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Exhibit 4.3
JABIL CIRCUIT,
INC.
OFFICERS’ CERTIFICATE
PURSUANT TO
SECTIONS 1.2, 3.1 AND 3.3
OF THE INDENTURE
We, the undersigned, being
respectively the President and the Chief Financial Officer of Jabil
Circuit, Inc., a corporation duly organized and existing under the
laws of the State of Delaware (the “Company”), hereby
certify to The Bank of New York Trust Company, N.A., a national
banking association, as trustee (the “Trustee”),
pursuant to and in accordance with Sections 1.2, 3.1 and 3.3 of the
Indenture, dated as of January 16, 2008 (the
“Indenture”), between the Company and the Trustee,
that:
| (1) |
The issuance of Securities under the series designated as
8.250% Senior Notes due 2018 (the “Series”), in an
aggregate principal amount of $150,000,000 (the
“Notes”) which will constitute a further issuance of,
and will be consolidated with, the $250,000,000 aggregate principal
amount of notes of the Series that were issued by the Company on
January 16, 2008 (the “Initial Notes”) and will
have the same CUSIP number as the Initial Notes and will trade
interchangeably with the Initial Notes upon settlement, has been
approved and authorized in accordance with the provisions of the
Indenture pursuant to resolutions duly adopted by (i) the
Board of Directors of the Company pursuant to a unanimous written
consent of the Board of Directors dated May 8, 2008, and
(ii) the Pricing Committee of the Board of Directors of the
Company at a meeting held on May 14, 2008, both such
resolutions attached hereto as Exhibit A , and by this
Officers’ Certificate, dated May 19, 2008, relating to
the Notes. The resolutions referred to in this paragraph are in
full force and effect on the date hereof. |
| (2) |
To the best of our knowledge, no event which is, or after
notice or lapse of time would become, an Event of Default with
respect to any of the Notes has occurred and is
continuing. |
| (3) |
The terms of the Notes shall be as follows: |
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(i) |
The title of the Notes shall be “8.250% Senior Notes due
2018.” |
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(ii) |
The Notes are to be issued in registered form. The Notes are to
be issued initially in an aggregate principal amount of
$150,000,000, which together with the Initial Notes shall
constitute $400,000,000 in total aggregate amount of outstanding
notes under the Series; provided however, that the aggregate
principal amount of the Notes that may be outstanding may be
increased by the Company upon the terms and subject to the
conditions set forth in the Indenture and the Notes. The Notes are
to be issued initially in global form, as further set forth in
Annex I hereto. Beneficial owners of interests in the Notes
may exchange such interests in accordance with the Indenture and
the terms of the Notes, and as further set forth in Annex I
hereto. |
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(iii) |
The Notes will mature on March 15, 2018. |
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(iv) |
The Notes
will bear interest at a rate of 8.250% per annum subject to
(i) increase on the terms provided in the registration rights
agreement, dated as of May 19,
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2008, by and among the
Company and the Initial Purchasers named therein (the
“Initial Purchasers”) (as the same may be amended from
time to time, the “Registration Rights Agreement”) and
(ii) adjustment in the event of certain changes in the credit
ratings assigned to the Notes as set forth in the Specimen Note
annexed hereto as Exhibit B (the “Specimen
Note”).
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(v) |
The date from which interest shall accrue, the Interest Payment
Dates on which interest shall be payable and the Regular Record
Date for the interest payable on any Interest Payment Date will be
as set forth in the Specimen Note. |
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(vi) |
Principal, premium, if any, and interest on the Notes are
payable at the corporate trust office of the Trustee located at 101
Barclay Street, Floor 7 West, New York, NY 10286, except as
otherwise provided in the Specimen Note. |
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(vii) |
The Notes are issuable in minimum denominations of $2,000 and
integral multiples of $1,000 in excess thereof. |
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(viii) |
The Notes are subject to redemption at the option of the
Company, as set forth in the Specimen Note. |
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(ix) |
The Notes will not be subject to any sinking fund or analogous
provision. |
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(x) |
The provisions in the Indenture relating to defeasance and
covenant defeasance shall apply to the Notes. |
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(xi) |
The “Depository” with respect to the Notes will
initially be The Depository Trust Company
(“DTC”). |
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(xii) |
Interest on the Notes will be computed and paid on the basis of
a 360-day year of twelve 30-day months. |
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(xiii) |
References herein to principal, premium, if any, and interest
payable on the Notes shall include any Successor Additional Amount
payable pursuant to Section 8.1(b) of the
Indenture. |
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(xiv) |
The Notes are not convertible into shares of Common Stock of
the Company or exchangeable for other securities. |
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(xv) |
The Notes will be subject to restrictions on transfer as set
forth in the Specimen Note and as set forth in Annex I
hereto. |
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(xvi) |
The Notes and the related New Securities (as defined in the
Registration Rights Agreement) and the Initial Notes shall
constitute one series for all purposes under the Indenture,
including with respect to any amendment, waiver, acceleration or
other Act of the Holders or upon redemption or repurchase. Any New
Securities issued in exchange for the Notes shall evidence the same
continuing indebtedness as the Notes. Under no circumstances shall
the surrender of Notes and the issue of New Securities in exchange
therefor constitute new indebtedness or obligate the Company to
repay the principal amount of the Notes in connection with the
exchange. |
2
Capitalized terms used herein
and not otherwise defined herein have the meanings specified in the
Indenture or the Specimen Note. The foregoing terms of the Notes
are qualified by the complete text of the Specimen Note and Annex I
hereto, which are attached hereto and incorporated herein by
reference.
Each of the undersigned has
read all of the conditions relating to the execution,
authentication and delivery of the Notes contained in the Indenture
and the definitions therein relating thereto, has read the
certified copy of the board resolutions attached hereto and has
examined the Specimen Note attached hereto. In the opinion of each
of the undersigned he has made such examination or investigation as
is necessary to enable him to express an informed opinion as to
whether or not all such conditions precedent have been complied
with and, in the opinion of each of the undersigned, all such
conditions precedent have been complied with.
Insofar as this certificate
relates to legal matters, it is based, as provided for in
Section 1.3 of the Indenture, upon the Opinion of Counsel
delivered to the Trustee contemporaneously herewith pursuant to
Section 3.3 of the Indenture and relating to the
Notes.
IN WITNESS WHEREOF, we have
hereunto signed our names on this 19 th day of May, 2008.
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/s/ Timothy L.
Main
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| Name: |
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Timothy
L. Main |
| Title: |
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President |
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/s/ Forbes I.J.
Alexander
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| Name: |
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Forbes
I.J. Alexander |
| Title: |
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Chief
Financial Officer |
3
Annex I
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| (i) |
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The Notes shall be in substantially the form set forth in
Exhibit B hereto, with appropriate inclusions and exclusions set
forth therein depending on whether such Note is a Global Note (as
defined below) or a certificated Note issued in exchange therefor
pursuant to Section 3.5 of the Indenture (a
“Certificated Note”), and shall be issued in the form
hereinafter provided. Global Notes shall include the legend thereon
as indicated on Exhibit B (the “Global Note Legend”)
and the “Schedule of Increases and Decreases in Global
Note” attached thereto. Certificated Notes shall be issued
without the Global Note Legend thereon and without the
“Schedule of Increases and Decreases in Global Note”
attached thereto. Each Global Note shall represent the aggregate
principal amount of the outstanding Notes as shall be specified
therein and shall provide that it shall represent the aggregate
principal amount of outstanding Notes from time to time endorsed
thereon and that the aggregate principal amount of outstanding
Notes represented thereby may from time to time be reduced or
increased, as appropriate, to reflect exchanges and redemptions.
Any endorsement of a Global Note to reflect the amount of any
increase or decrease in the aggregate principal amount of
outstanding Notes represented thereby shall be made by the Trustee,
in accordance with instructions given by the Holder thereof as
required hereby. The terms and provisions contained in the Notes
shall constitute and are hereby expressly made a part of the
Indenture, and the Company and the Trustee by their execution and
delivery of the Indenture expressly agree to such terms and
provisions and to be bound thereby.
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| (ii) |
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(a) The Notes offered and sold in reliance on Rule 144A
(“Rule 144A”) under the Securities Act of 1933, as
amended (the “Securities Act”), shall be issued
initially in the form of interest in one or more permanent Global
Notes (the “Rule 144A Global Notes”) registered in
the name of the Depository or a nominee of the
Depository.
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(b) The Notes offered and
sold in reliance on Regulation S under the Securities Act
(“Regulation S”) shall be issued initially in the form
of interests in one or more permanent Global Notes (the
“Regulation S Global Notes” and together with the
Rule 144A Global Notes, the “Global Notes”) registered
in the name of the Depository or a nominee of the Depository. Each
Regulation S Global Note will be deposited upon issuance with,
or on behalf of, a custodian for the Depository for credit to the
respective accounts of the purchasers, or to other accounts as they
may direct, at Euroclear Bank S.A./N.V. (“Euroclear”)
or Clearstream Banking, société anonyme
(“Clearstream Luxembourg”). Before the expiration of
the Distribution Compliance Period (as defined in Regulation S),
interests in a Regulation S Global Note may only be held
through Euroclear or Clearstream Luxembourg, as indirect
participants in the Depository, unless exchanged for interests in a
Rule 144A Global Note or an Institutional Accredited Investor
Global Note (as defined below) in accordance with the transfer and
certification requirements described herein.
Annex I-1
(c) The initial resale of the
Notes or any interest or participation therein by an Initial
Purchaser shall not be to an institutional “accredited
investor” as defined in Rule 501(a)(1), (2), (3) or
(7) under the Securities Act (“Institutional Accredited
Investor”). Notes subsequently resold to Institutional
Accredited Investors shall be issued initially in the form of
interests in one or more Rule 144A Global Notes.
(d) The aggregate principal
amount of Global Notes may from time to time be increased or
decreased by adjustments made on the records of the Trustee, as
custodian for the Depository or its nominee, as hereinafter
provided. The Depository shall be The Depository Trust Company
(“DTC”) unless the Company appoints a successor
depository by delivery of a Company Order to the Trustee specifying
such successor depository.
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| (iii) |
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Legends . The restrictive legend (“Restricted
Securities Legend”) set forth on Exhibit C shall appear on
the face of all Global Notes and Certificated Notes issued under
the Indenture, subject to removal in accordance with the terms
hereof or thereof.
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| (2) |
Transfer and Exchange . Unless and until a Note is
exchanged for a New Security (as defined in the Registration Rights
Agreement) in connection with, or a Note is resold pursuant to, an
effective Registration Statement (as defined in the Registration
Rights Agreement) pursuant to the Registration Rights Agreement,
the following provisions shall apply: |
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| (i) |
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The following provisions shall apply with respect to any
proposed transfer of a beneficial interest in a Rule 144A
Global Note or a Certificated Note issued in exchange therefor
prior to the date which is six months (or such period as may be
required or permitted by any subsequent change in applicable law)
after the later of the date of its original issue and the last date
on which the Company or any affiliate of the Company was the owner
of such Note (or any predecessor thereto) (the “Resale
Restriction Period”):
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a) |
a transfer of a beneficial interest in a Rule 144A Global
Note or a Certificated Note issued in exchange therefor to a
qualified institutional buyer, as defined in Rule 144A, shall be
made upon the deemed representation or, as applicable, the
representation of the transferee in the form as set forth on the
reverse of the Certificated Note that it is purchasing for its own
account or an account with respect to which it exercises sole
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