As filed with the Securities and Exchange Commission on December 6, 2022
Registration No. 333-
Hp Inc S-3, filed Dec 6, 2022
Hp Inc (HPQ)
S-3
2022-12-06
View Original
Added on
October 19, 2026
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
HP Inc.
(Exact name of registrant as specified in its charter)
DELAWARE | | | 94-1081436 |
(State of incorporation) | | | (IRS Employer Identification Number) |
1501 Page Mill Road
Palo Alto, California 94304
(650) 857-1501
(Address, including zip code, and telephone number, including area code,
of registrant’s principal executive offices)
Rick Hansen
Deputy General Counsel, Corporate and Corporate Secretary
1501 Page Mill Road
Palo Alto, California 94304
(650) 857-1501
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copy to:
Shirley Lo Christopher Kortum HP Inc. 1501 Page Mill Road Palo Alto, California 94304 (650) 857-1501 | | | Andrew L. Fabens Gibson, Dunn & Crutcher LLP 200 Park Avenue New York, NY 10166 (212) 351-4000 |
Approximate date of commencement of proposed sale to the public:
From time to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ☐
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☐
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer ☒ | | | Accelerated filer ☐ |
Non-accelerated filer ☐ | | | Smaller reporting company ☐ |
| | | Emerging growth company ☐ |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of Securities Act. ☐
The registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the registration statement shall become effective on such date as the Commission acting pursuant to said Section 8(a), may determine.
The information in this prospectus is not complete and may be changed. These securities may not be sold until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
Subject to Completion. Dated December 6, 2022.Prospectus
HP Inc.
DEBT SECURITIES
COMMON STOCK
PREFERRED STOCK
DEPOSITARY SHARES
WARRANTS
We may offer from time to time, in one or more offerings, debt securities, common stock, preferred stock, depositary shares and warrants. This prospectus describes the general terms of these securities and the general manner in which we will offer them. We will provide the specific terms and prices of these securities in supplements to this prospectus. The prospectus supplements will also describe the specific manner in which we will offer these securities and may also supplement, update or amend information contained in this prospectus. You should read this prospectus and the applicable prospectus supplement carefully before you invest.
We may sell these securities on a continuous or delayed basis directly, through agents, dealers or underwriters as designated from time to time, or through a combination of these methods. The names of any underwriters, dealers or agents involved in the sale of any securities and any applicable commissions or discounts will be set forth in the prospectus supplement covering the sale of those securities. Our net proceeds from the sale of securities also will be set forth in the applicable prospectus supplement.
Our common stock is listed on the New York Stock Exchange under the symbol “HPQ.”
See risk factors in Item 1A of our Annual Report on Form 10-K for the fiscal year ended October 31, 2022, as they have and may be updated and modified periodically in our reports filed with the Securities and Exchange Commission (the “SEC”) as described in the section entitled “Information Incorporated by Reference” in this prospectus.
Our principal executive offices are located at 1501 Page Mill Road, Palo Alto, California 94304, and our telephone number at that location is (650) 857-1501.
Neither the SEC nor any state securities commission has approved or disapproved of these securities or determined that this prospectus is accurate or complete. Any representation to the contrary is a criminal offense.
, 2022
This prospectus is part of a “shelf” registration statement that we have filed with the SEC. By using a shelf registration statement, we may sell, at any time and from time to time, in one or more offerings, the securities described in this prospectus.
This prospectus only provides you with a general description of the securities we may offer. Each time we sell securities, we will provide a prospectus supplement that contains specific information about the terms of those securities. The prospectus supplement may also add, update or change information contained in this prospectus. You should read both this prospectus and any prospectus supplement together with the additional information described below, including a description of our business, in the sections entitled “Where You Can Find More Information” and “Information Incorporated by Reference.”
This prospectus contains summaries of certain provisions contained in some of the documents described herein, but reference is made to the actual documents for complete information. All of the summaries are qualified in their entirety by the actual documents. Copies of some of the documents referred to herein have been filed or will be filed or incorporated by reference as exhibits to the registration statement of which this prospectus is a part, and you may obtain copies of those documents as described below in the section entitled “Where You Can Find More Information.”
We are not making an offer of these securities in any jurisdiction where the offer is not permitted. You should not assume that the information in this prospectus or a prospectus supplement is accurate as of any date other than the date on the front of the document.
Except as otherwise noted, references in this prospectus to “HP,” “we,” “us” and “our” are to HP Inc. and its consolidated subsidiaries.
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This prospectus, the prospectus supplement and the documents incorporated by reference into this prospectus contain forward-looking statements based on current expectations and assumptions that involve risks and uncertainties. If the risks or uncertainties ever materialize or the assumptions prove incorrect, they could affect the business and results of operations of HP Inc. and its consolidated subsidiaries may differ materially from those expressed or implied by such forward-looking statements and assumptions. All statements other than statements of historical fact are statements that could be deemed forward-looking statements, including, but not limited to, any statements regarding the impact of the COVID-19 pandemic; projections of net revenue, margins, expenses, effective tax rates, net earnings, net earnings per share, cash flows, benefit plan funding, deferred taxes, share repurchases, foreign currency exchange rates or other financial items; any projections of the amount, timing or impact of cost savings or restructuring and other charges, planned structural cost reductions and productivity initiatives; any statements of the plans, strategies and objectives of management for future operations, including, but not limited to, our business model and transformation, our sustainability goals, our go-to-market strategy, the execution of restructuring plans and any resulting cost savings, net revenue or profitability improvements or other financial impacts; any statements concerning the expected development, demand, performance, market share or competitive performance relating to products or services; any statements concerning potential supply constraints, component shortages, manufacturing disruptions or logistics challenges; any statements regarding current or future macroeconomic trends or events and the impact of those trends and events on HP and its financial performance; any statements regarding pending investigations, claims, disputes or other litigation matters; any statements of expectation or belief as to the timing and expected benefits of acquisitions and other business combination and investment transactions (including the acquisition of Plantronics, Inc.); and any statements of assumptions underlying any of the foregoing.
Forward-looking statements can also generally be identified by words such as “future,” “anticipates,” “believes,” “estimates,” “expects,” “intends,” “plans,” “predicts,” “projects,” “will,” “would,” “could,” “can,” “may,” and similar terms.
Risks, uncertainties and assumptions that could affect our business and results of operations include factors relating to:
• | the impact of macroeconomic and geopolitical trends, changes and events, including the Russian invasion of Ukraine and tension across the Taiwan Strait and the regional and global ramifications of these events; |
• | recent volatility in global capital markets, increases in benchmark interest rates and the effects of inflation; |
• | risks associated with HP’s international operations; the effects of the COVID-19 pandemic; |
• | the execution and performance of contracts by HP and its suppliers, customers, clients and partners, including logistical challenges with respect to such execution and performance; |
• | changes in estimates and assumptions HP makes in connection with the preparation of its financial statements; |
• | the need to manage (and reliance on) third-party suppliers, including with respect to component shortages, and the need to manage HP’s global, multi-tier distribution network, limit potential misuse of pricing programs by HP’s channel partners, adapt to new or changing marketplaces and effectively deliver HP’s services; |
• | HP’s ability to execute on its strategic plans, including the previously announced initiatives, business model changes and transformation; |
• | execution of planned structural cost reductions and productivity initiatives; |
• | HP’s ability to complete any contemplated share repurchases, other capital return programs or other strategic transactions; |
• | the competitive pressures faced by HP’s businesses; |
• | risks associated with executing HP’s strategy and business model changes and transformation; |
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• | successfully innovating, developing and executing HP’s go-to-market strategy, including online, omnichannel and contractual sales, in an evolving distribution, reseller and customer landscape; |
• | the development and transition of new products and services and the enhancement of existing products and services to meet evolving customer needs and respond to emerging technological trends; |
• | successfully competing and maintaining the value proposition of HP’s products, including supplies; |
• | challenges to HP’s ability to accurately forecast inventories, demand and pricing, which may be due to HP’s multi-tiered channel, sales of HP’s products to unauthorized resellers or unauthorized resale of HP’s products or our uneven sales cycle; |
• | integration and other risks associated with business combination and investment transactions; |
• | the results of our restructuring plans (including the 2023 plan), including estimates and assumptions related to the cost (including any possible disruption of HP’s business) and the anticipated benefits of our restructuring plans; |
• | the protection of HP’s intellectual property assets, including intellectual property licensed from third parties; |
• | the hiring and retention of key employees; |
• | disruptions in operations from system security risks, data protection breaches, cyberattacks, extreme weather conditions or other effects of climate change, medical epidemics or pandemics such as the COVID-19 pandemic, and other natural or manmade disasters or catastrophic events; |
• | the impact of changes to federal, state, local and foreign laws and regulations, including environmental regulations and tax laws; |
• | our aspirations related to environmental, social and governance matters; |
• | potential impacts, liabilities and costs from pending or potential investigations, claims and disputes; and |
• | other risks that are described in our filings with the SEC, including but not limited to the risks described under the caption “Risk Factors” contained in Item 1A of Part I of our Annual Report on Form 10-K for the fiscal year ended October 31, 2022 and that are otherwise described or updated from time to time in HP’s other filings with the SEC. |
HP assumes no obligation and does not intend to update these forward-looking statements.
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Unless otherwise specified in a prospectus supplement, the net proceeds from the sale of the securities to which this prospectus relates will be used for general corporate purposes. General corporate purposes may include repayment of debt, repurchases of outstanding shares of common stock, acquisitions, investments, additions to working capital, capital expenditures and advances to or investments in our subsidiaries. Net proceeds may be temporarily invested prior to use.
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This section describes the general terms and provisions of any senior debt securities and subordinated debt securities (together, the “debt securities”) that we may offer in the future. A prospectus supplement relating to a particular series of debt securities will describe the material terms of that particular series and the extent to which the general terms and provisions contained herein apply to that particular series.
General
The debt securities will either be our senior debt securities or our subordinated debt securities. We expect to issue the debt securities under one or more separate indentures between us and The Bank of New York Mellon Trust Company, N.A., as trustee. Senior debt securities will be issued under the senior indenture, dated as of June 17, 2020, between us and The Bank of New York Mellon Trust Company, N.A., as trustee and subordinated debt securities will be issued under a subordinated indenture to be entered into later (together with the senior indenture, the “indentures”). For additional information, you should look at the senior indenture filed as an exhibit to the registration statement of which this prospectus forms a part and the form of subordinated indenture filed as an exhibit to the registration statement of which this prospectus forms a part. In this description of the debt securities, the words “we,” “us” or “our” refer only to HP Inc. and not to any of our subsidiaries.
Debt securities may be issued in separate series without limitation as to aggregate principal amount. We may specify a maximum aggregate principal amount for the debt securities of any series. We are not limited as to the amount of debt securities we may issue under the indentures. Unless otherwise provided in a prospectus supplement, a series of debt securities may be reopened for issuance of additional debt securities of such series without notice to existing holders of debt securities of that series.
Terms of a Particular Series
Each prospectus supplement relating to a particular series of debt securities will include specific information relating to the offering. This information will include some or all of the following terms of the debt securities of the series:
• | whether the debt securities are senior or subordinated; |
• | the offering price; |
• | the title; |
• | any limit on the aggregate principal amount; |
• | the person who shall be entitled to receive interest, if other than the record holder on the record date; |
• | the date the principal will be payable; |
• | the interest rate, if any, the date interest will accrue, the interest payment dates and the regular record dates; |
• | the interest rate, if any, payable on overdue installments of principal, premium or interest; |
• | the place where payments shall be made; |
• | any mandatory or optional redemption provisions; |
• | if applicable, the method for determining how principal, premium, if any, or interest will be calculated by reference to an index or formula; |
• | if other than U.S. currency, the currency or currency units in which principal, premium, if any, or interest will be payable and whether we or the holder may elect payment to be made in a different currency; |
• | the portion of the principal amount that will be payable upon acceleration of stated maturity, if other than the entire principal amount; |
• | if the principal amount payable at stated maturity will not be determinable as of any date prior to stated maturity, that the amount payable will be deemed to be the principal amount; |
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• | any defeasance provisions if different from those described below under “Satisfaction and Discharge-Defeasance;” |
• | any conversion or exchange provisions; |
• | whether the debt securities will be issuable in the form of a global security and, if so, the identity of the depositary with respect to such global security; |
• | any subordination provisions if different from those described below under “Subordinated Debt Securities”; |
• | any paying agents, authenticating agents or security registrars; |
• | any guarantees on the debt securities; |
• | any security for any of the debt securities; |
• | any deletions of, or changes or additions to, the events of default or covenants; and |
• | any other specific terms of such debt securities. |
Unless otherwise specified in the prospectus supplement:
• | the debt securities will be registered debt securities; and |
• | registered debt securities denominated in U.S. dollars will be issued in denominations of $2,000 and any integral multiple of $1,000 in excess of $2,000. |
Debt securities may be issued as original issue discount debt securities and sold at a substantial discount below their stated principal amount, bearing no interest or interest at a rate that at the time of issuance is below market rates. If we issue these debt securities, the prospectus supplement relating to such series of debt securities will describe any special tax, accounting or other information which we think is important. We encourage you to consult with your own tax and financial advisors on these important matters.
Unless we specify otherwise in the applicable prospectus supplement relating to such series of debt securities, the covenants contained in the indentures will not provide special protection to holders of debt securities if we enter into a highly leveraged transaction, recapitalization or restructuring.
Exchange and Transfer
Debt securities may be transferred or exchanged at the office of the security registrar or at the office of any transfer agent designated by us. We will not impose a service charge for any transfer or exchange, but we may require holders to pay any tax or other governmental charges associated with any transfer or exchange.
In the event of any potential redemption of debt securities of any series in part, we will not be required to:
• | issue, register the transfer of, or exchange any debt security of that series during a period beginning at the opening of business 15 days before the day of sending a notice of redemption and ending at the close of business on the day of the transmission; or |
• | register the transfer of or exchange any debt security of that series selected for redemption, in whole or in part, except the unredeemed portion being redeemed in part. |
We have initially appointed the trustee as the security registrar. Any transfer agent, in addition to the security registrar, initially designated by us will be named in the prospectus supplement. We may designate additional transfer agents, change transfer agents or change the office of the transfer agent, change any security registrar or act as security registrar. However, we will be required to maintain a transfer agent in each place of payment for the debt securities of each series.
Global Securities
The debt securities of any series may be represented, in whole or in part by one or more global securities. Each global security will:
• | be registered in the name of a depositary that we will identify in a prospectus supplement; |
• | be deposited with the depositary or nominee or custodian; and |
• | bear any required legends. |
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No global security may be exchanged in whole or in part for debt securities registered in the name of any person other than the depositary or any nominee, referred to as certificated debt securities, unless:
• | the depositary has notified us that it is unwilling or unable to continue as depositary or has ceased to be qualified to act as depositary and a successor depositary is not appointed by us within 90 days; |
• | an event of default is continuing; or |
• | any other circumstances described in a prospectus supplement have occurred permitting the issuance of certificated debt securities. |
As long as the depositary, or its nominee, is the registered owner of a global security, the depositary or nominee will be considered the sole owner and holder of the debt securities represented by the global security for all purposes under the indenture. Except in the above limited circumstances, owners of beneficial interests in a global security will not be:
• | entitled to have the debt securities registered in their names; |
• | entitled to physical delivery of certificated debt securities; and |
• | considered to be holders of those debt securities under the indenture. |
Payments on a global security will be made to the depositary or its nominee as the holder of the global security. Some jurisdictions have laws that require that certain purchasers of securities take physical delivery of such securities in definitive form. These laws may impair the ability to transfer beneficial interests in a global security.
Institutions that have accounts with the depositary or its nominee are referred to as “participants.” Ownership of beneficial interests in a global security will be limited to participants and to persons that may hold beneficial interests through participants. The depositary will credit, on its book-entry registration and transfer system, the respective principal amounts of debt securities represented by the global security to the accounts of its participants.
Ownership of beneficial interests in a global security will be shown on and effected through records maintained by the depositary, with respect to participants’ interests, or any participant, with respect to interests of persons held by participants on their behalf.
Payments, transfers and exchanges relating to beneficial interests in a global security will be subject to policies and procedures of the depositary. The depositary policies and procedures may change from time to time. Neither the trustee nor we will have any responsibility or liability for the depositary’s or any participant’s records with respect to beneficial interests in a global security.
Payment and Paying Agents
Unless otherwise indicated in the prospectus supplement:
• | payment of interest on a debt security on any interest payment date will be made to the person in whose name the debt security is registered at the close of business on the regular record date; and |
• | payment on debt securities of a particular series will be payable at the office of a paying agent or paying agents designated by us. |
At our option, however, we may pay interest by mailing a check to the record holder.
The corporate trust office of the trustee will initially be designated as our sole paying agent. We may also name any other paying agents in the prospectus supplement. We may designate additional paying agents, change paying agents or change the office of any paying agent. However, we will be required to maintain a paying agent in each place of payment for the debt securities of a particular series.
All monies paid by us to a paying agent for payment on any debt security which remain unclaimed for a period ending the earlier of 10 business days prior to the date the money would be turned over to the state, or at the end of two years after the payment was due, will be repaid to us. Thereafter, the holder may look only to us for such payment.
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Consolidation, Merger and Sale of Assets
We may not consolidate with or merge into any other person, in a transaction in which we are not the surviving corporation, or convey, transfer or lease our properties and assets substantially as an entirety to, any person, unless:
• | the successor, if any, is a U.S. corporation, limited liability company, partnership, trust or other entity; |
• | the successor assumes our obligations on the debt securities and under the indentures; |
• | immediately after giving effect to the transaction, no default or event of default shall have occurred and be continuing; and |
• | certain other conditions are met. |
Events of Defaults
Each indenture defines an event of default with respect to any series of debt securities as one or more of the following events:
(1) | failure to pay principal of or any premium on any debt security of that series at its maturity; |
(2) | failure to pay any interest on any debt security of that series when due and payable, if that failure continues for 30 days; |
(3) | failure to make any sinking fund payment when due and payable, if that failure continues for 30 days; |
(4) | failure to perform any other covenant in the indenture, if that failure continues for 90 days after we are given the notice of the failure required in the indenture; |
(5) | certain events of bankruptcy, insolvency or reorganization; and |
(6) | any other event of default specified in the prospectus supplement. |
An event of default of one series of debt securities is not necessarily an event of default for any other series of debt securities.
If an event of default, other than an event of default described in clause (5) above, shall occur and be continuing, either the trustee or the holders of at least 25% in aggregate principal amount of the outstanding securities of that series may declare the principal amount (or, if the debt securities of the series are original issue discount debt securities, the portion of the principal amount as may be specified in the terms of the series) of the debt securities of that series to be due and payable immediately. If an event of default described in clause (5) above shall occur, the principal amount (or, if the debt securities of the series are original issue discount debt securities, the portion of the principal amount as may be specified in the terms of the series) of all the debt securities of that series will automatically become immediately due and payable. Any payment by us on the subordinated debt securities following any acceleration will be subject to the subordination provisions described below under “Subordinated Debt Securities.”
After a declaration of acceleration has been made, but before a judgment or decree for the payment of money due upon acceleration has been obtained by the trustee, the holders of a majority in aggregate principal amount of the outstanding securities of that series, under certain circumstances, may rescind and annul such acceleration and its consequences on behalf of the holders of all debt securities of such series if all events of default, other than the non-payment of accelerated principal, or other specified amount, have been cured or waived as provided in the indenture.
Other than the duty to act with the required care during an event of default, the trustee will not be obligated to exercise any of its rights or powers at the request of the holders unless the holders shall have offered to the trustee security or indemnity satisfactory to it. Generally, the holders of a majority in aggregate principal amount of the outstanding debt securities of any series will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the trustee or exercising any trust or power conferred on the trustee.
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A holder will not have any right to institute any proceeding under the indentures, or for the appointment of a receiver or a trustee, or for any other remedy under the indentures, unless:
(1) | the holder has previously given to the trustee written notice of a continuing event of default with respect to the debt securities of that series; |
(2) | the holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series have made a written request and have offered reasonable indemnity to the trustee to institute the proceeding; and |
(3) | the trustee has failed to institute the proceeding and has not received direction inconsistent with the original request from the holders of a majority in aggregate principal amount of the outstanding debt securities of that series within 60 days after the original request. |
Holders may, however, sue to enforce the payment of principal, premium or interest on any series of debt securities on or after the due date without following the procedures listed in (1) through (3) above.
Modification and Waiver
We and the trustee may make modifications and amendments to the indentures with the consent of the holders of a majority in aggregate principal amount of the outstanding securities of each series affected by the modification or amendment. We may also make modifications and amendments to the indentures for the benefit of the holders, without their consent, for certain purposes including, but not limited to:
• | providing for our successor to assume the covenants under the indenture; |
• | adding covenants or events of default or surrendering our rights or powers; |
• | making certain changes to facilitate the issuance of the securities; |
• | securing the securities; |
• | adding guarantees in respect of any securities; |
• | providing for a successor trustee; |
• | curing any ambiguities, defects or inconsistencies; |
• | permitting or facilitating the defeasance and discharge of the securities; |
• | making any other changes that do not adversely affect the rights of the holders of the securities; and |
• | other changes specified in the indenture. |
However, neither we nor the trustee may make any modification or amendment without the consent of the holder of each outstanding security of that series affected by the modification or amendment if such modification or amendment would:
• | change the stated maturity of any debt security; |
• | reduce the principal, premium, if any, or interest rate on any debt security; |
• | reduce the amount of principal of an original issue discount security or any other debt security payable on acceleration of maturity; |
• | change the method of computing the amount of principal or interest of any debt security or the place of payment or the currency in which any debt security is payable; |
• | impair the right to sue for any payment after the stated maturity or redemption date; |
• | if subordinated debt securities, modify the subordination provisions in a materially adverse manner to the holders of subordinated debt securities; |
• | adversely affect the right to convert any debt security; or |
• | change the provisions in the indenture that relate to modifying or amending the indenture. |
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Satisfaction and Discharge; Defeasance
We may be discharged from our obligations on the debt securities of any series when:
(a) | either: |
(1) | all of the debt securities of that series that have been authenticated and delivered (except lost, stolen or destroyed securities which have been replaced or paid and securities for whose payment money has been held in trust) have been cancelled or delivered to the trustee for cancellation; or |
(2) | all of the debt securities of that series not cancelled or delivered to the trustee for cancellation (A) have become due and payable, (B) will become due and payable at their stated maturity within one year, or (C) are to be called for redemption within one year, under arrangements satisfactory to the trustee for the giving of notice of redemption by the trustee in the name, and at the expense, of us, and we have irrevocably deposited or caused to be deposited enough money with the trustee to pay all the principal, interest and any premium due to the date of such deposit or the stated maturity date or redemption date of the debt securities, as the case may be; |
(b) | we have paid or caused to be paid all other sums payable by us under the indenture with respect to the debt securities of such series; and |
(c) | we have delivered to the trustee an officers’ certificate and an opinion of counsel each stating that all conditions precedent under the indenture relating to the satisfaction and discharge of the indenture with respect to the debt securities of such series have been complied with. |
Each indenture contains a provision that permits us to elect either or both of the following:
• | to be discharged from all of our obligations, subject to limited exceptions, with respect to any series of debt securities then outstanding; and |
• | to be released from our obligations under the following covenants and from the consequences of an event of default resulting from a breach of these and a number of other covenants: |
(1) | the limitations on sale and lease-back transactions under the senior indenture; |
(2) | the limitations on liens under the senior indenture; |
(3) | covenants as to payment of taxes and maintenance of properties; and |
(4) | the subordination provisions under the subordinated indenture. |
To make either of the above elections, we must deposit in trust with the trustee enough money to pay in full the principal, interest and any premium on the debt securities. This amount may be made in cash and/or U.S. government obligations. As a condition to either of the above elections, we must deliver to the trustee an opinion of counsel that the holders of the debt securities will not recognize income, gain or loss for United States federal income tax purposes as a result of the deposit and related defeasance. In addition, we are required to deliver to the trustee an officers’ certificate stating that such deposit was not made by us with the intent of preferring the holders over other creditors of ours or with the intent of defeating, hindering, delaying or defrauding creditors of ours or others.
If any of the above events occur, the holders of the debt securities of the series will not be entitled to the benefits of the indenture, except for registration of transfer and exchange of debt securities, replacement of lost, stolen or mutilated debt securities and, if applicable, conversion and exchange of debt securities.
Notices
Notices to holders will be given to the addresses of the holders in the security register.
Governing Law
The indentures and the debt securities will be governed by, and construed under, the laws of the State of New York, without regard to conflicts of laws principles.
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Regarding the Trustee
The indentures limit the right of the trustee, if it becomes our creditor, to obtain payment of claims or secure its claims.
The trustee is permitted to engage in certain other transactions. If the trustee acquires any conflicting interest, however, and there is a default under the debt securities of any series for which they are trustee, the trustee must eliminate the conflict or resign. The Bank of New York Mellon Trust Company, N.A. is also our depositary and affiliates of The Bank of New York Mellon Trust Company, N.A. have performed and continue to perform other services for us in the normal course of business.
Senior Debt Securities
The senior debt securities will be unsecured, unless we elect otherwise, and will rank equally with all of our other unsecured and non-subordinated obligations. Any guarantees of the senior debt securities will be unsecured and senior obligations of each of the guarantors, and will rank equally with all other unsecured and non-subordinated obligations of such guarantors.
Covenants in the Senior Indenture
LIMITATIONS ON LIENS. Neither we nor any restricted subsidiary will issue, incur, create, assume or guarantee any secured debt without securing the senior debt securities equally and ratably with or prior to that secured debt unless the total amount of all secured debt with which the senior debt securities are not at least equally and ratably secured would not exceed the greater of $500 million or 10% of our consolidated net tangible assets.
LIMITATIONS ON SALE AND LEASE-BACK TRANSACTIONS. Subject to the last paragraph of this section, neither we nor any restricted subsidiary will enter into any lease with a term longer than three years covering any of our principal property or any restricted subsidiary that is sold to any other person in connection with that lease unless either:
(1) | we or any restricted subsidiary would be entitled to incur indebtedness secured by a mortgage on the principal property involved in such transaction at least equal in amount to the attributable debt with respect to the lease, without equally and ratably securing the senior debt securities, pursuant to “Limitations on Liens” described above; or |
(2) | an amount equal to the greater of the following amounts is applied within 180 days of such sale to the retirement of our or any restricted subsidiary’s long-term debt or the purchase or development of comparable property: |
• | the net proceeds from the sale; or |
• | the attributable debt with respect to the sale and lease-back transaction. |
However, either we or our restricted subsidiaries would be able to enter into a sale and lease-back transaction without being required to apply the net proceeds as required by (2) above if the sum of the following amounts would not exceed the greater of $500 million or 10% of our consolidated net tangible assets:
• | the total amount of the sale and lease-back transactions; and |
• | the total amount of secured debt. |
Subordinated Debt Securities
The subordinated debt securities will be our unsecured, subordinated obligations and any guarantees of the subordinated debt securities will be unsecured and subordinated obligations of each of the guarantors. The subordinated debt securities are subordinated in right of payment to the prior payment in full of all senior debt, including any senior debt securities. In the event of our dissolution, winding up, liquidation or reorganization, the holders of senior debt shall be entitled to receive payment in full before holders of subordinated debt securities shall be entitled to receive any payment or distribution on any subordinated debt securities. If this prospectus is being delivered in connection with the offering of a series of subordinated debt securities, the accompanying prospectus supplement or the information incorporated by reference in it will describe the approximate amount of senior indebtedness outstanding as of a recent date.
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In the event of insolvency, upon any distribution of our assets:
• | in the event that holders of subordinated debt securities receive a payment before we have paid all senior indebtedness in full, the holders of such subordinated debt securities are required to pay over their share of such distribution to the trustee in bankruptcy, receiver or other person distributing our assets to pay all senior debt remaining to the extent necessary to pay all holders of senior debt in full; and |
• | our unsecured creditors who are not holders of subordinated debt securities or holders of senior debt may recover less, ratably, than holders of senior debt and may recover more, ratably, than the holders of subordinated debt securities. |
Definitions Relating to Subordinated Debt Securities
“Senior debt” means the principal, premium, if any, and unpaid interest on, and any other payment due pursuant to any of the following, whether outstanding on the date of the subordinated indenture or incurred by us in the future:
• | our indebtedness for borrowed money; |
• | our obligations evidenced by bonds, debentures, notes or similar instruments sold by us for cash; |
• | our obligations under any interest rate swaps, caps, collars, options, and similar arrangements; |
• | our obligations under any foreign exchange contract, currency swap contract, futures contract, currency option contract, or other foreign currency hedge arrangements; |
• | our obligations under any credit swaps, caps, floors, collars and similar arrangements; |
• | indebtedness incurred, assumed or guaranteed by us in connection with the acquisition by us or any of our subsidiaries of any business, properties or assets, except purchase-money indebtedness classified as accounts payable under generally accepted accounting principles; |
• | our obligations as lessee under leases required to be capitalized on our balance sheet in conformity with generally accepted accounting principles; |
• | all obligations under any lease or related document, including a purchase agreement, in connection with the lease of real property which provides that we are contractually obligated to purchase or cause a third party to purchase the leased property and thereby guarantee a minimum residual value of the leased property to the lessor and our obligations under such lease or related document to purchase or to cause a third party to purchase such leased property; |
• | our reimbursement obligations in respect of letters of credit relating to indebtedness or our other obligations that qualify as indebtedness or obligations of the kind referred to above; and |
• | our obligations under direct or indirect guaranties in respect of, and obligations to purchase or otherwise acquire, or otherwise to assure a creditor against loss in respect of, indebtedness or obligations of others of the kinds referred to above. |
However, senior debt shall not include any indebtedness or obligation that provides that such indebtedness or obligation is not superior in right of payment to the subordinated debt securities or provides that such indebtedness is subordinate to our other indebtedness and obligations.
The subordinated debt securities are effectively subordinated to all existing and future liabilities of our subsidiaries. Any right we have to participate in any distribution of the assets of any of our subsidiaries upon their liquidation, reorganization or insolvency, and the consequent right of holders of senior debt securities to participate in those assets, will be subject to the claims of the creditors of such subsidiary. In addition, any claim we may have as a creditor would still be subordinate to any security interest in the assets of such subsidiary and any indebtedness of such subsidiary senior to that held by us.
Any covenants pertaining to a series of subordinated debt securities will be set forth in a prospectus supplement relating to such series of subordinated debt securities.
Except as described in the prospectus and any applicable prospectus supplement relating to a series of subordinated debt securities, the indentures and the subordinated debt securities do not contain any covenants or
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other provisions designed to afford holders of subordinated debt securities protection in the event of a recapitalization or highly leveraged transaction involving us.
Pursuant to the subordinated indenture, the subordinated indenture may not be amended, at any time, to alter the subordination provisions of any outstanding subordinated debt securities without the consent of the requisite holders of each outstanding series or class of senior debt (as determined in accordance with the instrument governing such senior debt) that would be adversely affected thereby.
The following description of common stock sets forth certain material terms and provisions of our common stock to which any prospectus supplement may relate. This section also summarizes relevant provisions of Delaware law. The following summary of common stock does not purport to be complete and is subject to, and is qualified in its entirety by reference to, the applicable provisions of Delaware law and our certificate of incorporation and our bylaws, copies of which are exhibits to the registration statement of which this prospectus forms a part. We encourage you to read our certificate of incorporation, our bylaws and the applicable provisions of Delaware law for additional information.
Our certificate of incorporation authorizes us to issue up to 9,600,000,000 shares of common stock, par value $0.01 per share. As of November 30, 2022 there were 982,145,796 shares of common stock issued and outstanding.
The holders of common stock as of the applicable record date are entitled to one vote per share on all matters to be voted upon by the stockholders. Subject to preferences applicable to any outstanding preferred stock, the holders of common stock are entitled to receive ratably such dividends as may be declared from time to time by the board of directors out of funds legally available for distribution, and, in the event of our liquidation, dissolution or winding up, the holders of common stock are entitled to share in all assets remaining after payment of liabilities. The common stock has no preemptive or conversion rights and is not subject to further calls or assessments by us. There are no redemption or sinking fund provisions available to the common stock. The common stock currently outstanding is validly issued, fully paid and nonassessable.
The transfer agent and registrar for the common stock is Equiniti Trust Company.
Our board of directors has the authority without stockholder consent, subject to certain limitations imposed by Delaware law or our bylaws, to issue one or more series of preferred stock at any time and to fix the rights, preferences and restrictions of the preferred stock of each series, including:
• | the number of shares in that series; |
• | the dividend rate and whether dividends on that series of preferred stock will be cumulative, non-cumulative or partially cumulative; |
• | the voting rights, if any; |
• | conversion privileges, if any; |
• | whether that series will be redeemable; |
• | whether that series will have a sinking fund for the redemption or purchase of shares of that series; |
• | the liquidation preference per share of that series, if any; and |
• | any other relative rights, preferences and limitations. |
As described above, our board of directors, without stockholder approval, may issue preferred stock with voting and conversion rights, which could adversely affect the voting power of the holders of our common stock. If we issue preferred stock, it may have the effect of delaying, deferring or preventing a change of control.
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Anti-Takeover Effects of Delaware Law
We are subject to the provisions of Section 203 of the Delaware General Corporation Law, which, subject to certain exceptions, prohibits a Delaware corporation from engaging in any business combination with any interested stockholder for a period of three years following the time that such stockholder became an interested stockholder, unless:
(a) | prior to such time, the board of directors of the corporation approved either the business combination or the transaction that resulted in the stockholder becoming an interested stockholder; |
(b) | upon consummation of the transaction that resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced, excluding for purposes of determining the number of shares outstanding those shares owned: |
• | by persons who are directors and also officers; and |
• | by employee stock plans in which employee participants do not have the right to determine confidentially whether shares held subject to the plan will be tendered in a tender or exchange offer; or |
(c) | at or subsequent to such time the business combination is approved by the board of directors and authorized at an annual or special meeting of the stockholders, and not by written consent, by the affirmative vote of at least 662/3% of the outstanding voting stock that is not owned by the interested stockholder. |
In general, Section 203 defines “business combination” to include:
(1) | any merger or consolidation involving (i) the corporation or a direct or indirect majority-owned subsidiary of the corporation and (ii) the interested stockholder or any other corporation, partnership or entity if the merger or consolidation is caused by the interested stockholder and as a result of such merger or consolidation any of (a), (b) or (c) above is not applicable to the surviving entity; |
(2) | any sale, lease, exchange, mortgage, transfer, pledge or other disposition of 10% or more of the assets or outstanding stock of the corporation or any direct or indirect majority-owned subsidiary of the corporation to or with the interested stockholder; |
(3) | subject to certain exceptions, any transaction that results in the issuance or transfer by the corporation or any direct or indirect majority-owned subsidiary of the corporation of any stock of the corporation or such subsidiary to the interested stockholder; |
(4) | any transaction involving the corporation or any direct or indirect majority-owned subsidiary of the corporation that has the effect of increasing the proportionate share of the stock of any class or series, or securities convertible into the stock of any class or series, of the corporation or any such subsidiary which is beneficially owned by the interested stockholder; or |
(5) | the receipt by the interested stockholder of the benefit, directly or indirectly, of any loans, advances, guarantees, pledges or other financial benefits provided by or through the corporation or any direct or indirect majority-owned subsidiary of the corporation. |
In general, Section 203 defines an “interested stockholder” as any person who or which beneficially owns 15% or more of the outstanding voting stock of the corporation or any person affiliated or associated with or controlling or controlled by the corporation that was the owner of 15% or more of the outstanding voting stock of the corporation at any time within the three-year period immediately prior to the date of determination if such person is an interested stockholder, and the affiliates and associates of such person.
The existence of this provision would be expected to have an anti-takeover effect with respect to transactions not approved in advance by our board of directors, including discouraging takeover attempts that might result in a premium over the market price for the shares of common stock held by stockholders.
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The following description of preferred stock sets forth certain material terms and provisions of our preferred stock to which any prospectus supplement may relate. This section also summarizes relevant provisions of Delaware law. The following summary of the terms of our preferred stock does not purport to be complete and is subject to, and is qualified in its entirety by reference to, the applicable provisions of Delaware law and our certificate of incorporation and our bylaws, copies of which are exhibits to the registration statement of which this prospectus forms a part.
Our certificate of incorporation authorizes us to issue up to 300,000,000 shares of preferred stock, par value $0.01 per share, in one or more series. As of the date of this prospectus, we did not have any outstanding shares of preferred stock or options to purchase preferred stock. Our board of directors, however, has the authority without stockholder consent, subject to certain limitations imposed by Delaware law or our bylaws, to issue one or more series of preferred stock at any time. The certificate of designation relating to each series will fix the rights, preferences and restrictions of the preferred stock of each series. A prospectus supplement relating to each such series will specify the terms of the preferred stock as determined by our board of directors, including the following:
• | the number of shares in any series; |
• | the designation for any series by number, letter or title that shall distinguish the series from any other series of preferred stock; |
• | the dividend rate and whether dividends on that series of preferred stock will be cumulative, non-cumulative or partially cumulative; |
• | the voting rights of that series of preferred stock, if any; |
• | any conversion provisions applicable to that series of preferred stock; |
• | any redemption or sinking fund provisions applicable to that series of preferred stock including whether there is any restriction on the repurchase or redemption of the preferred stock while there is any arrearage in the payment of dividends or sinking fund installments; |
• | the liquidation preference per share of that series of preferred stock, if any; and |
• | the terms of any other preferences or rights, if any, applicable to that series of preferred stock. |
We will describe the specific terms of a particular series of preferred stock in the prospectus supplement relating to that series. The description of preferred stock above and the description of the terms of a particular series of preferred stock in the related prospectus supplement will not be complete. You should refer to the certificate of designation for complete information. The prospectus supplement will also contain a description of certain U.S. federal income tax consequences relating to the preferred stock.
Although it has no present intention to do so, our board of directors, without stockholder approval, may issue preferred stock with voting and conversion rights, which could adversely affect the voting power of the holders of our common stock. If we issue preferred stock, it may have the effect of delaying, deferring or preventing a change of control.
General
At our option, we may elect to offer fractional shares of preferred stock, rather than full shares of preferred stock. If we do, we will issue to the public receipts for depositary shares and each of these depositary shares will represent a fraction, to be set forth in the prospectus supplement, of a share of a particular series of preferred stock. Each owner of a depositary share will be entitled, in proportion to the applicable fractional interest in shares of preferred stock underlying that depositary share, to all rights and preferences of the preferred stock underlying that depositary share. Those rights include dividend, voting, redemption and liquidation rights.
The shares of preferred stock underlying the depositary shares will be deposited with a bank or trust company selected by us to act as depositary, under a deposit agreement between us, the depositary and the holders of the depositary receipts. The depositary will be the transfer agent, registrar and dividend disbursing agent for the depositary shares.
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Depositary receipts issued pursuant to the depositary agreement will evidence the depositary shares. Holders of depositary receipts agree to be bound by the deposit agreement, which requires holders to take certain actions such as filing proof of residence and paying certain charges.
The summary of terms of the depositary shares contained in this prospectus is not complete. You should refer to our certificate of incorporation, a copy of which is an exhibit to the registration statement of which this prospectus forms a part, as well as the deposit agreement for the depositary shares and the certificate of designation for the applicable series of preferred stock that, each of which will be filed with the SEC prior to issuance of the depositary shares.
Dividends
The depositary will distribute all cash dividends or other cash distributions received in respect of the series of preferred stock underlying the depositary shares to the record holders of depositary receipts in proportion to the number of depositary shares owned by those holders on the relevant record date, which will be the same date as the record date for the preferred stock.
In the event of a distribution other than in cash, the depositary will distribute property received by it to the record holders of depositary receipts that are entitled to receive the distribution, unless the depositary determines that it is not feasible to make the distribution. If this occurs, the depositary, with our approval, may adopt another method for the distribution, including selling the property and distributing the net proceeds to the holders.
The amount distributed in any of the foregoing cases will be reduced by any amounts required to be withheld by us or the depositary on account of taxes or other governmental charges.
Liquidation Preference
In the event of our voluntary or involuntary liquidation, dissolution or winding up, the holders of each depositary share will be entitled to receive the fraction of the liquidation preference accorded each share of the applicable series of preferred stock, as set forth in the applicable prospectus supplement.
Redemption
If a series of preferred stock underlying the depositary shares is subject to redemption, the depositary shares will be redeemed from the proceeds received by the depositary resulting from the redemption, in whole or in part, of preferred stock held by the depositary. Whenever we redeem any preferred stock held by the depositary, the depositary will redeem, as of the same redemption date, the number of depositary shares representing the preferred stock so redeemed. The depositary will send the notice of redemption to the record holders of the depositary receipts promptly upon receiving the notice from us and not fewer than 35 nor more than 60 days, unless otherwise provided in the applicable prospectus supplement, prior to the date fixed for redemption of the preferred stock and the depositary shares.
After the date fixed for redemption, the depositary shares so called for redemption will no longer be deemed to be outstanding and all rights of the holders of the depositary shares will cease, except the right to receive the monies payable upon redemption and any money or other property to which the holders of the depositary shares were entitled upon such redemption, upon surrender to the depositary of the depositary receipts evidencing the depositary shares. Any funds deposited by us with the depositary for any depositary shares that the holders thereof fail to redeem will be returned to us after a period of time set forth in the applicable prospectus supplement.
Voting
Upon receipt of notice of any meeting at which the holders of preferred stock are entitled to vote, the depositary will send the information contained in the notice of meeting to the record holders of the depositary receipts underlying the preferred stock. Each record holder of those depositary receipts on the record date will be entitled to instruct the depositary as to the exercise of the voting rights pertaining to the amount of preferred stock underlying that holder’s depositary shares. The record date for the depositary will be the same date as the record date for the preferred stock. The depositary will try, as far as practicable, to vote the preferred stock
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underlying the depositary shares in accordance with such instructions, and we will agree to take all reasonable action that may be deemed necessary by the depositary in order to enable the depositary to do so. The depositary will not vote the preferred stock to the extent that it does not receive specific instructions from the holders of depositary receipts representing the preferred stock.
Withdrawal of Preferred Stock
Upon surrender of the depositary receipts at the corporate trust office of the depositary and upon payment of any taxes, charges and fees provided for in the deposit agreement and subject to the terms thereof, owners of depositary shares are entitled, upon surrender of depositary receipts at the principal office of the depositary and payment of any unpaid amount due to the depositary, to receive the number of whole shares of preferred stock underlying the depositary shares. Partial shares of preferred stock will not be issued. If the depositary receipts delivered by the owner evidence a number of depositary shares in excess of the number of depositary shares representing the number of whole shares of the underlying preferred stock to be withdrawn, the depositary will deliver to the owner or upon his or her order at the same time a new depositary receipt evidencing the excess number of depositary shares. Holders of preferred stock will not be entitled to deposit the shares under the deposit agreement or to receive depositary receipts evidencing depositary shares for the preferred stock.
Amendment and Termination of Deposit Agreement
The form of depositary receipt evidencing the depositary shares and any provision of the deposit agreement may be amended at any time and from time to time by agreement between us and the depositary. However, any amendment which materially and adversely alters the rights of the holders of depositary shares, other than fee changes, will not be effective unless the amendment has been approved by the holders of at least a majority of the depositary shares then outstanding. Every holder of a depositary receipt at the time the amendment becomes effective will be deemed, by continuing to hold the depositary receipt, to be bound by the deposit agreement as so amended. The deposit agreement may be terminated by the depositary or us only if:
• | all outstanding depositary shares have been redeemed; or |
• | there has been a final distribution in respect of the preferred stock in connection with our liquidation, dissolution or winding-up and such distribution has been made to all the holders of depositary shares. |
Charges of Depositary
We will pay all transfer and other taxes and governmental charges arising solely from the existence of the depositary arrangements. We will also pay charges of the depositary in connection with the initial deposit of the preferred stock and the initial issuance of the depositary shares, any redemption of the preferred stock and all withdrawals of preferred stock by owners of depositary shares. Holders of depositary receipts will pay transfer, income and other taxes and governmental charges and other specified charges as provided in the deposit agreement to be for their accounts. The depositary may refuse to transfer depositary shares, withhold dividends and distributions and sell the depositary shares evidenced by the depositary receipt if the charges are not paid.
Miscellaneous
The depositary will forward to the holders of depositary receipts all reports and communications we deliver to the depositary that we are required to furnish to the holders of the preferred stock. In addition, the depositary will make available for inspection by holders of depositary receipts at the principal office of the depositary, and at such other places as it may from time to time deem advisable, any reports and communications we deliver to the depositary as the holder of preferred stock. Unless otherwise set forth in the applicable prospectus supplement, the depositary will act as transfer agent and registrar for the depositary receipts and if shares of a series of preferred stock are redeemable, the depositary will also act as redemption agent for the corresponding depositary receipts.
Neither the depositary nor we will be liable if either of us is prevented or delayed by law or any circumstance beyond our control in performing our respective obligations under the deposit agreement. Our obligations and those of the depositary will be limited to performance in good faith of our respective duties under the deposit agreement. Neither the depositary nor we will be obligated to prosecute or defend any legal proceeding in respect of any depositary shares or preferred stock unless satisfactory indemnity is furnished. We
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and the depositary may rely on written advice of counsel or accountants, on information provided by holders of depositary receipts or other persons believed in good faith to be competent to give such information and on documents believed to be genuine and to have been signed or presented by the proper party or parties.
Resignation and Removal of Depositary
The depositary may resign at any time by delivering a notice to us of its election to do so. We may remove the depositary at any time. Any such resignation or removal will take effect upon the appointment of a successor depositary and its acceptance of such appointment. The successor depositary must be appointed within 60 days after delivery of the notice for resignation or removal and must be a bank or trust company having its principal office in the United States of America.
Federal Income Tax Consequences
Owners of the depositary shares will be treated for United States federal income tax purposes as if they were owners of the preferred stock underlying the depositary shares. As a result, owners will be entitled to take into account for United States federal income tax purposes, income and deductions to which they would be entitled if they were holders of such preferred stock. No gain or loss will be recognized for United States federal income tax purposes upon the withdrawal of preferred stock in exchange for depositary shares. The tax basis of each share of preferred stock to an exchanging owner of depositary shares will be, upon such exchange, the same as the aggregate tax basis of the depositary shares exchanged. The holding period for preferred stock in the hands of an exchanging owner of depositary shares will include the period during which such person owned such depositary shares.
General
We may issue warrants for the purchase of debt securities, preferred stock or common stock. Warrants may be issued independently or together with debt securities, preferred stock or common stock and may be attached to or separate from any underlying offered securities. Each series of warrants will be issued under a separate warrant agreement to be entered into between us and a bank or trust company, as warrant agent. The warrant agent will act solely as our agent in connection with the warrants and will not have any obligation or relationship of agency or trust for or with any holders or beneficial owners of warrants.
This summary of certain provisions of the warrants is not complete. For the complete terms of the warrant agreement, you should refer to the provisions of the warrant agreement that will be filed with the SEC in connection with an offering of warrants.
Debt Warrants
The prospectus supplement relating to a particular issue of warrants to issue debt securities will describe the terms of the debt warrants, including the following:
• | the title of the debt warrants; |
• | the offering price for the debt warrants, if any; |
• | the aggregate number of the debt warrants; |
• | the designation and terms of the debt securities purchasable upon exercise of the debt warrants; |
• | if applicable, the designation and terms of the debt securities that the debt warrants are issued with and the number of debt warrants issued with each debt security; |
• | if applicable, the date from and after which the debt warrants and any debt securities issued with them will be separately transferable; |
• | the principal amount of debt securities that may be purchased upon exercise of a debt warrant and the price at which the debt securities may be purchased upon exercise, which may be payable in cash, securities or other property; |
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• | the dates on which the right to exercise the debt warrants will commence and expire; |
• | if applicable, the minimum or maximum amount of the debt warrants that may be exercised at any one time; |
• | whether the debt warrants represented by the debt warrant certificates or debt securities that may be issued upon exercise of the debt warrants will be issued in registered or bearer form; |
• | information with respect to book-entry procedures, if any; |
• | the currency or currency units in which the offering price, if any, and the exercise price are payable; |
• | if applicable, a discussion of material United States federal income tax considerations; |
• | the antidilution or adjustment provisions of the debt warrants, if any; |
• | the redemption or call provisions, if any, applicable to the debt warrants; and |
• | any additional terms of the debt warrants, including terms, procedures and limitations relating to the exchange and exercise of the debt warrants. |
Stock Warrants
The prospectus supplement relating to a particular issue of warrants to issue our common stock or preferred stock will describe the terms of the warrants, including the following:
• | the title of the warrants; |
• | the offering price for the warrants, if any; |
• | the aggregate number of the warrants; |
• | the designation and terms of the common stock or preferred stock that may be purchased upon exercise of the warrants; |
• | if applicable, the designation and terms of the securities with which the warrants are issued and the number of warrants issued with each security; |
• | if applicable, the date from and after which the warrants and any securities issued with the warrants will be separately transferable; |
• | the number of shares of common stock or preferred stock that may be purchased upon exercise of a warrant and the price at which such shares may be purchased upon exercise; |
• | the dates on which the right to exercise the warrants shall commence and expire; |
• | if applicable, the minimum or maximum amount of the warrants that may be exercised at any one time; |
• | the currency or currency units in which the offering price, if any, and the exercise price are payable; |
• | if applicable, a discussion of material United States federal income tax considerations; |
• | the antidilution provisions of the warrants, if any; |
• | the redemption or call provisions, if any, applicable to the warrants; and |
• | any additional terms of the warrants, including terms, procedures and limitations relating to the exchange and exercise of the warrants. |
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We may sell the securities separately or together:
• | through one or more underwriters or dealers in a public offering and sale by them; |
• | directly to investors; |
• | through a block trade in which the broker or dealer engaged to handle the block trade will attempt to sell the securities as agent, but may position and resell a portion of the block as principal to facilitate the transaction, or in crosses, in which the same broker acts as an agent on both sides of the trade; |
• | in “at the market” offerings, as defined in Rule 415 under the Securities Act of 1933, as amended (the “Securities Act”), including sales made directly on a national securities exchange or sales made through a market maker other than on an exchange; |
• | through agents; |
• | otherwise through a combination of any of the above methods of sale; or |
• | through any other methods described in a prospectus supplement. |
We may sell the securities from time to time:
• | in one or more transactions at a fixed price or prices which may be changed from time to time; |
• | at market prices prevailing at the times of sale; |
• | at prices related to such prevailing market prices; |
• | at varying prices determined at the times of sale; or |
• | at negotiated prices. |
We may determine the price or other terms of the securities offered under this prospectus by use of an electronic auction. We will describe how any auction will determine the price or any other terms, how potential investors may participate in the auction and the nature of the underwriters’ obligations in the related prospectus supplement.
Such sales may be effected:
• | in transactions on any national securities exchange or quotation service on which the securities may be listed or quoted at the time of sale; |
• | in transactions in the over-the-counter market; |
• | in block transactions; |
• | through the writing of options; or |
• | through other types of transactions. |
We will describe the method of distribution of the securities in the prospectus supplement relating to the offer. The prospectus supplement will also set forth the terms of the offering, including:
• | the purchase price of the securities and the proceeds we will receive from the sale of the securities; |
• | any offering expenses; |
• | any securities exchanges on which the securities may be listed; |
• | the terms of any agreement, arrangement or understanding entered into with the underwriters, brokers or dealers; |
• | the anticipated date of delivery of the securities offered; and |
• | any other material information. |
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In addition, we may enter into option, share lending or other types of transactions that require us to deliver shares of common stock to an underwriter, broker or dealer, who will then resell or transfer the shares of common stock under this prospectus. We may also enter into hedging transactions with respect to our securities. For example, we may:
• | enter into transactions involving short sales of the shares of common stock by underwriters, brokers or dealers; |
• | sell shares of common stock short and deliver the shares to close out short positions; or |
• | loan or pledge the shares of common stock to an underwriter, broker or dealer, who may sell the loaned shares or, in the event of default, sell the pledged shares. |
We may enter into derivative transactions with third parties, or sell securities not covered by this prospectus to third parties in privately negotiated transactions. If the applicable prospectus supplement indicates, in connection with those derivatives, the third parties may sell securities covered by this prospectus and the applicable prospectus supplement, including in short sale transactions. If so, the third party may use securities pledged by us or borrowed from us or others to settle those sales or to close out any related open borrowings of stock, and may use securities received from us in settlement of those derivatives to close out any related open borrowings of stock. The third party in such sale transactions will be an underwriter and, if not identified in this prospectus, will be identified in the applicable prospectus supplement (or a post-effective amendment). In addition, we may otherwise loan or pledge securities to a financial institution or other third party that in turn may sell the securities short using this prospectus. Such financial institution or other third party may transfer its economic short position to investors in our securities or in connection with a concurrent offering of other securities.
Underwriters, dealers or agents may receive compensation in the form of discounts, concessions or commissions from us or our purchasers, as their agents in connection with the sale of securities. These underwriters, dealers or agents may be considered to be underwriters under the Securities Act. Unless otherwise indicated in the applicable prospectus supplement, any such agent will be acting on a best efforts basis for the period of its appointment. As a result, discounts, commissions or profits on resale received by the underwriters, dealers or agents may be treated as underwriting discounts and commissions. The applicable prospectus supplement will identify any such underwriter, dealer or agent and describe any compensation received by them from us. Unless otherwise set forth in the applicable prospectus supplement, the obligations of underwriters or dealers to purchase the securities offered will be subject to certain conditions precedent and the underwriters or dealers will be obligated to purchase all the offered securities if any are purchased. Any public offering price and any discounts or concessions allowed or reallowed or paid to dealers may be changed from time to time.
Offers to purchase the securities offered by this prospectus may be solicited, and sales of the securities may be made by us directly to institutional investors or others, who may be deemed to be underwriters within the meaning of the Securities Act with respect to any resale of the securities. The terms of any offer made in this manner will be included in the prospectus supplement relating to the offer.
Underwriters, dealers and agents may be entitled to indemnification by us against certain civil liabilities, including liabilities under the Securities Act, or to contribution with respect to payments made by the underwriters, dealers or agents, under agreements between us and the underwriters, dealers and agents, or to reimbursement by us for certain expenses.
We may grant underwriters who participate in the distribution of securities an option to purchase additional securities to cover over-allotments, if any, in connection with the distribution.
Unless otherwise indicated in the applicable prospectus supplement, all securities offered by this prospectus, other than our common stock, will be new issues of securities with no established trading market. Underwriters involved in the public offering and sale of securities may make a market in the securities but are not required to do so and may discontinue market-making activity at any time. No assurance can be given as to the liquidity of the trading market for any securities.
Underwriters or agents and their associates may be customers of, engage in transactions with or perform services for us or affiliates of ours in the ordinary course of business.
21
Any underwriter may engage in over-allotment, stabilizing transactions, short covering transactions and penalty bids in accordance with Regulation M under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Over-allotment involves sales in excess of the offering size, which creates a short position. Stabilizing transactions permit bids to purchase the underlying security so long as the stabilizing bids do not exceed a specified maximum. Short covering transactions involve purchases of the securities in the open market after the distribution is completed to cover short positions. Penalty bids permit the underwriters to reclaim a selling concession from a dealer when the securities originally sold by the dealer are purchased in a covering transaction to cover short positions. Those activities may cause the price of the securities to be higher than it would otherwise be. If commenced, the underwriters may discontinue any of those activities at any time.
22
Unless otherwise specified in the prospectus supplement accompanying this prospectus, Gibson, Dunn & Crutcher LLP will provide opinions regarding the validity of the securities. Any underwriters will also be advised about the validity of the securities and other legal matters by their own counsel, which will be named in the prospectus supplement.
The consolidated financial statements of HP appearing in HP’s Annual Report (Form 10-K) for the year ended October 31, 2022, and the effectiveness of HP’s internal control over financial reporting as of October 31, 2022 have been audited by Ernst & Young LLP, independent registered public accounting firm, as set forth in their reports thereon, included therein, and incorporated herein by reference. Such consolidated financial statements are incorporated herein by reference in reliance upon such reports given on the authority of such firm as experts in accounting and auditing.
We file annual, quarterly and current reports, proxy statements and other information with the SEC. Our SEC filings are available to the public from the SEC’s web site at http://www.sec.gov. Information about us, including our SEC filings, is also available on our website at http://www.hp.com, however, that information is not a part of or incorporated into this prospectus or any accompanying prospectus supplement.
23
The SEC allows us to “incorporate by reference” in this prospectus the information in other documents that we file with it, which means that we can disclose important information to you by referring you to those documents. The information incorporated by reference is considered to be a part of this prospectus, and information in documents that we file later with the SEC will automatically update and supersede information contained in documents filed earlier with the SEC or contained in this prospectus or a prospectus supplement. We incorporate by reference in this prospectus the documents listed below and any future filings that we may make with the SEC under Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act, prior to the termination of the offering under this prospectus (other than any information furnished pursuant to Item 2.02 or Item 7.01 of any Current Report on Form 8-K, unless we specifically state in such Current Report that such information is to be considered “filed” under the Exchange Act or we incorporate it by reference into a filing under the Securities Act or the Exchange Act):
• | Annual Report on Form 10-K for the fiscal year ended October 31, 2022, filed on December 6, 2022; |
• | Current Report on Form 8-K filed on November 22, 2022 (Item 2.05 only); and |
• | Description of our common stock contained in our Registration Statement on Form 8-A/A filed with the SEC on June 23, 2006, as updated by Exhibit 4(j) to our Annual Report on Form 10-K for the fiscal year ended October 31, 2019, filed with the SEC on December 12, 2019, together with any amendment or report filed for the purpose of updating such description. |
Notwithstanding the foregoing, we are not incorporating any document or information deemed to have been furnished and not filed in accordance with SEC rules.
You may obtain a copy of any or all of the documents referred to above which may have been or may be incorporated by reference into this prospectus (excluding certain exhibits to the documents) at no cost to you by writing or telephoning us at the following address:
HP Inc.
1501 Page Mill Road
Palo Alto, California 94304
Attn: Investor Relations
(650) 236-8660
You should rely only on the information contained or incorporated by reference in this prospectus, a prospectus supplement, any free writing prospectus that we authorize and any pricing supplement that we authorize. We have not authorized any person, including any underwriter, salesperson or broker, to provide information other than that provided in this prospectus, a prospectus supplement, any free writing prospectus that we authorize or any pricing supplement that we authorize. We have not authorized anyone to provide you with different information. We are not making an offer of the securities in any jurisdiction where the offer is not permitted.
You should assume that the information in this prospectus, a prospectus supplement, any free writing prospectus that we authorize and any pricing supplement that we authorize is accurate only as of the date on its cover page and that any information we have incorporated by reference is accurate only as of the date of such document incorporated by reference.
Any statement contained in a document incorporated or deemed to be incorporated by reference into this prospectus will be deemed to be modified or superseded for purposes of this prospectus to the extent that a statement contained in this prospectus or any other subsequently filed document that is deemed to be incorporated by reference into this prospectus modifies or supersedes the statement. Any statement so modified or superseded will not be deemed, except as so modified or superseded, to constitute a part of this prospectus.
24
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. | Other expenses of issuance and distribution. |
The following is a statement of the estimated expenses (other than underwriting compensation) to be incurred by Registrant in connection with the distribution of securities registered under this registration statement.
SEC registration fee | | | $220,400 |
Accounting fees and expenses | | | * |
Trustees’ fees and expenses (including counsel fees) | | | * |
Rating agency fees | | | * |
Legal fees and expenses | | | * |
Printing fees | | | * |
Miscellaneous | | | * |
Total | | | $* |
* | The applicable prospectus supplement will set forth the estimated aggregate amount of expenses payable with respect to any offering of securities. |
Item 15. | Indemnification of directors and officers. |
Section 145 of the General Corporation Law of the State of Delaware authorizes a court to award or a corporation’s board of directors to grant indemnification to directors and officers in terms that are sufficiently broad to permit indemnification under certain circumstances for liabilities (including reimbursement for expenses incurred) arising under the Securities Act.
Our certificate of incorporation contains a provision eliminating the personal liability of our directors to HP or its stockholders for breach of fiduciary duty as a director to the fullest extent permitted by applicable law.
Our bylaws provide for the indemnification of our directors and officers to the maximum extent permitted by Delaware law. Our bylaws also provide:
(i) | that we are authorized to enter into individual indemnification contracts with our directors and officers to the fullest extent not prohibited by Delaware law, and |
(ii) | that we shall not be required to indemnify any director or officer if (a) the director or officer has not met the standard of conduct which makes indemnification permissible under Delaware law, or (b) the proceeding for which indemnification is sought was initiated by such director or officer and such proceeding was not authorized by the board of directors. |
HP maintains liability insurance for our directors and officers. HP has also agreed to indemnify certain officers against certain claims by their former employers as a result of their employment by HP.
In addition, our bylaws give us the power to indemnify our employees and agents to the maximum extent permitted by Delaware law.
The underwriting agreements that may be entered into between us and the underwriters may contain certain provisions regarding indemnification of our officers and directors by the underwriters.
The foregoing statements are subject to the detailed provisions of the General Corporation Law of the State of Delaware, our certificate of incorporation, our bylaws, the referenced indemnification agreements and any underwriting agreements we may enter into.
II-1
Item 16. | Exhibits. |
| | | | | Incorporated by Reference to Filings Indicated | | | ||||||||||||
Exhibit Number | | | Exhibit Description | | | Form | | | File No | | | Exhibit | | | Filing Date | | | Filed Herewith |
| | | Form of Underwriting Agreement for debt securities. | | | S-3 | | | 333-215116 | | | 1.1 | | | December 15, 2016 | | | ||
1.2 | | | Form of Underwriting Agreement for common stock, preferred stock, depositary shares and warrants.* | | | | | | | | | | | |||||
| | | Certificate of Incorporation. | | | 10-Q | | | 001-04423 | | | 3(a) | | | June 12, 1998 | | | ||
| | | Amendment to the Certificate of Incorporation. | | | 10-Q | | | 001-04423 | | | 3(b) | | | March 16, 2001 | | | ||
| | | Certificate of Amendment to the Certificate of Incorporation. | | | 8-K | | | 001-04423 | | | 3.2 | | | October 22, 2015 | | | ||
| | | Certificate of Amendment to the Certificate of Incorporation. | | | 8-K | | | 001-04423 | | | 3.1 | | | April 7, 2016 | | | ||
| | | Amended and Restated Bylaws. | | | 8-K | | | 001-04423 | | | 3.1 | | | February 13, 2019 | | | ||
| | | Senior Indenture, dated as of June 17, 2020, between HP Inc. and The Bank of New York Mellon Trust Company, N.A., as trustee. | | | 8-K | | | 001-04423 | | | 4.1 | | | June 17, 2020 | | | ||
| | | Form of Subordinated Indenture, between HP Inc. and The Bank of New York Mellon Trust Company, N.A., as trustee. | | | S-3 | | | 333-215116 | | | 4.2 | | | December 15, 2016 | | | ||
| | | Form of Senior Note (contained in Exhibit 4.1). | | | | | | | | | | | ||||||
| | | Form of Subordinated Note (contained in Exhibit 4.2). | | | | | | | | | | | ||||||
4.5 | | | Form of Preferred Stock Certificate.* | | | | | | | | | | | |||||
4.6 | | | Form of Deposit Agreement.* | | | | | | | | | | | |||||
4.7 | | | Form of Depositary Receipt (contained in Exhibit 4.6). | | | | | | | | | | | |||||
4.8 | | | Form of Warrant Agreement.* | | | | | | | | | | | |||||
4.9 | | | Form of Warrant Certificate.* | | | | | | | | | | | |||||
| | | Specimen certificate for common stock. | | | 8-A/A | | | 001-04423 | | | 4.1 | | | June 23, 2006 | | | ||
| | | Opinion of Gibson, Dunn & Crutcher LLP. | | | | | | | | | | | X | |||||
| | | Consent of Independent Registered Public Accounting Firm. | | | | | | | | | | | X | |||||
| | | Consent of Gibson, Dunn & Crutcher LLP (included in Exhibit 5.1). | | | | | | | | | | | X | |||||
| | | Power of Attorney (included on the signature page of this Registration Statement). | | | | | | | | | | | X | |||||
| | | Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The Bank of New York Mellon Trust Company, N.A. as Trustee for the Senior Indenture, dated as of June 17, 2020, referred to above at Exhibit 4.1. | | | | | | | | | | | X | |||||
| | | Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The Bank of New York Mellon Trust Company, N.A. as Trustee for the form of Subordinated Indenture referred to above at Exhibit 4.2. | | | | | | | | | | | X | |||||
| | | Filing Fee Table | | | | | | | | | | | X | |||||
* | To be filed as an exhibit to a Current Report on Form 8-K and incorporated by reference or by post-effective amendment. |
II-2
Item 17. Undertakings.
(a) | The undersigned Registrant hereby undertakes: |
(1) | to file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: (i) to include any prospectus required by Section 10(a)(3) of the Securities Act; (ii) to reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective Registration Statement; and (iii) to include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement; |
provided, however, that clauses (i), (ii) and (iii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the Registration Statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the Registration Statement;
(2) | that, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; |
(3) | to remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering; |
(4) | that, for the purpose of determining liability under the Securities Act to any purchaser: |
(A) | Each prospectus filed by the Registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the Registration Statement as of the date the filed prospectus was deemed part of and included in the Registration Statement; and |
(B) | Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act shall be deemed to be part of and included in the Registration Statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the Registration Statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a Registration Statement or prospectus that is part of the Registration Statement or made in a document incorporated or deemed incorporated by reference into the Registration Statement or prospectus that is part of the Registration Statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the Registration Statement or prospectus that was part of the Registration Statement or made in any such document immediately prior to such effective date; and |
(5) | that, for the purpose of determining liability of the Registrant under the Securities Act to any purchaser in the initial distribution of the securities, the undersigned Registrant undertakes that in |
II-3
a primary offering of securities of the undersigned Registrant pursuant to this Registration Statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned Registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) | Any preliminary prospectus or prospectus of the undersigned Registrant relating to the offering required to be filed pursuant to Rule 424; |
(ii) | Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned Registrant or used or referred to by the undersigned Registrant; |
(iii) | The portion of any other free writing prospectus relating to the offering containing material information about the undersigned Registrant or its securities provided by or on behalf of the undersigned Registrant; and |
(iv) | Any other communication that is an offer in the offering made by the undersigned Registrant to the purchaser. |
(b) | The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in this Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
(c) | Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the provisions described under Item 15 above, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. |
II-4
Pursuant to the requirements of the Securities Act of 1933, the registrant, HP Inc., certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Park City, Utah on December 6, 2022.
| | | HP INC. | ||||
| | | | | |||
| | | By: | | | /s/ Rick Hansen | |
| | | | | Rick Hansen Deputy General Counsel, Corporate and Corporate Secretary | ||
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that the undersigned officers and directors of HP Inc., a Delaware corporation, do hereby constitute and appoint Enrique Lores, Marie Meyers, Julie Jacobs and Rick Hansen, and each of them, the lawful attorneys-in-fact and agents with full power and authority to do any and all acts and things and to execute any and all instruments which said attorneys and agents, and any one of them, determine may be necessary or advisable or required to enable said corporation to comply with the Securities Act of 1933, as amended, and any rules or regulations or requirements of the Securities and Exchange Commission in connection with this Registration Statement. Without limiting the generality of the foregoing power and authority, the powers granted include the power and authority to sign the names of the undersigned officers and directors in the capacities indicated below to this Registration Statement, to any and all amendments, both pre-effective and post-effective, and supplements to this Registration Statement, and to any and all instruments or documents filed as part of or in conjunction with this Registration Statement or amendments or supplements thereof, and each of the undersigned hereby ratifies and confirms that all said attorneys and agents, or any one of them, shall do or cause to be done by virtue hereof. This Power of Attorney may be signed in several counterparts.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities and on the date indicated.
Signature | | | Title | | | Date |
| | | | | |||
/s/ Enrique Lores | | | President, Chief Executive Officer and Director (Principal Executive Officer) | | | December 6, 2022 |
Enrique Lores | | |||||
| | | | | |||
/s/ Marie Myers | | | Chief Financial Officer (Principal Financial Officer) | | | December 6, 2022 |
Marie Myers | | |||||
| | | | | |||
/s/ Jonathan P.Faust | | | Global Controller (Principal Accounting Officer) | | | December 6, 2022 |
Jonathan P. Faust | | |||||
| | | | | |||
/s/ Aida M. Alvarez | | | Director | | | December 6, 2022 |
Aida M. Alvarez | | |||||
| | | | | |||
/s/ Shumeet Banerji | | | Director | | | December 6, 2022 |
Shumeet Banerji | | |||||
| | | | | |||
/s/ Robert R. Bennett | | | Director | | | December 6, 2022 |
Robert R. Bennett | | |||||
| | | | |
II-5
Signature | | | Title | | | Date |
| | | | | |||
/s/ Charles V. Bergh | | | Director | | | December 6, 2022 |
Charles V. Bergh | | |||||
| | | | | |||
/s/ Bruce Broussard | | | Director | | | December 6, 2022 |
Bruce Broussard | | |||||
| | | | | |||
/s/ Stacy Brown-Philpot | | | Director | | | December 6, 2022 |
Stacy Brown-Philpot | | |||||
| | | | | |||
/s/ Stephanie A. Burns | | | Director | | | December 6, 2022 |
Stephanie A. Burns | | |||||
| | | | | |||
/s/ Mary Anne Citrino | | | Director | | | December 6, 2022 |
Mary Anne Citrino | | |||||
| | | | | |||
/s/ Richard L. Clemmer | | | Director | | | December 6, 2022 |
Richard L. Clemmer | | |||||
| | | | | |||
/s/ Judith Miscik | | | Director | | | December 6, 2022 |
Judith Miscik | | |||||
| | | | | |||
/s/ Kim K.W. Rucker | | | Director | | | December 6, 2022 |
Kim K.W. Rucker | | |||||
| | | | | |||
/s/ Subra Suresh | | | Director | | | December 6, 2022 |
Subra Suresh | |
II-6
Exhibit 5.1
 |
 |
December 6, 2022
HP Inc.
1501 Page Mill Road
Palo Alto, California 94304
|
Re:
|
HP Inc.
|
|
Registration Statement on Form S-3
|
Ladies and Gentlemen:
We have acted as counsel to HP Inc., a Delaware corporation (the ”Company”), in connection with the preparation and filing with the Securities and Exchange Commission (the ”Commission”)
of a Registration Statement on Form S-3 (the ”Registration Statement”) under the Securities Act of 1933, as amended (the ”Securities Act”), relating to the registration
under the Securities Act and the proposed issuance and sale from time to time pursuant to Rule 415 under the Securities Act, together or separately and in one or more series (if applicable) of:
| (i) |
the Company’s unsecured debt securities, which may either be senior debt securities (the “Senior Debt Securities”), or subordinated debt securities (the ”Subordinated
Debt Securities” and, collectively with the Senior Debt Securities, the ”Debt Securities”);
|
| (ii) |
shares of the Company’s common stock, par value $0.01 per share (the ”Common Stock”);
|
| (iii) |
shares of the Company’s preferred stock, par value $0.01 per share (the ”Preferred Stock”);
|
| (iv) |
depositary shares each representing a fraction of a share of a particular series of Preferred Stock (the ”Depositary Shares”); and
|
| (v) |
warrants for the purchase of Common Stock, Preferred Stock, Depositary Shares or Debt Securities (the ”Warrants”).
|
HP Inc.
1501 Page Mill Road
Page 2
The Debt Securities, Common Stock, Preferred Stock, Depositary Shares and Warrants are collectively referred to herein as the “Securities.” The Senior Debt Securities are to be issued under the senior debt
securities indenture, dated as of June 17, 2020 between the Company and The Bank of New York Mellon Trust Company, N.A. (the ”Trust Company”), as indenture trustee (the ”Senior
Base Indenture”). The Subordinated Debt Securities are to be issued under an indenture to be entered into between the Company and the Trust Company, as indenture trustee (the ”Subordinated Base Indenture,”
and together with the Senior Base Indenture, the ”Base Indentures”).
In arriving at the opinions expressed below, we have examined originals, or copies certified or otherwise identified to our satisfaction as being true and complete copies of the originals, of the Senior Base Indenture, a form of the Subordinated
Base Indenture, forms of the Debt Securities, specimen Common Stock certificates, and such other documents, corporate records, certificates of officers of the Company and of public officials and other instruments as we have deemed necessary or
advisable to enable us to render these opinions. In our examination, we have assumed the genuineness of all signatures, the legal capacity and competency of all natural persons, the authenticity of all documents submitted to us as originals and the
conformity to original documents of all documents submitted to us as copies. As to any facts material to these opinions, we have relied to the extent we deemed appropriate and without independent investigation upon statements and representations of
officers and other representatives of the Company and others.
We have assumed without independent investigation that:
| (i) |
at the time any Securities are sold pursuant to the Registration Statement (the ”Relevant Time”), the Registration Statement and any supplements and amendments thereto (including post-effective
amendments) will be effective and will comply with all applicable laws;
|
| (ii) |
at the Relevant Time, a prospectus supplement will have been prepared and filed with the Commission describing the Securities offered thereby and all related documentation and will comply with all applicable laws;
|
| (iii) |
all Securities will be issued and sold in the manner stated in the Registration Statement and the applicable prospectus supplement;
|
| (iv) |
at the Relevant Time, all corporate or other action required to be taken by the Company to duly authorize each proposed issuance of Securities and any related documentation (including (i) the due reservation of any shares of Common Stock
or Preferred Stock for issuance upon exercise, conversion or exchange of any Securities for Common Stock or Preferred Stock (a ”Convertible Security”), and (ii) the execution (in the case of
certificated Securities), delivery and performance of the Securities and any related documentation referred to in paragraphs 1 through 5 below) shall have been duly completed and shall remain in full force and effect;
|
HP Inc.
1501 Page Mill Road
Page 3
| (v) |
upon issuance of any Common Stock or Preferred Stock, including upon exercise, conversion or exchange of any Convertible Security, the total number of shares of Common Stock or Preferred Stock issued and outstanding will not exceed the
total number of shares of Common Stock or Preferred Stock, as applicable, that the Company is then authorized to issue under its certificate of incorporation and other relevant documents;
|
| (vi) |
in the case of Debt Securities, at the Relevant Time, the relevant Base Indenture shall have been duly executed and delivered by the Company and all other parties thereto and duly qualified under the TIA; and
|
| (vii) |
at the Relevant Time, a definitive purchase, underwriting or similar agreement and any other necessary agreement with respect to any Securities offered or issued will have been duly authorized by all necessary corporate or other action of
the Company and duly executed and delivered by the Company and the other parties thereto.
|
Based on the foregoing and in reliance thereon, and subject to the assumptions, exceptions, qualifications and limitations set forth herein, we are of the opinion that:
1. With respect to any Debt Securities, when:
| a. |
the terms and conditions of such Debt Securities have been duly established by supplemental indenture or officers’ certificate in accordance with the terms and conditions of the relevant Base Indenture,
|
| b. |
any such supplemental indenture has been duly executed and delivered by the Company and the relevant trustee (together with the relevant Base Indenture, the ”Indenture”), and
|
| c. |
such Debt Securities have been executed (in the case of certificated Debt Securities), delivered and authenticated in accordance with the terms of the applicable Indenture and issued and sold for the consideration set forth in the
applicable definitive purchase, underwriting or similar agreement,
|
HP Inc.
1501 Page Mill Road
Page 4
such Debt Securities will be legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their respective terms.
| 2. |
With respect to any shares of Preferred Stock, when:
|
| a. |
the certificate of designations relating to such Preferred Stock (the ”Certificate of Designations”) has been duly executed and filed with the Office of the Secretary of State of the State of
Delaware,
|
| b. |
such shares have been issued either (i) in accordance with the applicable definitive purchase, underwriting or similar agreement and for the consideration therefor provided for therein or (ii) upon exercise, conversion or exchange of any
Convertible Security and for any additional consideration specified in such Convertible Security or the instrument governing such Convertible Security providing for such conversion or exercise, which consideration (including any consideration
paid for such Convertible Security), on a per-share basis, shall in either event not be less than the par value of the Preferred Stock, and
|
| c. |
any such Convertible Security was previously validly issued and is fully paid and non-assessable (in the case of an equity Security) or is a legal, valid and binding obligation of the Company, enforceable against the Company in accordance
with its terms,
|
such shares of Preferred Stock will be validly issued, fully paid and non-assessable.
| 3. |
With respect to Depositary Shares, when:
|
| a. |
a deposit agreement relating to such Depositary Shares (“Deposit Agreement”) has been duly executed and delivered by the Company and the depositary appointed by the Company,
|
| b. |
the terms of the Depositary Shares have been established in accordance with the Deposit Agreement, and
|
| c. |
the depositary receipts representing the Depositary Shares have been duly executed and countersigned (in the case of certificated Depositary Shares), registered and delivered in accordance with the related Deposit Agreement and the
applicable definitive purchase, underwriting or similar agreement for the consideration provided therein,
|
HP Inc.
1501 Page Mill Road
Page 5
the depositary receipts evidencing the Depositary Shares will be legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms.
4. With respect to shares of Common Stock, when:
| a. |
such shares of Common Stock have been duly executed (in the case of certificated shares) and delivered either (i) in accordance with the applicable definitive purchase, underwriting or similar agreement for the consideration provided for
therein, or (ii) upon conversion or exercise of any Convertible Security, in accordance with the terms of such Convertible Security or the instrument governing such Convertible Security providing for such conversion or exercise, and for any
additional consideration specified therein, which consideration (including any consideration paid for such Convertible Security), on a per-share basis, shall in either event not be less than the par value of the Common Stock, and
|
| b. |
any such Convertible Security was previously validly issued and is fully paid and non-assessable (in the case of an equity Security) or is a legal, valid and binding obligation of the Company, enforceable against the Company in accordance
with its terms,
|
such shares of Common Stock will be validly issued, fully paid and non-assessable.
5. With respect to any Warrants, when:
| a. |
the warrant agreement relating to such Warrants (the ”Warrant Agreement”), if any, has been duly executed and delivered by the Company and each other party thereto,
|
| b. |
the terms of the Warrants have been established in accordance with the Warrant Agreement, if any, and the applicable definitive purchase, underwriting or similar agreement, and
|
| c. |
the Warrants have been duly executed (in the case of certificated Warrants) and delivered in accordance with the Warrant Agreement, if any, and the applicable definitive purchase, underwriting or similar agreement for the consideration
provided for therein,
|
HP Inc.
1501 Page Mill Road
Page 6
such Warrants will be legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms.
The opinions expressed above are subject to the following exceptions, qualifications, limitations and assumptions:
| A. |
We render no opinion herein as to matters involving the laws of any jurisdiction other than the State of New York and the United States of America and, for purposes of paragraphs 2 and 4 above, the Delaware General Corporation Law. We are
not admitted to practice in the State of Delaware; however, we are generally familiar with the Delaware General Corporation Law as currently in effect and have made such inquiries as we consider necessary to render the opinions contained in
paragraphs 2 and 4 above. This opinion is limited to the effect of the current state of the laws of the State of New York, the United States of America and, to the limited extent set forth above, the laws of the State of Delaware and the
facts as they currently exist. We assume no obligation to revise or supplement this opinion in the event of future changes in such laws or the interpretations thereof or such facts.
|
| B. |
The opinions above with respect to the Indenture, the Debt Securities, the depositary receipts representing the Depositary Shares, the Deposit Agreement, the Warrants, and the Warrant Agreement (collectively, the ”Documents”) are each subject to (i) the effect of any bankruptcy, insolvency, reorganization, moratorium, arrangement or similar laws affecting the rights and remedies of creditors’ generally, including without limitation the
effect of statutory or other laws regarding fraudulent transfers or preferential transfers and (ii) general principles of equity, including without limitation concepts of materiality, reasonableness, good faith and fair dealing and the
possible unavailability of specific performance, injunctive relief or other equitable remedies regardless of whether enforceability is considered in a proceeding in equity or at law.
|
| C. |
We express no opinion regarding the effectiveness of (i) any waiver of stay, extension or usury laws or (ii) provisions relating to indemnification, exculpation or contribution, to the extent such provisions may be held unenforceable as
contrary to public policy or federal or state securities laws.
|
HP Inc.
1501 Page Mill Road
Page 7
| D. |
To the extent relevant to our opinions in paragraphs 3 and 5 and not covered by our opinions in paragraphs 1, 2, or 4, we have assumed that any securities, currencies or commodities underlying, comprising or issuable upon exchange,
conversion or exercise of any Depositary Shares, Purchase Contracts, or Warrants are validly issued, fully paid and non-assessable (in the case of an equity security) or a legal, valid and binding obligation of the issuer thereof, enforceable
against such issuer in accordance with its terms.
|
You have informed us that you intend to issue Securities from time to time on a delayed or continuous basis, and we understand that prior to issuing any Securities pursuant to the Registration Statement (i) you will advise us in writing of the
terms thereof, and (ii) you will afford us an opportunity to (x) review the operative documents pursuant to which such Securities are to be issued or sold (including the applicable offering documents), and (y) file such supplement or amendment to
this opinion (if any) as we may reasonably consider necessary or appropriate.
We consent to the filing of this opinion as an exhibit to the Registration Statement, and we further consent to the use of our name under the caption “Validity of the Securities” in the Registration Statement and the prospectus that forms a part
thereof. In giving these consents, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission promulgated thereunder.
|
Very truly yours,
|
|
|
/s/ Gibson, Dunn & Crutcher LLP
|
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the reference to our firm under the caption “Experts” in this Registration Statement (Form S-3) and related Prospectus of HP Inc. for the
registration of debt securities, common stock, preferred stock, depositary shares and warrants and to the incorporation by reference therein of our reports dated December 6, 2022, with respect to the consolidated financial statements of HP Inc., and
the effectiveness of internal control over financial reporting of HP Inc., included in its Annual Report (Form 10-K) for the year ended October 31, 2022, filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
San Jose, California
December 6, 2022
Exhibit 25.1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
THE BANK OF NEW YORK MELLON
TRUST COMPANY, N.A.
(Exact name of trustee as specified in its charter)
|
|
95-3571558 (I.R.S. employer identification no.) |
|
333 South Hope Street Los Angeles, California (Address of principal executive offices) |
90071 (Zip code) |
HP Inc.
(Exact name of obligor as specified in its charter)
|
Delaware |
94-1081436 (I.R.S. employer identification no.) |
|
1501 Page Mill Road |
94304 (Zip code) |
Senior Debt Securities
(Title of the indenture securities)
| 1. | General information. Furnish the following information as to the trustee: |
| (a) | Name and address of each examining or supervising authority to which it is subject. |
| Name | Address |
|
Comptroller of the Currency United States Department of the |
Washington, DC 20219 |
| Federal Reserve Bank |
San Francisco, CA 94105 |
| Federal Deposit Insurance Corporation |
Washington, DC 20429 |
| (b) | Whether it is authorized to exercise corporate trust powers. |
Yes.
| 2. | Affiliations with Obligor. |
If the obligor is an affiliate of the trustee, describe each such affiliation.
None.
| 16. | List of Exhibits. |
Exhibits identified in parentheses below, on file with the Commission, are incorporated herein by reference as an exhibit hereto, pursuant to Rule 7a-29 under the Trust Indenture Act of 1939 (the "Act").
| 1. | A copy of the articles of association of The Bank of New York Mellon Trust Company, N.A., formerly known as The Bank of New York Trust Company, N.A. (Exhibit 1 to Form T-1 filed with Registration Statement No. 333-121948 and Exhibit 1 to Form T-1 filed with Registration Statement No. 333-152875). |
| 2. | A copy of certificate of authority of the trustee to commence business. (Exhibit 2 to Form T-1 filed with Registration Statement No. 333-121948). |
| 3. | A copy of the authorization of the trustee to exercise corporate trust powers (Exhibit 3 to Form T-1 filed with Registration Statement No. 333-152875). |
- 2 -
| 4. | A copy of the existing by-laws of the trustee (Exhibit 4 to Form T-1 filed with Registration Statement No. 333-229762). |
| 6. | The consent of the trustee required by Section 321(b) of the Act (Exhibit 6 to Form T-1 filed with Registration Statement No. 333-152875). |
| 7. | A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority. |
- 3 -
SIGNATURE
Pursuant to the requirements of the Act, the trustee, The Bank of New York Mellon Trust Company, N.A., a banking association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Chicago, and State of Illinois, on the 5th day of December, 2022.
| THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A. |
|||
| By: | /s/ | Ann Dolezal | |
| Name: | Ann M. Dolezal | ||
| Title: | Vice President | ||
- 4 -
EXHIBIT 7
Consolidated Report of Condition of
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
of 333 South Hope Street, Suite 2525, Los Angeles, CA 90071
At the close of business September 30, 2022, published in accordance with Federal regulatory authority instructions.
| Dollar amounts | |||||
| in thousands | |||||
| ASSETS | |||||
| Cash and balances due from depository institutions: | |||||
| Noninterest-bearing balances and currency and coin | 52,916 | ||||
| Interest-bearing balances | 444,180 | ||||
| Securities: | |||||
| Held-to-maturity securities | 0 | ||||
| Available-for-sale debt securities | 511 | ||||
| Equity securities with readily determinable fair values not held for trading | 0 | ||||
| Federal funds sold and securities purchased under agreements to resell: | |||||
| Federal funds sold in domestic offices | 0 | ||||
| Securities purchased under agreements to resell | 0 | ||||
| Loans and lease financing receivables: | |||||
| Loans and leases held for sale | 0 | ||||
| Loans and leases, held for investment | 0 | ||||
| LESS: Allowance for loan and lease losses | 0 | ||||
| Loans and leases held for investment, net of allowance | 0 | ||||
| Trading assets | 0 | ||||
| Premises and fixed assets (including capitalized leases) | 16,545 | ||||
| Other real estate owned | 0 | ||||
| Investments in unconsolidated subsidiaries and associated companies | 0 | ||||
| Direct and indirect investments in real estate ventures | 0 | ||||
| Intangible assets | 856,313 | ||||
| Other assets | 116,850 | ||||
| Total assets | $ | 1,487,315 | |||
1
| LIABILITIES | ||||||||
| Deposits: | ||||||||
| In domestic offices | 1,354 | |||||||
| Noninterest-bearing | 1,354 | |||||||
| Interest-bearing | 0 | |||||||
| Federal funds purchased and securities sold under agreements to repurchase: | ||||||||
| Federal funds purchased in domestic offices | 0 | |||||||
| Securities sold under agreements to repurchase | 0 | |||||||
| Trading liabilities | 0 | |||||||
| Other borrowed money: | ||||||||
| (includes mortgage indebtedness and obligations under capitalized leases) | 0 | |||||||
| Not applicable | ||||||||
| Not applicable | ||||||||
| Subordinated notes and debentures | 0 | |||||||
| Other liabilities | 269,752 | |||||||
| Total liabilities | 271,106 | |||||||
| Not applicable | ||||||||
| EQUITY CAPITAL | ||||||||
| Perpetual preferred stock and related surplus | 0 | |||||||
| Common stock | 1,000 | |||||||
| Surplus (exclude all surplus related to preferred stock) | 325,202 | |||||||
| Not available | ||||||||
| Retained earnings | 890,016 | |||||||
| Accumulated other comprehensive income | -9 | |||||||
| Other equity capital components | 0 | |||||||
| Not available | ||||||||
| Total bank equity capital | 1,216,209 | |||||||
| Noncontrolling (minority) interests in consolidated subsidiaries | 0 | |||||||
| Total equity capital | 1,216,209 | |||||||
| Total liabilities and equity capital | 1,487,315 | |||||||
I, Matthew J. McNulty, CFO of the above-named bank do hereby declare that the Reports of Condition and Income (including the supporting schedules) for this report date have been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and are true to the best of my knowledge and belief.
| Matthew J. McNulty | ) | CFO |
We, the undersigned directors (trustees), attest to the correctness of the Report of Condition (including the supporting schedules) for this report date and declare that it has been examined by us and to the best of our knowledge and belief has been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and is true and correct.
| Antonio I. Portuondo, President | ) | |
| Michael P. Scott, Managing Director | ) | Directors (Trustees) |
| Kevin P. Caffrey, Managing Director | ) |
2
Exhibit 25.2
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
THE BANK OF NEW YORK MELLON
TRUST COMPANY, N.A.
(Exact name of trustee as specified in its charter)
|
|
95-3571558 (I.R.S. employer identification no.) |
|
333 South Hope Street Los Angeles, California (Address of principal executive offices)
|
90071 (Zip code) |
HP Inc.
(Exact name of obligor as specified in its charter)
|
Delaware
|
94-1081436 (I.R.S. employer identification no.) |
|
1501 Page Mill Road |
94304 (Zip code) |
Subordinated Debt Securities
(Title of the indenture securities)
| 1. | General information. Furnish the following information as to the trustee: |
| (a) | Name and address of each examining or supervising authority to which it is subject. |
| Name | Address |
|
Comptroller of the Currency United States Department of the Treasury
|
Washington, DC 20219 |
| Federal Reserve Bank |
San Francisco, CA 94105
|
| Federal Deposit Insurance Corporation |
Washington, DC 20429 |
| (b) | Whether it is authorized to exercise corporate trust powers. |
Yes.
| 2. | Affiliations with Obligor. |
If the obligor is an affiliate of the trustee, describe each such affiliation.
None.
| 16. | List of Exhibits. |
Exhibits identified in parentheses below, on file with the Commission, are incorporated herein by reference as an exhibit hereto, pursuant to Rule 7a-29 under the Trust Indenture Act of 1939 (the "Act").
| 1. | A copy of the articles of association of The Bank of New York Mellon Trust Company, N.A., formerly known as The Bank of New York Trust Company, N.A. (Exhibit 1 to Form T-1 filed with Registration Statement No. 333-121948 and Exhibit 1 to Form T-1 filed with Registration Statement No. 333-152875). |
| 2. | A copy of certificate of authority of the trustee to commence business. (Exhibit 2 to Form T-1 filed with Registration Statement No. 333-121948). |
| 3. | A copy of the authorization of the trustee to exercise corporate trust powers (Exhibit 3 to Form T-1 filed with Registration Statement No. 333-152875). |
- 2 -
| 4. | A copy of the existing by-laws of the trustee (Exhibit 4 to Form T-1 filed with Registration Statement No. 333-229762). |
| 6. | The consent of the trustee required by Section 321(b) of the Act (Exhibit 6 to Form T-1 filed with Registration Statement No. 333-152875). |
| 7. | A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority. |
- 3 -
SIGNATURE
Pursuant to the requirements of the Act, the trustee, The Bank of New York Mellon Trust Company, N.A., a banking association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Chicago, and State of Illinois, on the 5th day of December, 2022.
| THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A. | ||||
| By: | /s/ Ann Dolezal | |||
| Name: | Ann M. Dolezal | |||
| Title: | Vice President | |||
- 4 -
EXHIBIT 7
Consolidated Report of Condition of
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
of 333 South Hope Street, Suite 2525, Los Angeles, CA 90071
At the close of business September 30, 2022, published in accordance with Federal regulatory authority instructions.
| Dollar amounts | |||||
| in thousands | |||||
| ASSETS | |||||
| Cash and balances due from depository institutions: | |||||
| Noninterest-bearing balances and currency and coin | 52,916 | ||||
| Interest-bearing balances | 444,180 | ||||
| Securities: | |||||
| Held-to-maturity securities | 0 | ||||
| Available-for-sale debt securities | 511 | ||||
| Equity securities with readily determinable fair values not held for trading | 0 | ||||
| Federal funds sold and securities purchased under agreements to resell: | |||||
| Federal funds sold in domestic offices | 0 | ||||
| Securities purchased under agreements to resell | 0 | ||||
| Loans and lease financing receivables: | |||||
| Loans and leases held for sale | 0 | ||||
| Loans and leases, held for investment | 0 | ||||
| LESS: Allowance for loan and lease losses | 0 | ||||
| Loans and leases held for investment, net of allowance | 0 | ||||
| Trading assets | 0 | ||||
| Premises and fixed assets (including capitalized leases) | 16,545 | ||||
| Other real estate owned | 0 | ||||
| Investments in unconsolidated subsidiaries and associated companies | 0 | ||||
| Direct and indirect investments in real estate ventures | 0 | ||||
| Intangible assets | 856,313 | ||||
| Other assets | 116,850 | ||||
| Total assets | $ | 1,487,315 | |||
1
| LIABILITIES | ||||||||
| Deposits: | ||||||||
| In domestic offices | 1,354 | |||||||
| Noninterest-bearing | 1,354 |
|||||||
| Interest-bearing | 0 |
|||||||
| Federal funds purchased and securities sold under agreements to repurchase: | ||||||||
| Federal funds purchased in domestic offices | 0 | |||||||
| Securities sold under agreements to repurchase | 0 | |||||||
| Trading liabilities | 0 | |||||||
| Other borrowed money: | ||||||||
| (includes mortgage indebtedness and obligations under capitalized leases) | 0 | |||||||
| Not applicable | ||||||||
| Not applicable | ||||||||
| Subordinated notes and debentures | 0 | |||||||
| Other liabilities | 269,752 | |||||||
| Total liabilities | 271,106 | |||||||
| Not applicable | ||||||||
| EQUITY CAPITAL | ||||||||
| Perpetual preferred stock and related surplus | 0 | |||||||
| Common stock | 1,000 | |||||||
| Surplus (exclude all surplus related to preferred stock) | 325,202 | |||||||
| Not available | ||||||||
| Retained earnings | 890,016 | |||||||
| Accumulated other comprehensive income | -9 | |||||||
| Other equity capital components | 0 | |||||||
| Not available | ||||||||
| Total bank equity capital | 1,216,209 | |||||||
| Noncontrolling (minority) interests in consolidated subsidiaries | 0 | |||||||
| Total equity capital | 1,216,209 | |||||||
| Total liabilities and equity capital | 1,487,315 | |||||||
I, Matthew J. McNulty, CFO of the above-named bank do hereby declare that the Reports of Condition and Income (including the supporting schedules) for this report date have been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and are true to the best of my knowledge and belief.
| Matthew J. McNulty | ) | CFO |
We, the undersigned directors (trustees), attest to the correctness of the Report of Condition (including the supporting schedules) for this report date and declare that it has been examined by us and to the best of our knowledge and belief has been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and is true and correct.
| Antonio I. Portuondo, President | ) | |
| Michael P. Scott, Managing Director | ) | Directors (Trustees) |
| Kevin P. Caffrey, Managing Director | ) |
2