833 AP5 | |
ISIN No.: US037833AP55 | ||
$500,000,000 |
APPLE INC., a California corporation (the Issuer), for value received promises to pay to CEDE & CO. or registered assigns the principal sum of 500,000,000 DOLLARS on May 6, 2019.
Interest Payment Dates: February 6, May 6, August 6 and November 6 (each, an Interest Payment Date), beginning on August 6, 2014.
Interest Record Dates: the Business Day preceding the Interest Payment Date (the Interest Record Date).
Reference is made to the further provisions of this Note contained herein, which will for all purposes have the same effect as if set forth at this place.
IN WITNESS WHEREOF, the Issuer has caused this Note to be signed manually or by facsimile by its duly authorized officer.
APPLE INC. | ||
By: |
| |
Name: | ||
Title: |
This is one of the Securities of the series designated therein and referred to in the within-mentioned Indenture.
Dated: May 6, 2014
The Bank of New York Mellon Trust Company, N.A., as Trustee | ||
By: |
| |
Authorized Signatory |
(REVERSE OF NOTE)
APPLE INC.
Floating Rate Note due 2019
1. | Interest |
Apple Inc. (the Issuer) promises to pay interest on the principal amount of this Note at the rate per annum described below. Cash interest on the Notes will accrue from May 6, 2014, or the most recent Interest Payment Date to which payment has been paid or provided for; provided, that if an Interest Payment Date for this Note falls on a day that is not a Business Day the Interest Payment Date shall be postponed to the next succeeding Business Day, unless such next succeeding Business Day would be in the following month, in which case the Interest Payment Date shall be the immediately preceding Business Day. Interest on this Note will be paid to but excluding the relevant Interest Payment Date. The Issuer will pay interest quarterly in arrears on each Interest Payment Date, commencing August 6, 2014. Interest will be computed on the basis of the actual number of days in an interest period and a 360-day year.
The Issuer shall pay interest on overdue principal from time to time on demand at the rate borne by the Notes and on overdue installments of interest (without regard to any applicable grace periods) to the extent lawful.
The interest rate for each interest period will be determined by the Trustee (as defined below) or its successor. The interest rate for a particular interest period will be a per annum rate equal to three-month LIBOR as determined on the interest determination date plus 0.30%. The interest determination date for an interest period will be the second London business day preceding the first day of such interest period.
A London business day is a day on which dealings in deposits in U.S. dollars are transacted in the London interbank market.
On any interest determination date, LIBOR will be equal to the offered rate for deposits in U.S. dollars having an index maturity of three months, as such rate appears on the Reuters Page LIBOR 01 (or on such other page as may replace Reuters Page LIBOR 01 on that service, or, if on such interest determination date, the three-month LIBOR does not appear or is not available on the designated Reuters Page, the Bloomberg L.P. page BBAM or such other page as may replace the Bloomberg L.P. page BBAM on that service) as of approximately 11:00 a.m., London time, on such interest determination date.
If no offered rate appears on Reuters Page LIBOR 01 or Bloomberg L.P. page BBAM on an interest determination date at approximately 11:00 a.m., London time, then the Issuer (after consultation with the Trustee) will select four major reference banks in the London interbank market and the Trustee shall request each of their principal London offices to provide a quotation of the rate at which three-month deposits in U.S. dollars in amounts of at least $1,000,000 are offered by it to prime banks in the London interbank market, on that date and at that time, that is representative of single transactions at that time. If at least two quotations are provided, LIBOR will be the arithmetic average of the quotations provided. Otherwise, the Issuer (after
consultation with the Trustee) will select three major reference banks in New York City and shall request each of them to provide a quotation of the rate offered by them at approximately 11:00 a.m., New York City time, on the interest determination date for loans in U.S. dollars to leading European banks having an index maturity of three months for the applicable interest period in an amount of at least $1,000,000 that is representative of single transactions at that time. If three quotations are provided, LIBOR will be the arithmetic average of the quotations provided. If the banks selected by the Issuer (after consultation with the Trustee) are not providing quotations in the manner specified above, the rate of LIBOR for the next interest period will be set equal to the three-month LIBOR in effect prior to such interest determination date.
All percentages resulting from any calculation of any interest rate for this Note will be rounded, if necessary, to the nearest one hundred thousandth of a percentage point, with five one-millionths of a percentage point rounded upward (e.g., 3.876545% (or .03876545) would be rounded to 3.87655% (or .0387655)), and all U.S. dollar amounts will be rounded to the nearest cent, with one-half cent being rounded upward. Each calculation of the interest rate on this Note by the Trustee will (in the absence of manifest error) be final and binding on the Holders of this Note and the Issuer.
Upon written request from any Holder, the Trustee will provide the interest rate in effect on the Notes for the current interest period and, if it has been determined, the interest rate to be in effect for the next interest period.
The interest rate on this Note will in no event be higher than the maximum rate permitted by New York law as the same may be modified by United States law of general application.
2. | Paying Agent. |
Initially, The Bank of New York Mellon Trust Company, N.A. (the Trustee) will act as paying agent. The Issuer may change any paying agent without notice to the Holders.
3. | Indenture; Defined Terms. |
This Note is one of the Floating Rate Notes due 2019 (the Notes) issued under an indenture dated as of April 29, 2013 (the Base Indenture) by and between the Issuer and the Trustee, as supplemented by an Officers Certificate dated May 6, 2014, issued pursuant to Section 301 of the Indenture (together with the Base Indenture, the Indenture). This Note is a Security and the Notes are Securities under the Indenture.
For purposes of this Note, unless otherwise defined herein, capitalized terms herein are used as defined in the Indenture. The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act as in effect on the date on which the Indenture was qualified under the Trust Indenture Act. Notwithstanding anything to the contrary herein, the Notes are subject to all such terms, and holders of Notes are referred to the Indenture and the Trust Indenture Act for a statement of them.
To the extent the terms of the Indenture and this Note are inconsistent, the terms of the Indenture shall govern.
4. | Denominations; Transfer; Exchange. |
The Notes are in registered form, without coupons, in denominations of $2,000 and any integral multiple of $1,000 in excess thereof. A Holder shall register the transfer or exchange of Notes in accordance with the Indenture. The Issuer may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and to pay certain transfer taxes or similar governmental charges payable in connection therewith as permitted by the Indenture.
5. | Amendment; Supplement; Waiver. |
Subject to certain exceptions, the Notes and the provisions of the Indenture relating to the Notes may be amended or supplemented and any existing default or Event of Default or compliance with certain provisions may be waived with the written consent of the Holders of at least a majority in aggregate principal amount of each series of Outstanding Securities (including the Notes) under the Indenture that is affected by such amendment, supplement or waiver (voting as a single class). Without notice to or consent of any Holder, the parties thereto may amend or supplement the Indenture and the Notes to, among other things, cure any ambiguity, defect or inconsistency or comply with any requirements of the Commission in connection with the qualification of the Indenture under the Trust Indenture Act, or make any other change that does not adversely affect the rights of any Holder of a Note.
6. | Defaults and Remedies. |
If an Event of Default (other than certain bankruptcy Events of Default with respect to the Issuer) under the Indenture occurs with respect to the Notes and is continuing, then the Trustee may and, at the direction of the Holders of at least 25% in principal amount of the outstanding Notes, shall by written notice, require the Issuer to repay immediately the entire principal amount of the Outstanding Notes, together with all accrued and unpaid interest and premium, if any. If a bankruptcy Event of Default with respect to the Issuer occurs and is continuing, then the entire principal amount of the Outstanding Notes together with all accrued and unpaid interest and premium, if any, will automatically become due immediately and payable without any declaration or other act on the part of the Trustee or any Holder. Holders of Notes may not enforce the Indenture or the Notes except as provided in the Indenture. The Trustee is not obligated to enforce the Indenture or the Notes unless it has received indemnity as it reasonably requires. The Indenture permits, subject to certain limitations therein provided, Holders of a majority in aggregate principal amount of the Notes then outstanding to direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders of Notes notice of certain continuing defaults or Events of Default if it determines that withholding notice is not opposed to their interest.
7. | Authentication. |
This Note shall not be valid until the Trustee manually signs the certificate of authentication on this Note.
8. | Abbreviations and Defined Terms. |
Customary abbreviations may be used in the name of a Holder of a Note 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 U/G/M/A (= Uniform Gifts to Minors Act).
9. | CUSIP Numbers. |
Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Issuer has caused CUSIP numbers to be printed on the Notes as a convenience to the Holders of the Notes. No representation is made as to the accuracy of such numbers as printed on the Notes and reliance may be placed only on the other identification numbers printed hereon.
10. | Governing Law. |
The Indenture and the Notes shall be governed by, and construed in accordance with, the law of the State of New York.
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
(Print or type assignees name, address and zip code)
(Insert assignees soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Note on the books of the Issuer. The agent may substitute another to act for him.
Date: Your Signature:
Sign exactly as your name appears on the other side of this Note.
| ||||||
Signature | ||||||
Signature Guarantee: | ||||||
|
| |||||
Signature must be guaranteed |
Signature |
Signatures must be guaranteed by an eligible guarantor institution meeting the requirements of the Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (STAMP) or such other signature guarantee program as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the United States Securities Exchange Act of 1934, as amended.
SCHEDULE OF EXCHANGES OF NOTES
The following exchanges of a part of this Global Note for physical Notes or a part of another Global Note have been made:
Date of Exchange |
Amount of decrease in principal amount of this Global Note |
Amount of increase in principal amount of this Global Note |
Principal amount of
this Global Note following such decrease (or increase) |
Signature of authorized officer of Trustee |
EXHIBIT C
FORM OF NOTE DUE 2017
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (DTC), TO THE ISSUER 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 IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS A BENEFICIAL INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY ARE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSORS NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY ARE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE REFERRED TO HEREIN 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.
APPLE INC. 1.05%
Note due 2017
No. |
CUSIP No.: 037833 AM2 | |
ISIN No.: US037833AM25 | ||
$500,000,000 |
APPLE INC., a California corporation (the Issuer), for value received promises to pay to CEDE & CO. or registered assigns the principal sum of 500,000,000 DOLLARS on May 5, 2017.
Interest Payment Dates: May 6 and November 6, beginning on November 6, 2014, and on the principal payment date (each, an Interest Payment Date).
Interest Record Dates: April 22 and October 23 (each, an Interest Record Date).
Reference is made to the further provisions of this Note contained herein, which will for all purposes have the same effect as if set forth at this place.
IN WITNESS WHEREOF, the Issuer has caused this Note to be signed manually or by facsimile by its duly authorized officer.
APPLE INC. | ||
By: |
| |
Name: | ||
Title: |
This is one of the Securities of the series designated therein and referred to in the within-mentioned Indenture.
Dated: May 6, 2014
The Bank of New York Mellon Trust Company, N.A., as Trustee | ||
By: |
| |
Authorized Signatory |
(REVERSE OF NOTE)
APPLE INC.
1.05% Note due 2017
1. Interest
Apple Inc. (the Issuer) promises to pay interest on the principal amount of this Note at the rate per annum described above. Cash interest on the Notes will accrue from the most recent date to which interest has been paid; or, if no interest has been paid, from May 6, 2014. Interest on this Note will be paid to but excluding the relevant Interest Payment Date. The Issuer will pay interest semi-annually in arrears on each Interest Payment Date, commencing November 6, 2014. Interest will be computed on the basis of a 360-day year consisting of twelve 30-day months in a manner consistent with Rule 11620(b) of the FINRA Uniform Practice Code.
The Issuer shall pay interest on overdue principal from time to time on demand at the rate borne by the Notes and on overdue installments of interest (without regard to any applicable grace periods) to the extent lawful.
2. Paying Agent.
Initially, The Bank of New York Mellon Trust Company, N.A. (the Trustee) will act as paying agent. The Issuer may change any paying agent without notice to the Holders.
3. Indenture; Defined Terms.
This Note is one of the 1.05% Notes due 2017 (the Notes) issued under an indenture dated as of April 29, 2013 (the Base Indenture) by and between the Issuer and the Trustee, as supplemented by an Officers Certificate dated May 6, 2014, issued pursuant to Section 301 of the Indenture (together with the Base Indenture, the Indenture). This Note is a Security and the Notes are Securities under the Indenture.
For purposes of this Note, unless otherwise defined herein, capitalized terms herein are used as defined in the Indenture. The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act as in effect on the date on which the Indenture was qualified under the Trust Indenture Act. Notwithstanding anything to the contrary herein, the Notes are subject to all such terms, and holders of Notes are referred to the Indenture and the Trust Indenture Act for a statement of them.
To the extent the terms of the Indenture and this Note are inconsistent, the terms of the Indenture shall govern.
4. Denominations; Transfer; Exchange.
The Notes are in registered form, without coupons, in denominations of $2,000 and any integral multiple of $1,000 in excess thereof. A Holder shall register the transfer or exchange of Notes in accordance with the Indenture. The Issuer may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents and to pay certain transfer taxes or similar governmental charges payable in connection therewith as permitted by the Indenture. The Issuer need not issue, authenticate, register the transfer of or exchange any Notes or portions thereof for a period of fifteen (15) days before the mailing of a notice of redemption, nor need the Issuer register the transfer or exchange of any Note selected for redemption in whole or in part except the unredeemed portion of any Note being redeemed in part.
5. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Notes and the provisions of the Indenture relating to the Notes may be amended or supplemented and any existing default or Event of Default or compliance with certain provisions may be waived with the written consent of the Holders of at least a majority in aggregate principal amount of each series of Outstanding Securities (including the Notes) under the Indenture that is affected by such amendment, supplement or waiver (voting as a single class). Without notice to or consent of any Holder, the parties thereto may amend or supplement the Indenture and the Notes to, among other things, cure any ambiguity, defect or inconsistency or comply with any requirements of the Commission in connection with the qualification of the Indenture under the Trust Indenture Act, or make any other change that does not adversely affect the rights of any Holder of a Note.
6. Redemption.
The Issuer may at its option redeem any of the Notes in whole or in part at any time, each at a redemption price calculated by the Issuer equal to the greater of:
(i) 100% of the principal amount of the Notes to be redeemed; and
(ii) the sum of the present values of the remaining scheduled payments of principal and interest on the notes to be redeemed (exclusive of interest accrued to the date of redemption) discounted to the date of redemption on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at a rate equal to the sum of the applicable Treasury Rate (as defined below) plus 5 basis points, plus in each case accrued and unpaid interest thereon to the date of redemption.
Notwithstanding the foregoing, installments of interest on Notes that are due and payable on interest payment dates falling on or prior to a redemption date will be payable on the interest payment date to the registered Holders as of the close of business on the relevant record date according to the Notes and the Indenture.
Comparable Treasury Issue means the United States Treasury security selected by an Independent Investment Banker as having a maturity comparable to the remaining term (Remaining Life) 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, (1) the average of the Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and lowest Reference Treasury Dealer Quotations, or (2) if the Independent
Investment Banker obtains fewer than four such Reference Treasury Dealer Quotations, the average of all such quotations.
Independent Investment Banker means one of the Reference Treasury Dealers that the Issuer shall appoint to act as the Independent Investment Banker from time to time.
Reference Treasury Dealer means (1) each of Goldman, Sachs & Co. and Deutsche Bank Securities Inc. and their respective successors, unless any of them ceases to be a primary U.S. Government securities dealer in New York City (a Primary Treasury Dealer), in which case the Issuer will substitute another Primary Treasury Dealer and (2) any other Primary Treasury Dealer the Issuer shall select.
Reference Treasury Dealer Quotations means, with respect to each Reference Treasury Dealer and any redemption date, the average, as determined by the Independent Investment Banker, of the bid and asked prices for the applicable Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Independent Investment Banker by such Reference Treasury Dealer at 5:00 p.m., New York City time, on the third business day preceding such redemption date.
Treasury Rate means, with respect to any redemption date, the rate per year equal to: (1) the yield, under the heading which represents the average for the immediately preceding week, appearing in the most recently published statistical release designated H.15(519) or any successor publication which is published weekly by the Board of Governors of the Federal Reserve System and which establishes yields on actively traded United States Treasury securities adjusted to constant maturity under the caption Treasury Constant Maturities, for the maturity corresponding to the applicable Comparable Treasury Issue; provided that, if no maturity is within three months before or after the Remaining Life of the notes to be redeemed, yields for the two published maturities most closely corresponding to the applicable Comparable Treasury Issue will be determined and the Treasury Rate will be interpolated or extrapolated from those yields on a straight line basis, rounding to the nearest month; or (2) if such release (or any successor release) is not published during the week preceding the calculation date or does not contain such yields, the rate per year equal to the semiannual equivalent yield to maturity of the applicable Comparable Treasury Issue, calculated using a price for the applicable Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the related Comparable Treasury Price for such redemption date. The Treasury Rate will be calculated by the Issuer on the third business day preceding the redemption date. As used in the immediately preceding sentence and in the definition of Reference Treasury Dealer Quotations above, the term business day means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or obligated by law or executive order to close.
The provisions of Article XI of the Indenture shall apply to any redemption of the Notes.
Notice of any redemption will be mailed or electronically delivered at least 30 days but not more than 60 days before the redemption date to each Holder of record of the Notes to be redeemed at its registered address. Unless the Issuer defaults in 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. If less than all of the Notes are to be redeemed, the Notes to be redeemed shall be selected by the applicable procedures of the Depositary, in the case of Notes represented by a Global Note, or by lot, in the case of Notes that are not represented by a Global Note.
7. Defaults and Remedies.
If an Event of Default (other than certain bankruptcy Events of Default with respect to the Issuer) under the Indenture occurs with respect to the Notes and is continuing, then the Trustee may and, at the direction of the Holders of at least 25% in principal amount of the outstanding Notes, shall by written notice, require the Issuer to repay immediately the entire principal amount of the Outstanding Notes, together with all accrued and unpaid interest and premium, if any. If a bankruptcy Event of Default with respect to the Issuer occurs and is continuing, then the entire principal amount of the Outstanding Notes together with all accrued and unpaid interest and premium, if any, will automatically become due immediately and payable without any declaration or other act on the part of the Trustee or any Holder. Holders of Notes may not enforce the Indenture or the Notes except as provided in the Indenture. The Trustee is not obligated to enforce the Indenture or the Notes unless it has received indemnity as it reasonably requires. The Indenture permits, subject to certain limitations therein provided, Holders of a majority in aggregate principal amount of the Notes then outstanding to direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders of Notes notice of certain continuing defaults or Events of Default if it determines that withholding notice is not opposed to their interest.
8. Authentication.
This Note shall not be valid until the Trustee manually signs the certificate of authentication on this Note.
9. Abbreviations and Defined Terms.
Customary abbreviations may be used in the name of a Holder of a Note 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 U/G/M/A (= Uniform Gifts to Minors Act).
10. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Issuer has caused CUSIP numbers to be printed on the Notes as a convenience to the Holders of the Notes. No representation is made as to the accuracy of such numbers as printed on the Notes and reliance may be placed only on the other identification numbers printed hereon.
11. Governing Law.
The Indenture and the Notes shall be governed by, and construed in accordance with, the law of the State of New York.
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
(Print or type assignees name, address and zip code)
(Insert assignees soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Note on the books of the Issuer. The agent may substitute another to act for him.
Date: Your Signature:
Sign exactly as your name appears on the other side of this Note.
| ||||
Signature |
Signature Guarantee:
|
| |||
Signature must be guaranteed |
Signature |
Signatures must be guaranteed by an eligible guarantor institution meeting the requirements of the Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (STAMP) or such other signature guarantee program as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the United States Securities Exchange Act of 1934, as amended.
SCHEDULE OF EXCHANGES OF NOTES
The following exchanges of a part of this Global Note for physical Notes or a part of another Global Note have been made:
Date of Exchange |
Amount of decrease in principal amount of this Global Note |
Amount of increase in principal amount of this Global Note |
Principal amount of this Global Note following such decrease (or increase) |
Signature of authorized officer of Trustee |
EXHIBIT D
FORM OF NOTE DUE 2019
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (DTC), TO THE ISSUER 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 IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS A BENEFICIAL INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY ARE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSORS NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY ARE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE REFERRED TO HEREIN 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.
APPLE INC.
2.10% Note due 2019
No. |
CUSIP No.: 037833 AQ3 | |
ISIN No.: US037833AQ39 | ||
$500,000,000 |
APPLE INC., a California corporation (the Issuer), for value received promises to pay to CEDE & CO. or registered assigns the principal sum of 500,000,000 DOLLARS on May 6, 2019.
Interest Payment Dates: May 6 and November 6 (each, an Interest Payment Date), beginning on November 6, 2014.
Interest Record Dates: April 22 and October 23 (each, an Interest Record Date).
Reference is made to the further provisions of this Note contained herein, which will for all purposes have the same effect as if set forth at this place.
IN WITNESS WHEREOF, the Issuer has caused this Note to be signed manually or by facsimile by its duly authorized officer.
APPLE INC. | ||
By: |
| |
Name: | ||
Title: |
This is one of the Securities of the series designated therein and referred to in the within-mentioned Indenture.
Dated: May 6, 2014
The Bank of New York Mellon Trust Company, N.A., as Trustee | ||
By: |
| |
Authorized Signatory |
(REVERSE OF NOTE)
APPLE INC.
2.10% Note due 2019
1. | Interest |
Apple Inc. (the Issuer) promises to pay interest on the principal amount of this Note at the rate per annum described above. Cash interest on the Notes will accrue from the most recent date to which interest has been paid; or, if no interest has been paid, from May 6, 2014. Interest on this Note will be paid to but excluding the relevant Interest Payment Date. The Issuer will pay interest semi-annually in arrears on each Interest Payment Date, commencing November 6, 2014. Interest will be computed on the basis of a 360-day year consisting of twelve 30-day months in a manner consistent with Rule 11620(b) of the FINRA Uniform Practice Code.
The Issuer shall pay interest on overdue principal from time to time on demand at the rate borne by the Notes and on overdue installments of interest (without regard to any applicable grace periods) to the extent lawful.
2. | Paying Agent. |
Initially, The Bank of New York Mellon Trust Company, N.A. (the Trustee) will act as paying agent. The Issuer may change any paying agent without notice to the Holders.
3. | Indenture; Defined Terms. |
This Note is one of the 2.10% Notes due 2019 (the Notes) issued under an indenture dated as of April 29, 2013 (the Base Indenture) by and between the Issuer and the Trustee, as supplemented by an Officers Certificate dated May 6, 2014, issued pursuant to Section 301 of the Indenture (together with the Base Indenture, the Indenture). This Note is a Security and the Notes are Securities under the Indenture.
For purposes of this Note, unless otherwise defined herein, capitalized terms herein are used as defined in the Indenture. The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act as in effect on the date on which the Indenture was qualified under the Trust Indenture Act. Notwithstanding anything to the contrary herein, the Notes are subject to all such terms, and holders of Notes are referred to the Indenture and the Trust Indenture Act for a statement of them.
To the extent the terms of the Indenture and this Note are inconsistent, the terms of the Indenture shall govern.
4. | Denominations; Transfer; Exchange. |
The Notes are in registered form, without coupons, in denominations of $2,000 and any integral multiple of $1,000 in excess thereof. A Holder shall register the transfer or exchange of Notes in accordance with the Indenture. The Issuer may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents and to pay certain transfer taxes or similar governmental charges payable in connection therewith as permitted by the Indenture. The Issuer need not issue, authenticate, register the transfer of or exchange any Notes or portions thereof for a period of fifteen (15) days before the mailing of a notice of redemption, nor need the Issuer register the transfer or exchange of any Note selected for redemption in whole or in part except the unredeemed portion of any Note being redeemed in part.
5. | Amendment; Supplement; Waiver. |
Subject to certain exceptions, the Notes and the provisions of the Indenture relating to the Notes may be amended or supplemented and any existing default or Event of Default or compliance with certain provisions may be waived with the written consent of the Holders of at least a majority in aggregate principal amount of each series of Outstanding Securities (including the Notes) under the Indenture that is affected by such amendment, supplement or waiver (voting as a single class). Without notice to or consent of any Holder, the parties thereto may amend or supplement the Indenture and the Notes to, among other things, cure any ambiguity, defect or inconsistency or comply with any requirements of the Commission in connection with the qualification of the Indenture under the Trust Indenture Act, or make any other change that does not adversely affect the rights of any Holder of a Note.
6. | Redemption. |
The Issuer may at its option redeem any of the Notes in whole or in part at any time, each at a redemption price calculated by the Issuer equal to the greater of:
(i) 100% of the principal amount of the Notes to be redeemed; and
(ii) the sum of the present values of the remaining scheduled payments of principal and interest on the notes to be redeemed (exclusive of interest accrued to the date of redemption) discounted to the date of redemption on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at a rate equal to the sum of the applicable Treasury Rate (as defined below) plus 10 basis points, plus in each case accrued and unpaid interest thereon to the date of redemption.
Notwithstanding the foregoing, installments of interest on Notes that are due and payable on interest payment dates falling on or prior to a redemption date will be payable on the interest payment date to the registered Holders as of the close of business on the relevant record date according to the Notes and the Indenture.
Comparable Treasury Issue means the United States Treasury security selected by an Independent Investment Banker as having a maturity comparable to the remaining term (Remaining Life) 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, (1) the average of the Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and lowest Reference Treasury Dealer Quotations, or (2) if the Independent
Investment Banker obtains fewer than four such Reference Treasury Dealer Quotations, the average of all such quotations.
Independent Investment Banker means one of the Reference Treasury Dealers that the Issuer shall appoint to act as the Independent Investment Banker from time to time.
Reference Treasury Dealer means (1) each of Goldman, Sachs & Co. and Deutsche Bank Securities Inc. and their respective successors, unless any of them ceases to be a primary U.S. Government securities dealer in New York City (a Primary Treasury Dealer), in which case the Issuer will substitute another Primary Treasury Dealer and (2) any other Primary Treasury Dealer the Issuer shall select.
Reference Treasury Dealer Quotations means, with respect to each Reference Treasury Dealer and any redemption date, the average, as determined by the Independent Investment Banker, of the bid and asked prices for the applicable Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Independent Investment Banker by such Reference Treasury Dealer at 5:00 p.m., New York City time, on the third business day preceding such redemption date.
Treasury Rate means, with respect to any redemption date, the rate per year equal to: (1) the yield, under the heading which represents the average for the immediately preceding week, appearing in the most recently published statistical release designated H.15(519) or any successor publication which is published weekly by the Board of Governors of the Federal Reserve System and which establishes yields on actively traded United States Treasury securities adjusted to constant maturity under the caption Treasury Constant Maturities, for the maturity corresponding to the applicable Comparable Treasury Issue; provided that, if no maturity is within three months before or after the Remaining Life of the notes to be redeemed, yields for the two published maturities most closely corresponding to the applicable Comparable Treasury Issue will be determined and the Treasury Rate will be interpolated or extrapolated from those yields on a straight line basis, rounding to the nearest month; or (2) if such release (or any successor release) is not published during the week preceding the calculation date or does not contain such yields, the rate per year equal to the semiannual equivalent yield to maturity of the applicable Comparable Treasury Issue, calculated using a price for the applicable Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the related Comparable Treasury Price for such redemption date. The Treasury Rate will be calculated by the Issuer on the third business day preceding the redemption date. As used in the immediately preceding sentence and in the definition of Reference Treasury Dealer Quotations above, the term business day means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or obligated by law or executive order to close.
The provisions of Article XI of the Indenture shall apply to any redemption of the Notes.
Notice of any redemption will be mailed or electronically delivered at least 30 days but not more than 60 days before the redemption date to each Holder of record of the Notes to be redeemed at its registered address. Unless the Issuer defaults in 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. If less than all of the Notes are to be redeemed, the Notes to be redeemed shall be selected by the applicable procedures of the Depositary, in the case of Notes represented by a Global Note, or by lot, in the case of Notes that are not represented by a Global Note.
7. | Defaults and Remedies. |
If an Event of Default (other than certain bankruptcy Events of Default with respect to the Issuer) under the Indenture occurs with respect to the Notes and is continuing, then the Trustee may and, at the direction of the Holders of at least 25% in principal amount of the outstanding Notes, shall by written notice, require the Issuer to repay immediately the entire principal amount of the Outstanding Notes, together with all accrued and unpaid interest and premium, if any. If a bankruptcy Event of Default with respect to the Issuer occurs and is continuing, then the entire principal amount of the Outstanding Notes together with all accrued and unpaid interest and premium, if any, will automatically become due immediately and payable without any declaration or other act on the part of the Trustee or any Holder. Holders of Notes may not enforce the Indenture or the Notes except as provided in the Indenture. The Trustee is not obligated to enforce the Indenture or the Notes unless it has received indemnity as it reasonably requires. The Indenture permits, subject to certain limitations therein provided, Holders of a majority in aggregate principal amount of the Notes then outstanding to direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders of Notes notice of certain continuing defaults or Events of Default if it determines that withholding notice is not opposed to their interest.
8. | Authentication. |
This Note shall not be valid until the Trustee manually signs the certificate of authentication on this Note.
9. | Abbreviations and Defined Terms. |
Customary abbreviations may be used in the name of a Holder of a Note 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 U/G/M/A (= Uniform Gifts to Minors Act).
10. | CUSIP Numbers. |
Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Issuer has caused CUSIP numbers to be printed on the Notes as a convenience to the Holders of the Notes. No representation is made as to the accuracy of such numbers as printed on the Notes and reliance may be placed only on the other identification numbers printed hereon.
11. | Governing Law. |
The Indenture and the Notes shall be governed by, and construed in accordance with, the law of the State of New York.
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
(Print or type assignees name, address and zip code)
(Insert assignees soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Note on the books of the Issuer. The agent may substitute another to act for him.
Date: Your Signature:
Sign exactly as your name appears on the other side of this Note.
| ||||||
Signature | ||||||
Signature Guarantee: | ||||||
|
| |||||
Signature must be guaranteed |
Signature |
Signatures must be guaranteed by an eligible guarantor institution meeting the requirements of the Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (STAMP) or such other signature guarantee program as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the United States Securities Exchange Act of 1934, as amended.
SCHEDULE OF EXCHANGES OF NOTES
The following exchanges of a part of this Global Note for physical Notes or a part of another Global Note have been made:
Date of Exchange |
Amount of decrease in principal amount of this Global Note |
Amount of increase
in Global Note |
Principal amount of
this Global Note following such decrease (or increase) |
Signature of authorized officer of Trustee |
EXHIBIT E
FORM OF NOTE DUE 2021
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (DTC), TO THE ISSUER 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 IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS A BENEFICIAL INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY ARE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSORS NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY ARE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE REFERRED TO HEREIN 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.
APPLE INC.
2.85% Note due 2021
No. |
CUSIP No.: 037833 AR1 | |
ISIN No.: US037833AR12 | ||
$500,000,000 |
APPLE INC., a California corporation (the Issuer), for value received promises to pay to CEDE & CO. or registered assigns the principal sum of 500,000,000 DOLLARS on May 6, 2021.
Interest Payment Dates: May 6 and November 6 (each, an Interest Payment Date), beginning on November 6, 2014.
Interest Record Dates: April 22 and October 23 (each, an Interest Record Date).
Reference is made to the further provisions of this Note contained herein, which will for all purposes have the same effect as if set forth at this place.
IN WITNESS WHEREOF, the Issuer has caused this Note to be signed manually or by facsimile by its duly authorized officer.
APPLE INC. | ||
By: |
| |
Name: | ||
Title: |
This is one of the Securities of the series designated therein and referred to in the within-mentioned Indenture.
Dated: May 6, 2014
The Bank of New York Mellon Trust Company, N.A., as Trustee | ||
By: |
| |
Authorized Signatory |
(REVERSE OF NOTE)
APPLE INC.
2.85% Note due 2021
1. | Interest |
Apple Inc. (the Issuer) promises to pay interest on the principal amount of this Note at the rate per annum described above. Cash interest on the Notes will accrue from the most recent date to which interest has been paid; or, if no interest has been paid, from May 6, 2014. Interest on this Note will be paid to but excluding the relevant Interest Payment Date. The Issuer will pay interest semi-annually in arrears on each Interest Payment Date, commencing November 6, 2014. Interest will be computed on the basis of a 360-day year consisting of twelve 30-day months in a manner consistent with Rule 11620(b) of the FINRA Uniform Practice Code.
The Issuer shall pay interest on overdue principal from time to time on demand at the rate borne by the Notes and on overdue installments of interest (without regard to any applicable grace periods) to the extent lawful.
2. | Paying Agent. |
Initially, The Bank of New York Mellon Trust Company, N.A. (the Trustee) will act as paying agent. The Issuer may change any paying agent without notice to the Holders.
3. | Indenture; Defined Terms. |
This Note is one of the 2.85% Notes due 2021 (the Notes) issued under an indenture dated as of April 29, 2013 (the Base Indenture) by and between the Issuer and the Trustee, as supplemented by an Officers Certificate dated May 6, 2014, issued pursuant to Section 301 of the Indenture (together with the Base Indenture, the Indenture). This Note is a Security and the Notes are Securities under the Indenture.
For purposes of this Note, unless otherwise defined herein, capitalized terms herein are used as defined in the Indenture. The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act as in effect on the date on which the Indenture was qualified under the Trust Indenture Act. Notwithstanding anything to the contrary herein, the Notes are subject to all such terms, and holders of Notes are referred to the Indenture and the Trust Indenture Act for a statement of them.
To the extent the terms of the Indenture and this Note are inconsistent, the terms of the Indenture shall govern.
4. | Denominations; Transfer; Exchange. |
The Notes are in registered form, without coupons, in denominations of $2,000 and any integral multiple of $1,000 in excess thereof. A Holder shall register the transfer or exchange of Notes in accordance with the Indenture. The Issuer may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents and to pay certain transfer taxes or similar governmental charges payable in connection therewith as permitted by the Indenture. The Issuer need not issue, authenticate, register the transfer of or exchange any Notes or portions thereof for a period of fifteen (15) days before the mailing of a notice of redemption, nor need the Issuer register the transfer or exchange of any Note selected for redemption in whole or in part except the unredeemed portion of any Note being redeemed in part.
5. | Amendment; Supplement; Waiver. |
Subject to certain exceptions, the Notes and the provisions of the Indenture relating to the Notes may be amended or supplemented and any existing default or Event of Default or compliance with certain provisions may be waived with the written consent of the Holders of at least a majority in aggregate principal amount of each series of Outstanding Securities (including the Notes) under the Indenture that is affected by such amendment, supplement or waiver (voting as a single class). Without notice to or consent of any Holder, the parties thereto may amend or supplement the Indenture and the Notes to, among other things, cure any ambiguity, defect or inconsistency or comply with any requirements of the Commission in connection with the qualification of the Indenture under the Trust Indenture Act, or make any other change that does not adversely affect the rights of any Holder of a Note.
6. | Redemption. |
The Issuer may at its option redeem any of the Notes in whole or in part at any time, each at a redemption price calculated by the Issuer equal to the greater of:
(i) 100% of the principal amount of the Notes to be redeemed; and
(ii) the sum of the present values of the remaining scheduled payments of principal and interest on the notes to be redeemed (exclusive of interest accrued to the date of redemption) discounted to the date of redemption on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at a rate equal to the sum of the applicable Treasury Rate (as defined below) plus 10 basis points, plus in each case accrued and unpaid interest thereon to the date of redemption.
Notwithstanding the foregoing, installments of interest on Notes that are due and payable on interest payment dates falling on or prior to a redemption date will be payable on the interest payment date to the registered Holders as of the close of business on the relevant record date according to the Notes and the Indenture.
Comparable Treasury Issue means the United States Treasury security selected by an Independent Investment Banker as having a maturity comparable to the remaining term (Remaining Life) 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, (1) the average of the Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and lowest Reference Treasury Dealer Quotations, or (2) if the Independent
Investment Banker obtains fewer than four such Reference Treasury Dealer Quotations, the average of all such quotations.
Independent Investment Banker means one of the Reference Treasury Dealers that the Issuer shall appoint to act as the Independent Investment Banker from time to time.
Reference Treasury Dealer means (1) each of Goldman, Sachs & Co. and Deutsche Bank Securities Inc. and their respective successors, unless any of them ceases to be a primary U.S. Government securities dealer in New York City (a Primary Treasury Dealer), in which case the Issuer will substitute another Primary Treasury Dealer and (2) any other Primary Treasury Dealer the Issuer shall select.
Reference Treasury Dealer Quotations means, with respect to each Reference Treasury Dealer and any redemption date, the average, as determined by the Independent Investment Banker, of the bid and asked prices for the applicable Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Independent Investment Banker by such Reference Treasury Dealer at 5:00 p.m., New York City time, on the third business day preceding such redemption date.
Treasury Rate means, with respect to any redemption date, the rate per year equal to: (1) the yield, under the heading which represents the average for the immediately preceding week, appearing in the most recently published statistical release designated H.15(519) or any successor publication which is published weekly by the Board of Governors of the Federal Reserve System and which establishes yields on actively traded United States Treasury securities adjusted to constant maturity under the caption Treasury Constant Maturities, for the maturity corresponding to the applicable Comparable Treasury Issue; provided that, if no maturity is within three months before or after the Remaining Life of the notes to be redeemed, yields for the two published maturities most closely corresponding to the applicable Comparable Treasury Issue will be determined and the Treasury Rate will be interpolated or extrapolated from those yields on a straight line basis, rounding to the nearest month; or (2) if such release (or any successor release) is not published during the week preceding the calculation date or does not contain such yields, the rate per year equal to the semiannual equivalent yield to maturity of the applicable Comparable Treasury Issue, calculated using a price for the applicable Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the related Comparable Treasury Price for such redemption date. The Treasury Rate will be calculated by the Issuer on the third business day preceding the redemption date. As used in the immediately preceding sentence and in the definition of Reference Treasury Dealer Quotations above, the term business day means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or obligated by law or executive order to close.
The provisions of Article XI of the Indenture shall apply to any redemption of the Notes.
Notice of any redemption will be mailed or electronically delivered at least 30 days but not more than 60 days before the redemption date to each Holder of record of the Notes to be redeemed at its registered address. Unless the Issuer defaults in 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. If less than all of the Notes are to be redeemed, the Notes to be redeemed shall be selected by the applicable procedures of the Depositary, in the case of Notes represented by a Global Note, or by lot, in the case of Notes that are not represented by a Global Note.
7. | Defaults and Remedies. |
If an Event of Default (other than certain bankruptcy Events of Default with respect to the Issuer) under the Indenture occurs with respect to the Notes and is continuing, then the Trustee may and, at the direction of the Holders of at least 25% in principal amount of the outstanding Notes, shall by written notice, require the Issuer to repay immediately the entire principal amount of the Outstanding Notes, together with all accrued and unpaid interest and premium, if any. If a bankruptcy Event of Default with respect to the Issuer occurs and is continuing, then the entire principal amount of the Outstanding Notes together with all accrued and unpaid interest and premium, if any, will automatically become due immediately and payable without any declaration or other act on the part of the Trustee or any Holder. Holders of Notes may not enforce the Indenture or the Notes except as provided in the Indenture. The Trustee is not obligated to enforce the Indenture or the Notes unless it has received indemnity as it reasonably requires. The Indenture permits, subject to certain limitations therein provided, Holders of a majority in aggregate principal amount of the Notes then outstanding to direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders of Notes notice of certain continuing defaults or Events of Default if it determines that withholding notice is not opposed to their interest.
8. | Authentication. |
This Note shall not be valid until the Trustee manually signs the certificate of authentication on this Note.
9. | Abbreviations and Defined Terms. |
Customary abbreviations may be used in the name of a Holder of a Note 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 U/G/M/A (= Uniform Gifts to Minors Act).
10. | CUSIP Numbers. |
Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Issuer has caused CUSIP numbers to be printed on the Notes as a convenience to the Holders of the Notes. No representation is made as to the accuracy of such numbers as printed on the Notes and reliance may be placed only on the other identification numbers printed hereon.
11. | Governing Law. |
The Indenture and the Notes shall be governed by, and construed in accordance with, the law of the State of New York.
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
(Print or type assignees name, address and zip code)
(Insert assignees soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Note on the books of the Issuer. The agent may substitute another to act for him.
Date: Your Signature:
Sign exactly as your name appears on the other side of this Note.
| ||||||
Signature | ||||||
Signature Guarantee: | ||||||
|
| |||||
Signature must be guaranteed |
Signature |
Signatures must be guaranteed by an eligible guarantor institution meeting the requirements of the Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (STAMP) or such other signature guarantee program as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the United States Securities Exchange Act of 1934, as amended.
SCHEDULE OF EXCHANGES OF NOTES
The following exchanges of a part of this Global Note for physical Notes or a part of another Global Note have been made:
Date of Exchange |
Amount of decrease in principal amount of this Global Note |
Amount of increase
in Global Note |
Principal amount of
this Global Note following such decrease (or increase) |
Signature of authorized officer of Trustee |
EXHIBIT F
FORM OF NOTE DUE 2024
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (DTC), TO THE ISSUER 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 IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS A BENEFICIAL INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY ARE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSORS NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY ARE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE REFERRED TO HEREIN 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.
APPLE INC.
3.45% Note due 2024
No. |
CUSIP No.: 037833 AS9 | |
ISIN No.: US037833AS94 | ||
$500,000,000 |
APPLE INC., a California corporation (the Issuer), for value received promises to pay to CEDE & CO. or registered assigns the principal sum of 500,000,000 DOLLARS on May 6, 2024.
Interest Payment Dates: May 6 and November 6 (each, an Interest Payment Date), beginning on November 6, 2014.
Interest Record Dates: April 22 and October 23 (each, an Interest Record Date).
Reference is made to the further provisions of this Note contained herein, which will for all purposes have the same effect as if set forth at this place.
IN WITNESS WHEREOF, the Issuer has caused this Note to be signed manually or by facsimile by its duly authorized officer.
APPLE INC. | ||
By: |
| |
Name: | ||
Title: |
This is one of the Securities of the series designated therein and referred to in the within-mentioned Indenture.
Dated: May 6, 2014
The Bank of New York Mellon Trust Company, N.A., as Trustee | ||
By: |
| |
Authorized Signatory |
(REVERSE OF NOTE)
APPLE INC.
3.45% Note due 2024
1. Interest
Apple Inc. (the Issuer) promises to pay interest on the principal amount of this Note at the rate per annum described above. Cash interest on the Notes will accrue from the most recent date to which interest has been paid; or, if no interest has been paid, from May 6, 2014. Interest on this Note will be paid to but excluding the relevant Interest Payment Date. The Issuer will pay interest semi-annually in arrears on each Interest Payment Date, commencing November 6, 2014. Interest will be computed on the basis of a 360-day year consisting of twelve 30-day months in a manner consistent with Rule 11620(b) of the FINRA Uniform Practice Code.
The Issuer shall pay interest on overdue principal from time to time on demand at the rate borne by the Notes and on overdue installments of interest (without regard to any applicable grace periods) to the extent lawful.
2. Paying Agent.
Initially, The Bank of New York Mellon Trust Company, N.A. (the Trustee) will act as paying agent. The Issuer may change any paying agent without notice to the Holders.
3. Indenture; Defined Terms.
This Note is one of the 3.45% Notes due 2024 (the Notes) issued under an indenture dated as of April 29, 2013 (the Base Indenture) by and between the Issuer and the Trustee, as supplemented by an Officers Certificate dated May 6, 2014, issued pursuant to Section 301 of the Indenture (together with the Base Indenture, the Indenture). This Note is a Security and the Notes are Securities under the Indenture.
For purposes of this Note, unless otherwise defined herein, capitalized terms herein are used as defined in the Indenture. The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act as in effect on the date on which the Indenture was qualified under the Trust Indenture Act. Notwithstanding anything to the contrary herein, the Notes are subject to all such terms, and holders of Notes are referred to the Indenture and the Trust Indenture Act for a statement of them.
To the extent the terms of the Indenture and this Note are inconsistent, the terms of the Indenture shall govern.
4. Denominations; Transfer; Exchange.
The Notes are in registered form, without coupons, in denominations of $2,000 and any integral multiple of $1,000 in excess thereof. A Holder shall register the transfer or exchange of Notes in accordance with the Indenture. The Issuer may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents and to pay certain transfer taxes or similar governmental charges payable in connection therewith as permitted by the Indenture. The Issuer need not issue, authenticate, register the transfer of or exchange any Notes or portions thereof for a period of fifteen (15) days before the mailing of a notice of redemption, nor need the Issuer register the transfer or exchange of any Note selected for redemption in whole or in part except the unredeemed portion of any Note being redeemed in part.
5. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Notes and the provisions of the Indenture relating to the Notes may be amended or supplemented and any existing default or Event of Default or compliance with certain provisions may be waived with the written consent of the Holders of at least a majority in aggregate principal amount of each series of Outstanding Securities (including the Notes) under the Indenture that is affected by such amendment, supplement or waiver (voting as a single class). Without notice to or consent of any Holder, the parties thereto may amend or supplement the Indenture and the Notes to, among other things, cure any ambiguity, defect or inconsistency or comply with any requirements of the Commission in connection with the qualification of the Indenture under the Trust Indenture Act, or make any other change that does not adversely affect the rights of any Holder of a Note.
6. Redemption.
The Issuer may at its option redeem any of the Notes in whole or in part at any time, each at a redemption price calculated by the Issuer equal to the greater of:
(i) 100% of the principal amount of the Notes to be redeemed; and
(ii) the sum of the present values of the remaining scheduled payments of principal and interest on the notes to be redeemed (exclusive of interest accrued to the date of redemption) discounted to the date of redemption on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at a rate equal to the sum of the applicable Treasury Rate (as defined below) plus 15 basis points, plus in each case accrued and unpaid interest thereon to the date of redemption.
Notwithstanding the foregoing, installments of interest on Notes that are due and payable on interest payment dates falling on or prior to a redemption date will be payable on the interest payment date to the registered Holders as of the close of business on the relevant record date according to the Notes and the Indenture.
Comparable Treasury Issue means the United States Treasury security selected by an Independent Investment Banker as having a maturity comparable to the remaining term (Remaining Life) 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, (1) the average of the Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and lowest Reference Treasury Dealer Quotations, or (2) if the Independent
Investment Banker obtains fewer than four such Reference Treasury Dealer Quotations, the average of all such quotations.
Independent Investment Banker means one of the Reference Treasury Dealers that the Issuer shall appoint to act as the Independent Investment Banker from time to time.
Reference Treasury Dealer means (1) each of Goldman, Sachs & Co. and Deutsche Bank Securities Inc. and their respective successors, unless any of them ceases to be a primary U.S. Government securities dealer in New York City (a Primary Treasury Dealer), in which case the Issuer will substitute another Primary Treasury Dealer and (2) any other Primary Treasury Dealer the Issuer shall select.
Reference Treasury Dealer Quotations means, with respect to each Reference Treasury Dealer and any redemption date, the average, as determined by the Independent Investment Banker, of the bid and asked prices for the applicable Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Independent Investment Banker by such Reference Treasury Dealer at 5:00 p.m., New York City time, on the third business day preceding such redemption date.
Treasury Rate means, with respect to any redemption date, the rate per year equal to: (1) the yield, under the heading which represents the average for the immediately preceding week, appearing in the most recently published statistical release designated H.15(519) or any successor publication which is published weekly by the Board of Governors of the Federal Reserve System and which establishes yields on actively traded United States Treasury securities adjusted to constant maturity under the caption Treasury Constant Maturities, for the maturity corresponding to the applicable Comparable Treasury Issue; provided that, if no maturity is within three months before or after the Remaining Life of the notes to be redeemed, yields for the two published maturities most closely corresponding to the applicable Comparable Treasury Issue will be determined and the Treasury Rate will be interpolated or extrapolated from those yields on a straight line basis, rounding to the nearest month; or (2) if such release (or any successor release) is not published during the week preceding the calculation date or does not contain such yields, the rate per year equal to the semiannual equivalent yield to maturity of the applicable Comparable Treasury Issue, calculated using a price for the applicable Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the related Comparable Treasury Price for such redemption date. The Treasury Rate will be calculated by the Issuer on the third business day preceding the redemption date. As used in the immediately preceding sentence and in the definition of Reference Treasury Dealer Quotations above, the term business day means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or obligated by law or executive order to close.
The provisions of Article XI of the Indenture shall apply to any redemption of the Notes.
Notice of any redemption will be mailed or electronically delivered at least 30 days but not more than 60 days before the redemption date to each Holder of record of the Notes to be redeemed at its registered address. Unless the Issuer defaults in 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. If less than all of the Notes are to be redeemed, the Notes to be redeemed shall be selected by the applicable procedures of the Depositary, in the case of Notes represented by a Global Note, or by lot, in the case of Notes that are not represented by a Global Note.
7. Defaults and Remedies.
If an Event of Default (other than certain bankruptcy Events of Default with respect to the Issuer) under the Indenture occurs with respect to the Notes and is continuing, then the Trustee may and, at the direction of the Holders of at least 25% in principal amount of the outstanding Notes, shall by written notice, require the Issuer to repay immediately the entire principal amount of the Outstanding Notes, together with all accrued and unpaid interest and premium, if any. If a bankruptcy Event of Default with respect to the Issuer occurs and is continuing, then the entire principal amount of the Outstanding Notes together with all accrued and unpaid interest and premium, if any, will automatically become due immediately and payable without any declaration or other act on the part of the Trustee or any Holder. Holders of Notes may not enforce the Indenture or the Notes except as provided in the Indenture. The Trustee is not obligated to enforce the Indenture or the Notes unless it has received indemnity as it reasonably requires. The Indenture permits, subject to certain limitations therein provided, Holders of a majority in aggregate principal amount of the Notes then outstanding to direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders of Notes notice of certain continuing defaults or Events of Default if it determines that withholding notice is not opposed to their interest.
8. Authentication.
This Note shall not be valid until the Trustee manually signs the certificate of authentication on this Note.
9. Abbreviations and Defined Terms.
Customary abbreviations may be used in the name of a Holder of a Note 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 U/G/M/A (= Uniform Gifts to Minors Act).
10. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Issuer has caused CUSIP numbers to be printed on the Notes as a convenience to the Holders of the Notes. No representation is made as to the accuracy of such numbers as printed on the Notes and reliance may be placed only on the other identification numbers printed hereon.
11. Governing Law.
The Indenture and the Notes shall be governed by, and construed in accordance with, the law of the State of New York.
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
(Print or type assignees name, address and zip code)
(Insert assignees soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Note on the books of the Issuer. The agent may substitute another to act for him.
Date: Your Signature:
Sign exactly as your name appears on the other side of this Note.
| ||||
Signature |
Signature Guarantee:
|
| |||
Signature must be guaranteed |
Signature |
Signatures must be guaranteed by an eligible guarantor institution meeting the requirements of the Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (STAMP) or such other signature guarantee program as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the United States Securities Exchange Act of 1934, as amended.
SCHEDULE OF EXCHANGES OF NOTES
The following exchanges of a part of this Global Note for physical Notes or a part of another Global Note have been made:
Date of Exchange |
Amount of decrease in |
Amount of increase
in |
Principal amount of this Global Note following such decrease (or increase) |
Signature of authorized officer of Trustee |
EXHIBIT G
FORM OF NOTE DUE 2044
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (DTC), TO THE ISSUER 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 IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS A BENEFICIAL INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY ARE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSORS NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY ARE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE REFERRED TO HEREIN 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.
APPLE INC.
4.45% Note due 2044
No. |
CUSIP No.: 037833 AT7 | |
ISIN No.: US037833AT77 | ||
$500,000,000 |
APPLE INC., a California corporation (the Issuer), for value received promises to pay to CEDE & CO. or registered assigns the principal sum of 500,000,000 DOLLARS on May 6, 2044.
Interest Payment Dates: May 6 and November 6 (each, an Interest Payment Date), beginning on November 6, 2014.
Interest Record Dates: April 22 and October 23 (each, an Interest Record Date).
Reference is made to the further provisions of this Note contained herein, which will for all purposes have the same effect as if set forth at this place.
IN WITNESS WHEREOF, the Issuer has caused this Note to be signed manually or by facsimile by its duly authorized officer.
APPLE INC. | ||
By: |
| |
Name: | ||
Title: |
This is one of the Securities of the series designated therein and referred to in the within-mentioned Indenture.
Dated: May 6, 2014
The Bank of New York Mellon Trust Company, N.A., as Trustee | ||
By: |
| |
Authorized Signatory |
(REVERSE OF NOTE)
APPLE INC.
4.45% Note due 2044
1. Interest
Apple Inc. (the Issuer) promises to pay interest on the principal amount of this Note at the rate per annum described above. Cash interest on the Notes will accrue from the most recent date to which interest has been paid; or, if no interest has been paid, from May 6, 2014. Interest on this Note will be paid to but excluding the relevant Interest Payment Date. The Issuer will pay interest semi-annually in arrears on each Interest Payment Date, commencing November 6, 2014. Interest will be computed on the basis of a 360-day year consisting of twelve 30-day months in a manner consistent with Rule 11620(b) of the FINRA Uniform Practice Code.
The Issuer shall pay interest on overdue principal from time to time on demand at the rate borne by the Notes and on overdue installments of interest (without regard to any applicable grace periods) to the extent lawful.
2. Paying Agent.
Initially, The Bank of New York Mellon Trust Company, N.A. (the Trustee) will act as paying agent. The Issuer may change any paying agent without notice to the Holders.
3. Indenture; Defined Terms.
This Note is one of the 4.45% Notes due 2044 (the Notes) issued under an indenture dated as of April 29, 2013 (the Base Indenture) by and between the Issuer and the Trustee, as supplemented by an Officers Certificate dated May 6, 2014, issued pursuant to Section 301 of the Indenture (together with the Base Indenture, the Indenture). This Note is a Security and the Notes are Securities under the Indenture.
For purposes of this Note, unless otherwise defined herein, capitalized terms herein are used as defined in the Indenture. The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act as in effect on the date on which the Indenture was qualified under the Trust Indenture Act. Notwithstanding anything to the contrary herein, the Notes are subject to all such terms, and holders of Notes are referred to the Indenture and the Trust Indenture Act for a statement of them.
To the extent the terms of the Indenture and this Note are inconsistent, the terms of the Indenture shall govern.
4. Denominations; Transfer; Exchange.
The Notes are in registered form, without coupons, in denominations of $2,000 and any integral multiple of $1,000 in excess thereof. A Holder shall register the transfer or exchange of Notes in accordance with the Indenture. The Issuer may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents and to pay certain transfer taxes or similar governmental charges payable in connection therewith as permitted by the Indenture. The Issuer need not issue, authenticate, register the transfer of or exchange any Notes or portions thereof for a period of fifteen (15) days before the mailing of a notice of redemption, nor need the Issuer register the transfer or exchange of any Note selected for redemption in whole or in part except the unredeemed portion of any Note being redeemed in part.
5. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Notes and the provisions of the Indenture relating to the Notes may be amended or supplemented and any existing default or Event of Default or compliance with certain provisions may be waived with the written consent of the Holders of at least a majority in aggregate principal amount of each series of Outstanding Securities (including the Notes) under the Indenture that is affected by such amendment, supplement or waiver (voting as a single class). Without notice to or consent of any Holder, the parties thereto may amend or supplement the Indenture and the Notes to, among other things, cure any ambiguity, defect or inconsistency or comply with any requirements of the Commission in connection with the qualification of the Indenture under the Trust Indenture Act, or make any other change that does not adversely affect the rights of any Holder of a Note.
6. Redemption.
The Issuer may at its option redeem any of the Notes in whole or in part at any time, each at a redemption price calculated by the Issuer equal to the greater of:
(i) 100% of the principal amount of the Notes to be redeemed; and
(ii) the sum of the present values of the remaining scheduled payments of principal and interest on the notes to be redeemed (exclusive of interest accrued to the date of redemption) discounted to the date of redemption on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at a rate equal to the sum of the applicable Treasury Rate (as defined below) plus 15 basis points, plus in each case accrued and unpaid interest thereon to the date of redemption.
Notwithstanding the foregoing, installments of interest on Notes that are due and payable on interest payment dates falling on or prior to a redemption date will be payable on the interest payment date to the registered Holders as of the close of business on the relevant record date according to the Notes and the Indenture.
Comparable Treasury Issue means the United States Treasury security selected by an Independent Investment Banker as having a maturity comparable to the remaining term (Remaining Life) 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, (1) the average of the Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and lowest Reference Treasury Dealer Quotations, or (2) if the Independent
Investment Banker obtains fewer than four such Reference Treasury Dealer Quotations, the average of all such quotations.
Independent Investment Banker means one of the Reference Treasury Dealers that the Issuer shall appoint to act as the Independent Investment Banker from time to time.
Reference Treasury Dealer means (1) each of Goldman, Sachs & Co. and Deutsche Bank Securities Inc. and their respective successors, unless any of them ceases to be a primary U.S. Government securities dealer in New York City (a Primary Treasury Dealer), in which case the Issuer will substitute another Primary Treasury Dealer and (2) any other Primary Treasury Dealer the Issuer shall select.
Reference Treasury Dealer Quotations means, with respect to each Reference Treasury Dealer and any redemption date, the average, as determined by the Independent Investment Banker, of the bid and asked prices for the applicable Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Independent Investment Banker by such Reference Treasury Dealer at 5:00 p.m., New York City time, on the third business day preceding such redemption date.
Treasury Rate means, with respect to any redemption date, the rate per year equal to: (1) the yield, under the heading which represents the average for the immediately preceding week, appearing in the most recently published statistical release designated H.15(519) or any successor publication which is published weekly by the Board of Governors of the Federal Reserve System and which establishes yields on actively traded United States Treasury securities adjusted to constant maturity under the caption Treasury Constant Maturities, for the maturity corresponding to the applicable Comparable Treasury Issue; provided that, if no maturity is within three months before or after the Remaining Life of the notes to be redeemed, yields for the two published maturities most closely corresponding to the applicable Comparable Treasury Issue will be determined and the Treasury Rate will be interpolated or extrapolated from those yields on a straight line basis, rounding to the nearest month; or (2) if such release (or any successor release) is not published during the week preceding the calculation date or does not contain such yields, the rate per year equal to the semiannual equivalent yield to maturity of the applicable Comparable Treasury Issue, calculated using a price for the applicable Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the related Comparable Treasury Price for such redemption date. The Treasury Rate will be calculated by the Issuer on the third business day preceding the redemption date. As used in the immediately preceding sentence and in the definition of Reference Treasury Dealer Quotations above, the term business day means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or obligated by law or executive order to close.
The provisions of Article XI of the Indenture shall apply to any redemption of the Notes.
Notice of any redemption will be mailed or electronically delivered at least 30 days but not more than 60 days before the redemption date to each Holder of record of the Notes to be redeemed at its registered address. Unless the Issuer defaults in 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. If less than all of the Notes are to be redeemed, the Notes to be redeemed shall be selected by the applicable procedures of the Depositary, in the case of Notes represented by a Global Note, or by lot, in the case of Notes that are not represented by a Global Note.
7. Defaults and Remedies.
If an Event of Default (other than certain bankruptcy Events of Default with respect to the Issuer) under the Indenture occurs with respect to the Notes and is continuing, then the Trustee may and, at the direction of the Holders of at least 25% in principal amount of the outstanding Notes, shall by written notice, require the Issuer to repay immediately the entire principal amount of the Outstanding Notes, together with all accrued and unpaid interest and premium, if any. If a bankruptcy Event of Default with respect to the Issuer occurs and is continuing, then the entire principal amount of the Outstanding Notes together with all accrued and unpaid interest and premium, if any, will automatically become due immediately and payable without any declaration or other act on the part of the Trustee or any Holder. Holders of Notes may not enforce the Indenture or the Notes except as provided in the Indenture. The Trustee is not obligated to enforce the Indenture or the Notes unless it has received indemnity as it reasonably requires. The Indenture permits, subject to certain limitations therein provided, Holders of a majority in aggregate principal amount of the Notes then outstanding to direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders of Notes notice of certain continuing defaults or Events of Default if it determines that withholding notice is not opposed to their interest.
8. Authentication.
This Note shall not be valid until the Trustee manually signs the certificate of authentication on this Note.
9. Abbreviations and Defined Terms.
Customary abbreviations may be used in the name of a Holder of a Note 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 U/G/M/A (= Uniform Gifts to Minors Act).
10. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Issuer has caused CUSIP numbers to be printed on the Notes as a convenience to the Holders of the Notes. No representation is made as to the accuracy of such numbers as printed on the Notes and reliance may be placed only on the other identification numbers printed hereon.
11. Governing Law.
The Indenture and the Notes shall be governed by, and construed in accordance with, the law of the State of New York.
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
(Print or type assignees name, address and zip code)
(Insert assignees soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Note on the books of the Issuer. The agent may substitute another to act for him.
Date: Your Signature:
Sign exactly as your name appears on the other side of this Note.
| ||||
Signature |
Signature Guarantee:
|
| |||
Signature must be guaranteed |
Signature |
Signatures must be guaranteed by an eligible guarantor institution meeting the requirements of the Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (STAMP) or such other signature guarantee program as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the United States Securities Exchange Act of 1934, as amended.
SCHEDULE OF EXCHANGES OF NOTES
The following exchanges of a part of this Global Note for physical Notes or a part of another Global Note have been made:
Date of Exchange |
Amount of decrease
in |
Amount of increase
in |
Principal amount of this Global Note following such decrease (or increase) |
Signature of authorized officer of Trustee |
Exhibit 5.1
May 6, 2014
Board of Directors
Apple Inc.
1 Infinite Loop
Cupertino, California 95014
Ladies and Gentlemen:
We are acting as counsel to Apple Inc., a California corporation (the Company), in connection with the Underwriting Agreement, dated April 29, 2014 (the Underwriting Agreement) among the Company and Goldman, Sachs & Co. and Deutsche Bank Securities Inc., as representatives of the several underwriters named in Schedule 1 thereto, relating to the proposed public offering of $1,000,000,000 aggregate principal amount of the Companys Floating Rate Notes due 2017, $1,000,000,000 aggregate principal amount of the Companys Floating Rate Notes due 2019, $1,500,000,000 aggregate principal amount of the Companys 1.05% Notes due 2017, $2,000,000,000 aggregate principal amount of the Companys 2.10% Notes due 2019, $3,000,000,000 aggregate principal amount of the Companys 2.85% Notes due 2021, $2,500,000,000 aggregate principal amount of the Companys 3.45% Notes due 2024 and $1,000,000,000 aggregate principal amount of the Companys 4.45% Notes due 2044 (collectively, the Securities) pursuant to the Companys automatic shelf registration statement on Form S-3ASR (Reg. No. 333-188191) (the Registration Statement), filed with the Securities and Exchange Commission (the Commission) under the Securities Act of 1933, as amended (the Act) on April 29, 2013. This opinion letter is furnished to you at your request to enable you to fulfill the requirements of Item 601(b)(5) of Regulation S-K, 17 C.F.R. § 229.601(b)(5), in connection with the Registration Statement.
For purposes of this opinion letter, we have examined copies of such agreements, instruments and documents as we have deemed an appropriate basis on which to render the opinions hereinafter expressed. In our examination of the aforesaid documents, we have assumed the genuineness of all signatures, the legal capacity of all natural persons, the accuracy and completeness of all documents submitted to us, the authenticity of all original documents, and the conformity to authentic original documents of all documents submitted to us as copies (including telecopies). As to all matters of fact, we have relied on the representations and statements of fact made in the documents so reviewed, and we have not independently established the facts so relied on. This opinion letter is given, and all statements herein are made, in the context of the foregoing.
This opinion letter is based as to matters of law solely on the applicable provisions of the following, as currently in effect: (i) the General Corporation Law of the State of California, as amended, and (ii) the laws of the State of New York (but not including any laws, statutes, ordinances, administrative decisions, rules or regulations of any political subdivision below the state level). We express no opinion herein as to any other laws, statutes, ordinances, rules, or regulations (and in particular, we express no opinion as to any effect that such other laws, statutes, ordinances, rules, or regulations may have on the opinions expressed herein).
For purposes of this opinion letter, we have assumed that (i) The Bank of New York Mellon Trust Company, N.A., as trustee (the Trustee) under the Indenture, dated April 29, 2013, between the Company and the Trustee, filed as Exhibit 4.1 to the Registration Statement (the Base Indenture), as supplemented by the Officers Certificate, dated May 6, 2014, filed as Exhibit 4.1 to the Companys Form 8-K filed with the Commission on May 6, 2014 (the Officers Certificate and, together with the Base Indenture, the Indenture) has all requisite power and
authority under all applicable laws, regulations and governing documents to execute, deliver and perform its obligations under the Indenture and has complied with all legal requirements pertaining to its status as such status relates to the Trustees right to enforce the Indenture against the Company, (ii) the Trustee has duly authorized, executed and delivered the Indenture, (iii) the Trustee is validly existing and in good standing in all necessary jurisdictions, (iv) the Indenture constitutes a valid and binding obligation, enforceable against the Trustee in accordance with its terms, (v) there has been no mutual mistake of fact or misunderstanding or fraud, duress or undue influence in connection with the negotiation, execution or delivery of the Indenture, and the conduct all parties to the Indenture has complied with any requirements of good faith, fair dealing and conscionability, (vi) at the time of offer, issuance and sale of any Securities, the Registration Statement will have been declared effective under the Act and no stop order suspending its effectiveness will have been issued and remain in effect and (vii) there are and have been no agreements or understandings among the parties, written or oral, and there is and has been no usage of trade or course of prior dealing among the parties that would, in either case, define, supplement or qualify the terms of the Indenture. We also have assumed the validity and constitutionality of each relevant statute, rule, regulation and agency action covered by this opinion letter.
Based upon, subject to and limited by the foregoing, we are of the opinion that the Securities have been duly authorized on behalf of the Company and that, following (i) receipt by the Company of the consideration for the Securities specified in the Underwriting Agreement and (ii) the due execution, authentication, issuance and delivery of the Securities pursuant to the terms of the Indenture, the Securities will constitute valid and binding obligations of the Company.
The opinion expressed above with respect to the valid and binding nature of obligations may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other laws affecting creditors rights (including, without limitation, the effect of statutory and other law regarding fraudulent conveyances, fraudulent transfers and preferential transfers) and by the exercise of judicial discretion and the application of principles of equity, good faith, fair dealing, reasonableness, conscionability and materiality (regardless of whether the Securities are considered in a proceeding in equity or at law).
This opinion letter has been prepared for use in connection with the filing by the Company of a Current Report on Form 8-K on the date hereof, which Form 8-K will be incorporated by reference into the Registration Statement and speaks as of the date hereof. We assume no obligation to advise you of any changes in the foregoing subsequent to the delivery of this opinion letter.
We hereby consent to the filing of this opinion letter as Exhibit 5.1 to the above-described Form 8-K and to the reference to this firm under the caption Legal Matters in the preliminary prospectus supplement dated April 29, 2014 and prospectus supplement dated April 29, 2014, each of which constitute a part of the Registration Statement. In giving this consent, we do not thereby admit that we are an expert within the meaning of the Act.
Very truly yours,
/s/ HOGAN LOVELLS US LLP
HOGAN LOVELLS US LLP
2
Exhibit 12.1
Apple Inc.
Computation of Ratio of Earnings to Fixed Charges
(In millions, except ratios)
Years ended | ||||||||||||||||||||||||
Six Months Ended March 29, 2014 |
September 28, 2013 |
September 29, 2012 |
September 24, 2011 |
September 25, 2010 |
September 26, 2009 |
|||||||||||||||||||
Earnings |
||||||||||||||||||||||||
Earnings before income taxes |
$ | 31,527 | $ | 50,155 | $ | 55,763 | $ | 34,205 | $ | 18,540 | $ | 12,066 | ||||||||||||
Add: Fixed Charges |
239 | 265 | 98 | 68 | 54 | 46 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Total Earnings |
$ | 31,766 | $ | 50,420 | $ | 55,861 | $ | 34,273 | $ | 18,594 | $ | 12,112 | ||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Fixed Charges (a) |
||||||||||||||||||||||||
Interest Expense |
$ | 169 | $ | 136 | $ | 0 | $ | 0 | $ | 0 | $ | 0 | ||||||||||||
Interest component of rental expense |
70 | 129 | 98 | 68 | 54 | 46 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Total Fixed Charges |
$ | 239 | $ | 265 | $ | 98 | $ | 68 | $ | 54 | $ | 46 | ||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Ratio of Earnings to Fixed Charges (b) |
133 | 190 | 570 | 504 | 344 | 263 |
(a) | Fixed charges include the portion of rental expense that management believes is representative of the interest component. |
(b) | The ratio of earnings to fixed charges is computed by dividing Total Earnings by Total Fixed Charges. |