e424b3
Filed Pursuant to Rules 424(b)(3) and (b)(7).
A filing fee of $223,426.81, calculated in accordance with
Rule 457(r), has been transmitted to the SEC in
connection
with the securities offered from the registration statement
(File No. 333-139230) by means of this prospectus
supplement.
SUPPLEMENT TO PROSPECTUS DATED
DECEMBER 11, 2006
$2,088,101,000
0.75% Convertible Senior Notes due 2011
1.00% Convertible Senior Notes due 2013
Common Stock
We originally issued our 0.75% Convertible Senior Notes due
2011, or 2011 notes, and our 1.00% Convertible Senior Notes
due 2013, or 2013 notes, in a private placement transaction on
June 16, 2006. This prospectus supplement and the
accompanying prospectus will be used by selling securityholders
to resell their 2011 notes, 2013 notes and the shares of our
common stock issuable upon conversion of the 2011 notes and 2013
notes. We refer to the 2011 notes and the 2013 notes
collectively as the notes.
Holders of notes, or holders, may convert their (i) 2011
notes based on a conversion rate of 52.2951 shares of our
common stock per $1,000 principal amount of 2011 notes (which is
equal to an initial conversion price of approximately
$19.12 per share) and (ii) 2013 notes based on a
conversion rate of 52.2951 shares of our common stock per
$1,000 principal amount of 2013 notes (which is equal to an
initial conversion price of approximately $19.12 per
share), in each case subject to adjustment. Holders may convert
their notes of each series only under the following
circumstances: (1) if the closing price of our common stock
reaches a specified threshold within a specified period,
(2) if the notes trade below a specified price, (3) if
specified distributions to holders of our common stock are made
or specified corporate transactions occur, or (4) for a
period prior to the maturity of the applicable notes. Upon
conversion, for each $1,000 principal amount of notes a holder
will receive an amount in cash equal to the lesser of
(i) $1,000 or (ii) the conversion value, determined in
the manner set forth in this prospectus supplement. If the
conversion value exceeds $1,000, we will also deliver, at our
election, cash, common stock or a combination of cash and common
stock for the conversion value in excess of $1,000. If a holder
elects to convert its notes in connection with a change in
control, we will pay a make-whole premium by increasing the
conversion rate applicable to such notes. Additionally, if we
experience a change in control, holders may require us to
purchase for cash all or a portion of the notes at a price equal
to 100% of the principal amount of the notes plus accrued and
unpaid interest, if any, to the change in control purchase date.
Since their issuance, the notes have been eligible for trading
in The
PORTAL®
Market operated by The National Association of Securities
Dealers, Inc., or PORTAL; however upon their registration, the
notes will cease to be traded on PORTAL. We do not intend to
list the notes on any other automated quotation system or
securities exchange.
Symantec Corporations common stock is listed on the NASDAQ
Global Select Market under the symbol SYMC. On
December 8, 2006, the last reported sale price of our
common stock was $19.93 per share.
The selling securityholders will receive all of the proceeds
from the sale of the securities and will pay all underwriting
discounts and selling commissions, if any. We are responsible
for the payment of other expenses incident to the registration
of the securities. We will not receive any proceeds from this
offering.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or determined if this prospectus supplement and the
accompanying prospectus are truthful and complete. Any
representation to the contrary is a criminal offense.
See Risk Factors beginning on page S-4 and
in the documents incorporated by reference in this prospectus
supplement and the accompanying prospectus for a discussion of
certain risks that you should consider in connection with an
investment in the notes or our common stock.
December 11, 2006
TABLE OF
CONTENTS
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S-1
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S-1
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S-1
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S-4
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S-16
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S-17
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S-35
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S-38
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S-44
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S-57
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S-57
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FORWARD-LOOKING
STATEMENTS
This prospectus supplement and the documents incorporated by
reference herein contain forward-looking statements within the
meaning of Section 27A of the Securities Act of 1933, as
amended, or the Securities Act, and Section 21E of the
Securities Exchange Act of 1934, as amended, or the Exchange
Act. All statements included or incorporated by reference in
this prospectus supplement, other than statements of historical
fact, that address activities, events or developments that we
intend, expect, project, believe or anticipate will or may occur
in the future, are forward-looking statements. Specifically,
words such as expect, anticipate,
outlook, could, target,
project, intend, plan,
believe, seek, estimate,
should, may, assume, or
continue, and variations of such words and similar
expressions are intended to identify such forward looking
statements. The forward-looking statements in this prospectus
supplement are based on current expectations, estimates,
forecasts and projections about us, our future performance, our
business, our beliefs and our managements assumptions.
In addition to the forward-looking statements made in this
prospectus supplement, we, or others on our behalf, may make
forward-looking statements in press releases or written
statements, or in our communications and discussions with
investors and analysts in the normal course of business through
meetings, webcasts, phone calls and conference calls.
Forward-looking statements are not guarantees of future
performance and involve certain risks, uncertainties and
assumptions that are difficult to predict. We describe some of
the risks, uncertainties and assumptions that could affect our
business, including our financial condition and results of
operations, in Risk Factors. Such risk factors
include those related to: maintaining customer and partner
relationships; the anticipated growth of certain market
segments, particularly with regard to security and storage; the
competitive environment in the software industry; changes to
operating systems and product strategy by vendors of operating
systems; fluctuations in currency exchange rates; the timing and
market acceptance of new product releases and upgrades; the
successful development of new products and integration of
acquired businesses, and the degree to which these products and
businesses gain market acceptance.
We have based our forward looking statements on our
managements beliefs and assumptions based on information
available to our management at the time the statements are made.
We caution you that actual outcomes and results may differ
materially from what is expressed, implied, or forecast by our
forward-looking statements. Except as required under the federal
securities laws and the rules and regulations of the Securities
and Exchange Commission, or SEC, we do not have any intention or
obligation to update publicly any forward looking statements
after the distribution of this prospectus supplement, whether as
a result of new information, future events, changes in
assumptions, or otherwise.
i
SUMMARY
This summary is not complete and does not contain all of the
information that you should consider before investing in our
securities. You should read this entire prospectus supplement
and the accompanying prospectus, including Risk
Factors, and our consolidated financial statements, the
financial information and other documents incorporated by
reference into this prospectus supplement and the accompanying
prospectus, before you decide to invest in our securities. When
used in this prospectus supplement, unless otherwise specified,
the terms Symantec, we, our,
and us refer to Symantec Corporation, a Delaware
corporation, and its consolidated subsidiaries.
SYMANTEC
CORPORATION
Symantec is the world leader in providing a wide range of
solutions to help individuals and enterprises assure the
security, availability, and integrity of their information
technology infrastructure as well as the information itself. We
primarily operate in two growing, diversified markets within the
software sector: the secure content management market and the
storage software market. The secure content management market
includes products that protect consumers and enterprises from
threats to personal computers, computer networks, and electronic
information. The storage software market includes products that
archive, protect, and recover business-critical data. We believe
that these markets are converging as customers increasingly
require both secure content management and storage solutions in
order to safeguard their IT infrastructure, information and
interactions.
Founded in 1982, we are incorporated in Delaware. Our principal
executive offices are located at 20330 Stevens Creek Blvd,
Cupertino, California 95014. Our telephone number at that
location is
(408) 517-8000.
Our home page on the Internet is www.symantec.com. Information
contained, or referred to, on our website is not part of this
prospectus supplement.
THE
OFFERING
The following is a brief summary of certain terms of the notes.
For a more complete description of the terms of the notes, see
Description of the Notes.
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Issuer |
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Symantec Corporation |
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Notes Offered |
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$1,100,000 principal amount of 0.75% Convertible Senior
Notes due 2011.
$1,000,000 principal amount of 1.00% Convertible Senior
Notes due 2013. |
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Maturity Dates |
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June 15, 2011 for the 2011 notes.
June 15, 2013 for the 2013 notes. |
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Interest and Payment Dates |
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0.75% per year, with respect to the 2011 notes, and
1.00% per year, with respect to the 2013 notes, in each
case payable semiannually in arrears in cash on June 15 and
December 15 of each year, beginning December 15, 2006. |
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Conversion Rights |
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Holders may surrender their notes for conversion prior to the
close of business on the business day before the stated maturity
date only under the following circumstances: |
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during any calendar quarter beginning after
June 30, 2006 (and only during such calendar quarter), if
the closing price of our common stock for at least 20 trading
days in the 30 consecutive trading days ending on the last
trading day of the immediately preceding calendar quarter is
more than 130% of the applicable conversion price per share,
which is $1,000 divided by the then applicable conversion rate;
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S-1
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during the five
business-day
period after any five consecutive
trading-day
period (the measurement period) in which the trading
price per note for each day of such measurement period was less
than 98% of the product of the last reported sale price of our
common stock and the conversion rate on each such day;
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if specified distributions to holders of our common
stock are made, or specified corporate transactions
occur; or
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with respect to the 2011 notes, at any time on or
after April 5, 2011, and with respect to the 2013 notes, at
any time on or after April 5, 2013, in each case through
the business day preceding the applicable maturity date.
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The initial conversion rate for the 2011 notes is
52.2951 shares of common stock per $1,000 principal amount
of 2011 notes. This is equivalent to an initial conversion price
of approximately $19.12 per share of common stock. |
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The initial conversion rate for the 2013 notes is
52.2951 shares of common stock per $1,000 principal amount
of 2013 notes. This is equivalent to an initial conversion price
of approximately $19.12 per share of common stock. |
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Upon conversion, a holder will receive an amount in cash equal
to the lesser of (i) the principal amount of the note or
(ii) the conversion value, determined in the manner set
forth in this prospectus supplement. If the conversion value
exceeds the principal amount of the note on the conversion date,
we will also deliver, at our election, cash or common stock or a
combination of cash and common stock for the conversion value in
excess of $1,000. See Description of the Notes
Conversion Rights. Holders who convert their notes in
connection with a change in control, as defined herein, may be
entitled to a make-whole premium in the form of an increase in
the conversion rate. See Description of the
Notes Adjustment To Conversion Rate
Adjustment to Conversion Rate Upon a Change in Control. |
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Change in Control Redemption |
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Upon a change in control, as defined herein, the holders may
require us to purchase for cash all or a portion of their notes
at a purchase price equal to 100% of the principal amount of
notes, plus accrued and unpaid interest, if any. See
Description of the Notes Repurchase at the
Option of the Holder Upon a Change in Control. |
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Ranking |
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The notes rank: |
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equal in right of payment to all of our other
existing and future senior unsecured indebtedness, including any
indebtedness that we may incur pursuant to the $1 billion
senior unsecured revolving credit facility pursuant to a credit
agreement that we entered into with certain lenders in July 2006;
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senior in right of payment to all of our existing
and future subordinated indebtedness; and
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effectively subordinated in right of payment to all
of our subsidiaries obligations (including secured and
unsecured obligations) and subordinated in right of payment to
our secured obligations, to the extent of the assets securing
such obligations.
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S-2
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As of September 30, 2006, we had approximately
$2.1 billion of unsubordinated and unsecured debt
obligations. As of September 30, 2006, our subsidiaries
had, exclusive of intercompany obligations, approximately
$592 million of obligations. |
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Use of Proceeds |
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The selling securityholders will receive all of the proceeds
from the sale of the notes and the common stock pursuant to this
prospectus supplement, and we will receive none of such proceeds. |
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DTC Eligibility |
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The notes were issued in fully registered book-entry form and
are represented by permanent global notes without coupons. The
global notes are on deposit with a custodian for and registered
in the name of a nominee of The Depository Trust Company, or
DTC. Beneficial interests in any of the notes are shown on, and
transfers thereof will be effected only through, records
maintained by DTC and its direct and indirect participants, and
any such interest may not be exchanged for certificated notes,
except in certain limited circumstances described herein. See
Description of the Notes Global Notes;
Book-Entry; Form. |
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Absence of Listing of the Notes |
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Since their initial issuance, the notes have been eligible for
trading in the PORTAL Market of the National Association of
Securities Dealers, Inc. However, notes sold by means of this
prospectus supplement will no longer be eligible for trading on
the PORTAL Market. We do not intend to list the debentures on
any other automated quotation system or securities exchange.
Furthermore, we can provide no assurances as to the liquidity
of, or trading market for, the notes. |
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NASDAQ Global Select Market Symbol for Common Stock |
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Our common stock is listed on the NASDAQ Global Select Market
under the symbol SYMC. |
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Trustee |
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The trustee for the notes is U.S. Bank National Association. |
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Governing Law |
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The indentures and the notes are governed by the laws of the
State of New York. |
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Risk Factors |
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See Risk Factors and other information included or
incorporated by reference in this prospectus supplement for a
discussion of factors you should carefully consider before
deciding to invest in the notes and our common stock. |
S-3
RISK
FACTORS
Investing in our securities involves a high degree of risk.
You should carefully consider the following risk factors and all
other information contained or incorporated by reference in this
prospectus and the accompanying prospectus before making an
investment decision. The occurrence of any one or more of the
following could materially adversely affect your investment in
the notes or our business, financial condition, results of
operations and prospects.
Risk
Relating to Our Business
If we
are unable to develop new and enhanced products and services
that achieve widespread market acceptance, or if we are unable
to continually improve the performance, features, and
reliability of our existing products and services, our business
and operating results could be adversely affected.
Our future success depends on our ability to respond to the
rapidly changing needs of our customers by developing or
introducing new products, product upgrades, and services on a
timely basis. We have in the past incurred, and will continue to
incur, significant research and development expenses as we
strive to remain competitive. New product development and
introduction involves a significant commitment of time and
resources and is subject to a number of risks and challenges
including:
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Managing the length of the development cycle for new products
and product enhancements, which has frequently been longer than
we originally expected
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Adapting to emerging and evolving industry standards and to
technological developments by our competitors and customers
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Extending the operation of our products and services to new
platforms and operating systems
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Entering into new or unproven markets with which we have limited
experience
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Managing new product and service strategies, including
integrating our various security and storage technologies,
management solutions, customer service, and support into unified
enterprise security and storage solutions
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Incorporating acquired products and technologies
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Developing or expanding efficient sales channels
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Obtaining sufficient licenses to technology and technical access
from operating system software vendors on reasonable terms to
enable the development and deployment of interoperable products,
including source code licenses for certain products with deep
technical integration into operating systems
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If we are not successful in managing these risks and challenges,
or if our new products, product upgrades, and services are not
technologically competitive or do not achieve market acceptance,
we could have expended substantial resources and capital without
realizing sufficient revenues in return, and our business and
operating results could be adversely affected.
Fluctuations
in demand for our products and services are driven by many
factors and a decrease in demand for our products could
adversely affect our financial results.
We are subject to fluctuations in demand for our products and
services due to a variety of factors, including competition,
product obsolescence, technological change, budget constraints
of our actual and potential customers, level of broadband usage,
awareness of security threats to IT systems, and other factors.
While such factors may, in some periods, increase product sales,
fluctuations in demand can also negatively impact our product
sales. For example, until recently we had experienced a higher
than expected rate of growth in sales of our consumer security
products that we believe was spurred, in part, by several
well-publicized threats to computer security. As consumer
attention to security threats fluctuates, the growth rates in
sales of consumer security products have been impacted. If
demand for our products declines, our revenues and gross margin
could be adversely affected.
S-4
We
operate in a highly competitive environment, and our competitors
may gain market share in the markets for our products that could
adversely affect our business and cause our revenues to
decline.
We operate in intensely competitive markets that experience
rapid technological developments, changes in industry standards,
changes in customer requirements, and frequent new product
introductions and improvements. If we are unable to anticipate
or react to these competitive challenges or if existing or new
competitors gain market share in any of our markets, our
competitive position could weaken and we could experience a drop
in revenues that could adversely affect our business and
operating results. To compete successfully, we must maintain a
successful research and development effort to develop new
products and services and enhance existing products and
services, effectively adapt to changes in the technology or
product rights held by our competitors, appropriately respond to
competitive strategy, and effectively adapt to technological
changes and changes in the ways that our information is
accessed, used, and stored within our enterprise and consumer
markets. If we are unsuccessful in responding to our competitors
or to changing technological and customer demands, we could
experience a negative effect on our competitive position and our
financial results.
Our traditional competitors include independent software vendors
which offer software products that directly compete with our
product offerings. In addition to competing with these vendors
directly for sales to end users of our products, we compete with
them for the opportunity to have our products bundled with the
product offerings of our strategic partners such as computer
hardware OEMs and ISPs. Our competitors could gain market share
from us if any of these strategic partners replace our products
with the products of our competitors or if they more actively
promote our competitors products than our products. In
addition, software vendors who have bundled our products with
theirs may choose to bundle their software with their own or
other vendors software or may limit our access to standard
product interfaces and inhibit our ability to develop products
for their platform.
We face growing competition from network equipment and computer
hardware manufacturers and large operating system providers.
These firms are increasingly developing and incorporating into
their products data protection and storage and server management
software that competes at some levels with our product
offerings. Our competitive position could be adversely affected
to the extent that our customers perceive the functionality
incorporated into these products as replacing the need for our
products. Microsoft has added remote access features to its
operating systems and has made announcements of actual and
anticipated product features and new product offerings that
compete with a number of our product offerings. In addition, we
believe that Microsoft has recently made changes to its
operating systems that make it more difficult for independent
security vendors to provide effective solutions for their
customers. We could be adversely affected if customers,
particularly consumers, perceive that features incorporated into
the Microsoft operating system reduce the need for our products
or if they prefer to purchase other Microsoft products that are
bundled with its operating systems and compete with our products.
Many of our competitors have greater financial, technical,
sales, marketing, or other resources than we do and consequently
may have an ability to influence customers to purchase their
products instead of ours. We also face competition from many
smaller companies that specialize in particular segments of the
markets in which we compete.
If we
fail to manage our sales and distribution channels effectively
or if our partners choose not to market and sell our products to
their customers, our operating results could be adversely
affected.
We sell our consumer products to individuals and small
offices/home offices around the world through multi-tiered sales
and distribution networks. Sales through these different
channels involve distinct risks, including the following:
Direct Sales. A significant portion of our
revenues from enterprise products is derived from sales by our
direct sales force to end-users. Special risks associated with
this sales channel include:
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Longer sales cycles associated with direct sales efforts
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Difficulty in hiring, retaining, and motivating our direct sales
forces
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S-5
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Substantial amounts of training for sales representatives to
become productive, including regular updates to cover new and
revised products
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Indirect Sales Channels. A significant portion
of our revenues is derived from sales through indirect channels,
including distributors that sell our products to end-users and
other resellers. This channel involves a number of risks,
including:
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Our lack of control over the timing of delivery of our products
to end-users
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Our resellers and distributors are not subject to minimum sales
requirements or any obligation to market our products to their
customers
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Our reseller and distributor agreements are generally
nonexclusive and may be terminated at any time without cause
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Our resellers and distributors frequently market and distribute
competing products and may, from time to time, place greater
emphasis on the sale of these products due to pricing,
promotions, and other terms offered by our competitors
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OEM Sales Channels. A significant portion of
our revenues is derived from sales through our OEM partners that
incorporate our products into, or bundle our products with,
their products. Our reliance on this sales channel involves many
risks, including:
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Our lack of control over the shipping dates or volume of systems
shipped
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Our OEM partners are generally not subject to minimum sales
requirements or any obligation to market our products to their
customers
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Our OEM partners may terminate or renegotiate their arrangements
with us and new terms may be less favorable due, among other
things, to an increasingly competitive relationship with certain
partners
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Sales through our OEM partners are subject to changes in
strategic direction, competitive risks, and other issues that
could result in reduction of OEM sales
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The development work that we must generally undertake under our
agreements with our OEM partners may require us to invest
significant resources and incur significant costs with little or
no associated revenues
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The time and expense required for the sales and marketing
organizations of our OEM partners to become familiar with our
products may make it more difficult to introduce those products
to the market
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Our OEM partners may develop, market, and distribute their own
products and market and distribute products of our competitors,
which could reduce our sales
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If we fail to manage our sales and distribution channels
successfully, these channels may conflict with one another or
otherwise fail to perform as we anticipate, which could reduce
our sales and increase our expenses as well as weaken our
competitive position. Some of our distribution partners have
experienced financial difficulties in the past, and if our
partners suffer financial difficulties in the future, we may
have reduced sales or increased bad debt expense that could
adversely affect our operating results. In addition, reliance on
multiple channels subjects us to events that could cause
unpredictability in demand, which could increase the risk that
we may be unable to plan effectively for the future, and could
result in adverse operating results in future periods.
We
have grown, and may continue to grow, through acquisitions that
give rise to risks and challenges that could adversely affect
our future financial results.
We have in the past acquired, and we expect to acquire in the
future, other businesses, business units, and technologies.
Acquisitions involve a number of special risks and challenges,
including:
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Complexity, time, and costs associated with the integration of
acquired business operations, workforce, products, and
technologies into our existing business, sales force, employee
base, product lines, and technology
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S-6
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Diversion of management time and attention from our existing
business and other business opportunities
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Loss or termination of employees, including costs associated
with the termination or replacement of those employees
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Assumption of debt or other liabilities of the acquired
business, including litigation related to alleged liabilities of
the acquired business
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The incurrence of additional acquisition-related debt as well as
increased expenses and working capital requirements
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Dilution of stock ownership of existing stockholders, or
earnings per share
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Increased costs and efforts in connection with compliance with
Section 404 of the Sarbanes-Oxley Act
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Substantial accounting charges for restructuring and related
expenses, write-off of in-process research and development,
impairment of goodwill, amortization of intangible assets, and
stock-based compensation expense
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Integrating acquired businesses has been and will continue to be
a complex, time consuming, and expensive process, and can impact
the effectiveness of our internal control over financial
reporting. For example, in fiscal year 2006, our management
identified a material weakness in our internal control over
financial reporting that was largely related to Symantec having
insufficient personnel resources with adequate expertise to
properly manage the increased volume and complexity of income
tax matters arising from the acquisition of Veritas.
If integration of our acquired businesses is not successful, we
may not realize the potential benefits of an acquisition or
undergo other adverse effects that we currently do not foresee.
To integrate acquired businesses, we must implement our
technology systems in the acquired operations and integrate and
manage the personnel of the acquired operations. We also must
effectively integrate the different cultures of acquired
business organizations into our own in a way that aligns various
interests, and may need to enter new markets in which we have no
or limited experience and where competitors in such markets have
stronger market positions.
Any of the foregoing, and other factors, could harm our ability
to achieve anticipated levels of profitability from acquired
businesses or to realize other anticipated benefits of
acquisitions. In addition, because acquisitions of high
technology companies are inherently risky, no assurance can be
given that our previous or future acquisitions will be
successful and will not adversely affect our business, operating
results, or financial condition.
Our
international operations involve risks that could increase our
expenses, adversely affect our operating results, and require
increased time and attention of our management.
We derive a substantial portion of our revenues from customers
located outside of the U.S. and we have significant operations
outside of the U.S., including engineering, sales, customer
support, and production. We plan to expand our international
operations, but such expansion is contingent upon the financial
performance of our existing international operations as well as
our identification of growth opportunities. Our international
operations are subject to risks in addition to those faced by
our domestic operations, including:
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Potential loss of proprietary information due to
misappropriation or laws that may be less protective of our
intellectual property rights
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Requirements of foreign laws and other governmental controls,
including trade and labor restrictions and related laws that
reduce the flexibility of our business operations
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Regulations or restrictions on the use, import, or export of
encryption technologies that could delay or prevent the
acceptance and use of encryption products and public networks
for secure communications
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Central bank and other restrictions on our ability to repatriate
cash from our international subsidiaries or to exchange cash in
international subsidiaries into cash available for use in the
U.S.
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S-7
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Fluctuations in currency exchange rates and economic instability
such as higher interest rates in the U.S. and inflation that
could reduce our customers ability to obtain financing for
software products or that could make our products more expensive
in certain countries
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Limitations on future growth or inability to maintain current
levels of revenues from international sales if we do not invest
sufficiently in our international operations
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Longer payment cycles for sales in foreign countries and
difficulties in collecting accounts receivable
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Difficulties in staffing, managing, and operating our
international operations, including difficulties related to
administering our stock plans in some foreign countries
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Difficulties in coordinating the activities of our
geographically dispersed and culturally diverse operations
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Seasonal reductions in business activity in the summer months in
Europe and in other periods in other countries
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Reduced sales due to the failure to obtain any required export
approval of our technologies, particularly our encryption
technologies
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Costs and delays associated with developing software in multiple
languages
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Political unrest, war, or terrorism, particularly in areas in
which we have facilities
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A significant portion of our transactions outside of the
U.S. are denominated in foreign currencies. Accordingly,
our future operating results will continue to be subject to
fluctuations in foreign currency rates. We may be negatively
affected by fluctuations in foreign currency rates in the
future, especially if international sales continue to grow as a
percentage of our total sales.
We receive significant tax benefits from sales to our
non-U.S. customers.
These benefits are contingent upon existing tax regulations in
the U.S. and in the countries in which our international
operations are located. Future changes in domestic or
international tax regulations could adversely affect our ability
to continue to realize these tax benefits.
Our
products are complex and operate in a wide variety of computer
configurations, which could result in errors or product
failures.
Because we offer very complex products, undetected errors,
failures, or bugs may occur, especially when products are first
introduced or when new versions are released. Our products are
often installed and used in large-scale computing environments
with different operating systems, system management software,
and equipment and networking configurations, which may cause
errors or failures in our products or may expose undetected
errors, failures, or bugs in our products. Our customers
computing environments are often characterized by a wide variety
of standard and non-standard configurations that make
pre-release testing for programming or compatibility errors very
difficult and time-consuming. In addition, despite testing by us
and others, errors, failures, or bugs may not be found in new
products or releases until after commencement of commercial
shipments. In the past, we have discovered software errors,
failures, and bugs in certain of our product offerings after
their introduction and have experienced delayed or lost revenues
during the period required to correct these errors.
Errors, failures, or bugs in products released by us could
result in negative publicity, product returns, loss of or delay
in market acceptance of our products, loss of competitive
position, or claims by customers or others. Many of our end-user
customers use our products in applications that are critical to
their businesses and may have a greater sensitivity to defects
in our products than to defects in other, less critical,
software products. In addition, if an actual or perceived breach
of information integrity or availability occurs in one of our
end-user customers systems, regardless of whether the
breach is attributable to our products, the market perception of
the effectiveness of our products could be harmed. Alleviating
any of these problems could require significant expenditures of
our capital and other resources and could cause interruptions,
delays, or cessation of our product licensing, which could cause
us to lose existing or potential customers and could adversely
affect our operating results.
S-8
If we
are unable to attract and retain qualified employees, lose key
personnel, fail to integrate replacement personnel successfully,
or fail to manage our employee base effectively, we may be
unable to develop new and enhanced products and services,
effectively manage or expand our business, or increase our
revenues.
Our future success depends upon our ability to recruit and
retain our key management, technical, sales, marketing, finance,
and other critical personnel. Our officers and other key
personnel are
employees-at-will,
and we cannot assure you that we will be able to retain them.
Competition for people with the specific skills that we require
is significant. In order to attract and retain personnel in a
competitive marketplace, we believe that we must provide a
competitive compensation package, including cash and
equity-based compensation. The volatility in our stock price may
from time to time adversely affect our ability to recruit or
retain employees. In addition, we may be unable to obtain
required stockholder approvals of future increases in the number
of shares available for issuance under our equity compensation
plans, and recent changes in accounting rules require us to
treat the issuance of employee stock options and other forms of
equity-based compensation as compensation expense. As a result,
we may decide to issue fewer equity-based incentives and may be
impaired in our efforts to attract and retain necessary
personnel. If we are unable to hire and retain qualified
employees, or conversely, if we fail to manage employee
performance or reduce staffing levels when required by market
conditions, our business and operating results could be
adversely affected.
Key personnel have left our company in the past and there likely
will be additional departures of key personnel from time to time
in the future. The loss of any key employee could result in
significant disruptions to our operations, including adversely
affecting the timeliness of product releases, the successful
implementation and completion of company initiatives, the
effectiveness of our disclosure controls and procedures and our
internal control over financial reporting, and the results of
our operations. In addition, hiring, training, and successfully
integrating replacement sales and other personnel could be time
consuming, may cause additional disruptions to our operations,
and may be unsuccessful, which could negatively impact future
revenues.
We are
a party to several class action and derivative action lawsuits,
which could require significant management time and attention
and result in significant legal expenses, and which could, if
not determined favorably, negatively impact our business,
financial condition, results of operations, and cash
flows.
We have been named as a party to several class action and
derivative action lawsuits, and we may be named in additional
litigation. The expense of defending such litigation may be
costly and divert managements attention from the
day-to-day
operations of our business, which could adversely affect our
business, results of operations, and cash flows. In addition, an
unfavorable outcome in such litigation could negatively impact
our business, results of operations, and cash flows.
Third
parties claiming that we infringe their proprietary rights could
cause us to incur significant legal expenses and prevent us from
selling our products.
From time to time, we receive claims that we have infringed the
intellectual property rights of others, including claims
regarding patents, copyrights, and trademarks. In addition,
former employers of our former, current, or future employees may
assert claims that such employees have improperly disclosed to
us the confidential or proprietary information of these former
employers. Any such claim, with or without merit, could result
in costly litigation and distract management from
day-to-day
operations. If we are not successful in defending such claims,
we could be required to stop selling, delay shipments of or
redesign our products, pay monetary amounts as damages, enter
into royalty or licensing arrangements, or satisfy
indemnification obligations that we have with some of our
customers.
In addition, we license and use software from third parties in
our business. These third party software licenses may not
continue to be available to us on acceptable terms or at all,
and may expose us to additional liability. This liability, or
our inability to use any of this third party software, could
result in shipment delays or other disruptions in our business
that could materially and adversely affect our operating results.
S-9
If we
do not protect our proprietary information and prevent third
parties from making unauthorized use of our products and
technology, our financial results could be harmed.
Our software and underlying technology are proprietary. We seek
to protect our proprietary rights through a combination of
confidentiality agreements and procedures and through copyright,
patent, trademark, and trade secret laws. However, all of these
measures afford only limited protection and may be challenged,
invalidated, or circumvented by third parties. Third parties may
copy all or portions of our products or otherwise obtain, use,
distribute, and sell our proprietary information without
authorization. Third parties may also develop similar or
superior technology independently, by designing around our
patents. Our shrink-wrap license agreements are not signed by
licensees and therefore may be unenforceable under the laws of
some jurisdictions. Furthermore, the laws of some foreign
countries do not offer the same level of protection of our
proprietary rights as the laws of the U.S., and we may be
subject to unauthorized use of our products in those countries.
The unauthorized copying or use of our products or proprietary
information could result in reduced sales of our products. Any
legal action to protect proprietary information that we may
bring or be engaged in with a strategic partner or vendor could
adversely affect our ability to access software, operating
system, and hardware platforms of such partner or vendor, or
cause such partner or vendor to choose not to offer our products
to their customers. In addition, any legal action to protect
proprietary information that we may bring or be engaged in,
alone or through our alliances with the Business Software
Alliance (BSA), or the Software & Information Industry
Association (SIIA), could be costly, may distract management
from
day-to-day
operations, and may lead to additional claims against us, which
could adversely affect our operating results.
Some
of our products contain open source software, and
any failure to comply with the terms of one or more of these
open source licenses could negatively affect our
business.
Certain of our products are distributed with software licensed
by its authors or other third parties under so-called open
source licenses, which may include, by way of example the
GNU General Public License (GPL), GNU Lesser General Public
License (LGPL), the Mozilla Public License, the BSD License, and
the Apache License. Some of these licenses contain requirements
that we make available source code for modifications or
derivative works we create based upon the open source software,
and that we license such modifications or derivative works under
the terms of a particular open source license or other license
granting third parties certain rights of further use. If we
combine our proprietary software with open source software in a
certain manner, we could, under certain of the open source
licenses, be required to release the source code of our
proprietary software. In addition to risks related to license
requirements, usage of open source software can lead to greater
risks than use of third party commercial software, as open
source licensors generally do not provide warranties or controls
on origin of the software. We have established processes to help
alleviate these risks, including a review process for screening
requests from our development organizations for the use of open
source, but we cannot be sure that all open source is submitted
for approval prior to use in our products. In addition, many of
the risks associated with usage of open source cannot be
eliminated, and could, if not properly addressed, negatively
affect our business.
Our
software products and website may be subject to intentional
disruption that could adversely impact our reputation and future
sales.
Although we believe we have sufficient controls in place to
prevent intentional disruptions, we expect to be an ongoing
target of attacks specifically designed to impede the
performance of our products. Similarly, experienced computer
programmers may attempt to penetrate our network security or the
security of our website and misappropriate proprietary
information or cause interruptions of our services. Because the
techniques used by such computer programmers to access or
sabotage networks change frequently and may not be recognized
until launched against a target, we may be unable to anticipate
these techniques. Our activities could be adversely affected and
our reputation and future sales harmed if these intentionally
disruptive efforts are successful.
Increased
customer demands on our technical support services may adversely
affect our relationships with our customers and our financial
results.
We offer technical support services with many of our products.
We may be unable to respond quickly enough to accommodate
short-term increases in customer demand for support services. We
also may be unable to modify the
S-10
format of our support services to compete with changes in
support services provided by competitors or successfully
integrate support for our customers. Further customer demand for
these services, without corresponding revenues, could increase
costs and adversely affect our operating results.
We have outsourced a substantial portion of our worldwide
consumer support functions to third party service providers. If
these companies experience financial difficulties, do not
maintain sufficiently skilled workers and resources to satisfy
our contracts, or otherwise fail to perform at a sufficient
level under these contracts, the level of support services to
our customers may be significantly disrupted, which could
materially harm our relationships with these customers.
Accounting
charges may cause fluctuations in our quarterly financial
results.
Our financial results have been in the past, and may continue to
be in the future, materially affected by non-cash and other
accounting charges, including:
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Amortization of intangible assets, including acquired product
rights
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Impairment of goodwill
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Stock-based compensation expense, including charges related to
our adoption in the first quarter of fiscal 2007 of Statement of
Financial Accounting Standards No. 123R, Share-Based
Payment, which materially increased the stock-based
compensation expense included in our results of operations
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Restructuring charges and reversals of those charges
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Impairment of long-lived assets
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For example, in connection with our acquisition of Veritas, we
have recorded approximately $2.8 billion of intangible
assets, including acquired product rights, and $8.6 billion
of goodwill. We have recorded and will continue to record future
amortization charges with respect to a portion of these
intangible assets and stock-based compensation expense related
to the stock options to purchase Veritas common stock assumed by
us. In addition, we will evaluate our long-lived assets,
including property and equipment, goodwill, acquired product
rights, and other intangible assets, whenever events or
circumstances occur which indicate that these assets might be
impaired. Goodwill is evaluated annually for impairment in the
fourth quarter of each fiscal year or more frequently if events
and circumstances warrant. The foregoing types of accounting
charges may also be incurred in connection with or as a result
of other business acquisitions. The price of our common stock
could decline to the extent that our financial results are
materially affected by the foregoing accounting charges.
Our
effective tax rate may increase, which could increase our income
tax expense and reduce our net income.
Our effective tax rate could be adversely affected by several
factors, many of which are outside of our control, including:
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Changes in the relative proportions of revenues and income
before taxes in the various jurisdictions in which we operate
that have differing statutory tax rates
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Changing tax laws, regulations, and interpretations in multiple
jurisdictions in which we operate as well as the requirements of
certain tax rulings
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Changes in accounting and tax treatment of stock-based
compensation
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The tax effects of purchase accounting for acquisitions and
restructuring charges that may cause fluctuations between
reporting periods
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Tax assessments, or any related tax interest or penalties, could
significantly affect our income tax expense for the period in
which the settlements take place
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The price of our common stock could decline to the extent that
our financial results are materially affected by an adverse
change in our effective tax rate.
S-11
We report our results of operations based on our determinations
of the amount of taxes owed in the various tax jurisdictions in
which we operate. From time to time, we receive notices that a
tax authority to which we are subject has determined that we owe
a greater amount of tax than we have reported to such authority,
and we are regularly engaged in discussions, and sometimes
disputes, with these tax authorities. We are engaged in disputes
of this nature at this time. If the ultimate determination of
our taxes owed in any of these jurisdictions is for an amount in
excess of the tax provision we have recorded or reserved for,
our operating results, cash flows, and financial condition could
be adversely affected.
We
have not historically maintained substantial levels of
indebtedness, and our financial condition and results of
operations could be adversely affected if we do not effectively
manage our liabilities
In June 2006, we sold $2.1 billion in aggregate principal
amount of the convertible senior notes offered hereby. As a
result of the sale of the notes we have a substantially greater
amount of long term debt than we have maintained in the past. In
addition, we have entered into a credit facility with a
borrowing capacity of $1 billion. While we have no current
plan to borrow funds under such a credit facility, its
availability would allow us immediate access to domestic funds
if we identify opportunities for its use. Our maintenance of
substantial levels of debt could adversely affect our
flexibility to take advantage of certain corporate opportunities
and could adversely affect our financial condition and results
of operations.
Fluctuations
in our quarterly financial results have affected the price of
our common stock in the past and could affect our stock price in
the future.
Our quarterly financial results have fluctuated in the past and
are likely to vary significantly in the future due to a number
of factors, many of which are outside of our control and which
could adversely affect our operations and operating results. In
addition, our acquisition of Veritas makes it more difficult for
us to predict, and securities analysts to develop expectations
regarding, our future financial results due to the risks
associated with the complexity of our combined business and the
integration of our management teams and operations. If our
quarterly financial results or our predictions of future
financial results fail to meet the expectations of securities
analysts and investors, our stock price could be negatively
affected. Any volatility in our quarterly financial results may
make it more difficult for us to raise capital in the future or
pursue acquisitions that involve issuances of our stock. Our
operating results for prior periods may not be effective
predictors of our future performance.
Factors associated with our industry, the operation of our
business, and the markets for our products may cause our
quarterly financial results to fluctuate, including:
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Reduced demand for any of our products
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Entry of new competition into our markets
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Competitive pricing pressure for one or more of our classes of
products
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Our ability to timely complete the release of new or enhanced
versions of our products
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The number, severity, and timing of threat outbreaks (e.g. worms
and viruses)
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Our resellers making a substantial portion of their purchases
near the end of each quarter
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Enterprise customers tendency to negotiate site licenses
near the end of each quarter
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Cancellation, deferral, or limitation of orders by customers
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Fluctuations in foreign currency exchange rates
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Movement in interest rates
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The rate of adoption of new product technologies and new
releases of operating systems
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Weakness or uncertainty in general economic or industry
conditions in any of the multiple markets in which we operate
that could reduce customer demand and ability to pay for our
products and services
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S-12
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Political and military instability, which could slow spending
within our target markets, delay sales cycles, and otherwise
adversely affect our ability to generate revenues and operate
effectively
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Budgetary constraints of customers, which are influenced by
corporate earnings and government budget cycles and spending
objectives
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Disruptions in our highly automated business operations caused
by, among other things,
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Earthquakes, floods, or other natural disasters affecting our
headquarters located in Silicon Valley, California, an area
known for seismic activity, or our other locations worldwide
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Acts of war or terrorism
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Intentional disruptions by third parties
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Any of the foregoing factors could cause the trading price of
our common stock to fluctuate significantly.
Our
stock price may be volatile in the future, and you could lose
the value of your investment.
The market price of our common stock has experienced significant
fluctuations in the past and may continue to fluctuate in the
future, and as a result you could lose the value of your
investment. The market price of our common stock may be affected
by a number of factors, including:
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Announcements of quarterly operating results and revenue and
earnings forecasts by us that fail to meet or be consistent with
our earlier projections or the expectations of our investors or
securities analysts
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Announcements by either our competitors or customers that fail
to meet or be consistent with their earlier projections or the
expectations of our investors or securities analysts
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Rumors, announcements, or press articles regarding our
operations, management, organization, financial condition, or
financial statements
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Changes in revenue and earnings estimates by us, our investors,
or securities analysts
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Accounting charges, including charges relating to the impairment
of goodwill
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Announcements of planned acquisitions by us or by our competitors
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Announcements of new or planned products by us, our competitors,
or our customers
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Gain or loss of a significant customer
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Inquiries by the SEC, NASDAQ, law enforcement, or other
regulatory bodies
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Acts of terrorism, the threat of war, and other crises or
emergency situations
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Economic slowdowns or the perception of an oncoming economic
slowdown in any of the major markets in which we operate
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The stock market in general, and the market prices of stocks of
technology companies in particular, have experienced extreme
price volatility that has adversely affected, and may continue
to adversely affect, the market price of our common stock for
reasons unrelated to our business or operating results.
We are
currently implementing information systems enhancements, and
problems with the design or implementation of these enhancements
could interfere with our business and operations.
We are currently in the process of significantly enhancing our
information systems. The implementation of significant
enhancements is frequently disruptive to the underlying business
of an enterprise, which may especially be the case for us due to
the size and complexity of our businesses. Any disruptions
relating to our systems enhancements, particularly any
disruptions impacting our operations during the implementation
period, could adversely affect our ability to process customer
orders, ship products, provide services and support to our
customers, bill and track our customers, fulfill contractual
obligations, and otherwise run our business. Even if we do not
encounter these adverse effects, the implementation may be much
more costly than we anticipated. If we
S-13
are unable to successfully implement the information systems
enhancements as planned, our financial position, results of
operations, and cash flows could be negatively impacted.
Risks
Relating to the Notes
The
notes are structurally subordinated. This may affect your
ability to receive payments on the notes.
The notes are obligations exclusively of Symantec Corporation, a
Delaware corporation. During the fiscal year ended
March 31, 2006 and the six-months ended September 30,
2006, our subsidiaries earned 63% and 68% of our consolidated
revenues, respectively. We conduct a significant portion of our
operations through our subsidiaries. Our cash flow and our
ability to service our debt, including the notes, depend to an
important extent upon the earnings of our subsidiaries, and the
distribution of earnings, loans or other payments by those
subsidiaries to us.
Our subsidiaries are separate and distinct legal entities. Our
subsidiaries have no obligation to pay any amounts due on the
notes or, subject to existing or future contractual obligations
between us and our subsidiaries, to provide us with funds for
our payment obligations, whether by dividends, distributions,
loans or other payments. In addition, any payment of dividends,
distributions, loans or advances by our subsidiaries to us could
be subject to statutory or contractual restrictions and taxes on
distributions. Payments to us by our subsidiaries will also be
contingent upon our subsidiaries earnings and other
business considerations.
Our right to receive any assets of any of our subsidiaries upon
liquidation or reorganization, and, as a result, the right of
the holders of the notes to participate in those assets, will be
effectively subordinated to the claims of that subsidiarys
creditors, including trade creditors and preferred shareholders,
if any. The notes do not restrict the ability of our
subsidiaries to incur additional liabilities.
The
convertible note hedge transactions, as well as the warrant
transactions, may affect the value of the notes and our common
stock.
In connection with the sale of the notes, we entered into
convertible note hedge transactions with certain of the initial
purchasers of the notes or their affiliates, referred to as the
Hedge Participants. We entered into these convertible note hedge
transactions to offset the dilution of our common stock
otherwise resulting from conversion of the notes. We also
entered into warrant transactions with the Hedge Participants.
We believe that the Hedge Participants hold shares of our common
stock to hedge against their participation in these transactions.
The Hedge Participants have advised us that they are likely to
modify their hedge positions from time to time prior to
conversion or maturity of the notes or termination of the
convertible note hedge transactions by purchasing and selling
shares of our common stock. The Hedge Participants have advised
us that they or their affiliates might make such modifications
during the conversion reference period for the conversion of
notes. In addition, we will exercise options we hold under these
convertible note hedge transactions whenever notes are
converted. We expect that in order to unwind their hedge
positions with respect to those exercised options, that during
conversion reference periods the Hedge Participants or their
affiliates will sell shares of our common stock in secondary
market transactions or unwind various
over-the-counter
derivative transactions with respect to our common stock, which
may reduce the value of the notes being converted. We expect
that the effect of the Hedge Participants actions would be
magnified if we were to settle a conversion of notes entirely in
cash.
The effect, if any, of these transactions on the market price
for our common stock will depend on market conditions and cannot
be ascertained at this time, but any of these activities could
reduce the value of our common stock, and therefore the notes as
well.
An
active trading market for the notes may not exist.
The notes are new issues of securities for which there is no
market. Since their initial sale, the notes have been eligible
for trading on PORTAL; however, upon their registration, the
notes will cease to be traded on PORTAL. We have not listed the
notes on a securities exchange, and we have no plans to do so.
At the time of the initial offering of the notes in June 2006,
we were advised by certain of the initial purchasers of the
notes that they intended to make a market in the notes; however,
the initial purchasers are not obligated to make a market in the
notes and may cease to do so at any time, for any reason or for
no reason, and without notice. In addition, market making
activity by the
S-14
initial purchasers is subject to the limits imposed by the
Securities Act and the Exchange Act. If the initial purchasers
of the notes cease to act as market makers for the notes, we
cannot assure you that another firm or person will make a market
in the notes.
Even if a trading market for the notes exists, it may not be
liquid. The liquidity of any market for the notes will depend on
the number of holders of the notes, our results of operations
and financial condition, prevailing interest rates, the market
for similar securities, the interest of securities dealers in
making a market in the notes and other factors.
Fluctuations
in the trading price of our common stock may prevent you from
being able to convert the notes, may impact the trading price of
the notes and may make the notes more difficult to
resell.
Until the period prior to maturity, the ability of a holder of
the notes to convert the notes is conditioned on the closing
price of our common stock reaching a specified threshold, the
trading price of the notes being below a specified price or the
occurrence of specified corporate transactions, such as a change
in control. If the closing price threshold for conversion of the
notes is satisfied during a calendar quarter, holders may
convert the notes only during the subsequent calendar quarter.
If such closing price and trading price thresholds are not
satisfied and none of the specified corporate transactions that
would permit a holder to convert notes occurs, holders would not
be able to convert notes except during a specified period prior
to their applicable maturity dates.
Because the notes may be convertible into shares of our common
stock, volatility or depressed prices for our common stock could
have a similar effect on the trading price of the notes and
could limit the amount of cash payable upon conversion of the
notes. Holders who receive common stock upon conversion of the
notes will also be subject to the risk of volatility and
depressed prices of our common stock.
The
make-whole premium that may be payable upon a change in control
may not adequately compensate you for the lost option time value
of your notes as a result of such change in
control.
If you convert notes in connection with a change in control, we
may be required to issue a make-whole premium by increasing the
conversion rate applicable to your notes, as described under
Description of the Notes Adjustment To
Conversion Rate Adjustment to Conversion Rate Upon a
Change in Control. While these increases in the applicable
conversion rate are designed to compensate you for the lost
option time value of your notes as a result of a change in
control, such increases are only an approximation of such lost
value and may not adequately compensate you for such loss. Our
obligation to increase the conversion rate could be considered a
penalty, in which case the enforceability of this obligation
would be subject to general principles of reasonableness of
economic remedies.
Because
your right to require our repurchase of the notes is limited,
the market prices of the notes may decline if we enter into a
transaction that is not a change in control under the
indentures.
The term change in control is limited and may not
include every event that might cause the market prices of the
notes to decline or result in a downgrade of the credit rating
of the notes. Our obligation to repurchase the notes upon a
change in control may not preserve the value of the notes in the
event of a highly leveraged transaction, reorganization, merger
or similar transaction. See Description of the
Notes Redemption at the Option of the Holder.
Holders
of the notes are not entitled to any rights with respect to our
common stock, but are subject to all changes made with respect
to our common stock.
If you hold notes, you are not entitled to any rights with
respect to our common stock (including, without limitation,
voting rights and rights to receive any dividends or other
distributions on our common stock), but you are subject to all
changes to our common stock that might be adopted by the holders
of our common stock to curtail or eliminate any of the powers,
preferences or special rights of our common stock, or impose new
restrictions or qualifications upon our common stock. You will
only be entitled to rights on the common stock if and when we
deliver shares of common stock to you in exchange for your notes
and in limited cases under the anti-dilution adjustments of the
notes. For example, in the event that an amendment is proposed
to our articles of incorporation or
S-15
bylaws requiring shareholder approval and the record date for
determining the shareholders of record entitled to vote on the
amendment occurs prior to delivery of common stock upon
conversion of your notes, you will not be entitled to vote on
the amendment, though you will nevertheless be subject to any
changes in the powers, preferences or special rights of our
common stock.
The
U.S. federal income tax consequences of converting the
notes into a combination of our common stock and cash are
uncertain.
If we choose to deliver a combination of our common stock and
cash to you upon the conversion of the notes, the
U.S. federal income tax treatment of the conversion is
uncertain. You are urged to consult your tax advisors with
respect to the U.S. federal income tax consequences
resulting from the conversion of notes into a combination of
cash and common stock. A discussion of the U.S. federal
income tax consequences of ownership and disposition of the
notes is contained under the heading Certain
U.S. Federal Income Tax Considerations.
You
may have to pay taxes with respect to distributions on our
common stock that you do not receive.
The conversion rate of the notes is subject to adjustment for
certain events arising from stock splits and combinations, stock
dividends, cash dividends and certain other actions by us that
modify our capital structure. If, for example, the conversion
rate is adjusted as a result of a distribution that is taxable
to holders of our common stock, such as a cash dividend, you may
be required to include an amount in income for U.S. federal
income tax purposes, notwithstanding the fact that you do not
receive an actual distribution. In addition, holders of the
notes may, in certain circumstances, be deemed to have received
a distribution subject to U.S. federal withholding taxes
(including backup withholding taxes or withholding taxes for
payments to foreign persons). See the discussions under the
headings Certain U.S. Federal Income Tax
Considerations Consequences to U.S. Holders
Constructive Distributions and Certain
U.S. Federal Income Tax Considerations
Consequences to
Non-U.S. Holders
Dividends and Constructive Distributions for more details.
We may
not be able to raise the funds necessary to finance a change in
control purchase or to make the payments due upon conversion or
at maturity.
Upon the occurrence of a change in control, holders of notes may
require us to purchase their notes. In addition, we will be
required to make cash payments to holders on conversion of the
notes and upon the maturity of the notes. However, it is
possible that we would not have sufficient funds to make the
required purchase of notes or to make cash payments on
conversion or at maturity. In addition, certain important
corporate events, such as leveraged recapitalizations that would
increase the level of our indebtedness, would not constitute a
change in control under the indentures. See Description of
the Notes Redemption at the Option of the
Holder. Similarly, if we default under any existing credit
facilities to which we may be a party, we may be unable to make
any cash payments due upon conversion, upon a change in control
or upon the maturity of the notes.
The
change in control purchase feature of the notes may delay or
prevent an otherwise beneficial attempt to take over our
company.
The terms of the notes require us to purchase the notes for cash
in the event of a change in control. A takeover of our company
would trigger the requirement that we purchase the notes. This
may have the effect of delaying or preventing a takeover of our
company that would otherwise be beneficial to investors.
USE OF
PROCEEDS
The proceeds from the sale of the notes and the common stock
offered pursuant to this prospectus supplement are solely for
the account of the selling securityholders. Accordingly, we will
not receive any proceeds from the sale of the notes or the
shares of common stock offered by this prospectus supplement.
S-16
DESCRIPTION
OF THE NOTES
We issued the 2011 notes and the 2013 notes under separate
indentures between us and U.S. Bank National Association as
trustee. As used in this description of the notes, the words
we, us, our or
Symantec refer only to Symantec Corporation, a
Delaware corporation, and do not include any of our current or
future subsidiaries. We have summarized below the material
provisions of each indenture, the notes and the registration
rights agreement (as defined below). The following description
is not complete and is subject to, and qualified by reference
to, all of the provisions of each indenture, the notes and the
registration rights agreement, which we urge you to read because
they define your rights as a note holder. Copies of each
indenture, including forms of the notes, and the registration
rights agreement that we entered into with the initial
purchasers of the notes on June 16, 2006, or the
registration rights agreement, are available upon
request to us. See Where You Can Find Additional
Information in the accompanying prospectus.
General
The 2011 notes are limited to $1.1 billion aggregate
principal amount. The 2011 notes will mature on June 15,
2011, unless earlier converted or repurchased.
The 2013 notes are limited to $1.0 billion aggregate
principal amount. The 2013 notes will mature on June 15,
2013, unless earlier converted or repurchased.
The notes are issued in denominations of $1,000 or in integral
multiples of $1,000. The notes are payable at the principal
corporate trust office of the paying agent, which is currently
an office or agency of the trustee.
The notes are general unsecured obligations of Symantec. The
notes currently rank:
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equal in right of payment to all of our other existing and
future senior unsecured indebtedness, including any indebtedness
that we may incur pursuant to the $1 billion senior
unsecured revolving credit facility pursuant to a credit
agreement that we entered into with certain lenders in July 2006;
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senior in right of payment to all of our existing and future
subordinated indebtedness; and
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structurally subordinated in right of payment to all of our
subsidiaries existing and future obligations (including
secured and unsecured obligations) and effectively subordinated
in right of payment to our secured obligations, to the extent of
the assets securing such obligations.
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As of September 30, 2006, we had approximately
$2.1 billion of unsubordinated and unsecured debt
obligations. As of September 30, 2006, our subsidiaries
had, exclusive of intercompany obligations, approximately
$592 million of obligations.
The 2011 notes bear cash interest at the rate of 0.75% per
year and the 2013 notes bear cash interest at the rate of
1.00% per year. Interest on the notes accrues from the
issue date, or from the most recent date to which interest has
been paid or provided for. Interest is payable semiannually in
arrears on June 15 and December 15 of each year, beginning on
December 15, 2006, to holders of record at the close of
business on the June 1 or the December 1 immediately
preceding such interest payment date. Each payment of cash
interest on the notes includes interest accrued for the period
commencing on and including the immediately preceding interest
payment date (or, if none, the scheduled original issuance date)
through the day before the applicable interest payment date (or
purchase date). Any payment required to be made on any day that
is not a business day will be made on the next succeeding
business day. Interest is calculated using a
360-day year
composed of twelve
30-day
months. A business day is any weekday that is not a
day on which banking institutions in The City of New York are
authorized or obligated to close. Interest will cease to accrue
on a note upon its maturity, conversion or purchase by us at the
option of a holder.
Notes may be presented for conversion at the office of the
conversion agent and for exchange or registration of transfer at
the office of the registrar. The conversion agent and the
registrar currently are the trustee. No service charge will be
made for any registration of transfer or exchange of notes.
However, we may require the holder to pay any tax, assessment or
other governmental charge payable as a result of such transfer
or exchange.
We may, without the consent of the holders, reopen the notes and
issue additional notes under the applicable indenture with the
same terms and with the same CUSIP numbers as the notes offered
hereby in an unlimited
S-17
aggregate principal amount, provided that no such additional
notes may be issued unless fungible with the notes offered
hereby for U.S. federal income tax purposes. We may also
from time to time repurchase the notes in open market purchases
or negotiated transactions without prior notice to holders.
Conversion
Rights
General
Holders may convert their 2011 notes prior to maturity based on
an initial conversion rate of 52.2951 shares of our common
stock, par value $0.01 per share, per $1,000 principal
amount of 2011 notes (equivalent to an initial conversion price
(as defined below) of approximately $19.12 per share), only
if the conditions for conversion described below are satisfied.
Holders may convert their 2013 notes prior to maturity based on
an initial conversion rate of 52.2951 shares of our common
stock per $1,000 principal amount of 2013 notes (equivalent to
an initial conversion price of approximately $19.12 per
share), only if the conditions for conversion described below
are satisfied.
The ability to surrender notes for conversion will expire at the
close of business on the business day immediately preceding the
stated maturity date.
Holders who convert will receive cash and may, at our option as
described below, also receive shares of our common stock. The
conversion rate will be subject to adjustment as described in
Adjustment to Conversion Rate below. A note for
which a holder has delivered a change in control purchase
notice, as described below, requiring us to purchase the note
may be surrendered for conversion only if such notice is
withdrawn in accordance with the applicable indenture. A holder
may convert fewer than all of such holders notes so long
as the notes converted are an integral multiple of $1,000
principal amount.
The conversion price per share of common stock as of
any day will equal the result obtained by dividing $1,000 by the
then applicable conversion rate (as defined below).
The applicable conversion rate means the conversion
rate on any trading day (as defined below).
The conversion date with respect to a note means the
date on which the holder of the note has complied with all
requirements under the applicable indenture to convert such note.
Upon conversion, a holder will receive, for each $1,000
principal amount of notes surrendered for conversion:
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cash in an amount equal to the lesser of (i) $1,000 and
(ii) the conversion value, as defined below (the
required cash amount); and
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if the conversion value is greater than $1,000, a number of
shares of our common stock, (the remaining shares)
equal to the sum of the daily share amounts (as defined below)
for each of the twenty consecutive trading days in the
conversion reference period (as defined below), subject to our
right to deliver cash in lieu of all or a portion of such
remaining shares as described below.
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Conversion value means the average of the products
for each trading day of the conversion reference period of
(i) the applicable conversion rate for such day multiplied
by (ii) the volume weighted average price (as defined
below) per share of our common stock on such day.
The daily share amount means, for each trading day
of the conversion reference period and each $1,000 principal
amount of notes surrendered for conversion, a number of shares
(but in no event less than zero) determined by the following
formula:
(volume weighted average price per share for such trading day
× conversion rate in effect on the trading
day) − $1000
volume weighted average price per share for such trading day
× 20
The volume weighted average price per share of our
common stock on any trading day means such price as displayed on
Bloomberg (or any successor service) page SYMC
<equity> VAP in respect of the period from
9:30 a.m. to 4:00 p.m., New York City time, on such
trading day; or, if such price is not available, the volume
weighted average price means the market value per share of our
common stock on such day as determined by a nationally
recognized investment banking firm retained for this purpose by
us.
S-18
A trading day is any day on which (i) there is
no market disruption event (as defined below) and (ii) the
NASDAQ Global Select Market or the Nasdaq Global Market
(together formerly known as the Nasdaq National Market) or, if
our common stock is not listed on the NASDAQ Global Select
Market or the NASDAQ Global Market, the principal national
securities exchange on which our common stock is listed, is open
for trading or, if the common stock is not so listed, admitted
for trading or quoted, any business day. A trading
day only includes those days that have a scheduled closing
time of 4:00 p.m. (New York City time) or the then standard
closing time for regular trading on the relevant exchange or
trading system.
A market disruption event means the occurrence or
existence for more than one half hour period in the aggregate on
any scheduled trading day for our common stock of any suspension
or limitation imposed on trading (by reason of movements in
price exceeding limits permitted by the NASDAQ Global Select
Market and the NASDAQ Global Market or otherwise) in our common
stock or in any options, contracts or future contracts relating
to our common stock, and such suspension or limitation occurs or
exists at any time before 1:00 p.m. (New York City time) on
such day.
The conversion reference period means:
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for notes that are converted during the period beginning on the
23rd scheduled trading day prior to the maturity date of the
applicable notes, the twenty consecutive trading days beginning
on, and including, the 20th scheduled trading day prior to the
maturity date; and
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in all other instances, the twenty consecutive trading days
beginning on the third trading day following the conversion date.
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By the close of business on the business day prior to the first
scheduled trading day of the applicable conversion reference
period, we may specify a percentage of the daily share amount
that will be settled in cash (the cash percentage)
and we will notify you of such cash percentage by notifying the
trustee (the cash percentage notice). If we elect to
specify a cash percentage, the amount of cash that we will
deliver in respect of each trading day in the applicable
conversion reference period will equal the product of:
(i) the cash percentage, (ii) the daily share amount
for such trading day and (iii) the volume weighted average
price of our common stock for such trading day. The number of
shares deliverable in respect of each business day in the
applicable conversion reference period will be a percentage of
the daily share amount equal to 100% minus the cash percentage.
If we do not specify a cash percentage by the close of business
on the trading day prior to the scheduled first trading day of
the applicable conversion reference period, we must settle 100%
of the daily share amount for each trading day in the applicable
conversion reference period with shares of our common stock;
provided, however, that we will pay cash in lieu of fractional
shares as described below. We may, at our option, revoke any
cash percentage notice by notifying the trustee; provided that
we revoke such notice by the close of business on the business
day prior to the scheduled first trading day of the applicable
conversion reference period.
The cash and any shares of our common stock due upon conversion
of the notes will be delivered through the conversion agent as
promptly as practicable following the end of the conversion
reference period applicable to the notes being converted.
A holder of a note otherwise entitled to a fractional share will
receive cash based on the arithmetic average of the volume
weighted average price of our common stock for each of the
twenty consecutive trading days of the conversion reference
period (the average price).
Upon determining that the holders are entitled to convert their
notes in accordance with the provisions described below, we will
promptly (i) issue a press release and use our reasonable
efforts to post such information on our website or otherwise
publicly disclose this information or (ii) provide notice
to the holders of the notes in a manner contemplated by the
applicable indenture, including through the facilities of the
DTC.
While we will be required to make the cash payments described
above upon conversions of notes, it is possible that we will not
be able to do so when required.
S-19
Holders may surrender their notes for conversion at the
applicable conversion rate under any of the following
circumstances:
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conversion based on common stock price;
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conversion based on satisfaction of trading price condition;
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conversion upon occurrence of specified corporate
transactions; and
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conversion during period prior to maturity.
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Conversion
Based on Common Stock Price
Holders may surrender notes for conversion in any calendar
quarter commencing at any time after June 30, 2006 and only
during such calendar quarter, if the closing price of our common
stock for at least 20 trading days in a period of 30 consecutive
trading days ending on the last trading day of the preceding
calendar quarter is more than 130% of the conversion price per
share of common stock on the last day of such preceding calendar
quarter, which we refer to as the conversion trigger
price.
The current conversion trigger price of the 2011 notes is
$24.86, which is 130% of the initial conversion price per share
of common stock. The foregoing conversion trigger price assumes
that no events have occurred that would require an adjustment to
the conversion rate.
The current conversion trigger price of the 2013 notes is
$24.86, which is 130% of the initial conversion price per share
of common stock. The foregoing conversion trigger price assumes
that no events have occurred that would require an adjustment to
the conversion rate.
The conversion agent will, on our behalf, determine at the
beginning of each calendar quarter commencing at any time after
June 30, 2006 (through the calendar quarter ending
March 31, 2011 with respect to the 2011 notes and through
the calendar quarter ending March 31, 2013 with respect to
the 2013 notes) whether the notes are convertible as a result of
the price of our common stock and notify us and the trustee.
The closing price of our common stock on any date
means the closing sale price per share (or if no closing sale
price is reported, the average of the bid and ask prices or, if
more than one in either case, the average of the average bid and
the average ask prices) on that date as reported in composite
transactions for the principal U.S. securities exchange on
which our common stock is traded or, if our common stock is not
listed on a U.S. national or regional securities exchange,
as reported by the NASDAQ Global Select Market or the NASDAQ
Global Market. If our common stock is not listed for trading on
a United States national or regional securities exchange and not
reported by the NASDAQ Global Select Market or the NASDAQ Global
Market on the relevant date, the closing price will
be the last quoted bid price for our common stock in the
over-the-counter
market on the relevant date as reported by the National
Quotation Bureau or similar organization. If our common stock is
not so quoted, the last reported sale price will be the average
of the mid-point of the last bid and ask prices for our common
stock on the relevant date from each of at least three
nationally recognized investment banking firms selected by us
for this purpose.
Conversion
Upon Satisfaction of Trading Price Condition
Holders may surrender notes for conversion during the five
business day period after any five consecutive trading day
period (the measurement period) in which the
trading price per $1,000 principal amount of notes
was less than 98% of the product of the closing price of our
common stock and the conversion rate for such date, subject to
compliance with the procedures and conditions described below
concerning the trustees obligation to make a trading price
determination.
The trading price of the notes on any date of
determination means the average of the secondary market bid
quotations obtained by the trustee for $2.0 million
principal amount of the notes at approximately 3:30 p.m.,
New York City time, on such determination date from three
nationally recognized securities dealers we select; provided
that if three such bids cannot reasonably be obtained by the
trustee, but two such bids are obtained, then the average of the
two bids shall be used, and if only one such bid can reasonably
be obtained by the trustee, that one bid
S-20
shall be used. If the trustee cannot reasonably obtain at least
one bid for $2.0 million principal amount of the notes from
a nationally recognized securities dealer, then the trading
price per $1,000 principal amount of notes will be deemed to be
less than 98% of the product of the closing price of our common
stock and the conversion rate.
In connection with any conversion upon satisfaction of the above
trading pricing condition, the trustee shall have no obligation
to determine the trading price of the notes unless we have
requested such determination; and we shall have no obligation to
make such request unless a holder provides us with reasonable
evidence that the trading price per $1,000 principal amount of
notes would be less than 98% of the product of the closing price
of our common stock and the conversion rate. At such time, we
shall instruct the trustee to determine the trading price of the
notes beginning on the next trading day and on each successive
trading day until the trading price per $1,000 principal amount
of notes is greater than or equal to 98% of the product of the
closing price of our common stock and the conversion rate.
Conversion
Upon Occurrence of Specified Corporate
Transactions
If we elect to distribute to all holders of our common stock:
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certain rights or warrants entitling them to subscribe for or
purchase, for a period expiring within 60 days of the
record date for such distribution, our common stock at less than
the average of the closing prices for the five consecutive
trading days ending on the date immediately preceding the first
public announcement of the distribution, or
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cash, debt securities (or other evidence of indebtedness) or
other assets (excluding dividends or distributions described in
clauses (i) and (ii) of the second paragraph under
Adjustment to Conversion Rate General),
which distribution, together with all other such distributions
within the preceding twelve months, has a per share value
exceeding 10% of the average of the closing prices for the five
consecutive trading days ending on the date immediately
preceding the first public announcement of the distribution,
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we must notify the holders of the notes at least 20 trading days
prior to the ex-dividend date for such distribution. Once we
have given such notice, holders may surrender their notes for
conversion at any time until the earlier of the close of
business on the business day prior to the ex-dividend date or
our announcement that such distribution will not take place,
even if the notes are not otherwise convertible at that time. No
adjustment to the ability of the holders to convert will be made
if the holders are entitled to participate in the distribution
without conversion.
In addition, if a change in control (as defined below) occurs or
if we are a party to a consolidation, merger, binding share
exchange, or transfer or lease of all or substantially all of
our assets, pursuant to which our common stock would be
converted into cash, securities or other assets, the notes may
be surrendered for conversion at any time from or after the date
which is 15 trading days prior to the anticipated effective time
of the transaction until 35 trading days after the actual date
of such transaction (or, if such transaction also constitutes a
change in control, until the change in control purchase date (as
defined below)). After the effective time of the transaction,
the conversion value and the daily share amount will be based on
the kind and amount of cash, securities or other assets of
Symantec or another person that a holder of our common stock
received in the transaction (or, if the transaction provides the
holders of our common stock with the right to receive more than
a single type of consideration determined based in part upon any
form of stockholder election, the weighted average of the types
and amounts of consideration received by the holders of our
common stock); provided that, for the avoidance of doubt, the
conversion value will be paid in cash and at our election, cash,
common stock or a combination of cash and common stock in
accordance with the applicable procedures set forth under
Conversion Rights General. We will
notify holders and the trustee as promptly as practicable
following the date we publicly announce such transaction but in
no event less than 20 trading days prior to the anticipated
effective date of such transaction.
In the case of any change in control, (i) the conversion
rate will be adjusted as set forth below under Adjustment
to Conversion Rate Upon a Change in Control and
(ii) the holder can require us to purchase all or a portion
of its notes as described under Repurchase at the Option
of the Holder Upon a Change in Control.
S-21
Conversion
During Period Prior to Maturity
Notwithstanding anything herein to the contrary, holders may
surrender the 2011 notes for conversion at any time on or after
April 5, 2011 and the 2013 notes for conversion at any time
on or after April 5, 2013, in each case until the close of
business on the business day immediately preceding the
applicable maturity date.
Conversion
Procedures
To convert a note represented by a global security, a holder
must convert by book-entry transfer to the conversion agent
through the facilities of the DTC.
To convert a note that is represented by a certificated security
(as defined below), a holder must:
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complete and manually sign a conversion notice, a form of which
is on the back of the note, and deliver the conversion notice to
the conversion agent;
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surrender the note to the conversion agent;
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if required by the conversion agent, furnish appropriate
endorsement and transfer documents; and
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if required, pay all transfer or similar taxes.
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On conversion of a note, a holder will not receive, except as
described below, any cash payment representing accrued interest.
Instead, accrued interest will be deemed paid by the cash
and/or
shares of common stock, if any, received by the holder on
conversion. Delivery to the holder of such cash
and/or
shares will thus be deemed:
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to satisfy our obligation to pay the principal amount of a
note; and
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to satisfy our obligation to pay accrued and unpaid interest.
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As a result, accrued interest is deemed paid in full rather than
cancelled, extinguished or forfeited.
Holders of notes surrendered for conversion during the period
from the close of business on any regular record date next
preceding any interest payment date to the opening of business
of such interest payment date will receive the semiannual
interest payable on such notes on the corresponding interest
payment date notwithstanding the conversion, and such notes upon
surrender must be accompanied by funds equal to the amount of
such payment; provided that no such payment need be made:
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in connection with any conversion following the regular record
date immediately preceding the maturity date;
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if we have specified a change in control purchase date that is
after a record date and on or prior to the corresponding
interest payment date; or
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to the extent of any overdue interest, if any overdue interest
exists at the time of conversion with respect to such note.
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Symantec will not be required to convert any notes that are
surrendered for conversion without payment of interest as
required by this paragraph.
Adjustment
to Conversion Rate
General
The conversion rate on the applicable notes will not be adjusted
for accrued interest. For a discussion of the tax treatment of a
holder receiving cash or cash and shares of our common stock,
upon surrendering notes for conversion, see Certain
U.S. Federal Income Tax Considerations.
We will adjust the conversion rate on the applicable notes if
any of the following events occur:
(i) We issue dividends or distributions on shares of our
common stock payable in shares of common stock.
S-22
(ii) We subdivide, combine or reclassify shares of our
common stock.
(iii) We distribute to all holders of shares of our common
stock certain rights to purchase shares of our common stock for
a period expiring within 60 days after the record date for
such distribution at less than the average of the closing prices
for the five consecutive trading days immediately preceding the
first public announcement of the distribution.
(iv) We distribute to all holders of shares of our common
stock our capital stock, assets (including shares of any
subsidiary or business unit of ours but excluding distributions
described in (i) above) or debt securities or certain
rights to purchase our securities (excluding any rights
described in clause (iii) above and any cash dividends or
other cash distributions), in which event the conversion rate
will be adjusted by multiplying such conversion rate by a
fraction,
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the numerator of which will be the current market price (as
defined below) of our common stock and
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the denominator of which will be the current market price of our
common stock minus the fair market value, as determined by our
board of directors, of the portion of those assets, debt
securities, shares of capital stock or rights so distributed
applicable to one share of our common stock.
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With respect to an adjustment pursuant to this clause (iv)
where there has been a payment of a dividend or other
distribution on our common stock of shares of capital stock of,
or similar interests in, a subsidiary or other business unit of
ours, then the conversion rate will be adjusted by multiplying
such conversion rate by a fraction,
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the numerator of which will be the sum of (1) the average
of the closing prices of the capital stock or other similar
equity interest distributed to holders of our common stock
applicable to one share of our common stock over the five
trading days commencing on and including the fifth trading day
after the date on which ex-dividend trading
commences for such dividend or other distribution on the
principal national securities exchange or inter-dealer quotation
system on which such securities are then listed or trades plus
(2) the average of the closing prices of our common stock
over the five trading days commencing and including the fifth
trading day after the date on which ex-dividend
trading commences for such dividend or distribution on the
principal national securities exchange or inter-dealer quotation
system on which our common stock is then listed or
traded, and
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the denominator of which will be the average of the closing
prices of our common stock over the five trading days commencing
and including the fifth trading day after the date on which
ex-dividend trading commences for such dividend or
distribution on the principal national securities exchange or
inter-dealer quotation system on which our common stock is then
listed or traded.
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(v) We distribute cash dividends or other cash
distributions to all or substantially all holders of our common
stock, other than (1) distributions described in
clause (vi) below or (2) any dividend or distribution
in connection with our liquidation, dissolution or winding up,
in which event the conversion rate will be adjusted by
multiplying such conversion rate by a fraction,
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the numerator of which will be the current market price of our
common stock and
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the denominator of which will be the current market price of our
common stock minus the amount per share of such dividend or
distribution.
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(vi) We or any of our subsidiaries distribute cash or other
consideration in respect of a tender offer or exchange offer for
our common stock, where such cash and the value of any such
other consideration per share of our common stock validly
tendered or exchanged exceeds the closing price of our common
stock on the trading day following the last date on which
tenders or exchanges may be made pursuant to the tender or
exchange offer, in which event the conversion rate will be
adjusted by multiplying such conversion rate by a fraction,
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the numerator of which will be the sum of (1) the fair
market value, as determined by our board of directors, of the
aggregate consideration payable for all shares of our common
stock we purchase in such tender or exchange offer and
(2) the product of the number of shares of our common stock
outstanding,
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S-23
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less any such purchased shares, and the closing price of our
common stock on the trading day following the expiration of the
tender or exchange offer and
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the denominator of which will be the product of the number of
shares of our common stock outstanding, including any such
purchased shares, and the closing price of our common stock on
the trading day following the expiration of the tender or
exchange offer.
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Current market price of our common stock on any day
means the average of the closing price per share of our common
stock for each of the 5 consecutive trading days ending on the
earlier of the day in question and the day before the
ex-dividend date with respect to the issuance or
distribution requiring such computation.
Ex-dividend date means the first date on which the
shares of our common stock trade on the applicable exchange or
in the applicable market, regular way, without the right to
receive such issuance or distribution.
In the event we elect to make a distribution described in
clause (iii), (iv) or (v) of the preceding
paragraph which, in the case of (iv) or (v), has a per
share value equal to more than 10% of the closing price of
shares of our common stock on the day preceding the declaration
date for such distribution, we will be required to give notice
to the holders of notes at least 20 trading days prior to the
ex-dividend date for such distribution. See Conversion
Upon Occurrence of Specified Corporate Transactions above.
No adjustment to the conversion rate will be made if holders of
the applicable notes will participate in the transaction without
conversion or in certain other cases.
If the shareholders rights plan under which any rights are
issued provides that each share of common stock issued upon
conversion of notes at any time prior to the distribution of
separate certificates representing such rights will be entitled
to receive such rights, there shall not be any adjustment to the
conversion privilege or conversion rate. If prior to any
conversion the rights have separated from the common stock, the
conversion rate will be adjusted at the time of separation as if
we distributed to all holders of our common stock, our assets,
debt securities or rights as described in clause (iv)
above, subject to readjustment in the event of the expiration,
termination or redemption of such rights.
Notwithstanding anything in this section Adjustment to
Conversion Rate to the contrary, we will not be required
to adjust the conversion rate unless the adjustment would result
in a change of at least 1% of the conversion rate. However, we
will carry forward any adjustments that are less than 1% of the
conversion rate and take them into account when determining
subsequent adjustments. In addition, we will make any carry
forward adjustments not otherwise effected upon required
purchases of the notes in connection with a change in control,
and on April 5, 2011 for the 2011 notes and on
April 5, 2013 for the 2013 notes. Except as stated above,
the conversion rate will not be adjusted for the issuance of our
common stock or any securities convertible into or exchangeable
for our common stock or carrying the right to purchase our
common stock or any such security.
The conversion rate shall not exceed 64.0615 shares per
$1,000 principal amount of the 2011 notes or the 2013 notes on
account of adjustments to the conversion rate described in
Adjustment to Conversion Rate Upon a Change in
Control, subject to the adjustments set forth in
clauses (i) through (vi) above. Further,
notwithstanding anything in this section Adjustment To
Conversion Rate to the contrary (subject only to the
provisions of the second succeeding sentence), the conversion
rate shall not exceed 98.5690 per $1,000 principal amount
of the 2011 notes or the 2013 notes, equivalent to a conversion
price of $10.15 per share of common stock (which reflects
the exercise of the Initial Purchasers over-allotment
option with respect to the 2011 notes), other than as a result
of proportional adjustments to the conversion rate in the manner
set forth in clauses (i) through (iv) above (the
limitations on the conversion rate set forth in this sentence
are herein referred to as the Conversion Rate Cap).
Accordingly, other than as a result of such proportional
adjustments (subject only to the provisions of the next
succeeding sentence), in no event will the shares issuable upon
conversion of the notes exceed 20% of our common stock
outstanding before the issuance of the notes. The Company has
agreed that it will not take any action described in
paragraphs (v) or (vi) above if, as a result of
such action, the conversion rate adjustment that would otherwise
be made pursuant to the provisions of (v) or
(vi) would be limited by the Conversion Rate Cap, unless
such action would not result in a violation of NASD
Rule 4350 as such rule or successor to such rule may be
then in effect and interpreted by the NASD (or any similar rule
of any other stock exchange which is the primary exchange upon
which the Companys common stock is listed). If such action
would not result in a violation of NASD Rule 4350, or any
successor rule or
S-24
similar rule of any other stock exchange which is the primary
exchange upon which the Companys common stock is then
listed, then the Conversion Rate Cap shall not apply to such
action taken by the Company.
Treatment
of Reference Property
In the event of:
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any reclassification of our common stock; or
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a consolidation, merger or combination involving us; or
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a sale or conveyance to another person of all or substantially
all of our assets,
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in which holders of our outstanding common stock would be
entitled to receive cash, securities or other property for their
shares of common stock, if you convert your notes on or after
the effective date of any such event, you will receive in
connection with any such conversion:
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cash in an amount equal to the required cash amount; and
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in lieu of the remaining shares otherwise deliverable, if any,
the same type (in the same proportions) of consideration
received by holders of our common stock in the relevant event
(reference property), cash and at our election,
cash, or a combination of cash and reference property, at our
election, in accordance with the applicable procedures set forth
under Conversion Rights General.
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The amount of cash and any reference property you receive will
be based on the daily share amounts and volume weighted average
prices of reference property, and the applicable conversion
rate, as described above.
For purposes of the foregoing, the type and amount of
consideration that a holder of our common stock would have been
entitled to in the case of reclassifications, consolidations,
mergers, sales or transfers of assets or other transactions that
cause our common stock to be converted into the right to receive
more than a single type of consideration (determined based in
part upon any form of stockholder election) will be deemed to be
the weighted average of the types and amounts of consideration
received by the holders of our common stock upon the occurrence
of such event.
Adjustment
to Conversion Rate Upon a Change in Control
If a change in control (as defined below) occurs and a holder
elects to convert its notes in connection with such change in
control, we will increase the applicable conversion rate for the
notes surrendered for conversion by a number of additional
shares of our common stock (the make-whole shares),
as described below. A conversion of notes will be deemed for
these purposes to be in connection with such a
change in control transaction if the notice of conversion of the
notes is received by the conversion agent from and including the
effective date of the change in control transaction up to and
including the trading day prior to the related change in control
purchase date.
The number of make-whole shares will be determined by reference
to the table below and is based on the date on which such change
in control transaction becomes effective (the change in
control effective date) and the price paid per share of
our common stock in the change in control (in the case of a
change in control described in the second bullet of the
definition thereof), or in the case of all other changes in
control, the average of the closing prices per share of our
common stock over the five
trading-day
period ending on the trading day preceding the effective date of
such other change in control (the stock price). If
holders of our common stock receive only cash in the case of a
change in control described in the second bullet of the
definition of change in control set forth below
under Repurchase at the Option of the Holder Upon a Change
in Control, the stock price shall be the cash amount paid
per share. Otherwise, the stock price shall be the average of
the closing prices per share of our common stock over the five
trading-day
period ending on the trading day preceding the effective date of
the change in control.
The stock prices set forth in the first row of the 2011
Notes Make-Whole
Table and the 2013
Notes Make-Whole
Table below will be adjusted as of any date on which the
conversion rate of the notes is adjusted. The adjusted stock
prices will equal the stock prices applicable immediately prior
to such adjustment multiplied by a fraction, the numerator of
which is the applicable conversion rate immediately prior to the
adjustment giving rise to the stock price adjustment and the
denominator of which is the applicable conversion rate as so
adjusted. In addition, the
S-25
number of make-whole shares will be subject to adjustment in the
same manner as the applicable conversion rate as set forth above
under Adjustment To Conversion Rate-General.
2011
Notes Make-Whole
Table
The following table sets forth the stock price and number of
make-whole shares of our common stock to be added to the
conversion rate per $1,000 principal amount of 2011 notes:
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Stock Price
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Effective Date
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$15.61
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$17.50
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$19.00
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$20.50
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$22.00
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$24.00
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$26.00
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$28.00
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$30.00
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$32.00
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June 16, 2006
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11.7664
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8.7941
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7.0541
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5.7103
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4.6630
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3.6060
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2.8302
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2.2551
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1.8254
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1.5022
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June 15, 2007
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11.7664
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8.7659
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6.9077
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5.4875
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4.3936
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3.3059
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2.5231
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1.9550
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1.5405
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1.2368
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June 15, 2008
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11.7664
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8.6069
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6.6133
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5.1125
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3.9763
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2.8724
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2.1011
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1.5602
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1.1801
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0.9133
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June 15, 2009
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11.7664
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8.2097
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6.0544
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4.4721
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3.3098
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2.2254
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1.5082
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1.0359
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0.7277
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0.5294
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June 15, 2010
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11.7664
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7.3165
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4.9353
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3.2820
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2.1526
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1.2017
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0.6582
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0.3595
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0.2053
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0.1350
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June 15, 2011
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11.7664
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4.8478
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0.3365
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0.0000
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0.0000
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0.0000
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0.0000
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0.0000
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0.0000
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0.0000
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The exact stock prices and effective dates may not be set forth
in the applicable table, in which case:
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If the stock price is between two stock price amounts in the
applicable table or the effective date is between two dates in
the applicable table, the make-whole shares issued upon
conversion of the applicable notes will be determined by
straight-line interpolation between the number of make-whole
shares set forth for the higher and lower stock price amounts
and the two dates, as applicable, based on a
365-day year;
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If the stock price is in excess of $32.00 per share of
common stock (subject to adjustment), no make-whole shares will
be issued upon conversion of the 2011 notes; and
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If the stock price is less than $15.61 per share of common
stock (subject to adjustment), no make-whole shares will be
issued upon conversion of the 2011 notes.
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2013
Notes Make-Whole
Table
The following table sets forth the stock price and number of
make-whole shares of our common stock to be added to the
conversion rate per $1,000 principal amount of 2013 notes:
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Stock Price
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Effective Date
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$15.61
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$17.50
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$19.00
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$20.50
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$22.00
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$24.00
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$26.00
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$28.00
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$30.00
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$32.00
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June 16, 2006
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11.7664
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9.1172
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7.5474
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6.3166
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5.3415
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4.3367
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3.5795
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3.0018
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2.5564
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2.2100
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June 15, 2007
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11.7664
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9.1423
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7.4817
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6.1881
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5.1705
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4.1309
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3.3562
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2.7722
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2.3278
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1.9869
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June 15, 2008
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11.7664
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9.1207
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7.3587
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5.9971
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4.9355
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3.8632
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3.0755
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2.4911
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2.0539
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1.7248
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June 15, 2009
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11.7664
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9.0189
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7.1432
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5.7092
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4.6043
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3.5055
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2.7142
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2.1400
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1.7209
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1.4138
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June 15, 2010
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11.7664
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8.7896
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6.7821
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5.2705
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4.1261
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3.0143
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2.2377
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1.6933
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1.3110
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1.0430
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June 15, 2011
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11.7664
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8.3181
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6.1529
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4.5633
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3.3961
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2.3077
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1.5885
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1.1158
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0.8081
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0.6112
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June 15, 2012
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11.7664
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7.3451
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4.9578
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3.3011
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2.1704
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1.2203
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0.6793
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0.3842
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0.2341
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0.1680
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June 15, 2013
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11.7664
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4.8478
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0.3365
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0.0000
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0.0000
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0.0000
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0.0000
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0.0000
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0.0000
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0.0000
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The exact stock prices and effective dates may not be set forth
in the applicable table, in which case:
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If the stock price is between two stock price amounts in the
applicable table or the effective date is between two dates in
the applicable table, the make-whole shares issued upon
conversion of the applicable notes will be determined by
straight-line interpolation between the number of make-whole
shares set forth for the higher and lower stock price amounts
and the two dates, as applicable, based on a
365-day year;
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If the stock price is in excess of $32.00 per share of
common stock (subject to adjustment), no make-whole shares will
be issued upon conversion of the 2013 notes; and
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S-26
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If the stock price is less than $15.61 per share of common
stock (subject to adjustment), no make-whole shares will be
issued upon conversion of the 2013 notes.
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The adjustments described in this section are subject to the
limitations described above under Adjustment To Conversion
Rate General.
Our obligation to deliver the make-whole shares could be
considered a penalty, in which case the enforceability thereof
would be subject to general principles of reasonableness of
economic remedies.
Repurchase
at the Option of the Holder Upon a Change in Control
In the event of any change in control, each holder will have the
right, at the holders option, subject to the terms and
conditions of the applicable indenture, to require us to
purchase for cash all or any portion of the holders notes
in integral multiples of $1,000 principal amount at a price (the
change in control purchase price) equal to 100% of
the principal amount of the notes to be purchased, plus accrued
and unpaid interest to, but excluding, the change in control
purchase date unless the change in control purchase date is
after a regular record date and on or prior to the interest
payment date to which it relates, in which case interest accrued
to the interest payment date will be paid to holders of the
notes as of the preceding record date). Upon a valid exercise of
such an option, we will be required to purchase the notes as of
the date that is no later than 35 trading days after the
occurrence of such change in control (a change in control
purchase date).
As promptly as practicable following the date we publicly
announce such change in control but in no event less than
15 days prior to the anticipated effective date of a change
in control, we are obligated to mail to the trustee and to all
holders of notes at their addresses shown in the register of the
registrar, and to beneficial owners as required by applicable
law, a notice regarding the change in control, which notice
shall state, among other things, as applicable:
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the events causing a change in control;
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the date of such change in control;
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the last date on which the purchase right may be exercised;
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the change in control purchase price;
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the change in control purchase date;
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the name and address of the paying agent and the conversion
agent;
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the applicable conversion rate and any adjustments to the
applicable conversion rate;
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that notes with respect to which a change in control purchase
notice is given by the holder may be converted only if the
change in control purchase notice has been withdrawn in
accordance with the terms of the applicable indenture; and
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the procedures that holders must follow to exercise these rights.
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To exercise this right, the holder must deliver a written notice
to the paying agent prior to the close of business on the change
in control purchase date. The required purchase notice upon a
change in control shall state:
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if certificated notes have been issued, the certificate number
of the notes (or, if your notes are not certificated, your
notice must comply with appropriate DTC procedures);
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the portion of the principal amount of notes to be purchased,
which portion must be $1,000 or an integral multiple of $1,000;
and
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that we are to purchase such notes pursuant to the applicable
provisions of the indentures and the notes.
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A holder may withdraw any change in control purchase notice by
delivering to the paying agent a written notice of withdrawal
prior to the close of business on the change in control purchase
date. The notice of withdrawal shall state:
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the principal amount being withdrawn;
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S-27
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the certificate numbers of the notes being withdrawn (or, if
your notes are not certificated, your notice must comply with
appropriate DTC procedures); and
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the principal amount, if any, of the notes that remain subject
to a change in control purchase notice.
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Our obligation to pay the change in control purchase price for a
note for which a change in control purchase notice has been
delivered and not validly withdrawn is conditioned upon delivery
of the note, together with all necessary endorsements and
compliance by the holder with all DTC procedures, as applicable,
to the paying agent at any time after the delivery of such
change in control purchase notice. Payment of the change in
control purchase price for such note will be made on the third
business day following the later of the change in control
purchase date or the time of delivery of such note.
If the paying agent holds money sufficient to pay the change in
control purchase price of the note on the third business day
following the change in control purchase date in accordance with
the terms of the applicable indenture, then, immediately after
the change in control purchase date, interest on such note will
cease to accrue, whether or not the note is delivered to the
paying agent, and all other rights of the holder shall
terminate, other than the right to receive the change in control
purchase price upon delivery of the note.
A change in control means the following events:
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any person or group, other than Symantec, its subsidiaries or
any employee benefit plan of Symantec or its subsidiaries, files
a Schedule 13D or Schedule TO (or any successor schedule,
form or report) pursuant to the Securities Exchange Act of 1934,
as amended, or the Exchange Act, disclosing that such person has
become the beneficial owner of shares with a majority of the
total voting power of all of our outstanding voting securities
that are entitled to vote generally in the election of our board
of directors (Voting Securities), unless such
beneficial ownership arises solely as a result of a revocable
proxy delivered in response to a proxy or consent solicitation
made pursuant to the applicable rules and regulations under the
Exchange Act; or
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Symantec consolidates with or merges with or into another person
(other than a subsidiary of Symantec), or sells, conveys,
transfers or leases all or substantially all of its properties
and assets to any person (other than a subsidiary of Symantec),
or any person (other than a subsidiary of Symantec) consolidates
with or merges with or into Symantec, and the outstanding Voting
Securities of Symantec are reclassified into, converted for or
converted into the right to receive any property or security,
provided that none of these circumstances will be a change in
control if persons that beneficially own the Voting Securities
of Symantec immediately prior to the transaction own, directly
or indirectly, a majority of the Voting Securities of the
surviving or transferee person immediately after the transaction
in substantially the same proportion as their ownership of
Symantec Voting Securities immediately prior to the transaction.
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For purposes of defining a change in control:
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the term person and the term group have
the meanings given by Section 13(d) and 14(d) of the
Exchange Act or any successor provisions;
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the term group includes any group acting for the
purpose of acquiring, holding or disposing of securities within
the meaning of
Rule 13d-5(b)(1)
under the Exchange Act or any successor provision; and
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the term beneficial owner is determined in
accordance with Rules
13d-3 and
13d-5 under
the Exchange Act or any successor provisions, except that a
person will be deemed to have beneficial ownership of all shares
that person has the right to acquire irrespective of whether
that right is exercisable immediately or only after the passage
of time.
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Notwithstanding the foregoing, it will not constitute a change
in control if at least 90% of the consideration for our common
stock (excluding cash payments for fractional shares and cash
payments made in respect of dissenters appraisal rights
and cash payment of the required cash payment, if any) in the
transaction or transactions constituting the change in control
consists of common stock traded on a United States national
securities exchange or quoted on the NASDAQ Global Select Market
or NASDAQ Global Market, or which will be so traded or quoted
S-28
when issued or exchanged in connection with the change in
control, and as a result of such transaction or transactions the
notes become convertible solely into such common stock.
In connection with any purchase offer in the event of a change
in control, to the extent required by applicable law, we will:
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comply with the provisions of
Rule 13e-4,
Rule 14e-1
and any other tender offer rules under the Exchange Act which
may then be applicable; and
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otherwise comply with all federal and state securities laws as
necessary under the applicable indenture to effect a change in
control purchase of notes by us at the option of a holder.
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No notes may be purchased by us at the option of holders upon a
change in control if there has occurred and is continuing an
event of default with respect to the notes, other than a default
in the payment of the change in control purchase price with
respect to the notes.
Change in control repurchase rights could discourage a potential
acquirer. However, this change in control repurchase feature is
not the result of our knowledge of any specific effort to obtain
control of us by means of a merger, tender offer or
solicitation, or part of a plan by us to adopt a series of
anti-takeover provisions. The term change in control
is limited to specified transactions and may not include other
events that might adversely affect our financial condition or
business operations. For example, we could, in the future, enter
into certain transactions, including certain recapitalizations,
that would not constitute a change in control with respect to
the change in control purchase feature of the notes, but that
would increase the amount of our outstanding indebtedness or the
outstanding indebtedness of our subsidiaries. Our obligation to
offer to repurchase the notes upon a change in control would not
necessarily afford you protection in the event of a highly
leveraged transaction, reorganization, merger or similar
transaction involving us.
We may be unable to redeem the notes in the event of a change in
control. If a change in control were to occur, we may not have
enough funds to pay the repurchase price for all the tendered
notes. Any future credit agreements or other agreements relating
to our indebtedness may contain provisions prohibiting
repurchase of the notes under some circumstances, or expressly
prohibit our repurchase of the notes upon a change in control or
may provide that a change in control constitutes an event of
default under that agreement. If a change in control occurs at a
time when we are prohibited from purchasing notes, we could seek
the consent of our lenders to repurchase the notes or attempt to
refinance this debt. If we do not obtain consent, we would not
be permitted to purchase the notes. Our failure to repurchase
tendered notes would constitute an event of default under the
applicable indenture, which might constitute a default under the
terms of our other indebtedness.
Events of
Default and Acceleration
The following are events of default under each indenture:
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default in payment of the principal amount or change in control
purchase price with respect to any note when such becomes due
and payable;
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default in payment of any interest due on the notes, which
default continues for 30 days;
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our failure to give timely notice of a change in control;
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our failure to comply with any of our other agreements in the
notes or the applicable indenture upon receipt by us of notice
of such default by the trustee or by holders of not less than
25% in aggregate principal amount of the 2011 notes or 2013
notes, as applicable, then outstanding and our failure to cure
(or obtain a waiver of) such default within 60 days after
we receive such notice;
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(i) our failure to make any payment by the end of any
applicable grace period after maturity of indebtedness, which
term as used in the applicable indenture means obligations
(other than nonrecourse obligations) of Symantec for borrowed
money or evidenced by bonds, notes or similar instruments
(Indebtedness) in an amount in excess of
$100.0 million and continuance of such failure, or
(ii) the acceleration of indebtedness in an amount in
excess of $100.0 million because of a default with respect
to such Indebtedness without such Indebtedness having been
discharged or such acceleration having been cured, waived,
rescinded or annulled
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S-29
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within a period of 30 days after written notice to us by
the trustee or to us and the trustee by the holders of not less
than 25% in aggregate principal amount of the 2011 notes or 2013
notes, as applicable, then outstanding. However, if any such
failure or acceleration referred to in (i) or
(ii) above shall cease or be cured, waived, rescinded or
annulled, then the event of default by reason thereof shall be
deemed not to have occurred; or
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certain events of bankruptcy or insolvency affecting us or any
of our significant subsidiaries (as such term is
defined under
Regulation S-X
under the Securities Act).
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If an event of default shall have happened and be continuing,
either the trustee or the holders of not less than 25% in
aggregate principal amount of the 2011 notes or 2013 notes, as
applicable, then outstanding may declare the principal amount of
the 2011 notes or 2013 notes, as applicable, and any accrued and
unpaid interest through the date of such declaration, to be
immediately due and payable. In the case of certain events of
bankruptcy or insolvency, the principal amount of the notes and
any unpaid interest accrued thereon through the occurrence of
such event shall automatically become and be immediately due and
payable.
Subject to the provisions of the indenture relating to the
duties of the trustee, if an event of default occurs and is
continuing, the trustee will be under no obligation to exercise
any of the rights or powers vested in it by the Indentures at
the request or direction of any of the holders, unless such
holders have offered to the trustee reasonable security or
indemnity against the costs, expenses and liabilities that might
be incurred by it in compliance with such request or direction.
Except to enforce the right to receive payment of principal or
interest, when due, no holder may institute any proceeding,
judicial or otherwise, with respect to the indentures or the
notes, or for the appointment of a receiver or trustee, or for
any other remedy under the indenture or the notes, unless:
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the holder has previously given to the trustee written notice of
a continuing event of default;
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holders of at least 25% in aggregate principal amount of
outstanding 2011 notes or 2013 notes, as applicable, have made
written request to the trustee to pursue the remedy;
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holders have offered to the trustee indemnity reasonably
satisfactory to the trustee against any costs, liabilities or
expenses to be incurred in compliance with such request;
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the trustee has not complied with such request within
60 days after the receipt of the notice, request and the
offer of indemnity; and
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during such
60-day
period, the holders of a majority in aggregate principal amount
of the outstanding 2011 notes or 2013 notes, as applicable,
have not given the trustee a direction that is inconsistent with
such written request.
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Subject to certain restrictions, the holders of a majority in
aggregate principal amount of the outstanding 2011 notes or 2013
notes, as applicable, may direct the time, method and place of
conducting any proceeding for any remedy available to the
trustee or exercising any trust or power conferred on the
trustee. Each indenture provides that if an event of default has
occurred and is continuing, the Trustee shall exercise those
rights and powers vested in it by the Indenture, the trustee
will be required in the exercise of its powers to use the same
degree of care and skill as a prudent man would exercise or use
under the circumstances in the conduct of his own affairs.
However, the trustee may refuse to follow any direction that
conflicts with law or the indenture, that may involve the
trustee in personal liability, or that the trustee determines in
good faith may be unduly prejudicial to the rights of holders of
2011 notes or 2013 notes, as applicable, not joining in the
giving of such direction, and may take any other action it deems
proper that is not inconsistent with any such direction received
from holders of notes.
The indenture provides that if a default occurs and is
continuing and is known to the trustee, the trustee must send
notice of the default to each holder notice of the default
within 90 days after it occurs, unless the default has been
cured. Except in the case of a default in the payment of
principal of or interest on any note, the trustee may withhold
notice if and so long as the trustee in good faith determines
that withholding notice is in the interests of the holders. In
addition, within 120 days after the end of each fiscal
year, we must deliver to the trustee an officers
certificate indicating whether we have fulfilled our obligations
under the Indentures or, if there has been a default, specifying
the default and its nature and status.
S-30
The sole remedy for any violation of any obligations we may be
deemed to have pursuant to section 314(a)(1) of the Trust
Indenture Act shall be the accrual of additional interest on the
notes (in the manner forth below under Registration
Rights as if such deemed violation were a
registration default) at a rate of 0.25% per
annum, payable semiannually. In no event shall additional
interest accrue at a per annum rate in excess of 0.25% per
annum pursuant to both the indentures and the registration
rights agreement, regardless of the number of events or
circumstances giving rise to the requirement to pay such
additional interest.
Mergers
and Sales of Assets
The indentures provide that we may consolidate with or merge
into any person or convey, transfer or lease our properties and
assets substantially as an entirety to another person, provided
that:
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the resulting, surviving or transferee person (if other than
Symantec) is organized and existing under the laws of the United
States, any state thereof or the District of Columbia;
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such person assumes all our obligations under the notes and the
applicable indenture;
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Symantec or such successor is not immediately thereafter in
default under the applicable indenture; and
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other conditions described in the applicable indenture are met.
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Upon the assumption of our obligations by such person in such
circumstances, subject to certain exceptions, we shall be
discharged from all obligations under the notes and the
indentures. Although such transactions are permitted under the
indentures, certain of the foregoing transactions occurring
could constitute a change in control, permitting each holder to
require us to purchase the notes of such holder as described
above.
Modification
We and the trustee may enter into supplemental indentures that
add, change or eliminate provisions of the applicable indenture
or modify the rights of the holders of the 2011 notes or 2013
notes, as applicable, with the consent of the holders of at
least a majority in principal amount of the 2011 notes or 2013
notes, as applicable, then outstanding. However, without the
consent of each holder affected thereby, no supplemental
indenture may:
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reduce the principal amount of, change in control purchase price
with respect to or any interest (including additional interest)
on any note;
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make any note payable in any currency or securities other than
that stated in the note;
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change the stated maturity of any note;
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make any change that adversely affects the right of a holder to
convert any note;
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make any change that adversely affects the right to require us
to purchase a note;
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impair the right to convert or receive payment with respect to
the notes or the right to institute suit for the enforcement of
any payment with respect to, or conversion of, the notes; or
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change the provisions in the applicable indenture that relate to
modifying or amending the provisions of the applicable indenture
described above.
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Without the consent of any holder of 2011 notes or 2013 notes,
as applicable, we and the trustee may enter into supplemental
indentures for any of the following purposes:
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to cure any ambiguity, omission, defect or inconsistency in the
applicable indenture;
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to evidence a successor to us and the assumption by that
successor of our obligations under the applicable indenture and
the 2011 notes or 2013 notes, as applicable;
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to secure our obligations in respect of the 2011 notes or 2013
notes, as applicable, and the applicable indenture;
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to add guarantees with respect to notes;
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S-31
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to add to our covenants for the benefit of the holders of the
2011 notes or 2013 notes, as applicable, or to surrender any
right or power conferred upon us;
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to make any changes to comply with the Trust Indenture Act, or
any amendment thereto, or to comply with any requirement of the
SEC in connection with the qualification of the applicable
indenture under the Trust Indenture Act; and
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to make any change that does not materially adversely affect the
rights of any holder of the notes.
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No amendment to cure any ambiguity, defect or inconsistency in
the indentures made solely to conform the indentures to the
description of the notes contained in this prospectus supplement
will be deemed to adversely affect the interests of the holders
of the notes.
The holders of a majority in principal amount of the outstanding
2011 notes or 2013 notes, as applicable, may, on behalf of the
holders of such notes, waive any existing or past default under
the applicable indenture and its consequences, except an uncured
default in the payment of the principal amount, accrued and
unpaid interest or change in control purchase price or in
respect of any provision which under the applicable indenture
cannot be modified or amended without the consent of the holder
of each outstanding note affected.
Discharge
of the Indentures
We may satisfy and discharge our obligations under the
applicable indenture by delivering to the trustee for
cancellation all outstanding 2011 notes or 2013 notes, as
applicable, or by depositing with the trustee, the paying agent
or the conversion agent, if applicable after the 2011 notes or
2013 notes, as applicable, have become due and payable, whether
at stated maturity, or a change in control purchase date, or
upon conversion or otherwise, cash, shares of common stock
(solely to satisfy outstanding conversions, if applicable) or
government obligations (in each case pursuant to the terms of
the indentures) sufficient to pay all of the outstanding notes
and paying all other sums payable under the indentures by us.
Calculations
in Respect of Notes
We are responsible for making all calculations called for under
the notes. These calculations include, but are not limited to,
conversion value, the conversion date, the volume weighted
average price, the conversion reference period, the trading
prices of the notes, the closing price, the conversion price,
the required cash amount, the applicable conversion rate and the
number of shares of common stock, if any, to be issued upon
conversion of the notes. We will make all these calculations in
good faith and, absent manifest error, our calculations will be
final and binding on holders of notes. We will provide a
schedule of our calculations to the trustee, and the trustee is
entitled to rely upon the accuracy of our calculations without
independent verification.
Information
Concerning the Trustee
U.S. Bank National Association is the trustee, registrar,
paying agent and conversion agent. In addition, the trustee is a
lender under our five year credit facility, which is dated as of
July 12, 2006 and has a borrowing capacity of
$1 billion. We may maintain deposit accounts and conduct
other banking transactions with the trustee in the normal course
of business.
Governing
Law
The indentures and the notes are governed by, and construed in
accordance with, the law of the State of New York.
Global
Notes; Book-Entry; Form
The notes are in the form of global securities. The global
securities are on deposit with the trustee as custodian for DTC
and registered in the name of a nominee of DTC. Except as set
forth below, each global security may be transferred, in whole
and not in part, only to DTC or another nominee of DTC. You will
hold your beneficial interests in the global securities directly
through DTC if you have an account with DTC or indirectly
through
S-32
organizations that have accounts with DTC. Notes in definitive
certificated form (called certificated securities)
will be issued only in limited circumstances described below.
DTC has advised us that it is:
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a limited purpose trust company organized under the laws of the
State of New York;
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a member of the Federal Reserve System;
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a clearing corporation within the meaning of the New
York Uniform Commercial Code; and
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a clearing agency registered pursuant to the
provisions of Section 17A of the Exchange Act.
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DTC was created to hold securities of institutions that have
accounts with DTC (called participants) and to
facilitate the clearance and settlement of securities
transactions among its participants in such securities through
electronic book-entry changes in accounts of the participants,
thereby eliminating the need for physical movement of securities
certificates. DTCs participants include securities brokers
and dealers, which may include the initial purchasers, banks,
trust companies, clearing corporations and certain other
organizations. Access to DTCs book-entry system is also
available to others such as banks, brokers, dealers and trust
companies (called, the indirect participants) that
clear through or maintain a custodial relationship with a
participant, whether directly or indirectly.
Ownership of beneficial interests in the global securities is
limited to participants or persons that may hold interests
through participants. Ownership of beneficial interests in the
global securities will be shown on, and the transfer of those
beneficial interests will be effected only through, records
maintained by DTC (with respect to participants
interests), the participants and the indirect participants.
The laws of some jurisdictions may require that certain
purchasers of securities take physical delivery of such
securities in definitive form. These limits and laws may impair
the ability to transfer or pledge beneficial interests in the
global securities.
Owners of beneficial interests in global securities who desire
to convert their interests into common stock should contact
their brokers or other participants or indirect participants
through whom they hold such beneficial interests to obtain
information on procedures, including proper forms and cut-off
times, for submitting requests for conversion. So long as DTC,
or its nominee, is the registered owner or holder of a global
security, DTC or its nominee, as the case may be, will be
considered the sole owner or holder of the notes represented by
the applicable global security for all purposes under the
applicable indenture and the 2011 notes or 2013 notes, as
applicable. In addition, no owner of a beneficial interest in a
global security will be able to transfer that interest except in
accordance with the applicable procedures of DTC.
Except as set forth below, as an owner of a beneficial interest
in a global security, you will not be entitled to have the notes
represented by a global security registered in your name, will
not receive or be entitled to receive physical delivery of
certificated securities and will not be considered to be the
owner or holder of any notes under a global security. We
understand that under existing industry practice, if an owner of
a beneficial interest in a global security desires to take
action that DTC, as the holder of the global securities, is
entitled to take, DTC would authorize the participants to take
such action. Additionally, in such case, the participants would
authorize beneficial owners through such participants to take
such action or would otherwise act upon the instructions of
beneficial owners owning through them.
We will make payments of principal and interest (including any
additional interest) on the notes represented by the global
securities registered in the name of and held by DTC or its
nominee to DTC or its nominee, as the case may be, as the
registered owner and holder of the global securities. Neither
we, the trustee nor any paying agent will have any
responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial interests
in the global securities or for maintaining, supervising or
reviewing any records relating to such beneficial interests.
We expect that DTC or its nominee, upon receipt of any payment
of principal or interest (including additional interest) of a
global security, will credit participants accounts with
payments in amounts proportionate to their respective beneficial
interests in the principal amount of the global securities as
shown on the records of DTC or its
S-33
nominee. We also expect that payments by participants or
indirect participants to owners of beneficial interests in a
global security held through such participants or indirect
participants will be governed by standing instructions and
customary practices and will be the responsibility of such
participants or indirect participant. We will not have any
responsibility or liability for any aspect of the records
relating to, or payments made on account of, beneficial
interests in the global securities for any note or for
maintaining, supervising or reviewing any records relating to
such beneficial interests or for any other aspect of the
relationship between DTC and its participants or indirect
participants or the relationship between such participants or
indirect participants and the owners of beneficial interests in
the global securities owning through such participants.
Transfers between participants in DTC will be effected in the
ordinary way in accordance with DTC rules and will be settled in
same-day
funds.
DTC has advised us that it will take any action permitted to be
taken by a holder of notes only at the direction of one or more
participants to whose account the DTC interests in the
applicable global security is credited and only in respect of
such portion of the aggregate principal amount of 2011 notes or
2013 notes, as applicable, as to which such participant or
participants has or have given such direction. However, if DTC
notifies us that it is unwilling to be a depositary for the
global securities or ceases to be a clearing agency and we do
not appoint a successor depositary or clearing agency within
90 days after receiving notice from DTC or becoming aware
that DTC is no longer a clearing agency or there is an event of
default under the notes, DTC will exchange the global securities
for certificated securities which it will distribute to its
participants and which will be legended, if required. Although
DTC is expected to follow the foregoing procedures in order to
facilitate transfers of interests in the global securities among
participants of DTC, it is under no obligation to perform or
continue to perform such procedures, and such procedures may be
discontinued at any time. Neither we nor the trustee will have
any responsibility, or liability for the performance by DTC or
the participants or indirect participants of their respective
obligations under the rules and procedures governing their
respective operations.
Registration
Rights
We are a party to a registration rights agreement with the
initial purchasers. Pursuant to the registration rights
agreement, we agreed to file, at our expense, with the SEC,
subject to certain conditions set forth below, the shelf
registration statement to which this prospectus supplement
relates covering resales by holders of all notes and the common
stock issuable upon conversion of the notes. We will use our
reasonable efforts to:
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cause such shelf registration statement to become effective no
later than December 13, 2006 (the shelf effectiveness
deadline); and
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keep the shelf registration statement effective until
June 16, 2008; or until the earlier of (i) the sale or
transfer pursuant to the shelf registration statement of the
notes and the common stock issuable upon conversion of the
notes, and (ii) the date when holders, other than holders
that are our affiliates, of the notes and the common
stock issuable upon conversion of the notes are able to sell all
such securities immediately without restriction pursuant to the
volume limitation provisions of Rule 144 under the
Securities Act or any successor rule thereto or otherwise.
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We are permitted to suspend the use of the prospectus that is
part of the shelf registration statement under certain
circumstances relating to pending corporate developments, public
filings with the SEC and similar events for a period not to
exceed 90 consecutive days or an aggregate of 120 days in
any twelve-month period. We need not specify the nature of the
event giving rise to a suspension in any notice of a suspension
provided to the holders.
If:
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the registration statement shall cease to be effective or fail
to be usable without being succeeded within seven business days
by a post-effective amendment or a report filed with the SEC
pursuant to the Exchange Act that cures the failure of the
registration statement to be effective or usable; or
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the prospectus is unusable for a period longer than the period
permitted by the preceding paragraph,
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each a registration default, additional interest
will accrue on the notes, from and including the day following
the registration default to but excluding the day on which the
registration default has been cured or the date such notes
S-34
are no longer required to bear a restrictive legend. Additional
interest will accrue at an additional rate per year equal to
0.25% of the principal amount of the notes.
In no event will additional interest accrue at a rate per year
exceeding 0.25% of the issue price of the notes and no
additional interest will accrue after June 16, 2008. We
will have no other liabilities for monetary damages with respect
to any registration default. If a holder has converted some or
all of its notes into common stock, the holder will not be
entitled to receive any additional interest with respect to such
common stock or the principal amount of the notes converted.
Except as otherwise noted, all references in this prospectus
supplement to the payment of interest on the notes include the
payment of additional interest, if applicable.
We will provide to each registered holder copies of the
prospectus and take certain other actions as are required to
permit unrestricted resales of the notes and the common stock
issuable upon conversion of the notes.
This summary of the registration rights agreement is not
complete. This summary is subject to, and is qualified in its
entirety by reference to, all of the provisions of the
registration rights agreement, a copy of which is available from
us upon request as described in the accompanying prospectus
under Where You Can Find Additional Information.
DESCRIPTION
OF CAPITAL STOCK
The following description of our capital stock is summarized
from, and qualified in its entirety by reference to, our amended
and restated certificate of incorporation, as amended, and our
bylaws, each of which has been publicly filed with the SEC. See
Where You Can Find Additional Information in the
accompanying prospectus.
As of November 24, 2006, our authorized capital stock
consists of:
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3,000,000,000 shares of common stock, par value
$0.01 per share;
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1,000,000 shares of preferred stock, par value
$0.01 per share, of which 375,000 shares are
designated as Series A Junior Participating Preferred
Stock; and
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1 share of Special Voting Stock, par value $1.00 per
share.
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As of November 24, 2006, there were 928,516,893 shares
of common stock issued and outstanding. No shares of our
preferred stock or Special Voting Stock are outstanding.
Common
Stock
Each holder of our common stock is entitled to one vote for each
share held on all matters submitted to a vote of Symantec
stockholders. Cumulative voting for the election of directors is
not provided for in our certificate of incorporation, which
means that the holders of a majority of the shares voted can
elect all of the directors then standing for election. Subject
to preferences that may apply to shares of our preferred stock
outstanding at the time, if any, holders of outstanding shares
of our common stock are entitled to receive dividends out of
assets legally available at the time and in amounts as may be
determined by our board from time to time. Upon a liquidation,
dissolution or
winding-up
of the company, the assets legally available for distribution to
stockholders are distributable ratably among the holders of our
common stock outstanding at that time after payment of any
liquidation preferences on any outstanding preferred stock, if
any. Our common stock is not entitled to preemptive rights and
is not subject to conversion or redemption.
Preferred
Stock
Our board of directors is authorized to establish out of our
authorized shares of preferred stock one or more classes or
series of preferred stock having the designation, powers,
preferences, rights, qualifications, limitations and
restrictions, the board of directors may determine. As of
November 24, 2006, 375,000 shares have been reserved
and designated Series A Junior Participating Preferred
Stock, none of which are issued or outstanding.
S-35
The issuance of preferred stock may have the effect of delaying
or preventing a change in control of us without further action
by our shareholders. The issuance of shares of preferred stock
with voting and conversion rights may adversely affect the
voting power of the holders of our common stock.
Rights
Agreement and Series A Junior Participating Preferred
Stock
Under a Rights Agreement, dated as of August 12, 1998, by
and between Symantec and BankBoston, N.A., as rights agent, all
of our stockholders receive along with each share of common
stock a preferred share purchase right entitling them, under
certain circumstances, to purchase from us one eight-thousandth
of a share of our Series A Junior Participating Preferred
Stock, par value $0.01 per share, at a fixed price subject
to adjustment. Initially, the rights are attached to outstanding
certificates representing our common stock, and no separate
certificates representing the rights were distributed. The
rights will separate from our common stock, be represented by
separate certificates and will become exercisable upon the
earlier of:
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ten days following a public announcement or disclosure that a
person or group has acquired beneficial ownership of 20% or more
of our outstanding common stock; or
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ten business days after someone announces they intend to
commence a tender offer or exchange offer for 20% or more of our
outstanding common stock.
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If the rights become exercisable, each right (other than rights
held by an acquiring party) will entitle the holder to purchase,
at a price equal to the exercise price of the right, a number of
shares of our common stock having a then-current value of twice
the exercise price of the right. If, after the rights become
exercisable, we agree to merge into another entity or we sell
more than 50% of our assets, each right (other than rights held
by an acquiring party) will entitle the holder to purchase, at a
price equal to the exercise price of the right, a number of
shares of our common stock having a then-current value of twice
the exercise price.
We may exchange the rights at a ratio of one share of common
stock for each right (other than rights held by an acquiring
party) at any time after a person or group acquires 20% or more
of our common stock but before such person acquires 50% or more
of our common stock. We may also redeem the rights at our option
at a price of $0.001 per right at any time before a person
or group has acquired 20% or more of Symantecs common
stock. Unless our board of directors extends the expiration
date, the rights expire on the earliest of August 12, 2008,
an exchange or redemption of the rights as described above or
the closing of a merger as described above.
Anti-Takeover
Provisions
The provisions of the Delaware General Corporation Law, or DGCL,
and our certificate of incorporation and bylaws may have the
effect of delaying, deferring or discouraging another person
from acquiring control of Symantec.
We are subject to Section 203 of the DGCL, which, subject
to certain exceptions, prohibits a Delaware corporation from
engaging in any business combination with an
interested stockholder for a period of three years
following the time that such stockholder became an interested
stockholder, unless:
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the board of directors of the corporation approves either the
business combination or the transaction that resulted in the
stockholder becoming an interested stockholder, prior to the
time the interested stockholder attained that status;
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upon the closing of the transaction that resulted in the
stockholder becoming an interested stockholder, the interested
stockholder owned at least 85% of the voting stock of the
corporation outstanding at the time the transaction commenced,
excluding for purposes of determining the number of shares
outstanding those shares owned (i) by persons who are
directors and also officers and (ii) by employee stock
plans in which employee participants do not have the right to
determine confidentially whether shares held subject to the plan
will be tendered in a tender or exchange offer; or
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at or subsequent to such time, the business combination is
approved by the board of directors and authorized at an annual
or special meeting of stockholders, and not by written consent,
by the affirmative vote of at least two-thirds of the
outstanding voting stock that is not owned by the interested
stockholder.
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S-36
With certain exceptions, an interested stockholder
is a person or group who or which owns 15% or more of the
corporations outstanding voting stock (including any
rights to acquire stock pursuant to an option, warrant,
agreement, arrangement or understanding, or upon the exercise of
conversion or exchange rights, and stock with respect to which
the person has voting rights only), or is an affiliate or
associate of the corporation and was the owner of 15% or more of
such voting stock at any time within the previous three years.
In general, Section 203 defines a business combination to
include:
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any merger or consolidation involving the corporation and the
interested stockholder;
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any sale, transfer, pledge or other disposition of 10% or more
of the assets of the corporation involving the interested
stockholder;
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subject to certain exceptions, any transaction that results in
the issuance or transfer by the corporation of any stock of the
corporation to the interested stockholder;
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any transaction involving the corporation that has the effect of
increasing the proportionate share of the stock or any class or
series of the corporation beneficially owned by the interested
stockholder; or
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the receipt by the interested stockholder of the benefit of any
loans, advances, guarantees, pledges or other financial benefits
provided by or through the corporation.
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A Delaware corporation may opt out of this provision
with an express provision in its original certificate of
incorporation or an express provision in its certificate of
incorporation or bylaws resulting from a stockholders
amendment approved by at least a majority of the outstanding
voting shares. However, Symantec has not opted out
of this provision. Section 203 could prohibit or delay
mergers or other takeover or
change-in-control
attempts and, accordingly, may discourage attempts to acquire
Symantec.
Convertible
Bond Hedge
In connection with the sale of the notes to the initial
purchasers of the notes, we entered into convertible note hedge
transactions with respect to our common stock with certain of
the initial purchasers or their affiliates, referred to as the
Hedge Participants, providing for a call option requiring the
Hedge Participants to deliver to us cash
and/or stock
upon conversion of the notes by holders of the notes. The call
option is only exercisable by us upon a conversion of one or
more notes, and upon exercise the counterparty will deliver to
us a combination of cash and common stock equal to and in the
same proportions as the combination of cash and common stock
that we deliver under the notes that are converted.
Warrants
We also entered into warrant transactions with the Hedge
Participants. The warrants issued to the Hedge Participants
entitle the Hedge Participants to purchase a number of shares of
common stock equal to the number of such shares initially
issuable under the notes, with a strike price of $27.3175. The
warrants are exercisable over the period beginning six months
after the date of issuance of the warrants and ending on their
expiration dates in 2011 and 2013, and will be exercised
automatically upon their expiration if on such date the price of
the common stock exceeds the strike price. The warrant will be
settled on a net exercise basis. That is, at the time of
exercise of the warrant, we will owe the Hedge Participants net
shares of common stock, not offset by our exercise of the call
option, in an amount based on the excess of our then current
stock price over the strike price of the warrant.
Transfer
Agent
The transfer agent and registrar for our common stock is
Computershare Trust Company.
S-37
CERTAIN
U.S. FEDERAL INCOME TAX CONSIDERATIONS
The following is a summary of certain material U.S. federal
income tax considerations of the purchase, ownership and
disposition of notes and the shares of common stock into which
the notes may be converted. This summary is based upon
provisions of the Internal Revenue Code of 1986, applicable
regulations, administrative rulings and judicial decisions in
effect as of the date of this prospectus supplement, any of
which may subsequently be changed, possibly retroactively, so as
to result in U.S. federal income tax consequences different
from those discussed below. Except where noted, this summary
deals only with a note or share of common stock held as a
capital asset. This summary does not address all aspects of
U.S. federal income taxes and does not deal with all tax
consequences that may be relevant to holders in light of their
personal circumstances or particular situations, such as:
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tax consequences to holders who may be subject to special tax
treatment, including dealers in securities or currencies,
financial institutions, regulated investment companies, real
estate investment trusts, tax-exempt entities, insurance
companies and traders in securities that elect to use a
mark-to-market
method of accounting for their securities;
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tax consequences to persons holding notes or shares of our
common stock as a part of a hedging, integrated, conversion or
constructive sale transaction or a straddle;
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tax consequences to U.S. holders (as defined below) whose
functional currency is not the U.S. dollar;
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tax consequences to investors in pass-through entities;
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tax consequences to certain former citizens or residents of the
United States;
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alternative minimum tax consequences, if any;
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any state, local or foreign tax consequences; and
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estate or gift taxes, if any.
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If a partnership (for U.S. federal income tax purposes)
holds notes or shares of common stock, the tax treatment of a
partner will generally depend upon the status of the partner and
the activities of the partnership. If you are a partner in a
partnership holding the notes or shares of common stock, you
should consult your tax advisors.
In this discussion, we use the term U.S. holder
to refer to a beneficial owner of notes or shares of common
stock received upon conversion of the notes that is, for
U.S. federal income tax purposes:
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an individual citizen or resident of the United States;
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a corporation (or any other entity treated as a corporation for
U.S. federal income tax purposes) created or organized in or
under the laws of the United States, any state thereof or the
District of Columbia (whether or not also created or organized
in a foreign jurisdiction);
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an estate the income of which is subject to U.S. federal
income taxation regardless of its source; or
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a trust, if it (i) is subject to the primary supervision of
a court within the U.S. and one or more U.S. persons have
the authority to control all substantial decisions of the trust,
or (ii) has a valid election in effect under applicable
U.S. Treasury regulations to be treated as a
U.S. person.
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We use the term
non-U.S. holder
to describe a beneficial owner (other than a partnership) of
notes or shares of common stock received upon conversion of the
notes that is not a U.S. holder.
You should consult your tax advisors concerning the
U.S. federal income tax consequences to you in light of
your own specific situation, as well as consequences arising
under the laws of any other relevant taxing jurisdiction.
Consequences
to U.S. Holders
Payment
of Interest
Interest on a note will generally be taxable to a
U.S. holder as ordinary income at the time it is paid or
accrued in accordance with the U.S. holders usual
method of accounting for tax purposes.
S-38
Additional
Payments
We may be required to pay additional amounts to a
U.S. holder in certain circumstances described above under
the heading Description of Notes Registration
Rights. Because we believe the likelihood that we will be
obligated to make any such additional payments on the notes is
remote, we intend to take the position (and this discussion
assumes) that the notes will not be treated as contingent
payment debt instruments. As such, a U.S. holder would be
required to include in income such additional amounts at the
time payments are received or accrued, in accordance with such
U.S. holders method of accounting for
U.S. federal income tax purposes.
Our determination that the notes are not contingent payment debt
instruments is not binding on the IRS. If the IRS were to
challenge successfully our determination and the notes were
treated as contingent payment debt instruments,
U.S. holders would be required, among other things, to
accrue interest income at a rate higher than the stated interest
rate on the notes, treat as ordinary income, rather than capital
gain, any gain recognized on a sale, exchange or redemption of a
note, and treat the entire amount of recognized gain upon a
conversion of notes as taxable. Our determination that the notes
are not contingent payment debt instruments is binding on
U.S. holders unless they disclose their contrary positions
to the IRS as prescribed by applicable U.S. Treasury
regulations.
Market
Discount
A U.S. holder that acquires a note at a market
discount, that is, at a price less than the notes
stated redemption price at maturity (generally, the sum of all
payments required under the note other than payments of stated
interest), may be affected by the market discount rules of the
Internal Revenue Code. Subject to a de minimis exception,
the market discount rules generally require a U.S. holder
who acquires a note at a market discount to treat any principal
payment on the note and any gain recognized on any disposition
of the note as ordinary income to the extent of the accrued
market discount, not previously included in income, at the time
of such principal payment or note disposition. In general, the
amount of market discount that has accrued is determined on a
straight-line basis over the remaining term of the note as of
the time of acquisition, or, at the election of the holder, on a
constant yield basis. Such an election applies only to the note
with respect to which it is made and may not be revoked.
A U.S. holder of a note acquired at a market discount also
may elect to include the market discount in income as it
accrues, rather than deferring the income inclusion until the
time of a principal payment or note disposition. If a
U.S. holder so elects, the rules discussed above with
respect to ordinary income recognition resulting from the
payment of principal on a note or the disposition of a note
would not apply, and the holders tax basis in the note
would be increased by the amount of the market discount included
in income at the time it accrues. This election would apply to
all market discount obligations acquired by the U.S. holder
on or after the first day of the first taxable year to which the
election applies and could not be revoked without the consent of
the IRS.
A U.S. holder may be required to defer until maturity of
the note (or, in certain circumstances, its earlier disposition)
the deduction of all or a portion of the interest expense
attributable to debt incurred or continued to purchase or carry
a note with market discount, unless the holder elects to include
market discount in income on a current basis.
Upon the conversion of a note into cash and common stock, any
accrued market discount on the note not previously included in
income will be carried over to the common stock received upon
conversion of the note, and any gain recognized upon the
disposition of such common stock will be treated as ordinary
income to the extent of such accrued market discount.
Amortizable
Bond Premium
If a U.S. holder acquires a note for a price that is in
excess of the notes stated redemption price at maturity,
the U.S. holder generally will be considered to have
acquired a note with amortizable bond premium.
Amortizable bond premium, however, does not include any premium
attributable to the conversion feature of the note. A
U.S. holder may elect to amortize amortizable bond premium
on a constant yield basis. The amount amortized in any year
generally will be treated as a deduction against the
holders interest income on the note. If the amortizable
bond premium allocable to a year exceeds the amount of interest
income allocable to that year, the excess is allowed as a
deduction for that year but only to the extent of the
holders prior inclusions of interest income (net of any
S-39
deductions for bond premium) with respect to the note. The
premium on a note held by a U.S. holder that does not make
the amortization election will decrease the gain or increase the
loss otherwise recognizable on the disposition of the note. The
election to amortize the premium on a constant yield basis
generally applies to all bonds held or subsequently acquired by
the electing holder on or after the first day of the first
taxable year to which the election applies and may not be
revoked without the consent of the IRS.
Sale,
Redemption or Other Taxable Disposition of Notes
Except as provided below under Consequences to
U.S. Holders Conversion of Notes, a
U.S. holder will generally recognize gain or loss upon the
sale, redemption or other taxable disposition of a note equal to
the difference between the amount realized (less accrued
interest which will be taxable as such) upon such sale,
redemption or other taxable disposition and such
U.S. holders adjusted tax basis in the note. A
U.S. holders adjusted tax basis in a note will
generally be equal to the amount that such U.S. holder paid
for the note, increased by the amount of any accrued market
discount previously included in the holders income, and
decreased by the amount of any amortizable bond premium
previously deducted by the holder. Subject to the discussion
above regarding market discount, any gain or loss recognized on
a taxable disposition of the note will be capital gain or loss.
If, at the time of the sale, redemption or other taxable
disposition of the note, a U.S. holder is treated as
holding the note for more than one year, such capital gain or
loss will be a long-term capital gain or loss. Otherwise, such
capital gain or loss will be a short-term capital gain or loss.
In the case of certain non-corporate U.S. holders
(including individuals), long-term capital gain generally will
be subject to a maximum U.S. federal income tax rate of
15%, which maximum tax rate currently is scheduled to increase
to 20% for dispositions occurring in taxable years beginning on
or after January 1, 2011. A U.S. holders ability
to deduct capital losses may be limited. A U.S. holder who
sells the notes at a loss which, in the aggregate, exceeds
certain thresholds may be required to file a disclosure
statement with the IRS.
Conversion
of Notes
If a U.S. holder receives solely cash in exchange for notes
upon conversion, the U.S. holders gain or loss will
be determined in the same manner as if the U.S. holder
disposed of the notes in a taxable disposition (as described
above under Consequences to U.S. Holders
Sale, Redemption or Other Taxable Disposition of Notes).
The tax treatment of a conversion of a note into cash and common
stock is uncertain and U.S. holders should consult their
tax advisors regarding the consequences of such a conversion.
Treatment as a Recapitalization. If we pay a
combination of cash and stock in exchange for notes upon
conversion, we intend to take the position that the notes are
securities for U.S. federal income tax purposes and that,
as a result, the exchange would be treated as a recapitalization
(although we cannot guarantee that the IRS will not challenge
this conclusion). Subject to the discussion above regarding
market discount, in such case, capital gain, but not loss, would
be recognized equal to the excess of the sum of the fair market
value of the common stock and cash received (other than amounts
attributable to accrued interest, which will be treated as such)
over a U.S. holders adjusted tax basis in the notes,
but in no event will the gain recognized (other than gain in
respect of fractional shares) exceed the amount of cash received
(excluding amounts attributable to accrued interest and cash in
lieu of fractional shares). Subject to the discussion above
regarding market discount, the amount of capital gain or loss
recognized on the receipt of cash in lieu of a fractional share
would be equal to the difference between the amount of cash a
U.S. holder would receive in respect of the fractional
share and the portion of the U.S. holders adjusted
tax basis in the note that is allocable to the fractional share.
The tax basis of the shares of common stock received upon a
conversion (other than common stock attributable to accrued
interest, the tax basis of which would equal the amount of
accrued interest with respect to which the common stock was
received) would equal the adjusted tax basis of the note that
was converted (excluding the portion of the tax basis that is
allocable to any fractional share), reduced by the amount of any
cash received (other than cash received in lieu of a fractional
share or cash attributable to accrued interest), and increased
by the amount of gain, if any, recognized (other than with
respect to a fractional share). A U.S. holders
holding period for shares of common stock would include the
period during which the U.S. holder held the notes, except
that the holding period of any common stock received with
respect to accrued interest would commence on the day after the
date of receipt.
S-40
Alternative Treatment as Part Conversion and
Part Redemption. If the conversion of a note
into cash and common stock were not treated as a
recapitalization, the cash payment received would generally be
treated as proceeds from the sale of a portion of the note and
taxed in the manner described under Consequences to
U.S. Holders Sale, Redemption or Other Taxable
Disposition of Notes above (or in the case of cash
received in lieu of a fractional share, taxed as a disposition
of a fractional share), and the common stock received would be
treated as having been received upon a conversion of the note,
which generally would not be taxable to a U.S. holder
except to the extent of any common stock received with respect
to accrued interest. In such case, the U.S. holders
tax basis in the note would generally be allocated pro rata
among the common stock received, the fractional share that is
treated as sold for cash and the portion of the note that is
treated as sold for cash. The holding period for the common
stock received in the conversion would include the holding
period for the notes, except that the holding period of any
common stock received with respect to accrued interest would
commence on the day after the date of receipt.
Distributions
Distributions made on our common stock generally will be
included in a U.S. holders income as ordinary
dividend income to the extent of our current and accumulated
earnings and profits. However, with respect to dividends
received by individuals, for taxable years beginning before
January 1, 2011, such dividends are generally taxed at the
lower applicable long-term capital gains rates, provided certain
holding period requirements are satisfied. Distributions in
excess of our current and accumulated earnings and profits will
be treated as a return of capital to the extent of a
U.S. holders adjusted tax basis in the common stock
and thereafter as capital gain from the sale or exchange of such
common stock. Dividends received by a corporation may be
eligible for a dividends received deduction, subject to
applicable limitations.
Constructive
Distributions
The conversion rate of the notes will be adjusted in certain
circumstances, as described in Description of the
Notes Adjustment to Conversion Rate.
Adjustments (or failures to make adjustments) that have the
effect of increasing a U.S. holders proportionate
interest in our assets or earnings may in some circumstances
result in a deemed distribution to a U.S. holder for
U.S. federal income tax purposes. Adjustments to the
conversion rate made pursuant to a bona fide reasonable
adjustment formula that have the effect of preventing the
dilution of the interest of the holders of the notes, however,
will generally not be considered to result in a deemed
distribution to a U.S. holder. Certain of the possible
conversion rate adjustments provided in the notes (including,
without limitation, adjustments in respect of taxable dividends
to holders of our common stock) will not qualify as being
pursuant to a bona fide reasonable adjustment formula. If such
adjustments are made, a U.S. holder generally will be
deemed to have received a distribution even if the
U.S. holder has not received any cash or property as a
result of such adjustments. Any such deemed distributions will
be taxable as a dividend, return of capital, or capital gain in
accordance with the description above under
Distributions. A constructive dividend deemed paid
to a U.S. holder may be eligible for the preferential rates
of U.S. federal income tax applicable in respect of certain
dividends received. Corporate holders may be entitled to claim
the dividends received deduction with respect to any such
constructive dividends. Because a constructive dividend deemed
received by a U.S. holder would not give rise to any cash
from which any applicable withholding tax could be satisfied, if
we pay backup withholding taxes on behalf of a U.S. holder
(because such U.S. holder failed to establish an exemption
from backup withholding taxes), we may, at our option, set-off
any such payment against payments of cash and common stock
payable on the notes to the extent required by law (or, in
certain circumstances, against any payments on the common stock).
Sale,
Certain Redemptions or Other Taxable Dispositions of Common
Stock
Subject to the discussion above regarding market discount, upon
the sale, certain redemptions or other taxable dispositions of
our common stock, a U.S. holder generally will recognize
capital gain or loss equal to the difference between
(i) the amount of cash and the fair market value of any
property received upon such taxable disposition and
(ii) the U.S. holders adjusted tax basis in the
common stock. Such capital gain or loss will be long-term
capital gain or loss if a U.S. holders holding period
in the common stock is more than one year at the time of the
taxable disposition. Long-term capital gains recognized by
certain non-corporate U.S. holders (including individuals)
will
S-41
generally be subject to a maximum U.S. federal income tax
rate of 15%, which maximum is currently scheduled to increase to
20% for dispositions occurring during taxable years beginning on
or after January 1, 2011. The deductibility of capital
losses is subject to limitations. A U.S. holder who sells
shares of common stock at a loss which, in the aggregate,
exceeds certain thresholds may be required to file a disclosure
statement with the IRS.
Information
Reporting and Backup Withholding
Information reporting requirements generally will apply to
payments of interest on the notes and dividends on shares of
common stock and to the proceeds of a sale of a note or share of
common stock paid to a U.S. holder unless the
U.S. holder is an exempt recipient (such as a corporation).
A backup withholding tax will apply to those payments if the
U.S. holder fails to provide its correct taxpayer
identification number, or certification of exempt status, or if
the U.S. holder is notified by the IRS that it has failed
to report in full payments of interest and dividend income. Any
amounts withheld under the backup withholding rules will be
allowed as a refund or a credit against a
U.S. holders U.S. federal income tax liability
provided the required information is furnished timely to the IRS.
Consequences
to
Non-U.S. Holders
Payments
of Interest
A payment of interest (including additional interest if we fail
to maintain the registration of the notes as agreed) to a
non-U.S. holder
will not be subject to U.S federal withholding tax provided that:
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interest paid on the note is not effectively connected with the
non-U.S. holders
conduct of a trade or business in the United States;
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the
non-U.S. holder
does not actually or constructively own 10% or more of the total
combined voting power of all classes of our stock that are
entitled to vote within the meaning of section 871(h)(3) of
the Code;
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the
non-U.S. holder
is not a controlled foreign corporation that is related to us
(actually or constructively) through stock ownership;
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the
non-U.S. holder
is not a bank whose receipt of interest on a note is described
in section 881(c) (3) (A) of the Code; and
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(a) the
non-U.S. holder
provides its name and address, and certifies, under penalties of
perjury, that it is not a U.S. person (which certification
may be made on an IRS
Form W-8BEN
(or other applicable form)) or (b) the
non-U.S. holder
holds the notes through certain foreign intermediaries or
certain foreign partnerships, and the
non-U.S. holder
and the foreign intermediary or foreign partnership satisfies
the certification requirements of applicable Treasury
regulations.
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Special certification rules apply to
non-U.S. holders
that are pass-through entities.
If a
non-U.S. holder
does not satisfy the requirements described above, payments of
interest will be subject to U.S. federal withholding tax at
a 30% rate, unless the
non-U.S. holder
provides us with a properly executed (i) IRS
Form W-8BEN
(or other applicable form) claiming an exemption from or
reduction in withholding under an applicable income tax treaty
or (ii) IRS
Form W-8ECI
(or other applicable form) stating that interest paid on the
notes is not subject to withholding tax because it is
effectively connected with the
non-U.S. holders
conduct of a trade or business in the United States and is
includible in the
non-U.S. holders
gross income for the taxable year. Although a
non-U.S. holder
that provides us with a properly executed IRS
Form W-8ECI
(or other applicable form) will be exempt from the 30%
withholding tax with respect to a payment of interest, the
non-U.S. holder
will be subject to U.S. federal income tax on that interest
on a net income basis at the graduated individual or corporate
rates applicable to a U.S. holder. In addition, if a
non-U.S. holder
is a foreign corporation, it may be subject to a branch profits
tax equal to 30% (or lesser rate under an applicable income tax
treaty) of its earnings and profits for the taxable year,
subject to adjustments, that are effectively connected with its
conduct of a trade or business in the United States.
S-42
Dividends
and Constructive Distributions
Any dividends paid to a
non-U.S. holder
with respect to the shares of common stock (and any deemed
dividends resulting from certain adjustments, or failure to make
adjustments, to the conversion rate, see Consequences to
U.S. Holders Constructive Distributions
above) will be subject to withholding tax at a 30% rate, or the
lower rate under an applicable treaty if the
non-U.S. holder
provides us with a properly executed IRS
Form W-8BEN,
unless the
non-U.S. holder
provides us with a properly executed IRS
Form W-8ECI
(or other applicable form). Dividends that are effectively
connected with the conduct of a trade or business within the
United States and includible in the
non-U.S. holders
gross income are not subject to the withholding tax (assuming
proper certification and disclosure), but instead are subject to
U.S. federal income tax on a net income basis at applicable
graduated individual or corporate rates. Any such effectively
connected income received by a foreign corporation may, under
certain circumstances, be subject to an additional branch
profits tax at a 30% rate or such lower rate as may be specified
by an applicable income tax treaty. Because a constructive
dividend deemed received by a
non-U.S. holder
would not give rise to any cash from which any applicable
withholding tax could be satisfied, if we pay withholding taxes
on behalf of a
non-U.S. holder,
we may, at our option, set-off any such payment against payments
of cash and common stock payable on the notes to the extent
required by law (or, in certain circumstances, against any
payments on the common stock).
A
non-U.S. holder
of shares of common stock who wishes to claim the benefit of an
applicable treaty rate is required to satisfy applicable
certification and other requirements. If a
non-U.S. holder
is eligible for a reduced rate of U.S. withholding tax
pursuant to an income tax treaty, it may obtain a refund of any
excess amounts withheld by timely filing an appropriate claim
for refund with the IRS.
Sale,
Certain Redemptions, Conversion or Other Taxable Dispositions of
Notes or Shares of Common Stock
Gain realized by a
non-U.S. holder
on the sale, certain redemptions or other taxable disposition of
common stock or a note or on the conversion of a note into cash
or into a combination of cash and stock will not be subject to
U.S. federal income tax unless:
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that gain is effectively connected with the
non-U.S. holders
conduct of a trade or business in the United States (and,
if required by an applicable income treaty, is attributable to a
U.S. permanent establishment);
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the
non-U.S. holder
is an individual who is present in the United States for
183 days or more in the taxable year of that disposition,
the gain realized by the
non-U.S. holder
is considered U.S. source income under the Code, and
certain other conditions are met; or
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we are or have been a U.S. real property holding
corporation for U.S. federal income tax purposes at
any time during the shorter of the
non-U.S. holders
holding period or the
5-year
period ending on the date of disposition of the notes or common
stock, as the case may be; provided, that as long as our common
stock is regularly traded on an established securities market, a
non-U.S. holder
would not be subject to taxation under this rule if the
non-U.S. holder
has not owned more than 5% of our common stock, more than 5% of
the notes or notes worth more than 5% of the aggregate value of
our common stock at any time during such
5-year or
shorter period. Certain attribution rules apply in determining
ownership for this purpose. We believe that we are not, and we
do not anticipate becoming, a U.S. real property holding
corporation for U.S. federal income tax purposes.
|
If a
non-U.S. holder
is an individual described in the first bullet point above, he
or she will be subject to tax on the net gain derived from the
sale, redemption, conversion or other taxable disposition under
regular graduated U.S. federal income tax rates. If a
non-U.S. holder
is a foreign corporation described in the first bullet point
above, it will be subject to tax on its net gain generally in
the same manner as if it were a U.S. person as defined
under the Code and, in addition, it may be subject to the branch
profits tax equal to 30% of its effectively connected earnings
and profits for that taxable year, or at such lower rate as may
be specified by an applicable income tax treaty. If a
non-U.S. holder
is an individual described in the second bullet point above,
such holder will be subject to tax at a rate of 30% (or at such
lower rate as may be specified by an applicable income tax
treaty) on the gain derived from
S-43
the sale, redemption, conversion or other taxable disposition
even though such holder is not considered a resident of the
United States. The amount of such gain may be offset by the
non-U.S. holders
U.S. source capital losses. Any common stock which a
non-U.S. holder
receives on the conversion of a note that is attributable to
accrued interest will be subject to U.S. federal income tax
in accordance with the rules for taxation of interest described
above under Consequences to
Non-U.S. Holders
Payments of Interest.
Information
Reporting and Backup Withholding
Generally, we must report annually to the IRS and to
non-U.S. holders
the amount of interest and dividends paid to
non-U.S. holders
and the amount of tax, if any, withheld with respect to those
payments. Copies of the information returns reporting such
interest, dividends and withholding may also be made available
to the tax authorities in the country in which a
non-U.S. holder
resides under the provisions of an applicable income tax treaty.
In general, a
non-U.S. holder
will not be subject to backup withholding with respect to
payments of interest or dividends that we make, provided the
statement described above in the last bullet point under
Consequences to
Non-U.S. Holders
Payments of Interest has been received and we do not have
actual knowledge or reason to know that the holder is a
U.S. person, as defined under the Code, that is not an
exempt recipient. In addition, a
non-U.S. holder
will be subject to information reporting and, depending on the
circumstances, backup withholding with respect to payments of
the proceeds of the sale of a note or share of our common stock
within the United States or conducted through certain
U.S.-related
financial intermediaries, unless the statement described above
has been received, and we do not have actual knowledge or reason
to know that a holder is a U.S. person, as defined under
the Code, that is not an exempt recipient, or the
non-U.S. holder
otherwise establishes an exemption. Any amounts withheld under
the backup withholding rules will be allowed as a refund or a
credit against a
non-U.S. holders
U.S. federal income tax liability provided the required
information is furnished timely to the IRS.
SELLING
SECURITYHOLDERS
We originally issued the notes to the initial purchasers, which
are Citigroup Global Markets Inc., Morgan Stanley & Co.
Incorporated, UBS Securities LLC, Banc of America Securities
LLC, and J.P. Morgan Securities Inc., in transactions
exempt from the registration requirements of the Securities Act.
The initial purchasers resold the notes to persons reasonably
believed by the initial purchasers to be qualified
institutional buyers within the meaning of Rule 144A
under the Securities Act in transactions exempt from
registration under the Securities Act. Selling securityholders,
including their transferees, pledgees or donees or their
successors, may from time to time offer and sell the notes and
the common stock into which the notes are convertible. Our
registration of the notes and the shares of common stock
issuable upon conversion of the notes does not necessarily mean
that the selling securityholders will sell all or any of the
notes or the common stock.
Except as set forth below, none of the selling securityholders
has had within the past three years any material relationship
with us or any of our predecessors or affiliates. The following
table sets forth certain information as of December 7,
2006, except where otherwise noted, concerning the principal
amount of notes beneficially owned by each selling
securityholder and the number of shares of underlying common
stock that may be offered from time to time by each selling
securityholder with this prospectus supplement and accompanying
prospectus. The information is based on information provided by
or on behalf of the selling securityholders.
We have assumed for purposes of the table below that the selling
securityholders will sell all of their notes and common stock
issuable upon conversion of the notes pursuant to this
prospectus, and that any other shares of our common stock
beneficially owned by the selling securityholders will continue
to be beneficially owned. Because the selling securityholders
may offer all or some portion of the notes or the common stock,
no estimate can be given as to the amount of the notes or the
common stock that will be held by the selling securityholders
upon termination of any sales. Information about the selling
securityholders may change over time. In particular, the selling
securityholders identified below may have sold, transferred or
otherwise disposed of all or a portion of their notes since the
date on which they provided to us information regarding their
notes. Any changed or new information given to us by the selling
securityholders will be set forth in supplements to this
prospectus or amendments to the registration statement of which
this prospectus is a part, if and when necessary.
S-44
Citibank, N.A. is party to certain convertible note hedge
transactions and warrant transactions with us and is a selling
securityholder. In addition, JPMorgan Chase Bank, N.A. is a
lender and the Administrative Agent, Citicorp USA, Inc. is a
lender and the Syndication Agent, each of Morgan Stanley Bank
and UBS Loan Finance LLC is a Co-Documentation Agent, each
of J.P. Morgan Securities Inc. and Citigroup Global Markets
Inc. is a Joint Bookrunner and Joint Lead Arranger, and each of
Morgan Stanley Bank, UBS Loan Finance LLC, BNP Paribas, Wells
Fargo Bank N.A., and HSBC Bank USA, N.A. is a lender, under our
five year credit facility which has a borrowing capacity of
$1 billion and is dated as of July 12, 2006, and each
such entity is also a selling securityholder.
Unless otherwise indicated below, to our knowledge, no selling
securityholder named in the table below beneficially owns one
percent or more of our common stock, assuming conversion of a
selling securityholders notes.
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|
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Number of
|
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Principal
|
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|
|
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Principal
|
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|
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Number of
|
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Shares of
|
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|
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Amount of
|
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Amount of
|
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Shares of
|
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Common
|
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|
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2011 Notes
|
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Percentage
|
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2013 Notes
|
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Percentage
|
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Common
|
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Stock
|
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Natural
|
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Beneficially
|
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of 2011
|
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Beneficially
|
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of 2013
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Stock
|
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Beneficially
|
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Person(s)
|
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Owned and
|
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Notes
|
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Owned and
|
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Notes
|
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Issuable That
|
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Owned
|
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with Voting or
|
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Offered
|
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Outstanding
|
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Offered
|
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Outstanding
|
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May be
|
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After the
|
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|
Investment
|
Name of Selling Securityholder(1)
|
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(USD)
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(%)
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(USD)
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(%)
|
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Offered(2)(3)
|
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Offering (4)
|
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|
Power
|
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1976 Distribution Trust FBO
A. R. Lauder
|
|
|
|
|
|
|
|
|
|
|
6,000
|
|
|
|
*
|
|
|
|
313
|
|
|
|
|
|
|
Tracy Maitland
|
2000 Revocable Trust FBO
A. R. Lauder
|
|
|
|
|
|
|
|
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|
|
5,000
|
|
|
|
*
|
|
|
|
261
|
|
|
|
|
|
|
Tracy Maitland
|
Acuity Master Fund
|
|
|
4,000,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
209,180
|
|
|
|
|
|
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David J. Harris and Howard Needle
|
Advent Convertible Master
Fund LP
|
|
|
|
|
|
|
|
|
|
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4,507,000
|
|
|
|
*
|
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|
|
235,694
|
|
|
|
|
|
|
Tracy Maitland
|
Alcon Laboratories
|
|
|
|
|
|
|
|
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551,000
|
|
|
|
*
|
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|
|
28,814
|
|
|
|
|
|
|
Tracy Maitland
|
Alexandra Global Master
Fund Ltd.
|
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25,000,000
|
|
|
|
2.3
|
%
|
|
|
|
|
|
|
|
|
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1,307,377
|
|
|
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|
|
|
(5)
|
Allstate Insurance Company(++)(6)
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11,500,000
|
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|
|
1.2
|
%
|
|
|
601,393
|
|
|
|
|
|
|
(29)
|
American Beacon Funds
|
|
|
480,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
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25,101
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|
|
|
|
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|
Nick Calamos
|
Arctos Partners Inc.(++)
|
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17,000,000
|
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|
|
1.5
|
%
|
|
|
|
|
|
|
|
|
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889,016
|
|
|
|
|
|
|
(29)
|
Argent Classic Convertible
Arbitrage Fund L.P.
|
|
|
|
|
|
|
|
|
|
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8,890,000
|
|
|
|
*
|
|
|
|
464,903
|
|
|
|
|
|
|
Nathaniel Brown and Robert
Richardson
|
Argent Classic Convertible
Arbitrage Fund II, L.P.
|
|
|
|
|
|
|
|
|
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2,050,000
|
|
|
|
*
|
|
|
|
107,204
|
|
|
|
|
|
|
Nathaniel Brown and Robert
Richardson
|
Argent Classic Convertible
Arbitrage Fund Ltd.
|
|
|
|
|
|
|
|
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66,940,000
|
|
|
|
6.7
|
%
|
|
|
3,500,633
|
|
|
|
|
|
|
Nathaniel Brown and Robert
Richardson
|
Argent LowLev Convertible Arbitrage
Fund Ltd.
|
|
|
|
|
|
|
|
|
|
|
8,870,000
|
|
|
|
*
|
|
|
|
463,857
|
|
|
|
|
|
|
Nathaniel Brown and Robert
Richardson
|
Argent LowLev Convertible Arbitrage
Fund, LLC
|
|
|
|
|
|
|
|
|
|
|
360,000
|
|
|
|
*
|
|
|
|
18,826
|
|
|
|
|
|
|
Nathaniel Brown and Robert
Richardson
|
Argent LowLev Convertible Arbitrage
Fund II, LLC
|
|
|
|
|
|
|
|
|
|
|
230,000
|
|
|
|
*
|
|
|
|
12,027
|
|
|
|
|
|
|
Nathaniel Brown and Robert
Richardson
|
Argentum Multi-Strategy
Fund Ltd Classic
|
|
|
|
|
|
|
|
|
|
|
1,000,000
|
|
|
|
*
|
|
|
|
52,295
|
|
|
|
|
|
|
Nathaniel Brown and Robert
Richardson
|
Aristeia International Limited
|
|
|
30,800,000
|
|
|
|
2.8
|
%
|
|
|
22,000,000
|
|
|
|
2.2
|
%
|
|
|
2,761,181
|
|
|
|
|
|
|
(7)
|
Aristeia Partners LP
|
|
|
4,200,000
|
|
|
|
*
|
|
|
|
3,000,000
|
|
|
|
*
|
|
|
|
376,524
|
|
|
|
|
|
|
(7)
|
Arkansas Pers
|
|
|
2,700,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
141,196
|
|
|
|
|
|
|
Ann Houlihan
|
Arkansas Teachers Retirement
|
|
|
|
|
|
|
|
|
|
|
5,415,000
|
|
|
|
*
|
|
|
|
283,177
|
|
|
|
|
|
|
(8)
|
S-45
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number of
|
|
|
|
|
|
Principal
|
|
|
|
|
|
Principal
|
|
|
|
|
|
Number of
|
|
|
Shares of
|
|
|
|
|
|
Amount of
|
|
|
|
|
|
Amount of
|
|
|
|
|
|
Shares of
|
|
|
Common
|
|
|
|
|
|
2011 Notes
|
|
|
Percentage
|
|
|
2013 Notes
|
|
|
Percentage
|
|
|
Common
|
|
|
Stock
|
|
|
Natural
|
|
|
Beneficially
|
|
|
of 2011
|
|
|
Beneficially
|
|
|
of 2013
|
|
|
Stock
|
|
|
Beneficially
|
|
|
Person(s)
|
|
|
Owned and
|
|
|
Notes
|
|
|
Owned and
|
|
|
Notes
|
|
|
Issuable That
|
|
|
Owned
|
|
|
with Voting or
|
|
|
Offered
|
|
|
Outstanding
|
|
|
Offered
|
|
|
Outstanding
|
|
|
May be
|
|
|
After the
|
|
|
Investment
|
Name of Selling Securityholder(1)
|
|
(USD)
|
|
|
(%)
|
|
|
(USD)
|
|
|
(%)
|
|
|
Offered(2)(3)
|
|
|
Offering (4)
|
|
|
Power
|
|
Arlington County Employees
Retirement System
|
|
|
|
|
|
|
|
|
|
|
790,000
|
|
|
|
*
|
|
|
|
41,313
|
|
|
|
|
|
|
Tracy Maitland
|
Astrazeneca Holdings Pension
|
|
|
359,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
18,773
|
|
|
|
|
|
|
(29)
|
Attorneys
Title Insurance Fund
|
|
|
100,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
5,229
|
|
|
|
|
|
|
Ann Houlihan
|
Aventis Pension Master Trust
|
|
|
640,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
33,468
|
|
|
|
|
|
|
Nick Calamos
|
B.C. McCabe Foundation
|
|
|
100,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
5,229
|
|
|
|
|
|
|
Maren Lindstrom
|
Bancroft Fund Ltd.
|
|
|
|
|
|
|
|
|
|
|
1,000,000
|
|
|
|
*
|
|
|
|
52,295
|
|
|
|
|
|
|
(29)
|
Baptist Health of South Florida
|
|
|
|
|
|
|
|
|
|
|
880,000
|
|
|
|
*
|
|
|
|
46,019
|
|
|
|
|
|
|
(8)
|
Barclays Capital Securities
Limited(+)
|
|
|
20,000,000
|
|
|
|
1.8
|
%
|
|
|
|
|
|
|
|
|
|
|
1,045,902
|
|
|
|
|
|
|
(29)
|
Black Diamond Convertible Offshore
LDC
|
|
|
2,000,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
104,590
|
|
|
|
|
|
|
Clint D. Carlson
|
Black Diamond Offshore Ltd.
|
|
|
1,695,000
|
|
|
|
*
|
|
|
|
1,204,000
|
|
|
|
*
|
|
|
|
151,603
|
|
|
|
|
|
|
Clint D. Carlson
|
BMO Nesbitt Burns Inc.(+)
|
|
|
|
|
|
|
|
|
|
|
5,000,000
|
|
|
|
*
|
|
|
|
261,475
|
|
|
|
|
|
|
(29)
|
BNP Paribas Arbitrage(++)
|
|
|
5,000,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
261,475
|
|
|
|
|
|
|
(29)
|
Boilermakers-Blacksmith Pension
Trust
|
|
|
4,350,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
227,483
|
|
|
|
|
|
|
Nick Calamos
|
Boilermakers-Blacksmith Pension
Trust
|
|
|
3,550,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
185,647
|
|
|
|
|
|
|
Ann Houlihan
|
British Virgin Islands Electricity
Corporation
|
|
|
|
|
|
|
|
|
|
|
14,000
|
|
|
|
*
|
|
|
|
732
|
|
|
|
|
|
|
Tracy Maitland
|
British Virgin Islands Social
Security Board
|
|
|
|
|
|
|
|
|
|
|
182,000
|
|
|
|
*
|
|
|
|
9,517
|
|
|
|
|
|
|
Tracy Maitland
|
CALAMOS Convertible
Fund CALAMOS Investment Trust
|
|
|
13,900,000
|
|
|
|
1.3
|
%
|
|
|
|
|
|
|
|
|
|
|
726,901
|
|
|
|
|
|
|
Nick Calamos
|
CALAMOS Global Growth &
Income Fund CALAMOS Investment Trust
|
|
|
9,600,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
502,032
|
|
|
|
|
|
|
Nick Calamos
|
CALAMOS Growth & Income
Fund CALAMOS Investment Trust
|
|
|
105,000,000
|
|
|
|
9.5
|
%
|
|
|
|
|
|
|
|
|
|
|
5,490,985
|
|
|
|
|
|
|
Nick Calamos
|
CALAMOS Growth & Income
Portfolio CALAMOS Advisors Trust
|
|
|
630,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
32,945
|
|
|
|
|
|
|
Nick Calamos
|
Canadian Imperial Holdings Inc.(++)
|
|
|
|
|
|
|
|
|
|
|
20,000,000
|
|
|
|
2.0
|
%
|
|
|
1,045,902
|
|
|
|
|
|
|
(29)
|
CC Arbitrage, Ltd.(++)
|
|
|
10,000,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
522,951
|
|
|
|
|
|
|
(9)
|
CEMEX Pension Plan
|
|
|
315,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
16,472
|
|
|
|
|
|
|
Nick Calamos
|
CGNU Life Fund
|
|
|
1,610,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
84,195
|
|
|
|
|
|
|
David Clott
|
Cheyne Fund LP
|
|
|
5,340,000
|
|
|
|
*
|
|
|
|
5,340,000
|
|
|
|
*
|
|
|
|
558,510
|
|
|
|
|
|
|
David Treadwell
|
Cheyne Leverage Fund LP
|
|
|
4,410,000
|
|
|
|
*
|
|
|
|
4,410,000
|
|
|
|
*
|
|
|
|
461,242
|
|
|
|
|
|
|
David Treadwell
|
Chrysler Corporation Master
Retirement Trust(++)
|
|
|
5,500,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
287,623
|
|
|
|
|
|
|
(10)
|
CIP Limited Duration Fund
|
|
|
250,000
|
|
|
|
*
|
|
|
|
250,000
|
|
|
|
*
|
|
|
|
26,146
|
|
|
|
|
|
|
David Treadwell
|
Citadel Equity Fund Ltd.(++)
|
|
|
|
|
|
|
|
|
|
|
115,000,000
|
|
|
|
11.5
|
|
|
|
6,013,936
|
|
|
|
|
|
|
(11)
|
Citigroup Global Markets Inc.(+)(12)
|
|
|
5,375,000
|
|
|
|
*
|
|
|
|
6,200,000
|
|
|
|
*
|
|
|
|
605,315
|
|
|
|
|
|
|
(29)
|
S-46
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number of
|
|
|
|
|
|
Principal
|
|
|
|
|
|
Principal
|
|
|
|
|
|
Number of
|
|
|
Shares of
|
|
|
|
|
|
Amount of
|
|
|
|
|
|
Amount of
|
|
|
|
|
|
Shares of
|
|
|
Common
|
|
|
|
|
|
2011 Notes
|
|
|
Percentage
|
|
|
2013 Notes
|
|
|
Percentage
|
|
|
Common
|
|
|
Stock
|
|
|
Natural
|
|
|
Beneficially
|
|
|
of 2011
|
|
|
Beneficially
|
|
|
of 2013
|
|
|
Stock
|
|
|
Beneficially
|
|
|
Person(s)
|
|
|
Owned and
|
|
|
Notes
|
|
|
Owned and
|
|
|
Notes
|
|
|
Issuable That
|
|
|
Owned
|
|
|
with Voting or
|
|
|
Offered
|
|
|
Outstanding
|
|
|
Offered
|
|
|
Outstanding
|
|
|
May be
|
|
|
After the
|
|
|
Investment
|
Name of Selling Securityholder(1)
|
|
(USD)
|
|
|
(%)
|
|
|
(USD)
|
|
|
(%)
|
|
|
Offered(2)(3)
|
|
|
Offering (4)
|
|
|
Power
|
|
City of Knoxville Pension Plan
|
|
|
462,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
24,160
|
|
|
|
|
|
|
Nick Calamos
|
City of Shreveport (LA) Employees
Retirement System
|
|
|
95,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
4,968
|
|
|
|
|
|
|
Maren Lindstrom
|
City University of New York
|
|
|
|
|
|
|
|
|
|
|
158,000
|
|
|
|
*
|
|
|
|
8,262
|
|
|
|
|
|
|
Tracy Maitland
|
Class C Trading Company,
Ltd.
|
|
|
|
|
|
|
|
|
|
|
4,070,000
|
|
|
|
*
|
|
|
|
212,841
|
|
|
|
|
|
|
Nathaniel Brown and Robert
Richardson
|
Columbia Convertible Securities Fund
|
|
|
4,000,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
209,180
|
|
|
|
|
|
|
Yanfang (Emma) Yan
|
Commercial Union Life Fund
|
|
|
1,950,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
101,975
|
|
|
|
|
|
|
David Clott
|
Commissioners of the Land Office
|
|
|
825,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
43,143
|
|
|
|
|
|
|
Maren Lindstrom
|
Convertible Arbitrage Fund of a
Series of Underlying Fund Trust
|
|
|
|
|
|
|
|
|
|
|
750,000
|
|
|
|
*
|
|
|
|
39,221
|
|
|
|
|
|
|
John Wylie, Jack Marshall, Mark
Correnti and Ken Applegate
|
CNH CA Master Account, L.P.
|
|
|
5,000,000
|
|
|
|
*
|
|
|
|
5,000,000
|
|
|
|
*
|
|
|
|
522,950
|
|
|
|
|
|
|
(13)
|
Consolidated Fund of the R.W.Grand
Lodge of F.& A.M. of Pennsylvania
|
|
|
125,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
6,536
|
|
|
|
|
|
|
Nick Calamos
|
Cowen and Company, LLC(+)
|
|
|
4,000,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
209,180
|
|
|
|
|
|
|
(29)
|
Credit Agricole Structured Asset
Management
|
|
|
|
|
|
|
|
|
|
|
1,640,000
|
|
|
|
*
|
|
|
|
85,763
|
|
|
|
|
|
|
Nathaniel Brown and Robert
Richardson
|
DBAG London(++)
|
|
|
36,025,000
|
|
|
|
3.3
|
%
|
|
|
74,360,000
|
|
|
|
7.4
|
%
|
|
|
5,772,593
|
|
|
|
|
|
|
(29)
|
Delaware Pers
|
|
|
1,925,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
100,668
|
|
|
|
|
|
|
Ann Houlihan
|
Delaware Public Employees
Retirement System(++)
|
|
|
2,240,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
117,141
|
|
|
|
|
|
|
(10)
|
DellaCamera Capital Master
Trust Fund, Ltd.
|
|
|
1,000,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
52,295
|
|
|
|
|
|
|
Ralph DellaCamera
|
Delta Airlines Master Trust
|
|
|
1,725,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
90,909
|
|
|
|
|
|
|
Nick Calamos
|
Delta Airlines Master Trust
|
|
|
630,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
32,945
|
|
|
|
|
|
|
(29)
|
Delta Air Lines Master
Trust CV(++)
|
|
|
1,005,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
52,556
|
|
|
|
|
|
|
(10)
|
Delta Pilots Disability and
Survivorship Trust
|
|
|
790,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
41,313
|
|
|
|
|
|
|
Nick Calamos
|
Delta Pilots Disability &
Survivorship Trust CV(++)
|
|
|
670,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
35,037
|
|
|
|
|
|
|
(10)
|
Deutsche Bank Securities Inc.(+)
|
|
|
|
|
|
|
|
|
|
|
5,000,000
|
|
|
|
*
|
|
|
|
261,475
|
|
|
|
|
|
|
(29)
|
Dorinco Reinsurance Company
|
|
|
1,725,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
90,209
|
|
|
|
|
|
|
Nick Calamos
|
Double Black Diamond Offshore LDC
|
|
|
10,305,000
|
|
|
|
*
|
|
|
|
6,976,000
|
|
|
|
*
|
|
|
|
903,711
|
|
|
|
|
|
|
Clint D. Carlson
|
Ellsworth Fund Ltd.
|
|
|
1,000,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
52,295
|
|
|
|
|
|
|
(29)
|
Empyrean Capital Fund LP
|
|
|
14,031,000
|
|
|
|
1.3
|
%
|
|
|
44,677,000
|
|
|
|
4.5
|
%
|
|
|
3,070,140
|
|
|
|
|
|
|
Tian Xue
|
Empyrean Capital Overseas Benefit
Plan Fund Ltd
|
|
|
2,939,000
|
|
|
|
*
|
|
|
|
980,000
|
|
|
|
*
|
|
|
|
204,944
|
|
|
|
|
|
|
Tian Xue
|
S-47
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number of
|
|
|
|
|
|
Principal
|
|
|
|
|
|
Principal
|
|
|
|
|
|
Number of
|
|
|
Shares of
|
|
|
|
|
|
Amount of
|
|
|
|
|
|
Amount of
|
|
|
|
|
|
Shares of
|
|
|
Common
|
|
|
|
|
|
2011 Notes
|
|
|
Percentage
|
|
|
2013 Notes
|
|
|
Percentage
|
|
|
Common
|
|
|
Stock
|
|
|
Natural
|
|
|
Beneficially
|
|
|
of 2011
|
|
|
Beneficially
|
|
|
of 2013
|
|
|
Stock
|
|
|
Beneficially
|
|
|
Person(s)
|
|
|
Owned and
|
|
|
Notes
|
|
|
Owned and
|
|
|
Notes
|
|
|
Issuable That
|
|
|
Owned
|
|
|
with Voting or
|
|
|
Offered
|
|
|
Outstanding
|
|
|
Offered
|
|
|
Outstanding
|
|
|
May be
|
|
|
After the
|
|
|
Investment
|
Name of Selling Securityholder(1)
|
|
(USD)
|
|
|
(%)
|
|
|
(USD)
|
|
|
(%)
|
|
|
Offered(2)(3)
|
|
|
Offering (4)
|
|
|
Power
|
|
Empyrean Capital Overseas Fund,
Ltd.
|
|
|
28,030,000
|
|
|
|
2.5
|
%
|
|
|
9,343,000
|
|
|
|
*
|
|
|
|
1,954,424
|
|
|
|
|
|
|
Tian Xue
|
Engineers Joint Pension Fund
|
|
|
320,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
16,734
|
|
|
|
|
|
|
(8)
|
F.M. Kirby Foundation, Inc.(++)
|
|
|
980,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
51,249
|
|
|
|
|
|
|
(9)
|
Family Service Life Insur Co.(++)
|
|
|
100,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
5,229
|
|
|
|
|
|
|
John Murphy
|
Five Sticks, L.P.
|
|
|
|
|
|
|
|
|
|
|
200,000
|
|
|
|
*
|
|
|
|
10,459
|
|
|
|
|
|
|
(14)
|
Fore Convertible Master Fund,
Ltd.(+)
|
|
|
1,759,000
|
|
|
|
*
|
|
|
|
3,450,000
|
|
|
|
*
|
|
|
|
272,405
|
|
|
|
|
|
|
Matthew Li
|
Fore Erisa Fund, Ltd.(+)
|
|
|
191,000
|
|
|
|
*
|
|
|
|
375,000
|
|
|
|
*
|
|
|
|
29,598
|
|
|
|
|
|
|
Matthew Li
|
Fore Multi Strategy Master Fund,
Ltd.
|
|
|
1,360,000
|
|
|
|
*
|
|
|
|
1,360,000
|
|
|
|
*
|
|
|
|
142,242
|
|
|
|
|
|
|
Matthew Li
|
Forest Global Convertible Master
Fund, L.P.
|
|
|
9,744,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
509,563
|
|
|
|
|
|
|
Michael A. Boyd
|
Forest Multi-Strategy Master
Fund SPC, on behalf of its Multi Strategy Segregated
Portfolio
|
|
|
479,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
25,049
|
|
|
|
|
|
|
Michael A. Boyd
|
FPL Group Employees Pension Plan
|
|
|
1,040,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
54,386
|
|
|
|
|
|
|
(29)
|
GLG Global Convertible Fund
|
|
|
7,500,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
392,213
|
|
|
|
|
|
|
(32)
|
GLG Investments PLC-Sub Fund: GLG
Global Convertible UCITS Fund
|
|
|
15,000,000
|
|
|
|
1.4
|
%
|
|
|
|
|
|
|
|
|
|
|
784,426
|
|
|
|
|
|
|
(33)
|
GLG Market Neutral Fund
|
|
|
10,000,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
522,951
|
|
|
|
|
|
|
(34)
|
Goldman, Sachs & Co.(+)
|
|
|
38,150,000
|
|
|
|
3.5
|
%
|
|
|
|
|
|
|
|
|
|
|
1,995,058
|
|
|
|
|
|
|
(29)
|
Grace Convertible Arbitrage Fund,
Ltd.
|
|
|
|
|
|
|
|
|
|
|
5,000,000
|
|
|
|
*
|
|
|
|
261,475
|
|
|
|
|
|
|
Michael Brailov
|
Grady Hospital
|
|
|
|
|
|
|
|
|
|
|
151,000
|
|
|
|
*
|
|
|
|
7,986
|
|
|
|
|
|
|
Tracy Maitland
|
Guardian Life Insurance Co.(++)
|
|
|
7,500,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
392,213
|
|
|
|
|
|
|
John Murphy
|
Guardian Pension Trust(++)
|
|
|
700,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
36,606
|
|
|
|
|
|
|
John Murphy
|
HBMC Limited
|
|
|
15,000,000
|
|
|
|
1.4
|
%
|
|
|
|
|
|
|
|
|
|
|
784,426
|
|
|
|
|
|
|
(15)
|
HFR CA Global Opportunity Master
Trust
|
|
|
3,904,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
204,160
|
|
|
|
|
|
|
Michael A. Boyd
|
HFR CA Global Select Master
Trust Account
|
|
|
|
|
|
|
|
|
|
|
1,530,000
|
|
|
|
*
|
|
|
|
80,011
|
|
|
|
|
|
|
Nathaniel Brown and Robert
Richardson
|
HFR Convertible Arbitrage
|
|
|
|
|
|
|
|
|
|
|
314,000
|
|
|
|
*
|
|
|
|
16,420
|
|
|
|
|
|
|
Tracy Maitland
|
HFR RVA Select Performance Master
Trust
|
|
|
676,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
35,351
|
|
|
|
|
|
|
Michael A. Boyd
|
Highbridge International LLC
|
|
|
80,000,000
|
|
|
|
7.3
|
%
|
|
|
110,000,000
|
|
|
|
11.1
|
%
|
|
|
9,936,069
|
|
|
|
|
|
|
(15)
|
HSBC Multistrategy Arbitrage Fund
(A Subfund of the HSBC Alpha Trustfund)
|
|
|
1,000,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
52,295
|
|
|
|
|
|
|
(29)
|
ICI American Holdings Trust
|
|
|
625,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
32,684
|
|
|
|
|
|
|
(29)
|
Independence Blue Cross
|
|
|
|
|
|
|
|
|
|
|
751,000
|
|
|
|
*
|
|
|
|
39,273
|
|
|
|
|
|
|
Tracy Maitland
|
ING Equity Income Fund(+)(27)
|
|
|
2,647,000
|
|
|
|
*
|
|
|
|
830,000
|
|
|
|
*
|
|
|
|
181,830
|
|
|
|
|
|
|
(16)
|
Innovest Finanzdienstle
|
|
|
|
|
|
|
|
|
|
|
1,600,000
|
|
|
|
*
|
|
|
|
83,672
|
|
|
|
|
|
|
(8)
|
S-48
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number of
|
|
|
|
|
|
Principal
|
|
|
|
|
|
Principal
|
|
|
|
|
|
Number of
|
|
|
Shares of
|
|
|
|
|
|
Amount of
|
|
|
|
|
|
Amount of
|
|
|
|
|
|
Shares of
|
|
|
Common
|
|
|
|
|
|
2011 Notes
|
|
|
Percentage
|
|
|
2013 Notes
|
|
|
Percentage
|
|
|
Common
|
|
|
Stock
|
|
|
Natural
|
|
|
Beneficially
|
|
|
of 2011
|
|
|
Beneficially
|
|
|
of 2013
|
|
|
Stock
|
|
|
Beneficially
|
|
|
Person(s)
|
|
|
Owned and
|
|
|
Notes
|
|
|
Owned and
|
|
|
Notes
|
|
|
Issuable That
|
|
|
Owned
|
|
|
with Voting or
|
|
|
Offered
|
|
|
Outstanding
|
|
|
Offered
|
|
|
Outstanding
|
|
|
May be
|
|
|
After the
|
|
|
Investment
|
Name of Selling Securityholder(1)
|
|
(USD)
|
|
|
(%)
|
|
|
(USD)
|
|
|
(%)
|
|
|
Offered(2)(3)
|
|
|
Offering (4)
|
|
|
Power
|
|
INOVA Health Care Services
|
|
|
580,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
30,331
|
|
|
|
|
|
|
Nick Calamos
|
INOVA Health System Retirement Plan
|
|
|
180,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
9,413
|
|
|
|
|
|
|
Nick Calamos
|
Institutional Benchmarks Master
Fund Ltd.
|
|
|
1,934,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
101,138
|
|
|
|
|
|
|
Michael A. Boyd
|
International Truck &
Engine Corporation Non-Contributary Retirement Plan Trust(++)
|
|
|
535,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
27,977
|
|
|
|
|
|
|
(9)
|
International Truck &
Engine Corporation Retiree Health Benefit Trust++
|
|
|
320,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
16,734
|
|
|
|
|
|
|
(9)
|
International Truck &
Engine Corporation Retirement Plan for Salaried Employees
Trust(++)
|
|
|
290,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
15,165
|
|
|
|
|
|
|
(9)
|
International Truck &
Engine Corporation Non-Contributary Retirement Plan Trust
|
|
|
580,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
30,331
|
|
|
|
|
|
|
Maren Lindstrom
|
International Truck &
Engine Corporation Retirement Plan for Salaried Employees Trust
|
|
|
300,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
15,688
|
|
|
|
|
|
|
Maren Lindstrom
|
Jerome E. Hyman IRA
|
|
|
|
|
|
|
|
|
|
|
7,000
|
|
|
|
*
|
|
|
|
366
|
|
|
|
|
|
|
Tracy Maitland
|
JMG Capital Partners, LP
|
|
|
|
|
|
|
|
|
|
|
11,250,000
|
|
|
|
1.1
|
%
|
|
|
588,319
|
|
|
|
|
|
|
(17)
|
JMG Triton Offshore Fund, Ltd.
|
|
|
|
|
|
|
|
|
|
|
11,250,000
|
|
|
|
1.1
|
%
|
|
|
588,319
|
|
|
|
|
|
|
(18)
|
Kamunting Street Master Fund,
Ltd.
|
|
|
27,500,000
|
|
|
|
2.5
|
%
|
|
|
10,000,000
|
|
|
|
1.0
|
%
|
|
|
1,961,066
|
|
|
|
|
|
|
Allan Teh
|
KBC Convertibles Mac28 Limited++
|
|
|
2,817,000
|
|
|
|
*
|
|
|
|
7,966,000
|
|
|
|
*
|
|
|
|
563,897
|
|
|
|
|
|
|
Carlo Georg
|
KBC Diversified Fund, a Segregated
Portfolio of KBC Diversified Fund, SPC(++)
|
|
|
5,635,000
|
|
|
|
*
|
|
|
|
7,966,000
|
|
|
|
*
|
|
|
|
711,264
|
|
|
|
|
|
|
Carlo Georg
|
KBC Financial Products (Cayman
Islands) Ltd.(++)
|
|
|
50,000,000
|
|
|
|
4.5
|
%
|
|
|
25,000,000
|
|
|
|
2.5
|
%
|
|
|
3,922,132
|
|
|
|
|
|
|
(19)
|
KBC Financial Products USA Inc.(++)
|
|
|
8,050,000
|
|
|
|
*
|
|
|
|
9,500,000
|
|
|
|
*
|
|
|
|
917,778
|
|
|
|
|
|
|
(20)
|
KeySpan Foundation
|
|
|
50,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
2,614
|
|
|
|
|
|
|
Maren Lindstrom
|
KeySpan Insurance Company
|
|
|
125,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
6,536
|
|
|
|
|
|
|
Maren Lindstrom
|
Knoxville Utilities Board
Retirement System
|
|
|
270,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
14,119
|
|
|
|
|
|
|
Nick Calamos
|
Lord Abbett Bond Debenture Fund,
Inc.
|
|
|
10,000,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
522,951
|
|
|
|
|
|
|
Maren Lindstrom
|
Lord Abbett Investment
Trust LA Convertible Fund
|
|
|
2,935,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
153,486
|
|
|
|
|
|
|
Maren Lindstrom
|
Louisiana Workers
Compensation Corporation
|
|
|
340,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
17,780
|
|
|
|
|
|
|
Nick Calamos
|
Lyxor Convertible Arbitrage Fund
|
|
|
|
|
|
|
|
|
|
|
86,000
|
|
|
|
*
|
|
|
|
4,497
|
|
|
|
|
|
|
Tracy Maitland
|
Lydian Global Opportunities Master
Fund Limited
|
|
|
20,000,000
|
|
|
|
1.8
|
%
|
|
|
|
|
|
|
|
|
|
|
1,045,902
|
|
|
|
|
|
|
David Friezo
|
S-49
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number of
|
|
|
|
|
|
Principal
|
|
|
|
|
|
Principal
|
|
|
|
|
|
Number of
|
|
|
Shares of
|
|
|
|
|
|
Amount of
|
|
|
|
|
|
Amount of
|
|
|
|
|
|
Shares of
|
|
|
Common
|
|
|
|
|
|
2011 Notes
|
|
|
Percentage
|
|
|
2013 Notes
|
|
|
Percentage
|
|
|
Common
|
|
|
Stock
|
|
|
Natural
|
|
|
Beneficially
|
|
|
of 2011
|
|
|
Beneficially
|
|
|
of 2013
|
|
|
Stock
|
|
|
Beneficially
|
|
|
Person(s)
|
|
|
Owned and
|
|
|
Notes
|
|
|
Owned and
|
|
|
Notes
|
|
|
Issuable That
|
|
|
Owned
|
|
|
with Voting or
|
|
|
Offered
|
|
|
Outstanding
|
|
|
Offered
|
|
|
Outstanding
|
|
|
May be
|
|
|
After the
|
|
|
Investment
|
Name of Selling Securityholder(1)
|
|
(USD)
|
|
|
(%)
|
|
|
(USD)
|
|
|
(%)
|
|
|
Offered(2)(3)
|
|
|
Offering (4)
|
|
|
Power
|
|
Lydian Overseas Partners Master
Fund Ltd.
|
|
|
65,000,000
|
|
|
|
5.9
|
%
|
|
|
50,000,000
|
|
|
|
5.0
|
%
|
|
|
6,013,936
|
|
|
|
|
|
|
David Friezo
|
Lyxor Master Fund Ref:
Argent/LowLev CB c/o Argent
|
|
|
|
|
|
|
|
|
|
|
2,990,000
|
|
|
|
*
|
|
|
|
156,362
|
|
|
|
|
|
|
Nathaniel Brown and Robert
Richardson
|
Lyxor/Forest Fund Limited
|
|
|
13,182,000
|
|
|
|
1.2
|
%
|
|
|
|
|
|
|
|
|
|
|
689,354
|
|
|
|
|
|
|
Michael A. Boyd
|
Macomb County Employees
Retirement System
|
|
|
610,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
31,900
|
|
|
|
|
|
|
Nick Calamos
|
Magnetar Capital Master Fund,
Ltd.
|
|
|
5,000,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
261,475
|
|
|
|
|
|
|
(21)
|
Man Mac 1, Limited
|
|
|
1,140,000
|
|
|
|
*
|
|
|
|
1,140,000
|
|
|
|
*
|
|
|
|
119,232
|
|
|
|
|
|
|
Matthew Li
|
Maurice Kent
|
|
|
|
|
|
|
|
|
|
|
21,000
|
|
|
|
*
|
|
|
|
1,098
|
|
|
|
|
|
|
Tracy Maitland
|
Merrill Lynch International
Limited(+)(28)
|
|
|
25,000,000
|
|
|
|
2.3
|
%
|
|
|
25,000,000
|
|
|
|
2.5
|
%
|
|
|
2,614,754
|
|
|
|
|
|
|
(29)
|
Microsoft Capital Group, L.P.(++)
|
|
|
550,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
28,762
|
|
|
|
|
|
|
(9)
|
Millennium Partners, L.P.(++)
|
|
|
4,500,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
235,327
|
|
|
|
|
|
|
(22)
|
Morgan Stanley Fundamental Value
Fund(+)(27)
|
|
|
278,000
|
|
|
|
*
|
|
|
|
52,000
|
|
|
|
|
|
|
|
17,257
|
|
|
|
|
|
|
(29)
|
National Fuel & Gas
Company Retirement Plan
|
|
|
450,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
23,532
|
|
|
|
|
|
|
Maren Lindstrom
|
New Orleans Firefighters
|
|
|
|
|
|
|
|
|
|
|
92,000
|
|
|
|
*
|
|
|
|
4,811
|
|
|
|
|
|
|
Tracy Maitland
|
NFS SCI Funeral and
Merchandise Fixed Common Trust
|
|
|
125,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
6,536
|
|
|
|
|
|
|
Maren Lindstrom
|
Nicholas Applegate U.S. Convertible
Fund
|
|
|
|
|
|
|
|
|
|
|
460,000
|
|
|
|
*
|
|
|
|
24,055
|
|
|
|
|
|
|
(8)
|
North Dakota State Investment Board
|
|
|
900,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
47,065
|
|
|
|
|
|
|
Nick Calamos
|
Norwich Union Life and Pensions
|
|
|
4,200,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
219,639
|
|
|
|
|
|
|
David Clott
|
Nuveen Preferred &
Convertible Income Fund JPC
|
|
|
8,800,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
460,196
|
|
|
|
|
|
|
(29)
|
Nuveen Preferred &
Convertible Income Fund JQC
|
|
|
12,375,000
|
|
|
|
1.1
|
%
|
|
|
|
|
|
|
|
|
|
|
647,151
|
|
|
|
|
|
|
(29)
|
Oakwood Assurance Company Ltd.
|
|
|
79,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
4,131
|
|
|
|
|
|
|
Nick Calamos
|
Oakwood Healthcare Inc.
OHP
|
|
|
23,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
1,202
|
|
|
|
|
|
|
Nick Calamos
|
Oakwood Healthcare Inc.
Endowment/A&D
|
|
|
19,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
993
|
|
|
|
|
|
|
Nick Calamos
|
Oakwood Healthcare Inc. Funded
Depreciation
|
|
|
198,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
10,354
|
|
|
|
|
|
|
Nick Calamos
|
Oakwood Healthcare Inc. Pension
|
|
|
355,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
18,564
|
|
|
|
|
|
|
Nick Calamos
|
Occidental Petroleum
|
|
|
|
|
|
|
|
|
|
|
351,000
|
|
|
|
*
|
|
|
|
18,355
|
|
|
|
|
|
|
Tracy Maitland
|
OCM Convertible Trust(++)
|
|
|
1,695,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
88,640
|
|
|
|
|
|
|
(9)
|
OCM Global Convertible Securities
Fund(++)
|
|
|
595,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
31,115
|
|
|
|
|
|
|
(9)
|
Otterbein Homes
|
|
|
|
|
|
|
|
|
|
|
71,000
|
|
|
|
*
|
|
|
|
3,712
|
|
|
|
|
|
|
Tracy Maitland
|
S-50
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number of
|
|
|
|
|
|
Principal
|
|
|
|
|
|
Principal
|
|
|
|
|
|
Number of
|
|
|
Shares of
|
|
|
|
|
|
Amount of
|
|
|
|
|
|
Amount of
|
|
|
|
|
|
Shares of
|
|
|
Common
|
|
|
|
|
|
2011 Notes
|
|
|
Percentage
|
|
|
2013 Notes
|
|
|
Percentage
|
|
|
Common
|
|
|
Stock
|
|
|
Natural
|
|
|
Beneficially
|
|
|
of 2011
|
|
|
Beneficially
|
|
|
of 2013
|
|
|
Stock
|
|
|
Beneficially
|
|
|
Person(s)
|
|
|
Owned and
|
|
|
Notes
|
|
|
Owned and
|
|
|
Notes
|
|
|
Issuable That
|
|
|
Owned
|
|
|
with Voting or
|
|
|
Offered
|
|
|
Outstanding
|
|
|
Offered
|
|
|
Outstanding
|
|
|
May be
|
|
|
After the
|
|
|
Investment
|
Name of Selling Securityholder(1)
|
|
(USD)
|
|
|
(%)
|
|
|
(USD)
|
|
|
(%)
|
|
|
Offered(2)(3)
|
|
|
Offering (4)
|
|
|
Power
|
|
Otterbein Homes Pension
|
|
|
|
|
|
|
|
|
|
|
24,000
|
|
|
|
*
|
|
|
|
1,255
|
|
|
|
|
|
|
Tracy Maitland
|
Partner Reinsurance Company Ltd.(++)
|
|
|
1,210,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
63,277
|
|
|
|
|
|
|
(9)
|
Partners Group Alternative
Strategies PCC LTD
|
|
|
|
|
|
|
|
|
|
|
5,420,000
|
|
|
|
*
|
|
|
|
283,439
|
|
|
|
|
|
|
Nathaniel Brown and Robert
Richardson
|
Pension, Hospitalization Benefit
Plan of the Electrical Ind. Plan
|
|
|
525,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
27,454
|
|
|
|
|
|
|
Maren Lindstrom
|
Philadelphia Board of Pensions
|
|
|
550,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
28,762
|
|
|
|
|
|
|
Maren Lindstrom
|
Pimco Convertible Fund
|
|
|
|
|
|
|
|
|
|
|
500,000
|
|
|
|
*
|
|
|
|
26,147
|
|
|
|
|
|
|
Mark Hadoff
|
Police & Firemen of the
City of Detroit
|
|
|
|
|
|
|
|
|
|
|
551,000
|
|
|
|
*
|
|
|
|
28,814
|
|
|
|
|
|
|
Tracy Maitland
|
Polygon Global Opportunities Master
Fund
|
|
|
3,540,000
|
|
|
|
*
|
|
|
|
10,000,000
|
|
|
|
1.0
|
%
|
|
|
708,075
|
|
|
|
|
|
|
(30)
|
Port Authority of Allegheny County
Consolidated Trust Fund
|
|
|
110,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
5,752
|
|
|
|
|
|
|
Nick Calamos
|
Port Authority of Allegheny County
Retirement and Disability Allowance Plan for the Employees
Represented by Local 85 of the Amalgamated Transit Union
|
|
|
1,330,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
69,552
|
|
|
|
|
|
|
Nick Calamos
|
President and Fellows of Harvard
College
|
|
|
15,000,000
|
|
|
|
1.4
|
%
|
|
|
15,000,000
|
|
|
|
1.5
|
%
|
|
|
1,568,853
|
|
|
|
|
|
|
(23)
|
Prisma Foundation
|
|
|
460,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
24,055
|
|
|
|
|
|
|
Nick Calamos
|
Privilege Portfolio Skav
|
|
|
12,000,000
|
|
|
|
1.1
|
%
|
|
|
|
|
|
|
|
|
|
|
627,541
|
|
|
|
|
|
|
David Clott
|
Promutual
|
|
|
|
|
|
|
|
|
|
|
998,000
|
|
|
|
*
|
|
|
|
52,190
|
|
|
|
|
|
|
Tracy Maitland
|
Prudential Insurance Company of
America
|
|
|
155,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
8,105
|
|
|
|
|
|
|
(29)
|
Qwest Occupational Health Trust++
|
|
|
410,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
21,440
|
|
|
|
|
|
|
(9)
|
Qwest Pension Trust(++)
|
|
|
1,300,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
67,983
|
|
|
|
|
|
|
(9)
|
Radcliffe SPC, Ltd for and on
behalf of the Class A Convertible Crossover Segregated
Portofolio
|
|
|
1,861,000
|
|
|
|
*
|
|
|
|
15,000,000
|
|
|
|
1.5
|
%
|
|
|
881,747
|
|
|
|
|
|
|
(24)
|
Rhythm Fund, Ltd.(++)
|
|
|
5,635,000
|
|
|
|
*
|
|
|
|
7,966,000
|
|
|
|
*
|
|
|
|
711,264
|
|
|
|
|
|
|
Carlo Georg
|
Russell Simmons A/C #3
|
|
|
|
|
|
|
|
|
|
|
26,000
|
|
|
|
*
|
|
|
|
1,359
|
|
|
|
|
|
|
Tracy Maitland
|
Russell Simmons IRA
|
|
|
|
|
|
|
|
|
|
|
3,000
|
|
|
|
*
|
|
|
|
156
|
|
|
|
|
|
|
Tracy Maitland
|
San Diego City Retirement
|
|
|
|
|
|
|
|
|
|
|
1,660,000
|
|
|
|
*
|
|
|
|
86,809
|
|
|
|
|
|
|
(8)
|
San Diego County Convertible
|
|
|
|
|
|
|
|
|
|
|
1,450,000
|
|
|
|
*
|
|
|
|
75,827
|
|
|
|
|
|
|
(8)
|
San Francisco Public Employees
Retirement System
|
|
|
|
|
|
|
|
|
|
|
1,561,000
|
|
|
|
*
|
|
|
|
81,632
|
|
|
|
|
|
|
Tracy Maitland
|
Sandelman Partners Multi-Strategy
Master Fund Ltd
|
|
|
17,500,000
|
|
|
|
1.6
|
%
|
|
|
8,000,000
|
|
|
|
*
|
|
|
|
1,333,525
|
|
|
|
|
|
|
(35)
|
Satellite Convertible Arbitrage
Master Fund LLC
|
|
|
10,000,000
|
|
|
|
|
|
|
|
10,000,000
|
|
|
|
1.0
|
%
|
|
|
1,045,902
|
|
|
|
|
|
|
(25)
|
S-51
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number of
|
|
|
|
|
|
Principal
|
|
|
|
|
|
Principal
|
|
|
|
|
|
Number of
|
|
|
Shares of
|
|
|
|
|
|
Amount of
|
|
|
|
|
|
Amount of
|
|
|
|
|
|
Shares of
|
|
|
Common
|
|
|
|
|
|
2011 Notes
|
|
|
Percentage
|
|
|
2013 Notes
|
|
|
Percentage
|
|
|
Common
|
|
|
Stock
|
|
|
Natural
|
|
|
Beneficially
|
|
|
of 2011
|
|
|
Beneficially
|
|
|
of 2013
|
|
|
Stock
|
|
|
Beneficially
|
|
|
Person(s)
|
|
|
Owned and
|
|
|
Notes
|
|
|
Owned and
|
|
|
Notes
|
|
|
Issuable That
|
|
|
Owned
|
|
|
with Voting or
|
|
|
Offered
|
|
|
Outstanding
|
|
|
Offered
|
|
|
Outstanding
|
|
|
May be
|
|
|
After the
|
|
|
Investment
|
Name of Selling Securityholder(1)
|
|
(USD)
|
|
|
(%)
|
|
|
(USD)
|
|
|
(%)
|
|
|
Offered(2)(3)
|
|
|
Offering (4)
|
|
|
Power
|
|
SCI Endowment Care Common
Trust Fund National Fiduciary Services
|
|
|
300,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
15,688
|
|
|
|
|
|
|
Nick Calamos
|
SCI Endowment Care Common
Trust Fund Sun Trust Bank
|
|
|
139,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
7,269
|
|
|
|
|
|
|
Nick Calamos
|
SCI Endowment Care Common
Trust Fund Wachovia Bank, NA
|
|
|
65,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
3,399
|
|
|
|
|
|
|
Nick Calamos
|
Silver Convertible Arbitrage Fund,
LDC
|
|
|
|
|
|
|
|
|
|
|
490,000
|
|
|
|
*
|
|
|
|
25,624
|
|
|
|
|
|
|
Nathaniel Brown and Robert
Richardson
|
South Dakota Retirement System
|
|
|
3,000,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
156,885
|
|
|
|
|
|
|
Dan Frasier or Ross Sandine
|
SPT
|
|
|
3,400,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
177,803
|
|
|
|
|
|
|
Nick Calamos
|
Stark Master Fund Ltd.(++)
|
|
|
|
|
|
|
|
|
|
|
95,000,000
|
|
|
|
9.5
|
%
|
|
|
4,968,034
|
|
|
|
|
|
|
Brian Stark and Michael Roth
|
State of Oregon Equity
|
|
|
7,675,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
401,364
|
|
|
|
|
|
|
Ann Houlihan
|
Steelhead Pathfinder Fund LP
|
|
|
1,500,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
78,442
|
|
|
|
|
|
|
(26)
|
Syngenta AG
|
|
|
235,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
12,289
|
|
|
|
|
|
|
(29)
|
The California Wellness Foundation
|
|
|
845,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
44,189
|
|
|
|
|
|
|
Nick Calamos
|
The Cockrell Foundation
|
|
|
170,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
8,890
|
|
|
|
|
|
|
Nick Calamos
|
The Dow Chemical Company
Employees Retirement Plan
|
|
|
3,675,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
192,184
|
|
|
|
|
|
|
Nick Calamos
|
The Grable Foundation
|
|
|
|
|
|
|
|
|
|
|
82,000
|
|
|
|
*
|
|
|
|
4,288
|
|
|
|
|
|
|
Tracy Maitland
|
Total Fina Elf Finance USA,
Inc.
|
|
|
250,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
13,073
|
|
|
|
|
|
|
Maren Lindstrom
|
Trustmark
|
|
|
|
|
|
|
|
|
|
|
355,000
|
|
|
|
*
|
|
|
|
18,564
|
|
|
|
|
|
|
Tracy Maitland
|
UBS AG London F/B/O HFS(++)
|
|
|
8,000,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
418,360
|
|
|
|
|
|
|
(29)
|
UBS AG London FBO/WCBP(++)
|
|
|
20,000,000
|
|
|
|
1.8
|
%
|
|
|
|
|
|
|
|
|
|
|
1,045,902
|
|
|
|
|
|
|
(29)
|
UBS OConnor LLC F/B/O
OConnor Global Arbitrage II Master Limited
|
|
|
|
|
|
|
|
|
|
|
760000
|
|
|
|
*
|
|
|
|
39,774
|
|
|
|
|
|
|
(31)
|
UBS Securities LLC(+)
|
|
|
8,850,000
|
|
|
|
*
|
|
|
|
27,500,000
|
|
|
|
2.8
|
%
|
|
|
1,900,926
|
|
|
|
|
|
|
(29)
|
Union Carbide Retirement Account
|
|
|
1,900,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
99,360
|
|
|
|
|
|
|
Nick Calamos
|
Univar USA Inc. Retirement Plan
|
|
|
935,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
48,895
|
|
|
|
|
|
|
Nick Calamos
|
Universal Institutional Funds
Equity and Income Fund(+)(27)
|
|
|
1,553,000
|
|
|
|
*
|
|
|
|
322,000
|
|
|
|
*
|
|
|
|
98,053
|
|
|
|
|
|
|
(16)
|
Universal Investment Gesellschaft,
MBH
|
|
|
5,000,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
261,475
|
|
|
|
|
|
|
Avtandil Gigineishuili
|
UnumProvident Corporation(++)
|
|
|
730,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
38,175
|
|
|
|
|
|
|
(9)
|
US Allianz Equity Income Fund(+)(27)
|
|
|
507,000
|
|
|
|
*
|
|
|
|
139,000
|
|
|
|
*
|
|
|
|
33,783
|
|
|
|
|
|
|
(16)
|
Van Kampen Equity and Income
Fund+(27)
|
|
|
45,255,000
|
|
|
|
4.1
|
%
|
|
|
13,657,000
|
|
|
|
1.4
|
%
|
|
|
3,050,809
|
|
|
|
|
|
|
(16)
|
Vanguard Convertible Securities
Fund, Inc.(++)
|
|
|
9,605,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
502,294
|
|
|
|
|
|
|
(9)
|
S-52
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number of
|
|
|
|
|
|
Principal
|
|
|
|
|
|
Principal
|
|
|
|
|
|
Number of
|
|
|
Shares of
|
|
|
|
|
|
Amount of
|
|
|
|
|
|
Amount of
|
|
|
|
|
|
Shares of
|
|
|
Common
|
|
|
|
|
|
2011 Notes
|
|
|
Percentage
|
|
|
2013 Notes
|
|
|
Percentage
|
|
|
Common
|
|
|
Stock
|
|
|
Natural
|
|
|
Beneficially
|
|
|
of 2011
|
|
|
Beneficially
|
|
|
of 2013
|
|
|
Stock
|
|
|
Beneficially
|
|
|
Person(s)
|
|
|
Owned and
|
|
|
Notes
|
|
|
Owned and
|
|
|
Notes
|
|
|
Issuable That
|
|
|
Owned
|
|
|
with Voting or
|
|
|
Offered
|
|
|
Outstanding
|
|
|
Offered
|
|
|
Outstanding
|
|
|
May be
|
|
|
After the
|
|
|
Investment
|
Name of Selling Securityholder(1)
|
|
(USD)
|
|
|
(%)
|
|
|
(USD)
|
|
|
(%)
|
|
|
Offered(2)(3)
|
|
|
Offering (4)
|
|
|
Power
|
|
Vermont Mutual Insurance Company
|
|
|
150,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
7,844
|
|
|
|
|
|
|
Maren Lindstrom
|
Virginia Retirement System(++)
|
|
|
4,365,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
228,268
|
|
|
|
|
|
|
(9)
|
Wachovia Bank, NA, as Trustee for
the SCI Cemetary Merchandise Common Trust
|
|
|
80,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
4,183
|
|
|
|
|
|
|
Maren Lindstrom
|
Wachovia Bank, NA, as Trustee for
the SCI Pre-Need Common Trust Fund
|
|
|
20,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
1,045
|
|
|
|
|
|
|
Maren Lindstrom
|
Wachovia Capital Markets LLC(+)
|
|
|
15,000,000
|
|
|
|
1.4
|
%
|
|
|
30,000,000
|
|
|
|
3.0
|
%
|
|
|
2,353,279
|
|
|
|
|
|
|
(29)
|
Wells Fargo & Company
|
|
|
4,000,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
209,180
|
|
|
|
|
|
|
(29)
|
Wyoming State Treasurer
|
|
|
|
|
|
|
|
|
|
|
1,115,000
|
|
|
|
*
|
|
|
|
58,309
|
|
|
|
|
|
|
(8)
|
Xavex Convertible Arbitrage
10 Fund
|
|
|
|
|
|
|
|
|
|
|
3,600,000
|
|
|
|
*
|
|
|
|
188,262
|
|
|
|
|
|
|
Nathanial Brown & Robert
Richardson
|
Xavex Convertible Arbitrage
2 Fund
|
|
|
|
|
|
|
|
|
|
|
230,000
|
|
|
|
*
|
|
|
|
12,027
|
|
|
|
|
|
|
Nathaniel Brown and Robert
Richardson
|
|
|
|
(*) |
|
Less than one percent (1%). |
|
(+) |
|
The selling securityholder is a registered broker-dealer. |
|
(++) |
|
The selling securityholder is an affiliate of a registered
broker-dealer. |
|
|
|
(1) |
|
Information concerning other selling securityholders will be set
forth in additional supplements to the prospectus supplement
from time to time, if required. |
|
(2) |
|
Assumes conversion of all of the selling securityholders
Notes at a conversion rate of 52.2951 shares of Common
Stock per $1,000 principal amount of the Notes upon maturity.
This conversion rate is subject to adjustment as described in
Description of the Notes -Adjustment to Conversion
Rate above. As a result, the number of shares of Common
Stock issuable upon conversion of the Notes may increase or
decrease in the future. Excludes shares of Common Stock that may
be issued by us upon the repurchase of the debentures as
described under Description of the Notes
Repurchase at the Option of the Holder Upon a Change in
Control above and fractional shares. Securityholders will
receive a cash adjustment for any fractional share amount
resulting from conversion of the Notes, as described in
Description of the Notes Conversion
Rights above. |
|
(3) |
|
Calculated based on
Rule 13d-3(d)(i)
of the Exchange Act. The number of shares of Common Stock
beneficially owned by each securityholder named above is less
than 1% of our outstanding common stock calculated based on
928,516,893 shares of common stock outstanding as of
November 24, 2006. In calculating this amount for each
securityholder, we treated as outstanding the number of shares
of common stock issuable upon conversion of that
securityholders Notes, but we did not assume conversion of
any other securityholders Notes. |
|
(4) |
|
For purposes of computing the number and percentage of Notes and
shares of common stock to be held by the selling securityholders
after the conclusion of the offering, we have assumed for
purposes of this table above that the selling securityholders
named above will sell all of their Notes and all of the common
stock issuable upon conversion of their Notes offered by this
prospectus, and that any other shares of our Common Stock
beneficially owned by these selling securityholders will
continue to be beneficially owned. |
|
(5) |
|
Alexandra Investment Management, LLC, a Delaware limited
liability company (Alexandra), serves as investment
advisor to the selling securityholders. By reason of such
relationship, Alexandra may be deemed to |
S-53
|
|
|
|
|
share dispositive power or investment control over the shares of
common stock stated as beneficially owned by the selling
securityholder. Alexandra disclaims beneficial ownership of such
shares of common stock. Messrs. Mikhail A. Filimonov
(Filimonov) and Dmitri Sogoloff
(Sogoloff) are managing members of Alexandra. By
reason of such relationships, Filimonov and Sogoloff may be
deemed to share dispositive power or investment control over the
shares of common stock stated as beneficially owned by the
selling securityholder. Filimonov and Sogoloff disclaim
beneficial ownership of such shares of common stock. |
|
(6) |
|
The AllState Corporation, which is a New York Stock Exchange
listed company, is the parent company of Allstate Insurance
Company, an Illinois insurance company. AIC is the parent
company of AllState Life Insurance Company, an Illinois
insurance company. AIC is the indirect parent company of
Allstate New Jersey Insurance, an Illinois insurance company.
Allstate Retirement Plan and Agents Pension Plan are employer
sponsored pension plans maintained for Allstate employees and
agents. |
|
(7) |
|
Aristeia Capital LLC is the investment manager for Aristeia
International Limited. Aristeia Capital LLC is jointly owned by
Kevin Toner, Robert H. Lynch Jr., Anthony Frasella and William
R. Techar. |
|
(8) |
|
This selling securityholder has delegated full investment
authority to Nicholas-Applegate, as investment adviser, over
these securities, including full dispositive power. The Chief
Investment Officer of Nicholas-Applegate is Horacio A. Valeiras,
CFA who, in such capacity, has oversight authority over all
portfolio managers at Nicholas-Applegate. To the knowledge of
Nicholas-Applegate, the securities listed herein were not
acquired as compensation for employment, underwriting, or any
other services performed by the selling security holder for the
benefit of the issuer. |
|
(9) |
|
As investment manager under a management agreement, Castle Creek
Arbitrage LLC may exercise dispositive and voting power with
respect to the shares owned by CC Arbitrage, Ltd. Castle Creek
Arbitrage LLC disclaims beneficial ownership of such shares.
Daniel Asher and Allan Weine are the managing members of Castle
Creek Arbitrage LLC. Messrs. Asher and Weine disclaim
beneficial ownership of the shares owned by CC Arbitrage Ltd. |
|
(10) |
|
Oaktree Capital Management LLC (Oaktree) is the
investment manager for the aggregate principal amount of
registrable securities set forth opposite this selling
securityholders name. Oaktree does not own any equity
interest in this selling securityholder but has voting and
dispositive power over the aggregate principal amount of
registrable securities set forth next to this selling
securityholders name. Lawrence W. Keele is a principal of
Oaktree and is the portfolio manager for this selling
securityholder. Mr. Keele, Oaktree and all employees and
members of Oaktree disclaim beneficial ownership of the
registrable securities held by all selling securityholders
except for their pecuniary interest therein. |
|
(11) |
|
Citadel Limited Partnership (CLP) is the trading
manager of Citadel Equity Fund Ltd. and consequently has
investment discretion over securities held by Citadel Equity
Fund Ltd. Citadel Investment Group, L.L.C.
(CIG) controls CLP. Kenneth C. Griffin controls CIG
and therefore has ultimate investment discretion over securities
held by Citadel Equity Fund Ltd. CLP, CIG, and
Mr. Griffin each disclaim beneficial ownership of the
shares held by Citadel Equity Fund Ltd. |
|
(12) |
|
Co-book runner for this issue. |
|
(13) |
|
CNH Partners, LLC is Investment Advisor of the selling
securityholder and has sole voting and dispositive power over
the Registrable Securities. Investment principals for the
Advisor are Robert Krail, Mark Mitchell and Todd Pulvino. |
|
(14) |
|
Basso Capital Management, L.P. (Basso) is the
Investment Manager to Five Sticks, L.P. (Basso
Fund). Howard Fischer is a managing member of Basso GP
LLC, the General Partner of Basso. Mr. Fischer has ultimate
responsibility for trading with respect to the Fund.
Mr. Fischer disclaims ultimate beneficial ownership of the
shares. |
|
(15) |
|
Highbridge Capital Management, LLC (Highbridge) is
the trading manager of Highbridge International LLC
(HIC) and consequently has voting control and
investment discretion over securities held by HIC. Glenn Dubin
and Henry Swieca control Highbridge. Each of Highbridge, Glenn
Dubin and Henry Swieca disclaims beneficial ownership of the
securities held by HIC. |
|
(16) |
|
Van Kampen Asset Management, as the selling
securityholders investment adviser, has discretionary
authority over the selling securityholders portfolio. |
S-54
|
|
|
(17) |
|
JMG Capital Partners, LP (JMG Partners) is a
California limited partnership. Its general partner is JMG
Capital Management, LLC (the Manager), a Delaware
limited liability company and an investment adviser that has
voting and dispositive powers over JMG Partners
investments, including the Registrable Securities. The equity
interests of the Manager are owned by JMG Capital Management,
Inc., (JMG Capital) a California corporation, and
Asset Alliance Holding Corp., a Delaware corporation. Jonathan
M. Glaser is the Executive Officer and Director of JMG Capital
and has sole investment discretion over JMG Partners
portfolio holdings. |
|
(18) |
|
JMG Triton Offshore Fund, Ltd. (the Fund) is an
international business company organized under the laws of the
British Virgin Islands. The Funds investment manager is
Pacific Assets Management LLC, a Delaware limited liability
company (the Manager) that has voting and
dispositive power over the Funds investments, including
the Registrable Securities. The equity interests of the Manager
are owned by Pacific Capital Management, Inc., a California
corporation (Pacific) and Asset Alliance Holding
Corp., a Delaware corporation. The equity interests of Pacific
are owned by Messrs. Roger Richter, Jonathan M. Glaser and
Daniel A. David. Messrs. Glaser and Richter have sole
investment discretion over the Funds portfolio holdings. |
|
(19) |
|
The securities are under the total control of KBC Financial
Products Cayman Islands Ltd. KBC Financial Products Cayman
Islands Ltd., is a direct wholly- owned subsidiary of KBC
Financial Holdings, Inc., which in turn is a direct wholly-owned
subsidiary of KBC Bank N.V., which in turn is a direct wholly-
owned subsidiary of KBC Group N.V., a publicly traded entity. |
|
(20) |
|
The securities are under the total control of KBC Financial
Products USA Inc. KBC Financial Products USA Inc., is a direct
wholly- owned subsidiary of KBC Financial Holdings, Inc., which
in turn is a direct wholly-owned subsidiary of KBC Bank N.V.,
which in turn is a direct wholly- owned subsidiary of KBC Group
N.V., a publicly traded entity. |
|
(21) |
|
Beneficial Ownership Information for Magnetar Capital
Master Fund, Ltd: Magnetar Financial LLC is the investment
advisor of Magnetar Capital Master Fund, Ltd (Magnetar
Master Fund) and consequently has voting control and
investment discretion over securities held by Magnetar Master
Fund. Magnetar Financial LLC disclaims beneficial ownership of
the shares held by Magnetar Master Fund. Alec Litowitz has
voting control over Supernova Management LLC, the general
partner of Magnetar Capital Partners LP, the sole managing
member of Magnetar Financial LLC. As a result, Mr. Litowitz
may be considered the beneficial owner of any shares deemed to
be beneficially owned by Magnetar Financial LLC.
Mr. Litowitz disclaims beneficial ownership of these shares. |
|
(22) |
|
Millennium Management, L.L.C., a Delaware limited liability
company, is the general partner of Millennium Partners, L.P., a
Cayman Islands exempted limited partnership, and consequently
may be deemed to have voting control and investment discretion
over securities owned by Millennium Partners, L.P. Israel A.
Englander is the managing member of Millennium Management,
L.L.C.. As a result, Mr. Englander may be deemed to be the
beneficial owner of any shares deemed to be beneficially owned
by Millennium Management, L.L.C. The foregoing should not be
construed in and of itself as an admission by either of
Millennium Management, L.L.C. or Mr. Englander as to
beneficial ownership of the shares of the Companys common
stock owned by Millennium Partners, L.P. |
|
(23) |
|
President and Fellows of Harvard College (Harvard)
has the sole power to vote and dispose of the shares. Harvard is
a Massachusetts educational and charitable corporation. |
|
(24) |
|
Pursuant to an investment management agreement, RG Capital
Management, L.P. (RG Capital) serves as the
investment manager of Radcliffe SPC, Ltd.s Class A
Convertible Crossover Segregated Portfolio. RGC Management
Company, LLC (Management) is the general partner of
RG Capital. Steve Katznelson and Gerald Stahlecker serve as the
managing members of Management. Each of RG Capital, Management
and Messrs. Katznelson and Stahlecker disclaims beneficial
ownership of the securities owned by Radcliffe SPC, Ltd. for and
on behalf of the Class A Convertible Crossover Segregated
Portfolio. |
|
(25) |
|
The discretionary investment manager of this selling
securityholder is Satellite Asset Management, L.P.
(SAM). The controlling entity of SAM is Satellite
Fund Management, LLC (SFM). The managing members of
SFM are Lief Rosenblad, Mark Sonnino and Gabe Nechamkin. SAM,
SFM and each named individual disclaims beneficial ownership of
the securities. |
S-55
|
|
|
(26) |
|
Steelhead Partners LLC, General Partner Steelhead Pathfinder
Fund LP. Beneficial owners: J. Michael Johnston and
Brian K. Klein. |
|
(27) |
|
This selling securityholder is affiliated with Morgan
Stanley & Co. Incorporated, one of the purchasers under
the registration Rights Agreement with respect to the
securities. The undersigned has no actual knowledge of any other
material relationship except as a selling securityholder but has
made no affirmative inquiry with respect thereto. |
|
(28) |
|
Merrill Lynch is not aware of any position, office or
directorship relationship with Symantec Corp. or their
affiliates; however, we may or may not have from time to time,
acted in a financial investment advisory capacity to Symantec
Corp. |
|
(29) |
|
Selling securityholder files periodic reports pursuant to the
1934 Securities Act or is an affiliate thereof. |
|
(30) |
|
Polygon Investment Partners LLP and Polygon Investment Partners
LP (the Investment Managers), Polygon Investments
Ltd. (the Manager), Alexander E. Jackson, Reade E.
Griffith and Patrick G.G. Dear share voting and dispositive
power over the securities held by Polygon Global Opportunities
Master Fund. The Investment Managers, the Manager, Alexander E.
Jackson, Reade E. Griffith and Patrick G.G. Dear disclaim
beneficial ownership of the securities held by Polygon Global
Opportunities Master Fund. |
|
(31) |
|
The selling securityholder is a fund which cedes investment
control to UBS OConnor LLC (the Investment Manager). The
Investment Manager makes all the investment/voting decisions.
UBS OConnor LLC is a wholly-owned subsidiary of UBS AG
which is listed and traded on the NYSE. |
|
(32) |
|
GLG Global Convertible Fund is a publicly-owned company listed
on the Irish Stock Exchange. GLG Partners LP, an Engilish
limited partnership, acts as the investment manager of the Fund
and has voting and dispositive power over the securities held by
the Fund. The general partner of GLG Partners LP is GLG Partners
Limited, an English limited company. The shareholders of GLG
Partners Limited are Noam Gottesman, Pierre Lagrange, Johathan
Green, Phillipe Jabre and Lehman Brothers (Cayman) Limited, a
subsidiary of Lehman Brothers Holding Inc., a publicly-held
entity. The managing directors of GLG Partners Limited are Noam
Gottesman, Pierre Lagrange and Emmanuel Roman and, as a result,
each has voting and dispositive power over the securities held
by the Fund. GLG Partners LP, GLG Partners Limited, Noam
Gottesman, Pierre Lagrange and Emmanuel Roman disclaim
beneficial ownership of the securities held by the Fund, except
for their pecuniary interest therein. |
|
(33) |
|
GLG Investments PLC-Sub Fund: GLG Global Convertible UCITS Fund
is a publicly-owned company listed on the Irish Stock Exchange.
GLG Partners LP, an Engilish limited partnership, acts as the
investment manager of the Fund and has voting and dispositive
power over the securities held by the Fund. The general partner
of GLG Partners LP is GLG Partners Limited, an English limited
company. The shareholders of GLG Partners Limited are Noam
Gottesman, Pierre Lagrange, Johathan Green, Phillipe Jabre and
Lehman Brothers (Cayman) Limited, a subsidiary of Lehman
Brothers Holding Inc., a publicly-held entity. The managing
directors of GLG Partners Limited are Noam Gottesman, Pierre
Lagrange and Emmanuel Roman and, as a result, each has voting
and dispositive power over the securities held by the Fund. GLG
Partners LP, GLG Partners Limited, Noam Gottesman, Pierre
Lagrange and Emmanuel Roman disclaim beneficial ownership of the
securities held by the Fund, except for their pecuniary interest
therein. |
|
(34) |
|
GLG Market Neutral Fund is a publicly-owned company listed on
the Irish Stock Exchange. GLG Partners LP, an Engilish limited
partnership, acts as the investment manager of the Fund and has
voting and dispositive power over the securities held by the
Fund. The general partner of GLG Partners LP is GLG Partners
Limited, an English limited company. The shareholders of GLG
Partners Limited are Noam Gottesman, Pierre Lagrange, Johathan
Green, Phillipe Jabre and Lehman Brothers (Cayman) Limited, a
subsidiary of Lehman Brothers Holding Inc., a publicly-held
entity. The managing directors of GLG Partners Limited are Noam
Gottesman, Pierre Lagrange and Emmanuel Roman and, as a result,
each has voting and dispositive power over the securities held
by the Fund. GLG Partners LP, GLG Partners Limited, Noam
Gottesman, Pierre Lagrange and Emmanuel Roman disclaim
beneficial ownership of the securities held by the Fund, except
for their pecuniary interest therein. |
|
(35) |
|
Sandelman Partners, LP whose General Partner is Sandelman
Partners GP, LLC whose Managing Member is Jonathan Sandelman. |
S-56
Only selling securityholders identified above who beneficially
own the securities set forth opposite their respective names in
the foregoing table may sell such securities under the
registration statement. Prior to any use of this prospectus
supplement in connection with an offering of the notes
and/or the
underlying common stock by any holder not identified above, this
prospectus supplement will be supplemented to set forth the name
and other information about the selling securityholder intending
to sell such notes and the underlying common stock. The
prospectus supplement will also disclose whether any
securityholder selling in connection with such prospectus
supplement has held any position or office with, been employed
by or otherwise had a material relationship with, us or any of
our affiliates during the three years prior to the date of the
prospectus supplement if such information has not been disclosed
in this prospectus supplement.
LEGAL
MATTERS
The validity of the securities offered by this prospectus
supplement has been passed upon for us by Fenwick &
West LLP, Mountain View, California.
EXPERTS
The consolidated financial statements of Symantec Corporation
and subsidiaries as of March 31, 2006 and 2005, and for
each of the years in the three-year period ended March 31,
2006, and the related financial statement schedule, appearing in
the current report on
Form 8-K
of Symantec Corporation dated December 11, 2006, and
Symantec Corporation managements assessment of the
effectiveness of internal control over financial reporting as of
March 31, 2006, appearing in the annual report on
Form 10-K
of Symantec Corporation for the fiscal year ended March 31,
2006, have been audited by KPMG LLP, independent registered
public accounting firm, as set forth in their reports thereon.
The report dated June 8, 2006, on managements
assessment of the effectiveness of internal control over
financial reporting and the effectiveness of internal control
over financial reporting as of March 31, 2006, expresses
the opinion of KPMG LLP that Symantec Corporation did not
maintain effective internal control over financial reporting as
of March 31, 2006 because of the effect of a material
weakness on the achievement of the objectives of the control
criteria and contains an explanatory paragraph that states that
Symantec Corporation has identified a material weakness with
respect to the internal controls over financial reporting
related to accounting for income taxes.
Such consolidated financial statements, financial statement
schedule, and managements assessment are incorporated
herein by reference in reliance upon such reports given on the
authority of such firm as experts in accounting and auditing.
S-57