UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
Form 8-K
CURRENT
REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported):
May 29, 2015
EXELIS INC.
(Exact name
of Registrant as specified in its charter)
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| Indiana |
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001-35228 |
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45-2083813 |
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of incorporation) |
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(Commission File Number) |
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(I.R.S. Employer
Identification No.) |
1650 Tysons Boulevard, Suite 1700
McLean, Virginia 22102
(Address of principal executive offices) (Zip Code)
(703) 790-6300
(Registrant’s telephone number, including area code)
Check the appropriate box below if the Form 8-K is intended to simultaneously satisfy the filing obligation of the registrant under any of the following
provisions (see General Instruction A.2. below):
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240-14a-12) |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240-14d-2(b)) |
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240-13e-4(c)) |
| Item 1.02 |
Termination of a Material Definitive Agreement |
On May 29, 2015, effective as of
the closing of the merger described under Item 2.01 on this Form 8-K, pursuant to which Exelis Inc. (“Exelis”) became a wholly owned subsidiary of Harris Corporation (“Harris”), Exelis terminated its Five-Year Competitive
Advance and Revolving Credit Facility Agreement, dated as of December 23, 2014 (as amended, the “Credit Agreement”), among Exelis, the lenders named therein, J.P. Morgan Chase Bank, N.A., as Administrative Agent and Citibank, N.A., as
Syndication Agent.
Certain of the lenders to the Credit Agreement and their affiliates have performed and, from time to time in the
future, may engage in transactions with and perform commercial and investment banking and advisory services for Exelis and its subsidiaries, for which they have received or will receive customary fees and expenses.
| Item 2.01 |
Completion of Acquisition or Disposition of Assets |
On May 29, 2015, Exelis
completed its previously announced merger with a wholly owned subsidiary of Harris pursuant to the Agreement and Plan of Merger, dated as of February 5, 2015 (the “Merger Agreement”), by and among Exelis, Harris and Harris
Communication Solutions (Indiana), Inc. (“Merger Sub”). Pursuant to the Merger Agreement, Merger Sub merged with and into Exelis (the “Merger”), with Exelis continuing as the surviving corporation in the merger (the
“Surviving Corporation”) and a wholly owned subsidiary of Harris.
At the effective time of the Merger, each share of common
stock, par value $0.01 per share, of Exelis (the “Exelis Shares”) issued and outstanding immediately prior to the effective time of the Merger (other than Exelis Shares owned by Harris, Merger Sub or any direct or indirect wholly owned
subsidiary of Harris and Exelis Shares owned by Exelis or any direct or indirect subsidiary of Exelis, and in each case not held on behalf of third parties) was automatically cancelled and converted into the right to receive an amount equal to
(a) $16.625 in cash, without interest, and (b) 0.1025 shares of common stock, par value $1.00 per share, of Harris (the “Harris Shares”), subject to cash adjustments in lieu of fractional shares.
Additionally, pursuant to the terms of the Merger Agreement, at the effective time of the Merger, each Exelis stock option and Exelis
restricted stock unit was cancelled and converted into a right to receive a certain amount of cash or, in
Page 2 of 10 Pages
some cases, a restricted stock unit covering Harris common stock, in each case as further described in the Merger Agreement.
The description herein of the Merger and the Merger Agreement is not complete and is qualified in its entirety by reference to the Merger
Agreement, which is incorporated herein by reference as Exhibit 2.1.
| Item 2.03 |
Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant. |
In connection with the closing of the Merger described under Item 2.01 on this Form 8-K, each of Harris and Exelis were obligated, within
ten business days following the consummation of the Merger, to guarantee certain outstanding debt of the other.
On June 2, 2015
Harris and Exelis jointly executed and delivered a supplemental indenture to each of the following indentures evidencing such guarantees:
Supplemental Indenture to the 1990 Indenture of Harris Corporation
On June 2, 2015, Harris, Exelis and U.S. Bank National Association (as successor to National City Bank), as trustee, entered into the
supplemental indenture (the “1990 Supplemental Indenture”) to the indenture dated as of October 1, 1990, to add Exelis as a guarantor to the 7% debentures due 2026 issued by Harris thereunder. A copy of the 1990 Supplemental Indenture
is filed as Exhibit 4.1 and incorporated by reference herein.
Supplemental Indenture to the 1996 Indenture of Harris Corporation
On June 2, 2015, Harris, Exelis and The Bank of New York Mellon (as successor to Chemical Bank), as trustee, entered into the
supplemental indenture (the “1996 Supplemental Indenture”) to the indenture dated as of May 1, 1996, to add Exelis as a guarantor to the 6.35% debentures due 2028 issued by Harris thereunder. A copy of the 1996 Supplemental Indenture
is filed as Exhibit 4.2 and incorporated by reference herein.
Supplemental Indenture to the 2003 Indenture of Harris Corporation
On June 2, 2015, Harris, Exelis and The Bank of New York Mellon Trust Company, N.A. (as successor to The Bank of New York), as
trustee, entered into the supplemental indenture (the “2003 Supplemental Indenture”) to the indenture dated as of September 3, 2003, to add Exelis as a guarantor to the 1.999% notes due 2018, the 4.40% notes due 2020, the 2.700% notes
due 2020, the 3.832% notes due 2025, the 4.854% notes due 2035, the 6.15% notes due 2040 and the 5.054% notes due 2045 issued by Harris thereunder. A copy of the 2003
Page 3 of 10 Pages
Supplemental Indenture is filed as Exhibit 4.3 and incorporated by reference herein.
Supplemental Indenture to the 2011 Indenture of Exelis Inc.
On June 2, 2015, Harris, Exelis and MUFG Union Bank, N.A. (f/k/a Union Bank, N.A.), as trustee, entered into the supplemental indenture
(the “2011 Supplemental Indenture”) to the indenture dated as of September 20, 2011, to add Harris as a guarantor to the 4.25% senior notes due 2016 and the 5.55% senior notes due 2021 issued by Exelis thereunder. A copy of the 2011
Supplemental Indenture is filed as Exhibit 4.4 and incorporated by reference herein.
| Item 3.01 |
Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing. |
On May 29, 2015, in connection with the completion of the Merger, Exelis notified the New York Stock Exchange (the “NYSE”) that
trading in the Exelis Shares should be suspended and the listing of the Exelis Shares on the NYSE should be removed. In addition, Exelis requested that the NYSE file with the Securities and Exchange Commission (the “SEC”) an application on
Form 25 to delist and deregister the Exelis Shares under Section 12(b) of the Securities Exchange Act of 1934 (the “Exchange Act”). On May 29, 2015, the NYSE informed Exelis that it had filed the Form 25 with the SEC. Exelis
intends to file with the SEC a Form 15 requesting that the reporting obligations of Exelis with respect to the Exelis Shares under Sections 13(a) and 15(b) of the Exchange Act be suspended.
| Item 3.03 |
Material Modification to Rights of Security Holders. |
The information set forth under
Items 2.01 and 3.01 of this Current Report on Form 8-K is incorporated herein by reference.
| Item 5.01 |
Changes in Control of the Registrant. |
A change in control of Exelis occurred on
May 29, 2015, upon the effectiveness of the Articles of Merger filed with the Secretary of State of the State of Indiana, at which time Merger Sub merged with and into Exelis. As a result, Exelis became a wholly owned subsidiary of Harris, with
Harris owning all of Exelis’ common stock as the common stock of the Surviving Corporation.
Page 4 of 10 Pages
Based on the closing price of $79.25 per share of Harris common stock on the NYSE on May 28,
2015, the last trading day before the closing of the Merger, the aggregate implied value of the consideration paid to former holders of Exelis Shares in connection with the Merger was approximately $4.6 billion, including approximately $1.5 billion
in Harris Shares and approximately $3.1 billion in cash. The source of funds for such cash payment was cash on hand of Harris and third-party debt financing, including a combination of borrowings under a new senior unsecured Harris term loan
facility in an aggregate principal amount of $1.3 billion and a portion of the proceeds from the issuance of new Harris debt securities in an aggregate principal amount of $2.4 billion.
The information set forth under Item 2.01 of this Current Report on Form 8-K is incorporated herein by reference.
| Item 5.02 |
Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
Pursuant to the terms of the Merger Agreement, at the effective time of the Merger, each then-current director of Exelis, Herman E. Bulls,
Ralph F. Hake, John J. Hamre, Paul J. Kern, David F. Melcher, Patrick J. Moore, Mark L. Reuss, Billie I. Williamson and R. David Yost (together, the “Former Directors”), was removed and the directors of Merger Sub immediately prior to the
effective time of the Merger became the directors of the Surviving Corporation. Information on the positions held by the Former Directors on any committee of the board of directors of the Company at the time of the Former Directors’ removal is
set forth under the caption “Committees of the Board of Directors” in the Company’s definitive Proxy Statement filed with the SEC on March 26, 2014 and is incorporated herein by reference.
In connection with the Merger, David F. Melcher, Chief Executive Officer and President; Peter J. Milligan, Senior Vice President and Chief
Financial Officer; Ann D. Davidson, Senior Vice President, Chief Legal Officer and Corporate Secretary; and A. John Procopio, Senior Vice President and Chief Human Resources Officer, each ceased to be an officer of Exelis as of June 1, 2015.
Page 5 of 10 Pages
| Item 5.03 |
Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year |
Pursuant to
the terms of the Merger Agreement, on May 29, 2015, the Merger occurred, and the separate existence of Merger Sub ceased, with Exelis continuing as the Surviving Corporation. As of the effective time of the Merger, the articles of incorporation
of the Surviving Corporation were amended and restated in their entirety to be identical to the articles of incorporation of Merger Sub (except as to the name of the Surviving Corporation, which is Exelis Inc.), and the by-laws of Surviving
Corporation were amended and restated in their entirety to be identical to the by-laws of Merger Sub (except as to the name of the Surviving Corporation, which is Exelis Inc.).
The articles of incorporation and the amended and restated code of by-laws of the Surviving Corporation are attached hereto as Exhibit 3.1 and
Exhibit 3.2 respectively, and are incorporated herein by reference.
Item 8.01 – Other Events
On June 2, 2015, Exelis executed and delivered a guarantee to the administrative agent, under each of (1) the Revolving Credit
Agreement, dated as of September 28, 2012, by and among Harris, the lenders from time to time party thereto and SunTrust Bank, as administrative agent, as amended by the Amendment No. 1 to the Revolving Credit Agreement, dated as of
February 25, 2015 (the “Revolving Credit Agreement”), and (2) the Term Loan Agreement, dated as of March 16, 2015, by and among Harris, the lenders from time to time party thereto and Morgan Stanley Senior Funding, Inc., as
administrative agent (the “Term Loan Agreement”), pursuant to its obligations to become a guarantor under the Term Loan Agreement and the Revolving Credit Agreement within ten business days following the consummation of the Merger.
Item 9.01 – Financial Statements and Exhibits
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| Exhibit
No. |
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Description |
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| 2.1 |
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Agreement and Plan of Merger, dated as of February 5, 2015, by and among Harris Corporation, Exelis Inc. and Harris Communication Solutions (Indiana), Inc. (filed as Exhibit 2.1 to the Current Report on Form 8-K filed on
February 6, 2015 and incorporated herein by reference). |
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| 3.1 |
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Articles of Incorporation of Exelis Inc. as the Surviving Corporation, effective as of May 29, 2015. |
Page 6 of 10 Pages
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| 3.2 |
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Amended and Restated Code of By-laws of Exelis Inc. as the Surviving Corporation, effective as of May 29, 2015. |
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| 4.1 |
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Supplemental Indenture, dated June 2, 2015, among Harris Corporation, Exelis Inc. and U.S. Bank National Association (as successor to National City Bank), to the Indenture dated as of October 1, 1990 between Harris
Corporation and U.S. Bank National Association (as successor to National City Bank). |
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| 4.2 |
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Supplemental Indenture, dated June 2, 2015, among Harris Corporation, Exelis Inc. and The Bank of New York Mellon (as successor to Chemical Bank), to the Indenture dated as of May 1, 1996 between Harris Corporation and
The Bank of New York (as successor to Chemical Bank). |
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| 4.3 |
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Supplemental Indenture, dated June 2, 2015, among Harris Corporation, Exelis Inc. and The Bank of New York Mellon Trust Company, N.A. (as successor to The Bank of New York), to the Indenture dated as of September 3,
2003 between Harris Corporation and The Bank of New York (as successor to The Bank of New York). |
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| 4.4 |
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Supplemental Indenture, dated June 2, 2015, among Harris Corporation, Exelis Inc. and MUFG Union Bank, N.A. (f/k/a Union Bank, N.A.), to the Indenture dated as of September 20, 2011 among Exelis Inc., ITT Corporation as
Guarantor and MUFG Union Bank, N.A. (f/k/a Union Bank, N.A.). |
“Safe Harbor” Statement under the Private Securities Litigation Reform Act of 1995
This communication contains “forward-looking” statements within the meaning of Section 21E of the Securities Exchange Act of
1934, as amended, and the Private Securities Litigation Reform Act of 1995, known as the PSLRA. These statements, as they relate to Exelis and Harris, the management of either such company or the proposed transaction between Exelis and Harris,
involve risks and uncertainties that may cause results to differ materially from those set forth in the statements. These statements are based on current plans, estimates and projections, and therefore, you are cautioned not to place undue reliance
on them. No forward-looking statement can be guaranteed, and actual results may differ materially from those projected. Exelis and Harris undertake no obligation to publicly update any forward-looking statement, whether as a result of new
information, future events or otherwise, except to the extent required by law. Forward-looking statements are not historical facts, but rather are based on current expectations, estimates, assumptions and projections about the
Page 7 of 10 Pages
business and future financial results, and other legal, regulatory and economic developments. We use words such as “anticipates,” “believes,” “plans,”
“expects,” “projects,” “future,” “intends,” “may,” “will,” “should,” “could,” “estimates,” “predicts,” “potential,” “continue,”
“guidance,” and similar expressions to identify these forward-looking statements that are intended to be covered by the safe harbor provisions of the PSLRA. Actual results could differ materially from the results contemplated by these
forward-looking statements due to a number of factors, including: the risk that the businesses will not be integrated successfully; the risk that the cost savings and any other synergies from the transaction may not be fully realized or may take
longer to realize than expected; disruption from the transaction making it more difficult to maintain relationships with customers, employees or suppliers; and the risks that are described from time to time in Exelis’ and Harris’
respective reports filed with the SEC, including Exelis’ Annual Report on Form 10-K for the year ended December 31, 2014 (as amended by Annual Report on Form 10-K/A filed on April 6, 2015) and quarterly report on Form 10-Q for the
quarter ended March 31, 2015, and Harris’ annual report on Form 10-K for the year ended June 27, 2014 and quarterly reports on Form 10-Q for the quarters ended September 26, 2014, January 2, 2015 and April 3, 2015,
in each case, as such reports may have been amended. This document speaks only as of its date, and Exelis and Harris each disclaims any duty to update the information herein.
Page 8 of 10 Pages
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
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| EXELIS INC. |
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| By: |
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/s/ James J. Wallace |
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Name: James J. Wallace |
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Title: Deputy General Counsel and Assistant Secretary |
Date: June 3, 2015
Page 9 of 10 Pages
EXHIBIT INDEX
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| Exhibit
No. |
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Description |
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| 2.1 |
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Agreement and Plan of Merger, dated as of February 5, 2015, by and among Harris Corporation, Exelis Inc. and Harris Communication Solutions (Indiana), Inc. (filed as Exhibit 2.1 to the Current Report on Form 8-K filed on
February 6, 2015 and incorporated herein by reference). |
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| 3.1 |
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Articles of Incorporation of Exelis Inc. as the Surviving Corporation, effective as of May 29, 2015. |
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| 3.2 |
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Amended and Restated Code of By-laws of Exelis Inc. as the Surviving Corporation, effective as of May 29, 2015. |
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| 4.1 |
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Supplemental Indenture, dated June 2, 2015, among Harris Corporation, Exelis Inc. and U.S. Bank National Association (as successor to National City Bank), to the Indenture dated as of October 1, 1990 between Harris
Corporation and U.S. Bank National Association (as successor to National City Bank). |
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| 4.2 |
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Supplemental Indenture, dated June 2, 2015, among Harris Corporation, Exelis Inc. and The Bank of New York Mellon (as successor to Chemical Bank), to the Indenture dated as of May 1, 1996 between Harris Corporation and
The Bank of New York (as successor to Chemical Bank). |
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| 4.3 |
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Supplemental Indenture, dated June 2, 2015, among Harris Corporation, Exelis Inc. and The Bank of New York Mellon Trust Company, N.A. (as successor to The Bank of New York), to the Indenture dated as of September 3,
2003 between Harris Corporation and The Bank of New York (as successor to The Bank of New York). |
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| 4.4 |
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Supplemental Indenture, dated June 2, 2015, among Harris Corporation, Exelis Inc. and MUFG Union Bank, N.A. (f/k/a Union Bank, N.A.), to the Indenture dated as of September 20, 2011 among Exelis Inc., ITT Corporation as
Guarantor and MUFG Union Bank, N.A. (f/k/a Union Bank, N.A.). |
Page 10 of 10 Pages
Exhibit 3.1
ARTICLES OF INCORPORATION
OF
EXELIS INC.
ARTICLE I
Name
The name of the corporation is Exelis Inc. (the “Corporation”).
ARTICLE II
Registered
Office and Registered Agent
The street address of the Corporation’s registered office in Indiana is: 251 East Ohio Street, Suite
500, Indianapolis, Indiana 46204. The name of the registered agent of the Corporation at such address is Corporation Service Company. The signator represents that the registered agent named in the application has consented to the appointment of
registered agent.
ARTICLE III
Powers
The Corporation
shall have (a) all powers now or hereafter authorized by or vested in corporations pursuant to the provisions of the Indiana Business Corporation Law, as amended (hereinafter referred to as the “Corporation Law”), (b) all
powers now or hereafter vested in corporations by common law or any other statute or act, and (c) all powers authorized by or vested in the Corporation by the provisions of these Articles of Incorporation or by the provisions of its By-laws as
from time to time in effect.
ARTICLE IV
Shares
(a) The total
number of shares which the Corporation is authorized to issue is 1,000 shares of Common Stock, and the par value of each such share is $0.01 per share.
(b) Each holder of shares of Common Stock shall be entitled to one vote for each share of Common Stock held of record on all matters on which
the holders of shares of Common Stock are entitled to vote. No holder of shares of Common Stock will be permitted to cumulate votes at any election of directors.
(c) The holders of shares of Common Stock shall be entitled to receive, when, as and if declared by the Board of Directors, out of funds
legally available for the payment thereof, dividends payable in cash, stock or otherwise. Upon any liquidation, dissolution or winding up of the Corporation, whether voluntary or involuntary, the remaining assets of the Corporation available for
distribution shall be distributed to the holders of the Common Stock ratably according to the number of shares of Common Stock held by such holder.
ARTICLE V
Board of
Directors
(a) The board of directors of the Corporation is expressly authorized to adopt, amend or repeal By-laws of the Corporation.
(b) Elections of directors need not be by written ballot except and to the extent provided in the By-laws of the Corporation.
ARTICLE VI
Liability of
Board of Directors
To the fullest extent permitted by applicable law as then in effect, no director or officer shall be personally
liable to the Corporation or any of its shareholders for damages for any action taken as a director or officer, or any failure or omission to take any action, regardless of the nature of the breach or alleged breach, including any breach or alleged
breach of the duty of care, the duty of loyalty or the duty of good faith. Any repeal or modification of this ARTICLE VI shall not adversely affect any right or protection of a director or officer of the Corporation existing at the time of such
repeal or modification with respect to acts or omissions occurring prior to such repeal or modification.
Exhibit 3.2
AMENDED AND RESTATED CODE OF BYLAWS
OF
EXELIS INC.
(Adopted as of May 29, 2015)
ARTICLE 1
Identification
Section 1.01. Name. The name of the Corporation is Exelis Inc. (hereinafter referred to as the
“Corporation”).
Section 1.02. Fiscal Year. The fiscal year of the Corporation shall end on the
Friday nearest June 30 unless and until the Board of Directors shall otherwise determine.
ARTICLE 2
Shares
Section 2.01. Certificates for Shares. Pursuant to Ind. Code § 23-1-26-7, the Board of Directors is authorized to
issue shares without certificates. If the Board of Directors issues share certificates, such certificates shall be in such form as the Board of Directors may prescribe from time to time signed (either manually or in facsimile) by the President or a
Vice President and the Secretary or an Assistant Secretary.
Section 2.02. Transfer of Shares. The shares of the
Corporation shall be transferable on the books of the Corporation upon surrender of the certificate or certificates (or, in the case of uncertificated shares, the stock power or its equivalent) representing the same, properly endorsed by the
registered holder or by his duly authorized attorney, such endorsement or endorsements to be witnessed by one witness. The requirement for such witnessing may be waived in writing upon the form of endorsement by the President of the Corporation.
Section 2.03. Equitable Interests in Shares Need Not Be Recognized. The Corporation and its officers shall be
entitled to treat the holder of record of any share or shares of the Corporation as the holder in fact thereof, and accordingly shall not be required to recognize any equitable or other claim to or interest in such share or shares on the part of any
other person or persons, whether or not express notice thereof shall have been given to the Corporation, save as expressly provided to the contrary by the laws of Indiana, the Articles of Incorporation of the Corporation or these Bylaws.
ARTICLE 3
Meetings of
Shareholders
Section 3.01. Place of Meetings. All meetings of shareholders of the Corporation shall be held
at such place, within or without the State of Indiana, as may be specified in the respective notices or waivers of notice thereof.
Section 3.02. Annual Meeting. The annual meeting of shareholders for the
purpose of electing directors and transacting such other business as may properly come before the meeting shall be set each year by resolution of the Board of Directors (hereinafter referred to as the “Board of Directors” or
“Board”). Failure to hold the annual meeting shall not work any forfeiture or a dissolution of the Corporation or affect the validity of any corporate action.
Section 3.03. Special Meetings. Special meetings of the shareholders may be called by the President, by the Board of
Directors, or by the shareholders holding not less than one-fourth of all the outstanding shares of the Corporation entitled to vote on the business proposed to be transacted thereat.
Section 3.04. Notice of Meetings and Waiver. A written or printed notice, stating the place, day and hour of the
meeting, and in case of a special meeting the purpose or purposes for which the meeting is called, shall be delivered (in person, by facsimile or by electronic transmission) or mailed by the Secretary or by the officers or persons calling the
meeting, to each shareholder of the Corporation at the time entitled to vote, at such address as appears upon the records of the Corporation, no fewer than ten (unless a longer period is required by law) nor more than sixty days before the date of
the meeting. Notice of any such meeting may be waived in writing by any shareholder, before or after the date and time stated in the notice, if the waiver is delivered to the Corporation for inclusion in the minutes for filing with the corporate
records. Attendance at a meeting, in person or by proxy, waives objection to lack of notice or defective notice of the meeting unless the shareholder at the beginning of the meeting objects to holding the meeting or transacting the business at the
meeting. Further, a shareholder’s attendance at a meeting waives objection to consideration of a particular matter at the meeting that is not within the purpose or purposes described in the meeting notice unless the shareholder objects to
considering the matter when it is presented.
Section 3.04. Adjournments. Any meeting of shareholders, annual or
special, may be adjourned from time to time, to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time, place, if any, thereof, and the means of remote communications, if any, thereof are
announced at the meeting at which the adjournment is taken. At the adjourned meeting the Corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each shareholder of record entitled to vote at the meeting.
Section 3.05. Organization. Meetings of shareholders shall be presided over by the Chairperson of the Board, if any, or in
the absence of the Chairperson of the Board by the Vice Chairperson of the Board, if any, or in the absence of the Vice Chairperson of the Board by the President, or in the absence of the President by a Vice President, or in the absence of the
foregoing persons by a chairperson designated by the Board, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary, or in the absence of the Secretary an Assistant Secretary, shall act as secretary of the
meeting, but in the absence of the Secretary and any Assistant Secretary the chairperson of the meeting may appoint any person to act as secretary of the meeting. The order of business at each such meeting shall be as determined by the chairperson
of the meeting. The chairperson of the meeting shall have the
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right and authority to prescribe such rules, regulations and procedures and to do all such acts and things as are necessary or desirable for the proper conduct of the meeting, including, without
limitation, the establishment of procedures for the maintenance of order and safety, limitations on the time allotted to questions or comments on the affairs of the Corporation, restrictions on entry to such meeting after the time prescribed for the
commencement thereof and the opening and closing of the voting polls, for each item on which a vote is to be taken.
Section 3.06. Voting at Meetings.
Clause 3.061. Voting Rights. Except as otherwise provided by law or by the provisions of the Articles of Incorporation,
every holder of the Common Shares of the Corporation shall have the right at all meetings of the shareholders of the Corporation to one vote for each share of stock standing in his name on the books of the Corporation.
Clause 3.062. Proxies. A shareholder may vote, either in person or by proxy executed in writing by the shareholder or a
duly authorized attorney-in-fact. No proxy shall be valid after eleven months, unless a shorter or longer time is expressly provided in the appointment form.
Clause 3.063. Quorum. At any meeting of shareholders, a majority of the shares outstanding and entitled to vote on the
business to be transacted at such meeting, represented in person or by proxy, shall constitute a quorum.
Clause 3.063. Fixing
Date for Determination of Shareholders of Record. In order that the Corporation may determine the shareholders entitled to notice of any meeting of shareholders or any adjournment thereof, the Board of Directors may fix a record date, which
record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board, and which record date shall not be more than sixty nor less than ten days before the date of such meeting. If the Board so fixes a date,
such date shall also be the record date for determining the shareholders entitled to vote at such meeting unless the Board determines, at the time it fixes such record date, that a later date on or before the date of the meeting shall be the date
for making such determination. If no record date is fixed by the Board, the record date for determining shareholders entitled to notice of and to vote at a meeting of shareholders shall be at the close of business on the day next preceding the day
on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. A determination of shareholders of record entitled to notice of or to vote at a meeting of shareholders shall
apply to any adjournment of the meeting; provided, however, that the Board may fix a new record date for determination of shareholders entitled to vote at the adjourned meeting, and in such case shall also fix the record date for shareholders
entitled to notice of such adjourned meeting the same or an earlier date as that fixed for determination of shareholders entitled to vote in accordance with the foregoing provisions of this Section 1.9 at the adjourned meeting.
In order that the Corporation may determine the shareholders entitled to consent to corporate action in writing without a meeting, the Board
of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board, and which date shall not be more than ten days after the date upon which
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the resolution fixing the record date is adopted by the Board. If no record date has been fixed by the Board, the record date for determining shareholders entitled to consent to corporate action
in writing without a meeting, when no prior action by the Board is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the Corporation by delivery to its
registered office in the State of Indiana, its principal place of business, or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of shareholders are recorded. Delivery made to the Corporation’s
registered office shall be by hand or by certified or registered mail, return receipt requested. If no record date has been fixed by the Board and prior action by the Board is required by law, the record date for determining shareholders entitled to
consent to corporate action in writing without a meeting shall be at the close of business on the day on which the Board adopts the resolution taking such prior action.
In order that the Corporation may determine the shareholders entitled to receive payment of any dividend or other distribution or allotment of
any rights or the shareholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not
precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not more than sixty days prior to such action. If no record date is fixed, the record date for determining shareholders for any such purpose
shall be at the close of business on the day on which the Board adopts the resolution relating thereto.
Clause 3.064. List of
Shareholders Entitled to Vote. The Secretary shall prepare and make, at least ten days before every meeting of shareholders, a complete list of the shareholders entitled to vote at the meeting. Nothing in this Section shall require the
Corporation to include electronic mail addresses or other electronic content information on such list. Such list shall be open to the examination of any shareholder for any purpose germane to the meeting for a period of at least ten days prior to
the meeting: (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of the meeting, or (ii) during ordinary business hours, at the principal place
of business of the Corporation. In the event that the Corporation determines to make the list available on an electronic network, the Corporation may take reasonable steps to ensure that such information is available only to shareholders of the
Corporation. If the meeting is to be held at a place, then a list of shareholders entitled to vote at the meeting shall be produced and kept at the time and place of the meeting during the whole time thereof and may be examined by any shareholder
who is present. If the meeting is to be held solely by means of remote communication, then such list shall also be open to the examination of any shareholder during the whole time of the meeting on a reasonably accessible electronic network, and the
information required to access such list shall be provided with the notice of the meeting.
Section 3.07. Action By
Shareholders Without Meeting. Any action required or permitted to be taken at any meeting of the shareholders may be taken without a meeting, and without a vote, if the action is evidenced by one or more written consents (i) setting
forth the action taken, (ii) signed by (A) the holders of outstanding shares having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote
thereon were present and voting to the extent permitted by law, or (B) all of the shareholders entitled to vote with respect to the subject matter thereof, and (iii) delivered to the Corporation for inclusion in the minutes for filing with
the Corporation’s records.
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Section 3.08. Participation in Meetings by Means of Conference or Other Similar
Communications Equipment. Any shareholder may participate in an annual or special meeting of the shareholders by, or through the use of, any means of communication by which all shareholders participating may simultaneously hear each other
during the meeting. A shareholder participating in such a meeting by this means is deemed to be present in person at the meeting.
ARTICLE 4
The Board of
Directors
Section 4.01. Powers; Number; and Qualifications. The business and affairs of the Corporation shall
be managed by or under the direction of the Board, except as may be otherwise provided by law or in the articles of incorporation. The Board shall consist of one or more members, each of whom shall be a natural person, the number thereof to be
determined from time to time by the Board. Directors need not be shareholders.
Section 4.02 Election; Term of Office;
Resignation; Removal; Vacancies. The Board of Directors shall consist of a minimum of one and a maximum of nine members. The actual number of directors shall be fixed from time to time by resolution of the Board of Directors. The Board of
Directors shall be elected by a plurality of the votes of the shareholders present, in person or by proxy, and who are entitled to vote at the annual meeting of the shareholders called for such purpose. A decrease in the number of directors does not
shorten an incumbent director’s term.
Section 4.03. Annual Meeting. The Board of Directors shall meet each
year immediately after the annual meeting of the shareholders, at the place where such meeting of the shareholders has been held, for the purpose of organization, election of officers, and consideration of any other business that may be brought
before the meeting. No notice shall be necessary for the holding of this annual meeting. If such meeting is not held as above provided, the election of officers may be had at any subsequent meeting of the Board specifically called in the manner
provided in Subsection 4.04 of this Article.
Section 4.04. Other Meetings. Annual meetings of the Board of
Directors may be held without notice of the date, time, place or purpose of the meeting. Special meetings of the Board of Directors may be held upon the call of the President, or of any member of the Board of Directors, at any place within or
without the State of Indiana, upon forty-eight hours’ notice, specifying the time, place and general purposes of the meeting, given to each director, either personally, by mailing, by facsimile or by electronic transmission. Such notice may be
waived in writing by any director, before or after the date stated in the notice, if the waiver is signed by the director and filed with the Corporation’s minutes or records. In addition, a director’s attendance at or participation in a
meeting waives any required notice of the meeting unless the director at the beginning of the meeting (or promptly upon his arrival) objects to holding the meeting or transacting business at the meeting and does not thereafter vote for or assent to
action taken at the meeting.
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Section 4.05. Quorum. At any meeting of the Board of Directors, the
presence of a majority of the members of the Board of Directors shall constitute a quorum for the transaction of any business except the filling of vacancies in the Board of Directors.
Section 4.06. Organization. Meetings of the Board shall be presided over by the Chairperson of the Board, if any, or in the
absence of the Chairperson of the Board by the Vice Chairperson of the Board, if any, or in the absence of the Vice Chairperson of the Board by the President, or in their absence by a chairperson chosen at the meeting. The Secretary, or in the
absence of the Secretary an Assistant Secretary, shall act as secretary of the meeting, but in the absence of the Secretary and any Assistant Secretary the chairperson of the meeting may appoint any person to act as secretary of the meeting.
Section 4.07. Action By Directors Without Meeting. Any action required or permitted to be taken at any meeting of the
Board of Directors, or any committee thereof, may be taken without a meeting if the action is taken by all members of the Board of Directors and is evidenced by one or more written consents describing the action taken, signed by each director, and
is included in the minutes or filed with the corporate records reflecting the action taken.
Section 4.08. Compensation of
Directors. The Board of Directors is empowered and authorized to fix and determine the compensation of directors for attendance at meetings of the Board, and additional compensation for any additional services that the directors may perform
for the Corporation.
Section 4.08. Participation in Meetings by Means of Conference or Other Similar Communications
Equipment. A member of the Board of Directors or of a committee designated by the Board may participate in a regular or special meeting by, or conduct the meeting through the use of, any means of communication by which all directors
participating may simultaneously hear each other during the meeting. A director participating in such a meeting by this means is deemed to be present in person at the meeting.
Section 4.09. Resignations. A director may resign at any time by delivering notice to the Board of Directors or the
Secretary of the Corporation. A resignation is effective when the notice is delivered unless the notice specifies a later effective date. If a resignation is made effective at a later date and the Corporation accepts the future effective date, the
Board of Directors may fill the pending vacancy before the effective date if the Board of Directors provides that the successor does not take office until the effective date.
Section 4.09. Committees. The Board of Directors may create one or more committees and appoint members of the Board of
Directors to serve on them. Each committee may have one or more members, who serve at the pleasure of the Board of Directors. The creation of a committee and appointment of members to it must be approved by the greater of (a) a majority of all
the directors in office when the action is taken, or (b) the number of directors required under Section 4.05 of this Article 4 to take action. All rules applicable to action by the Board of
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Directors apply to committees and their members. The Board of Directors may specify the authority that a committee may exercise; however, a committee may not (i) authorize distributions,
except a committee may authorize or approve a reacquisition of shares if done according to a formula or method prescribed by the Board of Directors, (ii) approve or propose to shareholders action that must be approved by shareholders,
(iii) fill vacancies on the Board of Directors or on any of its committees, (iv) amend the Articles of Incorporation, (v) adopt, amend, or repeal these Bylaws, (vi) approve a plan of merger not requiring shareholder approval, or
(vii) authorize or approve the issuance or sale or a contract for the sale of shares, or determine the designation and relative rights, preferences, and limitations of a class or series of shares, except the Board of Directors may authorize a
committee to so act within limits prescribed by the Board of Directors.
Section 4.10. Committee Rules. Unless the
Board otherwise provides, each committee designated by the Board may adopt, amend and repeal rules for the conduct of its business. In the absence of a provision by the Board or a provision in the rules of such committee to the contrary, a majority
of the entire authorized number of members of such committee shall constitute a quorum for the transaction of business, the vote of a majority of the members present at a meeting at the time of such vote if a quorum is then present shall be the act
of such committee, and in other respects each committee shall conduct its business in the same manner as the Board conducts its business pursuant to Article 4 of these by-laws.
Section 4.11. The Chairman of the Board. The Chairman of the Board shall (i) preside at all meetings of the Board of
Directors and of the shareholders of the Corporation, and (ii) perform such other duties as may, from time to time, be assigned to him or prescribed by this Code of Bylaws.
ARTICLE 5
Officers
Section 5.01. Number. The officers of the Corporation shall consist of a President, a Treasurer, and a Secretary,
and such other officers as may be chosen by the Board of Directors at such time and in such manner and for such terms as the Board of Directors may prescribe. The President may appoint one or more officers or assistant officers as he may deem
necessary or advisable to carry on the operations of the Corporation. Such appointed officer or officers shall hold office until the next annual meeting of the Board of Directors unless removed by resolution of the Board prior to such meeting date.
Any two or more offices may be held by the same person.
Section 5.02. Election and Term of Office. The officers
shall be chosen annually by the Board of Directors. Each officer shall hold office until his successor is chosen, or until his death, or until he shall have resigned or shall have been removed in the manner hereinafter provided.
Section 5.03. Removal. Any officer may be removed, either with or without cause, at any time, by a majority vote of
the Board of Directors.
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Section 5.04. Resignations. An officer may resign at any time by
delivering notice to the Board of Directors or the Secretary of the Corporation. A resignation is effective when the notice is delivered unless the notice specifies a later effective date. If a resignation is made effective at a later date and the
Corporation accepts the future effective date, the Board of Directors may fill the pending vacancy before the effective date if the Board of Directors provides that the successor does not take office until the effective date.
Section 5.05. The Chairman of the Board. The Board of Directors may choose from among its members a Chairman of the Board
who shall (i) preside at all meetings of the Board of Directors and of the shareholders of the Corporation, and (ii) perform such other duties as may, from time to time, be assigned by the Board of Directors or prescribed by this Code of
Bylaws.
Section 5.06. The Chief Executive Officer. The Chief Executive Officer (if one is elected) shall exercise such
duties as customarily pertain to the office of chief executive officer including, without limitation, general and active supervision over the property, business and affairs of the Corporation; subject, however, to the control of the Board of
Directors. If no President is elected, the Chief Executive Officer shall also assume the duties and responsibilities that customarily pertain to the office of the President. The Chief Executive Officer shall have such additional powers and perform
such additional duties as this Code of Bylaws may provide or as the Board of Directors may, from time to time, prescribe or delegate to him.
Section 5.07. Chief Operating Officer. The Chief Operating Officer (if one is elected) shall exercise such duties as
customarily pertain to the office of chief operating officer including, without limitation, general and active supervision over the operations of the Corporation; subject, however, to the control of the Board of Directors or any officer that the
Board of Directors may direct. The Chief Operating Officer shall have such additional powers and perform such additional duties as this Code of Bylaws may provide or as the Board of Directors may, from time to time, prescribe or delegate to him.
Section 5.08. Chief Financial Officer. The Chief Financial Officer (if one is elected) shall exercise such duties as
customarily pertain to the office of chief financial officer including, without limitation, general and active supervision and management over the financial matters of the Corporation; subject, however, to the control of the Board of Directors or
any officer that the Board of Directors may direct. The Chief Financial Officer shall have such additional powers and perform such additional duties as this Code of Bylaws may provide or as the Board of Directors may, from time to time, prescribe or
delegate to him.
Section 5.09. The President. The President shall have management responsibility for the
operation of the Corporation, subject, however, to the control of the Board of Directors or any officer that the Board of Directors may direct. If no President is elected, the duties and responsibilities of the President shall be assumed by the
Chief Executive Officer. If no Chairman of the Board is elected or appointed, he shall preside at all meetings of shareholders, discharge all the duties which devolve upon a presiding officer, and perform such other duties as the Code of Bylaws or
the Board of Directors may prescribe.
Section 5.10. The Vice Presidents. Each Vice President (if one or more Vice
Presidents be elected or appointed) shall have such powers and perform such duties as this Code of Bylaws provides or as the Board of Directors may, from time to time, prescribe or delegate to him.
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Section 5.11. The Secretary. The Secretary shall prepare or cause to be
prepared the minutes of the meetings of the shareholders and of the Board of Directors; shall see that all notices are duly given in accordance with the provisions of the Code of Bylaws and as required by law; shall be custodian and responsible for
the authentication of the records; and, in general, shall perform all duties incident to the office of Secretary and such other duties as this Code of Bylaws provides or as may, from time to time, be assigned by the Board of Directors.
Section 5.12. The Assistant Secretaries. Each Assistant Secretary (if one or more Assistant Secretaries be elected or
appointed) shall assist the Secretary in his duties and shall perform such other duties as the Board of Directors may, from time to time, prescribe or delegate to him. At the request of the Secretary, any Assistant Secretary may, in the case of the
absence or inability to act of the Secretary, temporarily act in the Secretary’s place.
Section 5.13. The
Treasurer. The Treasurer shall be the controller of the Corporation; shall have charge and custody of, and be responsible for, all funds of the Corporation, and deposit all such funds in the name of the Corporation in such banks, trust
companies or other depositories as shall be selected by the Board of Directors; shall receive, and give receipts for, monies due and payable to the Corporation from any source whatsoever; and, in general, shall perform all the duties incident to the
office of Treasurer and such other duties as this Code of Bylaws provides or as may, from time to time, be assigned by the Board of Directors.
Section 5.14. The Assistant Treasurers. Each Assistant Treasurer (if one or more Assistant Treasurers be elected or
appointed) shall assist the Treasurer in his duties, and shall perform such other duties as the Board of Directors may, from time to time, prescribe or delegate to him. At the request of the Treasurer, the Assistant Treasurer may, in the case of the
absence or inability to act of the Treasurer, temporarily act in the Treasurer’s place.
Section 5.15. Delegation of
Authority. In case of the absence of any officer of the Corporation, or for any other reason that the Board may deem sufficient, the Board may delegate the powers or duties of such officer to any other officer, for the time being, provided
a majority of the entire Board concurs therein.
Section 5.16. Salaries. The salaries of the officers shall be
fixed, from time to time, by the Board of Directors. No officer shall be prevented from receiving such salary by reason of the fact he is also a director of the Corporation.
ARTICLE 6
Negotiable
Instruments, Deeds, Contracts and Shares
Section 6.01. Execution of Negotiable Instruments. All checks,
drafts, notes, bonds, bills of exchange and orders for the payment of money of the Corporation shall, unless otherwise directed by the Board of Directors, or unless otherwise required by law, be signed by any officer of the Corporation, signing
singly, or such other officers or employees as may be directed by the Board of Directors.
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Section 6.02. Execution of Deeds, Contracts, Etc. All deeds and mortgages made
by the Corporation and other material written contracts and agreements into which the Corporation enters other than transactions in the ordinary course of business shall, unless otherwise directed by the Board of Directors or required by law, be
executed in its name by any officer of the Corporation, signing singly, and, when necessary or required, shall be duly attested by the Secretary or Assistant Secretary. In addition to the above designated officers, written contracts and agreements
in the ordinary course of business operations may be executed by any other officer or employee of the Corporation designated by the President to execute such contracts and agreements.
Section 6.03. Endorsement of Stock Certificates. Subject always to the further orders and directions of the Board of
Directors, any share or shares of stock issued by any other corporation and owned by the Corporation (including retired shares of stock of the Corporation) may, for sale or transfer, be endorsed in the name of the Corporation by the President and
such endorsement shall be duly attested by the Secretary.
Section 6.04. Voting of Stock Owned by Corporation. Subject
always to the further orders and directions of the Board of Directors, any share or shares of stock issued by any other corporation and owned or controlled by the Corporation may be voted at any shareholder’s meeting of such other corporation
by the President of the Corporation or, in his absence, by the Assistant Secretary of the Corporation. Whenever, in the judgment of the President, it is desirable for the Corporation to execute a proxy or give a shareholder’s consent in respect
to any share or shares of stock issued by any other corporation and owned by the Corporation, such proxy or consent shall be executed in the name of the Corporation and shall be attested by the Secretary of the Corporation. Any person or persons
designated in the manner above stated as the proxy or proxies of the Corporation shall have the full right, power, and authority to vote the share or shares of stock issued by such other corporation and owned by the Corporation the same as such
share or shares might be voted by the Corporation.
ARTICLE 7
Provisions for Regulation of Business
and Conduct of Affairs of Corporation
Section 7.01. Contracts. Any contract or other transaction between the Corporation and one or more of its directors,
or between the Corporation and any firm of which one or more of its directors are members or employees, or in which they are interested, or between the Corporation and any corporation or association of which one or more of its directors are
shareholders, members, directors, officers, or employees, or in which they are interested, shall be valid for all purposes, notwithstanding the presence of such director or directors at the meeting of the Board of Directors of the Corporation which
acts upon, or in reference to, such contract or transaction, and notwithstanding his or their participation in such action, if the fact of such interest shall be disclosed or known to the Board of Directors and the Board of Directors shall,
nevertheless, authorize, approve, and ratify such contract or transaction by a vote of a majority of the directors on the Board of Directors who have no direct or indirect interest in the contract or transaction or, if all directors have such an
interest, then by a vote of a majority of the directors. If a majority of
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such directors vote to authorize, approve or ratify such contract or transaction, a quorum is deemed to be present for purposes of taking such action. This Section shall not be construed to
invalidate any contract or other transaction which would otherwise be valid under the common and statutory law applicable thereto.
Section 7.02. Indemnification.
Clause 7.021. Right to Indemnification. The Corporation, to the fullest extent permitted by applicable law as then in
effect, shall indemnify any person who is or was a director or officer of the Corporation and who is or was involved in any manner (including, without limitation, as a party or a witness) or is threatened to be made so involved in any threatened,
pending or completed investigation, claim, action, suit or proceeding, whether civil, criminal, administrative or investigative (including, without limitation, any action, suit or proceeding by or in the right of the Corporation to procure a
judgment in its favor) (a “Proceeding”) by reason of the fact that such person is or was a director, officer, employee or agent of the Corporation or is or was serving at the request of the Corporation as a director, officer,
employee, fiduciary or agent of another corporation, partnership, joint venture, trust or other enterprise (including, without limitation, any employee benefit plan) (a “Covered Entity”), against all expenses (including
attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such Proceeding; provided, however, that the foregoing shall not apply to a director or officer of the
Corporation with respect to a Proceeding that was commenced by such Director or officer prior to a Change in Control (as defined in Clause 7.024(e)(i) of this Section 7.02). Any Director or officer of the Corporation entitled to indemnification
as provided in this Clause 7.021 is hereinafter called an “Indemnitee”. Any right of an Indemnitee to indemnification shall be a contract right and shall include the right to receive, prior to the conclusion of any Proceeding,
payment of any expenses incurred by the Indemnitee in connection with such Proceeding, consistent with the provisions of applicable law as then in effect and the other provisions of this Section 7.02.
Clause 7.022. Insurance, Contracts and Funding. The Corporation may purchase and maintain insurance to protect itself and any
indemnified person against any expenses, judgments, fines and amounts paid in settlement as specified in Clause 7.021 or Clause 7.025 of this Section 7.02 or incurred by any indemnified person in connection with any Proceeding referred to in
such Sections, to the fullest extent permitted by applicable law as then in effect. The Corporation may enter into contracts with any director, officer, employee or agent of the Corporation or any director, officer, employee, fiduciary or agent of
any Covered Entity in furtherance of the provisions of this Section 7.02 and may create a trust fund or use other means (including, without limitation, a letter of credit) to ensure the payment of such amounts as may be necessary to effect
indemnification as provided in this Section 7.02.
Clause 7.023. Indemnification; Not Exclusive Right. The right of
indemnification provided in this Section 7.02 shall not be exclusive of any other rights to which any indemnified person may otherwise be entitled, and the provisions of this Section 7.02 shall inure to the benefit of the heirs and legal
representatives of any indemnified person under this Section 7.02 and shall be applicable to Proceedings commenced or continuing after the adoption of this Section 7.02, whether arising from acts or omissions occurring before or after such
adoption.
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Clause 7.024. Advancement of Expenses; Procedures; Presumptions and Effect of Certain
Proceedings; Remedies. In furtherance, but not in limitation, of the foregoing provisions, the following procedures, presumptions and remedies shall apply with respect to the advancement of expenses and the right to indemnification under this
Section 7.02:
(a) Advancement of Expenses. All reasonable expenses incurred by or on behalf of the Indemnitee in connection with any
Proceeding shall be advanced to the Indemnitee by the Corporation within 20 days after the receipt by the Corporation of a statement or statements from the Indemnitee requesting such advance or advances from time to time, whether prior to or after
final disposition of such Proceeding. Any such statement or statements shall reasonably evidence the expenses incurred by the Indemnitee and shall include any written affirmation or undertaking required by applicable law in effect at the time of
such advance.
(b) Procedures for Determination of Entitlement to Indemnification. (i) To obtain indemnification under this
Section 7.02, an Indemnitee shall submit to the Secretary of the Corporation a written request, including such documentation and information as is reasonably available to the Indemnitee and reasonably necessary to determine whether and to what
extent the Indemnitee is entitled to indemnification (the “Supporting Documentation”). The determination of the Indemnitee’s entitlement to indemnification shall be made not later than 60 days after receipt by the Corporation
of the written request for indemnification together with the Supporting Documentation. The Secretary of the Corporation shall, promptly upon receipt of such a request for indemnification, advise the Board in writing that the Indemnitee has requested
indemnification. (ii) The Indemnitee’s entitlement to indemnification under this Section 7.02 shall be determined in one of the following ways: (A) by a majority vote of the Disinterested Directors (as hereinafter defined), if
they constitute a quorum of the Board; (B) by a written opinion of Independent Counsel (as hereinafter defined) if (x) a Change in Control (as hereinafter defined) shall have occurred and the Indemnitee so requests or (y) a quorum of
the Board consisting of Disinterested Directors is not obtainable or, even if obtainable, a majority of such Disinterested Directors so directs; (C) by the shareholders of the Corporation (but only if a majority of the Disinterested Directors,
if they constitute a quorum of the Board, presents the issue of entitlement to indemnification to the shareholders for their determination); or (D) as provided in Clause 7.024(c) of this Section 7.02. (iii) In the event the
determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Clause 7.024(b)(ii), a majority of the Disinterested Directors shall select the Independent Counsel, but only an Independent Counsel to which the
Indemnitee does not reasonably object; provided, however, that if a Change in Control shall have occurred, the Indemnitee shall select such Independent Counsel, but only an Independent Counsel to which a majority of the Disinterested Directors does
not reasonably object.
(c) Presumptions and Effect of Certain Proceedings. Except as otherwise expressly provided in this
Section 7.02, if a Change in Control shall have occurred, the Indemnitee shall be presumed to be entitled to indemnification under this Section 7.02 (with respect to actions or failures to act occurring prior to such Change in Control)
upon submission of a request for indemnification together with the Supporting Documentation in accordance with Clause 7.024(b) of this Article 7, and thereafter the Corporation shall have the burden of proof to
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overcome that presumption in reaching a contrary determination. In any event, if the person or persons empowered under Clause 7.024(b) of this Section 7.02 to determine entitlement to
indemnification shall not have been appointed or shall not have made a determination within 60 days after receipt by the Corporation of the request therefor together with the Supporting Documentation, the Indemnitee shall be deemed to be, and shall
be, entitled to indemnification unless (A) the Indemnitee misrepresented or failed to disclose a material fact in making the request for indemnification or in the Supporting Documentation or (B) such indemnification is prohibited by law.
The termination of any Proceeding described in Clause 7.021 of this Section 7.02, or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself,
adversely affect the right of the Indemnitee to indemnification or create a presumption that the Indemnitee did not act in good faith and in a manner which the Indemnitee reasonably believed to be in or not opposed to the best interests of the
Corporation or, with respect to any criminal Proceeding, that the Indemnitee had reasonable cause to believe that his or her conduct was unlawful.
(d) Remedies of Indemnitee. (i) In the event that a determination is made pursuant to Clause 7.024 (b) of this Section 7.02
that the Indemnitee is not entitled to indemnification under this Section 7.02, (A) the Indemnitee shall be entitled to seek an adjudication of his or her entitlement to such indemnification either, at the Indemnitee’s sole option, in
(x) an appropriate court of the state of Indiana or any other court of competent jurisdiction or (y) an arbitration to be conducted by a single arbitrator pursuant to the rules of the American Arbitration Association; (B) any such
judicial proceeding or arbitration shall be de novo and the Indemnitee shall not be prejudiced by reason of such adverse determination; and (C) if a Change in Control shall have occurred, in any such judicial proceeding or arbitration the
Corporation shall have the burden of proving that the Indemnitee is not entitled to indemnification under this Section 7.02 (with respect to actions or failures to act occurring prior to such Change in Control). (ii) If a determination
shall have been made or deemed to have been made, pursuant to Clause 7.024(b) or (c) of this Clause 7.024, that the Indemnitee is entitled to indemnification, the Corporation shall be obligated to pay the amounts constituting such
indemnification within five days after such determination has been made or deemed to have been made and shall be conclusively bound by such determination unless (A) the Indemnitee misrepresented or failed to disclose a material fact in making
the request for indemnification or in the Supporting Documentation or (B) such indemnification is prohibited by law. In the event that (x) advancement of expenses is not timely made pursuant to Clause 7.024(a) of this Section 7.02 or
(y) payment of indemnification is not made within five days after a determination of entitlement to indemnification has been made or deemed to have been made pursuant to Clause 7.024(b) or (c) of this Section 7.02, the Indemnitee
shall be entitled to seek judicial enforcement of the Corporation’s obligation to pay to the Indemnitee such advancement of expenses or indemnification. Notwithstanding the foregoing, the Corporation may bring an action, in an appropriate court
in the state of Indiana or any other court of competent jurisdiction, contesting the right of the Indemnitee to receive indemnification hereunder due to the occurrence of an event described in Subclause (A) or (B) of this Clause
(ii) (a “Disqualifying Event”); provided, however, that in any such action the Corporation shall have the burden of proving the occurrence of such Disqualifying Event. (iii) The Corporation shall be precluded from
asserting in any judicial proceeding or arbitration commenced pursuant to this Clause 7.024(d) that the procedures and presumptions of this Section 7.02 are not valid, binding and enforceable and shall
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stipulate in any such court or before any such arbitrator that the Corporation is bound by all the provisions of this Section 7.02. (iv) In the event that the Indemnitee, pursuant to
this Clause 7.024(d), seeks a judicial adjudication of or an award in arbitration to enforce his or her rights under, or to recover damages for breach of, this Section 7.02, the Indemnitee shall be entitled to recover from the Corporation, and
shall be indemnified by the Corporation against, any expenses actually and reasonably incurred by the Indemnitee if the Indemnitee prevails in such judicial adjudication or arbitration. If it shall be determined in such judicial adjudication or
arbitration that the Indemnitee is entitled to receive part but not all of the indemnification or advancement of expenses sought, the expenses incurred by the Indemnitee in connection with such judicial adjudication or arbitration shall be prorated
accordingly.
(e) Definitions. For purposes of this Section 7.02:
(i) “Change in Control” means a change in control of the Corporation of a nature that would be required to be reported in
response to Item 6(e) (or any successor provision) of Schedule 14A of Regulation 14A (or any amendment or successor provision thereto) promulgated under the Securities Exchange Act of 1934 (the “Act”), whether or not the
Corporation is then subject to such reporting requirement; provided that, without limitation, such a change in control shall be deemed to have occurred if (A) any “person” (as such term is used in Sections 13(d) and 14(d) of the Act)
is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Act), directly or indirectly, of securities of the Corporation representing 20% or more of the voting power of all outstanding shares of stock of the Corporation
entitled to vote generally in an election of Directors without the prior approval of at least two-thirds of the members of the Board in office immediately prior to such acquisition; (B) the Corporation is a party to any merger or consolidation
in which the Corporation is not the continuing or surviving corporation or pursuant to which shares of the Corporation’s common stock would be converted into cash, securities or other property, other than a merger of the Corporation in which
the holders of the Corporation’s common stock immediately prior to the merger have the same proportionate ownership of common stock of the surviving corporation immediately after the merger, (C) there is a sale, lease, exchange or other
transfer (in one transaction or a series of related transactions) of all, or substantially all, the assets of the Corporation, or liquidation or dissolution of the Corporation; (D) the Corporation is a party to a merger, consolidation, sale of
assets or other reorganization, or a proxy contest, as a consequence of which members of the Board in office immediately prior to such transaction or event constitute less than a majority of the Board thereafter; or (E) during any period of two
consecutive years, individuals who at the beginning of such period constituted the Board (including for this purpose any new Director whose election or nomination for election by the shareholders was approved by a vote of at least two-thirds of the
Directors then still in office who were Directors at the beginning of such period) cease for any reason to constitute at least a majority of the Board.
(ii) “Disinterested Director” means a Director who is not or was not a party to the proceeding in respect of which
indemnification is sought by the Indemnitee.
(iii) “Independent Counsel” means a law firm or a member of a law firm that
neither presently is, nor in the past five years has been, retained to represent: (a) the Corporation or the Indemnitee in any matter material to either such party or (b) any other party to the
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Proceeding giving rise to a claim for indemnification under this Section 7.02. Notwithstanding the foregoing, the term “Independent Counsel” shall not include any person who, under
applicable standards of professional conduct, would have a conflict of interest in representing either the Corporation or the Indemnitee in an action to determine the Indemnitee’s rights under this Section 7.02.
Clause 7.025. Indemnification Employees and Agents. Notwithstanding any other provision of this Article 7, the Corporation,
to the fullest extent permitted by applicable law as then in effect, may indemnify any person other than a Director or officer of the Corporation who is or was an employee or agent of the Corporation and who is or was involved in any manner
(including, without limitation, as a party or a witness) or is threatened to be made so involved in any threatened, pending or completed Proceeding by reasons of the fact that such person is or was an employee or agent of the Corporation or, at the
request of the Corporation, a director, officer, employee, fiduciary or agent of a Covered Entity against all expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person
in connection with such Proceeding. The Corporation may also advance expenses incurred by such employee, fiduciary or agent in connection with any such Proceeding, consistent with the provisions of applicable law as then in effect.
Clause 7.026. Severability. If any of this Section 7.02 shall be held to be invalid, illegal or unenforceable for any
reason whatsoever: (i) the validity, legality and enforceability of the remaining provisions of this Section 7.02 (including, without limitation, all portions of any Section of this Section 7.02 containing any such provision held to
be invalid, illegal or unenforceable, that are not themselves invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby; and (ii) to the fullest extent possible, the provisions of this Section 7.02 (including,
without limitation, all portions of any Section of this Section 7.02 containing any such provision held to be invalid, illegal or unenforceable, that are not themselves invalid, illegal or unenforceable) shall be construed so as to give effect
to the intent manifested by the provision held invalid, illegal or unenforceable.
Clause 7.027. Effect of Amendments.
Neither the amendment or repeal of, nor the adoption of a provision inconsistent with, any provision of this Section 7.02 (including, without limitation, this Clause 7.027) shall adversely affect the rights of any director or officer under this
Section 7.02 (i) with respect to any Proceeding commenced or threatened prior to such amendment, repeal or adoption of an inconsistent provision or (ii) after the occurrence of a Change in Control, with respect to any Proceeding
arising out of any action or omission occurring prior to such amendment, repeal or adoption of an inconsistent provision, in either case without the written consent of such director or officer.
ARTICLE 8
Stock
Section 8.01. Stock Certificates and Uncertificated Shares. The shares of stock in the Corporation shall be
uncertificated, provided that the Board may provide by resolution or resolutions that some or all of any or all classes or series of the Corporation’s stock shall be represented by certificates. Every holder of stock represented by certificates
shall be entitled to
15
have a certificate signed by or in the name of the Corporation by the Chairperson or Vice Chairperson of the Board, if any, or the President or a Vice President, and by the Treasurer or an
Assistant Treasurer, or the Secretary or an Assistant Secretary, of the Corporation, representing the number of shares of stock registered in certificate form owned by such holder. If such certificate is manually signed by one officer or manually
countersigned by a transfer agent or by a registrar, any other signature on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall
have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if such person were such officer, transfer agent or registrar at the date of issue. Except as
otherwise expressly provided by law, the rights and obligations of the holders of uncertificated shares and the rights and obligations of the holders of certificates representing stock of the same class and series shall be identical.
Section 8.02. Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The Corporation may issue a new
certificate of stock or uncertificated shares in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the Corporation may require the owner of the lost, stolen or destroyed certificate, or such
owner’s legal representative, to give the Corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new
certificate or uncertificated shares.
Article 9
Miscellaneous
Section 9.01. Seal. The Corporation may have a corporate seal which shall have the name of the Corporation inscribed
thereon and shall be in such form as may be approved from time to time by the Board. The corporate seal may be used by causing it or a facsimile thereof to be impressed or affixed or in any other manner reproduced.
Section 9.02. Form of Records. Any records maintained by the Corporation in the regular course of its business, including
its stock ledger, books of account and minute books, may be kept on, or by means of, or be in the form of, any information storage device, or method, provided that the records so kept can be converted into clearly legible paper form within a
reasonable time. The Corporation shall so convert any records so kept upon the request of any person entitled to inspect such records in accordance with applicable law.
Section 9.03. Amendments. The powers to make, alter, amend or repeal this Code of Bylaws are vested in the Board of
Directors, but the affirmative vote of a majority of the number of directors in office at the time of such vote shall be necessary to effect any alteration, amendment or repeal of this Code of Bylaws.
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Exhibit 4.1
SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of June 2, 2015, among HARRIS CORPORATION (or its permitted
successor), a Delaware corporation (the “Company”), EXELIS INC. (or its permitted successor), an Indiana corporation and a subsidiary of the Company (the “Guaranteeing Subsidiary”), and U.S. BANK NATIONAL
ASSOCIATION (as successor to National City Bank), as trustee under the Indenture referred to below (the “Trustee”).
W I T
N E S S E T H
WHEREAS, the Company has heretofore executed and delivered to the Trustee an indenture, dated as of October 1, 1990
(as amended or supplemented, the “Indenture”) providing for the issuance from time to time of an unlimited amount of senior notes;
WHEREAS, the Company currently has issued and outstanding under the Indenture $100,000,000 aggregate principal amount of 7.0% Debentures due
January 15, 2026 (the “Notes”);
WHEREAS, pursuant to an underwriting agreement, date as of April 22, 2015,
between the Company and Morgan Stanley & Co. LLC and Citigroup Global Markets Inc., as representatives of the several underwriters named therein, the Company has agreed under certain circumstances to cause the Guaranteeing Subsidiary to
execute and deliver to the Trustee a supplemental indenture pursuant to which the Guaranteeing Subsidiary shall unconditionally guarantee all of the Company’s obligations under the Notes and the Indenture on the terms and conditions set forth
herein (the “Note Guarantee”); and
WHEREAS, pursuant to Section 11.01 of the Indenture, the Trustee is authorized
to execute and deliver this Supplemental Indenture without notice to or consent of the Holders of the Notes.
NOW THEREFORE, in
consideration of the foregoing, the Company, the Guaranteeing Subsidiary and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:
ARTICLE ONE.
DEFINITIONS
SECTION 1.01. Capitalized Terms. Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture or in the
securities evidencing the Notes.
ARTICLE TWO.
NOTE GUARANTEE
SECTION 2.01. Guarantee.
(a) The Guaranteeing Subsidiary, as primary obligor and not merely as surety hereby unconditionally guarantees, on an unsecured senior
basis, to each Holder of the Notes authenticated and delivered by the Trustee and to the Trustee and its successors and assigns with respect to the Notes, that:
1
(1) the principal of, premium, if any, and interest on the Notes will be promptly
paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of and interest on the Notes, if any, if lawful, and all other obligations of the Company to such Holders or the Trustee
hereunder or under the Indenture will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and
(2) in case of any extension of time of payment or renewal of the Notes or any of such other obligations, that the same will be
promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise (all obligations guaranteed hereby, herein called the “Guaranteed
Obligations”).
Failing payment when due of any amount so guaranteed for whatever reason, the Guaranteeing Subsidiary will be
obligated to pay the same immediately. The Guaranteeing Subsidiary agrees that this is a guarantee of payment and not a guarantee of collection.
(b) The Guaranteeing Subsidiary hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of
insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenants that this Note Guarantee will not be discharged with respect to the Notes except by
(i) the payment in full of the Guaranteed Obligations with respect to the Notes or (ii) as otherwise set forth in Section 2.05 hereof.
(c) If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guaranteeing Subsidiary or any custodian,
trustee, liquidator or other similar official acting in relation to either the Company or the Guaranteeing Subsidiary, any amount paid by either to the Trustee or such Holder, this Note Guarantee, to the extent theretofore discharged, will be
reinstated in full force and effect.
(d) The Guaranteeing Subsidiary agrees that it will not be entitled to any right of subrogation in
relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. The Guaranteeing Subsidiary further agrees that, as between the Guaranteeing Subsidiary, on the one hand, and the
Holders and the Trustee, on the other hand, (1) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Seven of the Indenture for the purposes of this Note Guarantee, notwithstanding any stay, injunction or
other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (2) in the event of any declaration of acceleration of such obligations as provided in Article Seven of the Indenture, such obligations (whether
or not due and payable) will forthwith become due and payable by the Guaranteeing Subsidiary for the purpose of this Note Guarantee, in each case, with respect to the Notes so accelerated. The Guaranteeing Subsidiary will have the right to seek
contribution from any non-paying guarantor (if any) so long as the exercise of such right does not impair the rights of the Holders under this Note Guarantee.
2
SECTION 2.02. Limitation on Guarantor Liability.
Notwithstanding any term of this Note Guarantee or the Indenture to the contrary, the obligations of the Guaranteeing Subsidiary will be
limited to the maximum amount that will not, after giving effect to such maximum amount and all other contingent and fixed liabilities of the Guaranteeing Subsidiary that are relevant under law, and after giving effect to any collections from,
rights to receive contribution from or payments made by or on behalf of any other guarantor in respect of the obligations of such other guarantor (if any), render this Notes Guarantee voidable under applicable law relating to fraudulent conveyance
or fraudulent transfer or similar laws affecting the rights of creditors generally.
SECTION 2.03. Execution and Delivery of Note Guarantee.
The execution by the Guaranteeing Subsidiary of this Supplemental Indenture evidences the Note Guarantee of the Guaranteeing Subsidiary,
whether or not the person signing as an officer of the Guaranteeing Subsidiary still holds that office at the time of authentication of any Note. The delivery of any Note by the Trustee after authentication constitutes due delivery of the Note
Guarantee set forth in this Supplemental Indenture on behalf of the Guaranteeing Subsidiary.
The Guaranteeing Subsidiary hereby agrees
that its Note Guarantee set forth in Section 2.01 hereof will remain in full force and effect notwithstanding any failure to endorse on each Note a notation of such Note Guarantee.
SECTION 2.04. Guarantors May Consolidate, etc., on Certain Terms.
(a) The Guaranteeing Subsidiary may not in a single transaction or series of related transactions, consolidate or merge with or into any other
person, or sell or transfer all or substantially all of its property and assets to any other person, other than the Company, unless (a) the person formed by or resulting from any such consolidation or merger, or which shall have received the
transfer of all or substantially all of the property and assets of the Guaranteeing Subsidiary, is or becomes a guarantor of the Notes on substantially the same terms as are provided for herein or shall assume the due and punctual performance and
observance of all of the covenants and conditions to be performed or observed by the Guaranteeing Subsidiary hereunder and under the Indenture and (b) the Guaranteeing Subsidiary, such person or such successor person, as the case may be, shall
not, immediately after such consolidation, merger, sale or transfer, be in default in the performance of any such covenant or condition.
(b) Subject to the provisions of Section 2.04(a), nothing in this Supplemental Indenture or the Indenture shall prevent any consolidation
or merger of the Guaranteeing Subsidiary with or into any other person, or any sale, or transfer of all or substantially all of the property and assets of the Guaranteeing Subsidiary to any other person lawfully entitled to acquire the same;
provided, however, that the Guaranteeing Subsidiary covenants and agrees, that any such consolidation, merger, sale, or transfer (other than with or to the Company or another guarantor) shall be upon the condition that the due and punctual payment
of the guaranteed principal, premium, if any, and interest of all the Notes according to their tenor, and the due and punctual performance and observance of all the terms, covenants and conditions of this Supplemental Indenture and the Indenture to
be kept or performed by the Guaranteeing Subsidiary shall, by an indenture supplemental hereto, executed and delivered to the Trustee, be
3
assumed by the person formed by or resulting from any such consolidation or merger (provided that no such supplemental indenture shall be required if the Guaranteeing Subsidiary is the surviving
person upon the consolidation or merger), or which shall have received the transfer of all or substantially all of the property and assets of the Guaranteeing Subsidiary. Every such successor person upon executing an indenture supplemental hereto,
as provided in this Section 2.04(b), in either substantially the same form as this Supplemental Indenture or in another form reasonably satisfactory to the Trustee, shall succeed to and be substituted for the Guaranteeing Subsidiary with the
same effect as if it had been named herein as the “Guaranteeing Subsidiary.”
(c) In the event of any such sale or transfer
(other than a transfer by way of lease), the Guaranteeing Subsidiary or any successor person which shall theretofore have become such in the manner described in this Section shall be discharged from all obligations and covenants under this
Supplemental Indenture, the Indenture and the Note Guarantee.
(d) In addition to the requirements of 12.01 of the Indenture, and subject
to 8.01 of the Indenture, the Trustee shall receive an Opinion of Counsel (subject to customary exceptions and exclusions) as conclusive evidence that any such merger, consolidation, sale or any such supplemental indenture complies with the
foregoing conditions and provisions of this Section 2.04.
SECTION 2.05. Releases.
The Note Guarantee of a guarantor of the Notes will be automatically released and discharged with respect to the Notes:
(a) in connection with any sale or other disposition of (i) all of the assets of the Guaranteeing Subsidiary (including by
way of merger, consolidation or otherwise) to a person that is not (either before or after giving effect to such transaction) the Company or a subsidiary of the Company; provided that the requirements set forth in Section 2.04 hereto are
satisfied or (ii) all of the Capital Stock of the Guaranteeing Subsidiary to a person that is not (either before or after giving effect to such transaction) the Company or a subsidiary of the Company;
(b) upon covenant defeasance or satisfaction and discharge with respect to the Notes in accordance with Article Four of the
Indenture;
(c) if the Holders of a majority in aggregate principal amount of the Notes consent to such release, in
accordance with the Article Eleven of the Indenture;
(d) if the Guaranteeing Subsidiary merges with and into the Company;
(e) the Guaranteeing Subsidiary merges with and into any person that is or becomes a guarantor of the Notes; provided that
the requirements set forth in Section 2.04 hereto are satisfied; or
(f) upon the payment in full of the Guaranteed
Obligations with respect to the Notes.
4
In connection with any release of the Guaranteeing Subsidiary’s obligations under its Note
Guarantee pursuant to clause (a) above upon delivery by the Company to the Trustee of an Opinion of Counsel and an Officers’ Certificate to the effect that such release was made in accordance with the provisions of the Indenture, the
Trustee will execute any documents reasonably required by the Company or the Guaranteeing Subsidiary in order to evidence the release of the Guaranteeing Subsidiary from its obligations under its Note Guarantee. The Company shall give the Holders of
the Notes prompt notice of any such release.
Until such time as the Guaranteeing Subsidiary is released from its obligations under its
Note Guarantee in respect of the Notes as provided in this Section 2.05, such Guaranteeing Subsidiary will remain liable for the Guaranteed Obligations.
SECTION 2.06. Notices. Notice to the Guaranteeing Subsidiary shall be sufficient if addressed to such Guaranteeing Subsidiary in care of the Company at
the address, place and manner provided in Section 13.04 of the Indenture.
SECTION 2.07. Event of Default. The following Event of Default
shall be added to the Indenture as Section 7.01(h):
“(h) any Guaranteeing Subsidiary repudiates its obligations under its Note
Guarantee or, except as permitted by the Supplemental Indenture providing for such Note Guarantee, such Note Guarantee is determined to be unenforceable or invalid or shall for any reason cease to be in full force and effect.”
The first line of the second paragraph of Section 7.01 of the Indenture and the term “defaults”, as defined in
Section 7.07 of the Indenture, shall be deemed to include a reference to Section 7.01(h).
ARTICLE THREE.
MISCELLANEOUS
SECTION 3.01. Successors and
Assigns of the Company and the Guaranteeing Subsidiary. All the covenants, stipulations, promises and agreements contained in this Supplemental Indenture by or in behalf of the Company and the Guaranteeing Subsidiary shall bind their respective
successors and assigns, whether so expressed or not.
SECTION 3.02. Provisions of Trust Indenture Act of 1939 to Control. If and to the extent that
any provision of this Supplemental Indenture limits, qualifies or conflicts with a provision of the Trust Indenture Act of 1939 that is required under such Act to be a part of and govern this Supplemental Indenture, the latter provision shall
control. If any provision of this Supplemental Indenture modifies or excludes any provision of the Trust Indenture Act of 1939 that may be so modified or excluded, the latter provision shall be deemed to apply to this Supplemental Indenture as so
modified or to be excluded, as the case may be.
SECTION 3.03. Effect of Invalidity of Provisions. In case any one or more of the provisions
contained in this Supplemental Indenture or in the Note Guarantee shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this
Supplemental Indenture or of such Note Guarantee, but this Supplemental Indenture and such Note Guarantee shall be construed as if such invalid or illegal or unenforceable provision had never been contained herein or therein.
5
SECTION 3.04. Supplemental Indenture and Note Guarantee to Be Construed in Accordance with New York Law.
This Supplemental Indenture and the Note Guarantee shall be construed in accordance with and governed by the laws of the State of New York, without regard to conflict of law principles.
SECTION 3.05. Supplemental Indenture May Be Executed in Counterparts. This Supplemental Indenture may be executed in any number of counterparts, each
of which shall be an original; but such counterparts shall together constitute but one and the same instrument.
SECTION 3.06. Headings. The
headings of the Articles and Sections of this Supplemental Indenture have been inserted for convenience of reference only, are not intended to be considered a part hereof and shall not modify or restrict any of the terms or provisions hereof.
SECTION 3.07. Recitals by Company and Guaranteeing Subsidiary. The recitals in this Supplemental Indenture are made by the Company and the Guaranteeing
Subsidiary only and not by the Trustee, all of the provisions contained in the Indenture in respect of the rights, privileges, indemnities, immunities, powers and duties of the Trustee shall be applicable in respect of this Supplemental Indenture
and the Note Guarantee as fully and with like effect as if set forth herein in full and the Trustee shall not be responsible for the validity or sufficiency of this Supplemental Indenture or the Note Guarantee.
6
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed, all as of the
date first above written.
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| Exelis Inc., as Guaranteeing Subsidiary |
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| By: |
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/s/ Janet L. McGregor |
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Name: Janet L. McGregor |
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Title: Corporate Vice President, Treasurer and Assistant Secretary |
7
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| Harris Corporation |
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| By: |
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/s/ Miguel A. Lopez |
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Name: |
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Miguel A. Lopez |
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Title: |
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Senior Vice President and Chief Financial Officer |
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| U.S. Bank National Association, as Trustee |
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| By: |
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/s/ Holly Pattison |
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Authorized Officer |
9
Exhibit 4.2
SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of June 2, 2015, among HARRIS CORPORATION (or its permitted
successor), a Delaware corporation (the “Company”), EXELIS INC. (or its permitted successor), an Indiana corporation and a subsidiary of the Company (the “Guaranteeing Subsidiary”), and THE BANK OF NEW YORK MELLON
(as successor to Chemical Bank), as trustee under the Indenture referred to below (the “Trustee”).
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered to the Trustee an indenture, dated as of May 1, 1996 (as amended or
supplemented, the “Indenture”) providing for the issuance from time to time of an unlimited amount of senior notes;
WHEREAS, the Company currently has issued and outstanding under the Indenture $25,800,000 aggregate principal amount of 6.35% Debentures due
January 15, 2028 (the “Notes”);
WHEREAS, pursuant to an underwriting agreement, date as of April 22, 2015,
between the Company and Morgan Stanley & Co. LLC and Citigroup Global Markets Inc., as representatives of the several underwriters named therein, the Company has agreed under certain circumstances to cause the Guaranteeing Subsidiary to
execute and deliver to the Trustee a supplemental indenture pursuant to which the Guaranteeing Subsidiary shall unconditionally guarantee all of the Company’s obligations under the Notes and the Indenture on the terms and conditions set forth
herein (the “Note Guarantee”); and
WHEREAS, pursuant to Section 11.01 of the Indenture, the Trustee is authorized
to execute and deliver this Supplemental Indenture without notice to or consent of the Holders of the Notes.
NOW THEREFORE, in
consideration of the foregoing, the Company, the Guaranteeing Subsidiary and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:
ARTICLE ONE.
DEFINITIONS
SECTION 1.01. Capitalized Terms. Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture or in the
securities evidencing the Notes.
ARTICLE TWO.
NOTE GUARANTEE
SECTION 2.01. Guarantee.
(a) The Guaranteeing Subsidiary, as primary obligor and not merely as surety hereby unconditionally guarantees, on an unsecured senior
basis, to each Holder of the Notes authenticated and delivered by the Trustee and to the Trustee and its successors and assigns with respect to the Notes, that:
1
(1) the principal of, premium, if any, and interest on the Notes will be promptly
paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of and interest on the Notes, if any, if lawful, and all other obligations of the Company to such Holders or the Trustee
hereunder or under the Indenture will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and
(2) in case of any extension of time of payment or renewal of the Notes or any of such other obligations, that the same will be
promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise (all obligations guaranteed hereby, herein called the “Guaranteed
Obligations”).
Failing payment when due of any amount so guaranteed for whatever reason, the Guaranteeing Subsidiary will be
obligated to pay the same immediately. The Guaranteeing Subsidiary agrees that this is a guarantee of payment and not a guarantee of collection.
(b) The Guaranteeing Subsidiary hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of
insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenants that this Note Guarantee will not be discharged with respect to the Notes except by
(i) the payment in full of the Guaranteed Obligations with respect to the Notes or (ii) as otherwise set forth in Section 2.05 hereof.
(c) If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guaranteeing Subsidiary or any custodian,
trustee, liquidator or other similar official acting in relation to either the Company or the Guaranteeing Subsidiary, any amount paid by either to the Trustee or such Holder, this Note Guarantee, to the extent theretofore discharged, will be
reinstated in full force and effect.
(d) The Guaranteeing Subsidiary agrees that it will not be entitled to any right of subrogation in
relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. The Guaranteeing Subsidiary further agrees that, as between the Guaranteeing Subsidiary, on the one hand, and the
Holders and the Trustee, on the other hand, (1) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Seven of the Indenture for the purposes of this Note Guarantee, notwithstanding any stay, injunction or
other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (2) in the event of any declaration of acceleration of such obligations as provided in Article Seven of the Indenture, such obligations (whether
or not due and payable) will forthwith become due and payable by the Guaranteeing Subsidiary for the purpose of this Note Guarantee, in each case, with respect to the Notes so accelerated. The Guaranteeing Subsidiary will have the right to seek
contribution from any non-paying guarantor (if any) so long as the exercise of such right does not impair the rights of the Holders under this Note Guarantee.
2
SECTION 2.02. Limitation on Guarantor Liability.
Notwithstanding any term of this Note Guarantee or the Indenture to the contrary, the obligations of the Guaranteeing Subsidiary will be
limited to the maximum amount that will not, after giving effect to such maximum amount and all other contingent and fixed liabilities of the Guaranteeing Subsidiary that are relevant under law, and after giving effect to any collections from,
rights to receive contribution from or payments made by or on behalf of any other guarantor in respect of the obligations of such other guarantor (if any), render this Notes Guarantee voidable under applicable law relating to fraudulent conveyance
or fraudulent transfer or similar laws affecting the rights of creditors generally.
SECTION 2.03. Execution and Delivery of Note Guarantee.
The execution by the Guaranteeing Subsidiary of this Supplemental Indenture evidences the Note Guarantee of the Guaranteeing Subsidiary,
whether or not the person signing as an officer of the Guaranteeing Subsidiary still holds that office at the time of authentication of any Note. The delivery of any Note by the Trustee after authentication constitutes due delivery of the Note
Guarantee set forth in this Supplemental Indenture on behalf of the Guaranteeing Subsidiary.
The Guaranteeing Subsidiary hereby agrees
that its Note Guarantee set forth in Section 2.01 hereof will remain in full force and effect notwithstanding any failure to endorse on each Note a notation of such Note Guarantee.
SECTION 2.04. Guarantors May Consolidate, etc., on Certain Terms.
(a) The Guaranteeing Subsidiary may not in a single transaction or series of related transactions, consolidate or merge with or into any other
person, or sell or transfer all or substantially all of its property and assets to any other person, other than the Company, unless (a) the person formed by or resulting from any such consolidation or merger, or which shall have received the
transfer of all or substantially all of the property and assets of the Guaranteeing Subsidiary, is or becomes a guarantor of the Notes on substantially the same terms as are provided for herein or shall assume the due and punctual performance and
observance of all of the covenants and conditions to be performed or observed by the Guaranteeing Subsidiary hereunder and under the Indenture and (b) the Guaranteeing Subsidiary, such person or such successor person, as the case may be, shall
not, immediately after such consolidation, merger, sale or transfer, be in default in the performance of any such covenant or condition.
(b) Subject to the provisions of Section 2.04(a), nothing in this Supplemental Indenture or the Indenture shall prevent any consolidation
or merger of the Guaranteeing Subsidiary with or into any other person, or any sale, or transfer of all or substantially all of the property and assets of the Guaranteeing Subsidiary to any other person lawfully entitled to acquire the same;
provided, however, that the Guaranteeing Subsidiary covenants and agrees, that any such consolidation, merger, sale, or transfer (other than with or to the Company or another guarantor) shall be upon the condition that the due and punctual payment
of the guaranteed principal, premium, if any, and interest of all the Notes according to their tenor, and the due and punctual performance and observance of all the terms, covenants and conditions of this Supplemental Indenture and the Indenture to
be kept or performed by the Guaranteeing Subsidiary shall, by an indenture supplemental hereto, executed and delivered to the Trustee, be
3
assumed by the person formed by or resulting from any such consolidation or merger (provided that no such supplemental indenture shall be required if the Guaranteeing Subsidiary is the surviving
person upon the consolidation or merger), or which shall have received the transfer of all or substantially all of the property and assets of the Guaranteeing Subsidiary. Every such successor person upon executing an indenture supplemental hereto,
as provided in this Section 2.04(b), in either substantially the same form as this Supplemental Indenture or in another form reasonably satisfactory to the Trustee, shall succeed to and be substituted for the Guaranteeing Subsidiary with the
same effect as if it had been named herein as the “Guaranteeing Subsidiary.”
(c) In the event of any such sale or transfer
(other than a transfer by way of lease), the Guaranteeing Subsidiary or any successor person which shall theretofore have become such in the manner described in this Section shall be discharged from all obligations and covenants under this
Supplemental Indenture, the Indenture and the Note Guarantee.
(d) Subject to the provisions of Section 8.01 of the Indenture, the
Trustee shall receive an Opinion of Counsel (subject to customary exceptions and exclusions) as conclusive evidence that any such merger, consolidation, sale or any such supplemental indenture complies with the foregoing conditions and provisions of
this Section 2.04.
SECTION 2.05. Releases.
The Note Guarantee of a guarantor of the Notes will be automatically released and discharged with respect to the Notes:
(a) in connection with any sale or other disposition of (i) all of the assets of the Guaranteeing Subsidiary (including by
way of merger, consolidation or otherwise) to a person that is not (either before or after giving effect to such transaction) the Company or a subsidiary of the Company; provided that the requirements set forth in Section 2.04 hereto are
satisfied or (ii) all of the Capital Stock of the Guaranteeing Subsidiary to a person that is not (either before or after giving effect to such transaction) the Company or a subsidiary of the Company;
(b) upon satisfaction and discharge with respect to the Notes in accordance with Article Four of the Indenture;
(c) if the Holders of a majority in aggregate principal amount of the Notes consent to such release, in accordance with the
Article Eleven of the Indenture;
(d) if the Guaranteeing Subsidiary merges with and into the Company;
(e) the Guaranteeing Subsidiary merges with and into any person that is or becomes a guarantor of the Notes; provided that the
requirements set forth in Section 2.04 hereto are satisfied; or
(f) upon the payment in full of the Guaranteed
Obligations with respect to the Notes.
4
In connection with any release of the Guaranteeing Subsidiary’s obligations under its Note
Guarantee pursuant to clause (a) above upon delivery by the Company to the Trustee of an Opinion of Counsel and an Officers’ Certificate to the effect that such release was made in accordance with the provisions of the Indenture, the
Trustee will execute any documents reasonably required by the Company or the Guaranteeing Subsidiary in order to evidence the release of the Guaranteeing Subsidiary from its obligations under its Note Guarantee. The Company shall give the Holders of
the Notes prompt notice of any such release.
Until such time as the Guaranteeing Subsidiary is released from its obligations under its
Note Guarantee in respect of the Notes as provided in this Section 2.05, such Guaranteeing Subsidiary will remain liable for the Guaranteed Obligations.
SECTION 2.06. Notices. Notice to the Guaranteeing Subsidiary shall be sufficient if addressed to such Guaranteeing Subsidiary in care of the Company at
the address, place and manner provided in Section 13.04 of the Indenture.
SECTION 2.07. Event of Default. The following Event of Default
shall be added to the Indenture as Section 7.01(h):
“(h) any Guaranteeing Subsidiary repudiates its obligations under its Note
Guarantee or, except as permitted by the Supplemental Indenture providing for such Note Guarantee, such Note Guarantee is determined to be unenforceable or invalid or shall for any reason cease to be in full force and effect.”
The first line of the second paragraph of Section 7.01 of the Indenture and the term “defaults”, as defined in
Section 7.07 of the Indenture, shall be deemed to include a reference to Section 7.01(h).
ARTICLE THREE.
MISCELLANEOUS
SECTION 3.01. Successors and
Assigns of the Company and the Guaranteeing Subsidiary. All the covenants, stipulations, promises and agreements contained in this Supplemental Indenture by or in behalf of the Company and the Guaranteeing Subsidiary shall bind their respective
successors and assigns, whether so expressed or not.
SECTION 3.02. Provisions of Trust Indenture Act of 1939 to Control. If and to the extent that
any provision of this Supplemental Indenture limits, qualifies or conflicts with a provision of the Trust Indenture Act of 1939 that is required under such Act to be a part of and govern this Supplemental Indenture, the latter provision shall
control. If any provision of this Supplemental Indenture modifies or excludes any provision of the Trust Indenture Act of 1939 that may be so modified or excluded, the latter provision shall be deemed to apply to this Supplemental Indenture as so
modified or to be excluded, as the case may be.
SECTION 3.03. Effect of Invalidity of Provisions. In case any one or more of the provisions
contained in this Supplemental Indenture or in the Note Guarantee shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this
Supplemental Indenture or of such Note Guarantee, but this Supplemental Indenture and such Note Guarantee shall be construed as if such invalid or illegal or unenforceable provision had never been contained herein or therein.
5
SECTION 3.04. Supplemental Indenture and Note Guarantee to Be Construed in Accordance with New York Law.
This Supplemental Indenture and the Note Guarantee shall be construed in accordance with and governed by the laws of the State of New York, without regard to conflict of law principles.
SECTION 3.05. Supplemental Indenture May Be Executed in Counterparts. This Supplemental Indenture may be executed in any number of counterparts, each
of which shall be an original; but such counterparts shall together constitute but one and the same instrument.
SECTION 3.06. Headings. The
headings of the Articles and Sections of this Supplemental Indenture have been inserted for convenience of reference only, are not intended to be considered a part hereof and shall not modify or restrict any of the terms or provisions hereof.
SECTION 3.07. Recitals by Company and Guaranteeing Subsidiary. The recitals in this Supplemental Indenture are made by the Company and the Guaranteeing
Subsidiary only and not by the Trustee, all of the provisions contained in the Indenture in respect of the rights, privileges, indemnities, immunities, powers and duties of the Trustee shall be applicable in respect of this Supplemental Indenture
and the Note Guarantee as fully and with like effect as if set forth herein in full and the Trustee shall not be responsible for the validity or sufficiency of this Supplemental Indenture or the Note Guarantee.
6
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed, all as of the
date first above written.
|
|
|
| Exelis Inc., as Guaranteeing Subsidiary |
|
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| By: |
|
/s/ Janet L. McGregor |
|
|
Name: Janet L. McGregor |
|
|
Title: Corporate Vice President, Treasurer and Assistant Secretary |
7
|
|
|
|
|
| Harris Corporation |
|
|
| By: |
|
/s/ Miguel A. Lopez |
|
|
Name: |
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Miguel A. Lopez |
|
|
Title: |
|
Senior Vice President and Chief Financial Officer |
8
|
|
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| The Bank of New York Mellon, as Trustee |
|
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| By: |
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/s/ Larry O’ Brien |
|
|
Authorized Officer |
9
Exhibit 4.3
SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of June 2, 2015, among HARRIS CORPORATION (or its permitted
successor), a Delaware corporation (the “Company”), EXELIS INC. (or its permitted successor), an Indiana corporation and a subsidiary of the Company (the “Guaranteeing Subsidiary”), and THE BANK OF NEW YORK MELLON
TRUST COMPANY, N.A., as successor trustee under the Indenture referred to below (the “Trustee”).
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered to the Trustee an indenture, dated as of September 3, 2003 (as amended or
supplemented, the “Indenture”) providing for the issuance from time to time of an unlimited amount of senior notes;
WHEREAS, the Company currently has issued and outstanding under the Indenture $400,000,000 aggregate principal of 4.40% notes due
December 15, 2020, $300,000,000 aggregate principal amount of 6.15% notes due 2040, $500,000,000 aggregate principal amount of 1.999% Senior Notes due 2018, $400,000,000 aggregate principal amount of 2.700% Senior Notes due 2020, $600,000,000
aggregate principal amount of 3.832% Senior Notes due 2025, $400,000,000 aggregate principal amount of 4.854% Senior Notes due 2035, and $500,000,000 aggregate principal amount of 5.054% Senior Notes due 2045 (collectively, the
“Notes”, and each a “series of Notes”);
WHEREAS, pursuant to an underwriting agreement, date as of
April 22, 2015, between the Company and Morgan Stanley & Co. LLC and Citigroup Global Markets Inc., as representatives of the several underwriters named therein, the Company has agreed under certain circumstances to cause the
Guaranteeing Subsidiary to execute and deliver to the Trustee a supplemental indenture pursuant to which the Guaranteeing Subsidiary shall unconditionally guarantee all of the Company’s obligations under the Notes and the Indenture on the terms
and conditions set forth herein (the “Note Guarantee”); and
WHEREAS, pursuant to Section 11.01 of the Indenture,
the Trustee is authorized to execute and deliver this Supplemental Indenture without notice to or consent of the Holders of the Notes.
NOW THEREFORE, in consideration of the foregoing, the Company, the Guaranteeing Subsidiary and the Trustee mutually covenant and agree for the
equal and ratable benefit of the Holders of the Notes as follows:
ARTICLE ONE.
DEFINITIONS
SECTION 1.01. Capitalized
Terms. Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture or in the securities evidencing the applicable series of Notes.
ARTICLE TWO.
NOTE GUARANTEE
SECTION 2.01. Guarantee.
1
(a) The Guaranteeing Subsidiary, as primary obligor and not merely as surety hereby
unconditionally guarantees, on an unsecured senior basis, to each Holder of a Note of a series authenticated and delivered by the Trustee and to the Trustee and its successors and assigns with respect to each such series of Notes, that:
(1) the principal of, premium, if any, and interest on such series of Notes will be promptly paid in full when due, whether at
maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of and interest on such series of Notes, if any, if lawful, and all other obligations of the Company to such Holders or the Trustee hereunder or under the
Indenture will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and
(2) in case
of any extension of time of payment or renewal of any such series of Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at
stated maturity, by acceleration or otherwise (all obligations guaranteed hereby, herein called the “Guaranteed Obligations”).
Failing payment when due of any amount so guaranteed for whatever reason, the Guaranteeing Subsidiary will be obligated to pay the same
immediately. The Guaranteeing Subsidiary agrees that this is a guarantee of payment and not a guarantee of collection.
(b) The
Guaranteeing Subsidiary hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and
all demands whatsoever and covenants that this Note Guarantee will not be discharged with respect to a series of Notes except by (i) the payment in full of the Guaranteed Obligations with respect to such series of Notes or (ii) as
otherwise set forth in Section 2.05 hereof.
(c) If any Holder or the Trustee is required by any court or otherwise to return to the
Company, the Guaranteeing Subsidiary or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guaranteeing Subsidiary, any amount paid by either to the Trustee or such Holder, this Note
Guarantee, to the extent theretofore discharged, will be reinstated in full force and effect.
(d) The Guaranteeing Subsidiary agrees that
it will not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. The Guaranteeing Subsidiary further agrees that, as between
the Guaranteeing Subsidiary, on the one hand, and the Holders and the Trustee, on the other hand, (1) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Seven of the Indenture for the purposes of this
Note Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (2) in the event of any declaration of acceleration of such obligations as provided in
Article Seven of the Indenture, such obligations (whether or not due and payable) will forthwith become due and payable by the Guaranteeing Subsidiary for the purpose of this Note Guarantee, in each case, with respect to the applicable series of
Notes so accelerated. The Guaranteeing Subsidiary will have the right to seek contribution from any non-paying guarantor (if any) so long as the exercise of such right does not impair the rights of the Holders under this Note Guarantee.
2
SECTION 2.02. Limitation on Guarantor Liability.
Notwithstanding any term of this Note Guarantee or the Indenture to the contrary, the obligations of the Guaranteeing Subsidiary will be
limited to the maximum amount that will not, after giving effect to such maximum amount and all other contingent and fixed liabilities of the Guaranteeing Subsidiary that are relevant under law, and after giving effect to any collections from,
rights to receive contribution from or payments made by or on behalf of any other guarantor in respect of the obligations of such other guarantor (if any), render this Notes Guarantee voidable under applicable law relating to fraudulent conveyance
or fraudulent transfer or similar laws affecting the rights of creditors generally.
SECTION 2.03. Execution and Delivery of Note Guarantee.
The execution by the Guaranteeing Subsidiary of this Supplemental Indenture evidences the Note Guarantee of the Guaranteeing Subsidiary,
whether or not the person signing as an officer of the Guaranteeing Subsidiary still holds that office at the time of authentication of any Note. The delivery of any Note by the Trustee after authentication constitutes due delivery of the Note
Guarantee set forth in this Supplemental Indenture on behalf of the Guaranteeing Subsidiary.
The Guaranteeing Subsidiary hereby agrees
that its Note Guarantee set forth in Section 2.01 hereof will remain in full force and effect notwithstanding any failure to endorse on each Note a notation of such Note Guarantee.
SECTION 2.04. Guarantors May Consolidate, etc., on Certain Terms.
(a) The Guaranteeing Subsidiary may not in a single transaction or series of related transactions, consolidate or merge with or into any other
person, or sell or transfer all or substantially all of its property and assets to any other person, other than the Company, unless (a) the person formed by or resulting from any such consolidation or merger, or which shall have received the
transfer of all or substantially all of the property and assets of the Guaranteeing Subsidiary, is or becomes a guarantor of the Notes on substantially the same terms as are provided for herein or shall assume the due and punctual performance and
observance of all of the covenants and conditions to be performed or observed by the Guaranteeing Subsidiary hereunder and under the Indenture and (b) the Guaranteeing Subsidiary, such person or such successor person, as the case may be, shall
not, immediately after such consolidation, merger, sale or transfer, be in default in the performance of any such covenant or condition.
(b) Subject to the provisions of Section 2.04(a), nothing in this Supplemental Indenture or the Indenture shall prevent any consolidation
or merger of the Guaranteeing Subsidiary with or into any other person, or any sale, or transfer of all or substantially all of the property and assets of the Guaranteeing Subsidiary to any other person lawfully entitled to acquire the same;
provided, however, that the Guaranteeing Subsidiary covenants and agrees, that any such consolidation, merger, sale, or transfer (other than with or to the Company or another guarantor) shall be upon the condition that the due and punctual payment
of the
3
guaranteed principal, premium, if any, and interest of all the Notes according to their tenor, and the due and punctual performance and observance of all the terms, covenants and conditions of
this Supplemental Indenture and the Indenture to be kept or performed by the Guaranteeing Subsidiary shall, by an indenture supplemental hereto, executed and delivered to the Trustee, be assumed by the person formed by or resulting from any such
consolidation or merger (provided that no such supplemental indenture shall be required if the Guaranteeing Subsidiary is the surviving person upon the consolidation or merger), or which shall have received the transfer of all or substantially all
of the property and assets of the Guaranteeing Subsidiary. Every such successor person upon executing an indenture supplemental hereto, as provided in this Section 2.04(b), in either substantially the same form as this Supplemental Indenture or
in another form reasonably satisfactory to the Trustee, shall succeed to and be substituted for the Guaranteeing Subsidiary with the same effect as if it had been named herein as the “Guaranteeing Subsidiary.”
(c) In the event of any such sale or transfer (other than a transfer by way of lease), the Guaranteeing Subsidiary or any successor person
which shall theretofore have become such in the manner described in this Section shall be discharged from all obligations and covenants under this Supplemental Indenture, the Indenture and the Note Guarantee.
(d) Subject to the provisions of Section 8.01 of the Indenture, the Trustee shall receive an Opinion of Counsel (subject to customary
exceptions and exclusions) as conclusive evidence that any such merger, consolidation, sale or any such supplemental indenture complies with the foregoing conditions and provisions of this Section 2.04.
SECTION 2.05. Releases.
The Note
Guarantee of a guarantor of the Notes will be automatically released and discharged with respect to any series of Notes:
(a) in connection with any sale or other disposition of (i) all of the assets of the Guaranteeing Subsidiary (including by
way of merger, consolidation or otherwise) to a person that is not (either before or after giving effect to such transaction) the Company or a subsidiary of the Company; provided that the requirements set forth in Section 2.04 hereto are
satisfied or (ii) all of the Capital Stock of the Guaranteeing Subsidiary to a person that is not (either before or after giving effect to such transaction) the Company or a subsidiary of the Company;
(b) upon covenant defeasance or satisfaction and discharge with respect to such series of Notes in accordance with Article Four
of the Indenture;
(c) if the Holders of a majority in aggregate principal amount of such series of Notes consent to such
release, in accordance with Article Eleven of the Indenture;
(d) if the Guaranteeing Subsidiary merges with and into the
Company;
(e) the Guaranteeing Subsidiary merges with and into any person that is or becomes a guarantor of the Notes;
provided that the requirements set forth in Section 2.04 hereto are satisfied; or
4
(f) upon the payment in full of the Guaranteed Obligations with respect to such
series of Notes.
In connection with any release of the Guaranteeing Subsidiary’s obligations under its Note Guarantee with respect
to a series of Notes pursuant to clause (a) above upon delivery by the Company to the Trustee of an Opinion of Counsel and an Officers’ Certificate to the effect that such release was made in accordance with the provisions of the
Indenture, the Trustee will execute any documents reasonably required by the Company or the Guaranteeing Subsidiary in order to evidence the release of the Guaranteeing Subsidiary from its obligations under its Note Guarantee with respect to such
series of Notes. The Company shall give the Holders of the Notes of such series prompt notice of any such release.
Until such time as the
Guaranteeing Subsidiary is released from its obligations under its Note Guarantee in respect of the applicable series of Notes as provided in this Section 2.05, such Guaranteeing Subsidiary will remain liable for the Guaranteed Obligations with
respect to such series of Notes.
SECTION 2.06. Notices. Notice to the Guaranteeing Subsidiary shall be sufficient if addressed to such
Guaranteeing Subsidiary in care of the Company at the address, place and manner provided in Section 13.04 of the Indenture.
SECTION 2.07. Event of
Default. The following Event of Default shall be added to the Indenture as Section 7.01(h):
“(h) any Guaranteeing Subsidiary
repudiates its obligations under its Note Guarantee or, except as permitted by the Supplemental Indenture providing for such Note Guarantee, such Note Guarantee is determined to be unenforceable or invalid or shall for any reason cease to be in full
force and effect.”
The first line of the second paragraph of Section 7.01 of the Indenture and the term “defaults”,
as defined in Section 7.07 of the Indenture, shall be deemed to include a reference to Section 7.01(h).
ARTICLE THREE.
MISCELLANEOUS
SECTION 3.01. Successors and
Assigns of the Company and the Guaranteeing Subsidiary. All the covenants, stipulations, promises and agreements contained in this Supplemental Indenture by or in behalf of the Company and the Guaranteeing Subsidiary shall bind their respective
successors and assigns, whether so expressed or not.
SECTION 3.02. Provisions of Trust Indenture Act of 1939 to Control. If and to the extent that
any provision of this Supplemental Indenture limits, qualifies or conflicts with a provision of the Trust Indenture Act of 1939 that is required under such Act to be a part of and govern this Supplemental Indenture, the latter provision shall
control. If any provision of this Supplemental Indenture modifies or excludes any provision of the Trust Indenture Act of 1939 that may be so modified or excluded, the latter provision shall be deemed to apply to this Supplemental Indenture as so
modified or to be excluded, as the case may be.
5
SECTION 3.03. Effect of Invalidity of Provisions. In case any one or more of the provisions contained in
this Supplemental Indenture or in the Note Guarantee shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Supplemental
Indenture or of such Note Guarantee, but this Supplemental Indenture and such Note Guarantee shall be construed as if such invalid or illegal or unenforceable provision had never been contained herein or therein.
SECTION 3.04. Supplemental Indenture and Note Guarantee to Be Construed in Accordance with New York Law. This Supplemental Indenture and the Note
Guarantee shall be construed in accordance with and governed by the laws of the State of New York, without regard to conflict of law principles.
SECTION
3.05. Supplemental Indenture May Be Executed in Counterparts. This Supplemental Indenture may be executed in any number of counterparts, each of which shall be an original; but such counterparts shall together constitute but one and the same
instrument.
SECTION 3.06. Headings. The headings of the Articles and Sections of this Supplemental Indenture have been inserted for convenience of
reference only, are not intended to be considered a part hereof and shall not modify or restrict any of the terms or provisions hereof.
SECTION 3.07.
Recitals by Company and Guaranteeing Subsidiary. The recitals in this Supplemental Indenture are made by the Company and the Guaranteeing Subsidiary only and not by the Trustee, all of the provisions contained in the Indenture in respect of the
rights, privileges, indemnities, immunities, powers and duties of the Trustee shall be applicable in respect of this Supplemental Indenture and the Note Guarantee as fully and with like effect as if set forth herein in full and the Trustee shall not
be responsible for the validity or sufficiency of this Supplemental Indenture or the Note Guarantee.
6
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed, all as of the
date first above written.
|
|
|
| Exelis Inc., as Guaranteeing Subsidiary |
|
|
| By: |
|
/s/ Janet L. McGregor |
|
|
Name: Janet L. McGregor |
|
|
Title: Corporate Vice President, Treasurer and Assistant Secretary |
7
|
|
|
|
|
| Harris Corporation |
|
|
| By: |
|
/s/ Miguel A. Lopez |
|
|
Name: |
|
Miguel A. Lopez |
|
|
Title: |
|
Senior Vice President and Chief Financial Officer |
8
|
|
|
| The Bank of New York Mellon Trust
Company, N.A., as Trustee |
|
|
| By: |
|
/s/ Michael Countryman |
|
|
Authorized Officer |
9
Exhibit 4.4
SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of June 2, 2015, among HARRIS CORPORATION (or its permitted
successor), a Delaware corporation (the “Guarantor”), EXELIS INC. (or its permitted successor), an Indiana corporation and a subsidiary of the Guarantor (the “Company”), and MUFG UNION BANK, N.A. (f/k/a Union Bank,
N.A.), as trustee under the Indenture referred to below (the “Trustee”).
W I T N E S S E T H
WHEREAS, the Company and the initial guarantor named therein have heretofore executed and delivered to the Trustee an indenture, dated as of
September 20, 2011 (as amended or supplemented, the “Indenture”) providing for the issuance from time to time of an unlimited amount of senior notes;
WHEREAS, the Company currently has issued and outstanding under the Indenture $250,000,000 aggregate principal amount of 4.25% senior notes
due October 1, 2016 and $400,000,000 aggregate principal amount of 5.55% senior notes due October 1, 2021 (collectively, the “Notes”, and each a “series of Notes”);
WHEREAS, pursuant to an underwriting agreement, date as of April 22, 2015, between the Guarantor and Morgan Stanley & Co. LLC
and Citigroup Global Markets Inc., as representatives of the several underwriters named therein, the Guarantor has agreed under certain circumstances to execute and deliver, and to cause the Company to execute and deliver, to the Trustee a
supplemental indenture pursuant to which the Guarantor shall unconditionally guarantee all of the Company’s obligations under the Notes and the Indenture on the terms and conditions set forth herein (the “Note Guarantee”); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is authorized to execute and deliver this Supplemental Indenture
without notice to or consent of the Holders of the Notes.
NOW THEREFORE, in consideration of the foregoing, the Guarantor, the Company
and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:
ARTICLE ONE.
DEFINITIONS
SECTION 1.01. Capitalized
Terms. Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture or in the securities evidencing the applicable series of Notes.
ARTICLE TWO.
NOTE GUARANTEE
SECTION 2.01. Guarantee.
(a) The
Guarantor, as primary obligor and not merely as surety hereby unconditionally guarantees, on an unsecured senior basis, to each Holder of the Notes authenticated and delivered by the Trustee and to the Trustee and its successors and assigns with
respect to each such series of Notes, that:
1
(1) the principal of, premium, if any, and interest on such series of Notes will
be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of and interest on such series of Notes, if any, if lawful, and all other obligations of the Company to such
Holders or the Trustee hereunder or under the Indenture will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and
(2) in case of any extension of time of payment or renewal of any such series of Notes or any of such other obligations, that
the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise (all obligations guaranteed hereby, herein called the “Guaranteed
Obligations”).
Failing payment when due of any amount so guaranteed for whatever reason, the Guarantor will be obligated to pay
the same immediately. The Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.
(b) The Guarantor
hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever
and covenants that this Note Guarantee will not be discharged with respect to a series of Notes except by (i) the payment in full of the Guaranteed Obligations with respect to such series of Notes or (ii) as otherwise set forth in
Section 2.05 hereof.
(c) If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantor
or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantor, any amount paid by either to the Trustee or such Holder, this Note Guarantee, to the extent theretofore discharged, will be
reinstated in full force and effect.
(d) The Guarantor agrees that it will not be entitled to any right of subrogation in relation to the
Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. The Guarantor further agrees that, as between the Guarantor, on the one hand, and the Holders and the Trustee, on the other hand,
(1) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 5 of the Indenture for the purposes of this Note Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration
in respect of the obligations guaranteed hereby, and (2) in the event of any declaration of acceleration of such obligations as provided in Article 5 of the Indenture, such obligations (whether or not due and payable) will forthwith become due
and payable by the Guarantor for the purpose of this Note Guarantee, in each case, with respect to the applicable series of Notes so accelerated. The Guarantor will have the right to seek contribution from any non-paying guarantor (if any) so long
as the exercise of such right does not impair the rights of the Holders under this Note Guarantee.
2
SECTION 2.02. Limitation on Guarantor Liability.
Notwithstanding any term of this Note Guarantee or the Indenture to the contrary, the obligations of the Guarantor will be limited to the
maximum amount that will not, after giving effect to such maximum amount and all other contingent and fixed liabilities of the Guarantor that are relevant under law, and after giving effect to any collections from, rights to receive contribution
from or payments made by or on behalf of any other guarantor in respect of the obligations of such other guarantor (if any), render this Notes Guarantee voidable under applicable law relating to fraudulent conveyance or fraudulent transfer or
similar laws affecting the rights of creditors generally.
SECTION 2.03. Execution and Delivery of Note Guarantee.
The execution by the Guarantor of this Supplemental Indenture evidences the Note Guarantee of the Guarantor, whether or not the person signing
as an officer of the Guarantor still holds that office at the time of authentication of any Note. The delivery of any Note by the Trustee after authentication constitutes due delivery of the Note Guarantee set forth in this Supplemental Indenture on
behalf of the Guarantor.
The Guarantor hereby agrees that its Note Guarantee set forth in Section 2.01 hereof will remain in full
force and effect notwithstanding any failure to endorse on each Note a notation of such Note Guarantee.
SECTION 2.04. Guarantor May Consolidate, etc.,
on Certain Terms.
(a) The Guarantor may not in a single transaction or series of related transactions, consolidate or merge with or
into any other person, or sell or transfer all or substantially all of its property and assets to any other person, other than the Company, unless (a) the person formed by or resulting from any such consolidation or merger, or which shall have
received the transfer of all or substantially all of the property and assets of the Guarantor, is or becomes a guarantor of the Notes on substantially the same terms as are provided for herein or shall assume the due and punctual performance and
observance of all of the covenants and conditions to be performed or observed by the Guarantor hereunder and under the Indenture and (b) the Guarantor, such person or such successor person, as the case may be, shall not, immediately after such
consolidation, merger, sale or transfer, be in default in the performance of any such covenant or condition.
(b) Subject to the
provisions of Section 2.04(a), nothing in this Supplemental Indenture or the Indenture shall prevent any consolidation or merger of the Guarantor with or into any other person, or any sale, or transfer of all or substantially all of the
property and assets of the Guarantor to any other person lawfully entitled to acquire the same; provided, however, that the Guarantor covenants and agrees, that any such consolidation, merger, sale, or transfer (other than with or to the Company or
another guarantor) shall be upon the condition that the due and punctual payment of the guaranteed principal, premium, if any, and interest of all the Notes according to their tenor, and the due and punctual performance and observance of all the
terms, covenants and conditions of this Supplemental Indenture and the Indenture to be kept or performed by the Guarantor shall, by an indenture supplemental hereto, executed and delivered to the Trustee, be assumed by the person formed by or
resulting from any such consolidation or
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merger (provided that no such supplemental indenture shall be required if the Guarantor is the surviving person
upon the consolidation or merger), or which shall have received the transfer of all or substantially all of the property and assets of the Guarantor. Every such successor person upon executing an indenture supplemental hereto, as provided in this
Section 2.04(b), in either substantially the same form as this Supplemental Indenture or in another form reasonably satisfactory to the Trustee, shall succeed to and be substituted for the Guarantor with the same effect as if it had been named
herein as the “Guarantor.”
(c) In the event of any such sale or transfer (other than a transfer by way of lease), the Guarantor
or any successor person which shall theretofore have become such in the manner described in this Section shall be discharged from all obligations and covenants under this Supplemental Indenture, the Indenture and the Note Guarantees.
(d) Subject to the provisions of Section 6.01 of the Indenture, the Trustee shall receive an Opinion of Counsel (subject to customary
exceptions and exclusions) as conclusive evidence that any such merger, consolidation, sale or transfer or any such supplemental indenture complies with the foregoing conditions and provisions of this Section 2.04.
SECTION 2.05. Releases.
The Note
Guarantee of the Guarantor will be automatically released and discharged with respect to any series of Notes:
(a) in
connection with any sale or other disposition of all of the assets of the Guarantor (including by way of merger, consolidation or otherwise) to a person that is not (either before or after giving effect to such transaction) the Company or a
subsidiary of the Company; provided that the requirements set forth in Section 2.04 hereto are satisfied;
(b) if the
Holders of a majority in aggregate principal amount of such series of Notes consent to such release, in accordance Article 9 of the Indenture;
(c) if the Company merges with and into the Guarantor;
(d) the Guarantor merges with and into the Company or any person that is or becomes a guarantor of the Notes; provided that the
requirements set forth in Section 2.04 hereto are satisfied; or
(e) upon the payment in full of the Guaranteed
Obligations with respect to such series of Notes.
In connection with any release of the Guarantor’s obligations under its Note
Guarantee pursuant to clause (a) above upon delivery by the Company to the Trustee of an Opinion of Counsel and an Officers’ Certificate to the effect that such release was made in accordance with the provisions of the Indenture, the
Trustee will execute any documents reasonably required by the Company or the Guarantor in order to evidence the release of the Guarantor from its obligations under its Note Guarantee. The Company shall give the Holders of the Notes prompt notice of
any such release.
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Until such time as the Guarantor is released from its obligations under its Note Guarantee in
respect of the applicable series of Notes as provided in this Section 2.05, the Guarantor will remain liable for the Guaranteed Obligations with respect to such series of Notes.
SECTION 2.06. Notices. Notice to the Guarantor shall be sufficient if addressed to the Guarantor in care of the Company at the address, place and
manner provided in Section 1.05 of the Indenture.
SECTION 2.07. Event of Default. The following Event of Default shall be added to the
Indenture as Section 5.01(i):
“(i) any Guaranteeing Subsidiary repudiates its obligations under its Note Guarantee or, except
as permitted by the Supplemental Indenture providing for such Note Guarantee, such Note Guarantee is determined to be unenforceable or invalid or shall for any reason cease to be in full force and effect.”
The term “default”, as defined in Section 6.02 of the Indenture, shall be deemed to include a reference to
Section 5.01(i).
ARTICLE THREE.
MISCELLANEOUS
SECTION 3.01. Successors and
Assigns of the Company and the Guarantor. All the covenants, stipulations, promises and agreements contained in this Supplemental Indenture by or in behalf of the Company and the Guarantor shall bind their respective successors and assigns,
whether so expressed or not.
SECTION 3.02. Provisions of Trust Indenture Act of 1939 to Control. If and to the extent that any provision of this
Supplemental Indenture limits, qualifies or conflicts with a provision of the Trust Indenture Act of 1939 that is required under such Act to be a part of and govern this Supplemental Indenture, the latter provision shall control. If any provision of
this Supplemental Indenture modifies or excludes any provision of the Trust Indenture Act of 1939 that may be so modified or excluded, the latter provision shall be deemed to apply to this Supplemental Indenture as so modified or to be excluded, as
the case may be.
SECTION 3.03. Effect of Invalidity of Provisions. In case any one or more of the provisions contained in this Supplemental
Indenture or in the Note Guarantee shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Supplemental Indenture or of such
Note Guarantee, but this Supplemental Indenture and such Note Guarantee shall be construed as if such invalid or illegal or unenforceable provision had never been contained herein or therein.
SECTION 3.04. Supplemental Indenture and Note Guarantee to Be Construed in Accordance with New York Law. This Supplemental Indenture and the Note
Guarantee shall be construed in accordance with and governed by the laws of the State of New York, without regard to conflict of law principles.
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SECTION 3.05. Supplemental Indenture May Be Executed in Counterparts. This Supplemental Indenture may be
executed in any number of counterparts, each of which shall be an original; but such counterparts shall together constitute but one and the same instrument.
SECTION 3.06. Headings. The headings of the Articles and Sections of this Supplemental Indenture have been inserted for convenience of reference only,
are not intended to be considered a part hereof and shall not modify or restrict any of the terms or provisions hereof.
SECTION 3.07. Recitals by
Company and Guaranteeing Subsidiary. The recitals in this Supplemental Indenture are made by the Company and the Guarantor only and not by the Trustee, all of the provisions contained in the Indenture in respect of the rights, privileges,
indemnities, immunities, powers and duties of the Trustee shall be applicable in respect of this Supplemental Indenture and the Note Guarantee as fully and with like effect as if set forth herein in full and the Trustee shall not be responsible for
the validity or sufficiency of this Supplemental Indenture or the Note Guarantee.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed, all as of the
date first above written.
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| Exelis Inc. |
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| By: |
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/s/ Janet L. McGregor |
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Name: Janet L. McGregor |
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Title: Corporate Vice President, Treasurer and Assistant Secretary |
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| Harris Corporation, as the Guarantor |
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| By: |
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/s/ Miguel A. Lopez |
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Name: |
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Miguel A. Lopez |
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Title: |
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Senior Vice President and Chief Financial Officer |
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| MUFG Union Bank, N.A., as Trustee |
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| By: |
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/s/ Fernando Moreya |
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Name: |
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Fernando Moreya |
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Title: |
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Vice President |
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