HP INC.,
and
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
to
Relating to
FIRST SUPPLEMENTAL INDENTURE, dated as of June 16, 2021 (this “Supplemental Indenture”), among HP Inc. (the “Company”), a Delaware corporation, and The Bank of New York Mellon Trust Company, N.A., a national banking association organized and existing under the laws of the United States of America, as trustee (the “Trustee”) to the Base Indenture (as defined below).
RECITALS
WHEREAS, the Company has heretofore executed and delivered to the Trustee an Indenture, dated as of June 17, 2020 (the “Base Indenture”), providing for the issuance from time to time of its unsecured debentures, notes or other evidences of indebtedness, to be issued in one or
more series as therein provided;
WHEREAS, pursuant to the terms of the Base Indenture, the Company desires to provide for the establishment of two series of notes to be known respectively as its 1.450% Notes due 2026 (the “2026 Notes”) and its 2.650% Notes due 2031 (the “2031 Notes”, and together with the 2026 Notes, the “Notes”), the form and substance of such Notes and the terms, provisions and conditions thereof to be set forth as provided in the Base Indenture and this Supplemental Indenture (together, the “Indenture”);
WHEREAS, the Company has requested that the Trustee
execute and deliver this Supplemental Indenture; and
WHEREAS, all requirements necessary to make this Supplemental Indenture a legal, valid and
binding instrument in accordance with its terms, to make the Notes, when executed by the Company
and authenticated and delivered by the Trustee, the legal, valid and binding obligations of the Company,
and all acts and things necessary have been done and performed to make this Supplemental Indenture enforceable in accordance with its terms,
and the execution and delivery of this Supplemental Indenture has been duly authorized in all respects.
WITNESSETH:
NOW, THEREFORE, for and in consideration of the premises contained herein, each party agrees for the benefit of each other party and for the equal and ratable benefit of the Holders of the Notes, as follows:
ARTICLE ONE
DEFINITIONS
Section 1.01. Capitalized terms used but not defined in this Supplemental Indenture shall have the meanings ascribed to them in the Base Indenture.
Section 1.02. References in this Supplemental
Indenture to article and section numbers shall be deemed to be references to article and section numbers of this Supplemental Indenture
unless otherwise specified.
2
Section 1.03. For purposes of this Supplemental
Indenture, the following terms have the meanings ascribed to them as follows:
“Additional Interest” means all additional interest then owing on Notes pursuant to the Registration Rights Agreement, as described in Section 2.04(e).
“Additional Notes” means any additional Notes that may be issued from time to time pursuant to Section
2.01(b).
“Comparable Treasury Issue” means the United States Treasury security selected by an Independent
Investment Banker as having a maturity comparable to the remaining term (the “Remaining
Life”) of the Notes to be redeemed (assuming for this purpose that such Notes to be redeemed
matured on their applicable Par Call Date) that would be utilized, at the
time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of such Notes (assuming for this purpose that such Notes to be redeemed matured on their applicable Par Call Date).
“Comparable Treasury Price” means, with respect to any Redemption Date, (i) the average of the Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest
and lowest Reference Treasury Dealer Quotations, (ii) if the Independent Investment Banker obtains fewer than four such Reference Treasury Dealer Quotations, the average of all such quotations, or (iii)
if the Independent Investment Banker obtains only one such Reference Treasury Dealer Quotation, such quotation.
“Exchange Notes” means any notes issued in exchange for Notes pursuant
to the Registration Rights Agreement.
“Independent Investment Banker” means one of the Reference Treasury Dealers that the Company appoints to act as the Independent Investment Banker.
“Initial Notes” means the aggregate principal amount of each series of Notes
issued on the date hereof, as specified in Section 2.01(a).
3
“Notes” has the meaning provided in the recitals. For the avoidance of doubt, “Notes” shall include the Additional Notes, if any.
“Par Call Date” means (i) with respect to the 2026 Notes, May 17, 2026 (the date that is one month prior to the maturity date of the 2026 Notes) and (ii) with respect to the 2031 Notes, March 17, 2031 (the date that is three months prior to the maturity date of the 2031 Notes).
“Primary Treasury Dealer” has the meaning provided in the definition of “Reference Treasury Dealer.”
“Reference Treasury Dealer” means each of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co. LLC, ▇.▇. ▇▇▇▇▇▇
Securities LLC and ▇▇▇▇▇ Fargo Securities, LLC, and any other primary U.S. government securities dealer in
the United States (a “Primary Treasury Dealer”) that the Company specifies from time to time, and their respective successors; provided,
however, that if any of the foregoing shall cease to be a Primary Treasury Dealer,
the Company shall substitute therefor another Primary Treasury Dealer.
“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any Redemption Date, the average, as determined by the Company, 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 Company by such Reference Treasury Dealer at 5:00 p.m., New York City time, on the third business day preceding the Redemption Date.
“Registration Rights Agreement” means (i) the registration rights agreement,
dated as of June 16, 2021, by and among the Company, ▇▇▇▇▇▇▇ Sachs & Co. LLC, ▇.▇. ▇▇▇▇▇▇
Securities LLC and ▇▇▇▇▇ Fargo Securities, LLC, as representatives of the initial purchasers set forth on Schedule II to the Purchase Agreement (as defined in the Registration Rights Agreement) and (ii) with respect to any Additional Notes, one or more
registration rights agreements as may be entered into in connection with the issuance of any such Additional Notes in a private offering by the Company after the date hereof, as such agreements may be amended from time to time.
“Remaining Scheduled Payments” means the remaining scheduled payments of the principal of and interest on the Notes (excluding accrued but unpaid interest) to the applicable Par Call Date that would
be due after the related Redemption Date but for such redemption; provided, however, that, if such Redemption Date is not an Interest Payment Date with respect to the applicable Notes, the amount of the next scheduled interest payment thereon will
be reduced by the amount of interest accrued thereon to such Redemption Date.
“Treasury Rate” means,
with respect to any Redemption Date, the rate per annum equal to: (i) the yield, under the heading which represents the average for the immediately preceding
week, appearing in, or available through, the most recently published statistical release designated “H.15” or any successor publication which is published weekly by the Board
of Governors of the Federal Reserve System (or companion online data resource published by the Board of Governors
of the Federal Reserve System) and which establishes yields on actively traded United States Treasury
4
securities adjusted to constant maturity under the caption “Treasury Constant Maturities,” for the maturity corresponding to the applicable Comparable Treasury Issue; provided that, if no maturity is within three months before or after the Remaining Life of the Notes to be redeemed, yields for the two published maturities most closely corresponding to the applicable Comparable Treasury Issue shall be determined and the Treasury Rate shall be interpolated or extrapolated from those yields on a straight-line basis, rounding to the nearest month; or (ii) if such release (or any successor release) is not published during the
week preceding the calculation date or does not contain such yields, the rate per annum equal to the semi-annual equivalent yield to maturity of the applicable Comparable Treasury Issue, calculated using a price for the applicable Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to
the related Comparable Treasury Price for such Redemption Date. The Treasury Rate shall be calculated by the Company on the third business day preceding the Redemption Date.
Section 1.04. Unless the context otherwise requires, for the avoidance of doubt any references to “interest” shall include any “Additional Interest” that may be payable on a particular Note or Notes.
ARTICLE TWO
Section 2.01. Designation and Principal Amount.
(a) The Notes are hereby authorized and are respectively designated the 1.450% Senior Notes due 2026 and the 2.650% Senior Notes due 2031, each unlimited in aggregate principal amount. The 2026 Notes issued on the date hereof pursuant to the terms of the Indenture shall be in an aggregate principal amount of $1,000,000,000 and the 2031 Notes issued on the date hereof pursuant to the terms of the Indenture shall be in an aggregate principal amount of $1,000,000,000, which amounts shall be set forth in the written order of the Company for the authentication and delivery of the Notes pursuant to Section 301 of the Base Indenture.
(b) In addition, the Company may, from time to time, without the consent of the Holders of the Notes of a series, and in accordance with the provisions of the Indenture, issue additional Notes in an unlimited aggregate principal amount having the same terms and conditions as the Notes of a series in all respects (except for the issuance date, price and, in some cases, the initial Interest Payment Date or interest accruing prior to the issue date of such additional Notes) and
with the same CUSIP number as the Notes of that series so as to form a single series of Notes with the Notes of such series issued on the date hereof under the Indenture (the “Additional Notes”); provided that Additional Notes of a series may only be issued if they will
be fungible for United States federal tax purposes with the other Notes of that
series; provided further that no such Additional Notes may be issued if an Event of Default has
occurred and is continuing with respect to the applicable series of Notes.
5
Section 2.02. Maturity.
(a) Unless an earlier redemption has occurred, the principal amount of the 2026 Notes shall mature and be due and payable, together
with any accrued interest thereon, on June 17, 2026 (if such date is not a Business Day, payment of principal, premium, if
any, and interest for the 2026 Notes will be paid on the next Business Day;
provided, however, that no interest on that payment will accrue from and after June 17, 2026).
(b) Unless an earlier redemption has occurred, the principal amount of the 2031 Notes shall mature and be due and payable, together
with any accrued interest thereon, on June 17, 2031 (if such date is not a Business Day, payment of principal, premium, if
any, and interest for the 2031 Notes will be paid on the next Business Day;
provided, however, that no interest on that payment will accrue from and after June 17, 2031).
Section 2.03. Form and Payment.
(a) The Notes shall be issued in the form of one or more fully registered global notes (the “Global
Securities”) in denominations of $2,000 and integral multiples of $1,000 in excess thereof.
(b) The Notes and the Trustee’s certificates of
authentication to be endorsed thereon are to be substantially in the form of Exhibit A, which form is hereby incorporated in and made a part of this Supplemental Indenture.
(c) The terms and provisions contained in the Notes shall constitute, and are hereby expressly made, a part of this Supplemental Indenture, and the Company and the Trustee, by their execution and delivery of this Supplemental
Indenture, and the Holders by their acceptance of the Notes, expressly agree to such terms and provisions and to be bound thereby.
(d) So long as the Notes shall be issued in whole in the form of the Global Securities, the principal of, premium, if any, and interest, if any, on the Notes shall be paid in immediately available funds to The Depository Trust
Company (together with any successor thereto, the “Depositary”) or a nominee of the Depositary.
(e) If at any time the Notes are no longer represented by the Global Securities and are issued in definitive form (the “Certificated Securities” and each, a “Certificated
Security”), then the principal of, premium, if any, and interest, if any, on each Certificated
Security at Maturity shall be paid to the Holder upon surrender of such Certificated Security at the office or agency maintained by the Company in the Borough of Manhattan, The City of New York (which shall
initially be the office of The Bank of New York Mellon, an affiliate of The Bank of New York Mellon Trust Company, N.A., the Trustee); provided that such Certificated
Security is surrendered to the Trustee, acting as Paying Agent, in time for the Paying Agent to make such payments in such funds in accordance with its normal procedures.
(f) Payments of interest with respect to Certificated
Securities other than at Maturity may, at the option of the Company, be made by check
mailed to the address of the Person entitled thereto as it appears on the Security
Register on the relevant Regular Record Date or Special Record Date, as the case may be, or by
wire transfer in same day funds to such account
6
as may have been appropriately designated to the Paying Agent by such Person in writing not later than such relevant Regular Record Date or Special Record Date.
(g) Each payment of principal, premium, if any, and interest, if any, shall be made in such coin or currency of the United
States as at the time of payment is legal tender for payment of public and private debts.
(h) The Global Securities representing the Notes shall be deposited with the Depositary or a nominee or custodian of the Depositary and shall be registered in the name of the Depositary. No Global Security may be exchanged in whole or in part for Notes registered in the name of any person other than the Depositary or any nominee, unless the Depositary has notified the Company that it is
unwilling or unable to continue as Depositary or has ceased to be qualified to act as depositary and a successor depositary is not appointed by the Company within 90 days or an Event of Default is continuing.
(i) Additional provisions relating to the Initial Notes, Additional
Notes and Exchange Notes are set forth in Appendix A, which is hereby incorporated in and made a part of this Supplemental Indenture.
Section 2.04. Interest.
(a) The 2026 Notes will bear interest at a rate of 1.450% per annum and the 2031 Notes will bear interest at a rate of 2.650% per annum.
(b) Interest on the Notes will be paid semi-annually in arrears on June 17 and December 17 of each year (each, an “Interest Payment Date”),
beginning on December 17, 2021, to the Holders of record of the Notes at the close of
business on the fifteenth day (whether or not a Business Day), immediately preceding the related Interest Payment Date (such date, the “Regular Record Date”).
(c) Interest on the Notes will accrue from and including June 16, 2021, to, but excluding,
the first Interest Payment Date and then from and including the immediately preceding Interest Payment Date to which interest has been paid or
duly provided for to, but excluding, the next Interest Payment Date or the maturity date, as the case may be.
(d) Interest on the Notes will be paid on the basis of a 360-day year comprised of twelve 30-day months. If an Interest Payment Date on the Notes falls on a date that is not a
Business Day, the Interest Payment Date shall be postponed to the next succeeding Business Day as if made on the Interest Payment Date, and no interest on such payment shall accrue for the
period from and after such Interest Payment Date to the date of such payment on the next succeeding Business
Day.
(e) Upon the occurrence, if any, of the events set forth in the Registration Rights Agreement, the
Company shall pay additional interest on the Notes, which shall accrue at a rate of 0.25% for the first 90-day period after the date of such event and increase up to an additional 0.25% for each subsequent 90-day period thereafter, up to a maximum additional interest rate of 0.5% per annum over the interest rate otherwise then applicable for the
Notes as set forth in the Registration Rights Agreement (the
“Additional Interest”).
7
(f) The Company shall pay all Additional Interest, if any, on the applicable Interest Payment Date described herein in the same manner as interest is paid on the Notes.
ARTICLE THREE
REDEMPTION
Section 3.01. Optional Redemption.
(a) Prior to the applicable Par Call Date, the Notes
will be redeemable in whole at any time or in part from time to time at a Redemption Price equal to the greater of: (i) 100.000% of the principal amount of the Notes to be redeemed and (ii) the sum, as determined by the Company based on the Reference Treasury Dealer Quotations, of the present values of the Remaining
Scheduled Payments of principal and interest thereon that would be due if the Notes to be redeemed matured on the applicable Par Call Date (exclusive of accrued and unpaid interest, if any, to, but excluding, the Redemption Date), discounted to the Redemption Date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day
months) at the then current Treasury Rate plus 12.5 basis points (in the case of the 2026
Notes) or 20 basis points (in the case of the 2031 Notes), plus, in each case, accrued and unpaid interest, if any, on the amount being redeemed to, but excluding, the Redemption Date. The Company will calculate the Redemption Price.
(b) On or after the applicable Par Call Date, the Notes
will be redeemable in whole at any time or in part from time to time at a Redemption Price equal to 100.000% of the principal amount of the Notes to be redeemed, plus accrued and unpaid interest, if any, to, but excluding, the Redemption Date.
(c) If money sufficient to pay the Redemption Price of and accrued interest on the Notes
(or portions thereof) to be redeemed on the Redemption Date is deposited with the Trustee or Paying Agent on or before the Redemption Date and the other
conditions set forth in Article Eleven of the Base Indenture are satisfied,
then on and after the Redemption Date, interest will cease to accrue on the Notes (or such portion thereof) called for
redemption. If any Redemption Date is not a Business Day, the Company will pay the Redemption Price on the next Business Day without
any interest or other payment due to the delay.
(d) If fewer than all of the Notes in one series are to be redeemed, not more than 45 days prior
to the Redemption Date, the particular Notes or portions thereof for redemption shall be selected from the outstanding Notes of such series not previously called in accordance with the procedures of The Depository Trust Company, a New York corporation, or, in the case of Certificated Securities, by lot or such other method in accordance
with the Trustee’s procedures. No Notes of $1,000 or
less will be redeemed in part.
Section 3.02. Selection and Notice of Redemption.
(a) Notice of redemption will be sent at least 10 but not more than 45 days before the Redemption Date to each Holder of record of the Notes to be
redeemed at its registered address. The notice of redemption for the Notes will state, among other things, the amount of Notes to be redeemed, the Redemption Date, the Redemption Price and the place or places that payment will
8
be made upon presentation and surrender of Notes to be redeemed. Unless the Company
defaults in the payment of the Redemption Price, interest will cease to accrue on any Notes
that have been called for redemption at the Redemption Date. If fewer than all of the Notes
are to be redeemed at any time, not more than 45 days prior to the Redemption Date, the particular Notes or portions thereof for redemption from the outstanding Notes not previously
called shall be selected in accordance with the procedures of the Depositary. The Trustee shall have no obligation to calculate any Redemption Price or premium.
(b) Any redemption or notice may, at the Company’s discretion, be subject to one or more conditions precedent, including, but not
limited to, completion or occurrence of a related transaction or event. At the Company’s discretion, the Redemption Date
may be delayed until such time as any or all such conditions shall be satisfied, or such redemption may not occur and such notice may be rescinded in the event that any or all such conditions shall not have been satisfied by the Redemption Date, or by the Redemption Date as so delayed. The Company will
provide written notice to the Trustee prior to the close of business two business days prior to the Redemption Date or such shorter time as may be acceptable to the Trustee, if any such redemption has been rescinded or delayed, and upon receipt the Trustee will provide such notice to each Holder of the Notes to be redeemed in the same manner
in which the notice of redemption was given.
ARTICLE FOUR
(a) If a Change of Control Repurchase Event with respect to a series of the Notes occurs after the date hereof, unless the Company has exercised its right to redeem the Notes of such series as set forth in Article Three above, the Company will make an offer to each Holder
of Notes of such series to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Notes at a repurchase price in cash equal to 101.000% of the aggregate principal amount of Notes repurchased plus any accrued and unpaid interest on the Notes repurchased to the date of
purchase.
(b) Within 30 days following any Change of Control Repurchase
Event or, at the Company’s option, prior to any Change of Control, but after the public announcement of the transaction or event that constitutes or may constitute the Change of Control, the Company will send a notice to each Holder to which the Company is required to make a repurchase offer as described above, with
a copy to the Trustee, describing the transaction or event that constitutes or may constitute the Change of Control Repurchase Event and offering to repurchase the Notes of the applicable series 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 mailed. The notice may, 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.
9
(c) On the Change of Control Repurchase Event
payment date, the Company shall, to the extent lawful:
(i) accept for payment all Notes or portions of Notes (in a minimum principal amount of $2,000 and integral multiples of $1,000 in excess thereof) properly tendered and not withdrawn pursuant to the Company’s offer;
(ii) deposit with the Paying Agent an amount equal to the aggregate purchase price in respect of all Notes or portions of Notes properly tendered and not
withdrawn; and
(iii) deliver or cause to be delivered to the Trustee the Notes properly accepted, together with an Officers’
Certificate stating the aggregate principal amount of Notes or portions of Notes being purchased by the Company.
(d) The Paying Agent will promptly send to each Holder of Notes properly tendered and not withdrawn the purchase price
for such Notes, and the Trustee will promptly authenticate and mail (or cause to be transferred by book-entry) to each Holder a new Note equal in principal amount to any unpurchased portion of any such Notes surrendered; provided that each new Note will be in a minimum principal amount of $2,000 or an integral multiple of $1,000 in excess thereof.
(e) The Company 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 Company and such third party purchases all Notes properly tendered and not withdrawn under its offer.
(f) The Company 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 Notes of a series as a result of a Change of Control Repurchase Event. To the extent that the provisions of any securities laws or regulations conflict with this Article Four, the
Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations
under this Article Four by virtue of any such conflict.
(g) The following terms have the meanings ascribed to them as follows:
(i) “Below Investment
Grade Rating Event” means, with respect to a series of the Notes, the rating on such Notes is lowered by each of the Rating Agencies, and such Notes are rated below Investment Grade by
each of the Rating Agencies, within 60 days from the earlier of (i) the date of the public notice of an arrangement that
could result in a Change of Control or (ii) the occurrence of a Change
of Control (which period shall be extended so long as the rating of such Notes is under publicly announced consideration for possible
downgrade by any of the Rating Agencies). The Trustee shall not be responsible
for monitoring, or charged with knowledge of, the ratings of the Notes.
10
(ii) “Board of Directors” means either the Board of Directors of the Company or any duly authorized committee empowered by that Board of Directors or the executive committee thereof to act with respect to the Indenture.
(A) 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 Company’s assets and those of its subsidiaries, taken as a whole, to any “person” or “group” (as those terms are used
for purposes of Section 13(d)(3) of the Exchange Act), other than the Company
or one or more of its subsidiaries;
(B) the consummation of any transaction or series of related transactions (including, without limitation,
any merger or consolidation) the result of which is that any “person” or “group” (as those terms are used for purposes of Section 13(d)(3) of the Exchange Act), other than the Company or one of its wholly owned subsidiaries, becomes the beneficial owner, directly or indirectly, of more than 50% of the then outstanding number of shares of the Company’s Voting Stock, measured by voting power rather than number of shares;
(C) the Company consolidates with, or merges with or into, any person,
or any person consolidates with, or merges with or into, the Company, in any such event pursuant to a transaction in which any of the Company’s outstanding Voting Stock or the Voting Stock of such other person is converted into or exchanged for cash, securities or other
property, other than any such transaction where the shares of the Company’s Voting Stock outstanding immediately prior to such transaction constitute, or are converted into or exchanged for,
a majority of the Voting Stock of the surviving person or any direct or indirect parent company of the surviving person,
measured by voting power rather than number of shares, immediately after giving effect to such transaction;
(D) the first day on which a majority of the members of the Company’s Board of Directors are
not Continuing Directors; or
Notwithstanding the foregoing, a transaction will not be considered to be a Change of Control under clause
(B) above if (x) the Company becomes a
direct or indirect wholly owned subsidiary of a holding company and (y)(1) immediately following that transaction, the direct or indirect holders of the Voting Stock of the holding company are substantially the same as the holders of the Company’s Voting Stock immediately prior to that transaction or (2) immediately
following that transaction, no person (as that term is used in Section 13(d)(3) of the Exchange Act), other than a
11
holding company satisfying the requirements of this sentence, is the beneficial owner, directly or indirectly, of more than 50% of the Voting Stock of the holding company.
(iv) “Change of Control
Repurchase Event” means the occurrence of both a Change of Control and a Below Investment Grade Rating Event.
(v) “Continuing Directors” means, as of any date of determination, any member of the Company’s Board of Directors who (A) was a member of such Board of Directors on the date hereof or (B) was nominated for election, elected or appointed 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, election or appointment (either by a specific vote or by approval by such Continuing Directors of the Company’s
proxy statement in which such member was named as a nominee for election as a director).
(vii) “Investment Grade” means a rating of BBB- or
better by Fitch (or its equivalent under any successor rating categories of Fitch), Baa3 or better by Moody’s (or its equivalent under any successor rating categories of Moody’s) and a rating of BBB-
or better by S&P (or its equivalent under any successor rating categories of S&P) or the equivalent
investment grade credit rating from any additional Rating Agency or Rating
Agencies selected by the Company.
(ix) “Rating Agency” means (A) each of Fitch, ▇▇▇▇▇’▇ and S&P and (B) if any of Fitch, Moody’s or S&P ceases to rate the Notes or fails to make a rating of the Notes publicly
available for reasons outside of the Company’s control, a “nationally recognized statistical rating organization” within the
meaning of Section 3(a)(62) of the Exchange Act, selected by the Company
as a replacement agency for Fitch, Moody’s or S&P, or all of them, as the case may be.
(xi) “Voting Stock” means, with respect to any person as of any
date, capital stock of any class or kind the holders of which are ordinarily, in the absence of contingencies, entitled to vote for the election of directors (or persons performing similar functions) of such person, even if the right so to vote has
been suspended by the happening of such a contingency.
12
ARTICLE FIVE
COVENANTS; CERTAIN AMENDMENTS TO BASE INDENTURE
Section 5.01. Limitation on Liens.
(a) With respect to the 2026 Notes and the 2031
Notes only, the Base Indenture shall hereby be amended by deleting the text of Section 1008 in its entirety and replacing it with the following text:
(i) The Company shall not issue, incur, create, assume or guarantee, and shall not permit any Restricted Subsidiary to issue, incur, create, assume or guarantee, any Secured Debt without in any such case effectively providing concurrently with
such issuance, incurrence, creation, assumption or guarantee of any such Secured
Debt, or the grant of a Mortgage with respect to any such indebtedness, that the Notes (together with, if the Company shall so determine, any other indebtedness of or
guarantee by the Company or such Restricted Subsidiary ranking equally with the Notes and then existing
or thereafter created) shall be secured equally and ratably with (or, at the option of the Company, prior to) such Secured Debt. The foregoing restriction with respect to Secured Debt, however, shall not apply to:
(1) Mortgages on property existing at the time of acquisition thereof by the Company or any Subsidiary, whether or not assumed; provided that such Mortgages were in existence prior to the contemplation of such acquisitions;
(2) Mortgages on property, shares of stock or indebtedness or other assets of any corporation existing at the time such corporation becomes a Restricted Subsidiary; provided that such Mortgages are not incurred in anticipation of such corporation becoming a Restricted Subsidiary (which may include property previously leased by the Company and leasehold interests thereon, provided that the lease terminates prior to or upon the acquisition);
(3) Mortgages on property, shares of stock or indebtedness existing at the time of acquisition thereof by the Company or a Restricted Subsidiary (including leases) or Mortgages thereon to secure the payment of all or any part of the purchase price thereof,
or Mortgages on property, shares of stock or indebtedness to secure any indebtedness for
borrowed money incurred prior to, at the time of or within 12 months after, the latest of the acquisition thereof, or, in the case of property, the completion of construction, the completion of improvements, or
the commencement of substantial commercial operation of such property for the purpose of financing all or any part of the purchase price thereof, such construction, or the making of such improvements;
13
(6) Mortgages on property of a corporation existing at the time such corporation is merged into or consolidated with the Company or a Restricted Subsidiary or at the time of a sale, lease or other disposition of
the properties of a corporation as an entirety or substantially as an entirety to the Company or a Restricted Subsidiary; provided that such Mortgage was not incurred in anticipation of such merger or consolidation or sale, lease or other disposition;
(7) Mortgages in favor of the United States or any state, territory or possession thereof (or the District
of Columbia), or any department, agency, instrumentality or political subdivision of the United States or any state, territory or possession thereof (or the District
of Columbia), (i) to secure partial, progress, advance or other payments pursuant to any contract or statute, (ii) to secure any indebtedness incurred for the purpose of financing all or any part of the purchase price of the cost of constructing,
repairing or improving the property subject to such Mortgages or (iii) to secure
taxes, assessments or other governmental charges or levies which are not yet due and payable or are payable without penalty or of which amount, applicability or validity is being contested by the Company and/or any Restricted
Subsidiary in good faith by appropriate proceedings and the Company and/or such Restricted Subsidiary shall have set aside in its books reserves which it deems to be
adequate with respect thereto (segregated to the extent required by generally accepted accounting principles);
(8) Mortgages created in connection with the acquisition of assets or a project financed with, and created to secure, a Nonrecourse Obligation;
(9) Mortgages for materialmen’s, mechanics’, workmen’s, repairmen’s, landlord’s Mortgages for rent, or other similar Mortgages arising in the ordinary course of business in respect of obligations which are not yet overdue or which are being contested by the Company or any Restricted Subsidiary in good faith
and by appropriate proceedings;
(10) Mortgages consisting of zoning restrictions, licenses, easements and restrictions on the use of real property
and minor defects and irregularities in the title thereto, which do not materially impair the use of such property by the Company or any Restricted Subsidiary in the operation of business or the value of such property for the
purpose of such business; and
(11) Extensions, renewals, refinancings or replacements of any Mortgage referred to in the foregoing clauses (1), (2), (3), (4), (5), (6), (7), (8), (9) and (10);
provided, however, that any Mortgages permitted by any of the foregoing clauses (1), (2), (3), (4),
(5), (6), (7), (8), (9) and (10) shall not extend to or cover any property of the Company or such Restricted
Subsidiary, as the case may be, other than the property, if any, specified in such clauses and improvements thereto; provided, further that any refinancing or replacement of any Mortgages permitted by the foregoing clauses (7) and (8) shall be of the type referred to in such clauses (7) or (8), as the case may
be.
(ii) Notwithstanding the restrictions outlined in Section 5.01(a)(i), the Company or any Restricted Subsidiary shall be permitted to issue, incur, create, assume
14
or guarantee Secured Debt which would otherwise
be subject to such restrictions, without equally and ratably securing the Notes; provided that after giving effect thereto, the aggregate amount of all Secured Debt (not including Mortgages permitted under clauses (1) through (11) above), together with the aggregate amount of outstanding Attributable Debt with respect to Sale and Lease-Back Transactions incurred
pursuant to Section 5.02(a)(ii) below, does not exceed the greater of $1.0 billion and 15% of the Consolidated Net Tangible Assets of the Company as most
recently determined on or prior to such date.
(b) For purposes of this Section 5.01, the following definitions apply:
(ii) “Secured Debt” means any debt for borrowed money secured by a mortgage
upon any Principal Property of the Company or any Restricted Subsidiary or upon any shares of stock or indebtedness of any Restricted Subsidiary (whether such Principal Property, shares or indebtedness are now existing or owed or hereafter created or acquired).
(a) With respect to the 2026 Notes and the 2031
Notes only, the Base Indenture shall hereby be amended by deleting the text of Section 1009 in its entirety and replacing it with the following text:
(i) The Company shall not, nor shall it permit any Restricted
Subsidiary to, enter into any Sale and Lease-Back Transaction with respect to any Principal
Property, other than any such transaction involving a lease for a term of not more than three years or any such transaction between the Company and a Restricted Subsidiary or between Restricted Subsidiaries, unless:
(A) the Company or such Restricted Subsidiary would be
entitled to incur indebtedness secured by a Mortgage on the Principal Property involved in such transaction
at least equal in amount to the Attributable Debt with respect to such Sale and Lease-Back Transaction pursuant to any of clause (1), (2), (3),
(4), (5), (6), (7), (8), (9), (10) or (11) of the Section 5.01(a)(i) above without equally and ratably securing the Notes as described in Section 5.01 above;
or
(B) the Company shall apply an amount equal to the greater of the net proceeds of such sale and the Attributable Debt with respect to such Sale and Lease-Back Transaction within 180 days of such sale to
either (or a combination of) the retirement (other than mandatory retirement, mandatory prepayment or sinking fund payment or by a payment at maturity) of debt for borrowed money of the Company
or a Restricted Subsidiary that matures more than 12 months after the creation of such indebtedness or the purchase, construction or development of other comparable property.
15
(ii) Notwithstanding the restrictions outlined in Section 5.02(a)(i), the Company or any Restricted Subsidiary shall be permitted to enter into Sale and Lease-Back Transactions which would otherwise be subject to such
restrictions, without applying the net proceeds of such transactions in the manner set forth in Section 5.02(a)(i)(B) above; provided that after giving effect thereto, the aggregate amount of such Sale and Lease-Back Transactions, together with the aggregate amount of all outstanding Secured Debt not permitted by Section 5.01(a)(i)(1)
through Section 5.01(a)(i)(11) above, does not exceed the greater of $1.0 billion and 15% of Consolidated Net
Tangible Assets of the Company as most recently determined on or prior to such date.
(b) For purposes of this Section 5.02, the following definition applies:
(i) “Principal
Property” means the land, land improvements, buildings and fixtures (to the extent they constitute real property interests, including any leasehold interest therein) constituting the principal corporate office, any manufacturing plant or any
manufacturing facility (whether now owned or hereafter acquired) which:
(B) is located within any of the present 50 states of the United States (or the District of
Columbia);
(C) has not been determined in good faith by the Board of Directors not to be materially important to the total business conducted by the Company and its Subsidiaries taken as a whole; and
(D) has a book value on the date as of which the determination is being made in excess of 1.0% of Consolidated Net Tangible Assets of the Company as most recently determined on or prior to such date.
ARTICLE SIX
MISCELLANEOUS
(a) The Indenture, as supplemented by this Supplemental Indenture, is in all respects ratified and confirmed.
(b) This Supplemental Indenture shall be deemed part of the Base Indenture in the manner and to the extent herein and therein provided.
(a) If any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture Act which is required under such Act to be a part of and govern this Indenture, the Trust Indenture Act
shall control.
16
(b) If any provision of this Indenture
modifies or excludes any provision of the Trust Indenture Act
which may be so modified or excluded, then such provision of this Indenture shall control.
(a) To the extent not expressly amended or modified by this Supplemental Indenture, the Base Indenture shall remain in full force and effect.
(b) If any provision of this Supplemental Indenture relating to the Notes is inconsistent with any provision of the Base Indenture, the provision of this Supplemental Indenture shall control.
Section 6.04. Sinking Fund.
Section 6.05. Governing Law; Waiver of Jury Trial.
(a) THIS SUPPLEMENTAL INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE LAWS OF THE STATE
OF NEW YORK.
(b) The Company
irrevocably consents and agrees, for the benefit of the Holders from time to time of the Notes
and the Trustee, that any legal action, suit or proceeding against it with respect to obligations, liabilities or any other
matter arising out of or in connection with this Supplemental
Indenture or the Notes may be brought in the courts of the State of New York or the courts of the United States of America located in the Borough of Manhattan, New York City, New York and, until amounts due and to become due in respect of the Notes have been paid, hereby irrevocably consents and submits to
the non-exclusive jurisdiction of each such court in personam, generally and unconditionally with respect to any action, suit or proceeding for itself in respect of its properties, assets and revenues.
(c) EACH OF THE COMPANY,
THE TRUSTEE AND THE HOLDERS OF THE NOTES ISSUED HEREUNDER HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTION CONTEMPLATED HEREBY.
Section 6.06. Successors and Assigns.
All agreements of the Company in the Base Indenture, this Supplemental Indenture and the Notes shall bind its successors and assigns. All agreements of the Trustee in the Base Indenture and this Supplemental Indenture shall bind its successors.
17
Section 6.07. Counterparts.
(a) This Supplemental Indenture may be executed in any number of counterparts, each of which shall be
an original, but such counterparts shall together constitute but one and the same instrument.
(b) The exchange of copies of this Supplemental Indenture and of signature pages by facsimile, email
or other electronic format (i.e., “pdf,” “tif” “jpg” or other electronically imaged signatures, including, without limitation, DocuSign
or AdobeSign) transmission shall constitute effective execution and delivery of this Supplemental Indenture as to the parties hereto and may
be used in lieu of the original Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or
electronic format (i.e., “pdf” or “tif”) shall be deemed to be their original signatures for all purposes.
(c) This Supplemental Indenture, the Notes and any other document, certificate or opinion delivered in connection with this Supplemental
Indenture, or the issuance and delivery of Notes may be signed by or on behalf of the Company
and the Trustee by manual, facsimile or pdf or other electronically imaged signature (including any electronic signature covered by
the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and
Records Act or other applicable law, e.g., ▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇).
(a) The Trustee makes no representation as to the validity or sufficiency of this Supplemental Indenture and the Notes other than as to the
validity of its execution and delivery by the Trustee.
(b) The recitals and statements herein and in the Notes are deemed to be those of the Company not the Trustee and the Trustee assumes
no responsibility for the same.
(c) The Trustee or any Authenticating Agent shall not be accountable for the use
or application by the Company of Notes or the proceeds thereof.
Section 6.09. Electronic Communications.
(a) The Trustee shall have the right to accept and act upon instructions, including funds transfer instructions (“Instructions”) given pursuant to this Indenture and delivered using Electronic Means; provided, however, that the Company shall provide to the Trustee an incumbency certificate listing officers with the authority to provide such Instructions (“Authorized Officers”) and containing specimen signatures of such Authorized Officers, which incumbency certificate shall be
amended by the Company whenever a person is to be added or deleted from the listing.
(b) If the Company elects to give Instructions
to the Trustee using Electronic Means and the Trustee in its discretion elects to act upon such Instructions, the Trustee’s understanding of such Instructions shall be deemed controlling.
18
(c) The Company understands and agrees that the Trustee
cannot determine the identity of the actual sender of such Instructions and that the Trustee shall conclusively presume that
directions that purport to have been sent by an Authorized Officer listed on the incumbency certificate provided to the Trustee have been sent by such Authorized Officer.
(d) The Company shall be responsible for ensuring that only Authorized Officers transmit such Instructions to the Trustee and that the Company and all Authorized Officers are solely responsible to safeguard the use
and confidentiality of applicable user and authorization codes, passwords and/or authentication keys upon receipt by the Company.
(e) The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such Instructions notwithstanding such directions conflict or are inconsistent
with a subsequent written instruction.
(i) to assume all risks arising out of the use of Electronic Means to submit Instructions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized Instructions, and the risk of interception and misuse by third parties;
(ii) that it is fully informed of the protections and risks associated with the various methods of transmitting Instructions to the Trustee and that there may be more secure methods of transmitting Instructions than the method(s) selected by the Company;
(iii) that the security procedures (if any) to be followed in connection with its transmission of Instructions provide to it a commercially reasonable
degree of protection in light of its particular needs and circumstances; and
(iv) to notify the Trustee immediately upon learning of any compromise or unauthorized use of the security
procedures.
(g) For the purposes of this Section 6.09, “Electronic Means” shall mean the following communications
methods: e-mail, facsimile transmission, secure electronic transmission containing applicable authorization codes, passwords and/or authentication keys issued by the Trustee,
or another method or system specified by the Trustee as available for use in connection with its services hereunder.
[Remainder of page intentionally left blank]
19
IN WITNESS WHEREOF, the parties to this Supplemental Indenture have caused it to be
duly executed as of the day and year first above written.
|
By:
|
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
||
|
Name:
|
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
|
Title:
|
Treasurer
|
[Signature Page to Supplemental Indenture]
IN WITNESS WHEREOF, the parties to this Supplemental Indenture have caused it to be duly executed as of the day
and year first above written.
|
By:
|
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
|
||
|
Name:
|
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
|
|
Title:
|
Vice President
|
A-21
Appendix A
(a) Capitalized Terms. Capitalized terms used but not defined in this Appendix A have the meanings given to them in
the Indenture and in the Supplemental Indenture to
which this Appendix A is incorporated therein and is made a part thereof. The following capitalized terms have the following meanings:
“Applicable Procedures” means, with respect to any transfer or transaction involving a Global Note or beneficial interest therein, the rules and procedures of the Depositary for such Global Note, Euroclear or Clearstream, in each case to the extent applicable to such transaction and as in effect from time to time.
“Clearstream” means Clearstream Banking, Société Anonyme, or any successor
securities clearing agency.
“Custodian” means the Trustee, as custodian for the Depositary
with respect to the Notes in global form, or any successor entity thereto.
“Definitive Note” means a certificated Initial Note, Additional Note or Exchange Note issued pursuant to the Indenture
(bearing the Restricted Notes Legend if the transfer of such Note
is restricted by applicable law) that does not include the Global Notes Legend.
“Distribution Compliance Period,” means (i) with respect to the Initial Notes, the period of 40 consecutive days beginning on and including the later of (a) the day on which such Note is first offered to persons other
than distributors (as defined in Regulation S) in reliance on Regulation S, notice of which day shall be promptly given by the Company to the Trustee, and (b) the date of issuance with respect to such Note or any predecessor of such Initial Note and (ii) with respect to any Additional Notes that are Transfer Restricted Notes, the comparable period of 40 consecutive days.
“Euroclear” means Euroclear Bank SA/NV, as operator of Euroclear System or any successor securities clearing agency.
A-1
“Transfer Restricted Notes” means Definitive Notes and any Notes in global form that bear or are required to bear the Restricted Notes Legend.
“Unrestricted Global Note” means any Note in global form that does not bear or is
not required to bear the Restricted Notes Legend.
(b) Other Definitions.
|
Term:
|
Defined in
Section:
|
|
2.1(c)
|
|
|
2.2(e)
|
|
|
2.1(b)
|
|
|
2.2(e)
|
|
|
2.1(b)
|
|
|
2.1(a)
|
|
|
2.2(e)
|
|
|
2.1(b)
|
|
|
2.1(a)
|
Section 2.1 Form and Dating.
(a) The Initial Notes issued on the date hereof shall be (i) offered and sold by the Company to the initial purchasers thereof and (ii) resold, initially only to (1) QIBs in reliance on Rule 144A (“Rule 144A Notes”) and (2) Persons other than U.S. persons in
reliance on Regulation S (“Regulation S Notes”). Additional Notes may also be considered to be Rule 144A Notes or Regulation S Notes, as applicable.
(b) Global Notes. Rule 144A Notes shall be issued initially in the form of one or more fully registered global securities in denominations of $2,000 and integral multiples of $1,000 in excess thereof, numbered A-1 upward (collectively, the “Rule 144A Global Note”) and Regulation S Notes
shall be issued initially in the form of one or more global Notes, numbered S-1 upward (collectively, the “Regulation S Global Note”), in
each case without interest coupons and bearing the Global Notes Legend and Restricted Notes Legend, which shall be deposited on behalf of the purchasers of the Notes represented thereby with
the Custodian, and registered in the name of the Depositary or a nominee of the Depositary, duly executed by the Company and authenticated by the Trustee as provided in the Indenture. The Rule 144A Global Note, the Regulation S Global Note and any Unrestricted Global Note are each referred to herein as
a “Global Note” and are collectively referred to herein as “Global Notes.”
Each Global Note shall represent such of the outstanding Notes as shall be specified
in the “Schedule of Exchanges of Interests in the Global Note” attached thereto and each shall provide that it shall represent the aggregate principal amount of Notes
from time to time endorsed thereon and that the aggregate principal amount of outstanding Notes represented thereby may from time to time be reduced or
A-2
increased, as applicable, to reflect exchanges and redemptions. Any endorsement of a Global Note to reflect the amount of any
increase or decrease in the aggregate principal amount of outstanding Notes represented thereby shall be made by the Trustee or the Custodian, at the direction of the Trustee, in accordance with
instructions given by the Holder thereof as required by Sections 304 and 305 of the Base Indenture and Section
2.2(c) of this Appendix A.
(c) Book-Entry Provisions.
(i) This Section 2.1(c) shall apply only to a Global Note deposited with or on behalf of the Depositary.
(ii) The Company shall execute
and the Trustee shall, in accordance with this Section 2.1(c) and Section 303 of the Base Indenture and pursuant to a Company Order signed by one authorized officer of the Company, authenticate and deliver initially one or more Global Notes that (A) shall be registered in the name of the Depositary for such Global Note or Global
Notes or the nominee of such Depositary, and (B) shall be delivered by the Trustee to such Depositary or pursuant to such Depositary’s instructions or held by the Trustee
as Custodian.
(iii) Members of, or participants in, the Depositary (“Agent Members”) shall have no rights under the Indenture with respect
to any Global Note held on their behalf by the Depositary or by the Trustee as Custodian or under such Global Note, and the Depositary may be treated by the Company, the Trustee
and any agent of the Company or the Trustee as the absolute owner of such Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee or any agent of the Company
or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depositary or
impair, as between the Depositary and its Agent Members, the operation of customary practices of such Depositary governing the exercise of the rights of a Holder of a beneficial interest in any Global Note.
(d) Definitive Notes. Except as provided in Section 2.2 or Section
2.3 of this Appendix A, owners of beneficial interests in Global Notes shall not be entitled to receive physical delivery of Definitive Notes.
Section 2.2 Transfer and Exchange.
(a) Transfer and Exchange of Definitive Notes for Definitive Notes. When Definitive Notes are presented to the Security Registrar with a written
request:
(ii) to exchange such Definitive Notes for an equal principal amount
of Definitive Notes of other authorized denominations,
A-3
the Security Registrar shall register the transfer or make the exchange as requested if its reasonable requirements for such transaction are met; provided, however, that the Definitive Notes surrendered for transfer or exchange:
(1) shall be duly endorsed or accompanied by a written instrument of transfer in form reasonably satisfactory to
the Company and the Security Registrar, duly executed by the Holder thereof
or his attorney duly authorized in writing; and
(2) in the case of Transfer Restricted Notes, they are
being transferred or exchanged pursuant to an effective registration statement under the Securities Act or pursuant to Section 2.2(b) of this
Appendix A or otherwise in accordance with the Restricted Notes Legend, and are accompanied by a certification from the transferor in the
form provided on the reverse side of the form of Notes in Exhibit A to the Supplemental Indenture for exchange or registration of transfers and, as applicable, delivery of such legal opinions, certifications and other information as may be requested pursuant thereto.
(b) Restrictions on Transfer of a Definitive Note for a Beneficial Interest
in a Global Note. A Definitive Note may not be exchanged for a beneficial interest in a Global Note except upon satisfaction of the requirements set forth below. Upon receipt by the Trustee of a Definitive Note, duly endorsed or accompanied by a written instrument of transfer in form reasonably satisfactory to the Company and the Security Registrar, together with:
(i) a certification from the transferor in the form provided on the reverse side of the form of Notes in Exhibit A to the Supplemental Indenture for
exchange or registration of transfers and, as applicable, delivery of such legal opinions, certifications and other information as may be requested pursuant thereto, and
(ii) written instructions directing the Trustee to make, or to direct the Custodian to make, an adjustment on its books and records with respect to such Global Note to reflect an increase in the aggregate principal amount of the Notes represented by the Global Note, such instructions to contain information regarding the Depositary account to be credited with such
increase,
the Trustee shall cancel such Definitive Note and cause, or direct the Custodian
to cause, in accordance with the standing instructions and procedures existing between the Depositary and the Custodian, the aggregate principal amount of Notes represented by the Global Note to be increased by the aggregate principal amount
of the Definitive Note to be exchanged and shall credit or cause to be credited to the account of the Person specified in such instructions a beneficial interest in
the Global Note equal to the principal amount of the Definitive Note so canceled. If the applicable Global Note is not then outstanding, the Company shall issue and the Trustee shall authenticate, upon written order of the Company in the form of an Officers’ Certificate, a new applicable Global Note in the appropriate principal amount.
(i) The transfer and exchange of Global
Notes or beneficial interests therein shall be effected through the Depositary, in accordance with the Indenture
(including applicable restrictions on transfer set forth in Section 2.2(d) of this Appendix A, if any) and the
A-4
procedures of the Depositary therefor. A transferor of a beneficial interest in a Global Note shall deliver to the Security Registrar a written order given in accordance with the Depositary’s
procedures containing information regarding the participant account of the Depositary to be credited with a beneficial interest in such Global Note, or another Global Note, and such account shall be credited in accordance with such order with a beneficial
interest in the applicable Global Note and the account of the Person making the transfer shall be debited by an amount equal
to the beneficial interest in the Global Note being transferred.
(ii) If the proposed transfer is a transfer of a beneficial interest in one Global Note to a beneficial interest in another Global Note, the Security
Registrar shall reflect on its books and records the date and an increase in the principal amount of the Global Note to which such interest is being transferred
in an amount equal to the principal amount of the interest to be so transferred, and the Security Registrar shall reflect on its books and records the date and a corresponding decrease in the
principal amount of the Global Note from which such interest is being transferred.
(iii) Notwithstanding any other provisions of this Appendix A (other than the provisions set forth in Section
2.3 of this Appendix A), a Global Note may not be transferred except as a whole and not in part if the transfer is by the Depositary to a 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.
(d) Restrictions on Transfer of Global
Notes; Voluntary Exchange of Interests in Transfer Restricted Global Notes for Interests in Unrestricted
Global Notes.
(i) Transfers by an owner of a beneficial interest in a Rule 144A Global Note to a transferee who takes delivery of such interest through another Transfer Restricted Global
Note shall be made in accordance with the Applicable Procedures and the Restricted Notes
Legend and only upon receipt by the Trustee of a certification from the transferor in the form provided on the reverse side of the form of Notes in Exhibit A to the Supplemental Indenture for
exchange or registration of transfers and, as applicable, delivery of such legal opinions, certifications and other information as may be requested pursuant thereto.
(ii) During the Distribution Compliance Period, beneficial
ownership interests in the Regulation S Global Note may only be sold, pledged or transferred through Euroclear or Clearstream in accordance with the Applicable Procedures, the Restricted Notes Legend on such Regulation
S Global Note and any applicable securities laws of any state of the United States of America. Prior to the expiration of the Distribution
Compliance Period, transfers by an owner of a beneficial interest in the Regulation S Global Note shall be made only in accordance with the Applicable Procedures and the Restricted Notes Legend and upon receipt by the Trustee of a written certification from the transferor of the beneficial interest in the form provided on the reverse side of the form of Notes in Exhibit A to the Supplemental Indenture for
exchange or registration of transfers. Such written certifications shall no longer be required after the expiration of the Distribution Compliance Period. Upon the expiration of the Distribution Compliance Period, beneficial ownership interests in the Regulation S
Global Note shall be transferable in accordance with applicable law and the other terms of
A-5
(iii) Upon the expiration of the Distribution Compliance
Period, beneficial interests in the Regulation S Global Note may be exchanged for beneficial interests in an Unrestricted Global Note upon certification in the form provided on the reverse side of the form of Notes in Exhibit
A to the Supplemental Indenture for an exchange from a Regulation S Global Note to an Unrestricted Global Note.
(iv) Beneficial interests in a Transfer Restricted Note
that is a Rule 144A Global Note may be exchanged for beneficial interests in an Unrestricted
Global Note if the Holder certifies in writing to the Security Registrar that its request for such exchange is in respect of a transfer made in reliance on Rule 144 under the Securities Act and/or upon delivery of such legal opinions, certifications and other information as
the Company or the Trustee may reasonably request.
(v) If no Unrestricted Global Note is outstanding at the
time of a transfer contemplated by the preceding clauses (iii) and (iv), the Company shall issue and the Trustee shall authenticate, upon written order of the Company in the form of an Officer’s
Certificate, a new Unrestricted Global Note in the appropriate principal amount.
(e) Legends.
(i) Except as permitted by Section 2.2(d), this Section 2.2(e), Section 2.2(i) and Section
2.2(j) of this Appendix A, each Note certificate evidencing the Global Notes
and the Definitive Notes (and all Notes issued in exchange therefor or in substitution thereof) shall bear a legend in
substantially the following form (each defined term in the legend being defined as such for purposes of the legend only) (“Restricted Notes
Legend”):
THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR
THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS NOTE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT
FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH NOTE, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS [IN THE CASE OF RULE 144A NOTES:] ONE YEAR AFTER THE LATEST OF THE
ORIGINAL ISSUE DATE HEREOF, THE ORIGINAL ISSUE DATE OF THE ISSUANCE OF ANY ADDITIONAL SECURITIES AND THE LAST DATE ON WHICH THE COMPANY
OR ANY OF ITS AFFILIATES WERE THE OWNER OF SUCH SECURITIES (OR ANY PREDECESSOR THEREOF), OR [IN THE CASE OF REGULATION
S NOTES:] 40 DAYS AFTER THE LATEST OF THE ORIGINAL ISSUE DATE HEREOF, THE ORIGINAL DATE OF ISSUANCE OF ANY ADDITIONAL SECURITIES AND THE DATE ON WHICH SUCH SECURITIES (OR ANY
A-6
PREDECESSOR THEREOF) WAS FIRST OFFERED TO PERSONS OTHER THAN DISTRIBUTORS IN RELIANCE ON REGULATION
S, ONLY (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A
REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A
THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE
144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES IN OFFSHORE TRANSACTIONS IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO ANY REQUIREMENT OF LAW THAT THE DISPOSITION OF ITS
PROPERTY OR THE PROPERTY OF SUCH INVESTOR ACCOUNT OR ACCOUNTS BE AT ALL TIMES WITHIN ITS OR THEIR CONTROL AND TO COMPLIANCE WITH ANY APPLICABLE STATE SECURITIES LAWS, AND ANY APPLICABLE LOCAL LAWS AND REGULATIONS AND FURTHER SUBJECT TO THE COMPANY’S
AND THE TRUSTEE’S RIGHTS PURSUANT TO THE INDENTURE PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (I) PURSUANT TO CLAUSE (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR
OTHER INFORMATION SATISFACTORY TO EACH OF THEM, (II) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS NOTE
IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE AND (III) AGREES THAT IT WILL
GIVE TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS LEGEND.
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE SECURITY REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER
INFORMATION AS SUCH SECURITY REGISTRAR AND TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
(“DTC”), TO THE COMPANY OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED
BY AN AUTHORIZED
A-7
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN
PART, TO DTC, TO NOMINEES OF DTC OR TO
A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO
TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED
TO ON THE REVERSE HEREOF.
(ii) Upon any sale or transfer of a Transfer Restricted
Note that is a Definitive Note, the Security Registrar shall permit the Holder thereof to exchange such Transfer Restricted Note for a Definitive Note that does not bear the Restricted Notes Legend and the Definitive Notes Legend and rescind any restriction on
the transfer of such Transfer Restricted Note if the Holder certifies in writing to the Security
Registrar that its request for such exchange is in respect of a transfer made in reliance on Rule 144 and provides such legal opinions, certifications and other information as the Company or the Trustee may reasonably request.
(iii) After a transfer of any Initial Notes or Additional Notes during the period of the effectiveness of a Shelf Registration Statement (as defined in the Registration Rights Agreement)
with respect to such Initial Notes or Additional Notes, as the case may be, all requirements pertaining to
the Restricted Notes Legend on such Initial Notes or Additional Notes shall cease to apply and the requirements that any such Initial Notes or Additional Notes be issued in global form shall continue to apply.
(iv) Upon the consummation of an Exchange Offer with respect to the
Initial Notes or Additional Notes pursuant to which Holders of such Initial Notes or Additional Notes are offered Exchange Notes in exchange for their Initial Notes or Additional Notes, all requirements pertaining to Initial Notes or Additional Notes that Initial Notes or Additional Notes be issued in global form shall continue to apply, and Exchange Notes in global form without the Restricted Notes Legend shall be available to Holders that exchange such Initial Notes or Additional Notes in such Exchange Offer.
(v) Any Additional
Notes sold in a registered offering shall not be required to bear the Restricted Notes Legend.
(f) Cancellation or Adjustment of Global
Note. At such time as all beneficial interests in a Global Note have either been exchanged for Definitive
Notes, transferred in exchange for an interest in another Global Note, redeemed, repurchased or canceled, such Global Note shall be returned by the Depositary to the Trustee for cancellation
or retained and canceled by the Trustee. At any time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for Definitive Notes, transferred in exchange for an interest in another Global Note, redeemed, repurchased or canceled, the principal amount of Notes represented by such Global Note shall be reduced and an adjustment shall be made on the books and records of the Trustee
A-8
(if it is then the Custodian for such Global Note) with respect to such Global Note, by the Trustee or the Custodian,
to reflect such reduction.
(i) To permit registrations of transfers and exchanges, the Company shall execute and the Trustee shall authenticate, Definitive Notes and
Global Notes at the Security Registrar’s request.
(ii) No service charge shall be made for any registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any transfer tax, assessments, or similar governmental charge payable in connection therewith (other than any
such transfer taxes, assessments or similar governmental charge payable upon exchanges pursuant to Sections 304, 305, 306, 906 and 1107 of the Base
Indenture).
(iii) Prior to the due presentation for registration of transfer of any Note, the Company, the Trustee, the Paying Agent or the Security Registrar may deem and treat the person in whose name a Note is registered as the absolute owner of such Note for the purpose of receiving payment of principal, premium, if any, and
interest on such Note and for all other purposes whatsoever, whether or not such Note is
overdue, and none of the Company, the Trustee, the Paying Agent or the Security Registrar shall be affected by notice to the contrary.
(iv) All Notes issued upon any
transfer or exchange pursuant to the terms of the Indenture shall evidence the same debt and shall be entitled to the same benefits under the Indenture as the Notes surrendered upon such transfer or exchange.
(v) In order to effect any transfer or exchange of an interest in any Transfer Restricted Note for an interest in a Note that does not bear the Restricted Notes Legend and has not been registered under the Securities Act, if the Security Registrar so requests or if the Applicable Procedures so require,
an Opinion of Counsel, in form reasonably acceptable to the Security Registrar to the effect that no registration under the Securities Act is required in respect of such exchange or transfer or the re-sale of such interest by the beneficial Holder
thereof, shall be required to be delivered to the Security Registrar and the Trustee.
(i) The Trustee shall have no
responsibility or obligation to any beneficial owner of a Global Note, a member of, or a participant in the Depositary
or any other Person with respect to the accuracy of the records of the Depositary or its nominee or of any participant or member thereof, with respect to any
ownership interest in the Notes or with respect to the delivery to any participant, member, beneficial owner or other Person
(other than the Depositary) of any notice (including any notice of redemption or repurchase) or the payment of any amount, under or with respect to such Notes. All notices and communications to be given to the Holders and all payments to be made to Holders under the Notes shall be given or made only to the registered Holders (which shall be the Depositary or its nominee in the case of a Global Note). The rights of beneficial owners in any Global Note shall be
exercised only through the Depositary subject to the applicable rules and procedures of the Depositary.
A-9
The Trustee may conclusively rely and shall be fully protected in conclusively relying upon information furnished by
the Depositary with respect to its members, participants and any beneficial owners.
(ii) The Trustee shall have no
obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under the Indenture or under applicable law with
respect to any transfer of any interest in any Note (including any transfers between or among Depositary participants,
members or beneficial owners in any Global Note) other than to require delivery of such certificates and other documentation or evidence as are expressly
required by, and to do so if and when expressly required by, the terms of the Indenture, and to examine the same to determine substantial compliance as to form
with the express requirements hereof.
(iii) Neither the Trustee nor any
agent shall have any responsibility or liability for any actions taken or not taken by the Depositary.
(i) Exchange Offer. Upon the occurrence of the Exchange Offer in accordance with the Registration Rights Agreement, the Company shall issue and, upon receipt of a Company Order in accordance with Section 303 of the Base Indenture, the Trustee shall authenticate (i) one or more Global Notes without the Restricted Notes Legend in an aggregate principal amount equal to the
principal amounts of the beneficial interests in the Global Notes tendered for acceptance by Persons that provide in the
applicable letters of transmittal such certifications as are required by the Registration Rights Agreement and applicable law, and
accepted for exchange in the Exchange Offer and (ii) Definitive Notes without the Restricted Notes Legend in an aggregate principal amount equal to the principal amount of the Definitive Notes tendered for acceptance by Persons that provide in the applicable letters of transmittal such certification as are required by the Registration Rights Agreement and applicable law, and accepted for exchange in the Exchange Offer. Concurrently with the issuance of such Notes, the Trustee shall cause the aggregate principal amount of the applicable Global Notes with the Restricted Notes Legend to be
reduced accordingly, and the Company shall execute and the Trustee shall
authenticate and mail to the Persons designated by the Holders of the Definitive Notes so accepted Definitive
Notes without the Restricted Notes Legend in the applicable principal amount. Any Notes that remain outstanding after the consummation of the Exchange Offer, and Exchange Notes issued in connection
with the Exchange Offer, shall be treated as a single class of securities under the Indenture.
(a) A Global Note deposited with the Depositary or with the Trustee as Custodian pursuant to Section 2.1 or issued in connection with an Exchange Offer may be transferred to the beneficial
owners thereof in the form of Definitive Notes in an aggregate principal amount equal to the principal amount of such Global
Note, in exchange for such Global Note, only if such transfer complies with Section 2.2 of this Appendix A and (i) if the Depositary
notifies the Company that it is unwilling or unable to continue to act as depositary or has ceased to be a clearing agency registered under the Exchange Act and, in either case, a successor depository is not appointed by the Company within 90 days, (ii) if the Company, at its option, notifies the Trustee in writing that it elects to exchange in whole, but not in part, the Global Notes for
A-10
Definitive Notes, or (iii) if the owner of a book-entry interest
requests such exchange in writing to the Depositary following an Event of Default under the Indenture. In addition, any Affiliate of the Company that is a beneficial owner of
all or part of a Global Note may have such Affiliate’s beneficial interest transferred to such Affiliate in the form of a Definitive Note by providing a written request to the Company
and the Trustee and such Opinions of Counsel, certificates or other information as may be required by the Indenture or the Company or Trustee.
(b) Any Global Note that is transferable to the
beneficial owners thereof pursuant to this Section 2.3 shall be surrendered by the Depositary to the Trustee, to be
so transferred, in whole or from time to time in part, without charge, and the Trustee shall authenticate and deliver, upon such transfer of each portion of such Global Note, an equal aggregate principal amount of Definitive Notes of authorized denominations. Any portion of a
Global Note transferred pursuant to this Section 2.3 shall be executed, authenticated and delivered only in denominations of $2,000 and integral multiples of $1,000 in excess thereof and registered in such names as the Depositary shall direct. Any Definitive Note delivered in exchange for an interest in a Global Note that is a Transfer Restricted Note shall, except as otherwise provided by Section 2.2(e) of this Appendix A, bear the Restricted Notes Legend.
(c) The registered Holder of a Global Note may
grant proxies and otherwise authorize any Person, including Agent Members and Persons
that may hold interests through Agent Members, to take any action which a Holder is entitled to take under the Indenture or the Notes.
(d) In the event of the occurrence of any of the events specified in Section 2.3(a) of this Appendix A, the Company shall promptly make available to the Trustee a reasonable supply of Definitive Notes in fully registered form without interest coupons.
A-11
Exhibit A
No.
representing
$
CUSIP:
ISIN:
HP Inc., a corporation duly organized and existing under the laws of Delaware (herein called the “Company,” which term includes any successor Person under the Indenture hereinafter referred to), for value received,
hereby promises to pay to Cede & Co., or registered assigns, the principal sum of Dollars
($ ) or such other amount indicated on the Schedule of Exchange of Global Security attached hereto on June 17, 20 (if such date is not a Business Day, payment of principal, premium, if any, and interest for the Securities will be paid on the next Business Day); provided, however, that no interest on that payment will accrue from and after June 17, 20 , and to pay interest thereon from June 16, 2021, or from the most recent Interest Payment Date to which interest has been paid or duly provided for, semi-annually
on June 17 and December 17 in each year, commencing December 17, 2021, at the
rate of % per annum, until the principal hereof is paid or made available for payment. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Person
in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the fifteenth
day (whether or not a Business Day) immediately preceding such Interest Payment Date. Any such interest not
so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities of this series not less than 10 days prior to such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the Securities of this series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in
the Indenture. Interest on the Security shall be computed on the basis of a 360-day
year comprised of twelve 30-day months. If an Interest Payment Date on the Securities falls on a date that is not
a Business Day, the payment of such interest shall be postponed to the next succeeding Business Day as if made on the Interest Payment Date, and no interest on such payment shall accrue for the period from and
1
So long as all of the Securities of this series are represented by Global Securities, the principal of, premium, if any, and
interest, if any, on this Global Security shall be paid in immediately available funds to the Depositary or to a nominee of the Depositary. If at any time the Securities of this series are no longer represented by the Global Securities and
are issued in definitive form (“Certificated Securities”), then the principal of, premium, if any, and interest, if any, on each Certificated Security at Maturity shall be paid to the Holder upon surrender of such Certificated Security at the office or agency maintained by the Company in the Borough of Manhattan, The City of New York (which shall initially be the office of The Bank of New York
Mellon, an affiliate of The Bank of New York Mellon Trust Company, N.A., the Trustee); provided that
such Certificated Security is surrendered to the Trustee,
acting as Paying Agent, in time for the Paying Agent to make such payments in such funds in accordance with its normal procedures. Payments of interest with
respect to Certificated Securities other than at Maturity may, at the option of the Company, be made by check mailed to the address of the Person entitled thereto as it appears on the Security Register on the relevant Regular or Special Record Date, as the case may be, or by wire transfer in same day funds to such account as may have been appropriately designated to the Paying Agent by such Person in writing not later than such relevant Regular or Special Record Date.
Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if
set forth at this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual, electronic or
facsimile or pdf or other electronically imaged signature (including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable law, e.g., ▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇) this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
[Signature Page Follows]
2
|
By:
|
||
|
Name:
|
|
|
Title:
|
This is one of the Securities of the series designated herein referred to in the within-mentioned Indenture.
|
Dated:
|
|
By:
|
||
|
Authorized Signatory
|
This Security is one of a duly authorized issue of securities of the Company (herein called
the “Securities”), issued and to be issued in one or more series under an Indenture, dated as of June 17, 2020 (herein called the “Base Indenture”), between the Company and The Bank of New York Mellon Trust Company, N.A., as trustee (herein called the “Trustee,” which term includes any successor Trustee under the Indenture), as supplemented and modified by the Supplemental Indenture dated June 16, 2021 (the “Supplemental Indenture” and, together with the Base Indenture, the “Indenture”) and reference is hereby made to the Indenture and all indentures
supplemental thereto for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is one of the series designated on the face hereof initially in aggregate principal
amount of $1,000,000,000.
Optional Redemption
The Company will have the right to redeem the Securities, in whole at any time or in part
from time to time, on at least 10 days’ but not more than 45 days’ prior written notice sent to the registered Holders of the Securities to be redeemed.
Prior to the Par Call Date, the Securities will be redeemable in whole at any time or in
part from time to time at a Redemption Price equal to the greater of:
(ii) the sum, as determined by the Company based on the Reference Treasury Dealer Quotations, of the present values of the Remaining
Scheduled Payments of principal and interest thereon that would be due if the Securities to be redeemed matured on the Par
Call Date (exclusive of accrued and unpaid interest, if any, to, but excluding, the Redemption Date), discounted to the Redemption Date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the then current Treasury Rate plus basis points,
plus, in each case, accrued and unpaid interest, if any, on the amount being redeemed to, but excluding, the Redemption Date.
On or after the Par Call Date, the Securities will be redeemable in whole at any time or
in part from time to time at a Redemption Price equal to 100.000% of the principal amount of the Securities to be
redeemed, plus accrued and unpaid interest, if any, to, but excluding, the Redemption Date.
If money sufficient to pay the Redemption Price of and accrued interest on the Securities (or portions thereof) to be redeemed
on the Redemption Date is deposited with the Trustee or Paying Agent on or before the Redemption Date and the conditions set forth in Article Eleven of the Base Indenture are satisfied, then on and after the
Redemption Date, interest will cease to accrue on the Securities (or such portion thereof) called for redemption. If any Redemption Date
5
is not a Business Day, the Company will pay the Redemption Price on the next Business Day without any interest or other payment due to the delay.
If fewer than all of the Securities are to be redeemed, not more than 45 days prior to the Redemption
Date, the Securities for redemption shall be selected from the Outstanding Securities not previously called in accordance with the procedures of The
Depository Trust Company, a New York corporation, or, in the case of Certificated Securities, by lot
or by such method consistent with the Trustee’s procedures. No Securities of $1,000
or less will be redeemed in part; provided that the unredeemed portion of the Securities redeemed in part may not be less than $2,000.
Unless the Company defaults in the payment of the Redemption Price and accrued interest,
no interest will accrue on the Securities called for redemption for the period from and after the Redemption Date.
In the event of redemption of this Security in part only, a new Security or Securities
of this series and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof.
“Comparable Treasury Issue” means the United States
Treasury security selected by an Independent Investment Banker as having a maturity comparable to the remaining term (the “Remaining Life”) of the Securities to be redeemed (assuming for this purpose that such Securities to be redeemed matured on the Par Call Date) 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 Securities (assuming for this purpose that the Securities to be redeemed matured on the Par Call Date).
“Comparable Treasury Price” means, with respect to any Redemption
Date, (1) the average of the Reference Treasury Dealer Quotations for such Redemption
Date, after excluding the highest and lowest Reference Treasury Dealer Quotations, (2) if the Independent Investment Banker obtains fewer than four such Reference Treasury Dealer Quotations, the average of all such quotations, or (3) if the Independent Investment Banker obtains only one such Reference Treasury Dealer
Quotation, such quotation.
“Independent Investment Banker” means one of the Reference Treasury Dealers that the Company appoints to act as the Independent Investment Banker.
“Reference Treasury Dealer” means each of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co. LLC, ▇.▇. ▇▇▇▇▇▇ Securities LLC and ▇▇▇▇▇ Fargo Securities, LLC, and any
other primary U.S. government securities dealer in the United States (a “Primary Treasury Dealer”) that the Company specifies from time to time, and their respective successors; provided,
however, that if any of the foregoing shall cease to be a Primary Treasury Dealer, the Company shall substitute therefor another Primary Treasury Dealer.
“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any Redemption Date, the average, as determined by the Company, of the bid and
6
asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the
Company 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: (1) the yield, under the heading which represents the average for the immediately preceding week, appearing in, or available through, the most recently published statistical release
designated “H.15” or any successor publication which is published weekly by the Board of Governors of the Federal Reserve System (or companion online data resource published by the Board of Governors of the Federal Reserve System) and which establishes yields on actively traded United States Treasury securities adjusted to constant maturity under the
caption “Treasury Constant Maturities,” for the maturity corresponding to the Comparable Treasury Issue; provided that, if no maturity is within three months before or after the Remaining Life of the Securities to be redeemed, yields for the two published maturities most closely corresponding to the Comparable Treasury Issue shall be determined and the Treasury
Rate shall be interpolated or extrapolated from those yields on a straight-line basis, rounding to the nearest month; or (2) if such release (or any successor release) is not published during the week preceding the calculation date or does not
contain such yields, the rate per annum equal to the semi-annual equivalent yield to maturity of the Comparable Treasury Issue, calculated using a price for the Comparable Treasury
Issue (expressed as a percentage of its principal amount) equal to the related Comparable Treasury Price for such Redemption Date. The Treasury Rate shall be calculated by the Company on the third Business Day preceding the Redemption Date.
If a Change of Control Repurchase Event occurs after the date hereof, unless the Company has exercised its right to redeem the Securities as described above under “Optional Redemption,” the Company will make an offer to each Holder of Securities to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Securities at a repurchase price in cash equal to 101.000% of
the aggregate principal amount of Securities repurchased plus any accrued and unpaid interest on the Securities repurchased to the date of purchase.
Within 30 days following any Change of Control Repurchase Event or, at
the Company’s option, prior to any Change of Control, but after the
public announcement of the transaction or event that constitutes or may constitute the Change of Control, the Company will send a notice to each Holder to which the Company is required to make a
repurchase offer as described above, with a copy to the Trustee, describing the transaction or event that constitutes or may constitute the Change of Control Repurchase Event and offering to repurchase the Securities 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 mailed. The notice may, 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.
7
(i) accept for payment all Securities or portions of Securities (in a minimum principal
amount of $2,000 and integral multiples of $1,000 in excess thereof) properly tendered and not withdrawn pursuant to the Company’s offer;
(ii) deposit with the Paying Agent an amount equal to the aggregate purchase price in respect of all Securities or portions of Securities properly tendered and not withdrawn; and
(iii) deliver or cause to be delivered to the Trustee the Securities properly accepted, together with an Officers’ Certificate stating the aggregate principal amount of Securities or portions of Securities being purchased by the Company.
The Paying Agent will promptly send to each Holder of Securities properly tendered and not withdrawn the purchase price for
such Securities, and the Trustee will promptly authenticate and mail (or cause to be transferred by book-entry) to each Holder a new Security equal in principal amount to any unpurchased portion of any such Securities surrendered; provided
that each new Security will be in a minimum principal amount of $2,000 or an integral multiple of $1,000 in excess thereof.
The Company will not be required to make an offer to repurchase the Securities 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 Company and such third party purchases all Securities properly tendered and not
withdrawn under its offer.
The Company 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 Securities as a result of a Change of Control Repurchase Event. To the extent that the provisions of any securities laws or regulations conflict with this provision, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this provision by virtue of any such conflict.
“Below Investment Grade Rating Event” means, with respect to the Securities, the rating on the Securities is lowered by each of the Rating
Agencies, and the Securities are rated below Investment Grade by each of the Rating Agencies, within 60 days from the earlier of (1) the date of the public notice of an arrangement that could result in
a Change of Control or (2) the occurrence of a Change of
Control (which period shall be extended so long as the rating of the Securities is under publicly announced consideration for possible downgrade by any of the Rating Agencies). The Trustee shall not be responsible for monitoring, or charged with knowledge of, the ratings of the Securities.
“Board of Directors” means either the Board of Directors of the Company
or any duly authorized committee empowered by that Board of Directors or the executive committee thereof to
act with respect to the Indenture.
8
(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 Company’s assets and those of its subsidiaries, taken as a whole, to any “person” or “group” (as those terms are used for purposes of Section 13(d)(3) of the Exchange
Act), other than the Company or one or more of its subsidiaries; (2) the consummation of any transaction or series of related transactions (including, without
limitation, any merger or consolidation) the result of which is that any “person” or “group” (as those terms are used for purposes of Section 13(d)(3) of the Exchange Act), other than the Company or one of its wholly owned subsidiaries, becomes the beneficial owner, directly or indirectly, of more than 50% of the then outstanding number of shares of the Company’s Voting Stock, measured by voting power rather than number of shares; (3)
the Company consolidates with, or merges with or into, any person, or any person consolidates with, or merges with or into, the Company, in any such event pursuant to a transaction in which any of the Company’s outstanding Voting Stock or the Voting Stock of such other person is converted into or
exchanged for cash, securities or other property, other than any such transaction where the shares of the Company’s Voting Stock outstanding immediately prior to such transaction constitute, or are converted into or exchanged for, a majority of the Voting Stock of the surviving person or any direct or indirect parent company of the surviving person, measured by voting power rather than number of shares, immediately after giving effect to such
transaction; (4) the first day on which a majority of the members of the Company’s Board of Directors are not Continuing Directors; or (5) the adoption by the Company of a plan providing for its liquidation or dissolution.
Notwithstanding the foregoing, a transaction will not be considered to be a Change of Control under clause (2) above if (a)
the Company becomes a direct or indirect wholly owned subsidiary of a holding company and (b)(x) immediately following that transaction, the direct or indirect holders
of the Voting Stock of the holding company are substantially the same as the holders of the Company’s Voting Stock immediately prior to that transaction or (y) immediately following that transaction, no person (as
that term is used in Section 13(d)(3) of the Exchange Act), other than a holding company satisfying the requirements of this sentence, is the beneficial owner, directly or indirectly, of more than 50% of the Voting Stock of the holding company.
For purposes of the foregoing discussion of the purchase of Securities upon a Change of Control Repurchase Event, the following definitions are applicable:
“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 Company’s Board of Directors who (1) was a member of such Board of Directors on June 16, 2021 or (2) was nominated for election, elected or appointed 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, election or appointment (either
by a specific vote or by approval by such Continuing Directors of the Company’s proxy statement in which such member was named as a nominee for election as a director).
9
“Investment Grade” means a rating of BBB- or better by Fitch (or its equivalent under any successor rating categories of Fitch),
Baa3 or better by Moody’s (or its equivalent under any successor rating categories of Moody’s) and a rating of BBB- or better by S&P (or its
equivalent under any successor rating categories of S&P) or the equivalent investment grade credit rating from any additional Rating Agency or Rating Agencies selected by the Company.
“Rating Agency” means (1) each of Fitch, Moody’s and S&P and
(2) if any of Fitch, Moody’s
or S&P ceases to rate the Securities or fails to make a rating of the Securities publicly
available for reasons outside of the Company’s control, a “nationally recognized statistical rating organization” within the meaning of Section 3(a)(62) of the
Exchange Act, selected by the Company as a replacement agency for Fitch, Moody’s or S&P,
or all of them, as the case may be.
“Voting Stock” means, with respect to any person as of any date, capital stock of any class or kind the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the election of directors (or persons performing similar functions) of such person, even if the right so to vote has been suspended by the happening of such a contingency.
The Indenture contains provisions, which will apply to the Securities, for defeasance and
covenant defeasance and Events of Default with respect to this Security, in each case upon compliance with certain conditions set forth in the Indenture.
If an Event of Default with respect to Securities of this series shall occur and be continuing, the principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities of each
series to be affected under the Indenture at any time by the Company and the Trustee with the consent of the Holders of more than 50% in principal amount of the Securities at the time Outstanding of each series to be affected. The Indenture
also contains provisions permitting the Holders of specified percentages in principal amount of the Securities of each series at the time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive
and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the
registration or transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder of this
Security shall not have the right to institute any proceeding with respect to the Indenture or for the appointment of a receiver or Trustee or for any other remedy thereunder, unless such Holder shall have previously given the Trustee written notice of a continuing Event of Default with
10
respect to the Securities of this series, the Holders of not less than 25% in principal amount of the Securities of this series at the time Outstanding shall have made written request to the Trustee to institute proceedings in respect of such Event of Default as Trustee
and offered the Trustee indemnity satisfactory to the Trustee, and the Trustee shall not have received from the Holders of a majority in principal amount of Securities
of this series at the time Outstanding a direction inconsistent with such request, and shall have failed to institute any such proceeding, for 60 days after receipt of
such notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted by the Holder of this Security for the enforcement of any payment of principal hereof or any
premium or interest hereon on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and
unconditional, to pay the principal of and any premium and interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed.
The Securities of this series are issuable only in registered form without coupons in denominations of $2,000 and any integral multiples of
$1,000 in excess thereof.
This Security shall be deemed to be a contract made under the laws of the State of New York, and for all purposes shall be
construed in accordance with and governed by the laws of said State, without regard to conflict of laws principles thereof.
All terms used in this Security that are defined in the Indenture shall have the meanings
assigned to them in the Indenture.
The Company shall pay all Additional Interest, if any, on the applicable Interest Payment Date in the same manner as interest is paid on the Notes and in the amounts set forth in the Registration
Rights Agreement.
For purposes of the foregoing, the following definitions are applicable:
“Additional Interest” means all additional interest then owing pursuant to the Registration Rights Agreement.
“Registration Rights Agreement” means (1) the registration rights agreement, dated as of June 16, 2021, by and among the Company, ▇▇▇▇▇▇▇ Sachs & Co. LLC, ▇.▇. ▇▇▇▇▇▇ Securities LLC and
▇▇▇▇▇ Fargo Securities, LLC, as representatives of the initial purchasers set forth on Schedule II to the Purchase Agreement (as defined in the Registration Rights
Agreement) and (2) with respect to any Additional Notes, one or more registration rights agreements as may be entered into in connection with the
issuance of any such Additional Notes in a private offering by the Company
after the date hereof, as such agreements may be amended from time to time.
11
ASSIGNMENT
|
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto:
|
||
|
the within Global Security of HP INC. and all rights hereunder,
hereby irrevocably constituting and appointing
|
||
|
|
attorney to |
| transfer said Global Security on the books of the within-named Company, with full power of substitution in the premises. | |
|
Dated:
|
|||||
|
SIGN HERE
|
|||||
|
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS WRITTEN UPON THE FACE OF THE WITHIN INSTRUMENT IN EVERY PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.
|
|||||
| SIGNATURE GUARANTEED |
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR
This certificate relates to $__________ principal amount of Notes held in (check applicable space) __________ book-entry or __________
definitive form by the undersigned.
The undersigned (check one box below):
| ☐ |
In connection with any transfer of any of the Notes evidenced by this certificate, the undersigned confirms that such Notes are being transferred in accordance with its terms:
CHECK ONE BOX BELOW
Unless one of the boxes is checked, the Trustee will refuse to register any of the Notes evidenced by this certificate in the name of any Person other than the registered Holder thereof; provided, however,
that if box (6) is checked, the Company may require, prior to registering any such transfer of the Notes, such legal opinions, certifications and other information as the Company has reasonably requested to confirm that such
transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act.
|
Your Signature
|
|||
|
Date:
|
Signature of Signature Guarantor
|
TO BE COMPLETED BY PURCHASER IF (4) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this Note for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a “qualified institutional buyer” within the meaning of Rule 144A, and is aware that the sale to it is
being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Company as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that it is
aware that the transferor is relying upon the undersigned’s foregoing representations in order to claim the exemption from registration provided by Rule 144A.
|
Date:
|
|||
|
|
|
NOTICE:To be executed by an executive officer | |
|
|
Name: | ||
|
|
Title: |
| Signature Guarantee*: |
* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).
TO BE COMPLETED IF THE HOLDER REQUIRES AN EXCHANGE FROM
The undersigned represents and warrants that either:
| ☐ |
| ☐ |
|
Dated:
|
|
|
Your Signature
|
Include only for Regulation S Global Notes.
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have all or part of this Security purchased by the Company
pursuant to a Change of Control, state the amount you elect to have purchased:
|
|
$ |
|
|||
|
|
Date: |
|
|
| Your Signature: | ||
|
|
| Tax Identification No.: |
|
|
Signature Guarantee*: |
|
|
* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).
The initial principal amount of this Global Security is $ . The following increases or decreases in this Global Security have
been made:
|
Date
|
Amount of
Decrease in
Principal
Amount of this
Global Security
|
Amount of
Increase in
Principal
Amount of this
Global Security
|
Principal
Amount of this
Global Security
Following Such
Decrease or
Increase
|
||||||