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NVDA NVIDIA

Filed: 15 Sep 16, 8:00pm

Exhibit 4.2

OFFICERS’ CERTIFICATE

The undersigned, NVIDIA Corporation, a Delaware corporation (the “Company”), hereby certifies through Colette M. Kress, its Executive Vice President and Chief Financial Officer, and Karen Burns, its Vice President, Finance, pursuant to Sections 2.1, 2.3 and 11.5 of the Indenture, dated as of September 16, 2016 (the “Indenture”), by and between the Company, as Issuer, and Wells Fargo Bank, National Association, as trustee, as follows:

1. The form and terms of the 2.20% Notes due 2021 (the “2021 Notes”), as set forth onAnnex A attached hereto and the form and terms of the 3.20% Notes due 2026 (the “2026 Notes”), as set forth onAnnex B attached hereto, have been established pursuant to Sections 2.1 and 2.3 of the Indenture and comply with the Indenture.

2. The undersigned have read the Indenture.

3. The statements made in this certificate are based upon an examination of the 2021 Notes and the 2026 Notes to be governed by the Indenture, upon an examination of and familiarity with the Indenture, upon our general knowledge of and familiarity with the operations of the Company and upon the performance of our duties as officers of the Company.

4. In the opinion of the undersigned, they have made such examination or investigation as is necessary to enable them to express an informed opinion as to whether or not the covenants and conditions provided for in the Indenture relating to the issuance and authentication of each of the 2021 Notes and the 2026 Notes have been complied with.

5. In the opinion of the undersigned, with respect to the foregoing, the covenants and conditions provided for in the Indenture relating to the issuance and authentication of each of the 2021 Notes and the 2026 Notes have been complied with.

Capitalized terms used herein without definition have the meanings assigned to them in the Indenture.


IN WITNESS WHEREOF, the undersigned have caused this certificate to be executed by its duly authorized officers as of this 16th day of September, 2016.

 

NVIDIA CORPORATION
By: 

/s/ Colette M. Kress

 Name: Colette M. Kress
 

Title:   Executive Vice President and Chief

            Financial Officer

By: 

/s/ Karen Burns

 Name: Karen Burns
 Title:   Vice President, Finance

[Signature Page to Officers’ Certificate under the Indenture]


ANNEX A

Pursuant to Section 2.3 of the Indenture, dated as of September 16, 2016 (the “Indenture”), between NVIDIA Corporation, a Delaware corporation (the “Issuer”), and Wells Fargo Bank, National Association, as trustee (the “Trustee”), the terms of a series of securities to be issued pursuant to the Indenture are as follows:

 

 1.Designation. The designation of the securities is “2.20% Notes due 2021” (the “2021 Notes”).

 

 2.Initial Aggregate Principal Amount. The 2021 Notes shall be limited in initial aggregate principal amount to $1,000,000,000 (except for 2021 Notes authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other 2021 Notes pursuant to Section 2.8, 2.9, 2.11, 8.5 or 12.3 of the Indenture).

 

 3.Currency Denomination. The 2021 Notes shall be denominated in Dollars.

 

 4.Maturity. The date on which the principal of the 2021 Notes is payable is September 16, 2021.

 

 5.Rate of Interest; Interest Payment Date; Regular Record Dates. Each 2021 Note shall bear interest from September 16, 2016 at 2.20% per annum until the principal thereof is paid. Such interest shall be payable semi-annually in arrears on March 16 and September 16 of each year, commencing on March 16, 2017, to the persons in whose names the 2021 Notes are registered at the close of business on the immediately preceding March 1 and September 1, respectively. Interest on the 2021 Notes shall accrue from the most recent date to which interest has been paid or, if no interest has been paid, from September 16, 2016. Interest on the 2021 Notes shall be computed on the basis of a 360-day year comprised of twelve 30-day months. In the event that any date on which principal, premium, if any, or interest is payable on the 2021 Notes is not a Business Day, then payment of the principal, premium, if any, or interest payable on such date will be made on the next succeeding day that is a Business Day (and without any interest or other payment in respect of any such delay).

 

 6.Place of Payment. Principal of, premium, if any, and interest on the 2021 Notes shall be payable, and the transfer of the 2021 Notes shall be registrable, at the office or agency of the Issuer to be maintained for such purpose in Minneapolis, Minnesota, except that, at the option of the Issuer, interest may be paid by sending a check to the address of the person entitled thereto as it appears on the 2021 Notes register;provided, however, that while any 2021 Notes are represented by a Registered Global Security, payment of principal of, premium, if any, or interest on the 2021 Notes may be made by wire transfer to the account of the Depositary or its nominee.

 

 7.

Optional Redemption. Prior to August 16, 2021, the 2021 Notes may be redeemed, in whole at any time or in part from time to time, at the option of the Issuer, for cash, at a redemption price equal to the greater of (i) 100% of the principal amount to be redeemed or (ii) an amount, as determined by the Quotation Agent, equal to the sum of the present values of the remaining

 

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 scheduled payments of principal and interest thereon that would be due if the 2021 Notes matured on August 16, 2021 (not including any portion of such payments of interest accrued to the date of redemption), discounted to the date of redemption on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 15 basis points, plus, in each case, accrued and unpaid interest, if any, thereon to, but not including, the date of redemption; provided that the principal amount of any 2021 Note remaining outstanding after a redemption in part shall be $2,000 or a higher integral multiple of $1,000. In addition, on or after August 16, 2021, the Issuer may redeem the 2021 Notes, in whole at any time or in part from time to time, at its option, for cash, at a redemption price equal to 100% of the principal amount of the 2021 Notes, plus accrued and unpaid interest to, but not including, the redemption date. Notwithstanding the foregoing, installments of interest on 2021 Notes that are due and payable on interest payment dates falling on or prior to a redemption date will be payable on the interest payment date to the registered Holders as of the close of business on the relevant record date. Notices will be sent (or on the case of 2021 Notes held in book-entry form, be transmitted electronically) to Holders of the 2021 Notes to be redeemed at least 30 and not more than 60 days prior to the date fixed for redemption, except that redemption notices may be sent more than 60 days prior to a redemption if the notice is issued in connection with a legal covenant defeasance of the 2021 Notes or a satisfaction and discharge of the 2021 Notes pursuant to Section 10.1 of the Indenture. Unless the Issuer defaults in payment of the redemption price, on and after the redemption date, interest will cease to accrue on the 2021 Notes or portions thereof called for redemption. If less than all of the 2021 Notes are to be redeemed, the 2021 Notes to be redeemed will be selected by the Trustee by lot or in accordance with the procedures of the Depositary.

“Comparable Treasury Issue” means the United States Treasury security selected by the Quotation Agent as having a maturity comparable to the remaining term of the 2021 Notes that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of the 2021 Notes.

“Comparable Treasury Price” means, with respect to any redemption date, (i) the average of four Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and lowest of such Reference Treasury Dealer Quotations, or (ii) if the Trustee is provided fewer than four such Reference Treasury Dealer Quotations, the average of all such quotations.

“Quotation Agent” means the Reference Treasury Dealer appointed by the Issuer to act as the Quotation Agent from time to time.

“Reference Treasury Dealer” means (i) Goldman, Sachs & Co., Morgan Stanley & Co. LLC and Wells Fargo Securities, LLC and their respective successors;provided, however, that if any of the foregoing shall cease to be a primary U.S. Government securities dealer in New York City (a “Primary Treasury Dealer”), the Issuer shall substitute therefor another Primary Treasury Dealer; and (ii) any other Primary Treasury Dealer selected by the Issuer.

 

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“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any redemption date, the average, as determined by the Issuer, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m., New York City time, on the third Business Day preceding such redemption date.

“Treasury Rate” means, with respect to any redemption date, the rate per annum equal to the semi-annual equivalent yield to maturity of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price on such redemption date.

 

 8.Change of Control Repurchase Event. If a Change of Control Repurchase Event occurs, unless the Issuer has previously exercised its right to redeem the 2021 Notes in whole as described above, the Issuer will be required to make an offer to each Holder of 2021 Notes to repurchase all or any part (in minimum denominations of $2,000 and integral multiples of $1,000 above that amount) of such Holder’s 2021 Notes at a repurchase price in cash equal to 101% of the aggregate principal amount of 2021 Notes repurchased plus accrued and unpaid interest, if any, on the 2021 Notes repurchased to, but not including, the date of such repurchase. Within 30 days following any Change of Control Repurchase Event or, at the Issuer’s option, prior to any Change of Control, but after the public announcement of an impending Change of Control, the Issuer will send a notice to each Holder, with a copy to the Trustee, describing the transaction or transactions that constitute or may constitute the Change of Control Repurchase Event and offering to repurchase 2021 Notes on the payment date specified in the notice, which date will be no earlier than 30 days and no later than 60 days from the date such notice is sent (the “Change of Control Payment Date”). The notice shall, if sent prior to the date of consummation of the Change of Control, state that the offer to purchase is conditioned on the Change of Control Repurchase Event occurring on or prior to the payment date specified in the notice.

The Issuer will comply with the requirements of Rule 14e-1 under the Exchange Act, and any other securities laws and regulations thereunder, to the extent those laws and regulations are applicable in connection with the repurchase of the 2021 Notes as a result of a Change of Control Repurchase Event. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control Repurchase Event provisions of the 2021 Notes, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control Repurchase Event provisions of the 2021 Notes by virtue of such conflict.

On the Change of Control Payment Date, the Issuer will be required, to the extent lawful, to:

 

 (a)accept for payment all 2021 Notes or portions of 2021 Notes (in minimum denominations of $2,000 and integral multiples of $1,000 above that amount) properly tendered pursuant to the Issuer’s offer;

 

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 (b)deposit with the paying agent, no later than 11:00 a.m., New York City time, an amount equal to the aggregate purchase price in respect of all 2021 Notes or portions of 2021 Notes properly tendered; and

 

 (c)deliver or cause to be delivered to the Trustee for cancellation the 2021 Notes properly accepted, together with an officers’ certificate stating the aggregate principal amount of 2021 Notes being repurchased by the Issuer.

The paying agent will promptly send (or, in the case of 2021 Notes held in book-entry form, transmit electronically) to each Holder of 2021 Notes properly tendered the repurchase price for such 2021 Notes, and the Trustee will promptly authenticate and send (or cause to be transferred by book-entry) to each Holder a new 2021 Note equal in principal amount to any unrepurchased portion of any 2021 Notes surrendered; provided, that each new 2021 Note will be in minimum denominations of $2,000 and integral multiples of $1,000 above that amount.

The Issuer will not be required to make an offer to repurchase the 2021 Notes upon a Change of Control Repurchase Event if a third party makes such an offer in the manner, at the times and otherwise in compliance with the requirements for an offer made by the Issuer and the third party repurchases all 2021 Notes properly tendered and not withdrawn under its offer. In addition, the Issuer will not repurchase any 2021 Notes if there has occurred and is continuing on the Change of Control Payment Date an event of default under the Indenture, other than a default in the payment of the aggregate purchase price upon a Change of Control Repurchase Event.

“Below Investment Grade Rating Event” means the 2021 Notes are rated below an Investment Grade Rating by each of the Rating Agencies on any date from the date of the public notice of an arrangement that could result in a Change of Control until the end of the 60-day period following public notice of the occurrence of the Change of Control (which 60-day period shall be extended so long as the rating of the 2021 Notes is under publicly announced consideration for possible downgrade by any of the Rating Agencies).

“Change of Control” means the occurrence of any of the following: (1) the direct or indirect sale, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the properties or assets of the Issuer and its subsidiaries, taken as a whole, to any “person” (as that term is used in Section 13(d)(3) of the Exchange Act) other than the Issuer or one of its subsidiaries; (2) the consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any “person” (as that term is used in Section 13(d)(3) of the Exchange Act) becomes the beneficial owner, directly or indirectly, of more than 50% of the then outstanding number of shares of the Issuer’s voting stock; (3) the adoption of a plan by the Issuer’s Board of Directors relating to the Issuer’s liquidation or dissolution; or (4) the first day on which a majority of the members of the Issuer’s Board of Directors are not Continuing Directors. Notwithstanding the foregoing, a transaction will not be deemed to result in a Change of Control if (a) the Issuer becomes a wholly-owned subsidiary of a holding company and (b) the holders of the voting stock of such holding company immediately following that transaction are substantially the same as the holders of the Issuer’s voting stock immediately prior to that transaction.

 

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“Change of Control Repurchase Event” means the occurrence of both a Change of Control and a Below Investment Grade Rating Event.

“Continuing Directors” means, as of any date of determination, any member of the Issuer’s Board of Directors who (1) was a member of such Board of Directors on the date of the issuance of the 2021 Notes; or (2) was nominated for election or elected to such Board of Directors with the approval of a majority of the Continuing Directors who were members of such Board of Directors at the time of such nomination or election (either by a specific vote or by approval of the Issuer’s proxy statement in which such member was named as a nominee for election as a director, without objection to such nomination).

“Investment Grade Rating” means a rating equal to or higher than Baa3 (or the equivalent) by Moody’s and BBB- (or the equivalent) by S&P.

“Moody’s” means Moody’s Investors Service, Inc. and its successors.

“Rating Agencies” means (1) each of Moody’s and S&P; and (2) if either of Moody’s or S&P ceases to rate the 2021 Notes or fails to make a rating of the 2021 Notes publicly available for reasons outside of the Issuer’s control, a “nationally recognized statistical rating organization” within the meaning of Section 3(a)(62) under the Exchange Act, selected by the Issuer as a replacement agency for Moody’s or S&P, or both of them, as the case may be.

“S&P” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc., and its successors.

 

 9.Mandatory Redemption. Other than with respect to a Change of Control Repurchase Event as described above, the 2021 Notes are not mandatorily redeemable. The 2021 Notes are not entitled to the benefit of a sinking fund or any analogous provisions.

 

 10.Denominations. The 2021 Notes shall be issued initially in minimum denominations of $2,000 and shall be issued in integral multiples of $1,000 in excess thereof.

 

 11.Amount Payable Upon Acceleration. The principal of the 2021 Notes shall be payable upon declaration of acceleration pursuant to Section 5.1 of the Indenture.

 

 12.Payment Currency. Principal and interest on the 2021 Notes shall be payable in Dollars.

 

 13.Payment Currency – Election. The principal of and interest on the 2021 Notes shall not be payable in a currency other than Dollars.

 

 14.Payment Currency – Index. The principal of and interest on the 2021 Notes shall not be determined with reference to an index based on a coin or currency.

 

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 15.Registered Securities. The 2021 Notes shall be issued only as Registered Securities. The 2021 Notes shall be issuable as Registered Global Securities.

 

 16.Additional Amounts. The Issuer shall not pay additional amounts on the 2021 Notes held by a Person that is not a U.S. Person in respect of taxes or similar charges withheld or deducted.

 

 17.Definitive Certificates. Section 2.8 of the Indenture will govern the transferability of the 2021 Notes in definitive form.

 

 18.Registrar; Paying Agent; Depositary. The Trustee shall initially serve as the registrar and the paying agent for the 2021 Notes. The Depository Trust Company shall initially serve as the Depositary for the Registered Global Security representing the 2021 Notes.

 

 19.Events of Default; Covenants. Other than as provided for in the Indenture, there shall be no deletions from or modifications or additions to the Events of Default set forth in Section 5.1 of the Indenture with respect to the 2021 Notes. There shall be the following additions to the covenants of the Issuer set forth in Article III of the Indenture with respect to the 2021 Notes:

Limitation on Liens. The Issuer covenants that, so long as any of the 2021 Notes remain outstanding, it shall not, nor shall it permit any of its domestic wholly-owned subsidiaries to, create or assume any mortgage, pledge, security interest, lien, charge or encumbrance of any kind (each, a “Lien”) on any Principal Property, whether now owned or hereafter acquired, in order to secure any Indebtedness, without effectively providing that the 2021 Notes shall be secured by a Lien ranking equal to and ratably with (or, at the Issuer’s option, senior to) such secured Indebtedness until such time as such Indebtedness is no longer secured by such Lien, except that the foregoing restriction shall not apply to:

 

 (a)Liens existing on the issue date of the 2021 Notes;

 

 (b)Liens created or incurred after the closing date of the offering of the 2021 Notes created in favor of the Holders of the 2021 Notes;

 

 (c)Liens in favor of the Issuer or one of its subsidiaries;

 

 (d)

(i) Liens given to secure (or to secure Indebtedness incurred or guaranteed by the Issuer or any of its domestic wholly-owned subsidiaries for the purpose of financing) the payment of all or any portion of the purchase price for the acquisition (including acquisition through merger or consolidation or the acquisition of a Person directly or indirectly owning such property) of any replacement for the Principal Property, including capital lease or purchase money transactions in connection with any such acquisition, or all or any portion of the cost of refurbishment, improvement, expansion, renovation, development or construction of any Principal Property; provided that with respect to this clause (i), the Liens shall be given prior to, at the time of or within 12 months after such acquisition, or completion of such refurbishment, improvement, expansion, renovation, development or construction, or the full operation of such Principal Property, whichever is latest, and shall attach solely to such Principal Property (including any refurbishments, improvements, expansions, renovations, development or construction thereof or then or thereafter placed thereon) and any proceeds thereof; and (ii) Liens existing on all or any

 

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 portion of any replacement for the Principal Property at the time of acquisition thereof (including acquisition through merger or consolidation or the acquisition of a Person then directly or indirectly owning such property) whether or not such existing Liens were given to secure (or to secure Indebtedness incurred or guaranteed by the Issuer or any of its domestic wholly-owned subsidiaries for the purpose of financing) the payment of the purchase price of such property;

 

 (e)Liens on any Principal Property in favor of the United States of America or any state thereof, or in favor of any other country, or any political subdivision, department, agency or instrumentality thereof to secure progress or other payments pursuant to any contract or statute or to secure Indebtedness incurred or guaranteed for the purpose of financing all or any portion of the cost of acquiring, refurbishing, improving, expanding, renovating, developing or constructing such Principal Property, including Liens incurred in connection with pollution control, industrial revenue or similar financing;

 

 (f)pledges, Liens or deposits under worker’s compensation laws or similar legislation and Liens or judgments thereunder which are not currently dischargeable, or in connection with bids, tenders, contracts or leases (in each case, other than for the payment of money) to which the Issuer or any of its domestic wholly-owned subsidiaries is a party, or to secure public or statutory obligations of the Issuer or any of its domestic wholly-owned subsidiaries, or in connection with obtaining or maintaining self-insurance or to obtain the benefits of any law, regulation or arrangement pertaining to unemployment insurance, old age pensions, social security or similar matters, or to secure surety, appeal or customs bonds to which the Issuer or any of its domestic wholly-owned subsidiaries is a party, and other similar pledges, Liens or deposits made or incurred in the ordinary course of business;

 

 (g)Liens created by or resulting from any litigation or other proceeding which is being contested in good faith by appropriate proceedings, including Liens arising out of judgments or awards against the Issuer or any of its domestic wholly-owned subsidiaries with respect to which the Issuer or such domestic wholly-owned subsidiary is in good faith prosecuting an appeal or proceedings for review or for which the time to make an appeal has not yet expired; or final unappealable judgment Liens which are satisfied within 15 days of the date of judgment; or Liens incurred by the Issuer or any of its domestic wholly-owned subsidiaries for the purpose of obtaining a stay or discharge in the course of any litigation or other proceeding to which the Issuer or such domestic wholly-owned subsidiary is a party;

 

 (h)Liens for certain taxes or assessments, landlord’s Liens and Liens and charges, in each case (i) not yet due or payable or subject to penalties for non-payment or which the Issuer is contesting in good faith by appropriate proceedings and (ii) incidental to the conduct of the business or the ownership of the Issuer’s assets or those of one of its domestic wholly-owned subsidiaries;

 

 (i)Liens incurred in connection with an acquisition of assets or a project financed on a non-recourse basis; and

 

 (j)

Liens which are incurred to extend, renew, substitute, refinance, refund or replace (and successive extensions, renewals, substitutions, refinancings, refundings or replacements) any Lien, or any Indebtedness which is secured by any Lien (including any premium required to be paid and costs and expenses incurred in connection with such extensions,

 

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 renewals, substitutions, refinancings, refundings or replacements), permitted to be created or incurred under the Indenture, including, without limitation, Liens given to secure any Indebtedness incurred to extend, renew, substitute, refinance, refund or replace (and successive extensions, renewals, substitutions, refinancings, refundings or replacements) the Operating Lease Arrangement (including any premium required to be paid and costs and expenses incurred in connection with such extensions, renewals, substitutions, refinancings, refundings or replacements).

Notwithstanding the above, the Issuer or any of its domestic wholly-owned subsidiaries may, without equally and ratably securing the 2021 Notes, create or incur Liens which would otherwise be subject to the restrictions set forth in the preceding paragraph, if after giving effect thereto, Aggregate Debt does not exceed 15% of the Issuer’s Consolidated Net Tangible Assets on a consolidated basis calculated as of the date of the creation or incurrence of the Lien.

Limitation on Sale and Leaseback Transactions. The Issuer covenants that, so long as any of the 2021 Notes remain outstanding, it shall not, nor shall it permit any of its domestic wholly-owned subsidiaries to, enter into any arrangement with any Person providing for the leasing by the Issuer or any of its domestic wholly-owned subsidiaries of any Principal Property, whether now owned or hereafter acquired, that has been or is to be sold or transferred by the Issuer or such of its domestic wholly-owned subsidiaries to such Person with the intention of taking back a lease of such Principal Property, a “sale and leaseback transaction,” unless:

 

 (a)the Issuer or such domestic wholly-owned subsidiary would be entitled, at the effective date of the sale or transfer, to incur Indebtedness secured by a Lien on the Principal Property to be leased in an amount equal to Attributable Debt with respect to the sale and leaseback transaction, without equally and ratably securing the 2021 Notes pursuant to the first paragraph of “—Limitation on Liens” above;

 

 (b)the net proceeds of the sale or transfer of the Principal Property to be leased are applied within 365 days of the effective date of the sale and leaseback transaction to the purchase, construction, development, expansion, improvement or acquisition of another Principal Property or to the repayment of any series of the Issuer’s notes or any of the Issuer’s other Indebtedness that ranks equally with the 2021 Notes or any Indebtedness of one or more of the Issuer’s domestic wholly-owned subsidiaries;

 

 (c)such sale and leaseback transaction was entered into prior to the closing date of the offering of the 2021 Notes or any extension, renewal, refinancing, replacement, amendment or modification of such transaction so long as the affected Principal Property is substantially the same as or similar in nature to the Principal Property subject to the sale and leaseback transaction extended, renewed, refinanced, replaced, amended or modified;

 

 (d)any extension, renewal, refinancing, replacement, amendment or modification of the Operating Lease Arrangement so long as the affected Principal Property is substantially the same as or similar in nature to the Principal Property subject to the Operating Lease Arrangement;

 

 (e)such sale and leaseback transaction involves a lease for not more than three years (or which may be terminated by the Issuer or one of its domestic wholly-owned subsidiaries within a period of not more than three years); or

 

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 (f)such sale and leaseback transaction with respect to any Principal Property was between only the Issuer and one of its subsidiaries or only between the Issuer’s subsidiaries.

Notwithstanding the foregoing, the Issuer or any of its domestic wholly-owned subsidiaries may enter into a sale and leaseback transaction, without complying with the requirements of the preceding paragraph, if, after giving effect thereto, Aggregate Debt does not exceed 15% of the Issuer’s Consolidated Net Tangible Assets on a consolidated basis calculated as of the date of the sale and leaseback transaction.

“Aggregate Debt” means the sum of the following, as of the date of determination, (1) the aggregate principal amount of the Issuer’s and its domestic wholly-owned subsidiaries’ Indebtedness incurred after the closing date of the offering of the 2021 Notes and secured by Liens not permitted by the first paragraph under “—Limitation on Liens” above and (2) the Issuer’s and its domestic wholly-owned subsidiaries’ Attributable Debt in respect of sale and leaseback transactions entered into after the closing date of the offering of the 2021 Notes pursuant to the second paragraph of “—Limitation on Sale and Leaseback Transactions” above.

“Attributable Debt” means, in connection with a sale and leaseback transaction, the lesser of: (1) the fair market value of the assets subject to such sale and leaseback transaction, as determined in good faith by the Issuer’s Board of Directors; and (2) the present value of the obligations of the lessee for net rental payments during the term of the related lease discounted at the rate of interest set forth or implicit in the terms of such lease or, if not practicable to determine such rate, the weighted average interest rate per annum borne by the debt securities of each series outstanding pursuant to the Indenture and subject to limitations on sale and leaseback transaction covenants, compounded semi-annually in either case as determined by the Issuer’s principal accounting or financial officer.

“Consolidated Net Tangible Assets” means, as of any date of determination, the aggregate amount of assets after deducting therefrom: (1) all current liabilities, except for notes and loans payable, current maturities of long-term debt, current portion of convertible securities, current portion of deferred revenue and obligations under capital leases; and (2) intangible assets to the extent included in the aggregate amount of assets, net of applicable reserves and any amortized amounts, all as reflected on the Issuer’s most recent consolidated balance sheet prepared in accordance with GAAP.

“GAAP” means accounting principles generally accepted in the United States of America, which are in effect as of the date of application thereof.

“Indebtedness” of any specified Person means, without duplication, any indebtedness, whether or not contingent, in respect of borrowed money or that is evidenced by bonds, notes, debentures or similar instruments or letters of credit (or reimbursement agreements with respect thereto) or representing the balance deferred and unpaid of the purchase price of any property or asset, whether real, personal or mixed, or tangible or intangible, including shares of capital stock (including pursuant to capital leases), except any such balance that constitutes an accrued expense or trade payable, if and to the extent any of the foregoing indebtedness would appear as a liability upon an unconsolidated balance sheet of

 

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such Person (but does not include contingent liabilities which appear only in a footnote to a balance sheet). In addition, the term “Indebtedness” includes all of the following items, whether or not any such items would appear as a liability on a balance sheet of the specified Person in accordance with GAAP:

 

 (a)all Indebtedness of others secured by a Lien on any asset of the specified Person (whether or not such Indebtedness is assumed by the specified Person); and

 

 (b)to the extent not otherwise included, any guarantee by the specified Person of Indebtedness of any other Person.

“Operating Lease Arrangement” means the operating lease financing arrangement entered into by the Issuer and certain of its subsidiaries with a syndicate of banks to finance development and construction of the Issuer’s new headquarters building in Santa Clara, California.

“Person” means any individual, corporation, partnership, joint venture, association, limited liability company, joint- stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.

“Principal Property” means any single parcel of real property or any permanent improvement thereon (1) owned by the Issuer or any of its domestic wholly-owned subsidiaries located in the United States, including the Issuer’s principal corporate office, any manufacturing facility or plant or any portion thereof and (2) having a book value, as of the date of determination, in excess of 3% of the Issuer’s most recently calculated Consolidated Net Tangible Assets. Principal Property does not include any property that the Issuer’s Board of Directors has determined not to be of material importance to the business conducted by the Issuer and its subsidiaries, taken as a whole.

 

 20.Conversion and Exchange. The 2021 Notes shall not be convertible into or exchangeable for any other security.

 

 21.Additional Issues. The Issuer may, without notice to or the consent of the Holders of the 2021 Notes, create and issue additional notes with the same terms as the 2021 Notes in all respects, except for the issue date, the public offering price and, under certain circumstances, the first interest payment date. Such additional notes shall be consolidated and form a single series with the 2021 Notes; provided that if such additional notes are not fungible with the 2021 Notes for U.S. federal income tax purposes, such additional notes will have a separate CUSIP number. No additional 2021 Notes may be issued if an event of default has occurred and is continuing with respect to such series of 2021 Notes.

 

 22.Other Terms. The 2021 Notes shall have the other terms and shall be substantially in the form set forth in the form of the 2021 Notes attached hereto as Annex A-1. In case of any conflict between this Annex A and the form of the 2021 Notes, the form of the 2021 Notes shall control.

 

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Capitalized terms used but not otherwise defined in this Annex A shall have the respective meanings ascribed to such terms in the Indenture.

 

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ANNEX A-1

[FORM OF 2021 Note]

 

REGISTERED  REGISTERED

THIS NOTE IS A REGISTERED GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY. UNLESS AND UNTIL THIS NOTE IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE REGISTERED FORM, THIS NOTES MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO THE NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.

 

No. R – A1  CUSIP NO. 67066G AD6

ISIN NO. US67066GAD60

NVIDIA CORPORATION

2.20% Notes due 2021

NVIDIA Corporation, a Delaware corporation (the “Issuer,” which term includes any successor corporation under the Indenture hereinafter referred to), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of             Dollars ($            ) on September 16, 2021 and to pay interest on said principal sum from September 16, 2016, or from the most recent interest payment date to which interest has been paid or duly provided for, semi-annually in arrears on March 16 and September 16 (each such date, an “Interest Payment Date”) of each year commencing on March 16, 2017, at the rate of 2.20% per annum until the principal hereof shall have become due and payable.

The amount of interest payable on any Interest Payment Date shall be computed on the basis of a 360-day year comprised of twelve 30-day months. In the event that any date on which the principal or interest payable on this Note is not a Business Day, then payment of principal or interest payable on such date will be made on the next succeeding day that is a Business Day (and without any interest or other payment in respect of such delay). The interest installment so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in the Indenture (referred to on the reverse hereof) be paid to the person in whose name this Note is registered at the close of business on the record date for such interest installment, which shall be the close of business on the immediately preceding March 1 and September 1 prior to such Interest Payment Date, as applicable. Any such interest installment not punctually paid or duly provided for shall forthwith cease to be payable to the registered Holders on such record date and may be paid to the person in whose name this Note is registered at the close of business on a subsequent record date (which shall be not less than five Business Days prior to the date of payment of such defaulted interest), notice whereof shall be sent by or on behalf of the Issuer to the registered Holders of Notes not less than 15 days preceding such subsequent record date, all as more fully provided in the Indenture. The principal of and the interest on this Note shall be payable at the office or agency of the Issuer maintained for that purpose in any coin or currency of the United States of America that at the time of payment is legal tender for payment of public and private debts;provided,however, that payment of interest may be made at the option of the Issuer by check sent to the person entitled thereto at such address as shall appear in the registry books of the Issuer;provided,further, that for so long as this Note is represented by a Registered Global Security, payment of principal, premium, if any, or interest on this Note may be made by wire transfer to the account of the Depositary or its nominee.

 

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Unless the certificate of authentication hereon has been executed by or on behalf of the Trustee (as defined below) under the Indenture (as defined below), by the manual signature of one of its authorized signatories, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.

Capitalized terms used in this Note which are defined in the Indenture shall have the respective meanings assigned to them in the Indenture.

The provisions of this Note are continued on the reverse side hereof and such continued provisions shall for all purposes have the same effect as though fully set forth at this place.

 

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IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly executed, manually or in facsimile.

 

NVIDIA CORPORATION

By:

 

 

 Name:
 Title:

CERTIFICATE OF AUTHENTICATION

This is one of the Securities referred to in the

within-mentioned Indenture.

WELLS FARGO BANK, NATIONAL ASSOCIATION

    as Trustee

 

By:

 

 

 

Authorized Signatory

Dated:

 

 

 

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[FORM OF REVERSE SIDE OF NOTE]

This Note is one of a duly authorized series of securities (the “Securities”) of the Issuer designated as its 2.20% Notes due 2021 (the “Notes”). The Securities are all issued or to be issued under and pursuant to an Indenture, dated as of September 16, 2016 (the “Indenture”), duly executed and delivered between the Issuer and Wells Fargo Bank, National Association as trustee with respect to the Notes (the “Trustee”), to which the Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights thereunder of the Issuer, the Trustee and the Holders of the Securities and the terms upon which the Notes are to be authenticated and delivered. The terms of individual series of Securities may vary with respect to interest rate or interest rate formulas, issue dates, maturity, redemption, repayment, currency of payment and otherwise.

The Notes are issuable only as Registered Securities in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof. As provided in the Indenture and subject to certain limitations therein set forth, the Notes are exchangeable for a like aggregate principal amount of Notes as requested by the Holder surrendering the same.

Except as set forth below, this Note is not redeemable. This Note is not entitled to the benefit of a sinking fund or any analogous provision.

Prior to August 16, 2021, the Notes may be redeemed, in whole at any time or in part from time to time, at the option of the Issuer, for cash, at a redemption price equal to the greater of (i) 100% of the principal amount to be redeemed or (ii) an amount, as determined by the Quotation Agent, equal to the sum of the present values of the remaining scheduled payments of principal and interest thereon that would be due if the Notes matured on August 16, 2021 (not including any portion of such payments of interest accrued to the date of redemption), discounted to the date of redemption on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 15 basis points, plus, in each case, accrued and unpaid interest, if any, thereon to, but not including, the date of redemption; provided that the principal amount of any Note remaining outstanding after a redemption in part shall be $2,000 or a higher integral multiple of $1,000. In addition, on or after August 16, 2021, the Issuer may redeem the Notes, in whole at any time or in part from time to time, at its option, for cash, at a redemption price equal to 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, the redemption date. Notwithstanding the foregoing, installments of interest on the Notes that are due and payable on interest payment dates falling on or prior to a redemption date will be payable on the interest payment date to the registered Holders as of the close of business on the relevant record date. Notices will be sent (or in the case of Notes held in book-entry form, be transmitted electronically) to Holders of the Notes to be redeemed at least 30 and not more than 60 days prior to the date fixed for redemption, except that redemption notices may be sent more than 60 days prior to a redemption if the notice is issued in connection with a legal covenant defeasance of the Notes or a satisfaction and or discharge of the Notes pursuant to Section 10.1 of the Indenture. Unless the Issuer defaults in payment of the redemption price, on and after the redemption date, interest will cease to accrue on the Notes or portions thereof called for redemption. If less than all of the Notes are to be redeemed, the Notes to be redeemed will be selected by the Trustee by lot or in accordance with the procedures of the Depositary.

“Comparable Treasury Issue” means the United States Treasury security selected by the Quotation Agent as having a maturity comparable to the remaining term of the Notes that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of the Notes.

 

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“Comparable Treasury Price” means, with respect to any redemption date, (i) the average of four Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and lowest of such Reference Treasury Dealer Quotations, or (ii) if the Trustee is provided fewer than four such Reference Treasury Dealer Quotations, the average of all such quotations.

“Quotation Agent” means the Reference Treasury Dealer appointed by the Issuer to act as the Quotation Agent from time to time.

“Reference Treasury Dealer” means (i) Goldman, Sachs & Co., Morgan Stanley & Co. LLC and Wells Fargo Securities, LLC and their respective successors; provided, however, that if any of the foregoing shall cease to be a primary U.S. Government securities dealer in New York City (a “Primary Treasury Dealer”), the Issuer shall substitute therefor another Primary Treasury Dealer; and (ii) any other Primary Treasury Dealer selected by the Issuer.

“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any redemption date, the average, as determined by the Issuer, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m., New York City time, on the third Business Day preceding such redemption date.

“Treasury Rate” means, with respect to any redemption date, the rate per annum equal to the semi-annual equivalent yield to maturity of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price on such redemption date.

If a Change of Control Repurchase Event occurs, unless the Issuer has previously exercised its right to redeem the Notes in whole as described above, the Issuer will be required to make an offer to each Holder of Notes to repurchase all or any part (in minimum denominations of $2,000 and integral multiples of $1,000 above that amount) of such Holder’s Notes at a repurchase price in cash equal to 101% of the aggregate principal amount of Notes repurchased plus accrued and unpaid interest, if any, on the Notes repurchased to, but not including, the date of such repurchase. Within 30 days following any Change of Control Repurchase Event or, at the Issuer’s option, prior to any Change of Control, but after the public announcement of an impending Change of Control, the Issuer will send a notice to each Holder, with a copy to the Trustee, describing the transaction or transactions that constitute or may constitute the Change of Control Repurchase Event and offering to repurchase Notes on the payment date specified in the notice, which date will be no earlier than 30 days and no later than 60 days from the date such notice is sent (the “Change of Control Payment Date”). The notice shall, if sent prior to the date of consummation of the Change of Control, state that the offer to purchase is conditioned on the Change of Control Repurchase Event occurring on or prior to the payment date specified in the notice.

The Issuer will comply with the requirements of Rule 14e-1 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and any other securities laws and regulations thereunder, to the extent those laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control Repurchase Event. To the extent that the

 

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provisions of any securities laws or regulations conflict with the Change of Control Repurchase Event provisions of the Notes, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control Repurchase Event provisions of the Notes by virtue of such conflict.

On the Change of Control Payment Date, the Issuer will be required, to the extent lawful, to:

 

 (a)accept for payment all Notes or portions of Notes (in minimum denominations of $2,000 and integral multiples of $1,000 above that amount) properly tendered pursuant to the Issuer’s offer;

 

 (b)deposit with the paying agent, no later than 11:00 a.m., New York City time, an amount equal to the aggregate purchase price in respect of all Notes or portions of Notes properly tendered; and

 

 (c)deliver or cause to be delivered to the Trustee for cancellation the Notes properly accepted, together with an officers’ certificate stating the aggregate principal amount of Notes being repurchased by the Issuer.

The paying agent will promptly send (or, in the case of Notes held in book-entry form, transmit electronically) to each Holder of Notes properly tendered the repurchase price for such Notes, and the Trustee will promptly authenticate and send (or cause to be transferred by book-entry) to each Holder a new Note equal in principal amount to any unrepurchased portion of any Notes surrendered; provided, that each new Note will be in minimum denominations of $2,000 and integral multiples of $1,000 above that amount.

The Issuer will not be required to make an offer to repurchase the Notes upon a Change of Control Repurchase Event if a third party makes such an offer in the manner, at the times and otherwise in compliance with the requirements for an offer made by the Issuer and the third party repurchases all Notes properly tendered and not withdrawn under its offer. In addition, the Issuer will not repurchase any Notes if there has occurred and is continuing on the Change of Control Payment Date an event of default under the Indenture, other than a default in the payment of the aggregate purchase price upon a Change of Control Repurchase Event.

“Below Investment Grade Rating Event” means the Notes are rated below an Investment Grade Rating by each of the Rating Agencies on any date from the date of the public notice of an arrangement that could result in a Change of Control until the end of the 60-day period following public notice of the occurrence of the Change of Control (which 60-day period shall be extended so long as the rating of the Notes is under publicly announced consideration for possible downgrade by any of the Rating Agencies).

“Change of Control” means the occurrence of any of the following: (1) the direct or indirect sale, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the properties or assets of the Issuer and its subsidiaries, taken as a whole, to any “person” (as that term is used in Section 13(d)(3) of the Exchange Act) other than the Issuer or one of its subsidiaries; (2) the consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any

 

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“person” (as that term is used in Section 13(d)(3) of the Exchange Act) becomes the beneficial owner, directly or indirectly, of more than 50% of the then outstanding number of shares of the Issuer’s voting stock; (3) the adoption of a plan by the Issuer’s Board of Directors relating to the Issuer’s liquidation or dissolution; or (4) the first day on which a majority of the members of the Issuer’s Board of Directors are not Continuing Directors. Notwithstanding the foregoing, a transaction will not be deemed to result in a Change of Control if (a) the Issuer becomes a wholly-owned subsidiary of a holding company and (b) the holders of the voting stock of such holding company immediately following that transaction are substantially the same as the holders of the Issuer’s voting stock immediately prior to that transaction.

“Change of Control Repurchase Event” means the occurrence of both a Change of Control and a Below Investment Grade Rating Event.

“Continuing Directors” means, as of any date of determination, any member of the Issuer’s Board of Directors who (1) was a member of such Board of Directors on the date of the issuance of the Notes; or (2) was nominated for election or elected to such Board of Directors with the approval of a majority of the Continuing Directors who were members of such Board of Directors at the time of such nomination or election (either by a specific vote or by approval of the Issuer’s proxy statement in which such member was named as a nominee for election as a director, without objection to such nomination).

“Investment Grade Rating” means a rating equal to or higher than Baa3 (or the equivalent) by Moody’s and BBB- (or the equivalent) by S&P.

“Moody’s” means Moody’s Investors Service, Inc. and its successors.

“Rating Agencies” means (1) each of Moody’s and S&P; and (2) if either of Moody’s or S&P ceases to rate the 2021 Notes or fails to make a rating of the 2021 Notes publicly available for reasons outside of the Issuer’s control, a “nationally recognized statistical rating organization” within the meaning of Section 3(a)(62) under the Exchange Act, selected by the Issuer as a replacement agency for Moody’s or S&P, or both of them, as the case may be.

“S&P” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc., and its successors.

If an Event of Default with respect to the Notes shall occur and be continuing, the principal of all the Notes may be declared due and payable in the manner and with the effect provided in the Indenture.

The Indenture contains provisions permitting the Issuer and the Trustee, with the consent of the Holders of not less than a majority in aggregate principal amount of the Senior Securities or Subordinated Securities, as the case may be, of all series issued under such Indenture then outstanding and affected (each voting as one class), to add any provisions to, or change in any manner, eliminate or waive any of the provisions of, such Indenture or modify in any manner the rights of the Holders of the Securities or Coupons so affected;provided that the Issuer and the Trustee, may not, without the consent of the Holder of each Outstanding Security affected thereby, (i) extend the final maturity of the principal of any Security or reduce the principal amount thereof or premium thereon, if any, or reduce the rate or extend the time of payment of interest thereon, or reduce any

 

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amount payable on redemption thereof or change the currency in which the principal thereof (other than as otherwise may be provided with respect to such series), premium, if any, or interest thereon is payable or reduce the amount of the principal of any Original Issue Discount Security that is payable upon acceleration or provable in bankruptcy, or in the case of Subordinated Securities of any series, modify any of the subordination provisions or the definition of “Senior Indebtedness” relating to such series in a manner adverse to the Holders of such Subordinated Securities, or alter certain provisions of the Indenture relating to Securities not denominated in Dollars or the Judgment Currency of such Securities or impair or affect the right of any Securityholder to institute suit for the enforcement of any payment thereof when due or, if the Securities provide therefor, any right of repayment at the option of the Securityholder or (ii) reduce the aforesaid percentage in principal amount of Securities of any series issued under the Indenture, the consent of the Holders of which is required for any such modification. It is also provided in the Indenture that, with respect to certain defaults or Events of Default regarding the Securities of any series, the Holders of a majority in aggregate principal amount Outstanding of the Securities of each such series, each such series voting as a separate class (or, of all Securities, as the case may be voting as a single class) may under certain circumstances waive all defaults with respect to each such series (or with respect to all the Securities, as the case may be) and rescind and annul a declaration of default and its consequences, but no such waiver or rescission and annulment shall extend to or affect any subsequent default or shall impair any right consequent thereto.

No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Issuer, which is absolute and unconditional, to pay the principal of and interest on this Note at the time, place and rate, and in the coin or currency, herein prescribed.

As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Note may be registered on the registry books of the Issuer, upon surrender of this Note for registration of transfer at the office or agency of the Issuer maintained by the Issuer for such purpose in Minneapolis, Minnesota, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Issuer and the Trustee duly executed by, the Holder hereof or by its attorney duly authorized in writing, and thereupon one or more new Notes of authorized denominations and for the same aggregate principal amount will be issued to the designated transferee or transferees.

No service charge shall be made for any such registration of transfer or exchange, but the Issuer may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection therewith.

Prior to due presentment of this Note for registration of transfer, the Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the person in whose name this Note is registered as the owner hereof for all purposes, whether or not this Note be overdue, and neither the Issuer, the Trustee nor any such agent shall be affected by notice to the contrary.

THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING, WITHOUT LIMITATION, SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.

 

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[FORM OF SCHEDULE FOR ENDORSEMENTS ON REGISTERED

GLOBAL SECURITIES TO REFLECT CHANGES IN PRINCIPAL AMOUNT]

Schedule A

Changes to Principal Amount of Registered Global Securities

 

Date

  

Principal Amount

of Notes

by which this Registered Global
Security is to be

Reduced or Increased,

and Reason for

Reduction or Increase

  

Remaining Principal

Amount of this

Registered

Global Security

  

Notation Made By

      

 

  

 

  

 

  

 

      

 

  

 

  

 

  

 

      

 

  

 

  

 

  

 

      

 

  

 

  

 

  

 

      

 

  

 

  

 

  

 

      

 

  

 

  

 

  

 

      

 

  

 

  

 

  

 

      

 

  

 

  

 

  

 

      

 

  

 

  

 

  

 

      

 

  

 

  

 

  

 

      

 

  

 

  

 

  

 

      

 

  

 

  

 

  

 

 

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ANNEX B

Pursuant to Section 2.3 of the Indenture, dated as of September 16, 2016 (the “Indenture”), between NVIDIA Corporation, a Delaware corporation (the “Issuer”), and Wells Fargo Bank, National Association, as trustee (the “Trustee”), the terms of a series of securities to be issued pursuant to the Indenture are as follows:

 

 1.Designation. The designation of the securities is “3.20% Notes due 2026” (the “2026 Notes”).

 

 2.Initial Aggregate Principal Amount. The 2026 Notes shall be limited in initial aggregate principal amount to $1,000,000,000 (except for 2026 Notes authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other 2026 Notes pursuant to Section 2.8, 2.9, 2.11, 8.5 or 12.3 of the Indenture).

 

 3.Currency Denomination. The 2026 Notes shall be denominated in Dollars.

 

 4.Maturity. The date on which the principal of the 2026 Notes is payable is September 16, 2026.

 

 5.Rate of Interest; Interest Payment Date; Regular Record Dates. Each 2026 Note shall bear interest from September 16, 2016 at 3.20% per annum until the principal thereof is paid. Such interest shall be payable semi-annually in arrears on March 16 and September 16 of each year, commencing on March 16, 2017, to the persons in whose names the 2026 Notes are registered at the close of business on the immediately preceding March 1 and September 1, respectively. Interest on the 2026 Notes shall accrue from the most recent date to which interest has been paid or, if no interest has been paid, from September 16, 2016. Interest on the 2026 Notes shall be computed on the basis of a 360-day year comprised of twelve 30-day months. In the event that any date on which principal, premium, if any, or interest is payable on the 2026 Notes is not a Business Day, then payment of the principal, premium, if any, or interest payable on such date will be made on the next succeeding day that is a Business Day (and without any interest or other payment in respect of any such delay).

 

 6.Place of Payment. Principal of, premium, if any, and interest on the 2026 Notes shall be payable, and the transfer of the 2026 Notes shall be registrable, at the office or agency of the Issuer to be maintained for such purpose in Minneapolis, Minnesota, except that, at the option of the Issuer, interest may be paid by sending a check to the address of the person entitled thereto as it appears on the 2026 Notes register;provided, however, that while any 2026 Notes are represented by a Registered Global Security, payment of principal of, premium, if any, or interest on the 2026 Notes may be made by wire transfer to the account of the Depositary or its nominee.

 

 7.

Optional Redemption. Prior to June 16, 2026, the 2026 Notes may be redeemed, in whole at any time or in part from time to time, at the option of the Issuer, for cash, at a redemption price equal to the greater of (i) 100% of the principal amount to be redeemed or (ii) an amount, as determined by the Quotation Agent, equal to the sum of the present values of the remaining scheduled payments of

 

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 principal and interest thereon that would be due if the 2026 Notes matured on June 16, 2026 (not including any portion of such payments of interest accrued to the date of redemption), discounted to the date of redemption on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 25 basis points, plus, in each case, accrued and unpaid interest, if any, thereon to, but not including, the date of redemption; provided that the principal amount of any 2026 Note remaining outstanding after a redemption in part shall be $2,000 or a higher integral multiple of $1,000. In addition, on or after June 16, 2026, the Issuer may redeem the 2026 Notes, in whole at any time or in part from time to time, at its option, for cash, at a redemption price equal to 100% of the principal amount of the 2026 Notes, plus accrued and unpaid interest to, but not including, the redemption date. Notwithstanding the foregoing, installments of interest on 2026 Notes that are due and payable on interest payment dates falling on or prior to a redemption date will be payable on the interest payment date to the registered Holders as of the close of business on the relevant record date. Notices will be sent (or on the case of 2026 Notes held in book-entry form, be transmitted electronically) to Holders of the 2026 Notes to be redeemed at least 30 and not more than 60 days prior to the date fixed for redemption, except that redemption notices may be sent more than 60 days prior to a redemption if the notice is issued in connection with a legal covenant defeasance of the 2026 Notes or a satisfaction and or discharge of the 2026 Notes pursuant to Section 10.1 of the Indenture. Unless the Issuer defaults in payment of the redemption price, on and after the redemption date, interest will cease to accrue on the 2026 Notes or portions thereof called for redemption. If less than all of the 2026 Notes are to be redeemed, the 2026 Notes to be redeemed will be selected by the Trustee by lot or in accordance with the procedures of the Depositary.

“Comparable Treasury Issue” means the United States Treasury security selected by the Quotation Agent as having a maturity comparable to the remaining term of the 2026 Notes that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of the 2026 Notes.

“Comparable Treasury Price” means, with respect to any redemption date, (i) the average of four Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and lowest of such Reference Treasury Dealer Quotations, or (ii) if the Trustee is provided fewer than four such Reference Treasury Dealer Quotations, the average of all such quotations.

“Quotation Agent” means the Reference Treasury Dealer appointed by the Issuer to act as the Quotation Agent from time to time.

“Reference Treasury Dealer” means (i) Goldman, Sachs & Co., Morgan Stanley & Co. LLC and Wells Fargo Securities, LLC and their respective successors; provided, however, that if any of the foregoing shall cease to be a primary U.S. Government securities dealer in New York City (a “Primary Treasury Dealer”), the Issuer shall substitute therefor another Primary Treasury Dealer; and (ii) any other Primary Treasury Dealer selected by the Issuer.

 

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“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any redemption date, the average, as determined by the Issuer, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m., New York City time, on the third Business Day preceding such redemption date.

“Treasury Rate” means, with respect to any redemption date, the rate per annum equal to the semi-annual equivalent yield to maturity of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price on such redemption date.

 

 8.Change of Control Repurchase Event. If a Change of Control Repurchase Event occurs, unless the Issuer has previously exercised its right to redeem the 2026 Notes in whole as described above, the Issuer will be required to make an offer to each Holder of 2026 Notes to repurchase all or any part (in minimum denominations of $2,000 and integral multiples of $1,000 above that amount) of such Holder’s 2026 Notes at a repurchase price in cash equal to 101% of the aggregate principal amount of 2026 Notes repurchased plus accrued and unpaid interest, if any, on the 2026 Notes repurchased to, but not including, the date of such repurchase. Within 30 days following any Change of Control Repurchase Event or, at the Issuer’s option, prior to any Change of Control, but after the public announcement of an impending Change of Control, the Issuer will send a notice to each Holder, with a copy to the Trustee, describing the transaction or transactions that constitute or may constitute the Change of Control Repurchase Event and offering to repurchase 2026 Notes on the payment date specified in the notice, which date will be no earlier than 30 days and no later than 60 days from the date such notice is sent (the “Change of Control Payment Date”). The notice shall, if sent prior to the date of consummation of the Change of Control, state that the offer to purchase is conditioned on the Change of Control Repurchase Event occurring on or prior to the payment date specified in the notice.

The Issuer will comply with the requirements of Rule 14e-1 under the Exchange Act, and any other securities laws and regulations thereunder, to the extent those laws and regulations are applicable in connection with the repurchase of the 2026 Notes as a result of a Change of Control Repurchase Event. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control Repurchase Event provisions of the 2026 Notes, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control Repurchase Event provisions of the 2026 Notes by virtue of such conflict.

On the Change of Control Payment Date, the Issuer will be required, to the extent lawful, to:

 

 (a)accept for payment all 2026 Notes or portions of 2026 Notes (in minimum denominations of $2,000 and integral multiples of $1,000 above that amount) properly tendered pursuant to the Issuer’s offer;

 

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 (b)deposit with the paying agent, no later than 11:00 a.m., New York City time, an amount equal to the aggregate purchase price in respect of all 2026 Notes or portions of 2026 Notes properly tendered; and

 

 (c)deliver or cause to be delivered to the Trustee for cancellation the 2026 Notes properly accepted, together with an officers’ certificate stating the aggregate principal amount of 2026 Notes being repurchased by the Issuer.

The paying agent will promptly send (or, in the case of 2026 Notes held in book-entry form, transmit electronically) to each Holder of 2026 Notes properly tendered the repurchase price for such 2026 Notes, and the Trustee will promptly authenticate and send (or cause to be transferred by book-entry) to each Holder a new 2026 Note equal in principal amount to any unrepurchased portion of any 2026 Notes surrendered; provided, that each new 2026 Note will be in minimum denominations of $2,000 and integral multiples of $1,000 above that amount.

The Issuer will not be required to make an offer to repurchase the 2026 Notes upon a Change of Control Repurchase Event if a third party makes such an offer in the manner, at the times and otherwise in compliance with the requirements for an offer made by the Issuer and the third party repurchases all 2026 Notes properly tendered and not withdrawn under its offer. In addition, the Issuer will not repurchase any 2026 Notes if there has occurred and is continuing on the Change of Control Payment Date an event of default under the Indenture, other than a default in the payment of the aggregate purchase price upon a Change of Control Repurchase Event.

“Below Investment Grade Rating Event” means the 2026 Notes are rated below an Investment Grade Rating by each of the Rating Agencies on any date from the date of the public notice of an arrangement that could result in a Change of Control until the end of the 60-day period following public notice of the occurrence of the Change of Control (which 60-day period shall be extended so long as the rating of the 2026 Notes is under publicly announced consideration for possible downgrade by any of the Rating Agencies).

“Change of Control” means the occurrence of any of the following: (1) the direct or indirect sale, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the properties or assets of the Issuer and its subsidiaries, taken as a whole, to any “person” (as that term is used in Section 13(d)(3) of the Exchange Act) other than the Issuer or one of its subsidiaries; (2) the consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any “person” (as that term is used in Section 13(d)(3) of the Exchange Act) becomes the beneficial owner, directly or indirectly, of more than 50% of the then outstanding number of shares of the Issuer’s voting stock; (3) the adoption of a plan by the Issuer’s Board of Directors relating to the Issuer’s liquidation or dissolution; or (4) the first day on which a majority of the members of the Issuer’s Board of Directors are not Continuing Directors. Notwithstanding the foregoing, a transaction will not be deemed to result in a Change of Control if (a) the Issuer becomes a wholly-owned subsidiary of a holding company and (b) the holders of the voting stock of such holding company immediately following that transaction are substantially the same as the holders of the Issuer’s voting stock immediately prior to that transaction.

 

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“Change of Control Repurchase Event” means the occurrence of both a Change of Control and a Below Investment Grade Rating Event.

“Continuing Directors” means, as of any date of determination, any member of the Issuer’s Board of Directors who (1) was a member of such Board of Directors on the date of the issuance of the 2026 Notes; or (2) was nominated for election or elected to such Board of Directors with the approval of a majority of the Continuing Directors who were members of such Board of Directors at the time of such nomination or election (either by a specific vote or by approval of the Issuer’s proxy statement in which such member was named as a nominee for election as a director, without objection to such nomination).

“Investment Grade Rating” means a rating equal to or higher than Baa3 (or the equivalent) by Moody’s and BBB- (or the equivalent) by S&P.

“Moody’s” means Moody’s Investors Service, Inc. and its successors.

“Rating Agencies” means (1) each of Moody’s and S&P; and (2) if either of Moody’s or S&P ceases to rate the 2021 Notes or fails to make a rating of the 2021 Notes publicly available for reasons outside of the Issuer’s control, a “nationally recognized statistical rating organization” within the meaning of Section 3(a)(62) under the Exchange Act, selected by the Issuer as a replacement agency for Moody’s or S&P, or both of them, as the case may be.

“S&P” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc., and its successors.

 

 9.Mandatory Redemption. Other than with respect to a Change of Control Repurchase Event as described above, the 2026 Notes are not mandatorily redeemable. The 2026 Notes are not entitled to the benefit of a sinking fund or any analogous provisions.

 

 10.Denominations. The 2026 Notes shall be issued initially in minimum denominations of $2,000 and shall be issued in integral multiples of $1,000 in excess thereof.

 

 11.Amount Payable Upon Acceleration. The principal of the 2026 Notes shall be payable upon declaration of acceleration pursuant to Section 5.1 of the Indenture.

 

 12.Payment Currency. Principal and interest on the 2026 Notes shall be payable in Dollars.

 

 13.Payment Currency – Election. The principal of and interest on the 2026 Notes shall not be payable in a currency other than Dollars.

 

 14.Payment Currency – Index. The principal of and interest on the 2026 Notes shall not be determined with reference to an index based on a coin or currency.

 

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 15.Registered Securities. The 2026 Notes shall be issued only as Registered Securities. The 2026 Notes shall be issuable as Registered Global Securities.

 

 16.Additional Amounts. The Issuer shall not pay additional amounts on the 2026 Notes held by a Person that is not a U.S. Person in respect of taxes or similar charges withheld or deducted.

 

 17.Definitive Certificates. Section 2.8 of the Indenture will govern the transferability of the 2026 Notes in definitive form.

 

 18.Registrar; Paying Agent; Depositary. The Trustee shall initially serve as the registrar and the paying agent for the 2026 Notes. The Depository Trust Company shall initially serve as the Depositary for the Registered Global Security representing the 2026 Notes.

 

 19.Events of Default; Covenants. Other than as provided for in the Indenture, there shall be no deletions from or modifications or additions to the Events of Default set forth in Section 5.1 of the Indenture with respect to the 2026 Notes. There shall be the following additions to the covenants of the Issuer set forth in Article III of the Indenture with respect to the 2026 Notes:

Limitation on Liens. The Issuer covenants that, so long as any of the 2026 Notes remain outstanding, it shall not, nor shall it permit any of its domestic wholly-owned subsidiaries to, create or assume any mortgage, pledge, security interest, lien, charge or encumbrance of any kind (each, a “Lien”) on any Principal Property, whether now owned or hereafter acquired, in order to secure any Indebtedness, without effectively providing that the 2026 Notes shall be secured by a Lien ranking equal to and ratably with (or, at the Issuer’s option, senior to) such secured Indebtedness until such time as such Indebtedness is no longer secured by such Lien, except that the foregoing restriction shall not apply to:

 

 (a)Liens existing on the issue date of the 2026 Notes;

 

 (b)Liens created or incurred after the closing date of the offering of the 2026 Notes created in favor of the Holders of the 2026 Notes;

 

 (c)Liens in favor of the Issuer or one of its subsidiaries;

 

 (d)

(i) Liens given to secure (or to secure Indebtedness incurred or guaranteed by the Issuer or any of its domestic wholly-owned subsidiaries for the purpose of financing) the payment of all or any portion of the purchase price for the acquisition (including acquisition through merger or consolidation or the acquisition of a Person directly or indirectly owning such property) of any replacement for the Principal Property, including capital lease or purchase money transactions in connection with any such acquisition, or all or any portion of the cost of refurbishment, improvement, expansion, renovation, development or construction of any Principal Property; provided that with respect to this clause (i), the Liens shall be given prior to, at the time of or within 12 months after such acquisition, or completion of such refurbishment, improvement, expansion, renovation, development or construction, or the full operation of such Principal Property, whichever is latest, and shall attach solely to such Principal Property (including any refurbishments, improvements, expansions, renovations, development or construction thereof or then or thereafter placed thereon) and any proceeds thereof; and (ii) Liens existing on all or any

 

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 portion of any replacement for the Principal Property at the time of acquisition thereof (including acquisition through merger or consolidation or the acquisition of a Person then directly or indirectly owning such property) whether or not such existing Liens were given to secure (or to secure Indebtedness incurred or guaranteed by the Issuer or any of its domestic wholly-owned subsidiaries for the purpose of financing) the payment of the purchase price of such property;

 

 (e)Liens on any Principal Property in favor of the United States of America or any state thereof, or in favor of any other country, or any political subdivision, department, agency or instrumentality thereof to secure progress or other payments pursuant to any contract or statute or to secure Indebtedness incurred or guaranteed for the purpose of financing all or any portion of the cost of acquiring, refurbishing, improving, expanding, renovating, developing or constructing such Principal Property, including Liens incurred in connection with pollution control, industrial revenue or similar financing;

 

 (f)pledges, Liens or deposits under worker’s compensation laws or similar legislation and Liens or judgments thereunder which are not currently dischargeable, or in connection with bids, tenders, contracts or leases (in each case, other than for the payment of money) to which the Issuer or any of its domestic wholly-owned subsidiaries is a party, or to secure public or statutory obligations of the Issuer or any of its domestic wholly-owned subsidiaries, or in connection with obtaining or maintaining self-insurance or to obtain the benefits of any law, regulation or arrangement pertaining to unemployment insurance, old age pensions, social security or similar matters, or to secure surety, appeal or customs bonds to which the Issuer or any of its domestic wholly-owned subsidiaries is a party, and other similar pledges, Liens or deposits made or incurred in the ordinary course of business;

 

 (g)Liens created by or resulting from any litigation or other proceeding which is being contested in good faith by appropriate proceedings, including Liens arising out of judgments or awards against the Issuer or any of its domestic wholly-owned subsidiaries with respect to which the Issuer or such domestic wholly-owned subsidiary is in good faith prosecuting an appeal or proceedings for review or for which the time to make an appeal has not yet expired; or final unappealable judgment Liens which are satisfied within 15 days of the date of judgment; or Liens incurred by the Issuer or any of its domestic wholly-owned subsidiaries for the purpose of obtaining a stay or discharge in the course of any litigation or other proceeding to which the Issuer or such domestic wholly-owned subsidiary is a party;

 

 (h)Liens for certain taxes or assessments, landlord’s Liens and Liens and charges, in each case (i) not yet due or payable or subject to penalties for non-payment or which the Issuer is contesting in good faith by appropriate proceedings and (ii) incidental to the conduct of the business or the ownership of the Issuer’s assets or those of one of its domestic wholly-owned subsidiaries;

 

 (i)Liens incurred in connection with an acquisition of assets or a project financed on a non-recourse basis; and

 

 (j)

Liens which are incurred to extend, renew, substitute, refinance, refund or replace (and successive extensions, renewals, substitutions, refinancings, refundings or replacements) any Lien, or any Indebtedness which is secured by any Lien (including any premium required to be paid and costs and expenses incurred in connection with such extensions,

 

B-7


 renewals, substitutions, refinancings, refundings or replacements), permitted to be created or incurred under the Indenture, including, without limitation, Liens given to secure any Indebtedness incurred to extend, renew, substitute, refinance, refund or replace (and successive extensions, renewals, substitutions, refinancings, refundings or replacements) the Operating Lease Arrangement (including any premium required to be paid and costs and expenses incurred in connection with such extensions, renewals, substitutions, refinancings, refundings or replacements).

Notwithstanding the above, the Issuer or any of its domestic wholly-owned subsidiaries may, without equally and ratably securing the 2026 Notes, create or incur Liens which would otherwise be subject to the restrictions set forth in the preceding paragraph, if after giving effect thereto, Aggregate Debt does not exceed 15% of the Issuer’s Consolidated Net Tangible Assets on a consolidated basis calculated as of the date of the creation or incurrence of the Lien.

Limitation on Sale and Leaseback Transactions. The Issuer covenants that, so long as any of the 2026 Notes remain outstanding, it shall not, nor shall it permit any of its domestic wholly-owned subsidiaries to, enter into any arrangement with any Person providing for the leasing by the Issuer or any of its domestic wholly-owned subsidiaries of any Principal Property, whether now owned or hereafter acquired, that has been or is to be sold or transferred by the Issuer or such of its domestic wholly-owned subsidiaries to such Person with the intention of taking back a lease of such Principal Property, a “sale and leaseback transaction,” unless:

 

 (a)the Issuer or such domestic wholly-owned subsidiary would be entitled, at the effective date of the sale or transfer, to incur Indebtedness secured by a Lien on the Principal Property to be leased in an amount equal to Attributable Debt with respect to the sale and leaseback transaction, without equally and ratably securing the 2026 Notes pursuant to the first paragraph of “—Limitation on Liens” above;

 

 (b)the net proceeds of the sale or transfer of the Principal Property to be leased are applied within 365 days of the effective date of the sale and leaseback transaction to the purchase, construction, development, expansion, improvement or acquisition of another Principal Property or to the repayment of any series of the Issuer’s notes or any of the Issuer’s other Indebtedness that ranks equally with the 2026 Notes or any Indebtedness of one or more of the Issuer’s domestic wholly-owned subsidiaries;

 

 (c)such sale and leaseback transaction was entered into prior to the closing date of the offering of the 2026 Notes or any extension, renewal, refinancing, replacement, amendment or modification of such transaction so long as the affected Principal Property is substantially the same as or similar in nature to the Principal Property subject to the sale and leaseback transaction extended, renewed, refinanced, replaced, amended or modified;

 

 (d)any extension, renewal, refinancing, replacement, amendment or modification of the Operating Lease Arrangement so long as the affected Principal Property is substantially the same as or similar in nature to the Principal Property subject to the Operating Lease Arrangement;

 

 (e)such sale and leaseback transaction involves a lease for not more than three years (or which may be terminated by the Issuer or one of its domestic wholly-owned subsidiaries within a period of not more than three years); or

 

B-8


 (f)such sale and leaseback transaction with respect to any Principal Property was between only the Issuer and one of its subsidiaries or only between the Issuer’s subsidiaries.

Notwithstanding the foregoing, the Issuer or any of its domestic wholly-owned subsidiaries may enter into a sale and leaseback transaction, without complying with the requirements of the preceding paragraph, if, after giving effect thereto, Aggregate Debt does not exceed 15% of the Issuer’s Consolidated Net Tangible Assets on a consolidated basis calculated as of the date of the sale and leaseback transaction.

“Aggregate Debt” means the sum of the following, as of the date of determination, (1) the aggregate principal amount of the Issuer’s and its domestic wholly-owned subsidiaries’ Indebtedness incurred after the closing date of the offering of the 2026 Notes and secured by Liens not permitted by the first paragraph under “—Limitation on Liens” above and (2) the Issuer’s and its domestic wholly-owned subsidiaries’ Attributable Debt in respect of sale and leaseback transactions entered into after the closing date of the offering of the 2026 Notes pursuant to the second paragraph of “—Limitation on Sale and Leaseback Transactions” above.

“Attributable Debt” means, in connection with a sale and leaseback transaction, the lesser of: (1) the fair market value of the assets subject to such sale and leaseback transaction, as determined in good faith by the Issuer’s Board of Directors; and (2) the present value of the obligations of the lessee for net rental payments during the term of the related lease discounted at the rate of interest set forth or implicit in the terms of such lease or, if not practicable to determine such rate, the weighted average interest rate per annum borne by the debt securities of each series outstanding pursuant to the Indenture and subject to limitations on sale and leaseback transaction covenants, compounded semi-annually in either case as determined by the Issuer’s principal accounting or financial officer.

“Consolidated Net Tangible Assets” means, as of any date of determination, the aggregate amount of assets after deducting therefrom: (1) all current liabilities, except for notes and loans payable, current maturities of long-term debt, current portion of convertible securities, current portion of deferred revenue and obligations under capital leases; and (2) intangible assets to the extent included in the aggregate amount of assets, net of applicable reserves and any amortized amounts, all as reflected on the Issuer’s most recent consolidated balance sheet prepared in accordance with GAAP.

“GAAP” means accounting principles generally accepted in the United States of America, which are in effect as of the date of application thereof.

“Indebtedness” of any specified Person means, without duplication, any indebtedness, whether or not contingent, in respect of borrowed money or that is evidenced by bonds, notes, debentures or similar instruments or letters of credit (or reimbursement agreements with respect thereto) or representing the balance deferred and unpaid of the purchase price of any property or asset, whether real, personal or mixed, or tangible or intangible, including shares of capital stock (including pursuant to capital leases), except any such balance that constitutes an accrued expense or trade payable, if and to the extent any of the foregoing indebtedness would appear as a liability upon an unconsolidated balance sheet of

 

B-9


such Person (but does not include contingent liabilities which appear only in a footnote to a balance sheet). In addition, the term “Indebtedness” includes all of the following items, whether or not any such items would appear as a liability on a balance sheet of the specified Person in accordance with GAAP:

 

 (a)all Indebtedness of others secured by a Lien on any asset of the specified Person (whether or not such Indebtedness is assumed by the specified Person); and

 

 (b)to the extent not otherwise included, any guarantee by the specified Person of Indebtedness of any other Person.

“Operating Lease Arrangement” means the operating lease financing arrangement entered into by the Issuer and certain of its subsidiaries with a syndicate of banks to finance development and construction of the Issuer’s new headquarters building in Santa Clara, California.

“Person” means any individual, corporation, partnership, joint venture, association, limited liability company, joint- stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.

“Principal Property” means any single parcel of real property or any permanent improvement thereon (1) owned by the Issuer or any of its domestic wholly-owned subsidiaries located in the United States, including the Issuer’s principal corporate office, any manufacturing facility or plant or any portion thereof and (2) having a book value, as of the date of determination, in excess of 3% of the Issuer’s most recently calculated Consolidated Net Tangible Assets. Principal Property does not include any property that the Issuer’s Board of Directors has determined not to be of material importance to the business conducted by the Issuer and its subsidiaries, taken as a whole.

 

 20.Conversion and Exchange. The 2026 Notes shall not be convertible into or exchangeable for any other security.

 

 21.Additional Issues. The Issuer may, without notice to or the consent of the Holders of the 2026 Notes, create and issue additional notes with the same terms as the 2026 Notes in all respects, except for the issue date, the public offering price and, under certain circumstances, the first interest payment date. Such additional notes shall be consolidated and form a single series with the 2026 Notes; provided that if such additional notes are not fungible with the 2026 Notes for U.S. federal income tax purposes, such additional notes will have a separate CUSIP number. No additional 2026 Notes may be issued if an event of default has occurred and is continuing with respect to such series of 2026 Notes.

 

 22.Other Terms. The 2026 Notes shall have the other terms and shall be substantially in the form set forth in the form of the 2026 Notes attached hereto as Annex B-1. In case of any conflict between this Annex B and the form of the 2026 Notes, the form of the 2026 Notes shall control.

 

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Capitalized terms used but not otherwise defined in this Annex B shall have the respective meanings ascribed to such terms in the Indenture.

 

B-11


ANNEX B-1

[FORM OF 2026 Note]

 

REGISTERED  REGISTERED

THIS NOTE IS A REGISTERED GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY. UNLESS AND UNTIL THIS NOTE IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE REGISTERED FORM, THIS NOTES MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO THE NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.

 

No. R – A1  

CUSIP NO. 67066G AE4

ISIN NO. US67066GAE44

NVIDIA CORPORATION

3.20% Notes due 2026

NVIDIA Corporation, a Delaware corporation (the “Issuer,” which term includes any successor corporation under the Indenture hereinafter referred to), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of             Dollars ($            ) on September 16, 2026 and to pay interest on said principal sum from September 16, 2016, or from the most recent interest payment date to which interest has been paid or duly provided for, semi-annually in arrears on March 16 and September 16 (each such date, an “Interest Payment Date”) of each year commencing on March 16, 2017, at the rate of 3.20% per annum until the principal hereof shall have become due and payable.

The amount of interest payable on any Interest Payment Date shall be computed on the basis of a 360-day year comprised of twelve 30-day months. In the event that any date on which the principal or interest payable on this Note is not a Business Day, then payment of principal or interest payable on such date will be made on the next succeeding day that is a Business Day (and without any interest or other payment in respect of such delay). The interest installment so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in the Indenture (referred to on the reverse hereof) be paid to the person in whose name this Note is registered at the close of business on the record date for such interest installment, which shall be the close of business on the immediately preceding March 1 and September 1 prior to such Interest Payment Date, as applicable. Any such interest installment not punctually paid or duly provided for shall forthwith cease to be payable to the registered Holders on such record date and may be paid to the person in whose name this Note is registered at the close of business on a subsequent record date (which shall be not less than five Business Days prior to the date of payment of such defaulted interest), notice whereof shall be sent by or on behalf of the Issuer to the registered Holders of Notes not less than 15 days preceding such subsequent record date, all as more fully provided in the Indenture. The principal of and the interest on this Note shall be payable at the office or agency of the Issuer maintained for that purpose in any coin or currency of the United States of America that at the time of payment is legal tender for payment of public and private debts;provided,however, that payment of interest may be made at the option of the Issuer by check sent to the person entitled thereto at such address as shall appear in the registry books of the Issuer;provided,further, that for so long as this Note is represented by a Registered Global Security, payment of principal, premium, if any, or interest on this Note may be made by wire transfer to the account of the Depositary or its nominee.

 

B-1-1


Unless the certificate of authentication hereon has been executed by or on behalf of the Trustee (as defined below) under the Indenture (as defined below), by the manual signature of one of its authorized signatories, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.

Capitalized terms used in this Note which are defined in the Indenture shall have the respective meanings assigned to them in the Indenture.

The provisions of this Note are continued on the reverse side hereof and such continued provisions shall for all purposes have the same effect as though fully set forth at this place.

 

B-1-2


IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly executed, manually or in facsimile.

 

NVIDIA CORPORATION
By: 

 

 Name:
 Title:

CERTIFICATE OF AUTHENTICATION

This is one of the Securities referred to in the

within-mentioned Indenture.

WELLS FARGO BANK, NATIONAL ASSOCIATION

    as Trustee

 

By: 

 

 Authorized Signatory
Dated: 

 

 

B-1-3


[FORM OF REVERSE SIDE OF NOTE]

This Note is one of a duly authorized series of securities (the “Securities”) of the Issuer designated as its 3.20% Notes due 2026 (the “Notes”). The Securities are all issued or to be issued under and pursuant to an Indenture, dated as of September 16, 2016 (the “Indenture”), duly executed and delivered between the Issuer and Wells Fargo Bank, National Association as trustee with respect to the Notes (the “Trustee”), to which the Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights thereunder of the Issuer, the Trustee and the Holders of the Securities and the terms upon which the Notes are to be authenticated and delivered. The terms of individual series of Securities may vary with respect to interest rate or interest rate formulas, issue dates, maturity, redemption, repayment, currency of payment and otherwise.

The Notes are issuable only as Registered Securities in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof. As provided in the Indenture and subject to certain limitations therein set forth, the Notes are exchangeable for a like aggregate principal amount of Notes as requested by the Holder surrendering the same.

Except as set forth below, this Note is not redeemable. This Note is not entitled to the benefit of a sinking fund or any analogous provision.

Prior to June 16, 2026, the Notes may be redeemed, in whole at any time or in part from time to time, at the option of the Issuer, for cash, at a redemption price equal to the greater of (i) 100% of the principal amount to be redeemed or (ii) an amount, as determined by the Quotation Agent, equal to the sum of the present values of the remaining scheduled payments of principal and interest thereon that would be due if the Notes matured on June 16, 2026 (not including any portion of such payments of interest accrued to the date of redemption), discounted to the date of redemption on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 25 basis points, plus, in each case, accrued and unpaid interest, if any, thereon to, but not including, the date of redemption; provided that the principal amount of any Note remaining outstanding after a redemption in part shall be $2,000 or a higher integral multiple of $1,000. In addition, on or after June 16, 2026, the Issuer may redeem the Notes, in whole at any time or in part from time to time, at its option, for cash, at a redemption price equal to 100% of the principal amount of the Notes, plus accrued and unpaid interest to, but not including, the redemption date. Notwithstanding the foregoing, installments of interest on the Notes that are due and payable on interest payment dates falling on or prior to a redemption date will be payable on the interest payment date to the registered Holders as of the close of business on the relevant record date. Notices will be sent (or in the case of Notes held in book-entry form, be transmitted electronically) to Holders of the Notes to be redeemed at least 30 and not more than 60 days prior to the date fixed for redemption, except that redemption notices may be sent more than 60 days prior to a redemption if the notice is issued in connection with a legal covenant defeasance of the Notes or a satisfaction and or discharge of the Notes pursuant to Section 10.1 of the Indenture. Unless the Issuer defaults in payment of the redemption price, on and after the redemption date, interest will cease to accrue on the Notes or portions thereof called for redemption. If less than all of the Notes are to be redeemed, the Notes to be redeemed will be selected by the Trustee by lot or in accordance with the procedures of the Depositary.

“Comparable Treasury Issue” means the United States Treasury security selected by the Quotation Agent as having a maturity comparable to the remaining term of the Notes that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of the Notes.

 

B-1-4


“Comparable Treasury Price” means, with respect to any redemption date, (i) the average of four Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and lowest of such Reference Treasury Dealer Quotations, or (ii) if the Trustee is provided fewer than four such Reference Treasury Dealer Quotations, the average of all such quotations.

“Quotation Agent” means the Reference Treasury Dealer appointed by the Issuer to act as the Quotation Agent from time to time.

“Reference Treasury Dealer” means (i) Goldman, Sachs & Co., Morgan Stanley & Co. LLC and Wells Fargo Securities, LLC and their respective successors; provided, however, that if any of the foregoing shall cease to be a primary U.S. Government securities dealer in New York City (a “Primary Treasury Dealer”), the Issuer shall substitute therefor another Primary Treasury Dealer; and (ii) any other Primary Treasury Dealer selected by the Issuer.

“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any redemption date, the average, as determined by the Issuer, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m., New York City time, on the third Business Day preceding such redemption date.

“Treasury Rate” means, with respect to any redemption date, the rate per annum equal to the semi-annual equivalent yield to maturity of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price on such redemption date.

If a Change of Control Repurchase Event occurs, unless the Issuer has previously exercised its right to redeem the Notes in whole as described above, the Issuer will be required to make an offer to each Holder of Notes to repurchase all or any part (in minimum denominations of $2,000 and integral multiples of $1,000 above that amount) of such Holder’s Notes at a repurchase price in cash equal to 101% of the aggregate principal amount of Notes repurchased plus accrued and unpaid interest, if any, on the Notes repurchased to, but not including, the date of such repurchase. Within 30 days following any Change of Control Repurchase Event or, at the Issuer’s option, prior to any Change of Control, but after the public announcement of an impending Change of Control, the Issuer will send a notice to each Holder, with a copy to the Trustee, describing the transaction or transactions that constitute or may constitute the Change of Control Repurchase Event and offering to repurchase Notes on the payment date specified in the notice, which date will be no earlier than 30 days and no later than 60 days from the date such notice is sent (the “Change of Control Payment Date”). The notice shall, if sent prior to the date of consummation of the Change of Control, state that the offer to purchase is conditioned on the Change of Control Repurchase Event occurring on or prior to the payment date specified in the notice.

The Issuer will comply with the requirements of Rule 14e-1 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and any other securities laws and regulations thereunder, to the extent those laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control Repurchase Event. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control Repurchase Event provisions of the Notes, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control Repurchase Event provisions of the Notes by virtue of such conflict.

 

B-1-5


On the Change of Control Payment Date, the Issuer will be required, to the extent lawful, to:

 

 (a)accept for payment all Notes or portions of Notes (in minimum denominations of $2,000 and integral multiples of $1,000 above that amount) properly tendered pursuant to the Issuer’s offer;

 

 (b)deposit with the paying agent, no later than 11:00 a.m., New York City time, an amount equal to the aggregate purchase price in respect of all Notes or portions of Notes properly tendered; and

 

 (c)deliver or cause to be delivered to the Trustee for cancellation the Notes properly accepted, together with an officers’ certificate stating the aggregate principal amount of Notes being repurchased by the Issuer.

The paying agent will promptly send (or, in the case of Notes held in book-entry form, transmit electronically) to each Holder of Notes properly tendered the repurchase price for such Notes, and the Trustee will promptly authenticate and send (or cause to be transferred by book-entry) to each Holder a new Note equal in principal amount to any unrepurchased portion of any Notes surrendered; provided, that each new Note will be in minimum denominations of $2,000 and integral multiples of $1,000 above that amount.

The Issuer will not be required to make an offer to repurchase the Notes upon a Change of Control Repurchase Event if a third party makes such an offer in the manner, at the times and otherwise in compliance with the requirements for an offer made by the Issuer and the third party repurchases all Notes properly tendered and not withdrawn under its offer. In addition, the Issuer will not repurchase any Notes if there has occurred and is continuing on the Change of Control Payment Date an event of default under the Indenture, other than a default in the payment of the aggregate purchase price upon a Change of Control Repurchase Event.

“Below Investment Grade Rating Event” means the Notes are rated below an Investment Grade Rating by each of the Rating Agencies on any date from the date of the public notice of an arrangement that could result in a Change of Control until the end of the 60-day period following public notice of the occurrence of the Change of Control (which 60-day period shall be extended so long as the rating of the Notes is under publicly announced consideration for possible downgrade by any of the Rating Agencies).

“Change of Control” means the occurrence of any of the following: (1) the direct or indirect sale, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the properties or assets of the Issuer and its subsidiaries, taken as a whole, to any “person” (as that term is used in Section 13(d)(3) of the Exchange Act) other than the Issuer or one of its subsidiaries; (2) the consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any “person” (as that term is used in Section 13(d)(3) of the Exchange Act) becomes the beneficial owner, directly or indirectly, of more than 50% of the then outstanding number of shares of the Issuer’s voting stock; (3) the adoption of a plan by the Issuer’s Board of Directors relating to the Issuer’s liquidation or dissolution; or (4) the first day on which a majority of the members of the Issuer’s Board of Directors are not Continuing Directors. Notwithstanding the foregoing, a transaction will not be deemed to result in a Change of Control if (a) the Issuer becomes a wholly-owned subsidiary of a holding company and (b) the holders of the voting stock of such holding company immediately following that transaction are substantially the same as the holders of the Issuer’s voting stock immediately prior to that transaction.

“Change of Control Repurchase Event” means the occurrence of both a Change of Control and a Below Investment Grade Rating Event.

 

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“Continuing Directors” means, as of any date of determination, any member of the Issuer’s Board of Directors who (1) was a member of such Board of Directors on the date of the issuance of the Notes; or (2) was nominated for election or elected to such Board of Directors with the approval of a majority of the Continuing Directors who were members of such Board of Directors at the time of such nomination or election (either by a specific vote or by approval of the Issuer’s proxy statement in which such member was named as a nominee for election as a director, without objection to such nomination).

“Investment Grade Rating” means a rating equal to or higher than Baa3 (or the equivalent) by Moody’s and BBB- (or the equivalent) by S&P.

“Moody’s” means Moody’s Investors Service, Inc. and its successors.

“Rating Agencies” means (1) each of Moody’s and S&P; and (2) if either of Moody’s or S&P ceases to rate the 2021 Notes or fails to make a rating of the 2021 Notes publicly available for reasons outside of the Issuer’s control, a “nationally recognized statistical rating organization” within the meaning of Section 3(a)(62) under the Exchange Act, selected by the Issuer as a replacement agency for Moody’s or S&P, or both of them, as the case may be.

“S&P” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc., and its successors.

If an Event of Default with respect to the Notes shall occur and be continuing, the principal of all the Notes may be declared due and payable in the manner and with the effect provided in the Indenture.

The Indenture contains provisions permitting the Issuer and the Trustee, with the consent of the Holders of not less than a majority in aggregate principal amount of the Senior Securities or Subordinated Securities, as the case may be, of all series issued under such Indenture then outstanding and affected (each voting as one class), to add any provisions to, or change in any manner, eliminate or waive any of the provisions of, such Indenture or modify in any manner the rights of the Holders of the Securities or Coupons so affected;provided that the Issuer and the Trustee, may not, without the consent of the Holder of each Outstanding Security affected thereby, (i) extend the final maturity of the principal of any Security or reduce the principal amount thereof or premium thereon, if any, or reduce the rate or extend the time of payment of interest thereon, or reduce any amount payable on redemption thereof or change the currency in which the principal thereof (other than as otherwise may be provided with respect to such series), premium, if any, or interest thereon is payable or reduce the amount of the principal of any Original Issue Discount Security that is payable upon acceleration or provable in bankruptcy, or in the case of Subordinated Securities of any series, modify any of the subordination provisions or the definition of “Senior Indebtedness” relating to such series in a manner adverse to the Holders of such Subordinated Securities, or alter certain provisions of the Indenture relating to Securities not denominated in Dollars or the Judgment Currency of such Securities or impair or affect the right of any Securityholder to institute suit for the enforcement of any payment thereof when due or, if the Securities provide therefor, any right of repayment at the option of the Securityholder or (ii) reduce the aforesaid percentage in principal amount of Securities of any series issued under the Indenture, the consent of the Holders of which is required for any such modification. It is also provided in the Indenture that, with respect to certain defaults or Events of Default regarding the Securities of any series, the Holders of a majority in aggregate principal amount Outstanding of the Securities of each such series, each such series voting as a separate class (or, of all Securities, as the case may be voting as a single class) may under certain circumstances waive all defaults with respect to each such series (or with respect to all the Securities, as the case may be) and rescind and annul a declaration of default and its consequences, but no such waiver or rescission and annulment shall extend to or affect any subsequent default or shall impair any right consequent thereto.

 

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No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Issuer, which is absolute and unconditional, to pay the principal of and interest on this Note at the time, place and rate, and in the coin or currency, herein prescribed.

As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Note may be registered on the registry books of the Issuer, upon surrender of this Note for registration of transfer at the office or agency of the Issuer maintained by the Issuer for such purpose in Minneapolis, Minnesota, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Issuer and the Trustee duly executed by, the Holder hereof or by its attorney duly authorized in writing, and thereupon one or more new Notes of authorized denominations and for the same aggregate principal amount will be issued to the designated transferee or transferees.

No service charge shall be made for any such registration of transfer or exchange, but the Issuer may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection therewith.

Prior to due presentment of this Note for registration of transfer, the Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the person in whose name this Note is registered as the owner hereof for all purposes, whether or not this Note be overdue, and neither the Issuer, the Trustee nor any such agent shall be affected by notice to the contrary.

THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING, WITHOUT LIMITATION, SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.

 

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[FORM OF SCHEDULE FOR ENDORSEMENTS ON REGISTERED

GLOBAL SECURITIES TO REFLECT CHANGES IN PRINCIPAL AMOUNT]

Schedule A

Changes to Principal Amount of Registered Global Securities

 

Date

  

Principal Amount

of Notes

by which this Registered Global
Security is to be

Reduced or Increased,

and Reason for

Reduction or Increase

  

Remaining Principal

Amount of this

Registered

Global Security

  

Notation Made By

      

 

  

 

  

 

  

 

      

 

  

 

  

 

  

 

      

 

  

 

  

 

  

 

      

 

  

 

  

 

  

 

      

 

  

 

  

 

  

 

      

 

  

 

  

 

  

 

      

 

  

 

  

 

  

 

      

 

  

 

  

 

  

 

      

 

  

 

  

 

  

 

      

 

  

 

  

 

  

 

      

 

  

 

  

 

  

 

      

 

  

 

  

 

  

 

 

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