and
THE
BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
FIRST
SUPPLEMENTAL INDENTURE
Dated as of
June 16, 2021
to
Dated as of
June 17, 2020
Relating to
$1,000,000,000
1.450%
Notes due
2026
$1,000,000,000
2.650%
Notes due
2031
FIRST
SUPPLEMENTAL INDENTURE
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.
Section 1.03. For purposes of this
Supplemental
Indenture, the following terms have the meanings ascribed to them as follows:
“
2026 Notes” has the meaning provided in the recitals.
“
2031 Notes” has the meaning provided in the recitals.
“
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).
“
Base Indenture” has the meaning provided in the recitals.
“
Certificated Securities” has the meaning provided in
Section 2.03(e).
“
Company” has the meaning set forth in the preamble.
“
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.
“
Depositary” has the meaning provided in
Section 2.03(d).
“
Exchange Notes” means any notes issued in exchange for
Notes pursuant
to the
Registration Rights Agreement.
“
Indenture” has the meaning provided in the recitals.
“
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).
“
Interest Payment Date” has the meaning provided in
Section 2.04.
“
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
Goldman Sachs & Co. LLC, J.P.
Morgan
Securities LLC and
Wells 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, Goldman Sachs & Co. LLC, J.P.
Morgan
Securities LLC and
Wells 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.
“
Regular Record Date” has the meaning provided in
Section 2.04.
“
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.
“
Supplemental Indenture” has the meaning provided in the preamble.
“
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
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.
“
Trustee” has the meaning provided in the preamble.
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
GENERAL TERMS AND CONDITIONS OF THE NOTES
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.
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
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”).
(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
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
Section 4.01. Repurchase at the Option of Holders Upon Certain
Changes of Control.
(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.
(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.
(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.
(iii) “
Change of Control” means the occurrence of any
of the following:
(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
(E) 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
(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 o
f the V
oting Stock of the holding c
ompany are substantially the same as the holders of the C
ompany’s V
oting 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
holding c
ompany satisfying the requirements of this sentence, is the beneficial owner, directly or indirectly, of more than 5
0% o
f the V
oting Stock of the holding c
ompany.
(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).
(vi) “
Fitch” means
Fitch Ratings, Ltd., a division of
Fitch, Inc., or its successors.
(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.
(viii) “
Moody’s” means
Moody’s Investors Service, Inc. or its successors.
(ix) “
Rating Agency” means (A) each of
Fitch,
Moody’s 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.
(x) “
S&P” means
S&P Global Ratings, a division of
S&P Global Inc., or its successors.
(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.
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;
(4) Mortgages to secure indebtedness owing to
the
Company or
to a
Restricted Subsidiary;
(5) Mortgages existing at the date of the issuance of the
Notes;
(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
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:
(i) “
Mortgage” means a mortgage, security interest, pledge, lien,
charge or other encumbrance; and
(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).
Section 5.02. Limitation on Sale and Lease-Back Transaction.
(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.
(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:
(A) is owned by the
Company or any
Restricted Subsidiary;
(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
Section 6.01. Application of
Supplemental
Indenture.
(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.
Section 6.02. Trust
Indenture Act Controls.
(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.
(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.
Section 6.03. Conflict with
Base Indenture.
(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.
The
Notes are not subject to any sinking fund or analogous provisions.
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.
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., www.docusign.com).
Section 6.08. Trustee Disclaimer.
(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.
(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]
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.
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By:
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/s/ Zachary J. Nesper
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[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.
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THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee
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By:
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/s/ Lawrence M. Kusch
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Appendix A
PROVISIONS RELATING TO
INITIAL NOTES,
ADDITIONAL NOTES AND
EXCHANGE NOTES
(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.
“
Exchange Offer” has the meaning set forth in the
Registration
Rights Agreement.
“
QIB” means a “qualified institutional buyer” as defined in
Rule 144A.
“
Regulation S” means
Regulation S promulgated under the
Securities Act.
“
Rule 144” means
Rule 144 promulgated under the
Securities
Act.
“
Rule 144A” means
Rule 144A promulgated under the
Securities Act.
“
Securities Act” means the U.S. Securities Act of 1933, as amended.
“
Transfer Restricted Notes” means
Definitive Notes and any
Notes in global form that bear or are required to bear the
Restricted Notes Legend.
“
U.S. person” means a “
U.S. person” as defined in
Regulation S.
“
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:
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Defined in
Section:
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2.1(c)
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“ Definitive Notes Legend”
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2.2(e)
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2.1(b)
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2.2(e)
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“ Regulation S Global Note”
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2.1(b)
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2.1(a)
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“ Restricted Notes Legend”
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2.2(e)
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2.1(b)
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2.1(a)
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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
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:
(i) to register the transfer of such Definitive Notes, or
(ii) to exchange such Definitive Notes for an equal principal amount
of Definitive Notes of other authorized denominations,
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.
(c) Transfer and Exchange of Global
Notes.
(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
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
(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
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.
Each
Definitive Note shall bear the following additional legend (“
Definitive Notes 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.
Each
Global Note shall bear the following additional legend (“
Global
Notes Legend”):
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
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
(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.
(g) Obligations with Respect to Transfers and Exchanges of Notes.
(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.
(h) No Obligation of 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.
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.
Section 2.3 Definitive Notes.
(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
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.
Exhibit A
Form of
Global Note representing the
Notes
[Insert the
Restricted Notes Legend, if applicable pursuant to the provisions of the
Indenture]
[Insert the
Global Notes Legend, if applicable pursuant to the provisions of the
Indenture]
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
after such
Interest Payment Date to the date of such payment on the next succeeding
Business Day.
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., www.docusign.com) this
Security shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.
[Signature Page Follows]
IN WITNESS WHEREOF, the
Company has caused this instrument to be duly executed.
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the
Securities of the series designated herein referred to in the within-mentioned
Indenture.
THE BANK OF NEW YORK MELLON
|
|
TRUST COMPANY, N.A., as Trustee
|
|
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:
(i)
100.000% of the principal amount of the
Securities 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
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
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.
“
Par Call Date” means
, 20 .
“
Reference Treasury Dealer” means each of
Goldman Sachs & Co. LLC, J.P.
Morgan Securities LLC and
Wells 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 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.
Purchase of
Securities upon a
Change of Control Repurchase
Event
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.
On the
Change of Control Repurchase Event payment date, the
Company shall, to the extent lawful:
(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.
“
Change of Control” means the occurrence of any of the following:
(1) the direct or indirect sale, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the
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).
“
Fitch” means
Fitch Ratings, Ltd., a division of
Fitch, Inc., or its successors.
“
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.
“
Moody’s” means
Moody’s Investors Service,
Inc. or its successors.
“
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.
“
S&P” means
S&P Global Ratings, a division of
S&P
Global Inc., or its successors.
“
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
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.
Payment of
Additional Interest
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, Goldman Sachs & Co. LLC, J.P.
Morgan Securities LLC and
Wells 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.
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto:
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PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE:
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(Please print or typewrite name and address including postal zip code of assignee)
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the within Global Security of HP INC . and all rights hereunder,
hereby irrevocably constituting and appointing
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attorney to
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transfer said Global Security on the books of the within-named Company, with full power of substitution in the premises.
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Dated:
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SIGN HERE
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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.
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SIGNATURE GUARANTEED
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CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR
REGISTRATION OF TRANSFERS OF
TRANSFER RESTRICTED NOTES
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):
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has requested the Trustee by written order to deliver in exchange for its beneficial interest in a Global Note held by the Depositary a Note or Notes in definitive, registered form of authorized denominations and an aggregate principal amount equal to its beneficial
interest in such Global Note (or the portion thereof indicated above) in accordance with the Indenture; or
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has requested the Trustee by written order to exchange or register the transfer of a Note or Notes.
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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
(1)
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to the Company or any subsidiary thereof; or
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(2)
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to the Registrar for registration in the name of the Holder, without transfer; or
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(3)
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pursuant to an effective registration statement under the Securities Act of 1933, as amended (the “ Securities Act”); or
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(4)
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to a Person that the undersigned reasonably believes is a “qualified institutional buyer” (as defined in Rule 144A
under the Securities Act (“ Rule 144A”)) that purchases for its
own account or for the account of a qualified institutional buyer and to whom notice is given that such transfer is being made in reliance on Rule 144A, in each
case pursuant to and in compliance with Rule 144A; or
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(5)
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pursuant to offers and sales to non- U.S. persons that occur outside the United States of America within the meaning of Regulation S under the Securities Act (and if the transfer is being made prior to the expiration of the Distribution Compliance Period, the Notes shall be held immediately thereafter
through Euroclear or Clearstream); or
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(6)
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pursuant to another available exemption from registration under the Securities Act.
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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.
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Your Signature
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Date:
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Signature of Signature Guarantor
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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:
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NOTICE:To be executed by an executive officer
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Name:
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Title:
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* 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
A
REGULATION S GLOBAL NOTE TO AN
UNRESTRICTED GLOBAL
NOTE,
PURSUANT TO SECTION 2.2(d)(iii) OF APPENDIX A TO THE
SUPPLEMENTAL INDENTURE
The undersigned represents and warrants that either:
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the undersigned is not a dealer (as defined in the Securities Act) and is a non- U.S.
person (within the meaning of Regulation S under the Securities Act); or
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the undersigned is not a dealer (as defined in the Securities Act) and is a U.S.
person (within the meaning of Regulation S under the Securities Act) who purchased interests in the Notes pursuant to an exemption from, or in a transaction not subject to, the registration requirements under the Securities Act; or
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the undersigned is a dealer (as defined in the Securities Act) and the interest of the undersigned in this Note does not constitute the whole or a part of an unsold allotment to or subscription by such dealer for the Notes.
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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:
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$
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(integral multiples of $1,000,
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provided that the unpurchased
portion must be in a minimum
principal amount of $2,000)
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Your Signature:
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(Sign exactly as your name appears on the face of this Security)
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* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the
Trustee).
SCHEDULE OF EXCHANGE OF
GLOBAL SECURITY*
The initial principal amount of this
Global Security is $ . The following increases or decreases in this
Global Security have
been made:
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Amount of
Decrease in
Principal
Amount of this
Global Security
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Amount of
Increase in
Principal
Amount of this
Global Security
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Principal
Amount of this
Global Security
Following Such
Decrease or
Increase
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Signature of
Authorized
Trustee or
Securities
Custodian
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