CERTIFICATE OF DESIGNATIONS
OF
7.625% SERIES C MANDATORY CONVERTIBLE PREFERRED STOCK
OF
HEWLETT PACKARD ENTERPRISE COMPANY
Hewlett Packard Enterprise Company, a Delaware corporation (the “Corporation”), hereby
certifies that, pursuant to the provisions of Sections 103, 141 and 151 of the General Corporation Law of the State of Delaware, (a) on September 4, 2024, the board of directors of the Corporation (the “Board
of Directors”), at the recommendation of the duly formed Finance and Investment Committee of the Board of Directors and pursuant to authority conferred upon the Board of Directors by the Restated Certificate of Incorporation of the
Corporation (as such may be amended, modified or restated from time to time, the “Charter”), authorized the formation of a Pricing Committee of the Board of Directors (the “Pricing Committee”) and the issuance and sale by the Corporation of shares of a new series of its preferred stock of the Corporation, par value $0.01 per share (“Preferred Stock”), upon such terms as may be fixed by the Pricing Committee, and delegated to the Pricing Committee the power to establish the number of shares to be included in such series of Preferred Stock and
to fix the designation, powers, privileges, preferences, and relative participating, optional or other rights, if any, of the shares of such series of Preferred Stock and the qualifications, limitations or restrictions thereof; and (b) on September
11, 2024, the Pricing Committee adopted the resolution set forth immediately below, which resolution is now, and at all times since its date of adoption has been, in full force and effect:
RESOLVED, that pursuant to the authority conferred upon the Board of Directors by the Charter, which authorizes the issuance of up to 300,000,000
shares of preferred stock, par value $0.01 per share, and delegated to the Pricing Committee, the New Preferred Stock be, and hereby is, created and designated 7.625% Series C Mandatory Convertible Preferred Stock, and that the designation and
number of shares of such series, and the voting powers, designations, preferences and rights, and qualifications, limitations or restrictions thereof, are as set forth in this certificate of designations, as it may be amended from time to time (the
“Certificate of Designations”), as follows:
Section 1. Designation and Number of Shares. Pursuant to the Charter, there is hereby created out of the authorized and unissued shares of Preferred Stock, a series
of Preferred Stock consisting of 30,000,000 shares of Preferred Stock designated as the “7.625% Series C Mandatory Convertible Preferred Stock” (the “Mandatory Convertible Preferred Stock”).
Such number of shares may be increased or decreased by resolution of the Board of Directors, or an authorized committee thereof, subject to the terms and conditions hereof and the requirements of applicable law; provided that (i) no increase shall cause the number of authorized shares of Mandatory Convertible Preferred Stock to exceed the total number of authorized shares of Preferred Stock and (ii) no decrease shall
reduce the number of shares of Mandatory Convertible Preferred Stock to a number less than the number of such shares then outstanding.
Section 2. General Matters; Ranking. Each share of Mandatory Convertible Preferred Stock shall be identical in all respects to every other share of Mandatory
Convertible Preferred Stock. The Mandatory Convertible Preferred Stock, with respect to dividend rights and/or distribution rights upon the liquidation, winding-up or dissolution, as applicable, of the Corporation, shall rank (i) senior to
each class or series of Junior Stock, (ii) on parity with each class or series of Parity Stock, (iii) junior to each class or series of Senior Stock and (iv) junior to the Corporation’s existing and future indebtedness and other liabilities.
In addition, with respect to dividend rights and distribution rights upon the liquidation, winding-up or dissolution of the Corporation, the Mandatory Convertible Preferred Stock will be structurally subordinated to any existing and future
indebtedness and other liabilities of each of its Subsidiaries.
Section 3. Standard Definitions. As used herein with respect to Mandatory Convertible Preferred Stock:
“Accumulated Dividend Amount” means, with respect to any Fundamental Change, the aggregate
amount of undeclared, accumulated and unpaid dividends, if any, for Dividend Periods prior to the relevant Fundamental Change Effective Date, including (but subject to the second sentence of Section 11(a)) for the partial Dividend Period, if any,
from, and including, the Dividend Payment Date immediately preceding such Fundamental Change Effective Date to, but excluding, such Fundamental Change Effective Date, subject to the last sentence of Section 11(a).
“Acquisition Termination Conversion Rate” means a rate equal to the Fundamental Change
Conversion Rate, assuming for such purpose that the date on which the Corporation provides notice of Acquisition Termination Redemption is the Fundamental Change Effective Date and that the Acquisition Termination Share Price is the Fundamental
Change Stock Price.
“Acquisition Termination Dividend Amount” means an amount of cash equal to the sum of the
Fundamental Change Dividend Make-Whole Amount and the Accumulated Dividend Amount, assuming, in each case, for such purpose that the date on which the Corporation provides notice of Acquisition Termination Redemption is the Fundamental Change
Effective Date.
“Acquisition Termination Make-Whole Amount” means, for each share of Mandatory Convertible
Preferred Stock, an amount payable in cash equal to $50.00 plus accumulated and unpaid dividends to, but excluding, the Acquisition Termination Redemption Date (whether or not declared); provided
that if the Acquisition Termination Share Price exceeds the Initial Price, the Acquisition Termination Make-Whole Amount will equal the Reference Amount, which may be paid in cash, Common Stock or a combination thereof.
“Acquisition Termination Market Value” means the Average VWAP per ordinary share over the
20 consecutive Trading Day period commencing on, and including, the second Trading Day following the date on which the Corporation provides notice of Acquisition Termination Redemption.
“Acquisition Termination Redemption Date” means the date specified by the Corporation in
its notice of Acquisition Termination Redemption that is not less than 30 nor more than 60 days following the date on which the Corporation provides notice of such Acquisition Termination Redemption; provided
that such date shall be a Business Day; provided, further that if the Acquisition Termination Share Price is greater than the
Initial Price and the Corporation elects to:
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i. |
pay cash in lieu of delivering all or any portion of the shares of Common Stock equal to the Acquisition Termination Conversion Rate, or
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ii. |
deliver Common Stock in lieu of all or any portion of the Acquisition Termination Dividend Amount,
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the Acquisition Termination Redemption Date will be the second Business Day following the last Trading Day of the 20 consecutive Trading Day period
used to determine the Acquisition Termination Market Value.
“Acquisition Termination Share Price” means the Average VWAP per ordinary share over the 10
consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date on which the Corporation provides notice of Acquisition Termination Redemption.
“ADRs” shall have the meaning set forth in Section 16.
“Agent Members” shall have the meaning set forth in Section 22(a).
“Applicable Market Value” means the Average VWAP per share of Common Stock over the
Settlement Period.
“Average Price” shall have the meaning set forth in Section 4(c)(iii).
“Average VWAP” per share over a certain period means the arithmetic average of the VWAP per
share for each Trading Day in the relevant period.
“Averaging Period” shall have the meaning set forth in Section 15(a)(v).
“Board of Directors” shall have the meaning set forth in the recitals.
“Business Day” means any day other than a Saturday or Sunday or any other day on which
commercial banks in New York City are authorized or required by law or executive order to close.
“Bylaws” means the Second Amended and Restated Bylaws of the Corporation, as they may be
further amended or restated from time to time.
“Certificate of Designations” shall have the meaning set forth in the recitals.
“Charter” shall have the meaning set forth in the recitals.
“Clause A Distribution” shall have the meaning set forth in Section 15(a)(iii).
“Clause B Distribution” shall have the meaning set forth in Section 15(a)(iii).
“Clause C Distribution” shall have the meaning set forth in Section 15(a)(iii).
“Close of Business” means 5:00 p.m., New York City time.
“Common Stock” means the common stock, par value $0.01 per share, of the Corporation,
subject to Section 16.
“Conversion and Dividend Disbursing Agent” means Equiniti Trust Company, LLC, the
Corporation’s duly appointed conversion and dividend disbursing agent for the Mandatory Convertible Preferred Stock, and any successor appointed under Section 16.
“Conversion Date” shall mean the Mandatory Conversion Date, the Fundamental Change
Conversion Date or the Early Conversion Date, as applicable.
“Corporation” shall have the meaning set forth in the recitals.
“Depositary” means DTC or its nominee or any successor appointed by the Corporation.
“Dividend Payment Date” means March 1, June 1, September 1 and December 1 of each year to,
and including, September 1, 2027, commencing on December 1, 2024.
“Dividend Period” means the period from, and including, a Dividend Payment Date to, but
excluding, the next Dividend Payment Date, except that the initial Dividend Period shall commence on, and include, the Initial Issue Date and shall end on, and exclude, the December 1, 2024 Dividend Payment Date.
“Dividend Rate” shall have the meaning set for in Section 4(a).
“DTC” means The Depository Trust Company.
“Early Conversion” shall have the meaning set forth in Section 10(a).
“Early Conversion Additional Conversion Amount” shall have the meaning set forth in Section
9(b)(i).
“Early Conversion Average Price” shall have the meaning set forth in Section 10(b)(ii).
“Early Conversion Date” shall have the meaning set forth in Section 12(b).
“Early Conversion Settlement Period” shall have the meaning set forth in Section 10(b)(ii).
“Effective Date” shall mean the first date on which the shares of Common Stock trade on the
Relevant Stock Exchange, regular way, reflecting the relevant share split or share combination, as applicable.
“Ex-Date” means the first date on which the shares of Common Stock trade on the applicable
exchange or in the applicable market, regular way, without the right to receive the issuance, dividend or distribution in question, from the Corporation or, if applicable, from the seller of the Common Stock on such exchange or market (in the form
of due bills or otherwise) as determined by such exchange or market.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder.
“Exchange Property” shall have the meaning set forth in Section 16.
“Expiration Date” shall have the meaning set forth in Section 15(a)(v).
“Fixed Conversion Rates” means the Maximum Conversion Rate and the Minimum Conversion Rate.
“Floor Price” shall have the meaning set forth in Section 4(e)(ii).
A “Fundamental Change” shall be deemed to have occurred, at any time after the Initial
Issue Date of the Mandatory Convertible Preferred Stock, if any of the following occurs:
(i) the
consummation of (A) any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision or combination or change in par value) as a result of which the Common Stock would be converted into, or
exchanged for, stock, other securities, other property or assets (including cash or a combination thereof); (B) any consolidation, merger or other combination of the Corporation or binding share exchange pursuant to which the Common Stock will
be converted into, or exchanged for, stock, other securities or other property or assets (including cash or a combination thereof); or (C) any sale, lease or other transfer or disposition in one transaction or a series of transactions of all or
substantially all of the consolidated assets of the Corporation and its Subsidiaries taken as a whole, to any person other than one or more of the Corporation’s Wholly-Owned Subsidiaries;
(ii) any
“person” or “group” (as such terms are used for purposes of Sections 13(d) and 14(d) of the Exchange Act, whether or not applicable), other than the Corporation, any of its Wholly-Owned Subsidiaries or any of the Corporation’s or its
Wholly-Owned Subsidiaries’ employee benefit plans (or any person or entity acting solely in its capacity as trustee, agent or other fiduciary or administrator of any such plan), filing a Schedule TO or any schedule, form or report under the
Exchange Act disclosing that such person or group has become the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of more than 50% of the total voting power in the aggregate of all classes of capital
stock then outstanding entitled to vote generally in elections of the Corporation’s directors; or
(iii) the Common Stock (or other common stock constituting Exchange Property) ceases to be listed or quoted for trading on NYSE, the Nasdaq Global Select Market or the Nasdaq Global Market (or another U.S. national securities exchange or any
of their respective successors).
However, a transaction or transactions described in clause (i) or clause (ii) above will not constitute a Fundamental Change if at least 90% of the
consideration received or to be received by holders of the Common Stock, excluding cash payments for fractional shares or pursuant to statutory appraisal rights, in connection with such transaction or transactions consists of shares of common stock
that are listed or quoted on any of NYSE, the Nasdaq Global Select Market or the Nasdaq Global Market (or any of their respective successors) or will be so listed or quoted when issued or exchanged in connection with such transaction or
transactions and as a result of such transaction or transactions such consideration (excluding cash payments for fractional shares or pursuant to statutory appraisal rights) becomes the Exchange Property.
“Fundamental Change Conversion” shall have the meaning set forth in Section 11(a)(i).
“Fundamental Change Conversion Date” shall have the meaning set forth in Section 12(c).
“Fundamental Change Conversion Period” means the period beginning on, and including, the
Fundamental Change Effective Date and ending at the Close of Business on the date that is 20 calendar days after the Fundamental Change Effective Date (or, if later, the date that is 20 calendar days after the date of notice of such Fundamental
Change) but in no event later than September 1, 2027. If the Corporation provides the Fundamental Change Notice later than the second Business Day following the Fundamental Change Effective Date, the Fundamental Change Conversion Period shall be
extended by a number of days equal to the number of days from, and including, the Fundamental Change Effective Date to, but excluding, the date of such Fundamental Change Notice; provided,
however, that the Fundamental Change Conversion Period shall not be extended beyond September 1, 2027.
“Fundamental Change Conversion Rate” means, for any Fundamental Change Conversion, the
conversion rate per share of the Mandatory Convertible Preferred Stock set forth in the table below for the Fundamental Change Effective Date and the Fundamental Change Stock Price applicable to such Fundamental Change:
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Fundamental Change Stock Price
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Fundamental
Change
Effective
Date
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$4.00
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$6.00
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$8.00
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$10.00
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$12.00
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$14.00
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$16.10
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$18.60
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$19.72
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$25.00
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$30.00
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$35.00
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$40.00
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$50.00
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September 13, 2024
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1.9200
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2.2757
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2.4150
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2.4651
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2.4762
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2.4714
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2.4607
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2.4474
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2.4421
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2.4254
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2.4196
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2.4196
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2.4224
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2.4308
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September 1, 2025
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2.2950
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2.5429
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2.6369
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2.6577
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2.6427
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2.6134
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2.5796
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2.5437
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2.5300
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2.4858
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2.4668
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2.4598
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2.4588
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2.4631
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September 1, 2026
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2.6931
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2.8240
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2.8784
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2.8822
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2.8465
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2.7875
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2.7187
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2.6451
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2.6175
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2.5342
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2.5039
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2.4948
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2.4937
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2.4972
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September 1, 2027
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3.1056
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3.1056
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3.1056
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3.1056
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3.1056
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3.1056
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3.1056
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2.6882
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2.5352
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2.5352
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2.5352
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2.5352
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2.5352
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2.5352
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The exact Fundamental Change Stock Price and Fundamental Change Effective Date may not be set forth in the table, in which case:
(i) if
the Fundamental Change Stock Price is between two Fundamental Change Stock Price amounts in the table above or the Fundamental Change Effective Date is between two Fundamental Change Effective Dates in the table above, the Fundamental Change
Conversion Rate shall be determined by a straight-line interpolation between the Fundamental Change Conversion Rates set forth for the higher and lower Fundamental Change Stock Price amounts and the earlier and later Fundamental Change
Effective Dates, as applicable, based on a 365- or 366-day year, as applicable;
(ii) if
the Fundamental Change Stock Price is in excess of $50 per share (subject to adjustment in the same manner as adjustments are made to the Fundamental Change Stock Prices in the column headings of the table above), then the Fundamental Change
Conversion Rate shall be the Minimum Conversion Rate; and
(iii) if the Fundamental Change Stock Price is less than $4 per share (subject to adjustment in the same manner as adjustments are made to the Fundamental Change Stock Prices in the column headings of the table above), then the Fundamental
Change Conversion Rate shall be the Maximum Conversion Rate.
The Fundamental Change Stock Prices in the column headings in the table above are each subject to adjustment as of any date on which the Fixed
Conversion Rates are adjusted. The adjusted Fundamental Change Stock Prices shall equal (x) the Fundamental Change Stock Prices applicable immediately prior to such adjustment, multiplied
by (y) a fraction, the numerator of which is the Minimum Conversion Rate immediately prior to the adjustment giving rise to the Fundamental Change Stock Price adjustment and the denominator of which is the Minimum Conversion Rate as so
adjusted. The Fundamental Change Conversion Rates set forth in the table above will be each subject to adjustment in the same manner and at the same time as each Fixed Conversion Rate as set forth in Section 15.
“Fundamental Change Conversion Right” shall have the meaning set forth in Section 11(a).
“Fundamental Change Dividend Make-Whole Amount” shall have the meaning set forth in Section
11(a)(ii).
“Fundamental Change Effective Date” shall mean the effective date of the relevant
Fundamental Change.
“Fundamental Change Notice” shall have the meaning set forth in Section 11(b).
“Fundamental Change Stock Price” means, for any Fundamental Change, the price paid (or
deemed paid) per share of Common Stock in the Fundamental Change, which shall equal (i) if all holders of Common Stock receive only cash in such Fundamental Change, the amount of cash paid per share of Common Stock in such Fundamental Change, and
(ii) in all other cases, the Average VWAP per share of Common Stock over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Fundamental Change Effective Date.
“Global Preferred Certificate” shall have the meaning set forth in Section 22(a).
“Global Preferred Shares” shall have the meaning set forth in Section 22(a).
“Holder” means each Person in whose name shares of Mandatory Convertible Preferred Stock
are registered, who shall be treated by the Corporation and the Registrar as the absolute owner of those shares of Mandatory Convertible Preferred Stock for the purpose of making payment and settling conversions and for all other purposes.
“Initial Dividend Threshold” shall have the meaning set forth in Section 15(a)(iv).
“Initial Issue Date” means September 13, 2024, the first original issue date of shares of
the Mandatory Convertible Preferred Stock.
“Initial Price” means $50.00, divided by the Maximum Conversion Rate, which quotient is initially equal to approximately $16.10.
“Junior Stock” means (i) the Common Stock, (ii) the Series B Preferred Stock and (iii) each
other class or series of capital stock of the Corporation established after the Initial Issue Date, the terms of which do not expressly provide that such class or series ranks either (x) senior to the Mandatory Convertible Preferred Stock as to
dividend rights and distribution rights upon the Corporation’s liquidation, winding-up or dissolution or (y) on parity with the Mandatory Convertible Preferred Stock as to dividend rights or and distribution rights upon the Corporation’s
liquidation, winding-up or dissolution.
“Juniper” means Juniper Networks, Inc., a Delaware corporation.
“Juniper Acquisition” means the merger of Merger Sub with and into Juniper, with Juniper
continuing as the surviving corporation and as a wholly owned subsidiary of the Corporation, pursuant to the Juniper Merger Agreement and subject to the terms and conditions set forth therein.
“Juniper Merger Agreement” means that certain Agreement and Plan of Merger (as amended or
supplemented from time to time), dated as of January 9, 2024, by and among Juniper, the Corporation and Jasmine Acquisition Sub, Inc., a Delaware corporation and a wholly owned subsidiary of the Corporation (“Merger Sub”).
“Liquidation Dividend Amount” shall have the meaning set forth in Section 5(a).
“Liquidation Preference” means, as to Mandatory Convertible Preferred Stock, $50.00 per
share.
“Mandatory Conversion” shall have the meaning set forth in Section 9(a).
“Mandatory Conversion Additional Conversion Amount” shall have the meaning set forth in
Section 9(c)(i).
“Mandatory Conversion Date” means the second Business Day immediately following the last
Trading Day of the Settlement Period. The Mandatory Conversion Date is expected to be September 1, 2027. If the Mandatory Conversion Date occurs after September 1, 2027 (whether because a Scheduled Trading Day during the Settlement Period is not
a Trading Day due to the occurrence of a Market Disruption Event or otherwise), no interest or other amounts will accrue as a result of such postponement.
“Mandatory Conversion Rate” shall have the meaning set forth in Section 9(b).
“Mandatory Convertible Preferred Stock” shall have the meaning set forth in Section 1 of
this Certificate of Designations.
“Market Disruption Event” means (i) a failure by the Relevant Stock Exchange to open for
trading during its regular trading session; or (ii) the occurrence or existence, prior to 1:00 p.m., New York City time, on any Scheduled Trading Day for the Common Stock, for more than a one half-hour period in the aggregate during regular trading
hours, of any suspension or limitation imposed on trading (by reason of movements in price exceeding limits permitted by the Relevant Stock Exchange or otherwise) in the Common Stock.
“Maximum Conversion Rate” shall have the meaning set forth in Section 9(b)(iii).
“Minimum Conversion Rate” shall have the meaning set forth in Section 9(b)(i).
“Nonpayment” shall have the meaning set forth in Section 8(b)(i).
“Nonpayment Remedy” shall have the meaning set forth in Section 8(b)(iii).
“NYSE” means The New York Stock Exchange.
“Officer” means each and any of the President and Chief Executive Officer, the Chief
Operating Officer, the Chief Financial Officer, any Executive Vice President, the Senior Vice President, General Counsel and Corporate Secretary, the Treasurer, any Assistant Treasurer and any Assistant Secretary of the Corporation, as the case may
be.
“Open of Business” means 9:00 a.m., New York City time.
“Parity Stock” means any class or series of capital stock of the Corporation established
after the Initial Issue Date, the terms of which expressly provide that such class or series shall rank on parity with the Mandatory Convertible Preferred Stock as to dividend rights and distribution rights upon the Corporation’s liquidation,
winding-up or dissolution.
“Person” means any individual, partnership, firm, corporation, limited liability company,
business trust, joint stock company, trust, unincorporated association, joint venture, governmental authority or other entity of whatever nature.
“Preferred Stock” shall have the meaning ascribed to such term in the Charter.
“Preferred Stock Directors” shall have the meaning set forth in Section 8(b)(i).
“Prospectus Supplement” means the preliminary prospectus supplement dated September 9,
2024, relating to the offering and sale of the Mandatory Convertible Preferred Stock, as supplemented by the related pricing term sheet.
“Record Date” means, with respect to any dividend, distribution or other transaction or
event in which the holders of the Common Stock (or other applicable security) have the right to receive any cash, securities or other property or in which the Common Stock (or such other security) is exchanged for or converted into any combination
of cash, securities or other property, the date fixed for determination of holders of the Common Stock (or such other security) entitled to receive such cash, securities or other property (whether such date is fixed by the Board of Directors, or an
authorized committee thereof, statute, contract or otherwise).
“Record Holder” means, with respect to any Dividend Payment Date, a Holder of record of the
Mandatory Convertible Preferred Stock as such Holder appears on the stock register of the Corporation at the Close of Business on the related Regular Record Date.
“Reference Amount” means, for each share of Mandatory Convertible Preferred Stock, an
amount equal to the sum of the following amounts:
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i. |
a number of shares of Common Stock equal to the Acquisition Termination Conversion Rate, plus
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ii. |
cash in an amount equal to the Acquisition Termination Dividend Amount,
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provided that the Corporation may deliver
cash in lieu of all or any portion of the Common Stock set forth in clause (i) above, and the Corporation may deliver shares of Common Stock in lieu of all or any portion of the cash amount set forth in clause (ii) above.
“Registrar” initially means Equiniti Trust Company, LLC, the Corporation’s duly appointed
registrar for Mandatory Convertible Preferred Stock and any successor appointed under Section 17.
“Regular Record Date” means, with respect to any Dividend Payment Date, the February 15,
May 15, August 15 and November 15, as the case may be, immediately preceding the relevant Dividend Payment Date. These Regular Record Dates shall apply regardless of whether a particular Regular Record Date is a Business Day.
“Relevant Stock Exchange” means NYSE or, if the Common Stock is not then listed on NYSE, on
the principal other U.S. national or regional securities exchange on which the Common Stock is then listed or, if the Common Stock is not then listed on a U.S. national or regional securities exchange, on the principal other market on which the
Common Stock is then listed or admitted for trading.
“Reorganization Common Stock” shall have the meaning set forth in Section 16(i).
“Reorganization Event” shall have the meaning set forth in Section 16.
“Reorganization Valuation Percentage” for any Reorganization Event shall be equal to (x)
the Average VWAP of one share of the relevant Reorganization Common Stock over the relevant Reorganization Valuation Period (determined as if references to “Common Stock” in the definition of “VWAP” were references to the “Reorganization Common
Stock” for such Reorganization Event), divided by (y) the Average VWAP of one share of Common Stock over the relevant Reorganization Valuation Period.
“Reorganization Valuation Period” for any Reorganization Event means the five consecutive
Trading Day period immediately preceding, but excluding, the effective date for such Reorganization Event.
“Scheduled Trading Day” means any day that is scheduled to be a Trading Day.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and
regulations thereunder.
“Senior Stock” means each class or series of capital stock of the Corporation established
after the Initial Issue Date, the terms of which expressly provide that such class or series shall rank senior to the Mandatory Convertible Preferred Stock as to dividend rights or distribution rights upon the Corporation’s liquidation, winding-up
or dissolution.
“Series B Preferred Stock” means the Series B Junior Participating Redeemable Preferred
Stock, par value $0.01 per share, of the Corporation.
“Settlement Period” means the 20 consecutive Trading Day period beginning on, and
including, the 21st Scheduled Trading Day immediately preceding September 1, 2027.
“Shelf Registration Statement” means a shelf registration statement filed with the
Securities and Exchange Commission in connection with the issuance of, or for resales of, shares of Common Stock issued as payment of a dividend on shares of the Mandatory Convertible Preferred Stock, including dividends paid in connection with a
conversion.
“Spin-Off” means a payment of a dividend or other distribution on the Common Stock of
shares of capital stock of any class or series, or similar equity interest, of or relating to a Subsidiary or other business unit of the Corporation that are, or, when issued, will be, listed or admitted for trading on a U.S. national securities
exchange.
“Subsidiary” means, with respect to any Person, any corporation, association, partnership
or other business entity of which more than 50% of the total voting power of shares of capital stock or other interests (including partnership interests) entitled (without regard to the occurrence of any contingency) to vote in the election of
directors, managers, general partners or trustees thereof is at the time owned or controlled, directly or indirectly, by (i) such Person; (ii) such Person and one or more Subsidiaries of such
Person; or (iii) one or more Subsidiaries of such Person.
“Threshold Appreciation Price” means $50.00, divided by the Minimum Conversion Rate, which quotient is initially equal to approximately $19.72.
“Trading Day” means a day on which (i) there is no Market Disruption Event and (ii) trading
in Common Stock generally occurs on the Relevant Stock Exchange; provided that if the Common Stock is not listed or admitted for trading, “Trading
Day” means any Business Day.
“Transfer Agent” shall initially mean Equiniti Trust Company, LLC, the Corporation’s duly
appointed transfer agent for Mandatory Convertible Preferred Stock and any successor appointed under Section 17.
“Trigger Event” shall have the meaning set forth in Section 15(a)(iii).
“Unit of Exchange Property” shall have the meaning set forth in Section 16.
“Valuation Period” shall have the meaning set forth in Section 15(a)(iii).
“Voting Preferred Stock” means any other class or series of Parity Stock upon which like
voting powers for the election of directors as set forth in Section 8 have been conferred and are exercisable.
“VWAP” per share of Common Stock on any Trading Day means the per share volume-weighted
average price as displayed on Bloomberg page “HPE<EQUITY>AQR” (or its equivalent successor if such page is not available) in respect of the period from the scheduled open of trading until the scheduled close of trading of the primary trading
session on such Trading Day (or if such volume-weighted average price is not available, the market value per share of Common Stock on such Trading Day as determined, using a volume-weighted average method, by a nationally recognized independent
investment banking firm retained by the Corporation for this purpose).
“Wholly-Owned Subsidiary” means, with respect to any Person, any Subsidiary of such Person,
except that, solely for purposes of this definition, the reference to “more than 50%” in the definition of “Subsidiary” shall be deemed to be replaced by a reference to “100%”.
Section 4. Dividends.
(a) Rate. Subject to the rights of holders of any class or series of Senior Stock, Holders shall be entitled to receive, when, as and if declared by the Board of Directors, or an authorized
committee thereof, out of funds of the Corporation legally available for payment, cumulative dividends at the rate per annum of 7.625% on the Liquidation Preference per share of the Mandatory Convertible Preferred Stock (the “Dividend Rate”) (equivalent to $3.81 per annum per share), payable in cash, by delivery of shares of Common Stock or through any combination of cash and shares of Common Stock pursuant to
Section 4(c), as determined by the Board of Directors, or an authorized committee thereof, in its sole discretion (subject to the limitations set forth in Section 4(e)).
If declared, dividends on the Mandatory Convertible Preferred Stock shall be payable quarterly on each Dividend Payment Date at such annual rate, and
dividends shall accumulate from the most recent date as to which dividends shall have been paid or, if no dividends have been paid, from the Initial Issue Date, whether or not in any Dividend Period or Dividend Periods there have been funds legally
available or shares of Common Stock legally permitted to be issued for the payment of such dividends.
If declared, dividends shall be payable on the relevant Dividend Payment Date to Record Holders on the immediately preceding Regular Record Date,
whether or not such Record Holders convert their shares of Mandatory Convertible Preferred Stock, or such shares are automatically converted, after such Regular Record Date and on or prior to such immediately succeeding Dividend Payment Date; provided that the Regular Record Date for any such dividend shall not precede the date on which such dividend was so declared. If a Dividend Payment Date is not a Business Day, payment shall
be made on the next succeeding Business Day, without any interest or other payment in lieu of interest accruing with respect to this delay.
The amount of dividends payable on each share of Mandatory Convertible Preferred Stock for each full Dividend Period (subsequent to the initial
Dividend Period) shall be computed by dividing the Dividend Rate by four. Dividends payable on Mandatory Convertible Preferred Stock for the initial Dividend Period and any partial Dividend Period shall be computed based upon the actual number of
days elapsed during such period over a 360-day year (consisting of twelve 30-day months). Accumulated dividends on shares of the Mandatory Convertible Preferred Stock shall not bear interest, nor shall additional dividends be payable thereon, if
they are paid subsequent to the applicable Dividend Payment Date.
No dividend shall be paid unless and until the Board of Directors, or an authorized committee thereof, declares a dividend payable with respect to the
Mandatory Convertible Preferred Stock. No dividend shall be declared or paid upon, or any sum of cash or number of shares of Common Stock set apart for the payment of dividends upon, any outstanding shares of Mandatory Convertible Preferred Stock
with respect to any Dividend Period unless all dividends for all preceding Dividend Periods have been declared and paid upon, or a sufficient sum of cash or number of shares of Common Stock has been set apart for the payment of such dividends upon,
all outstanding shares of Mandatory Convertible Preferred Stock.
Holders shall not be entitled to any dividends on Mandatory Convertible Preferred Stock, whether payable in cash, property or shares of Common Stock,
in excess of full cumulative dividends.
Except as described in this Section 4(a), dividends on shares of Mandatory Convertible Preferred Stock converted to Common Stock shall cease to
accumulate, and all other rights of Holders will terminate, from and after the applicable Conversion Date (other than the right to receive the consideration due upon such conversion as described herein).
(b) Priority of Dividends. So long as any share of Mandatory Convertible Preferred Stock remains outstanding, no dividend or distribution shall be declared or paid on the Common Stock or any
other class or series of Junior Stock, and no Common Stock or any other class or series of Junior Stock or Parity Stock shall be, directly or indirectly, purchased, redeemed or otherwise acquired for consideration by the Corporation or any of
its Subsidiaries unless, in each case, all accumulated and unpaid dividends for all preceding Dividend Periods have been declared and paid in full in cash, shares of the Common Stock or a combination thereof, or a sufficient sum of cash or
number of shares of the Common Stock has been set apart for the payment of such dividends, on all outstanding shares of Mandatory Convertible Preferred Stock. The foregoing limitation shall not apply to:
(i) any
dividend or distribution payable in shares of Common Stock or other Junior Stock, together with cash in lieu of any fractional share;
(ii) purchases,
redemptions or other acquisitions of Common Stock or other Junior Stock or Parity Stock in connection with the administration of any benefit or other incentive plan, including any employment or compensation agreement, including, without
limitation, (x) the forfeiture of unvested shares of restricted stock or share withholding or other acquisitions or surrender of shares or derivative securities to which the holder may otherwise be entitled upon exercise, delivery or vesting of
equity awards (whether in payment of applicable taxes, the exercise price or otherwise), and (y) the payment of cash in lieu of fractional shares;
(iii) purchases or deemed purchases or acquisitions of fractional interests in shares of any Common Stock or other Junior Stock pursuant to the conversion or exchange provisions of such shares of other Junior Stock or any securities
exchangeable for or convertible into shares of Common Stock or other Junior Stock;
(iv) any
dividends or distributions of rights or Common Stock or other Junior Stock in connection with a stockholders’ rights plan or any redemption or repurchase of rights pursuant to any stockholders’ rights plan;
(v) purchases
of Common Stock or other Junior Stock pursuant to a contractually binding requirement to buy Common Stock or other Junior Stock, including under a contractually binding stock repurchase plan, in each case, existing prior to the date of the
Prospectus Supplement;
(vi) the
acquisition by the Corporation or any of its Subsidiaries of record ownership in Common Stock or other Junior Stock or Parity Stock for the beneficial ownership of any other persons (other than the Corporation or any of its Subsidiaries),
including as trustees or custodians, and the payment of cash in lieu of fractional shares;
(vii) the exchange or conversion of Junior Stock for or into other Junior Stock or of Parity Stock for or into other Parity Stock (with the same or lesser aggregate liquidation preference) or Junior Stock and the payment of cash in lieu of
fractional shares; and
(viii) the settlement of any convertible note hedge transactions or capped call transactions entered into in connection with the issuance of Mandatory Convertible Preferred Stock, by the Corporation or any of its subsidiaries, of any debt
securities that are convertible into, or exchangeable for, Common Stock (or into or for any combination of cash and Common Stock based on the value of Common Stock); provided that
such convertible note hedge transactions or capped call transactions, as applicable, are on customary terms and were entered into either (a) before the Initial Issue Date or (b) in compliance with the foregoing provision.
When dividends on shares of the Mandatory Convertible Preferred Stock (i) have not been declared and paid in full on any Dividend Payment Date (or, in
the case of Parity Stock having dividend payment dates different from such Dividend Payment Dates, on a dividend payment date falling within a regular dividend period related to such Dividend Payment Date), or (ii) have been declared but a sum of
cash or number of shares of Common Stock sufficient for payment thereof has not been set aside for the benefit of the Holders thereof on the applicable Regular Record Date, no dividends may be declared or paid on any shares of Parity Stock unless
dividends are declared on the shares of Mandatory Convertible Preferred Stock such that the respective amounts of such dividends declared on the shares of Mandatory Convertible Preferred Stock and such shares of Parity Stock shall be allocated pro
rata among the Holders of the shares of the Mandatory Convertible Preferred Stock and the holders of any shares of Parity Stock then outstanding. For purposes of calculating the pro rata allocation of partial dividend payments, the Corporation
shall allocate those payments so that the respective amounts of those payments for the declared dividend bear the same ratio to each other as all accumulated and unpaid dividends per share on the shares of Mandatory Convertible Preferred Stock and
all declared and unpaid dividends per share on such shares of Parity Stock bear to each other (subject to their having been declared by the Board of Directors, or an authorized committee thereof, out of legally available funds); provided that any unpaid dividends on the Mandatory Convertible Preferred Stock will continue to accumulate, except as described herein. For purposes of this calculation, with respect to
non-cumulative Parity Stock, the Corporation shall use the full amount of dividends that would be payable for the most recent dividend period if dividends were declared in full on such non-cumulative Parity Stock.
Subject to the foregoing, and not otherwise, such dividends as may be determined by the Board of Directors, or an authorized committee thereof, may be
declared and paid (payable in cash, securities or other property) on any securities, including Common Stock and other Junior Stock, from time to time out of any funds legally available for such payment, and Holders shall not be entitled to
participate in any such dividends.
(c) Method of Payment of Dividends. (i) Subject to the limitations set forth in Section 4(e), the Corporation may pay any declared dividend (or any portion of any declared dividend) on the
shares of Mandatory Convertible Preferred Stock (whether or not for a current Dividend Period or any prior Dividend Period, including in connection with the payment of declared and unpaid dividends pursuant to Section 9(c) or Section 11), as
determined in the sole discretion of the Board of Directors, or an authorized committee thereof:
(A) in
cash;
(B) by
delivery of shares of Common Stock; or
(C) through
any combination of cash and shares of Common Stock.
(ii) The
Corporation shall make each payment of a declared dividend on the shares of Mandatory Convertible Preferred Stock in cash, except to the extent the Corporation elects to make all or any portion of such payment in shares of Common Stock. The
Corporation shall give notice to Holders of any such election, and the portion of such payment that will be made in cash and the portion that will be made in shares of Common Stock, no later than 10 Scheduled Trading Days prior to the Dividend
Payment Date for such dividend; provided, however, that if the Corporation does not provide timely notice of this
election, the Corporation will be deemed to have elected to pay the relevant dividend in cash.
(iii) All cash payments to which a Holder is entitled in connection with a declared dividend on the shares of Mandatory Convertible Preferred Stock will be rounded to the nearest cent. If the Corporation elects to make any such payment of a
declared dividend, or any portion thereof, in shares of Common Stock, such shares shall be valued for such purpose, in the case of any dividend payment or portion thereof, at 97% of the Average VWAP per share of Common Stock over the five
consecutive Trading Day period beginning on, and including, the sixth Scheduled Trading Day prior to the applicable Dividend Payment Date (such average, the “Average Price”). If the
five Trading Day period to determine the Average Price ends on or after the relevant Dividend Payment Date (whether because a Scheduled Trading Day is not a Trading Day due to the occurrence of a Market Disruption Event or otherwise), then the
Dividend Payment Date will be postponed until the second Business Day after the final Trading Day of such five Trading Day period; provided that no interest or other amounts shall
accrue as a result of such postponement.
(d) No fractional
shares of Common Stock shall be delivered to the Holders in payment or partial payment of a dividend. The Corporation shall instead, to the extent it is legally permitted to do so, pay a cash amount (computed to the nearest cent) to each
Holder that would otherwise be entitled to receive a fraction of a share of Common Stock based on the Average Price with respect to such dividend. To the extent that the Corporation is not able to pay such fractional amount in cash under
applicable law and in compliance with its indebtedness, the Corporation shall instead round up to the nearest whole share for each Holder, and the Corporation shall not have any obligation to pay such amount in cash and such amount shall not
form a part of the cumulative dividends that may be deemed to accumulate on the shares of Mandatory Convertible Preferred Stock.
(e) Notwithstanding the
foregoing, in no event shall the number of shares of Common Stock to be delivered in connection with any declared dividend, including any declared dividend payable in connection with a conversion, exceed a number equal to:
(i) the
declared dividend, divided by
(ii) $5.64,
subject to adjustment in a manner inversely proportional to any anti-dilution adjustment to each Fixed Conversion Rate as provided in Section 15 (such dollar amount, as adjusted, the “Floor Price”).
To the extent that the amount of any declared dividend exceeds the product of (x) the number of shares of Common Stock delivered in connection with
such declared dividend and (y) 97% of the Average Price, the Corporation shall, if it is legally able to do so, and to the extent permitted under the terms of the documents governing the Corporation’s indebtedness, notwithstanding any notice by the
Corporation to the contrary, pay such excess amount in cash (computed to the nearest cent). To the extent that the Corporation is not able to pay such excess amount in cash under applicable law and in compliance with its indebtedness, the
Corporation shall not have any obligation to pay such amount in cash or deliver additional shares of Common Stock in respect of such amount, and such amount shall not form a part of the cumulative dividends that may be deemed to accumulate on the
shares of Mandatory Convertible Preferred Stock.
(f) To the extent that
a Shelf Registration Statement is required in the Corporation’s reasonable judgment in connection with the issuance of, or for resales of, Common Stock issued as payment of a dividend on the shares of Mandatory Convertible Preferred Stock,
including dividends paid in connection with a conversion, the Corporation shall, to the extent such a Shelf Registration Statement is not currently filed and effective, use its commercially reasonable efforts to file and maintain the
effectiveness of such a Shelf Registration Statement until the earlier of such time as all such shares of Common Stock have been resold thereunder and such time as all such shares would be freely tradable without registration by holders thereof
that are not (and were not at any time during the preceding three months) “affiliates” of the Corporation for purposes of the Securities Act. To the extent applicable, the Corporation shall also use its commercially reasonable efforts to have
such shares of the Common Stock approved for listing on NYSE (or if the Common Stock is not listed on NYSE, on the principal other U.S. national or regional securities exchange on which the Common Stock is then listed), and qualified or
registered under applicable state securities laws, if required; provided that the Corporation will not be required to qualify as a foreign corporation or to take any action that would
subject it to general service of process in any such jurisdiction where it is not presently qualified or where it is not presently subject to taxation as a foreign corporation and such qualification or action would subject it to such taxation.
Section 5. Liquidation, Dissolution or Winding-Up.
(a) In the event of any
voluntary or involuntary liquidation, winding-up or dissolution of the Corporation, each Holder shall be entitled to receive, per share of Mandatory Convertible Preferred Stock, the Liquidation Preference of $50.00 per share of the Mandatory
Convertible Preferred Stock, plus an amount (the “Liquidation Dividend Amount”) equal to accumulated and unpaid dividends on such share, whether or not declared, to, but excluding, the
date fixed for liquidation, winding-up or dissolution, such amount to be paid out of the assets of the Corporation legally available for distribution to its stockholders, after satisfaction of debt and other liabilities owed to the
Corporation’s creditors and holders of shares of any Senior Stock and before any payment or distribution is made to holders of any Junior Stock, including, without limitation, Common Stock.
(b) If, upon the
voluntary or involuntary liquidation, winding-up or dissolution of the Corporation, the amounts payable with respect to (1) the Liquidation Preference plus the Liquidation Dividend Amount on the shares of the Mandatory Convertible Preferred
Stock and (2) the liquidation preference of, and the amount of accumulated and unpaid dividends (to, but excluding, the date fixed for liquidation, winding-up or dissolution) on, all Parity Stock, if applicable, are not paid in full, the
Holders and all holders of any such Parity Stock shall share equally and ratably in any distribution of the Corporation’s assets in proportion to their respective liquidation preferences and amounts equal to the accumulated and unpaid dividends
to which they are entitled.
(c) After the payment
to any Holder of the full amount of the Liquidation Preference and the Liquidation Dividend Amount for such Holder’s shares of Mandatory Convertible Preferred Stock, such Holder as such shall have no right or claim to any of the remaining
assets of the Corporation.
(d) Neither the sale,
lease nor exchange of all or substantially all of Corporation’s assets or business (other than in connection with the Corporation’s liquidation, winding-up or dissolution), nor its merger or consolidation into or with any other Person, shall be
deemed to be the voluntary or involuntary liquidation, winding-up or dissolution of the Corporation.
Section 6. No Redemption; No Sinking Fund.
Other than pursuant to Section 7, the Mandatory Convertible Preferred Stock shall not be
subject to any redemption rights, sinking fund or other similar provisions. Notwithstanding the foregoing, the Corporation may, at its option, purchase or exchange the Mandatory Convertible Preferred Stock from time to time in the open market, by
tender or exchange offer or otherwise, without the consent of, or notice to, Holders on such terms as the Holder thereof and the Corporation may agree.
Section 7. Acquisition Termination Redemption.
(a) If (x) the
consummation of the Juniper Acquisition does not occur on or before the later of (i) the date that is five business days after October 9, 2025 and (ii) the date that is five business days after any later date to which Juniper and the
Corporation may agree to extend the “End Date” in the Merger Agreement, or (y) the Corporation notifies Holders in writing that the Corporation will not pursue the consummation of the Juniper Acquisition, then the Corporation may, within 75
calendar days, at its option, give notice of a redemption (an “Acquisition Termination Redemption”) to Holders; provided
that to the extent Mandatory Convertible Preferred Stock is held in book-entry form through DTC, the Corporation may give such notice in any manner permitted by the DTC. If the Corporation provides notice of Acquisition Termination Redemption
to Holders, then, on the Acquisition Termination Redemption Date, the Corporation will redeem the Mandatory Convertible Preferred Stock, in whole but not in part, at a redemption amount per Mandatory Convertible Preferred Stock equal to the
Acquisition Termination Make-Whole Amount.
(b) If the Acquisition
Termination Share Price exceeds the Initial Price:
(i) the
Corporation may elect to pay cash in lieu of delivering all or any portion of the Common Stock equal to the Acquisition Termination Conversion Rate. If the Corporation makes such an election, it will deliver cash (rounded to the nearest cent)
in an amount equal to such Common Stock in respect of which it has made this election multiplied by the Acquisition Termination Market Value, and
(ii) the
Corporation may elect to deliver Common Stock in lieu of paying cash for some or all of the Acquisition Termination Dividend Amount.
If the Corporation makes such an election, it will deliver such number of shares of Common Stock equal to such portion of the Acquisition Termination
Dividend Amount to be paid in Common Stock divided by the greater of (x) the Floor Price and (y) 97% of the Acquisition Termination Market Value; provided, that if the Acquisition Termination Dividend Amount or portion thereof in respect of which Common Stock is delivered exceeds the product of Common Stock multiplied by 97% of the Acquisition Termination
Market Value, the Corporation will, if it is legally able to do so, and to the extent permitted under the terms of the documents governing its indebtedness, pay such excess amount in cash (computed to the nearest cent). To the extent that the
Corporation is not able to pay such excess amount in cash under applicable law and in compliance with the terms of its indebtedness, the Corporation shall not have any obligation to pay such amount in cash or deliver additional shares of Common
Stock in respect of such amount, and such amount will not form a part of the cumulative dividends that may be deemed to accumulate on the shares of the Mandatory Convertible Preferred Stock.
(c) If any portion of
the Acquisition Termination Make-Whole Amount is to be paid in Common Stock, no fractional shares will be delivered to Holders. The Corporation will instead pay a cash adjustment to each Holder that would otherwise be entitled to a fractional
share based on the Average VWAP per ordinary share over the five consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Acquisition Termination Redemption Date. If more than one share of Mandatory
Convertible Preferred Stock is to be redeemed from a Holder, the number of shares of Common Stock issuable in connection with the payment of the Reference Amount shall be computed on the basis of the aggregate number of Mandatory Convertible
Preferred Stock so redeemed.
(d) Notice of
Acquisition Termination Redemption will specify, among other things:
(i) the
Acquisition Termination Make-Whole Amount;
(ii) if
the Acquisition Termination Share Price exceeds the Initial Price, the number of shares of Common Stock and the amount of cash comprising the Reference Amount per Mandatory Convertible Preferred Stock (before giving effect to any election to
pay or deliver, with respect to each Mandatory Convertible Preferred Stock, cash in lieu of all or a portion of the Common Stock equal to the Acquisition Termination Conversion Rate or Common Stock lieu of some or all of the cash in respect of
the Acquisition Termination Dividend Amount);
(iii) if the Acquisition Termination Share Price exceeds the Initial Price, whether the Corporation will pay cash in lieu of Common Stock equal to the Acquisition Termination Conversion Rate comprising a portion of the Reference Amount
(specifying, if applicable, the number of such shares of Common Stock in respect of which cash will be paid);
(iv) if
the Acquisition Termination Share Price exceeds the Initial Price, whether the Corporation will deliver Common Stock in lieu of paying cash for all or any portion of the Acquisition Termination Dividend Amount comprising a portion of the
Reference Amount (specifying, if applicable, the percentage of the Acquisition Termination Dividend Amount in respect of which Common Stock will be delivered in lieu of cash); and
(v) the
Acquisition Termination Redemption Date (specifying, as applicable, a fixed date or that the Acquisition Termination Redemption Date will be the second Business Day following the last Trading Day of the 20 consecutive Trading Day period used to
determine the Acquisition Termination Market Value).
(e) To the extent a
shelf registration statement is required in the Corporation’s reasonable judgment in connection with the issuance of, or for resales of, Common Stock issued as payment of the Acquisition Termination Make-Whole Amount, the Corporation shall, to
the extent such a Shelf Registration Statement is not currently filed and effective, use its commercially reasonable efforts to file and maintain the effectiveness of such a Shelf Registration Statement until the earlier of such time as all
such shares of Common Stock have been resold thereunder and such time as all such shares would be freely tradable without registration by holders thereof that are not (and were not at any time during the preceding three months) “affiliates” of
the Corporation for purposes of the Securities Act. To the extent applicable, the Corporation shall also use its commercially reasonable efforts to have such shares of the Common Stock approved for listing on NYSE (or if the Common Stock is
not listed on NYSE, on the principal other U.S. national or regional securities exchange on which the Common Stock is then listed), and qualified or registered under applicable state securities laws, if required; provided that the Corporation will not be required to qualify as a foreign corporation or to take any action that would subject it to general service of process in any such jurisdiction where it is not
presently qualified or where it is not presently subject to taxation as a foreign corporation and such qualification or action would subject it to such taxation.
Section 8. Voting Power.
(a) General. Holders shall not have any voting rights or powers other than those set forth in this Section 8, except as specifically required by Delaware law or by the Charter from time to
time.
(b) Right to Elect Two Directors Upon Nonpayment. (i) Whenever dividends on any shares of the Mandatory Convertible Preferred Stock have not been declared and paid for the equivalent of six
or more Dividend Periods, whether or not for consecutive Dividend Periods (a “Nonpayment”), the authorized number of directors on the Board of Directors shall, at the Corporation’s
next annual meeting of the stockholders or at a special meeting of stockholders as provided below, automatically be increased by two and Holders, voting together as a single class with holders of any and all other series of Voting Preferred
Stock then outstanding, shall be entitled, at the Corporation’s next annual meeting of stockholders or at a special meeting of stockholders, if any, as provided below, to vote for the election of a total of two additional members of the Board
of Directors (the “Preferred Stock Directors”); provided, that the election of any such Preferred Stock Directors will not
cause the Corporation to violate the corporate governance requirements of NYSE (or any other exchange or automated quotation system on which the Corporation’s securities may be listed or quoted) that requires listed or quoted companies to have
a majority of independent directors; provided further that the Board of Directors shall, at no time, include more than two
Preferred Stock Directors.
(ii) In the event of a Nonpayment, the Holders of at least 25% of the shares of the Mandatory Convertible Preferred Stock and holders of record of any other series of
Voting Preferred Stock may request that a special meeting of stockholders be called to elect such Preferred Stock Directors (provided, that if the next annual or a special meeting of
stockholders is scheduled to be held within 90 days of the receipt of such request, the election of such Preferred Stock Directors, to the extent otherwise permitted by the Bylaws, shall, instead, be included in the agenda for, and shall be
held at, such scheduled annual or special meeting of stockholders). The Preferred Stock Directors shall stand for reelection annually, at each subsequent annual meeting of the stockholders, so long as the Holders continue to have such voting
powers. At any meeting at which the Holders are entitled to elect Preferred Stock Directors, the holders of record of a majority in voting power of the then outstanding shares of Mandatory Convertible Preferred Stock and all other series of
Voting Preferred Stock, present in person or represented by proxy, shall constitute a quorum and the vote of the holders of a majority in voting power of such shares of Mandatory Convertible Preferred Stock and other Voting Preferred Stock so
present or represented by proxy at any such meeting at which there shall be a quorum shall be sufficient to elect the Preferred Stock Directors.
(iii) If and when all accumulated and unpaid dividends on the Mandatory Convertible Preferred Stock have been paid in full, or declared and a sum or number of shares of
the Common Stock sufficient for such payment shall have been set aside for the benefit of the Holders thereof on the applicable Regular Record Date (a “Nonpayment Remedy”), the Holders
shall immediately and, without any further action by the Corporation, be divested of the voting powers described in this Section 8(b), subject to the revesting of such powers in the event of each subsequent Nonpayment. If such voting powers
for the Holders and all other holders of Voting Preferred Stock shall have terminated, each Preferred Stock Director then in office shall automatically be disqualified as a director and shall no longer be a director and the term of office of
each Preferred Stock Director so elected shall terminate at such time and the authorized number of directors on the Board of Directors shall automatically decrease by two.
(iv) Any Preferred Stock Director may be removed at any time, with or without cause, by the holders of record of a majority in voting power of the outstanding shares of
the Mandatory Convertible Preferred Stock and any other series of Voting Preferred Stock then outstanding (voting together as a single class), when they have the voting powers described in this Section 8(b). In the event that a Nonpayment
shall have occurred and there shall not have been a Nonpayment Remedy, any vacancy in the office of a Preferred Stock Director (other than prior to the initial election of Preferred Stock Directors after a Nonpayment) may be filled by the
written consent of the Preferred Stock Director remaining in office, except that in the event that such vacancy is created as a result of such Preferred Stock Director being removed, or if no Preferred Stock Director remains in office, then
such vacancy may be filled by a vote of the holders of record of a majority in voting power of the outstanding shares of the Mandatory Convertible Preferred Stock and any other series of Voting Preferred Stock then outstanding (voting together
as a single class) when they have the voting powers described in this Section 8(b); provided, however, that the election
of any such Preferred Stock Directors to fill such vacancy will not cause the Corporation to violate the corporate governance requirements of NYSE (or any other exchange or automated quotation system on which the Corporation’s securities may be
listed or quoted) that requires listed or quoted companies to have a majority of independent directors. The Preferred Stock Directors shall each be entitled to one vote per director on any matter that shall come before the Board of Directors
for a vote.
(c) Other Voting Powers. So long as any shares of the Mandatory Convertible Preferred Stock are outstanding, the Corporation shall not, without the affirmative vote or consent of the holders
of record of at least two-thirds in voting power of the outstanding shares of the Mandatory Convertible Preferred Stock and all other series of Voting Preferred Stock at the time outstanding and entitled to vote thereon (subject to the last
paragraph of this Section 8(c)), voting together as a single class, given in person or by proxy, either by written consent without a meeting or by vote at an annual or special meeting of such stockholders:
(i) amend
or alter the provisions of the Charter so as to authorize or create, or increase the authorized number of, any class or series of Senior Stock;
(ii) amend,
alter or repeal any provision of the Charter or this Certificate of Designations so as to materially and adversely affect the special rights, preferences or voting powers of the Mandatory Convertible Preferred Stock; or
(iii) consummate a binding share exchange or reclassification involving the shares of the Mandatory Convertible Preferred Stock, a merger or consolidation of the Corporation with another entity or a conversion of the Corporation or
domestication in or transfer to a foreign jurisdiction, unless in each case: (A) the shares of the Mandatory Convertible Preferred Stock remain outstanding following the consummation of such binding share exchange, reclassification, merger or
consolidation or, in the case of (x) any such merger or consolidation with respect to which the Corporation is not the surviving or resulting entity (or the Mandatory Convertible Preferred Stock is otherwise exchanged or reclassified) or (y)
any such conversion, domestication or transfer, are converted or reclassified into or exchanged for preference securities of the surviving or resulting entity, of the converted, domesticated or transferred entity or, in either case, such
entity’s ultimate parent; and (B) the shares of the Mandatory Convertible Preferred Stock that remain outstanding or such shares of preference securities, as the case may be, have such rights, preferences and voting powers that, taken as a
whole, are not materially less favorable to the holders thereof than the rights, preferences and voting powers, taken as a whole, of the Mandatory Convertible Preferred Stock immediately prior to the consummation of such transaction;
provided, however,
that in the event a transaction would trigger voting powers under clauses (ii) and (iii) above, clause (iii) shall govern; provided, further,
however, that for all purposes of this Section 8(c):
|
(1) |
any increase in the number of the Corporation’s authorized but unissued shares of Preferred Stock,
|
|
(2) |
any increase in the number of the authorized or issued shares of Mandatory Convertible Preferred Stock,
|
|
(3) |
the creation and issuance, or increase in the authorized or issued number, of any class or series of Parity Stock or Junior Stock, and
|
|
(4) |
the applicable of the provisions described in Section 16 ,
|
shall be deemed not to adversely affect (or to otherwise cause to be materially less favorable) the rights, preferences or voting powers of the Mandatory Convertible
Preferred Stock and shall not require the affirmative vote or written consent under this Section 8(c).
If any amendment, alteration, repeal, share exchange, reclassification, merger or consolidation or conversion, domestication or transfer specified in
this Section 8(c) would adversely affect the rights, preferences or voting powers of one or more but not all series of Voting Preferred Stock (including the Mandatory Convertible Preferred Stock for this purpose), then only the series of Voting
Preferred Stock the rights, preferences or voting powers of which are adversely affected and entitled to vote shall vote as a class in lieu of all series of Voting Preferred Stock.
(d) Without the vote or
consent of the Holders, so long as such action does not adversely affect the special rights, preferences or voting powers of the Mandatory Convertible Preferred Stock, and limitations and restrictions thereof, the Corporation may amend, alter,
correct, supplement or repeal any terms of the Mandatory Convertible Preferred Stock by amending or supplementing the Charter or the Certificate of Designations for the following purposes:
(i) to
cure any ambiguity, omission, inconsistency or mistake in any such agreement (including any provision contained in this Certificate of Designations that may be defective or inconsistent with any other provision contained in this Certificate of
Designations);
(ii) to
make any provision with respect to matters or questions relating to the Mandatory Convertible Preferred Stock that is not inconsistent with the provisions of the Charter or this Certificate of Designations;
(iii) to waive any of the Corporation’s rights with respect to the Mandatory Convertible Preferred Stock; or
(iv) to
make any other change that does not materially and adversely affect the rights of any Holder (other than any Holder that consents to such change).
In addition, without the consent of the Holders, the Corporation may amend, alter, supplement or repeal any terms of the Mandatory Convertible
Preferred Stock in order to (x) conform the terms thereof to the description of the terms of the Mandatory Convertible Preferred Stock set forth under “Description of Mandatory Convertible Preferred Stock” in the Prospectus Supplement or (y) file a
certificate of correction with respect to this Certificate of Designations to the extent permitted by Section 103(f) of the Delaware General Corporation Law.
(e) Prior to the Close
of Business on the applicable Conversion Date, the shares of Common Stock issuable upon conversion of any shares of the Mandatory Convertible Preferred Stock shall not be deemed to be outstanding for any purpose and Holders shall have no
rights, powers or preferences with respect to such shares of Common Stock, including voting powers, rights to respond to tender offers for the Common Stock and rights to receive any dividends or other distributions on the Common Stock, by
virtue of holding the Mandatory Convertible Preferred Stock.
(f) In connection with
any vote expressly set forth in this Section 8, the number of votes that each share of Mandatory Convertible Preferred Stock (and any Voting Preferred Stock participating in the votes set forth in this Section 8) shall have shall be equal to
the respective per share liquidation preference amounts of the Mandatory Convertible Preferred Stock and such other Voting Preferred Stock.
(g) The rules and
procedures for calling and conducting any meeting of the Holders (including, without limitation, the fixing of a record date in connection therewith), the solicitation and use of proxies at such a meeting, the obtaining of written consents and
any other procedural aspect or matter with regard to such a meeting or such consents shall be governed by any rules the Board of Directors, in its discretion, may adopt from time to time, which rules and procedures shall conform to the
requirements of the Charter, the Bylaws, applicable law and the rules of any national securities exchange or other trading facility on which the Mandatory Convertible Preferred Stock is listed or traded at the time.
Section 9. Mandatory Conversion on the Mandatory Conversion Date.
(a) Each outstanding
share of the Mandatory Convertible Preferred Stock shall automatically convert (unless previously redeemed in accordance with Section 7 or converted in accordance with Section 10 or Section 11) on the Mandatory Conversion Date (“Mandatory Conversion”), into a number of shares of Common Stock equal to the Mandatory Conversion Rate.
(b) The “Mandatory Conversion Rate” shall, subject to adjustment in accordance with Section 9(c), be as follows:
(i) if
the Applicable Market Value is greater than the Threshold Appreciation Price, the Mandatory Conversion Rate shall be equal to 2.5352 shares of Common Stock per share of the Mandatory Convertible Preferred Stock (the “Minimum Conversion Rate”);
(ii) if
the Applicable Market Value is less than or equal to the Threshold Appreciation Price but equal to or greater than the Initial Price, the Mandatory Conversion Rate per share of the Mandatory Convertible Preferred Stock shall be equal to $50.00
divided by the Applicable Market Value, rounded to the nearest ten-thousandth of a share of Common Stock; or
(iii) if the Applicable Market Value is less than the Initial Price, the Mandatory Conversion Rate shall be equal to 3.1056 shares of Common Stock per share of the Mandatory Convertible Preferred Stock (the “Maximum Conversion Rate”);
provided that the Fixed Conversion Rates are each subject to
adjustment in accordance with the provisions of Section 15.
(c) If the Corporation
declares a dividend on the Mandatory Convertible Preferred Stock for the Dividend Period ending on, but excluding, September 1, 2027, the Corporation shall pay such dividend to the Record Holders as of the immediately preceding Regular Record
Date, in accordance with Section 4. If on or prior to September 1, 2027, the Corporation has not declared a dividend payable in the amount of all or any portion of the accumulated and unpaid dividends on the Mandatory Convertible Preferred
Stock, the Mandatory Conversion Rate shall be adjusted so that Holders receive an additional number of shares of Common Stock equal to:
(i) the
amount of such undeclared, accumulated and unpaid dividends per share of the Mandatory Convertible Preferred Stock (the “Mandatory Conversion Additional Conversion Amount”), divided by
(ii) the
greater of (x) the Floor Price and (y) 97% of the Average Price (calculated using September 1, 2027 as the applicable Dividend Payment Date).
To the extent that the Mandatory Conversion Additional Conversion Amount exceeds the product of such number of additional shares and 97% of the Average Price, the
Corporation shall, if it is legally able to do so, and to the extent permitted under the terms of the documents governing its indebtedness, declare and pay such excess amount in cash (computed to the nearest cent) pro rata per share to the
Holders. To the extent that the Corporation is not able to pay such excess amount in cash under applicable law and in compliance with its indebtedness, the Corporation shall not have any obligation to pay such amount in cash or deliver additional
shares of Common Stock in respect of such amount, and such amount will not form a part of the cumulative dividends on the shares of Mandatory Convertible Preferred Stock.
For the avoidance of doubt, the Mandatory Conversion Rate shall in no event exceed the Maximum Conversion Rate, subject to adjustment in accordance
with the provisions of Section 15, and exclusive of any amounts owing in respect of any Mandatory Conversion Additional Conversion Amount or any accrued and unpaid dividends paid at the Corporation’s election in shares of Common Stock.
Section 10. Early Conversion at the Option of the Holder.
(a) Other than during a
Fundamental Change Conversion Period, subject to satisfaction of the conversion procedures set forth in Section 12, the Holders shall have the option to convert their Mandatory Convertible Preferred Stock, in whole or in part (but in no event
in increments of less than one share of the Mandatory Convertible Preferred Stock), at any time prior to September 1, 2027 (an “Early Conversion”), into shares of Common Stock at the
Minimum Conversion Rate, subject to adjustment in accordance with Section 10(b).
(b) If, as of any Early
Conversion Date, the Corporation has not declared all or any portion of the accumulated and unpaid dividends for all full Dividend Periods ending on or prior to the Dividend Payment Date immediately prior to such Early Conversion Date, the
Minimum Conversion Rate shall be adjusted, with respect to the relevant Early Conversion, so that the Holders converting their Mandatory Convertible Preferred Stock at such time receive an additional number of shares of Common Stock equal to:
(i) such
amount of undeclared, accumulated and unpaid dividends per share of Mandatory Convertible Preferred Stock for such prior full Dividend Periods (the “Early Conversion Additional Conversion Amount”),
divided by
(ii) the
greater of (x) the Floor Price and (y) the Average VWAP per share of the Common Stock over the 20 consecutive Trading Day period (the “Early Conversion Settlement Period”) commencing
on, and including, the 21st Scheduled Trading Day immediately preceding the Early Conversion Date (such Average VWAP, the “Early Conversion Average Price”).
To the extent that the Early Conversion Additional Conversion Amount exceeds the product of such number of additional shares and the Early Conversion
Average Price, the Corporation shall not have any obligation to pay the shortfall in cash or deliver shares of Common Stock in respect of such shortfall.
Except as set forth in the first sentence of this Section 10(b), upon any Early Conversion of any shares of Mandatory Convertible Preferred Stock, the
Corporation shall make no payment or allowance for unpaid dividends on such shares of the Mandatory Convertible Preferred Stock, unless such Early Conversion Date occurs after the Regular Record Date for a declared dividend and on or prior to the
immediately succeeding Dividend Payment Date, in which case the Corporation shall pay such dividend on such Dividend Payment Date to the Record Holder of the converted shares of the Mandatory Convertible Preferred Stock as of such Regular Record
Date, in accordance with Section 4.
Section 11. Fundamental Change Conversion.
(a) If a Fundamental
Change occurs on or prior to September 1, 2027, the Holders shall have the right (the “Fundamental Change Conversion Right”) during the Fundamental Change Conversion Period to:
(i) convert
their shares of Mandatory Convertible Preferred Stock, in whole or in part (but in no event in increments of less than one share of the Mandatory Convertible Preferred Stock) (any such conversion pursuant to this Section 11(a) being a “Fundamental Change Conversion”) into a number of shares of Common Stock (or Units of Exchange Property in accordance with Section 16) equal to the Fundamental Change Conversion Rate per
share of Mandatory Convertible Preferred Stock;
(ii) with
respect to such converted shares of Mandatory Convertible Preferred Stock, receive an amount equal to the present value, calculated using a discount rate of 6.07% per annum, of all dividend payments on such shares (excluding any Accumulated
Dividend Amount) for (A) the partial Dividend Period, if any, from, and including, the Fundamental Change Effective Date to, but excluding, the next Dividend Payment Date and (B) all the remaining full Dividend Periods from, and including, the
Dividend Payment Date following the Fundamental Change Effective Date to, but excluding, September 1, 2027 (the “Fundamental Change Dividend Make-Whole Amount”), payable in cash or
shares of Common Stock; and
(iii) with respect to such converted shares of Mandatory Convertible Preferred Stock, receive the Accumulated Dividend Amount payable in cash or shares of Common Stock,
subject, in the case of clauses (ii) and (iii) to certain limitations with respect to the number of shares of Common Stock the Corporation will be required to deliver as
set forth in Section 11(d). Notwithstanding clauses (ii) and (iii), if the Fundamental Change Effective Date or the Fundamental Change Conversion Date falls after the Regular Record Date for a Dividend Period for which the Corporation has declared
a dividend and prior to the next Dividend Payment Date, then the Corporation shall pay such dividend on the relevant Dividend Payment Date to the Record Holders as of such Regular Record Date, in accordance with Section 4, and the Accumulated
Dividend Amount shall not include the amount of such dividend, and the Fundamental Change Dividend Make-Whole Amount shall not include the present value of the payment of such dividend.
(b) To exercise the
Fundamental Change Conversion Right, Holders must submit their shares of Mandatory Convertible Preferred Stock for conversion at any time during the Fundamental Change Conversion Period. Holders that submit their shares of Mandatory
Convertible Preferred Stock for conversion during the Fundamental Change Conversion Period shall be deemed to have exercised their Fundamental Change Conversion Right. Holders who do not submit their shares for conversion during the
Fundamental Change Conversion Period shall not be entitled to convert their Mandatory Convertible Preferred Stock at the relevant Fundamental Change Conversion Rate or to receive the relevant Fundamental Change Dividend Make-Whole Amount or the
relevant Accumulated Dividend Amount.
The Corporation shall provide written notice (the “Fundamental Change Notice”) to Holders
of the Fundamental Change Effective Date no later than the second Business Day immediately following such Fundamental Change Effective Date.
The Fundamental Change Notice shall state:
(i) the
event causing the Fundamental Change;
(ii) the
anticipated Fundamental Change Effective Date or actual Fundamental Change Effective Date, as the case may be;
(iii) that Holders shall have the right to effect a Fundamental Change Conversion in connection with such Fundamental Change during the Fundamental Change Conversion Period;
(iv) the
Fundamental Change Conversion Period; and
(v) the
instructions a Holder must follow to effect a Fundamental Change Conversion in connection with such Fundamental Change.
(c) Not later than the
second Business Day following the Fundamental Change Effective Date, the Corporation shall notify Holders of:
(i) the
Fundamental Change Conversion Rate (if notice is provided to Holders prior to the anticipated Fundamental Change Effective Date, specifying how the Fundamental Change Conversion Rate will be determined);
(ii) the
Fundamental Change Dividend Make-Whole Amount and whether the Corporation will pay such amount in cash, shares of Common Stock (or to the extent applicable, Units of Exchange Property) or a combination thereof, specifying the combination, if
applicable; and
(iii) the Accumulated Dividend Amount as of the Fundamental Change Effective Date and whether the Corporation will pay such amount in cash, shares of Common Stock (or to the extent applicable, Units of Exchange Property) or a combination
thereof, specifying the combination, if applicable.
(d) (i) For any shares
of the Mandatory Convertible Preferred Stock that are converted during the Fundamental Change Conversion Period, in addition to the Common Stock issued upon conversion at the Fundamental Change Conversion Rate, the Corporation shall at its
option (subject to satisfaction of the requirements of this Section 11):
(A) pay
the Fundamental Change Dividend Make-Whole Amount in cash (computed to the nearest cent), to the extent the Corporation is legally permitted to do so and to the extent permitted under the terms of the documents governing its indebtedness;
(B) increase
the number of shares of Common Stock (or Units of Exchange Property) to be issued upon conversion by a number equal to (x) the Fundamental Change Dividend Make-Whole Amount, divided
by (y) the greater of (i) the Floor Price and (ii) 97% of the Fundamental Change Stock Price; or
(C) pay
the Fundamental Change Dividend Make-Whole Amount through any combination of cash and shares of Common Stock (or Units of Exchange Property) in accordance with the provisions of clauses (A) and (B) above.
(ii) In
addition, to the extent that the Accumulated Dividend Amount exists as of the Fundamental Change Effective Date, the converting Holder shall be entitled to receive such Accumulated Dividend Amount upon such Fundamental Change Conversion. The
Corporation shall, at its option, pay the Accumulated Dividend Amount (subject to satisfaction of the requirements of this Section 11):
(A) in
cash (computed to the nearest cent), to the extent the Corporation is legally permitted to do so and to the extent permitted under the terms of the documents governing its indebtedness;
(B) in
an additional number of shares of Common Stock (or Units of Exchange Property) equal to (x) the Accumulated Dividend Amount, divided by (y) the greater of (i) the Floor
Price and (ii) 97% of the Fundamental Change Stock Price; or
(C) through
a combination of cash and shares of Common Stock (or Units of Exchange Property) in accordance with the provisions of clauses (A) and (B) above.
(iii) The Corporation shall pay the Fundamental Change Dividend Make-Whole Amount and the Accumulated Dividend Amount in cash, except to the extent the Corporation elects on or prior to the second Business Day following the relevant
Fundamental Change Effective Date to make all or any portion of such payments in shares of Common Stock (or Units of Exchange Property). If the Corporation elects to deliver Common Stock (or Units of Exchange Property) in respect of all or any
portion of the Fundamental Change Dividend Make-Whole Amount or the Accumulated Dividend Amount, to the extent that the Fundamental Change Dividend Make-Whole Amount or the Accumulated Dividend Amount or the dollar amount of any portion thereof
paid in Common Stock (or Units of Exchange Property) exceeds the product of (x) the number of additional shares the Corporation delivers in respect thereof and (y) 97% of the Fundamental Change Stock Price, the Corporation shall, if it is
legally able to do so, and to the extent permitted under the terms of the documents governing its indebtedness, pay such excess amount in cash (computed to the nearest cent). To the extent that the Corporation is not able to pay such excess
amount in cash under applicable law and in compliance with its indebtedness, the Corporation shall not have any obligation to pay such amount in cash or deliver additional shares of Common Stock in respect of such amount, and such amount will
not form a part of the cumulative dividends that may be deemed to accumulate on the shares of the Mandatory Convertible Preferred Stock.
(iv) No
fractional shares of Common Stock (or, to the extent applicable, Units of Exchange Property) shall be delivered by the Corporation to converting Holders in respect of the Fundamental Change Dividend Make-Whole Amount or the Accumulated Dividend
Amount. The Corporation shall instead, to the extent the Corporation is legally permitted to do so and to the extent permitted under the terms of the documents governing the Corporation’s indebtedness, pay a cash amount (computed to the
nearest cent) to each converting Holder that would otherwise be entitled to receive a fraction of a share of Common Stock (or to the extent applicable, Units of Exchange Property) based on the Average VWAP per share of Common Stock (or to the
extent applicable, Units of Exchange Property) over the five consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the relevant Fundamental Change Conversion Date. In the event the Corporation cannot
pay cash in lieu of a fractional share, the Corporation shall instead round up to the nearest whole share for each Holder, and the Corporation shall not have any obligation to pay such amount in cash and such amount shall not form a part of the
cumulative dividends that may be deemed to accumulate on the shares of Mandatory Convertible Preferred Stock.
(v) If
the Corporation is prohibited from paying or delivering, as the case may be, the Fundamental Change Dividend Make-Whole Amount (whether in cash or in shares of Common Stock), in whole or in part, due to limitations of applicable Delaware law,
the Fundamental Change Conversion Rate will instead be increased by a number of shares of Common Stock equal to:
(A) the
cash amount of the aggregate unpaid and undelivered Fundamental Change Dividend Make-Whole Amount, divided by
(B) the
greater of (i) the Floor Price and (ii) 97% of the Fundamental Change Stock Price.
To the extent that the cash amount of the aggregate unpaid and undelivered Fundamental Change Dividend Make-Whole Amount exceeds the product of such
number of additional shares and 97% of the Fundamental Change Stock Price, the Corporation shall not have any obligation to pay the shortfall in cash or deliver additional shares of Common Stock in respect of such amount.
Section 12. Conversion Procedures.
(a) Pursuant to Section
9, on the Mandatory Conversion Date, any outstanding shares of Mandatory Convertible Preferred Stock shall mandatorily and automatically convert into shares of Common Stock.
Subject to any applicable rules and procedures of the Depositary, if more than one share of the Mandatory Convertible Preferred Stock held by the same
Holder is automatically converted on the Mandatory Conversion Date, the number of full shares of Common Stock issuable upon conversion thereof shall be computed on the basis of the aggregate number of shares of Mandatory Convertible Preferred Stock
so converted.
A Holder of shares of the Mandatory Convertible Preferred Stock that are mandatorily converted shall not be required to pay any transfer or similar
taxes or duties relating to the issuance or delivery of the Common Stock upon conversion, except that such Holder shall be required to pay any tax or duty that may be payable relating to any transfer involved in the issuance or delivery of the
Common Stock in a name other than the name of such Holder.
A certificate representing the shares of Common Stock issuable upon conversion shall be issued and delivered to the converting Holder or, if the
Mandatory Convertible Preferred Stock being converted is in book-entry form, the shares of Common Stock issuable upon conversion shall be delivered to the converting Holder through book-entry transfer through the facilities of the Depositary, in
each case, together with delivery by the Corporation to the converting Holder of any cash to which the converting Holder is entitled, only after all applicable taxes and duties, if any, payable by such converting Holder have been paid in full, and
such shares and cash will be delivered on the later of (i) the Mandatory Conversion Date and (ii) the Business Day after the Holder has paid in full all applicable taxes and duties, if any.
The Person or Persons entitled to receive the shares of Common Stock issuable upon Mandatory Conversion shall be treated as the record holder(s) of
such shares of Common Stock as of the Close of Business on the Mandatory Conversion Date. Prior to the Close of Business on the Mandatory Conversion Date, the Common Stock issuable upon conversion of Mandatory Convertible Preferred Stock on the
Mandatory Conversion Date shall not be deemed to be outstanding for any purpose and Holders shall have no rights, powers or preferences with respect to such Common Stock, including voting powers, rights to respond to tender offers and rights to
receive any dividends or other distributions on the Common Stock, by virtue of holding the Mandatory Convertible Preferred Stock.
(b) To effect an Early
Conversion pursuant to Section 10, a Holder must:
(i) complete
and manually sign the conversion notice on the back of the Mandatory Convertible Preferred Stock certificate or a facsimile of such conversion notice;
(ii) deliver
the completed conversion notice and the certificated shares of Mandatory Convertible Preferred Stock to be converted to the Conversion and Dividend Disbursing Agent;
(iii) if required, furnish appropriate endorsements and transfer documents; and
(iv) if
required, pay all transfer or similar taxes or duties, if any.
Notwithstanding the foregoing, to effect an Early Conversion pursuant to Section 10 of shares of Mandatory Convertible Preferred Stock held in global
form, the Holder must, in lieu of the foregoing, comply with the applicable procedures of DTC (or any other Depositary for the shares of Mandatory Convertible Preferred Stock held in global form appointed by the Corporation).
The Early Conversion shall be effective on the date on which a Holder has satisfied the foregoing requirements, to the extent applicable (“Early Conversion Date”).
Subject to any applicable rules and procedures of the Depositary, if more than one share of the Mandatory Convertible Preferred Stock is surrendered
for conversion at one time by or for the same Holder, the number of full shares of Common Stock issuable upon conversion thereof shall be computed on the basis of the aggregate number of shares of the Mandatory Convertible Preferred Stock so
surrendered.
A Holder shall not be required to pay any transfer or similar taxes or duties relating to the issuance or delivery of Common Stock upon conversion, but
such Holder shall be required to pay any tax or duty that may be payable relating to any transfer involved in the issuance or delivery of Common Stock in a name other than the name of such Holder.
A certificate representing the shares of Common Stock issuable upon conversion shall be issued and delivered to the converting Holder or, if the
Mandatory Convertible Preferred Stock being converted are in book-entry form, the shares of Common Stock issuable upon conversion shall be delivered to the converting Holder through book-entry transfer through the facilities of the Depositary, in
each case, together with delivery by the Corporation to the converting Holder of any cash to which the converting Holder is entitled, only after all applicable taxes and duties, if any, payable by such converting Holder have been paid in full, and
such shares and cash will be delivered on the latest of (i) the second Business Day immediately succeeding the Early Conversion Date, (ii) the second Business Day immediately succeeding the last day of the Early Conversion Settlement Period, and
(iii) the Business Day after the Holder has paid in full all applicable taxes and duties, if any.
The Person or Persons entitled to receive the shares of Common Stock issuable upon Early Conversion shall be treated for all purposes as the record
holder(s) of such shares of Common Stock as of the Close of Business on the applicable Early Conversion Date. Prior to the Close of Business on such applicable Early Conversion Date, the shares of Common Stock issuable upon conversion of any
shares of Mandatory Convertible Preferred Stock shall not be deemed to be outstanding for any purpose, and Holders shall have no rights, powers or preferences with respect to such shares of Common Stock, including voting powers, rights to respond
to tender offers for the Common Stock and rights to receive any dividends or other distributions on the Common Stock, by virtue of holding shares of Mandatory Convertible Preferred Stock.
In the event that an Early Conversion is effected with respect to shares of Mandatory Convertible Preferred Stock representing less than all the shares
of the Mandatory Convertible Preferred Stock held by a Holder, upon such Early Conversion the Corporation shall execute and instruct the Transfer Agent and Registrar to countersign and deliver to the Holder thereof, at the expense of the
Corporation, a certificate evidencing the shares of Mandatory Convertible Preferred Stock as to which Early Conversion was not effected, or, if the Mandatory Convertible Preferred Stock is held in book-entry form, the Corporation shall cause the
Transfer Agent and Registrar to reduce the number of shares of the Mandatory Convertible Preferred Stock represented by the global certificate by making a notation on the global certificate or otherwise notating such reduction in the register
maintained by such Transfer Agent and Registrar.
(c) To effect a
Fundamental Change Conversion pursuant to Section 11, a Holder must:
(i) complete
and manually sign the conversion notice on the back of the Mandatory Convertible Preferred Stock certificate or a facsimile of such conversion notice;
(ii) deliver
the completed conversion notice and the certificated shares of Mandatory Convertible Preferred Stock to be converted to the Conversion and Dividend Disbursing Agent;
(iii) if required, furnish appropriate endorsements and transfer documents; and
(iv) if
required, pay all transfer or similar taxes or duties, if any.
Notwithstanding the foregoing, to effect a Fundamental Change Conversion pursuant to Section 11 of shares of Mandatory Convertible Preferred Stock held in global form,
the Holder must, in lieu of the foregoing, comply with the applicable procedures of DTC (or any other Depositary for the shares of Mandatory Convertible Preferred Stock held in global form appointed by the Corporation).
The Fundamental Change Conversion shall be effective on the date on which a Holder has satisfied the foregoing requirements, to the extent applicable
(the “Fundamental Change Conversion Date”).
Subject to any applicable rules and procedures of the Depositary, if more than one share of the Mandatory Convertible Preferred Stock is surrendered
for conversion at one time by or for the same Holder, the number of full shares of Common Stock issuable upon conversion thereof shall be computed on the basis of the aggregate number of shares of the Mandatory Convertible Preferred Stock so
surrendered.
A Holder shall not be required to pay any transfer or similar taxes or duties relating to the issuance or delivery of Common Stock upon conversion, but
such Holder shall be required to pay any tax or duty that may be payable relating to any transfer involved in the issuance or delivery of Common Stock in a name other than the name of such Holder.
A certificate representing the shares of Common Stock issuable upon conversion shall be issued and delivered to the converting Holder or, if the
Mandatory Convertible Preferred Stock being converted are in book-entry form, the shares of Common Stock issuable upon conversion shall be delivered to the converting Holder through book-entry transfer through the facilities of the Depositary, in
each case, together with delivery by the Corporation to the converting Holder of any cash to which the converting Holder is entitled, only after all applicable taxes and duties, if any, payable by such converting Holder have been paid in full, on
the later of (i) the second Business Day immediately succeeding the Fundamental Change Conversion Date and (ii) the Business Day after the Holder has paid in full all applicable taxes and duties, if any.
The Person or Persons entitled to receive the shares of Common Stock issuable upon such Fundamental Change Conversion shall be treated for all purposes
as the record holder(s) of such shares of Common Stock as of the Close of Business on the applicable Fundamental Change Conversion Date. Prior to the Close of Business on such applicable Fundamental Change Conversion Date, the shares of Common
Stock issuable upon conversion of any shares of the Mandatory Convertible Preferred Stock shall not be deemed to be outstanding for any purpose, and Holders shall have no rights, powers or preferences with respect to the Common Stock, including
voting powers, rights to respond to tender offers for the Common Stock and rights to receive any dividends or other distributions on the Common Stock, by virtue of holding shares of Mandatory Convertible Preferred Stock.
In the event that a Fundamental Change Conversion is effected with respect to shares of Mandatory Convertible Preferred Stock representing less than
all the shares of Mandatory Convertible Preferred Stock held by a Holder, upon such Fundamental Change Conversion the Corporation shall execute and instruct the Transfer Agent and Registrar to countersign and deliver to the Holder thereof, at the
expense of the Corporation, a certificate evidencing the shares of Mandatory Convertible Preferred Stock as to which Fundamental Change Conversion was not effected, or, if Mandatory Convertible Preferred Stock is held in book-entry form, the
Corporation shall cause the Transfer Agent and Registrar to reduce the number of shares of Mandatory Convertible Preferred Stock represented by the global certificate by making a notation on Schedule I attached to the global certificate or
otherwise notate such reduction in the register maintained by such Transfer Agent and Registrar.
(d) In the event that a
Holder shall not by written notice designate the name in which shares of Common Stock to be issued upon conversion of such Mandatory Convertible Preferred Stock should be registered or, if applicable, the address to which the certificate or
certificates representing such shares of Common Stock should be sent, the Corporation shall be entitled to register such shares, and make such payment, in the name of the Holder as shown on the records of the Corporation and, if applicable, to
send the certificate or certificates representing such shares of Common Stock to the address of such Holder shown on the records of the Corporation.
(e) Shares of Mandatory
Convertible Preferred Stock shall cease to be outstanding on the applicable Conversion Date, subject to the right of Holders of such shares to receive shares of Common Stock issuable upon conversion of such shares of Mandatory Convertible
Preferred Stock and other amounts and shares of Common Stock, if any, to which they are entitled pursuant to Sections 9, 10 or 11, as applicable and, if the applicable Conversion Date occurs after the Regular Record Date for a declared dividend
and prior to the immediately succeeding Dividend Payment Date, subject to the right of the Record Holders of such shares of the Mandatory Convertible Preferred Stock on such Regular Record Date to receive payment of the full amount of such
declared dividend on such Dividend Payment Date pursuant to Section 4.
Section 13. Reservation of Common Stock.
(a) The Corporation
shall at all times reserve and keep available out of its authorized and unissued Common Stock, solely for issuance upon the conversion of shares of Mandatory Convertible Preferred Stock as herein provided, free from any preemptive or other
similar rights, a number of shares of Common Stock equal to the maximum number of shares of Common Stock deliverable upon conversion of all shares of Mandatory Convertible Preferred Stock (which shall initially equal a number of shares of
Common Stock equal to the sum of (x) the product of (i) 30,000,000 shares of Mandatory Convertible Preferred Stock, and (ii) the initial Maximum Conversion Rate and (y) the product of (i) 30,000,000 shares of Mandatory Convertible Preferred
Stock, and (ii) the maximum number of shares of Common Stock that would be added to the Mandatory Conversion Rate assuming (A) the Corporation paid no dividends on the shares of Mandatory Convertible Preferred Stock prior to the Mandatory
Conversion Date and (B) the Floor Price is greater than 97% of the relevant Average Price). For purposes of this Section 13(a), the number of shares of Common Stock that shall be deliverable upon the conversion of all outstanding shares of
Mandatory Convertible Preferred Stock shall be computed as if at the time of computation all such outstanding shares were held by a single Holder.
(b) Notwithstanding the
foregoing, the Corporation shall be entitled to deliver upon conversion of shares of Mandatory Convertible Preferred Stock or as payment of any dividend on such shares of Mandatory Convertible Preferred Stock, as herein provided, shares of
Common Stock reacquired and held in the treasury of the Corporation (in lieu of the issuance of authorized and unissued shares of Common Stock), so long as any such treasury shares are free and clear of all liens, charges, security interests or
encumbrances (other than liens, charges, security interests and other encumbrances created by the Holders).
(c) All shares of
Common Stock delivered upon conversion of, or as payment of a dividend on, the Mandatory Convertible Preferred Stock shall be duly authorized, validly issued, fully paid and non-assessable, free and clear of all liens, claims, security
interests and other encumbrances (other than liens, charges, security interests and other encumbrances created by the Holders) and free of preemptive rights.
(d) Prior to the
delivery of any securities that the Corporation shall be obligated to deliver upon conversion of Mandatory Convertible Preferred Stock, the Corporation shall use commercially reasonable efforts to comply with all federal and state laws and
regulations thereunder requiring the registration of such securities with, or any approval of or consent to the delivery thereof by, any governmental authority.
(e) The Corporation
hereby covenants and agrees that, if at any time the Common Stock shall be listed on NYSE or any other national securities exchange or automated quotation system, the Corporation shall, if permitted by the rules of such exchange or automated
quotation system, list and use its commercially reasonable efforts to keep listed, so long as the Common Stock shall be so listed on such exchange or automated quotation system, all Common Stock issuable upon conversion (including, for the
avoidance of doubt, with respect to the Mandatory Conversion Additional Conversion Amount or Early Conversion Additional Conversion Amount) of, or issuable in respect of the payment of dividends, the Accumulated Dividend Amount and the
Fundamental Change Dividend Make-Whole Amount on, the Mandatory Convertible Preferred Stock; provided, however, that if
the rules of such exchange or automated quotation system permit the Corporation to defer the listing of such Common Stock until the earlier of (x) the first conversion of Mandatory Convertible Preferred Stock into Common Stock in accordance
with the provisions hereof and (y) the first payment of any dividends, any Accumulated Dividend Amount or any Fundamental Change Dividend Make-Whole Amount on the Mandatory Convertible Preferred Stock, the Corporation covenants to list such
Common Stock issuable upon the earlier of (1) the first conversion of the Mandatory Convertible Preferred Stock and (2) the first payment of any dividends, any Accumulated Dividend Amount or any Fundamental Change Dividend Make-Whole Amount on
the Mandatory Convertible Preferred Stock in accordance with the requirements of such exchange or automated quotation system at such time.
Section 14. Fractional Shares.
(a) No fractional
shares of Common Stock shall be issued to Holders as a result of any conversion of shares of Mandatory Convertible Preferred Stock.
(b) In lieu of any
fractional shares of Common Stock otherwise issuable in respect of the aggregate number of shares of the Mandatory Convertible Preferred Stock of any Holder that are converted on the Mandatory Conversion Date pursuant to Section 9 or at the
option of the Holder pursuant to Section 10 or Section 11, the Corporation shall pay an amount in cash (computed to the nearest cent) equal to the product of (i) that same fraction and (ii) the Average VWAP of the Common Stock over the five
consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Mandatory Conversion Date, Early Conversion Date or Fundamental Change Conversion Date, as applicable. In the event the Corporation cannot pay
cash in lieu of a fractional share, the Corporation shall instead round up to the nearest whole share for each Holder, and the Corporation shall not have any obligation to pay such amount in cash and such amount shall not form a part of the
cumulative dividends that may be deemed to accumulate on the shares of Mandatory Convertible Preferred Stock.
Section 15. Anti-Dilution Adjustments to the Fixed Conversion Rates. (a) Each Fixed
Conversion Rate shall be adjusted as set forth in this Section 15, except that the Corporation shall not make any adjustments to the Fixed Conversion Rates if Holders participate (other than in the case of a share split or share combination),
at the same time and upon the same terms as holders of Common Stock and solely as a result of holding the Mandatory Convertible Preferred Stock, in any of the transactions set forth in Sections 15(a)(i)-(v) without having to convert their
Mandatory Convertible Preferred Stock as if they held a number of shares of Common Stock equal to (i) the Maximum Conversion Rate as of the Record Date for such transaction, multiplied
by (ii) the number of shares of Mandatory Convertible Preferred Stock held by such Holder.
(i) If
the Corporation exclusively issues shares of Common Stock as a dividend or distribution on shares of Common Stock, or if the Corporation effects a share split or share combination, each Fixed Conversion Rate shall be adjusted based on the
following formula: