Form 8-K
8-K — Super Micro Computer, Inc.
Accession: 0001193125-26-270430
Filed: 2026-06-15
Period: 2026-06-10
CIK: 0001375365
SIC: 3571 (ELECTRONIC COMPUTERS)
Item: Entry into a Material Definitive Agreement
Item: Material Modifications to Rights of Security Holders
Item: Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year
Item: Financial Statements and Exhibits
Documents
8-K — d151436d8k.htm (Primary)
EX-1.1 (d151436dex11.htm)
EX-3.1 (d151436dex31.htm)
EX-4.2 (d151436dex42.htm)
EX-5.1 (d151436dex51.htm)
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GRAPHIC (g151436g0612163928688.jpg)
XML — IDEA: XBRL DOCUMENT (R1.htm)
8-K
8-K (Primary)
Filename: d151436d8k.htm · Sequence: 1
8-K
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): June 10, 2026
SUPER MICRO COMPUTER, INC.
(Exact name of registrant as specified in its charter)
Delaware
001-33383
77-0353939
(State or other jurisdiction
of incorporation)
(Commission
File Number)
(I.R.S. Employer
Identification No.)
980 Rock Avenue, San Jose, California 95131
(Address of principal executive offices, including Zip Code)
Registrant’s telephone number, including area code: (408) 503-8000
Not Applicable
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
☐
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
☐
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
☐
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
☐
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of the Act:
Title of each class
Trading
Symbol(s)
Name of each exchange
on which registered
Common Stock, $0.001 par value per share
SMCI
The NASDAQ Global Select Market
Depositary Shares, each representing a 1/20th interest in a share of 7.00% Series A Mandatory Convertible Preferred Stock, $0.001 par value per share
SMCIP
The NASDAQ Global Select Market
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
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 13(a) of the Exchange Act. ☐
Item 1.01
Entry into a Material Definitive Agreement
On June 10, 2026, Super Micro Computer, Inc., a Delaware corporation (the “Company”) entered into an underwriting agreement (the “Underwriting Agreement”) with J.P. Morgan Securities LLC and Goldman Sachs & Co. LLC, as representatives of the several underwriters named therein, pursuant to which the Company agreed to issue and sell 75,000,000 depositary shares (the “Depositary Shares”), each representing a 1/20th interest in a share of the Company’s 7.00% Series A Mandatory Convertible Preferred Stock, liquidation preference $1,000 per share, par value $0.001 per share (the “Mandatory Convertible Preferred Stock” and such offering, the “Depositary Shares Offering”). Pursuant to the Underwriting Agreement, the Company granted the underwriters a 30-day option to purchase up to an additional 11,250,000 Depositary Shares, solely to cover over-allotments.
The Depositary Shares Offering closed on June 15, 2026. The Depositary Shares Offering was made pursuant to the Company’s shelf registration statement on Form S-3 (File No. 333-296641) (the “Registration Statement”), filed with the Securities and Exchange Commission (the “SEC”) on June 9, 2026, a base prospectus, dated June 9, 2026, filed with the SEC on June 9, 2026, included as part of the Registration Statement, and a prospectus supplement dated June 10, 2026 filed with the SEC on June 12, 2026.
In connection with the Depositary Shares Offering, the Company filed a certificate of designations (the “Certificate of Designations”) with the Secretary of State of the State of Delaware, including a form of certificate for the Mandatory Convertible Preferred Stock (the “Form of Certificate”), to establish the preferences, limitations, and relative special rights of the Mandatory Convertible Preferred Stock. The Certificate of Designations became effective upon filing.
In connection with the Depositary Shares Offering, the Company entered into a deposit agreement (the “Deposit Agreement”) dated June 15, 2026 by and among the Company, Computershare Trust Company, N.A. and Computershare Inc., acting jointly as depositary (the “Depositary”), and the holders from time to time of depositary receipts for Depositary Shares (the “Depositary Receipts”), a form of which is included therein (the “Form of Depositary Receipt”). The Deposit Agreement provides for the deposit of shares of the Mandatory Convertible Preferred Stock from time to time with the Depositary and for the issuance thereunder of Depositary Receipts evidencing Depositary Shares in respect of the deposited Mandatory Convertible Preferred Stock.
The foregoing descriptions of the terms of the Underwriting Agreement, Certificate of Designations, Form of Certificate, Deposit Agreement and Form of Depositary Receipt are qualified in their entirety by reference to the Underwriting Agreement, Certificate of Designations, Form of Certificate, Deposit Agreement and Form of Depositary Receipt, a copy of each of which is filed as Exhibit 1.1, 3.1, 4.1, 4.2 and 4.3, respectively, hereto and is incorporated herein by reference.
In connection with the Depositary Shares Offering, the legal opinion as to the legality of the Depositary Shares sold in the Depositary Shares Offering and the Preferred Stock underlying such Depositary Shares is being filed as Exhibit 5.1 to this Current Report on Form 8-K and is incorporated herein and into the Registration Statement by reference.
Item 3.03
Material Modification of Rights of Security Holders
On June 15, 2026, the Company filed the Certificate of Designations with the Secretary of State of the State of Delaware to establish the preferences, limitations and relative special rights of the Mandatory Convertible Preferred Stock. The Certificate of Designations became effective upon filing.
Subject to certain exceptions, so long as any share of Mandatory Convertible Preferred Stock remains outstanding, no dividend or distribution will be declared or paid on shares of the Company’s common stock, par value $0.001 per share (the “Common Stock”), or any other shares of junior stock, and no Common Stock or other junior stock or parity stock will be, directly or indirectly, purchased, redeemed or otherwise acquired for consideration by the Company or any of its subsidiaries unless all accumulated and unpaid dividends for all preceding dividend periods have been declared and paid upon, or a sufficient sum or number of shares of Common Stock have been set apart for the payment of such dividends upon, all outstanding shares of Mandatory Convertible Preferred Stock.
Holders of the Depositary Shares will be entitled to a proportional fractional interest in the rights and preferences of the Mandatory Convertible Preferred Stock, including conversion, dividend, liquidation and voting rights, subject to the provisions of the Deposit Agreement. The Mandatory Convertible Preferred Stock will accumulate dividends (which may be paid in cash or, subject to certain limitations, in shares of Common Stock or in any combination of cash and Common Stock) at an annual rate of 7.00% on the liquidation preference thereof, which is $1,000 per share, payable when, as and if declared by the Board of Directors of the Company, or an authorized committee thereof, on March 1, June 1, September 1 and December 1 of each year, commencing on, and including, September 1, 2026 and ending on, and including, June 1, 2029. Unless earlier converted, each outstanding share of Mandatory Convertible Preferred Stock will automatically convert on the second business day immediately following the last trading day of the Final Averaging Period (as defined below) into between 30.3040 and 36.3640 shares of Common Stock (and, correspondingly, each Depositary Share will automatically convert into between 1.5152 and 1.8182 shares of Common Stock), subject to customary anti-dilution adjustments. The number of shares of Common Stock issuable upon such automatic conversion will be determined based on the average volume-weighted average price of a share of Common Stock over the 20 consecutive trading-day period beginning on, and including, the 21st scheduled trading day prior to June 1, 2029 (the “Final Averaging Period”). Other than during a fundamental change conversion period (as defined in the Certificate of Designations), at any time prior to the mandatory conversion settlement date, a holder of 20 Depositary Shares may cause the Depositary to convert one share of Mandatory Convertible Preferred Stock, on such holder’s behalf, into a number of shares of Common Stock equal to the minimum conversion rate of 30.3040, subject to certain anti-dilution and other adjustments.
In addition, in the event of the Company’s voluntary or involuntary liquidation, winding-up or dissolution, each holder of Mandatory Convertible Preferred Stock will be entitled to receive a liquidation preference in the amount of $1,000 per share of the Mandatory Convertible Preferred Stock, plus an amount equal to accumulated and unpaid dividends on the shares to, but excluding, the date fixed for liquidation, winding-up or dissolution to be paid out of the Company’s assets available for distribution to its stockholders, after satisfaction of liabilities owed to the Company’s creditors and holders of any senior stock and before any payment or distribution is made to holders of junior stock, including the Common Stock.
Item 5.03
Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year
The information set forth under Item 3.03 of this Current Report on Form 8-K is hereby incorporated by reference in this Item 5.03.
Item 9.01
Financial Statements and Exhibits
(d) Exhibits
Exhibit
Number
Description
1.1
Underwriting Agreement, dated as of June 10, 2026, by and among the Company, J.P. Morgan Securities LLC and Goldman Sachs & Co. LLC, as representatives of the several underwriters named therein.
3.1
Certificate of Designations, filed with the Secretary of State of the State of Delaware and effective June 15, 2026.
4.1
Form of Certificate for the 7.00% Series A Mandatory Convertible Preferred Stock (included as Exhibit A to Exhibit 3.1).
4.2
Deposit Agreement, dated as of June 15, 2026, by and among the Company, Computershare Trust Company, N.A. and Computershare Inc., acting jointly as depositary, and the holders from time to time of the depositary receipts described therein.
4.3
Form of Depositary Receipt for the Depositary Shares (included as Exhibit A to Exhibit 4.2.
5.1
Opinion of Freshfields US LLP.
23.1
Consent of Freshfields US LLP (contained in Exhibit 5.1).
EX-104
Cover Page Interactive Data File (embedded within the Inline XBRL document).
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
SUPER MICRO COMPUTER, INC.
Date: June 15, 2026
By:
/s/ Charles Liang
President, Chief Executive Officer and Chairman of the Board
EX-1.1
EX-1.1
Filename: d151436dex11.htm · Sequence: 2
EX-1.1
Exhibit 1.1
SUPER MICRO COMPUTER, INC.
75,000,000 Depositary Shares, Each representing a 1/20th Interest in a Share of 7.00% Series A
Mandatory Convertible Preferred Stock, par value $0.001 per share (initial liquidation preference of
$1,000 per share)
UNDERWRITING
AGREEMENT
June 10, 2026
J.P. Morgan Securities LLC
Goldman Sachs & Co. LLC
As Representatives of the several Underwriters named in Schedule A hereto
c/o J.P. Morgan Securities LLC
270 Park Avenue
New York, New York 10017
c/o Goldman Sachs & Co. LLC
200 West Street
New York, New York 10282
Super Micro Computer, Inc., a Delaware corporation (“Company”), proposes, subject to the terms and conditions set forth in
this underwriting agreement (this “Agreement”), to issue and sell to the several underwriters listed in Schedule A hereto (the “Underwriters”), for whom you are acting as representatives (the
“Representatives”), an aggregate of 75,000,000 depositary shares, each representing a 1/20th interest in a share of its 7.00% Series A Mandatory Convertible Preferred Stock, par value $0.001 per share, with an initial liquidation
preference of $1,000 per share (“Preferred Stock”) (such depositary shares, the “Firm Shares”) and, at the option of the Underwriters, up to 11,250,000 additional depositary shares, each representing a 1/20th
interest in a share of Preferred Stock, solely to cover over-allotments, if any (such additional depositary shares, the “Option Shares”). In this Agreement, the Firm Shares and the Option Shares that the Underwriters elect to
purchase pursuant to Section 2 hereof are collectively referred to as the “Shares.”
The Preferred Stock will be
convertible into a variable number of shares of the Company’s common stock, par value $0.001 per share (“Common Stock”) (such shares of Common Stock into which the Preferred Stock is convertible, together with any shares of
Common Stock delivered in payment of dividends on the Preferred Stock, the “Underlying Shares”). The terms of the Preferred Stock will be set forth in a certificate of designations (the “Certificate of
Designations”) to be filed by the Company with the Secretary of State of the State of Delaware as an amendment to the Company’s amended and restated certificate of incorporation.
The Shares will be issued pursuant to a deposit agreement (the “Deposit Agreement”), to be dated as of the Closing Date (as
defined below), among the Company, Computershare Trust Company, N.A. and Computershare Inc., acting as joint depositary (the “Depositary”), and holders from time to time of the Shares. Each Share will initially represent the right to
receive a 1/20th interest in a share of the Preferred Stock pursuant to the Deposit Agreement. The Preferred Stock, when issued, will be deposited against delivery of depositary receipts (the “Depositary Receipts”), which will evidence
the Shares and will be issued by the Depositary under the Deposit Agreement.
Substantially concurrently with the offering of the Shares contemplated hereby, the Company
will, among other things, issue and sell up to 45,454,545 shares of its Common Stock pursuant to a separate underwriting agreement and separate prospectus supplement, subject to customary closing conditions (the “Concurrent
Offering”). The Company also plans to enter into an equity distribution agreement with respect to “at-the-market” offerings of up to $1,250,000,000
shares of Common Stock (the “ATM Program”). The offering of the Shares is not contingent upon the completion of the Concurrent Offering or entry into the ATM Program, neither the Concurrent Offering nor the entry into the ATM
Program is contingent upon the completion of the offering of the Shares, and the sales in the Concurrent Offering and under the ATM Program will be made pursuant to separate prospectus supplements to the Registration Statement (as defined in this
Agreement) and not pursuant to any Preliminary Prospectus or the Prospectus.
The Company hereby confirms its agreement with the several
Underwriters concerning the purchase and sale of the Shares, as follows:
1. Registration Statement. A registration statement on
Form S-3 (File No. 333-296641), including a prospectus, covering the Shares has been filed with the Securities and Exchange Commission
(“Commission”) under the Securities Act of 1933, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Securities Act”). Such registration statement, including the prospectus
included therein (the “Base Prospectus”), and all documents filed as part thereof or incorporated by reference therein including the information, if any, deemed pursuant to Rule 430A, 430B or 430C under the Securities Act to be
part of the registration statement at the time of its effectiveness, and at each deemed effective date with respect to the Underwriters pursuant to Rule 430B(f)(2) of the Securities Act, are hereinafter collectively called the “Registration
Statement.” The Base Prospectus, as supplemented by the prospectus supplement dated June 10, 2026 specifically relating to the Shares in the form first filed under Rule 424(b) under the Securities Act (or in the form first made
available to the Underwriters by the Company to meet the requests of purchasers pursuant to Rule 173 under the Securities Act), and all documents filed as part thereof or incorporated or deemed to be incorporated by reference therein, are
hereinafter collectively called the “Prospectus,” and the preliminary form of the Prospectus is hereinafter called the “Preliminary Prospectus.” If the Company has filed an abbreviated registration statement
pursuant to Rule 462(b) under the Securities Act (the “Rule 462 Registration Statement”), then any reference herein to the term “Registration Statement” shall be deemed to include such Rule 462 Registration Statement. For
purposes of this Agreement, “free writing prospectus” has the meaning set forth in Rule 405 under the Securities Act and “Pricing Disclosure Package” means the Preliminary Prospectus dated June 10, 2026,
together with each free writing prospectus, if any, identified in Schedule B hereto. “Applicable Time” means 7:30 p.m. (Eastern Time) on the date of this Agreement. Any reference to “amend,”
“amendment” or “supplement” with respect to the Registration Statement, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any documents filed after such date under the
Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Exchange Act”) that are deemed to be incorporated by reference therein.
2. Purchase of the Shares. On the basis of the representations, warranties and agreements contained in this Agreement and the Deposit
Agreement, but subject to the terms and conditions herein set forth, the Company agrees to issue and sell the Firm Shares to the several Underwriters, and each Underwriter agrees, severally and not jointly, to purchase from the Company the
respective number of Firm Shares set forth opposite such Underwriter’s name in Schedule A hereto at a price per share of $49.125 (the “Purchase Price”). In addition, on the basis of the representations, warranties and
agreements contained in this Agreement and the Deposit Agreement, but subject to the terms and conditions herein set forth, the Company agrees to issue and sell the Option Shares to the several Underwriters as provided in this Agreement and the
Deposit Agreement, and the Underwriters shall have the option to purchase, severally and not jointly, from the Company the Option Shares at the Purchase Price less an amount per share equal to any dividends or distributions declared by the Company
and payable on the Firm Shares but not payable
on the Option Shares. If any Option Shares are to be purchased, the number of Option Shares to be purchased by each Underwriter shall be the number of Option Shares which bears the same ratio to
the aggregate number of Option Shares being purchased as the number of Firm Shares set forth opposite the name of such Underwriter in Schedule A hereto (or such number increased as set forth in Section 11 hereof) bears to the aggregate number
of Firm Shares being purchased from the Company by the several Underwriters, subject, however, to such adjustments to eliminate any fractional Shares as you, in your sole discretion, shall make. The Underwriters may exercise the option to purchase
Option Shares at any time in whole, or from time to time in part, solely to cover over-allotments, if any, on or before the thirtieth day following the date of the Prospectus, by written notice from the Representatives to the Company. Such notice
shall set forth the aggregate number of Option Shares as to which the option is being exercised and the date and time when the Option Shares are to be delivered and paid for, which may be the same date and time as the Closing Date (as defined below)
but shall not be earlier than the Closing Date nor later than the tenth full business day after the date of such notice (unless such time and date are postponed in accordance with the provisions of Section 11 hereof). Any such notice shall be
given at least two business days prior to the date and time of delivery specified therein, except to the extent that the date on which the Option Shares are to be delivered is the same date and time as the Closing Date, in which case such notice may
be delivered one business day prior to the date and time of delivery specified therein.
3. Offering by the Underwriters. The
Company understands that the Underwriters intend to make a public offering of the Shares as soon after the effectiveness of this Agreement as in the judgment of the Underwriters is advisable, and initially to offer the Shares on the terms set forth
in the Pricing Disclosure Package. The Company acknowledges and agrees that the Underwriters may offer and sell Shares to or through any affiliate of a Underwriter and that any such affiliate may offer and sell Shares purchased by it to or through
any Underwriter.
4. Representations and Warranties of the Company. The Company represents and warrants to and agrees with each
Underwriter that:
(a)
No order preventing or suspending the use of any Preliminary Prospectus has been issued by the Commission, and
each Preliminary Prospectus included in the Pricing Disclosure Package, at the time of filing thereof, complied in all material respects with the applicable requirements of Securities Act, and no Preliminary Prospectus, at the time of filing
thereof, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the
Company makes no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the
Representatives expressly for use in any Preliminary Prospectus, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in Section 9(c) hereof.
(b)
The Pricing Disclosure Package as of the Applicable Time did not, and as of the Closing Date and as of the
Additional Closing Date, as the case may be, will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made,
not misleading; provided that the Company makes no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to the Underwriters furnished to the Company in
writing by any Underwriter expressly for use in such Pricing Disclosure Package, it being understood and agreed that the only such information furnished by such Underwriter through the Representatives consists of the information described as such in
Section 9(c) hereof. No statement of material fact included in the Prospectus has been omitted from the Pricing Disclosure Package and no statement of material fact included in the Pricing Disclosure Package that is required to be included in
the Prospectus has been omitted therefrom.
(c)
Other than the Registration Statement, the Preliminary Prospectus and the Prospectus, the Company (including
its agents and representatives, other than the Underwriters in their capacity as such) has not prepared, made, used, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written
communication” (as defined in Rule 405 under the Securities Act) that constitutes an offer to sell or solicitation of an offer to buy the Shares (each such communication by the Company or its agents and representatives (other than a
communication referred to in clause (i) below) an “Issuer Free Writing Prospectus”) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the
Securities Act or (ii) the documents listed on Annex A hereto, each electronic road show and any other written communications approved in writing in advance by the Representatives. Each such Issuer Free Writing Prospectus complies in all
material respects with the Securities Act, has been or will be (within the time period specified in Rule 433) filed in accordance with the Securities Act (to the extent required thereby) and does not conflict with the information contained in the
Registration Statement or the Pricing Disclosure Package, and, when taken together with the Preliminary Prospectus filed prior to the first use of such Issuer Free Writing Prospectus, did not, and as of the Closing Date and as of the Additional
Closing Date, as the case may be, will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not
misleading; provided that the Company makes no representation or warranty with respect to any statements or omissions made in each such Issuer Free Writing Prospectus or Preliminary Prospectus in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in such Issuer Free Writing Prospectus or Preliminary Prospectus, it being understood and agreed that the
only such information furnished by any Underwriter consists of the information described as such in Section 9(c) hereof.
(d)
The Company (i) has not alone engaged in any Testing-the-Waters Communications other than Testing-the-Waters Communications with the consent of the Representatives
(x) with entities that are qualified institutional buyers (“QIBs”) within the meaning of Rule 144A under the Securities Act or institutions that are accredited investors within the meaning of Rule 501(a)(1), (a)(2), (a)(3), (a)(7)
or (a)(8) under the Securities Act (“IAIs”) and otherwise in compliance with the requirements of Section 5(d) of the Securities Act or (y) with entities that the Company reasonably believed to be QIBs or IAIs and otherwise in
compliance with the requirements of Rule 163B under the Securities Act and (ii) has not authorized anyone other than the Representatives to engage in
Testing-the-Waters Communications. The Company reconfirms that the Representatives have been authorized to act on its behalf in undertaking Testing-the-Waters Communications. The Company has not distributed or approved for distribution any Written
Testing-the-Waters Communications other than those listed on Schedule D hereto.
“Testing-the-Waters Communication” means any oral or written communication with potential investors undertaken in reliance on either Section 5(d) of, or
Rule 163B under, the Securities Act. “Written Testing-the-Waters Communication” means any
Testing-the-Waters Communication that is a written communication within the meaning of Rule 405 under the Securities Act. Any individual Written Testing-the-Waters Communication does not conflict with the information contained in the Registration Statement or the Pricing Disclosure Package, complied in all material
respects with the Securities Act, and when taken together with the Pricing Disclosure Package as of the Applicable Time, did not, and as of the Closing Date and as of the Additional Closing Date, as the case may be, will not, contain any untrue
statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(e)
The Registration Statement is an “automatic shelf registration statement” as defined under Rule 405
of the Securities Act that has been filed with the Commission not earlier than three years prior to the date hereof; and no notice of objection of the Commission to the use of such registration statement or any post-effective amendment thereto
pursuant to Rule 401(g)(2) under the Securities Act has been received by the Company. No order suspending the effectiveness of the Registration Statement has been issued by the Commission, and no proceeding for that purpose or pursuant to
Section 8A of the Securities Act against the Company or related to the offering of the Shares has been initiated or, to the Company’s knowledge, threatened by the Commission; as of the applicable effective date of the Registration
Statement and any post-effective amendment thereto, the Registration Statement and any such post-effective amendment complied and will comply in all material respects with the applicable requirements of the Securities Act, and did not and will not
contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as of the date of the Prospectus and any amendment or supplement
thereto and as of the Closing Date and as of the Additional Closing Date, as the case may be, the Prospectus will comply in all material respects with the applicable requirements of the Securities Act and will not contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company makes no representation or warranty with
respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Registration
Statement and the Prospectus and any amendment or supplement thereto, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in Section 9(c) hereof.
(f)
The documents incorporated by reference in the Registration Statement, the Prospectus and the Pricing
Disclosure Package, when they were filed with the Commission, conformed in all material respects to the applicable requirements of the Exchange Act.
(g)
The financial statements (including the related notes thereto) of the Company and its consolidated subsidiaries
included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus comply in all material respects with the applicable requirements of the Securities Act and the Exchange Act, as applicable, and
present fairly in all material respects the financial position of the Company and its consolidated subsidiaries as of the dates indicated and the results of their operations and the changes in their cash flows for the periods specified; such
financial statements have been prepared in conformity with generally accepted accounting principles (“GAAP”) in the United States applied on a consistent basis throughout the periods covered thereby, except unaudited financial
statements, which are subject to normal year-end adjustments that are not material in the aggregate and do not contain certain footnotes as permitted by the applicable rules of the Commission, and any
supporting schedules included or incorporated by reference in the Registration Statement present fairly in all material respects the information required to be stated therein; and the other financial information included or incorporated by reference
in the Registration Statement, the Pricing Disclosure Package and the Prospectus has been derived from the accounting records of the Company and its consolidated subsidiaries and presents fairly in all material respects the information shown
thereby; all disclosures included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus regarding “non-GAAP financial measures” (as such term
is defined by the rules and regulations of the Commission) comply with Regulation G of the Exchange Act and Item 10 of Regulation S-K of the Securities Act, to the extent applicable.
(h)
Since the date of the most recent financial statements of the Company included or incorporated by reference in
the Registration Statement, the Pricing Disclosure Package and the Prospectus, (i) there has not been any change in the capital stock (other than the issuance of shares of Common Stock upon exercise of stock options and warrants described as
outstanding in, and the grant of options and awards under existing equity incentive plans described in, the Registration Statement, the Pricing Disclosure Package and the Prospectus), any material change in short-term debt or long-term debt of the
Company or any of its subsidiaries, or any dividend or distribution of any kind declared, set aside for payment, paid or made by the Company on any class of capital stock, or any material adverse change, or any development involving a prospective
material adverse change, in or affecting the business, properties, management, financial position, stockholders’ equity, results of operations or prospects of the Company and its subsidiaries taken as a whole; (ii) neither the Company nor
any of its subsidiaries has entered into any transaction or agreement (whether or not in the ordinary course of business) that is material to the Company and its subsidiaries taken as a whole or incurred any liability or obligation, direct or
contingent, that is material to the Company and its subsidiaries taken as a whole; and (iii) neither the Company nor any of its subsidiaries has sustained any loss or interference with its business that is material to the Company and its
subsidiaries taken as a whole and that is either from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor disturbance or dispute or any action, order or decree of any court or arbitrator or governmental
or regulatory authority, except in each case as otherwise disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(i)
The Company and each of its subsidiaries have been duly organized and are validly existing and in good standing
under the laws of their respective jurisdictions of organization, are duly qualified to do business and are in good standing in each jurisdiction in which their respective ownership or lease of property or the conduct of their respective businesses
requires such qualification, and have all power and authority necessary to own or hold their respective properties and to conduct the businesses in which they are engaged, except where the failure to be so qualified or in good standing or have such
power or authority would not, individually or in the aggregate, have a material adverse effect on the business, properties, management, financial position, stockholders’ equity, results of operations or prospects of the Company and its
subsidiaries taken as a whole or on the performance by the Company of its obligations under the Transaction Documents (as defined in this Agreement) (a “Material Adverse Effect”). The Company does not own or control, directly or
indirectly, any corporation, association or other entity other than the subsidiaries listed in Exhibit 21.1 to the Company’s Annual Report on Form 10-K for the fiscal year ended June 30, 2025.
(j)
The Company has an authorized capitalization as set forth in the Registration Statement, the Prospectus or any
Permitted Free Writing Prospectus as of the date specified therein. All the outstanding shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and
non-assessable and are not subject to any pre-emptive or similar rights; except as described in or expressly contemplated by the Registration Statement, the Pricing
Disclosure Package and the Prospectus, there are no outstanding rights (including, without limitation, pre-emptive rights), warrants or options to acquire, or instruments convertible into or exchangeable for,
any shares of capital stock or other equity interest in the Company or any of its subsidiaries, or any contract, commitment, agreement, understanding or arrangement of any kind relating to the issuance of any capital stock of the Company or any
such subsidiary, any such convertible or exchangeable securities or any such rights, warrants or options; the capital stock of the Company conforms in all material respects to the description
thereof contained in the Registration Statement, the Pricing Disclosure Package and the Prospectus; and all the outstanding shares of capital stock or other equity interests of each subsidiary owned, directly or indirectly, by the Company have been
duly and validly authorized and issued, are fully paid and non-assessable (except, in the case of any foreign subsidiary, for directors’ qualifying shares and except as otherwise described in the
Registration Statement, the Pricing Disclosure Package and the Prospectus,) and are owned directly or indirectly by the Company, free and clear of any lien, charge, encumbrance, security interest, restriction on voting or transfer or any other claim
of any third party.
(k)
With respect to the stock options (the “Stock Options”) granted pursuant to the stock-based
compensation plans of the Company and its subsidiaries (the “Company Stock Plans”), (i) each Stock Option intended to qualify as an “incentive stock option” under Section 422 of the Code so qualifies,
(ii) each grant of a Stock Option was duly authorized no later than the date on which the grant of such Stock Option was by its terms to be effective (the “Grant Date”) by all necessary corporate action, including, as
applicable, approval by the board of directors of the Company (or a duly constituted and authorized committee thereof) and any required stockholder approval by the necessary number of votes or written consents, and the award agreement governing such
grant (if any) was duly executed and delivered by each party thereto, (iii) each such grant was made in accordance with the terms of the Company Stock Plans, the Exchange Act and all other applicable laws and regulatory rules or requirements,
including the rules of the Nasdaq Global Select Market (“Nasdaq”) and any other exchange on which Company securities are traded, and (iv) each such grant was properly accounted for in accordance with GAAP in the financial
statements (including the related notes) of the Company and disclosed in the Company’s filings with the Commission in accordance with the Exchange Act and all other applicable laws. The Company has not knowingly granted, and there is no and
has been no policy or practice of the Company of granting, Stock Options prior to, or otherwise coordinating the grant of Stock Options with, the release or other public announcement of material information regarding the Company or its subsidiaries
or their results of operations or prospects;
(l)
The Company has full right, power and authority to execute and deliver the Transaction Documents (as defined
below) and to perform its obligations hereunder; and all action required to be taken for the due and proper authorization, execution and delivery by it of each of the Transaction Documents and the consummation by it of the transactions contemplated
therein have been duly and validly taken.
(m)
This Agreement has been duly authorized, executed and delivered by the Company.
(n)
[reserved]
(o)
The Shares have been duly authorized and, when issued and delivered and against payment of the purchase price
therefor as provided in this Agreement and when the Depositary Receipts have been duly executed and delivered by the Depositary in accordance with the Deposit Agreement, will be duly and validly issued, fully paid and
non-assessable. The Shares will conform to the descriptions thereof in the Registration Statement, the Pricing Disclosure Package and the Prospectus in all material respects. The issuance of the Shares is not
subject to any pre-emptive or similar rights. The persons in whose names the Shares are registered will be entitled to the rights specified therein and in the Deposit Agreement.
(p)
The Deposit Agreement has been duly authorized by the Company and, when duly executed and delivered in
accordance with its terms by each of the parties thereto, will constitute a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as the enforceability thereof may be limited by the
bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization, moratorium or similar laws affecting enforcement of creditors’ rights generally.
(q)
The Certificate of Designations has been duly authorized by the Company. The Certificate of Designations sets
forth the rights, preferences and priorities of the Preferred Stock, and the holders of the Preferred Stock will have the rights set forth in the Certificate of Designations upon filing with the Secretary of State of the State of Delaware.
(r)
The Preferred Stock, when issued by the Company, may be freely deposited by the Company with the Depositary
against issuance of the Shares. The Preferred Stock has been duly authorized by the Company for issuance and deposit in accordance with the provisions of this Agreement and the Deposit Agreement and, when issued and deposited against issuance of the
Shares, and upon the filing and effectiveness of the Certificate of Designation, will be validly issued, fully paid and non-assessable and will conform in all material respects to the descriptions thereof in
the Registration Statement, the Pricing Disclosure Package and the Prospectus. Upon payment of the purchase price for the Shares and deposit of the Preferred Stock against issuance of the Shares in accordance with this Agreement and the Deposit
Agreement, the Underwriters will receive good, valid and marketable title to the Shares, free and clear of any liens. No holder of the Preferred Stock will be subject to personal liability solely by reason of being such a holder; and the issuance of
the Preferred Stock is not subject to any pre-emptive or similar rights.
(s)
Upon issuance and deposit of the Preferred Stock against issuance of the Shares in accordance with this
Agreement and the Deposit Agreement and the filing and effectiveness of the Certificate of Designation, the Preferred Stock will be convertible into the Underlying Shares in accordance with the terms of the Preferred Stock and the Certificate of
Designation. A number of Underlying Shares equal to the Maximum Number of Underlying Shares (as defined below) has been duly authorized and reserved for issuance by all necessary corporate action (for the avoidance of doubt, such Underlying Shares
may be Common Stock previously issued and held by the Company as treasury stock) and such Underlying Shares, when issued in accordance with the terms of the Preferred Stock and the Certificate of Designations will be validly issued, fully paid and non-assessable, will conform in all material respects to the descriptions thereof in the Registration Statement, the Pricing Disclosure Package and the Prospectus and will not be subject to any pre-emptive or similar rights. As used herein, “Maximum Number of Underlying Shares” “means the product of (A) the sum of (x) a number of shares of Common Stock equal to the
initial maximum conversion rate per share of the Preferred Stock set forth in the Certificate of Designations and (y) the maximum number of shares of Common Stock deliverable by the Company in respect of dividends payable per share of Preferred
Stock (whether or not declared), multiplied by (B) the aggregate number of shares of Preferred Stock in respect of the Shares (assuming the over-allotment option set forth in Section 2 is exercised in full, but without giving effect to any
“Make-whole Dividend Amount” (as defined in the Certificate of Designation)), in each case in accordance with, and as adjusted pursuant to, the terms of the Certificate of Designation.
(t)
Each of the Certificate of Designation, the Deposit Agreement and this Agreement (together, the
“Transaction Documents”) conforms in all material respects to the description thereof contained in each of the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(u)
No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court
is required for the execution, delivery and performance by the Company of the Transaction Documents, the issuance and sale of the Shares, the issuance and deposit of the Preferred Stock with the Depositary against the issuance of the Shares and the
issuance of a number of Underlying Shares equal to the Maximum Number of Underlying Shares, except such as have been obtained and made under the Securities Act and such as may be required under state securities laws and any law or regulation
applicable to the filing of the Certificate of Designations with the Secretary of State of the State of Delaware.
(v)
The execution, delivery and performance of the Transaction Documents, the issuance and sale of the Shares, the
issuance and deposit of the Preferred Stock with the Depositary against the issuance of the Shares and the issuance of a number of Underlying Shares equal to the Maximum Number of Underlying Shares have been duly authorized by all necessary
corporate action and do not and will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property, or assets of
the Company or any Subsidiary under (i) any statute, any rule, regulation or order of any governmental agency or body or any court, domestic or foreign, having jurisdiction over the Company or any Subsidiary of the Company (provided,
however, that enforcement of rights to indemnity and contribution in this Agreement or the Deposit Agreement may be limited by federal or state securities laws or principles of public policy) or any of their properties, (ii) any material
agreement or instrument to which the Company or any such Subsidiary is a party or by which the Company or any such Subsidiary is bound or to which any of the properties of the Company or any such Subsidiary is subject, or (iii) the charter or by-laws of the Company or any such Subsidiary, except in the case of (i) and (ii), where such breach or violation or default would not have a Material Adverse Effect.
(w)
The Company and its subsidiaries have good and marketable title in fee simple to, or have valid rights to lease
or otherwise use, all items of real and personal property that are material to the respective businesses of the Company and its subsidiaries, in each case free and clear of all liens, encumbrances, claims and defects and imperfections of title
except those that (i) do not materially interfere with the use made and proposed to be made of such property by the Company and its subsidiaries or (ii) could not reasonably be expected, individually or in the aggregate, to have a Material
Adverse Effect;
(x)
Except as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, there are
no legal, governmental or regulatory actions, demands, claims, suits, arbitrations, inquiries, proceedings or, to the Company’s knowledge, investigations (“Actions”) pending to which the Company or any of its subsidiaries is or may
be a party or to which any property of the Company or any of its subsidiaries is or may be the subject that, individually or in the aggregate, if determined adversely to the Company or any of its subsidiaries, could reasonably be expected to have a
Material Adverse Effect; to the knowledge of the Company, no such Actions are threatened or, contemplated by any governmental or regulatory authority or threatened by others; and (i) there are no current or pending Actions that are required
under the Securities Act to be described in the Registration Statement, the Pricing Disclosure Package or the Prospectus that are not so described in the Registration Statement, the Pricing Disclosure Package and the Prospectus and (ii) there
are no statutes, regulations or contracts or other documents that are required under the Securities Act to be filed as exhibits to the Registration Statement or described in the Registration Statement, the Pricing Disclosure Package or the
Prospectus that are not so filed as exhibits to the Registration Statement or described in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(y)
Neither the Company nor any of its subsidiaries is (i) in violation of its charter or by-laws or similar organizational documents; (ii) in default, and no event has occurred that, with notice or lapse of time or both, would constitute such a default, in the due performance or observance of any
term, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound
or to which any property or asset of the Company or any of its subsidiaries is subject; or (iii) in violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority,
except, in the case of clauses (ii) and (iii) above, for any such default or violation that would not, individually or in the aggregate, have a Material Adverse Effect.
(z)
The execution, delivery and performance by the Company of the Transaction Documents, the issuance and sale of
the Shares (including the issuance of the Underlying Shares upon conversion thereof) by the Company, and the consummation by the Company of the transactions contemplated by the Transaction Documents, the Pricing Disclosure Package and the Prospectus
will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, result in the termination, modification or acceleration of, or result in the creation or imposition of any lien,
charge or encumbrance upon any property, right or asset of the Company or any of its subsidiaries pursuant to, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of its subsidiaries is
a party or by which the Company or any of its subsidiaries is bound or to which any property, right or asset of the Company or any of its subsidiaries is subject, (ii) result in any violation of the provisions of the charter or by-laws or similar organizational documents of the Company or any of its subsidiaries or (iii) result in the violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator
or governmental or regulatory authority, except, in the case of clauses (i) and (iii) above, for any such conflict, breach, violation, default, lien, charge or encumbrance that would not, individually or in the aggregate, have a Material
Adverse Effect;
(aa)
No consent, approval, authorization, order, registration or qualification of or with any court or arbitrator or
governmental or regulatory authority is required for the execution, delivery and performance by the Company of the Transaction Documents (including, without limitation, the issuance of the Securities and the issuance of the Underlying Securities
upon conversion thereof), and the consummation of the transactions contemplated by the Transaction Documents, except as may be required under the listing rules of the Nasdaq and such consents, approvals, authorizations, orders and registrations or
qualifications as may be required by the Financial Industry Regulatory Authority, Inc. (“FINRA”) and under applicable state securities laws in connection with the purchase and distribution of the Securities by the Underwriters;
(bb)
(i) The Company and its subsidiaries (x) are in compliance with all, and have not violated any, applicable
federal, state, local and foreign laws (including common law), rules, regulations, requirements, decisions, judgments, decrees, orders and other legally enforceable requirements relating to pollution or the protection of human health or safety, the
environment, natural resources, hazardous or toxic substances or wastes, pollutants or contaminants (collectively, “Environmental Laws”); (y) have received and are in compliance with all, and have not violated any, permits,
licenses, certificates or other authorizations or approvals required of them under any Environmental Laws to conduct their respective businesses; and (z) have not received notice of any actual or potential liability or obligation under or
relating to, or any actual or potential violation of, any Environmental Laws, including for the investigation or remediation of any disposal or release of hazardous or toxic substances or wastes, pollutants or contaminants, and have no knowledge of
any event or condition that would reasonably be expected to result in any such notice; (ii) there are no costs or liabilities associated with Environmental Laws of or relating to the Company or its subsidiaries, except in the case of each of
(i) and (ii) above, for any such matter as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; and (iii) except as described in each
of the Registration Statement, the Pricing Disclosure Package and the Prospectus, (x) there is no proceeding that is pending, or that is known to be contemplated, against the Company or any
of its subsidiaries under any Environmental Laws in which a governmental entity is also a party, other than such proceeding regarding which it is reasonably believed no monetary sanctions of $500,000 or more will be imposed, (y) the Company and
its subsidiaries are not aware of any facts or issues regarding compliance with Environmental Laws, or liabilities or other obligations under Environmental Laws or concerning hazardous or toxic substances or wastes, pollutants or contaminants, that
could reasonably be expected to have a material effect on the capital expenditures, earnings or competitive position of the Company and its subsidiaries, and (z) none of the Company or its subsidiaries anticipates material capital expenditures
relating to any Environmental Laws.
(cc)
BDO USA, P.C. and Deloitte & Touche LLP, who have reviewed and/or audited certain financial statements
of the Company and its subsidiaries, are each an independent registered public accounting firm with respect to the Company and its subsidiaries within the applicable rules and regulations adopted by the Commission and the Public Company Accounting
Oversight Board (United States) and as required by the Securities Act.
(dd)
(i) The Company and its subsidiaries own or possess or can obtain on reasonable terms adequate rights to use
all material patents, patent applications, trademarks, service marks, trade names, trademark registrations, service mark registrations, domain names, copyrights, know-how, trade secrets, systems, procedures,
proprietary or confidential information and all other worldwide intellectual property, industrial property and proprietary rights (collectively, “Intellectual Property”) used in the conduct of their respective businesses;
(ii) the Company’s and its subsidiaries’ conduct of their respective businesses does not infringe, misappropriate or otherwise violate any Intellectual Property of any person except as would not reasonably be expected, individually
or in the aggregate, to have a Material Adverse Effect; (iii) the Company and its subsidiaries have not received any written notice of any material claim relating to Intellectual Property; and (iv) to the knowledge of the Company, the
Intellectual Property of the Company and its subsidiaries is not being infringed, misappropriated or otherwise violated by any person;
(ee)
No relationship, direct or indirect, exists between or among the Company or any of its subsidiaries, on the one
hand, and the directors, officers, stockholders, customers, suppliers or other affiliates of the Company or any of its subsidiaries, on the other, that is required by the Securities Act to be described in each of the Registration Statement and the
Prospectus and that is not so described in such documents and in the Pricing Disclosure Package.
(ff)
Neither the Company nor any of its subsidiaries is a “covered foreign person”, as that term is used
in the Outbound Investment Rules. “Outbound Investment Rules” means the regulations administered and enforced, together with any related public guidance issued, by the United States Treasury Department under U.S. Executive Order 14105 or
any similar law or regulation; as of the date of this Agreement, the Outbound Investment Rules are codified at 31 C.F.R. § 850.101 et seq.
(gg)
The Company is not and, after giving effect to the offering and sale of the Shares and, if the Concurrent
Offering is consummated, the shares of Common Stock in the Concurrent Offering, and the application of the net proceeds thereof received by the Company as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus,
will not be required to register as an “investment company” or an entity “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended, and the rules and regulations
of the Commission thereunder.
(hh) No person has the right to require the Company or any of its subsidiaries to register
any securities for sale under the Securities Act by reason of the filing of the Registration Statement with the Commission or the issuance and sale of the Shares.
(ii)
The Company and its subsidiaries have paid all federal, state, local and foreign taxes and filed all tax
returns required to be paid or filed through the date hereof except for any tax that is being contested in good faith and for which an adequate reserve or accrual has been established in accordance with generally accepted accounting principles in
the United States and have filed all federal income and other tax returns required to be filed through the date hereof, except in each case where the failure to do so would not, individually or in the aggregate, have a Material Adverse Effect; and
except as otherwise disclosed in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus, there is no material tax deficiency that has been, or could reasonably be expected to be, asserted against the Company or any of its
subsidiaries or any of their respective properties or assets.
(jj)
The Company and its subsidiaries possess all licenses, sub-licenses,
certificates, permits and other authorizations issued by, and have made all declarations and filings with, the appropriate federal, state, local or foreign governmental or regulatory authorities that are necessary for the ownership or lease of their
respective properties or the conduct of their respective businesses as described in each of the Registration Statement, the Pricing Disclosure Package and the Prospectus, except where the failure to possess or make the same would not, individually
or in the aggregate, have a Material Adverse Effect; and except as described in each of the Registration Statement, the Pricing Disclosure Package and the Prospectus, neither the Company nor any of its subsidiaries has received notice of any
revocation or modification of any such license, sub-license, certificate, permit or authorization or has any reason to believe that any such license, sub-license,
certificate, permit or authorization will not be renewed in the ordinary course, except where such revocation, modification, or nonrenewal would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(kk)
No labor disturbance by or dispute with employees of the Company or any of its subsidiaries exists or, to the
knowledge of the Company, is contemplated or threatened, and the Company is not aware of any existing or imminent labor disturbance by, or dispute with, the employees of any of its or its subsidiaries’ principal suppliers, contractors or
customers, except as would not have a Material Adverse Effect. Neither the Company nor any of its subsidiaries has received any notice of cancellation or termination with respect to any collective bargaining agreement to which it is a party.
(ll)
(i) Each employee benefit plan, within the meaning of Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended (“ERISA”), for which the Company or any member of its “Controlled Group” (defined as any entity, whether or not incorporated, that is under common control with the Company within
the meaning of Section 4001(a)(14) of ERISA or any entity that would be regarded as a single employer with the Company under Section 414(b),(c),(m) or (o) of the Internal Revenue Code of 1986, as amended (the
“Code”)) would have any liability (each, a “Plan”) has been maintained in compliance with its terms and the requirements of any applicable statutes, orders, rules and regulations, including but not limited to
ERISA and the Code; (ii) no prohibited transaction, within the meaning of Section 406 of ERISA or Section 4975 of the Code, has occurred with respect to any Plan, excluding transactions effected pursuant to a statutory or
administrative exemption; (iii) for each Plan that is subject to the funding rules of Section 412 of the Code or Section 302 of ERISA, no Plan has failed (whether or not waived), or is reasonably expected to fail, to satisfy the
minimum funding standards (within the meaning of Section 302 of ERISA or Section 412 of the Code) applicable to such Plan; (iv) no Plan is, or is reasonably expected to be, in “at risk status” (within the meaning of
Section 303(i) of ERISA) and no Plan that is a “multiemployer plan”
within the meaning of Section 4001(a)(3) of ERISA is in “endangered status” or “critical status” (within the meaning of Sections 304 and 305 of ERISA) (v) the
fair market value of the assets of each Plan exceeds the present value of all benefits accrued under such Plan (determined based on those assumptions used to fund such Plan); (vi) no “reportable event” (within the meaning of
Section 4043(c) of ERISA and the regulations promulgated thereunder) has occurred or is reasonably expected to occur; (vii) each Plan that is intended to be qualified under Section 401(a) of the Code is so qualified, and nothing has
occurred, whether by action or by failure to act, which would cause the loss of such qualification; (viii) neither the Company nor any member of the Controlled Group has incurred, nor reasonably expects to incur, any liability under Title IV of
ERISA (other than contributions to the Plan or premiums to the Pension Benefit Guarantee Corporation, in the ordinary course and without default) in respect of a Plan (including a “multiemployer plan” within the meaning of
Section 4001(a)(3) of ERISA); and (ix) none of the following events has occurred or is reasonably likely to occur: (A) a material increase in the aggregate amount of contributions required to be made to all Plans by the Company or its
Controlled Group affiliates in the current fiscal year of the Company and its Controlled Group affiliates compared to the amount of such contributions made in the Company’s and its Controlled Group affiliates’ most recently completed
fiscal year; or (B) a material increase in the Company and its subsidiaries’ “accumulated post-retirement benefit obligations” (within the meaning of Accounting Standards Codification Topic
715-60) compared to the amount of such obligations in the Company and its subsidiaries’ most recently completed fiscal year, except in each case with respect to the events or conditions set forth in
(i) through (ix) hereof, as would not, individually or in the aggregate, have a Material Adverse Effect.
(mm)
Except as disclosed in the Pricing Disclosure Package, the Registration Statement and the Prospectus, the
Company and its subsidiaries maintain an effective system of “disclosure controls and procedures” (as defined in Rule 13a-15(e) of the Exchange Act) that complies with the requirements of the
Exchange Act and that has been designed to ensure that information required to be disclosed by the Company in reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified
in the Commission’s rules and forms, including controls and procedures designed to ensure that such information is accumulated and communicated to the Company’s management as appropriate to allow timely decisions regarding required
disclosure. The Company and its subsidiaries have carried out evaluations of the effectiveness of their disclosure controls and procedures as required by Rule 13a-15 of the Exchange Act.
(nn)
The Company and its subsidiaries maintain systems of “internal control over financial reporting”
(as defined in Rule 13a-15(f) of the Exchange Act) that comply with the requirements of the Exchange Act and have been designed by, or under the supervision of, their respective principal executive and
principal financial officers, or persons performing similar functions, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP. Except
as disclosed in the Pricing Disclosure Package, the Registration Statement and the Prospectus, the Company and its subsidiaries maintain internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed
in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability; (iii) access
to assets is permitted only in accordance with management’s general or specific authorization; (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences; and (v) interactive data in eXtensible Business Reporting Language included or
incorporated by reference in the Registration Statement, the Prospectus and the Pricing Disclosure Package fairly presents the information called for in all material respects and is prepared in
accordance with the Commission’s rules and guidelines applicable thereto. Based on the Company’s most recent evaluation of its internal controls over financial reporting pursuant to Rule 13a-15(c)
of the Exchange Act, except as disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus, there are no material weaknesses in the Company’s internal controls. The Company’s auditors and the Audit
Committee of the Board of Directors of the Company have been advised of: (i) all significant deficiencies and material weaknesses in the design or operation of internal controls over financial reporting which have adversely affected or are
reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information; and (ii) any fraud, whether or not material, that involves management or other employees who have a significant
role in the Company’s internal controls over financial reporting.
(oo)
The interactive data in eXtensible Business Reporting Language included or incorporated by reference in the
Registration Statement fairly presents the information called for in all material respects and has been prepared in accordance with the Commission’s rules and guidelines applicable thereto.
(pp)
The Company and its subsidiaries have insurance covering their respective properties, operations, personnel and
businesses, including business interruption insurance, which insurance is in amounts and insures against such losses and risks as are adequate to protect the Company and its subsidiaries and their respective businesses; and neither the Company nor
any of its subsidiaries has (i) received notice from any insurer or agent of such insurer that capital improvements or other expenditures are required or necessary to be made in order to continue such insurance or (ii) any reason to
believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage at reasonable cost from similar insurers as may be necessary to continue its business.
(qq)
The Company and its subsidiaries’ information technology assets and equipment, computers, systems,
networks, hardware, software, websites, applications, and databases (collectively, “IT Systems”) are adequate for, and operate and perform in all material respects as required in connection with the operation of the business of
the Company and its subsidiaries as currently conducted, free and clear of all material bugs, errors, defects, Trojan horses, time bombs, malware and other corruptants. The Company and its subsidiaries have implemented and maintained commercially
reasonable controls, policies, procedures, and safeguards to maintain and protect their material confidential information and the integrity, continuous operation, redundancy and security of all IT Systems and data (including all personal, personally
identifiable, sensitive, confidential or regulated data (“Personal Data”)) used in connection with their businesses, and there have been no breaches, violations, outages or unauthorized uses of or accesses to same, except for
those that have been remedied without material cost or liability or the duty to notify any other person, nor any incidents under internal review or investigations relating to the same. The Company and its subsidiaries are presently in material
compliance with all applicable laws or statutes and all judgments, orders, rules and regulations of any court or arbitrator or governmental or regulatory authority, internal policies and contractual obligations relating to the privacy and security
of IT Systems and Personal Data and to the protection of such IT Systems and Personal Data from unauthorized use, access, misappropriation or modification. The Company and its subsidiaries have taken all necessary actions to prepare to comply with
the European Union General Data Protection Regulation (and all other applicable laws and regulations with respect to Personal Data that have been announced as of the date hereof as becoming effective within 12 months after the date hereof, and for
which any non-compliance with same would be reasonably likely to create a material liability) as soon as they take effect, except as has not and would not reasonably be expected to result in liability material
to the Company and its subsidiaries, taken as a whole.
(rr)
Neither the Company nor any of its subsidiaries, nor any director, officer or employee of the Company or any of
its subsidiaries nor, to the knowledge of the Company, any agent, affiliate or other person associated with or acting on behalf of the Company or any of its subsidiaries has (i) used any corporate funds for any unlawful contribution, gift,
entertainment or other unlawful expense relating to political activity; (ii) made or taken an act in furtherance of an offer, promise or authorization of any direct or indirect unlawful payment or benefit to any foreign or domestic government
official or employee, including of any government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official
or candidate for political office; (iii) violated or is in violation of any provision of the Foreign Corrupt Practices Act of 1977, as amended, or any applicable law or regulation implementing the OECD Convention on Combating Bribery of Foreign
Public Officials in International Business Transactions, or committed an offence under the Bribery Act 2010 of the United Kingdom or any other applicable anti-bribery or anti-corruption law; or (iv) made, offered, agreed, requested or taken an
act in furtherance of any unlawful bribe or other unlawful benefit, including, without limitation, any rebate, payoff, influence payment, kickback or other unlawful or improper payment or benefit. The Company and its subsidiaries have instituted,
maintain and enforce, and will continue to maintain and enforce policies and procedures designed to promote and ensure compliance with all applicable anti-bribery and anti-corruption laws.
(ss)
The operations of the Company and its subsidiaries are and have been conducted at all times in compliance with
applicable financial recordkeeping and reporting requirements, including those of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the applicable money laundering statutes of all jurisdictions where the Company or any of its
subsidiaries conducts business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines issued, administered or enforced by any governmental agency (collectively, the “Anti-Money Laundering
Laws”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to
the knowledge of the Company, threatened. Neither the Company nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering of the Shares hereunder in furtherance of an offer, payment, promise to pay, or authorization of
the payment or giving of money, or anything else of value, to any person in a manner that will result in a violation by any person (including any person participating in the transaction, whether as underwriter, initial purchaser, advisor, investor
or otherwise) of Anti-Money Laundering Laws.
(tt)
Neither the Company nor any of its subsidiaries, directors, officers, or employees, nor, to the knowledge of
the Company, any agent, affiliate or other person associated with or acting on behalf of the Company or any of its subsidiaries is, or is 50% or more owned or controlled by a person that is, currently the subject or the target of any sanctions
administered or enforced by the U.S. government, (including, without limitation, the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State and including, without limitation, the designation as a
“specially designated national” or “blocked person”), the United Nations Security Council, the European Union, His Majesty’s Treasury or other relevant sanctions authority (collectively, “Sanctions”), nor is
the Company or any of its subsidiaries located, organized, operating, or resident in a country or territory that is the subject or target of Sanctions, including, without limitation, the Crimea Region of Ukraine, the
so-called Donetsk
People’s Republic, the so-called Luhansk People’s Republic, Cuba, Iran, North Korea, and the disputed territories of Kherson and Zaporizhzhia
(each, a “Sanctioned Country”); and the Company will not directly or knowingly indirectly use the proceeds of the offering of the Shares hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint
venture partner or other person or entity (i) to fund or facilitate any activities of or business with any person that, at the time of such funding or facilitation, is the subject or target of Sanctions, (ii) to fund or facilitate any
activities of or business in any Sanctioned Country or (iii) in any other manner that will result in a violation by any person (including any person participating in the transaction, whether as underwriter, advisor, initial purchaser, investor
or otherwise) of Sanctions or any export control laws and regulations administered or enforced by (A) the U.S. government (including the U.S. Department of Commerce or the U.S. Department of State), including the Arms Export Control Act (22
U.S.C. § 2778), the Export Control Reform Act of 2018 (50 U.S.C. §§ 4801-4861), the International Traffic in Arms Regulations (22 C.F.R. Parts 120–130), and the Export Administration Regulations (15 C.F.R. Parts 730-774) (the “EAR”), or (B) any other relevant governmental authority (collectively, “Export Controls”).
(uu)
The Company and its subsidiaries have (A) since April 24, 2019, conducted their business in material
compliance with all applicable Sanctions and have not engaged in and are not now engaged in any dealings or transactions with any person that at the time of the dealing or transaction is or was the subject or the target of Sanctions or with any
Sanctioned Country, and (B) for the past five years have complied with Export Controls in all material respects and have not engaged in any transactions or dealings directly or indirectly with any person or entity on a list of designated
persons maintained by the U.S. Department of Commerce Bureau of Industry and Security (including, but not limited to, the Entity List, Denied Persons List and Unverified List) in material breach of Export Controls. The Company and its subsidiaries
have instituted and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with Sanctions and Export Controls.
(vv)
The Company shall not, and shall cause each of its subsidiaries and controlled affiliates not to, directly or
knowingly indirectly use, apply, contribute, make available, or otherwise deploy any proceeds of the offering of the Shares in connection with any export, reexport, transfer, release, financing, servicing, acquisition, disposition, shipment, sale,
delivery, installation, maintenance, support, or other dealing involving any item subject to the EAR in breach of the EAR.
(ww)
The Company further agrees that it shall not proceed with, approve, authorize, finance, facilitate, or
otherwise support any transaction or activity involving any item subject to the EAR if the Company knows or has reason to know that a violation of the EAR has occurred, is about to occur, or is intended to occur in connection with such item.
No subsidiary of the Company is currently prohibited, directly or indirectly, under any agreement or other instrument to
which it is a party or is subject, from paying any dividends to the Company, from making any other distribution on such subsidiary’s capital stock or similar ownership interest, from repaying to the Company any loans or advances to such
subsidiary from the Company or from transferring any of such subsidiary’s properties or assets to the Company or any other subsidiary of the Company.
(xx)
Neither the Company nor any of its subsidiaries is a party to any contract, agreement or understanding with any
person (other than the Transaction Documents) that would give rise to a valid claim against any of them or any Underwriter for a brokerage commission, finder’s fee or like payment in connection with the offering and sale of the Shares.
(yy)
At the time of filing the Registration Statement and any post-effective amendment thereto, at the earliest time
thereafter that the Company or any offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) under the Securities Act) of the Shares and at the date hereof, the Company was not and is not an “ineligible issuer,”
and is a well-known seasoned issuer, in each case as defined in Rule 405 under the Securities Act. The Company has paid the registration fee for this offering pursuant to Rule 456(b)(1) under the Securities Act or will pay such fee within the time
period required by such rule (without giving effect to the proviso therein) and in any event prior to the Closing Date.
(zz)
Prior to the date hereof, neither the Company nor any of its affiliates has taken any action which is designed
to or which has constituted or which might have been expected to cause or result in stabilization or manipulation of the price of any security of the Company in connection with the offering of the Shares.
(aaa)
None of the transactions contemplated by the Transaction Documents (including the issuance, sale and delivery
of the Shares and the application of the proceeds thereof by the Company as described in each of the Registration Statement, the Pricing Disclosure Package and the Prospectus) will violate Regulation T, U or X of the Board of Governors of the
Federal Reserve System or any other regulation of such Board of Governors.
(bbb)
No forward-looking statement (within the meaning of Section 27A of the Securities Act and Section 21E
of the Exchange Act) included or incorporated by reference in any of the Registration Statement, the Pricing Disclosure Package and the Prospectus has been made or reaffirmed without a reasonable basis or has been disclosed other than in good faith.
(ccc)
Nothing has come to the attention of the Company that has caused the Company to believe that the statistical
and market-related data included or incorporated by reference in each of the Registration Statement, the Pricing Disclosure Package and the Prospectus is not based on or derived from sources that are reliable and accurate in all material respects.
(ddd)
(i) No downgrading has occurred in any rating accorded the securities of the Company or any of its subsidiaries
by any “nationally recognized statistical rating organization,” as such term is defined by the Commission for purposes of Section 3(a)(62) of the Exchange Act and (ii) no such organization has publicly announced that it has
under surveillance or review, or has changed its outlook with respect to, its rating of any securities of the Company or any of its subsidiaries (other than an announcement with positive implications of a possible upgrading, including the removal of
any negative watch or negative outlook).
(eee)
There is and has been no failure on the part of the Company or any of the Company’s directors or
officers, in their capacities as such, to comply with any provision of the Sarbanes-Oxley Act of 2002, as amended and the rules and regulations promulgated in connection therewith (the “Sarbanes-Oxley Act”), including
Section 402 related to loans and Sections 302 and 906 related to certifications.
(fff)
The Company is subject to Section 13 or 15(d) of the Exchange Act.
(ggg)
Neither the Company nor any of its subsidiaries is a “covered foreign person,” as that term is
defined in 31 C.F.R. § 850.209. The transactions contemplated in this Agreement will not result in the establishment of a covered foreign person or the engagement by a “person of a country of concern,” as defined in 31 C.F.R. §
850.221, in a covered activity, as that term is defined in 31 C.F.R. § 850.208. Neither the Company nor any of its subsidiaries currently engages, or has plans to engage, directly or indirectly, in a covered activity.
Any certificate signed by any officer of the Company or any subsidiary and delivered to the Underwriters or
to counsel for the Underwriters shall be deemed a representation and warranty by the Company and not the officer in its individual capacity to the Underwriters as to the matters covered thereby.
5. Delivery and Payment. The Company will deliver the Shares to be purchased on the Closing Date or the Additional Closing Date, as the
case may be, to you for the accounts of the Underwriters through the facilities of The Depository Trust Company (“DTC”) against payment of the purchase price by wire transfer to an account specified by the Company in same day
funds (x) with respect to the Firm Shares, at 10:00 a.m. (Eastern Time) on June 15, 2026 or at such other time not later than seven full business days thereafter as you and the Company determine (the “Closing Date”) and
(y) with respect to the Option Shares, at the time as specified by you in the written notice of the Underwriters’ election to purchase such Option Shares (if other than the Closing Date, an “Additional Closing Date”),
in each case with any transfer taxes payable in connection with the sale of such Shares duly paid by the Company. The Shares to be delivered will be in definitive fully registered form registered in such denominations and in such names as you
request in writing not later than 3:00 p.m., New York Time, on the full business day prior to the Closing Date or the Additional Closing Date, as the case may be, or, if no such request is received, in the names of the respective Underwriters in the
amounts agreed to be purchased by them pursuant to this Agreement on the Closing Date or the Additional Closing Date, as the case may be.
6. Covenants of the Company. The Company covenants and agrees with the several Underwriters that:
(a)
It will promptly cause the Preliminary Prospectus and the Prospectus to be filed with the Commission as
required by Rule 424.
(b)
It will furnish to each Underwriter a copy of each proposed free writing prospectus to be prepared by or on
behalf of, used by, or referred to by the Company and not to use or refer to any proposed free writing prospectus to which the Underwriters reasonably object.
(c)
It will not take any action that would result in a Underwriter or the Company being required to file with the
Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of a Underwriter that otherwise would not have been required to be filed thereunder.
(d)
For as long as a prospectus relating to the Shares is required to be delivered under the Securities Act (or, if
earlier, the six month anniversary of the Closing Date), if any event relating to or affecting the Company or of which the Company shall be advised in writing by the Underwriters shall occur which, which in the opinion of the Company or your
counsel, should be set forth in a supplement or amendment to the Registration Statement, the Pricing Disclosure Package or the Prospectus in order either to make the Registration Statement, the Pricing Disclosure Package or the Prospectus comply
with the requirements of the Securities Act or which would require the making of any change in the Pricing Disclosure Package or the Prospectus so that as thereafter delivered to Underwriters such Pricing Disclosure Package or the Prospectus will
not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, the Company will promptly amend or
supplement the Registration Statement, the Pricing Disclosure Package or the Prospectus by either (i) preparing and filing with the Commission supplement(s) or amendment(s) to the Registration Statement, the Pricing Disclosure Package or the
Prospectus, or (ii) making an appropriate filing pursuant to the Exchange Act, which will supplement or amend the Registration Statement, the Pricing Disclosure Package or the Prospectus so that, as supplemented or amended, the Pricing
Disclosure Package or the Prospectus when the Pricing Disclosure Package or the Prospectus is delivered to an underwriter will comply with the Securities Act and will not contain any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not
misleading. The Company will not file any amendment or supplement to the Registration Statement, the Pricing Disclosure Package or the Prospectus (x) prior to the Closing Date, without the
Representatives’ consent, which consent shall not be unreasonably withheld and (y) prior to any Additional Closing Date, without providing such amendment or supplement to the Representatives for review a reasonable period of time prior to
its filing.
(e)
The Company will make generally available to its security holders as soon as practicable, but in any event not
later than eighteen months after the effective date of the Registration Statement (as defined in Rule 158(c) under the Securities Act), an earnings statement of the Company and its subsidiaries (which need not be audited) complying with
Section 11(a) of the Securities Act and Rule 158 under the Securities Act.
(f)
The Company will furnish to you copies of the following documents, in each case as soon as available after
filing and in such quantities as you reasonably request: (i) the registration statement relating to the Shares as originally filed and all post-effective amendments thereto (at least one of which will be signed and will include all exhibits
except those incorporated by reference to previous filings with the Commission); (ii) each prospectus relating to the Shares; and (iii) during the time when a prospectus relating to the Shares is required to be delivered under the Securities
Act, all post-effective amendments and supplements to the Registration Statement, the Pricing Disclosure Package or the Prospectus, respectively (except supplements relating to securities that are not the Shares).
(g)
For a period of one year from the date of this Agreement and so long as the Shares are outstanding, the Company
will furnish to the Representatives, as soon as commercially reasonable after the date on which they are available, copies of all reports or other communications (financial or other) furnished to holders of the Shares, and copies of any reports and
financial statements furnished to or filed with the Commission or any national securities exchange or automatic quotation system; provided the Company will be deemed to have furnished such reports and financial statements to the Representatives to
the extent they are filed on EDGAR or any successor system.
(h)
Whether or not any sale of the Shares is consummated, the Company will pay and bear all costs and expenses
incident to the performance of its obligations under this Agreement, including (i) the preparation, printing and filing of the Registration Statement (including financial statements and exhibits) as originally filed and of each amendment
thereto, (ii) the authorization, issuance, sale, preparation and distribution of the Shares and any taxes payable in that connection and the filing of the Certificate of Designations with the Secretary of State of the State of Delaware,
(iii) the delivery of the Shares to the Underwriters and any taxes payable in that connection, (iv) the fees and disbursements of the Company’s counsel and accountants, (v) the delivery to the Underwriters of copies of the
Registration Statement as originally filed and the printing and delivery of each amendment thereto, of each preliminary prospectus and of the Prospectus and any amendments or supplements thereto, (vi) the fees and expenses of any transfer agent
and registrar for the Shares and of the Depositary (including reasonable fees and expenses of any counsel to such parties), (vii) all expenses incurred by the Company in connection with any “road show” presentation to potential investors
and (viii) all expenses and application fees related to the listing of the Shares and a number of Underlying Shares equal to the Maximum Number of Underlying Shares on the Nasdaq Global Select Market. If this Agreement is terminated by the
Underwriters in accordance with the provisions of Section 9, the Company shall reimburse the Underwriters for all of their reasonable out-of-pocket expenses,
including the reasonable fees and disbursements of counsel for the Underwriters.
(i)
For a period of 60 days after the date of the Prospectus, the Company will not (i) offer, pledge, sell,
contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, or submit to, or file with, the
Commission a registration statement under the Securities Act relating to, any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or publicly disclose the intention to undertake any of the
foregoing, or (ii) enter into any swap or other agreement that transfers, in whole or in part, any of the economic consequences of ownership of the Common Stock or any such other securities, whether any such transaction described in clause
(i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise, without the prior written consent of J.P. Morgan Securities LLC and Goldman Sachs & Co. LLC, other than the Shares to be
sold hereunder, the Preferred Stock in respect thereof and any shares of Common Stock issued upon conversion of, or issued and paid as a dividend on, the Preferred Stock. The restrictions described above do not apply (A) to the Shares to be
sold hereunder, (B) the issuance of any Underlying Shares upon conversion of the Shares or the issuance of any Common Stock upon conversion or exchange of the Company’s 0.00% Convertible Senior Notes due 2030 (the “2030
Notes”), 3.50% Convertible Senior Notes due 2029 (the “2029 Notes”) or 2.25% Convertible Senior Notes due 2028, (C) the Company’s entry into any amendment of, or exercise of rights and performance of obligations
under, and termination of the capped call transactions entered into in connection with the pricing and amendment of the 2029 Notes or 2030 Notes, (D) the issuance by the Company of Common Stock upon the exercise of an option or warrant, the
settlement of restricted stock or restricted stock units or the conversion of a security outstanding on the date hereof pursuant to a stock plan that is described in the Pricing Disclosure Package, (E) the issuance by the Company (or the
receipt by any officer or director) of Common Stock or other securities convertible into or exercisable or exchangeable for, or that represent the right to receive, Common Stock pursuant to a stock plan that is described in the Pricing Disclosure
Package, (F) the shares of Common Stock that may be issued pursuant to the Concurrent Offering, (G) any shares of Common Stock sold under the ATM Program; provided that no such issuance or sale shall occur until the earlier of (i) 60 days
after the date of this Agreement and (ii) the date on which the Company publicly announces its financial results for the fiscal year ending June 30, 2026, (H) the entry into an agreement providing for the issuance by the Company of Common
Stock or any security convertible into or exercisable for, or that represents the right to receive, Common Stock in connection with the acquisition by the Company or any of its subsidiaries of the securities, business, technology, property or other
assets of another person or entity or pursuant to an employee benefit plan assumed by the Company in connection with such acquisition, and the issuance of any such securities pursuant to any such agreement and (I) the entry into an agreement
providing for the issuance of Common Stock or any security convertible into or exercisable for, or that represents the right to receive, Common Stock in connection with joint ventures, commercial relationships or other strategic transactions, and
the issuance of any such securities pursuant to any such agreement; provided that in the case of clauses (H) and (I), the aggregate number of Common Stock that the Company may sell or issue or agree to sell or issue pursuant to clauses
(H) and (I) shall not exceed 10% of the total number of Common Stock issued and outstanding immediately following the completion of the transactions contemplated by this Agreement; provided, further, that in the case of clauses (H) and
(I), any such securities issued pursuant thereto shall be subject to transfer restrictions substantially similar to those contained in the lock-up agreements signed by the Company’s executive officers
and directors, and the Company shall enter stop transfer instructions with the Company’s transfer agent and registrar on such securities, which the Company agrees it will not waive or amend without the prior written consent of the
Representative;
(j)
The Company will prepare a final term sheet relating to the offering of the Shares, containing only information
that describes the final terms of the offering of the Shares in a form consented to by the Underwriters, and to file such final term sheet within the period required by Rule 433(d)(5)(ii) under the Securities Act following the date the final terms
have been established for the offering of the Shares.
(k)
The Company will advise the Underwriters promptly, and confirm such advice in writing, (i) when any
amendment to the Registration Statement has been filed or becomes effective prior to the Closing Date or the Additional Closing Date, as the case may be; (ii) when any supplement to the Prospectus or any amendment to the Prospectus or any free
writing prospectus has been filed prior to the Closing Date or the Additional Closing Date, as the case may be; (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the
Prospectus or the receipt of any comments from the Commission relating to the Registration Statement or any other request by the Commission for any additional information relating to the offering of the Shares prior to the Closing Date or the
Additional Closing Date, as the case may be; (iv) of the issuance by the Commission of any order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus or the Prospectus or
the initiation or threatening of any proceeding for that purpose or pursuant to Section 8A of the Securities Act; (v) of the occurrence of any event during the period that a prospectus is required to be delivered as a result of which the
Prospectus, the Pricing Disclosure Package or any free writing prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances existing when the Prospectus, the Pricing Disclosure Package or any such free writing prospectus is delivered to an underwriter, not misleading; and (vi) of the receipt by the
Company of any notice with respect to any suspension of the qualification of the Shares for offer and sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and the Company will use its reasonable best efforts
to prevent the issuance of any such order suspending the effectiveness of the Registration Statement, preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification of the Shares and, if any
such order is issued, will use its commercially reasonable efforts to obtain as soon as possible the withdrawal thereof.
(l)
The Company will qualify the Shares for offering and sale under the applicable securities laws of such states
and other jurisdictions as you may reasonably designate in consultation with the Company and maintain such qualifications in effect for a period of not less than a year from the date of the Prospectus; provided, however, that the Company
shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject. The Company will file such statements and reports as may be required by the laws of each jurisdiction in which the Shares have been qualified as above provided. The Company will
also supply you with such information as is necessary for the determination of the legality of the Shares for investment under the laws of such jurisdictions as you may request.
(m)
The Company will use its commercially reasonable efforts in cooperation with you to permit the Shares offered
and sold in transactions by you to be eligible for clearance and settlement through DTC.
(n)
The Company will apply the net proceeds received by it from the sale of the Shares in the manner specified in
the Pricing Disclosure Package and the Prospectus under the heading “Use of Proceeds.”
(o)
The Company will use its commercially reasonable efforts to list, subject to notice of issuance, the Shares on
the Nasdaq Global Select Market and to effect and maintain the listing of a number of Underlying Shares equal to the Maximum Number of Underlying Shares on Nasdaq.
(p)
Prior to the Closing Date or the Additional Closing Date, as the case may be, the Company will deposit the
relevant number of shares of Preferred Stock with the Depositary in accordance with the provisions of this Agreement and the Deposit Agreement and otherwise comply with this Agreement and the Deposit Agreement so that the relevant Shares will be
issued by the Depositary against receipt of such shares of Preferred Stock and delivered to the Underwriters against payment therefor at such Closing Date or such Additional Closing Date, as the case may be, with any transfer or similar taxes
payable in connection with the deposit and the issuance and delivery of Shares duly paid by the Company. The Company will reserve and keep available at all times for issuance, free of pre-emptive or similar
rights, a number of Underlying Shares equal to the Maximum Number of Underlying Shares (for the avoidance of doubt, such Underlying Shares may be Common Stock previously issued and held by the Company as treasury stock). Between the date hereof and
the Closing Date or the Additional Closing Date, as the case may be, the Company will not do or authorize any act or thing that would result in the adjustment of the “fixed conversion rates” (as defined in the Pricing Disclosure Package)
of the Preferred Stock.
(q)
The Company authorizes the Underwriters to make such public disclosure of information relating to stabilization
of the Shares as is required by applicable law and regulation.
7. Covenants of the Underwriters.
(a)
Each Underwriter severally covenants with the Company not to take any action that would result in the Company
being required to file with the Commission under Rule 433(d) a free writing prospectus prepared by or on behalf of such Underwriter that otherwise would not be required to be filed by the Company thereunder, but for the action of the Underwriter.
(b)
Each Underwriter that is not a U.S. registered broker-dealer, represents that if it sells Shares in the United
States it will do so through one or more U.S. registered broker-dealers as permitted by the Financial Industry Regulatory Authority regulations.
(c)
Each Underwriter hereby agrees that it will not offer, sell or deliver any of the Shares in any jurisdiction
outside the United States except under circumstances that will result in compliance with the applicable laws thereof, and that it will take at its own expense whatever action is required to permit its resale of the Shares in such jurisdictions. Each
Underwriter understands that no action has been taken to permit a public offering in any jurisdiction outside the United States where action would be required for such purpose. Each Underwriter agrees not to cause any advertisement of the Shares to
be published in any newspaper or periodical or posted in any public place and not to issue any circular relating to the Shares, except in any such case with the prior express written consent of the Company and the Representatives acting on behalf of
the Underwriters.
8. Conditions of the Obligations of the Underwriters. The obligations of the several
Underwriters to purchase and pay for the Firm Shares on the Closing Date or the Option Shares on the Additional Closing Date will be subject to the accuracy of the representations and warranties on the part of the Company herein, to the accuracy of
the statements of Company officers made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions precedent:
(a)
No order suspending the effectiveness of the Registration Statement shall be in effect, and no proceeding for
such purpose, pursuant to Rule 401(g)(2) or pursuant to Section 8A under the Securities Act shall be pending before or threatened by the Commission; the Prospectus and each Issuer Free Writing Prospectus shall have been timely filed with the
Commission under the Securities Act (in the case of an Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act) and in accordance with Section 6(a) hereof; and all requests by the Commission for additional
information shall have been complied with to the reasonable satisfaction of the Representatives.
(b)
The representations and warranties of the Company contained herein shall be true and correct on the date hereof
and on and as of the Closing Date or the Additional Closing Date, as the case may be; and the statements of the Company and its officers made in any certificates delivered pursuant to this Agreement shall be true and correct on and as of the Closing
Date or the Additional Closing Date, as the case may be.
(c)
No event or condition of a type described in Section 4(h) hereof shall have occurred or shall exist, which
event or condition is not described in the Pricing Disclosure Package (excluding any amendment or supplement thereto) and the Prospectus (excluding any amendment or supplement thereto) and the effect of which in the judgment of the Representatives
makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Shares on the Closing Date or the Additional Closing Date, as the case may be, on the terms and in the manner contemplated by this Agreement, the Pricing
Disclosure Package and the Prospectus.
(d)
The Representatives shall have received on and as of the Closing Date or the Additional Closing Date, as the
case may be, a certificate of the chief executive officer of the Company (i) confirming that such officer has carefully reviewed the Registration Statement, the Pricing Disclosure Package and the Prospectus and, to the knowledge of such
officer, the representations of the Company set forth in Sections 4(b) and 4(e) hereof are true and correct, and (ii) confirming that the other representations and warranties of the Company in this Agreement are true and correct and that the
Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date or the Additional Closing Date, as the case may be and (iii) to the effect set forth in
paragraphs (a), (b) and (c) above.
(e)
(i) On the date of this Agreement and on the Closing Date or the Additional Closing Date, as the case may be,
each of BDO USA, P.C. and Deloitte and Touche LLP shall have furnished to the Representatives, at the request of the Company, letters, dated the respective dates of delivery thereof and addressed to the Underwriters, in form and substance reasonably
satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial
information contained or incorporated by reference in each of the Registration Statement, the Pricing Disclosure Package and the Prospectus; provided, that the letter delivered on the Closing Date or the Additional Closing Date, as the case may be,
shall use a “cut-off” date no more than two business days prior to such Closing Date or such Additional Closing Date, as the case may be.
(f)
Freshfields US LLP, counsel for the Company, shall have furnished to the Representatives, at the request of the
Company, their written opinion and 10b-5 statement, dated the Closing Date or the Additional Closing Date, as the case may be, and addressed to the Underwriters, in form and substance reasonably satisfactory
to the Representatives.
(g)
The Representatives shall have received on and as of the Closing Date or the Additional Closing Date, as the
case may be, an opinion and 10b-5 statement, addressed to the Underwriters, of Latham & Watkins LLP, counsel for the Underwriters, with respect to such matters as the Representatives may reasonably
request, and such counsel shall have received such documents and information as they may reasonably request to enable them to pass upon such matters.
(h)
No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or
issued by any federal, state or foreign governmental or regulatory authority that would, as of the Closing Date or the Additional Closing Date, as the case may be, prevent the issuance or sale of the Shares by the Company; and no injunction or order
of any federal, state or foreign court shall have been issued that would, as of the Closing Date or the Additional Closing Date, as the case may be, prevent the issuance or sale of the Shares by the Company.
(i)
The Representatives shall have received on and as of the Closing Date or the Additional Closing Date, as the
case may be, satisfactory evidence of the good standing of the Company and its material subsidiaries in their respective jurisdictions of organization and their good standing in such other jurisdictions as the Representatives may reasonably request,
in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(j)
[reserved]
(k)
The Certificate of Designations shall have been filed with the Secretary of State of the State of Delaware and
shall have become effective.
(l)
The “lock-up” agreements, each substantially in the form of
Schedule C to this Agreement, between you and officers and directors of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be full
force and effect on the Closing Date or the Additional Closing Date, as the case may be.
(m)
The Company and the Depositary shall have executed and delivered the Deposit Agreement, and you shall have
received a copy thereof.
(n)
Prior to the Closing Date or the Additional Closing Date, as the case may be, the Company shall have deposited
the relevant number of shares of Preferred Stock with the Depositary in accordance with the provisions of this Agreement and the Deposit Agreement and otherwise complied with this Agreement and the Deposit Agreement so that the relevant Shares will
be issued by the Depositary against receipt of such shares of Preferred Stock and delivered to the Underwriters against payment therefor at such Closing Date or such Additional Closing Date, as the case may be.
(o)
On or prior to the Closing Date or the Additional Closing Date, as the case may be, the Company shall have
furnished to the Representatives such further certificates and documents as the Representatives may reasonably request.
All opinions, letters, certificates and evidence mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriters.
9.
Indemnification.
(a)
The Company agrees to indemnify and hold harmless each Underwriter, its affiliates, directors and officers and
each person, if any, who controls such Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any and all losses, claims, damages and liabilities (including, without
limitation, reasonable legal fees and expenses incurred in connection with any suit, action or proceeding or any claim asserted, as such fees and expenses are incurred), joint or several, that arise out of, or are based upon, (i) any untrue
statement or alleged untrue statement of a material fact contained in the Registration Statement or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the
statements therein, not misleading, or (ii) any untrue statement or
alleged untrue statement of a material fact contained in the Prospectus (or any amendment or supplement thereto), any Preliminary Prospectus, any Issuer Free Writing Prospectus, any “issuer
information” filed or required to be filed pursuant to Rule 433(d) under the Securities Act, any Written Testing-the-Waters Communication, any road show as defined
in Rule 433(h) under the Securities Act (a “road show”) or any Pricing Disclosure Package (including any Pricing Disclosure Package that has subsequently been amended), or caused by any omission or alleged omission to state therein a
material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, in each case except insofar as such losses, claims, damages or liabilities arise out of, or are based upon,
any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives
expressly for use therein, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in paragraph (c) below.
(b)
[Reserved]
(c)
Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, its directors,
its officers who signed the Registration Statement and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the indemnity set forth in
paragraph (a) above, but only with respect to, any losses, claims, damages or liabilities that arise out of, or are based upon, any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity
with any information relating to such Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Registration Statement, the Prospectus (or any amendment or supplement thereto), any
Preliminary Prospectus, any Issuer Free Writing Prospectus, any Written Testing-the-Waters Communication, any road show or any Pricing Disclosure Package (including any
Pricing Disclosure Package that has subsequently been amended), it being understood and agreed upon that the only such information furnished by the Underwriters consists of the following information in the Prospectus under the caption
“Underwriting”: the concession and reallowance figures appearing in the sixth paragraph and the information contained in the fourteenth, fifteenth and sixteenth paragraph relating to stabilization by the Underwriters.
(d)
If any suit, action, proceeding (including any governmental or regulatory investigation), claim or demand shall
be brought or asserted against any person in respect of which indemnification may be sought pursuant to the preceding paragraphs of this Section 9, such person (the “Indemnified Person”) shall promptly notify the person
against whom such indemnification may be sought (the “Indemnifying Person”) in writing of the commencement thereof; but the omission so to notify the Indemnifying Person shall not relieve it from any liability which it may have to
any Indemnified Person otherwise than under this Section 9. In case any such action shall be brought against any Indemnified Person and it shall notify the Indemnifying Person of the commencement thereof, the Indemnifying Person shall be
entitled to participate therein and, to the extent that it shall wish, jointly with any other Indemnifying Person similarly notified, to assume the defense thereof, with counsel satisfactory to such Indemnified Person (who shall not, except with the
consent of the Indemnified Person, be counsel to the Indemnifying Person), and, after notice from the Indemnifying Person to such Indemnified Person of its election so to assume the defense thereof, the Indemnifying Person shall not be liable to
such Indemnified Person under such subsection for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such Indemnified Person, in connection with the defense thereof other than reasonable costs of
investigation. No Indemnifying Person shall, without the written consent of the Indemnified Person, effect the settlement or compromise of, or consent to the entry of any judgment with respect
to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder (whether or not the Indemnified Person is an actual or potential party to
such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the Indemnified Person from all liability arising out of such action or claim and (ii) does not include a statement as to, or an
admission of, fault, culpability or a failure to act, by or on behalf of any Indemnified Person. In any such proceeding, any Indemnified Person shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the
expense of such Indemnified Person unless (i) the Indemnifying Person and the Indemnified Person shall have mutually agreed to the contrary; (ii) the Indemnifying Person has failed within a reasonable time to retain counsel reasonably
satisfactory to the Indemnified Person; (iii) the Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or in addition to those available to the Indemnifying Person; or
(iv) the named parties in any such proceeding (including any impleaded parties) include both the Indemnifying Person and the Indemnified Person and representation of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them.
(e)
If the indemnification provided for in paragraphs (a) or (c) above is unavailable to an Indemnified Person
or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then each Indemnifying Person under such paragraph, in lieu of indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or
payable by such Indemnified Person as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company, on the one hand, and the Underwriters on the other,
from the offering of the Shares or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) but also the
relative fault of the Company, on the one hand, and the Underwriters on the other, in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations.
The relative benefits received by the Company, on the one hand, and the Underwriters on the other, shall be deemed to be in the same respective proportions as the net proceeds (before deducting expenses) received by the Company from the sale of the
Shares and the total underwriting discounts and commissions received by the Underwriters in connection therewith, in each case as set forth in the table on the cover of the Prospectus, bear to the aggregate offering price of the Shares. The relative
fault of the Company , on the one hand, and the Underwriters on the other, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company or by the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f)
The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to
paragraph (e) above were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in
paragraph (e) above. The amount paid or payable by an Indemnified Person as a result of the losses, claims, damages and liabilities referred to in paragraph (e) above shall be deemed to include, subject to the limitations set forth above,
any legal or other expenses incurred by such Indemnified Person in connection with any such action or claim. Notwithstanding the provisions of paragraphs (e) and (f), in no event shall an Underwriter be required to contribute any amount in
excess of the amount by which the total underwriting discounts and commissions received by such Underwriter with respect to the offering of the Shares exceeds the amount of any damages that such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations to contribute pursuant to paragraphs (e) and (f) are several in proportion to their respective purchase obligations hereunder and not joint.
(g)
The remedies provided for in this Section 9 paragraphs (a) through (f) are not exclusive and shall
not limit any rights or remedies which may otherwise be available to any Indemnified Person at law or in equity.
10.
Effectiveness of Agreement. This Agreement shall become effective as of the date first written above.
11. Default of
Underwriters. If, on the Closing Date or the Additional Closing Date, as the case may be, any Underwriter or Underwriters default in their obligations to purchase the Shares that it has agreed to purchase hereunder on such date and the aggregate
principal amount of the Shares which such defaulting Underwriter or Underwriters agreed but failed to purchase is 10% or less of the aggregate number Shares to be purchased by all Underwriters on such date, the
non-defaulting Underwriters may make arrangements satisfactory to the Company for the purchase of such Shares by other persons, including any of the Underwriters, but if no such arrangements are made by the
Closing Date or the Additional Closing Date, as the case may be, the non-defaulting Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the Shares
which such defaulting Underwriters agreed but failed to purchase on such date. If any Underwriter or Underwriters so default and the aggregate number of Shares with respect to which such default or defaults occur is more than the above percentage
and arrangements reasonably satisfactory to you and the Company for the purchase of such Shares by other persons are not made within seventy-two hours after such default, this Agreement or, with respect to any
Additional Closing Date, the obligation of the Underwriters to purchase Shares on the Additional Closing Date, as the case may be, will terminate without liability on the part of any non-defaulting Underwriter
or the Company, except as provided in Section 15. In the event that any Underwriter or Underwriters default in their obligation to purchase Shares hereunder, the Company may, by prompt written notice to the
non-defaulting Underwriters, postpone the Closing Date or the Additional Closing Date, as the case may be, for a period of not more than seven full business days in order to effect whatever changes may thereby
be made necessary in the Registration Statement or the Prospectus or in any other documents, and the Company will promptly file any amendments to the Registration Statement or supplements to the Applicable Time Prospectus or the Prospectus which may
thereby be made necessary. As used in this Agreement, the term “Underwriter” includes any person substituted for a Underwriter under this Section. Nothing herein will relieve a defaulting Underwriter from liability for its default.
12. Termination. This Agreement may be terminated (or in the event of any Option Shares to be purchased on an Additional Closing Date,
the obligation of the Underwriters to purchase such Option Shares may be terminated) in the absolute discretion of the Representatives, by notice to the Company, if after the execution and delivery of this Agreement and on or prior to the Closing
Date or any Additional Closing Date, as the case may be, (i) trading generally shall have been suspended or materially limited on or by any of the New York Stock Exchange or the Nasdaq Stock Market; (ii) trading of any securities issued or
guaranteed by the Company shall have been suspended on any exchange or in any over-the-counter market; (iii) a general moratorium on commercial banking activities
shall have been declared by federal or New York State authorities or a material disruption in commercial banking or securities settlement clearance services in the United States; or (iv) there shall have occurred any outbreak or escalation of
hostilities or any change in financial markets or any calamity or crisis, either within or outside the United States, that, in the judgment of the Representatives, is material and adverse and makes it impracticable or inadvisable to proceed with the
offering, sale or delivery of the Shares on the Closing Date or the Additional Closing Date, as the case may be, on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus.
13. Payment of Expenses.
(a) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated, the Company will pay or
cause to be paid all costs and expenses incident to the performance of its obligations hereunder, including without limitation, (i) the costs incident to the authorization, issuance, sale, preparation and delivery of the Shares and any taxes
payable in that connection; (ii) the costs incident to the preparation, printing and filing under the Securities Act of the Registration Statement, the Preliminary Prospectus, any Issuer Free Writing Prospectus, any Pricing Disclosure Package
and the Prospectus (including all exhibits, amendments and supplements thereto) and the distribution thereof; (iii) the fees and expenses of the Company’s counsel and independent accountants; (iv) the reasonable and documented fees
and expenses incurred in connection with the registration or qualification and determination of eligibility for investment of the Shares under the laws of such jurisdictions as the Representatives may designate and the preparation, printing and
distribution of a Blue Sky Memorandum (including the reasonable and documented related fees and expenses of counsel for the Underwriters); (v) the cost of preparing stock certificates; (vi) the costs and charges of any transfer agent and
any registrar; (vii) all expenses and application fees incurred in connection with any filing with, and clearance of the offering by, FINRA (including the reasonable related fees and expenses of counsel for the Underwriters); (viii) all
expenses incurred by the Company in connection with any “road show” presentation to potential investors; and (ix) all expenses and application fees related to the listing of the Shares on the Nasdaq.
(b) If (i) this Agreement is terminated pursuant to Section 12(ii), (ii) the Company for any reason fails to tender the Shares for
delivery to the Underwriters or (iii) the Underwriters decline to purchase the Shares for any reason permitted under this Agreement (other than pursuant to Section 11), the Company agrees to reimburse the Underwriters for all out-of-pocket costs and expenses (including the fees and expenses of their counsel) reasonably incurred by the Underwriters in connection with this Agreement and the offering
contemplated hereby. For the avoidance of doubt, it is understood that the Company shall not pay or reimburse any costs, fees or expenses incurred by any Underwriter that defaults on its obligations to purchase the Shares.
14. Persons Entitled to Benefit of Agreement. This Agreement shall inure to the benefit of and be binding upon the parties hereto and
their respective successors and the officers and directors and any controlling persons referred to herein, and the affiliates of each Underwriter referred to in Section 9 hereof. Nothing in this Agreement is intended or shall be construed to
give any other person any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision contained herein. No purchaser of Shares from any Underwriter shall be deemed to be a successor merely by reason of such
purchase.
15. Survival. The respective indemnities, rights of contribution, representations, warranties and agreements of
the Company and the Underwriters contained in this Agreement or made by or on behalf of the Company or the Underwriters pursuant to this Agreement or any certificate delivered pursuant hereto shall survive the delivery of and payment for the Shares
and shall remain in full force and effect, regardless of any termination of this Agreement or any investigation made by or on behalf of the Company or the Underwriters or the directors, officers, controlling persons or affiliates referred to in
Section 9 hereof.
16. Certain Defined Terms. For purposes of this Agreement, (a) except where otherwise expressly
provided, the term “affiliate” has the meaning set forth in Rule 405 under the Securities Act; (b) the term “business day” means any day other than a day on which banks are permitted or required to be closed in New York
City; and (c) the term “subsidiary” has the meaning set forth in Rule 405 under the Securities Act.
17. Compliance with USA Patriot Act. In accordance with the requirements of the USA
Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the Underwriters are required to obtain, verify and record information that identifies its clients, including the Company,
which information may include the name and address of its clients, as well as other information that will allow the Underwriter to properly identify its clients.
18. Miscellaneous.
(a)
Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed or transmitted and confirmed by any standard form of telecommunication. Notices to the Underwriters shall be
given to the Representatives at J.P. Morgan Securities LLC, 270 Park Avenue, New York, New York 10017 (fax: (212) 622-8358); Attention: Equity Syndicate Desk, Goldman Sachs & Co. LLC, 200 West Street,
New York, New York 10282, Attention: Registration Department, and Citigroup Global Markets Inc. at 388 Greenwich Street, New York, New York 10013 Attention: General Counsel, facsimile number 1-646-291-1469. Notices to the Company shall be given to it at Super Micro Computer, Inc., 980 Rock Avenue, San Jose, California 95131; Attention: Chief Financial
Officer.
(b) Governing Law. This Agreement and any claim, controversy or dispute arising under or related to this Agreement shall
be governed by and construed in accordance with the laws of the State of New York.
(c) Waiver of Jury Trial. Each of the parties
hereto hereby waives any right to trial by jury in any suit or proceeding arising out of or relating to this Agreement.
(d)
Recognition of the U.S. Special Resolution Regimes.
(i) In the event that any Underwriter is a Covered Entity and
becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be
effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.
(ii) In the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate of such Underwriter becomes subject to a
proceeding under a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Underwriter are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S.
Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States.
As used in this Section 18(d):
“BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with,
12 U.S.C. § 1841(k).
“Covered Entity” means any of the following:
(i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
(ii) a “covered bank” as that term is defined in, and interpreted in accordance
with, 12 C.F.R. § 47.3(b); or
(iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12
C.F.R. § 382.2(b).
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with,
12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“U.S. Special Resolution Regime” means each of (i) the
Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
(e) Counterparts. This Agreement may be signed in counterparts (which may include counterparts delivered by any standard form of
telecommunication), each of which shall be an original and all of which together shall constitute one and the same instrument.
(f)
Amendments or Waivers. No amendment or waiver of any provision of this Agreement, nor any consent or approval to any departure therefrom, shall in any event be effective unless the same shall be in writing and signed by the parties hereto.
(g) Headings. The headings herein are included for convenience of reference only and are not intended to be part of, or to affect
the meaning or interpretation of, this Agreement.
[Signature page follows]
If the foregoing is in accordance with your understanding, please indicate your acceptance of this Agreement
by signing in the space provided below.
Very truly yours,
Super Micro Computer, Inc.
By:
/s/ Charles Liang
Name: Charles Liang
Title: President and Chief Executive Officer
[Signature Page to Underwriting Agreement – Mandatory Preferred]
Accepted as of the date first written above for themselves and on behalf of the several Underwriters listed
in Schedule A hereto.
J.P. Morgan Securities LLC
By:
/s/ Luis Garcia
Name: Luis Garcia
Title: Vice President
Goldman Sachs & Co. LLC
By:
/s/ Jan Debeuckelaer
Name: Jan Debeuckelaer
Title: Managing Director
[Signature Page to
Underwriting Agreement – Mandatory Preferred]
SCHEDULE A
Underwriter
Principal
Amount of
Firm Securities
to be
Purchased
J.P. Morgan Securities LLC
19,423,077
Goldman Sachs & Co. LLC
19,423,077
Citigroup Global Markets Inc.
11,653,846
Credit Agricole Securities (USA) Inc.
6,300,000
HSBC Securities (USA) Inc.
3,500,000
MUFG Securities Americas Inc.
3,500,000
TD Securities (USA) LLC
3,150,000
BNP Paribas Securities Corp.
2,800,000
BMO Capital Markets Corp.
1,400,000
KeyBanc Capital Markets Inc.
1,400,000
Scotia Capital (USA) Inc.
1,400,000
Needham & Company, LLC
350,000
Loop Capital Markets LLC
350,000
Northland Securities, Inc.
140,000
Rosenblatt Securities Inc.
140,000
CJS Securities, Inc.
70,000
Total
75,000,000
Schedule B
1.
Issuer Free Writing Prospectus filed with the SEC on June 9, 2026.
2.
Final Term Sheet included as Schedule B-1 hereto.
Schedule B-1
TERM SHEET
[Attached]
Free Writing Prospectus
Filed
pursuant to Rule 433
Relating to the
Preliminary Prospectus Supplements each dated June 10, 2026 to the
Prospectus dated June 9, 2026
Registration No. 333-296641
PRICING TERM SHEET
June 10, 2026
Super Micro Computer, Inc.
Concurrent Offerings of
45,454,545 Shares of Common Stock, par value $0.001 per Share (the “Common Stock”)
(the “Common Stock Offering”)
and
75,000,000
Depositary Shares (the “Depositary Shares”)
Each Representing a 1/20th Interest in a Share of
7.00% Series A Mandatory Convertible Preferred Stock
(the “Depositary Shares Offering”)
The information in this pricing term sheet relates only to the Common Stock Offering and the Depositary Shares Offering and should be read together with
(i) the preliminary prospectus supplement dated June 10, 2026 relating to the Common Stock Offering (the “Common Stock Preliminary Prospectus Supplement”), including the documents incorporated by reference therein,
(ii) the preliminary prospectus supplement dated June 10, 2026 relating to the Depositary Shares Offering (the “Depositary Shares Preliminary Prospectus Supplement”), including the documents incorporated by reference therein
and (iii) the related base prospectus dated June 9, 2026, each filed pursuant to Rule 424(b) under the Securities Act of 1933, as amended, Registration No. 333-296641. Neither the Common Stock
Offering nor the Depositary Shares Offering is contingent on the successful completion of the other offering. Terms not defined in this pricing term sheet have the meanings given to such terms in the Common Stock Preliminary Prospectus Supplement or
the Depositary Shares Preliminary Prospectus Supplement, as applicable. All references to dollar amounts are references to U.S. dollars.
Issuer
Super Micro Computer, Inc.
Ticker / Exchange for Common Stock
SMCI / The Nasdaq Global Select Market (“Nasdaq”).
Pricing Date
June 10, 2026.
Trade Date
June 11, 2026 (“T”).
Expected Settlement Date for the Common Stock Offering
June 12, 2026 (T+1).
Expected Settlement Date for the Depositary Shares Offering
June 15, 2026 (T+2), which is the second business day following the trade date for the Depositary Shares (such settlement cycle being referred to as “T+2”). Under Rule 15c6-1
under the Securities Exchange Act of 1934, as amended, trades in the secondary market generally are required to settle in one business day, unless the parties to any such trade expressly agree otherwise. Accordingly, purchasers who wish to trade the
Depositary Shares prior to the business day preceding the expected settlement date will be required, by virtue of the fact that the Depositary Shares initially will settle T+2, to specify an alternative settlement cycle at the time of any such trade
to prevent a failed settlement. Purchasers of the Depositary Shares who wish to trade the Depositary Shares prior to the business day preceding the expected settlement date should consult their own advisors.
Use of Proceeds
The Issuer expects the net proceeds from (i) the Common Stock Offering to be approximately $1.22 billion (or approximately $1.40 billion if the underwriters of the Common Stock Offering exercise in full their option
to purchase additional common stock) and (ii) the Depositary Shares Offering to be approximately $3.68 billion (or approximately $4.23 billion if the underwriters of the Depositary Shares Offering exercise in full their over-allotment
option to purchase additional Depositary Shares), in each case, after deducting the applicable underwriting discounts and the Issuer’s estimated offering expenses totaling approximately $2.58 million. The Issuer intends to use the net
proceeds from the Common Stock Offering and the Depositary Shares Offering to fund the purchase of components to satisfy the approximately $39 billion of orders that the Issuer has received in recent weeks for its advanced AI servers, including
its Data Center Building Block Solutions, from more than 20 customers, that the Issuer plans to fulfill in
future quarters. The Issuer may also use a portion of the net proceeds from Common Stock Offering and the Depositary Shares Offering for other general corporate purposes, which may include repayment of debt, additions to working
capital and capital expenditures.. See “Use of Proceeds” in each of the Common Stock Preliminary Prospectus Supplement and the Depositary Shares Preliminary Prospectus Supplement.
The closing of the Common Stock Offering and the closing of the Depositary Shares Offering are not contingent upon each other.
Common Stock Offering
Common Stock Offered
45,454,545 shares of Common Stock.
Option for Underwriters to Purchase Additional Shares of Common Stock
6,818,181 additional shares of Common Stock.
Public Offering Price of the Common Stock
$27.50 per share of Common Stock.
Nasdaq Last Reported Sale Price of the Common Stock on June 10, 2026
$29.27 per share of Common Stock.
CUSIP / ISIN for the Common Stock
86800U302 / US86800U3023.
Joint Book-Running Managers
J.P. Morgan Securities LLC
Goldman
Sachs & Co. LLC
Citigroup Global Markets Inc.
Joint Bookrunners
Credit Agricole Securities (USA) Inc.
HSBC Securities (USA) Inc.
MUFG Securities Americas Inc.
TD Securities (USA) LLC
BNP Paribas Securities Corp.
BMO Capital Markets Corp.
KeyBanc Capital Markets Inc.
Scotia Capital (USA) Inc.
Lead Manager
Needham & Company, LLC
Co-Managers
Loop Capital Markets LLC
Northland Securities, Inc.
Rosenblatt Securities Inc.
CJS Securities, Inc.
Depositary Shares Offering
Depositary Shares Offered
75,000,000 Depositary Shares, each of which represents a 1/20th interest in a share of the Issuer’s 7.00% Series A Mandatory Convertible Preferred Stock (the “Mandatory Convertible Preferred Stock”). At settlement
of the Depositary Shares Offering, the Issuer will issue 3,750,000 shares of Mandatory Convertible Preferred Stock, subject to the underwriters’ over-allotment option.
Over-allotment Option for Underwriters to Purchase Additional Depositary Shares
11,250,000 additional Depositary Shares (corresponding to 562,500 additional shares of the Mandatory Convertible Preferred Stock), solely to cover over-allotments.
Public Offering Price of the Depositary Shares
$50.00 per Depositary Share.
Dividends
7.00% of the liquidation preference of $1,000 per share of the Mandatory Convertible Preferred Stock per annum. Dividends will accumulate from the Settlement Date for the Depositary Shares Offering, whether or not in any dividend
period or periods there have been funds legally available for the payment of such dividends and, to the extent that the Issuer is legally permitted to pay dividends and its board of directors, or an authorized committee thereof, declares a dividend
payable with respect to the Mandatory Convertible Preferred Stock, the Issuer will pay such dividends in cash or, subject to certain limitations, by delivery of shares of Common Stock or through any combination of cash and shares of Common Stock, as
determined by the Issuer’s board of directors in its sole discretion, on each Dividend Payment Date; provided that any unpaid dividends will continue to accumulate.
The expected dividend payable on the first Dividend Payment Date is approximately $14.78 per share of Mandatory Convertible Preferred Stock (equivalent to approximately $0.74 per Depositary Share). Each subsequent dividend is
expected to be $17.50 per share of Mandatory Convertible Preferred Stock (equivalent to $0.875 per Depositary Share).
Dividend Record Dates
The February 15, May 15, August 15 and November 15 immediately preceding the relevant Dividend Payment Date.
Dividend Payment Dates
March 1, June 1, September 1 and December 1 of each year, commencing on, and including, September 1, 2026 and ending on, and including, June 1, 2029.
Mandatory Conversion Date
The second business day immediately following the last trading day of the 20 consecutive trading day period beginning on, and including, the 21st scheduled trading day immediately preceding June 1, 2029.
Initial Price
Equal to $1,000, divided by the Maximum Conversion Rate, rounded to the nearest $0.0001, which initially is $27.4997.
Threshold Appreciation Price
Equal to $1,000, divided by the Minimum Conversion Rate, rounded to the nearest $0.0001, which initially is $32.9989 and represents a premium of approximately 20.0% over the Initial Price.
Floor Price
$9.625 (approximately 35.0% of the Initial Price), subject to adjustment as described in the Depositary Shares Preliminary Prospectus Supplement.
Conversion Rate per Share of Mandatory Convertible Preferred Stock
The conversion rate for each share of Mandatory Convertible Preferred Stock will not be more than 36.3640 shares of Common Stock and not less than 30.3040 shares of Common Stock (respectively, the “Maximum Conversion
Rate” and “Minimum Conversion Rate”), depending on the applicable market value (as defined in the Depositary Shares Preliminary Prospectus Supplement) of the Common Stock, as described below and subject to certain anti-dilution
adjustments. Correspondingly, the conversion rate per Depositary Share will be not more than 1.8182 shares of Common Stock and not less than 1.5152 shares of Common Stock.
The following table illustrates the conversion rate per share of the Mandatory Convertible Preferred Stock, subject to certain anti-dilution adjustments described in the Depositary Shares Preliminary Prospectus Supplement, based on
the applicable market value of the Common Stock:
Applicable market value of our
Common Stock
Conversion Rate per Share of
Mandatory Convertible Preferred
Stock
Greater than the threshold appreciation price
®
30.3040 shares of common stock
Equal to or less than the threshold appreciation price but greater than or equal to the initial price
®
Between 30.3040 and 36.3640 shares of common stock, determined by dividing $1,000 by the
applicable market value
Less than the initial price
®
36.3640 shares of common stock
The following table illustrates the conversion rate per Depositary Share, subject to certain anti-dilution adjustments described in the Depositary Shares Preliminary Prospectus Supplement, based on the applicable market
value of the Common Stock:
Applicable market value of our
Common Stock
Conversion Rate per Depositary
Share
Greater than the threshold appreciation price
®
1.5152 shares of common stock
Equal to or less than the threshold appreciation price but greater than or equal to the initial price
®
Between 1.5152 and 1.8182 shares of common stock, determined by dividing $50 by the applicable
market value
Less than the initial price
®
1.8182 shares of common stock
Optional Conversion
Other than during a fundamental change conversion period (as defined in the Depositary Shares Preliminary Prospectus Supplement), at any time prior to June 1, 2029, a holder of Mandatory Convertible Preferred Stock
may elect to convert such holder’s shares of Mandatory Convertible Preferred Stock, in whole or in part, at the Minimum Conversion Rate of 30.3040 shares of Common Stock per share of Mandatory Convertible Preferred Stock (equivalent to 1.5152
shares of Common Stock per Depositary Share), subject to adjustment as described in the Depositary Shares Preliminary Prospectus Supplement. Because each Depositary Share represents a 1/20th fractional interest in a share of Mandatory Convertible
Preferred Stock, a holder of Depositary Shares may convert its Depositary Shares only in lots of 20 Depositary Shares.
Fundamental Change
If a fundamental change (as defined in the Depositary Shares Preliminary Prospectus Supplement) occurs on or prior to June 1, 2029, holders of the Mandatory Convertible Preferred Stock will have the right to convert
their shares of Mandatory Convertible Preferred Stock, in whole or in part, into shares of Common Stock at the fundamental change conversion rate (as defined in the Depositary Shares Preliminary Prospectus Supplement) during the period beginning on,
and including, the effective date (as defined in the Depositary Shares Preliminary Prospectus Supplement) of such fundamental change and ending on, and including, the earlier of (a) the date that is 20 calendar days after such effective date
(or, if later, the date that is 20 calendar days after holders receive notice of such fundamental change) and (b) June 1, 2029. For the avoidance of doubt, the period described in the immediately preceding sentence may not end on a date
that is later than June 1, 2029.
The following table sets forth the fundamental change conversion rate per share of Mandatory Convertible Preferred Stock based on the effective date of the fundamental change and the stock price (as defined in the
Depositary Shares Preliminary Prospectus Supplement) in the fundamental change:
Stock Price
Effective Date
$11.00
$13.00
$15.00
$17.00
$19.00
$21.00
$23.00
$27.50
$30.00
$33.00
$40.00
$50.00
$60.00
$70.00
June 15, 2026
32.7920
32.4540
32.1700
31.9300
31.7240
31.5460
31.3920
31.1120
30.9880
30.8600
30.6320
30.4160
30.2740
30.1780
June 1, 2027
33.7500
33.3500
32.9960
32.6880
32.4160
32.1800
31.9720
31.5880
31.4180
31.2400
30.9280
30.6360
30.4520
30.3300
June 1, 2028
35.1580
34.7460
34.3300
33.9300
33.5520
33.2040
32.8880
32.2840
32.0080
31.7240
31.2280
30.7940
30.5460
30.4020
June 1, 2029
36.3640
36.3640
36.3640
36.3640
36.3640
36.3640
36.3640
36.3640
33.3340
30.3040
30.3040
30.3040
30.3040
30.3040
The exact stock price and effective date may not be set forth on the table, in which case:
•
if the stock price is between two stock prices on the table or the effective date is between two effective dates
on the table, the fundamental change conversion rate per share of Mandatory Convertible Preferred Stock will be determined by straight-line interpolation between the fundamental change conversion rates per share of Mandatory Convertible Preferred
Stock set forth for the higher and lower stock prices and the earlier and later effective dates, as applicable, based on a 365-day or 366-day year, as applicable;
•
if the stock price is in excess of $70.00 per share (subject to adjustment in the same manner as the stock prices
in the column headings of the table above as described in the Depositary Shares Preliminary Prospectus Supplement), then the fundamental change conversion rate per share of Mandatory Convertible Preferred Stock will be the Minimum Conversion Rate;
and
•
if the stock price is less than $11.00 per share (subject to adjustment in the same manner as the stock prices in
the column headings of the table above as described in the Depositary Shares Preliminary Prospectus Supplement), then the fundamental change conversion rate per share of Mandatory Convertible Preferred Stock will be the Maximum Conversion Rate.
The following table sets forth the fundamental change conversion rate per Depositary Share based on the
effective date of the fundamental change and the stock price in the fundamental change:
Stock Price
Effective Date
$11.00
$13.00
$15.00
$17.00
$19.00
$21.00
$23.00
$27.50
$30.00
$33.00
$40.00
$50.00
$60.00
$70.00
June 15, 2026
1.6396
1.6227
1.6085
1.5965
1.5862
1.5773
1.5696
1.5556
1.5494
1.5430
1.5316
1.5208
1.5137
1.5089
June 1, 2027
1.6875
1.6675
1.6498
1.6344
1.6208
1.6090
1.5986
1.5794
1.5709
1.5620
1.5464
1.5318
1.5226
1.5165
June 1, 2028
1.7579
1.7373
1.7165
1.6965
1.6776
1.6602
1.6444
1.6142
1.6004
1.5862
1.5614
1.5397
1.5273
1.5201
June 1, 2029
1.8182
1.8182
1.8182
1.8182
1.8182
1.8182
1.8182
1.8182
1.6667
1.5152
1.5152
1.5152
1.5152
1.5152
The exact stock price and effective date may not be set forth on the table, in which case:
•
if the stock price is between two stock prices on the table or the effective date is between two effective dates
on the table, the fundamental change conversion rate per Depositary Share will be determined by straight-line interpolation between the fundamental change conversion rates per Depositary Share set forth for the higher and lower stock prices and the
earlier and later effective dates, as applicable, based on a 365-day or 366-day year, as applicable;
•
if the stock price is in excess of $70.00 per share (subject to adjustment in the same manner as the stock prices
in the column headings of the table above as described in the Depositary Shares Preliminary Prospectus Supplement), then the fundamental change conversion rate per Depositary Share will be the Minimum Conversion Rate, divided by 20; and
•
if the stock price is less than $11.00 per share (subject to adjustment in the same manner as the stock prices in
the column headings of the table above as described in the Depositary Shares Preliminary Prospectus Supplement), then the fundamental change conversion rate per Depositary Share will be the Maximum Conversion Rate, divided by 20.
Because each Depositary Share represents a 1/20th fractional interest in a share of Mandatory Convertible Preferred Stock, a holder of
Depositary Shares may convert its Depositary Shares upon the occurrence of a fundamental change only in lots of 20 Depositary Shares.
Discount Rate for Purposes of Fundamental Change Dividend
Make-Whole Amount
The discount rate for purposes of determining the fundamental change dividend make-whole amount (as defined in the Depositary Shares Preliminary Prospectus Supplement) is 8.90% per annum.
Listing
The Issuer intends to apply to list the Depositary Shares on the Nasdaq Global Select Market under the symbol “SMCIP.” No assurance can be given that the Depositary Shares will be listed or that any such application for
listing will be approved.
CUSIP / ISIN for
the Depositary Shares
86800U 500 / US86800U5002.
CUSIP / ISIN for the Mandatory Convertible Preferred
Stock
86800U 609 / US86800U6091.
Joint Book-Running
Managers
J.P. Morgan Securities LLC
Goldman Sachs & Co. LLC
Citigroup Global Markets Inc.
Joint Bookrunners
Credit Agricole Securities (USA) Inc.
HSBC Securities (USA) Inc.
MUFG Securities Americas Inc.
TD Securities (USA) LLC
BNP Paribas Securities Corp.
BMO Capital Markets Corp.
KeyBanc Capital Markets Inc.
Scotia Capital (USA) Inc.
Lead Manager
Needham & Company, LLC
Co-Managers
Loop Capital Markets LLC
Northland Securities, Inc.
Rosenblatt Securities Inc.
CJS Securities, Inc.
***
The disclosure in each of the Common Stock Preliminary Prospectus Supplement and the Depositary Shares Preliminary Prospectus Supplement under the captions
“Summary—Recent Developments” is amended and supplemented as follows and conforming changes will be made throughout the Common Stock Preliminary Prospectus Supplement and the Depositary Shares Preliminary Prospectus Supplement to
reflect the developments described below:
Recent Developments
On June 10, 2026, the Issuer entered into a distribution agreement with J.P. Morgan Securities LLC, Goldman Sachs & Co. LLC and Citigroup Global Markets Inc., as managers, pursuant to which the Issuer may offer and
sell from time to time its common stock up to a maximum aggregate offering amount of $1.25 billion. Such sales are not expected to commence until the third quarter of 2026, subject to market conditions and other factors.
On June 10, 2026, the Issuer entered into Amendment No. 2 to the credit agreement originally dated as of December 29, 2025, by and among the Company, as lead borrower, the various financial institutions from time to
time party thereto, as lenders, and JPMorgan Chase Bank, N.A., as administrative agent and collateral agent.
* * *
The Issuer has filed a registration statement (including a prospectus and related preliminary prospectus
supplements for the offerings) with the U.S. Securities and Exchange Commission (the “SEC”) for the offerings to which this communication relates. Before you invest, you should read the Common Stock Preliminary Prospectus Supplement or
the Depositary Shares Preliminary Prospectus Supplement, as the case may be, the related base prospectus in that registration statement and the other documents the Issuer has filed with the SEC for more complete information about the Issuer and the
Common Stock Offering and the Depositary Shares Offering. You may get these documents and, when available, the final prospectus supplements related to each offering (each a “Final Prospectus Supplement”) for free by visiting EDGAR on the
SEC’s website at http://www.sec.gov. Alternatively, copies may be obtained by contacting any of the representatives of the underwriters: (i) J.P. Morgan Securities LLC, c/o Broadridge Financial Solutions, 1155 Long Island Avenue,
Edgewood, NY 11717 or by email at prospectus-eq_fi@jpmchase.com and postsalemanualrequests@broadridge.com; or (ii) Goldman Sachs & Co. LLC, Attention: Prospectus Department, 200 West Street, New
York, New York 10282, telephone: 1-866-471-2526, facsimile:
212-902-9316 or by emailing prospectus-ny@ny.email.gs.com.
This communication should be read in conjunction with the Common Stock Preliminary Prospectus Supplement or the Depositary Shares Preliminary Prospectus
Supplement, as the case may be, and the related base prospectus and, when available, the applicable Final Prospectus Supplement. The information in this communication supersedes the information in the Common Stock Preliminary Prospectus Supplement
or the Depositary Shares Preliminary Prospectus Supplement, as the case may be, and the related base prospectus to the extent it is inconsistent with the information in such preliminary prospectus supplement or the related base prospectus.
ANY DISCLAIMERS OR OTHER NOTICES THAT MAY APPEAR BELOW ARE NOT APPLICABLE TO THIS COMMUNICATION AND SHOULD BE DISREGARDED. SUCH DISCLAIMERS OR OTHER NOTICES
WERE AUTOMATICALLY GENERATED AS A RESULT OF THIS COMMUNICATION BEING SENT VIA BLOOMBERG OR ANOTHER EMAIL SYSTEM.
Schedule C
FORM OF LOCK-UP AGREEMENT
[ ], 2026
J.P. Morgan Securities LLC
Goldman Sachs & Co. LLC
As Representatives of
the several Underwriters named in
Schedule A to the Underwriting
Agreement referred to below
c/o J.P. Morgan Securities LLC
270 Park Avenue
New York, New York 10017
c/o Goldman Sachs & Co. LLC
200 West Street
New York, NY 10282
Re: SUPER MICRO
COMPUTER, INC. — Lock-Up Agreement
Ladies and Gentlemen:
The undersigned understands that J.P. Morgan Securities LLC (“J.P. Morgan”) and Goldman Sachs & Co. LLC
(“Goldman Sachs”), as representatives (the “Representatives”), propose to enter into (i) an underwriting agreement on behalf of the several underwriters named in such agreement, with Super Micro Computer,
Inc., a Delaware corporation (the “Company”), providing for a public offering of depositary shares (the “Depositary Shares Offering”), such depositary shares each representing a fractional interest in a share of
the Company’s Series A Mandatory Convertible Preferred Stock, par value $0.001 per share (the “Convertible Preferred Stock”) and (ii) an underwriting agreement on behalf of the several underwriters named in such
agreement with the Company, providing for a public offering of shares of the Company’s common stock, par value $0.001 per share (“Common Stock” and such offering, the “Common Stock Offering”). The
underwriting agreements relating to the Depositary Shares Offering and the Common Stock Offering (each, an “Offering” and, together, the “Offerings”) are each referred to as an “Underwriting
Agreement” and together, the “Underwriting Agreements”) and the underwriters of the Offerings are collectively referred to as the “Underwriters.”
In consideration of the Underwriters’ agreement to purchase and make the Offerings, and for other good and valuable consideration
receipt of which is hereby acknowledged, the undersigned hereby agrees that, without the prior written consent of J.P. Morgan and Goldman Sachs, the undersigned will not, and will not cause any direct or indirect affiliate to, during the period
beginning on the date of this letter agreement (this “Letter Agreement”) and ending at the close of business 60 days after the earliest date of a final prospectus relating to an Offering (including the documents incorporated by
reference therein, the “Prospectus” and such period, the “Restricted Period”), (1) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant
any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock, of
the Company or any securities convertible into or exercisable or exchangeable for Common Stock (including without limitation, Common Stock or such other securities which may be deemed to be
beneficially owned by the undersigned in accordance with the rules and regulations of the Securities and Exchange Commission and securities which may be issued upon exercise of a stock option or warrant) (collectively with the Common Stock, the
“Lock-Up Securities”), (2) enter into any hedging, swap or other agreement or transaction that transfers, in whole or in part, any of the economic consequences of ownership of the Lock-Up Securities, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Lock-Up Securities, in cash or otherwise,
(3) make any demand for, or exercise any right with respect to, the registration of any Lock-Up Securities, or (4) publicly disclose the intention to do any of the foregoing. The undersigned
acknowledges and agrees that the foregoing precludes the undersigned from engaging in any hedging or other transactions or arrangements (including, without limitation, any short sale or the purchase or sale of, or entry into, any put or call option,
or combination thereof, forward, swap or any other derivative transaction or instrument, however described or defined) designed or intended, or which could reasonably be expected to lead to or result in, a sale or disposition or transfer (whether by
the undersigned or any other person) of any economic consequences of ownership, in whole or in part, directly or indirectly, of any Lock-Up Securities, whether any such transaction or arrangement (or
instrument provided for thereunder) would be settled by delivery of Lock-Up Securities, in cash or otherwise.
Notwithstanding the foregoing, the undersigned may:
(a) transfer the undersigned’s Lock-Up Securities:
(i) as a bona fide gift or gifts, or for bona fide estate planning purposes,
(ii) by will or intestacy,
(iii)
to any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned, or if the undersigned is a trust, to a trustor or beneficiary of the trust or to the estate of a beneficiary of such trust (for purposes
of this Letter Agreement, “immediate family” shall mean any relationship by blood, current or former marriage, domestic partnership or adoption, not more remote than first cousin),
(iv) to a partnership, limited liability company or other entity of which the undersigned and the immediate family of the undersigned are the
legal and beneficial owner of all of the outstanding equity securities or similar interests,
(v) to a nominee or custodian of a person or
entity to whom a disposition or transfer would be permissible under clauses (i) through (iv) above,
(vi) if the undersigned is a
corporation, partnership, limited liability company, trust or other business entity, (A) to another corporation, partnership, limited liability company, trust or other business entity that is an affiliate (as defined in Rule 405 promulgated
under the Securities Act of 1933, as amended) of the undersigned, or to any investment fund or other entity controlling, controlled by, managing or managed by or under common control with the undersigned or affiliates of the undersigned (including,
for the avoidance of doubt, where the undersigned is a partnership, to its general partner or a successor partnership or fund, or any other funds managed by such partnership), or (B) as part of a distribution to members or stockholders of the
undersigned,
(vii) by operation of law, such as pursuant to a qualified domestic order, divorce settlement, divorce decree or separation
agreement,
(viii) to the Company from an employee of the Company upon death, disability or termination
of employment, in each case, of such employee,
(ix) as part of a sale of the undersigned’s
Lock-Up Securities acquired in open market transactions after the closing dates for the Offerings,
(x) to the Company in connection with the vesting, settlement, or exercise of restricted stock units, options, warrants or other rights to
purchase shares of Common Stock (including, in each case, by way of “net” or “cashless” exercise), including for the payment of exercise price and tax and remittance payments due as a result of the vesting, settlement, or
exercise of such restricted stock units, options, warrants or rights, provided that any such shares of Common Stock received upon such exercise, vesting or settlement shall be subject to the terms of this Letter Agreement, and provided further that
any such restricted stock units, options, warrants or rights are held by the undersigned pursuant to an agreement or equity awards granted under a stock incentive plan or other equity award plan, each such agreement or plan which is described in the
Registration Statement, the Pricing Disclosure Package and the Prospectuses, or
(xi) pursuant to a bona fide third-party tender offer,
merger, consolidation or other similar transaction that is approved by the Board of Directors of the Company and made to all holders of the Company’s capital stock involving a Change of Control (as defined below) of the Company (for purposes
hereof, “Change of Control” shall mean the transfer (whether by tender offer, merger, consolidation or other similar transaction), in one transaction or a series of related transactions, to a person or group of affiliated persons, of
shares of capital stock if, after such transfer, such person or group of affiliated persons would hold at least a majority of the outstanding voting securities of the Company (or the surviving entity)); provided that in the event that such
tender offer, merger, consolidation or other similar transaction is not completed, the undersigned’s Lock-Up Securities shall remain subject to the provisions of this Letter Agreement;
provided that (A) in the case of any transfer or distribution pursuant to clause (a)(i), (ii), (iii), (iv), (v), (vi) and (vii),
such transfer shall not involve a disposition for value and each donee, devisee, transferee or distributee shall execute and deliver to J.P. Morgan and Goldman Sachs a lock-up letter in the form of this Letter
Agreement, (B) in the case of any transfer or distribution pursuant to clause (a) (ii), (iii), (iv), (v) and (vi), no filing by any party (donor, donee, devisee, transferor, transferee, distributer or distributee) under the Securities Exchange
Act of 1934, as amended (the “Exchange Act”), or other public announcement shall be required or shall be made voluntarily in connection with such transfer or distribution (other than a filing on a Form 5 made after the expiration of the
Restricted Period referred to above), (C) in the case of any transfer or distribution pursuant to clause (a) (i) and (x), no filing by any party (donor, donee, devisee, transferor, transferee, distributer or distributee) under the Exchange Act
of 1934, or other public announcement shall be required or shall be made voluntarily in connection with such transfer or distribution (other than a required Section 16 filing on a Form 4 or Form 5, which shall clearly indicate in the footnotes
thereto the nature and conditions of such transfer) and (D) in the case of any transfer or distribution pursuant to clause (a)(vii) and (viii) it shall be a condition to such transfer that no public filing, report or announcement shall be
voluntarily made and if any filing under Section 16(a) of the Exchange Act, or other public filing, report or announcement reporting a reduction in beneficial ownership of shares of Common Stock in connection with such transfer or distribution
shall be legally required during the Restricted Period, such filing, report or announcement shall clearly indicate in the footnotes thereto the nature and conditions of such transfer.
(b) exercise outstanding options, settle restricted stock units or other equity awards or exercise warrants pursuant to plans described in the
Prospectus; provided that any Lock-Up Securities received upon such exercise, vesting or settlement shall be subject to the terms of this Letter Agreement;
(c) convert outstanding preferred stock, warrants to acquire preferred stock or convertible
securities into shares of Common Stock or warrants to acquire shares of Common Stock; provided that any such shares of Common Stock or warrants received upon such conversion shall be subject to the terms of this Letter Agreement;
(d) establish trading plans pursuant to Rule 10b5-1 under the Exchange Act for the transfer of shares
of Lock-Up Securities; provided that (1) such plans do not provide for the transfer of Lock-Up Securities during the Restricted Period and (2) no filing
by any party under the Exchange Act or other public announcement shall be required or made voluntarily in connection with such trading plan;
(e) sell the Securities to be sold by the undersigned, if any, pursuant to the terms of an Underwriting Agreement; and
(f) sell Lock-Up Securities pursuant to an existing trading plan established prior to the date of this
Letter Agreement pursuant to Rule 10b5-1 of the Exchange Act, provided that no filing by the undersigned under the Exchange Act, or other public announcement, shall be voluntarily made, and if the undersigned
is required to file a report under the Exchange Act related thereto during the Restricted Period, such report shall disclose that such transfer was pursuant to an existing trading plan established prior to the date of this Letter Agreement pursuant
to Rule 10b5-1 of the Exchange Act.
In furtherance of the foregoing, the Company, and any duly
appointed transfer agent for the registration or transfer of the securities described herein, are hereby authorized to decline to make any transfer of securities if such transfer would constitute a violation or breach of this Letter Agreement.
The undersigned hereby represents and warrants that the undersigned has full power and authority to enter into this Letter Agreement. All
authority herein conferred or agreed to be conferred and any obligations of the undersigned shall be binding upon the successors, assigns, heirs or personal representatives of the undersigned.
The undersigned acknowledges and agrees that the Underwriters have not provided any recommendation or investment advice nor have the
Underwriters solicited any action from the undersigned with respect to the Offerings of the Securities and the undersigned has consulted their own legal, accounting, financial, regulatory and tax advisors to the extent deemed appropriate. The
undersigned further acknowledges and agrees that, although the Representatives may be required or choose to provide certain Regulation Best Interest and Form CRS disclosures to you in connection with each Offering, the Representatives and the other
Purchasers are not making a recommendation to you to enter into this Letter Agreement, participate in such Offering, or sell any securities at the price determined in such Offering, and nothing set forth in such disclosures is intended to suggest
that the Representatives or any other Underwriter is making such a recommendation.
The undersigned understands that, if an Underwriting
Agreement does not become effective by June 30, 2026, or if such Underwriting Agreement (other than the provisions thereof which survive termination) shall terminate or be terminated prior to payment for and delivery of any securities to be
sold thereunder, the undersigned shall be released from all obligations under this Letter Agreement with respect to such Offering; provided, however that if either Underwriting Agreement has become effective by June 30, 2026 and any
securities are sold and delivered pursuant to such Underwriting Agreement (any such Offering, a “Completed Offering”), then the undersigned shall continue to be bound by the terms of this Letter Agreement with respect to such
Completed Offering. The undersigned understands that the Representatives on behalf of the respective Underwriters are entering into each Underwriting Agreement and proceeding with each Offering in reliance upon this Letter Agreement.
This Letter Agreement and any claim, controversy or dispute arising under or related to this
Letter Agreement shall be governed by and construed in accordance with the laws of the State of New York.
Very truly yours,
[NAME OF STOCKHOLDER]
By:
Name:
Title:
Schedule D
Investor Presentation dated June 9, 2026
EX-3.1
EX-3.1
Filename: d151436dex31.htm · Sequence: 3
EX-3.1
Exhibit 3.1
Certificate of Designations of
7.00% Series A Mandatory Convertible Preferred Stock of
Super Micro Computer, Inc.
Super Micro Computer, Inc., a Delaware corporation (the “Corporation”), hereby certifies that, pursuant to the provisions
of Sections 103, 141 and 151 of the General Corporation Law of the State of Delaware, (a) on June 1, 2026 the board of directors of the Corporation (the “Board of Directors”) appointed a special committee (the
“Preferred Pricing Committee”) and authorized the Preferred Pricing Committee to determine the voting powers (if any), designations, preferences, and relative, participating, optional or other special rights, if any, and
the qualifications, limitations or restrictions and all other terms of the issuance of a series of preferred stock; and (b) on June 10, 2026, the Preferred Pricing Committee adopted the resolution shown immediately below, which resolution
is now, and at all times since its date of adoption has been, in full force and effect.
RESOLVED, that pursuant to the provisions of the
Amended and Restated Certificate of Incorporation of the Corporation (as such may be further amended, modified or restated from time to time, the “Certificate of Incorporation”) (which authorizes 10,000,000 shares of preferred
stock, par value $0.001 per share (the “Preferred Stock”)), and the authority vested in the Board of Directors and as delegated to the Preferred Pricing Committee, a series of Preferred Stock be, and it hereby is, created, and
that the designation and number of shares of such series, and the voting powers (if any), designations, preferences, and relative, participating, optional or other special rights, if any, and the qualifications, limitations or restrictions thereof
are as set forth in the Certificate of Incorporation and this Certificate of Designations, as it may be amended from time to time (this “Certificate of Designations”) as follows:
Part 1. Designation and Number of Shares. Pursuant to the Certificate of Incorporation, there is hereby created out of the authorized
and unissued shares of Preferred Stock of the Corporation a series of Preferred Stock consisting of 4,312,500 shares of the Preferred Stock of the Corporation designated as the “7.00% Series A Mandatory Convertible Preferred Stock” (the
“Mandatory Convertible Preferred Stock”). Such number of shares may be decreased by resolution of the Board of Directors or any duly authorized committee thereof, subject to the terms and conditions hereof; provided that no
decrease shall reduce the number of shares of the Mandatory Convertible Preferred Stock to a number less than the number of shares then outstanding.
Part 2. Standard Provisions. The Standard Provisions contained in Annex A attached hereto are incorporated herein by reference in their
entirety and shall be deemed to be a part of this Certificate of Designations to the same extent as if such provisions had been set forth in full herein.
(signature page follows)
IN WITNESS WHEREOF, the Corporation has caused this Certificate of Designations to be signed
by Charles Liang, its President and Chief Executive Officer, this 15th day of June, 2026.
SUPER MICRO COMPUTER, INC.
By:
/s/ Charles Liang
Name: Charles Liang
Title: President and Chief Executive Officer
[Signature Page to
Certificate of Designations of Mandatory Convertible Preferred Stock]
ANNEX A
STANDARD PROVISIONS
SECTION 1. General Matters; Ranking. Each share of the Mandatory Convertible Preferred Stock shall be identical in all respects to
every other share of the Mandatory Convertible Preferred Stock. The Mandatory Convertible Preferred Stock, with respect to dividend rights and/or distribution rights upon the liquidation, winding-up or
dissolution of the Corporation, as applicable, shall rank (i) senior to all Junior Stock, (ii) on parity with all Parity Stock and (iii) junior to all Senior Stock and the Corporation’s existing and future indebtedness and other
liabilities (other than intercompany obligations).
SECTION 2. Standard Definitions. As used herein with respect to the
Mandatory Convertible Preferred Stock:
“Accumulated Dividend Amount” means, with respect to any Fundamental Change
Conversion, the aggregate amount of accumulated and unpaid dividends, if any, for any Dividend Periods prior to the Effective Date of the relevant Fundamental Change, including for the partial Dividend Period, if any, from, and including, the
Dividend Payment Date immediately preceding such Effective Date to, but excluding, such Effective Date.
“ADRs” shall
have the meaning set forth in Section 13(e).
“Applicable Market Value” means the Average VWAP per share of Common
Stock over the Final Averaging Period.
“Average VWAP” per share over a certain period means the arithmetic average of
the VWAP per share for each Trading Day in such period.
“Board of Directors” shall have the meaning set forth in the
recitals.
“Business Day” means any day other than a Saturday or Sunday or any other day on which commercial banks in
New York City are authorized or required by law or executive order to close.
“Bylaws” means the bylaws of the
Corporation, as amended and restated, as they may be further amended from time to time.
“Certificate of Designations”
shall have the meaning set forth in the recitals.
“Certificate of Incorporation” shall have the meaning set forth in
the recitals.
“Clause I Distribution” shall have the meaning set forth in Section 13(a)(iv).
“Clause II Distribution” shall have the meaning set forth in Section 13(a)(iv).
“Clause IV Distribution” shall have the meaning set forth in Section 13(a)(iv).
“close of business” means 5:00 p.m., New York City time.
“Common Stock” means the common stock, par value $0.001 per share, of the Corporation, subject to Section 13(e).
“Conversion and Dividend Disbursing Agent” means Computershare Trust Company, N.A., the Corporation’s duly appointed
conversion and dividend disbursing agent for the Mandatory Convertible Preferred Stock, and any successor appointed under Section 14.
“Conversion Date” shall have the meaning set forth in Section 3(a).
“Corporation” shall have the meaning set forth in the recitals.
“Current Market Price” per share of Common Stock (or, in the case of clause (ii) below, per share of Common Stock,
capital stock or similar equity interest, as applicable) means, for the purposes of determining an adjustment to the Fixed Conversion Rates:
(i) for purposes of any adjustment pursuant to Section 13(a)(ii), Section 13(a)(iv)(A) or Section 13(a)(v), the Average VWAP
per share of Common Stock over the ten consecutive Trading Day period ending on, and including, (x) for purposes of Section 13(a)(ii), the Trading Day immediately preceding the announcement date of the relevant issuance and (y) for
purposes of Section 13(a)(iv)(A) or Section 13(a)(v), the Trading Day immediately preceding the Ex-Date of the relevant distribution;
(ii) for purposes of any adjustment pursuant to Section 13(a)(iv)(B), the Average VWAP per share of Common Stock, capital stock or
similar equity interest, as applicable (in the case of any capital stock or similar equity interest, determined by reference to the definition of “VWAP” as if references therein to Common Stock were to such capital stock or similar
equity interest), over the first ten consecutive Trading Days commencing on, and including, the Ex-Date of such distribution; and
(iii) for purposes of any adjustment pursuant to Section 13(a)(vi), the Average VWAP per share of Common Stock over the ten consecutive
Trading Day period commencing on, and including, the Trading Day immediately following the Expiration Date of the relevant tender offer or exchange offer.
“Depositary Shares” means the depositary shares representing fractional interests in the Mandatory Convertible Preferred
Stock.
“Distributed Property” shall have the meaning set forth in Section 13(a)(iv)(A).
“Dividend Amount” shall have the meaning set forth in Section 3(a).
“Dividend Payment Date” means March 1, June 1, September 1 and December 1 of each year commencing on,
and including, September 1, 2026 to, and including, June 1, 2029.
“Dividend Period” means the period from,
and including, a Dividend Payment Date to, but excluding, the next Dividend Payment Date, except that the initial Dividend Period shall commence on, and include, the Initial Issue Date and shall end on, but exclude, September 1, 2026.
“DTC” means The Depository Trust Company.
“Early Conversion” shall have the meaning set forth in Section 8(a).
“Early Conversion Additional Amount” shall have the meaning set forth in Section 8(b).
“Early Conversion Average Price” shall have the meaning set forth in Section 8(b).
“Early Conversion Date” shall have the meaning set forth in Section 10(b).
“Effective Date” shall have the meaning set forth in Section 9(a), except that, as used in Section 13(a)(iii) and
Section 13(c)(ii).
“Effective Date” means the first date on which shares of the Common Stock trade on the
applicable exchange or in the applicable market, regular way, reflecting the relevant share subdivision or combination, as applicable.
“Ex-Date” when used with respect to any issuance, dividend or distribution,
means the first date on which the shares of Common Stock trade on the applicable exchange or in the applicable market, regular way, without the right to receive the issuance, dividend or distribution in question, from the Corporation or, if
applicable, from the seller of the Common Stock on such exchange or market (in the form of due bills or otherwise) as determined by such exchange or market.
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“Exchange Act” means the Securities Exchange Act of 1934, as amended, and
the rules and regulations thereunder.
“Exchange Property” shall have the meaning set forth in Section 13(e).
“Expiration Date” shall have the meaning set forth in Section 13(a)(vi).
“Fair Market Value” means the fair market value as determined in good faith by the Board of Directors (or an authorized
committee thereof), whose determination shall be conclusive and set forth in a resolution of the Board of Directors (or such authorized committee).
“Final Averaging Period” means the 20 consecutive Trading Day period beginning on, and including, the 21st Scheduled
Trading Day immediately preceding June 1, 2029.
“Five-Day Average
Price” shall have the meaning set forth in Section 3(c)(iii).
“Fixed Conversion Rates” means the
Maximum Conversion Rate and the Minimum Conversion Rate.
“Floor Price” shall have the meaning set forth in
Section 3(e).
A “Fundamental Change” shall be deemed to have occurred at the time any of the following occurs
after the Initial Issue Date:
(a) a “person” or “group” (within the meaning of Section 13(d)(3) of the
Exchange Act), other than the Corporation or its Wholly Owned Subsidiaries, has become the direct or indirect “beneficial owner” (as defined below) of shares of common equity representing more than 50% of the voting power of all of the
Corporation’s then-outstanding common equity;
(b) the consummation of: (i) any sale, lease or other transfer, in one
transaction or a series of transactions, of all or substantially all of the assets of the Corporation and its Subsidiaries, taken as a whole, to any Person; or (ii) any transaction or series of related transactions in connection with which
(whether by means of merger, consolidation, share exchange, combination, reclassification, recapitalization, acquisition, liquidation or otherwise) all of the Common Stock is exchanged for, converted into, acquired for, or constitutes solely the
right to receive, other securities, cash or other property; provided, however, that any merger, consolidation, share exchange or combination of the Corporation pursuant to which the Persons that directly or indirectly
“beneficially owned” (as defined below) all classes of the Corporation’s common equity immediately before such transaction directly or indirectly “beneficially own,” immediately after such transaction, more than 50% of
all classes of common equity of the surviving, continuing or acquiring company or other transferee, as applicable, or the parent thereof, in substantially the same proportions
vis-à-vis each other as immediately before such transaction will be deemed not to be a Fundamental Change pursuant to this clause (b);
(c) the Corporation’s stockholders approve any plan or proposal for the Corporation’s liquidation or dissolution; or
(d) the Common Stock ceases to be listed on any of The New York Stock Exchange, the Nasdaq Global Market or the Nasdaq Global Select Market
(or any of their respective successors);
provided, however, that a transaction or event described in clause (a) or (b)
above will not constitute a Fundamental Change if at least 90% of the consideration received or to be received by the holders of the Common Stock (excluding cash payments for fractional shares or pursuant to dissenters rights), in connection with
such transaction or event, consists of shares of common stock listed on any of The New York Stock Exchange, the Nasdaq Global Market or the Nasdaq Global Select Market (or any of their respective successors), or that will be so listed when issued or
exchanged in connection with such transaction or event, and as a result of such transaction or event the Mandatory Convertible Preferred Stock becomes convertible into or exchangeable for such consideration, excluding cash payments for fractional
shares or pursuant to dissenters’ appraisal rights.
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For the purposes of this definition, (i) any transaction or event described in both
clause (a) and in clause (b)(i) or (ii) above (without regard to the proviso in clause (b)) will be deemed to occur solely pursuant to clause (b) above (subject to such proviso); and (ii) whether a Person is a “beneficial
owner” and whether shares are “beneficially owned” will be determined in accordance with Rule 13d-3 under the Exchange Act.
If any transaction in which the Common Stock is replaced by securities of another entity pursuant to Section 13(e) occurs, following
completion of any related Fundamental Change Conversion Period (or, if none, the Effective Date of such transaction), references to the Corporation in this definition of “Fundamental Change” shall instead be references to such
other entity.
“Fundamental Change Conversion” shall have the meaning set forth in Section 9(a).
“Fundamental Change Conversion Date” shall have the meaning set forth in Section 10(c).
“Fundamental Change Conversion Period” shall have the meaning set forth in Section 9(a).
“Fundamental Change Conversion Rate” means, for any Fundamental Change Conversion, the conversion rate set forth in the
table below for the Effective Date and the Stock Price applicable to such Fundamental Change:
Stock Price
Effective
Date
$11.00
$13.00
$15.00
$17.00
$19.00
$21.00
$23.00
$27.50
$30.00
$33.00
$40.00
$50.00
$60.00
$70.00
June 15, 2026
32.7920
32.4540
32.1700
31.9300
31.7240
31.5460
31.3920
31.1120
30.9880
30.8600
30.6320
30.4160
30.2740
30.1780
June 1, 2027
33.7500
33.3500
32.9960
32.6880
32.4160
32.1800
31.9720
31.5880
31.4180
31.2400
30.9280
30.6360
30.4520
30.3300
June 1, 2028
35.1580
34.7460
34.3300
33.9300
33.5520
33.2040
32.8880
32.2840
32.0080
31.7240
31.2280
30.7940
30.5460
30.4020
June 1, 2029
36.3640
36.3640
36.3640
36.3640
36.3640
36.3640
36.3640
36.3640
33.3340
30.3040
30.3040
30.3040
30.3040
30.3040
The exact Stock Price and Effective Date may not be set forth in the table, in which case:
(x) If the Stock Price is between two Stock Prices set forth in the table above, or if the Effective Date is between two Effective Dates set
forth in the table above, the Fundamental Change Conversion Rate shall be determined by straight-line interpolation between the Fundamental Change Conversion Rates set forth for the higher and lower Stock
Prices and the earlier and later Effective Dates, as applicable, based on a 365-day or 366-day year, as applicable.
(y) If the Stock Price is in excess of $70.00 per share (subject to adjustment in the same manner as adjustments are made to the Stock Prices
in the column headings in the table above in accordance with the provisions of Section 13(c)(iv)), then the Fundamental Change Conversion Rate shall be the Minimum Conversion Rate.
(z) If the Stock Price is less than $11.00 per share (subject to adjustment in the same manner as adjustments are made to the Stock Prices in
the column headings in the table above in accordance with the provisions of Section 13(c)(iv)), then the Fundamental Change Conversion Rate shall be the Maximum Conversion Rate.
The Stock Prices in the column headings in the table above are subject to adjustment in accordance with the provisions of
Section 13(c)(iv). The Fundamental Change Conversion Rates set forth in the table above are each subject to adjustment in the same manner and at the same time as each Fixed Conversion Rate as set forth in Section 13.
“Fundamental Change Dividend Make-Whole Amount” shall have the meaning set forth in Section 9(a).
“Fundamental Change Early Conversion Right” shall have the meaning set forth in Section 9(a).
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“Fundamental Change Notice” shall have the meaning set forth in
Section 9(b).
“Holder” means each person in whose name shares of the Mandatory Convertible Preferred Stock are
registered, who shall be treated by the Corporation and the Registrar as the absolute owner of those shares of Mandatory Convertible Preferred Stock for the purpose of making payment and settling conversions and for all other purposes.
“Initial Issue Date” means June 15, 2026.
“Initial Price” means $1,000, divided by the Maximum Conversion Rate, rounded to the nearest $0.0001, which is
initially equal to $27.4997.
“Junior Stock” means (i) the Common Stock and (ii) each other class or series
of capital stock of the Corporation established after the Initial Issue Date, the terms of which do not expressly provide that such capital stock shall rank either (x) senior to the Mandatory Convertible Preferred Stock as to dividend rights or
distribution rights upon the Corporation’s liquidation, winding-up or dissolution or (y) on parity with the Mandatory Convertible Preferred Stock as to dividend rights and distribution rights upon
the Corporation’s liquidation, winding-up or dissolution.
“Liquidation Dividend
Amount” shall have the meaning set forth in Section 4(a).
“Liquidation Preference” means, as to the
Mandatory Convertible Preferred Stock, $1,000 per share.
“Make-Whole Dividend Amount” shall have the meaning set forth
in Section 9(a).
“Mandatory Conversion” shall have the meaning set forth in Section 7(a).
“Mandatory Conversion Additional Conversion Amount” shall have the meaning set forth in Section 7(c).
“Mandatory Conversion Date” means the second Business Day immediately following the last Trading Day of the Final Averaging
Period.
“Mandatory Conversion Rate” shall have the meaning set forth in Section 7(b).
“Mandatory Convertible Preferred Stock” shall have the meaning set forth in Part 1 of this Certificate of Designations.
“Market Disruption Event” means (a) a failure by the primary U.S. national or regional securities exchange or
market on which the Common Stock is listed or admitted for trading to open for trading during its regular trading session or (b) the occurrence or existence prior to 1:00 p.m., New York City time, on any Scheduled Trading Day for the Common
Stock for more than one half-hour period in the aggregate during regular trading hours of any suspension or limitation imposed on trading (by reason of movements in price exceeding limits permitted by the
relevant stock exchange or otherwise) in the Common Stock or in any options contracts or futures contracts relating to the Common Stock.
“Maximum Conversion Rate” shall have the meaning set forth in Section 7(b)(iii).
“Minimum Conversion Rate” shall have the meaning set forth in Section 7(b)(i).
“Nonpayment” shall have the meaning set forth in Section 6(b)(i).
“Nonpayment Remedy” shall have the meaning set forth in Section 6(b)(iii).
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“Officer” means the Chairman of the Board of Directors, the Chief
Executive Officer, the President, the Chief Operating Officer, the Chief Financial Officer, the Treasurer, any Assistant Treasurer, the Controller, the Secretary or any Vice-President of the Corporation.
“Officer’s Certificate” means a certificate of the Corporation, signed by any duly authorized Officer of the
Corporation.
“open of business” means 9:00 a.m., New York City time.
“Parity Stock” means any class or series of capital stock of the Corporation established after the Initial Issue Date, the
terms of which expressly provide that such capital stock shall rank on parity with the Mandatory Convertible Preferred Stock as to dividend rights and distribution rights upon the Corporation’s liquidation,
winding-up or dissolution.
“Person” means an individual, a corporation, a
limited liability company, an association, a partnership, a joint venture, a joint stock company, a trust, an unincorporated organization or a government or an agency or a political subdivision thereof.
“Preferred Pricing Committee” shall have the meaning set forth in the recitals.
“Preferred Stock” shall have the meaning set forth in the recitals.
“Preferred Stock Directors” shall have the meaning set forth in Section 6(b)(i).
“Prospectus” means the prospectus dated June 9, 2026, file number 333-296641
relating to securities, including the Mandatory Convertible Preferred Stock and the Depositary Shares, to be issued from time to time by the Corporation.
“Prospectus Supplement” means the preliminary prospectus supplement dated June 10, 2026, as supplemented by the
related pricing term sheet dated June 10, 2026, relating to the offering and sale of the Mandatory Convertible Preferred Stock and the Depositary Shares.
“Record Date” means, with respect to any Dividend Payment Date, the February 15, May 15, August 15 or
November 15, as the case may be, immediately preceding the relevant March 1, June 1, September 1 and December 1 Dividend Payment Date, respectively. These Record Dates shall apply regardless of whether a particular Record
Date is a Business Day.
“Record Holder” means, with respect to any Dividend Payment Date, a Holder of record of the
Mandatory Convertible Preferred Stock as such Holder appears on the stock register of the Corporation at the close of business on the related Record Date.
“Registrar” means, initially, Computershare Trust Company, N.A., as the Corporation’s duly appointed registrar for
the Mandatory Convertible Preferred Stock, and any successor appointed under Section 14.
“Reorganization Event”
shall have the meaning set forth in Section 13(e).
“Scheduled Trading Day” means any day that is scheduled to be
a Trading Day.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations
thereunder.
“Senior Stock” means each class or series of capital stock of the Corporation established after the
Initial Issue Date, the terms of which expressly provide that such capital stock shall rank senior to the Mandatory Convertible Preferred Stock as to dividend rights and distribution rights upon the Corporation’s liquidation, winding-up or dissolution.
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“Shelf Registration Statement” means a shelf registration statement filed
with the Securities and Exchange Commission in connection with the issuance of or resales of shares of Common Stock issued as payment of a dividend on shares of the Mandatory Convertible Preferred Stock, including dividends paid in connection with a
conversion thereof.
“Spin-Off” means a distribution by the Corporation
to all or substantially all holders of Common Stock consisting of capital stock of, or similar equity interests in, or relating to a Subsidiary or other business unit of the Corporation, that are, or, when issued, will be, listed or admitted for
trading on a U.S. national securities exchange.
“Stock Price” means, for any Fundamental Change, (i) if all
holders of Common Stock receive only cash in exchange for their Common Stock in such Fundamental Change, the amount of cash paid in such Fundamental Change per share of Common Stock, and (ii) in all other cases, the Average VWAP per share of
Common Stock over the five consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Effective Date of such Fundamental Change.
“Subsidiary” means, with respect to any Person, any corporation, association, partnership or other business entity of which
more than 50% of the total voting power of shares of capital stock or other interests (including partnership interests) entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers, general partners
or trustees thereof is at the time owned or controlled, directly or indirectly, by (i) such Person; (ii) such Person and one or more Subsidiaries of such Person; or (iii) one or more Subsidiaries of such Person.
“Threshold Appreciation Price” means $1,000, divided by the Minimum Conversion Rate, rounded to the nearest $0.0001,
which is initially equal to $32.9989.
“Trading Day” means a day on which (x) there is no Market Disruption
Event and (y) trading in the Common Stock generally occurs on the Nasdaq Global Select Market or, if the Common Stock is not then listed on the Nasdaq Global Select Market, on the principal other U.S. national or regional securities exchange on
which the Common Stock is then listed or, if the Common Stock is not then listed on a U.S. national or regional securities exchange, on the principal other market on which the Common Stock is then listed or admitted for trading. If the Common Stock
is not so listed or admitted for trading,
“Trading Day” means a Business Day.
“Transfer Agent” initially means Computershare Trust Company, N.A., as the Corporation’s duly appointed transfer
agent for the Mandatory Convertible Preferred Stock, and any successor appointed under Section 14.
“Trigger
Event” shall have the meaning set forth in Section 13(a)(iv).
“Underwriters” means the several
underwriters listed in Schedule A to the Underwriting Agreement.
“Underwriting Agreement” means that certain
Underwriting Agreement, dated June 10, 2026, among the Corporation and the representatives of the Underwriters.
“Unit of
Exchange Property” shall have the meaning set forth in Section 13(e).
“Voting Preferred Stock” means
any class or series of Parity Stock upon which voting rights for the election of directors like those set forth in Section 6(b) have been conferred and are exercisable.
“VWAP” per share of Common Stock on any Trading Day means the per share
volume-weighted average price as displayed on Bloomberg page “SMCI <Equity> AQR” (or its equivalent successor if such page is not available) in respect of the period from 9:30 a.m. to 4:00
p.m., New York City time (or, if the scheduled close of trading of the primary session for the primary U.S. national or regional securities exchange or market on which Common Stock is listed or admitted for trading on such Trading Day is earlier,
such earlier scheduled close of trading), on such Trading Day; or, if such price is not available, “VWAP” means the market value per share of Common Stock on such Trading Day as determined, using a
volume-weighted average method, by a nationally recognized independent investment banking firm retained by the Corporation for this purpose, which may include any of the Underwriters.
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“Wholly Owned Subsidiary” means, with respect to any Person, any
Subsidiary of such Person, except that, solely for purposes of this definition, the reference to “more than 50%” in the definition of “Subsidiary” shall be deemed replaced by a reference to “100%”.
SECTION 3. Dividends Rate. (a) Subject to the rights of holders of any class or series of capital stock of the Corporation
ranking senior to the Mandatory Convertible Preferred Stock with respect to dividends, Holders shall be entitled to receive, when, as and if declared by the Board of Directors (or an authorized committee thereof) out of funds of the Corporation
legally available therefor, cumulative dividends at the rate per annum of 7.00% on the Liquidation Preference per share of Mandatory Convertible Preferred Stock (equivalent to $70.00 per annum per share (the “Dividend Amount”)),
payable in cash, by delivery of shares of Common Stock or through any combination of cash and shares of Common Stock, as determined by the Board of Directors (or an authorized committee thereof) in its sole discretion (subject to the limitations
described below). Declared dividends on the Mandatory Convertible Preferred Stock shall be payable quarterly on each Dividend Payment Date at such annual rate, and dividends shall accumulate from the most recent date as to which dividends shall have
been paid or, if no dividends have been paid, from the Initial Issue Date, whether or not in any Dividend Period or Dividend Periods there have been funds legally available for the payment of such dividends. Declared dividends shall be payable on
the relevant Dividend Payment Date to Record Holders at the close of business on the immediately preceding Record Date, whether or not such Record Holders convert their shares of Mandatory Convertible Preferred Stock, or such shares are
automatically converted, after such Record Date and on or prior to the immediately succeeding Dividend Payment Date. If a Dividend Payment Date is not a Business Day, payment shall be made on the next succeeding Business Day, without any interest or
other payment in lieu of interest accruing with respect to this delay.
The amount of dividends payable on each share of Mandatory
Convertible Preferred Stock for each full Dividend Period (after the initial Dividend Period) shall be computed by dividing the annual dividend rate by four. Dividends payable on the Mandatory Convertible Preferred Stock for the initial Dividend
Period and any partial Dividend Period shall be computed based upon the actual number of days elapsed during such period over a 360-day year (consisting of twelve 30-day
months). Accumulated dividends shall not bear interest if they are paid subsequent to the applicable Dividend Payment Date.
No dividend
shall be declared or paid upon, or any sum of cash or number of shares of Common Stock set apart for the payment of dividends upon, any outstanding share of Mandatory Convertible Preferred Stock with respect to any Dividend Period unless all
dividends for all preceding Dividend Periods have been declared and paid upon, or a sufficient sum of cash or number of shares of Common Stock have been set apart for the payment of such dividends upon, all outstanding shares of Mandatory
Convertible Preferred Stock.
Holders shall not be entitled to any dividends on the Mandatory Convertible Preferred Stock, whether payable
in cash, shares of Common Stock or other property, in excess of full cumulative dividends, calculated as set forth above.
Except as
described in this Section 3(a), dividends on any share of Mandatory Convertible Preferred Stock converted to Common Stock will cease to accumulate, and all other rights of Holders will terminate, from and after the Mandatory Conversion Date,
the Fundamental Change Conversion Date or the Early Conversion Date (each, a “Conversion Date”), as applicable.
(b)
Priority of Dividends. So long as any share of the Mandatory Convertible Preferred Stock remains outstanding, no dividend or distribution shall be declared or paid on Common Stock or any other class or series of Junior Stock, and no Common
Stock or other Junior Stock or Parity Stock shall be, directly or indirectly, purchased, redeemed or otherwise acquired for consideration by the Corporation or any of its Subsidiaries unless, in each case, all accumulated and unpaid dividends for
all preceding Dividend Periods have been declared and paid upon, or a sufficient sum of cash or number of shares of Common Stock have been set apart for the payment of such dividends upon, all outstanding shares of Mandatory Convertible Preferred
Stock. The foregoing limitation shall not apply to (i) a dividend payable on any Common Stock or other Junior Stock in shares of any Common Stock or other Junior Stock; (ii) the acquisition of shares of any Common Stock or other Junior
Stock in exchange for, or a purchase,
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redemption or other acquisition for value of shares of any Common Stock or other Junior Stock with the proceeds of a substantially concurrent sale of, shares of any Common Stock or other Junior
Stock and the payment of cash in lieu of any fractional share of Common Stock or other Junior Stock; (iii) purchases of fractional interests in shares of any Common Stock or other Junior Stock pursuant to the conversion or exchange provisions
of such shares of other Junior Stock or any securities exchangeable for or convertible into such shares of Common Stock or other Junior Stock; (iv) redemptions, purchases or other acquisitions of shares of Common Stock or other Junior Stock in
connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more of the Corporation’s or its Subsidiaries’ employees, officers, directors, consultants or independent
contractors, including, without limitation, the forfeiture of unvested shares of restricted stock or share withholdings upon exercise, delivery or vesting of equity awards and the payment of cash in lieu of any fractional share of Common Stock or
other Junior Stock; (v) any dividends or distributions of rights or Common Stock or other Junior Stock in connection with a stockholders’ rights plan or any redemption or repurchase of rights pursuant to any stockholders’ rights
plan, and the payment of cash in lieu of any fractional share of Common Stock or other Junior Stock; (vi) purchases of Junior Stock pursuant to a binding contract (including a stock repurchase plan) to make such purchases, if such contract was
in effect before the Initial Issue Date; (vii) the acquisition by the Corporation or any of its Subsidiaries of record ownership in Common Stock or other Junior Stock or Parity Stock on behalf of any other Persons (other than the Corporation or
any of its Subsidiaries) that is a beneficial owner thereof, including as trustees or custodians; (viii) the exchange or conversion or reclassification of Junior Stock for or into other Junior Stock or of Parity Stock for or into other Parity
Stock (with the same or lesser aggregate liquidation preference) and the payment of cash in lieu of any fractional share of other Junior Stock or other Parity Stock, as the case may be; or (ix) the settlement of any convertible note hedge
transactions or capped call transactions entered into in connection with the issuance, by the Corporation or any of its Subsidiaries, of the Depositary Shares or any debt securities that are convertible into, or exchangeable for, Common Stock (or
into or for any combination of cash and Common Stock based on the value of the Common Stock), provided such convertible note hedge transactions or capped call transactions, as applicable, are on customary terms and were entered into (x) in
connection with the issuance of the Depositary Shares pursuant to the Prospectus Supplement, (y) before the Initial Issue Date or (z) in compliance with the foregoing provision.
When dividends on shares of Mandatory Convertible Preferred Stock have not been paid in full on any Dividend Payment Date or declared and a
sum of cash or number of shares of Common Stock sufficient for payment thereof set aside for the benefit of the Holders thereof on the applicable Record Date, no dividends may be declared or paid on any Parity Stock unless dividends are declared on
the Mandatory Convertible Preferred Stock such that the respective amounts of such dividends declared on the Mandatory Convertible Preferred Stock and each such other class or series of Parity Stock shall bear the same ratio to each other as all
accumulated and unpaid dividends per share on the shares of the Mandatory Convertible Preferred Stock and such class or series of Parity Stock (which dollar amount will, if dividends on such class or series of Parity Stock are not cumulative, be the
full amount of dividends per share thereof in respect of the most recent dividend period thereof) (subject to their having been declared by the Board of Directors (or an authorized committee thereof) out of legally available funds) bear to each
other immediately prior to the payment of such dividends, in proportion to their respective liquidation preferences; provided that any unpaid dividends on the Mandatory Convertible Preferred Stock will continue to accumulate.
For the avoidance of doubt, the provisions set forth in this Section 3(b) shall not prohibit or restrict the payment or other acquisition
for value of any debt securities that are convertible into, or exchangeable for, any Junior Stock.
Subject to the foregoing, and not
otherwise, such dividends (payable in cash, securities or other property) as may be determined by the Board of Directors (or an authorized committee thereof) may be declared and paid on any securities, including Common Stock and other Junior Stock,
from time to time out of any funds legally available for such payment, and Holders shall not be entitled to participate in any such dividends.
If the Corporation (or an applicable withholding agent) is required to withhold on distributions of Common Stock to a Holder and pay the
applicable withholding taxes, the Corporation may, at its option, or an applicable withholding agent may, withhold such taxes from payments of cash or shares of Common Stock payable to such Holder.
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(c) Method of Payment of Dividends. (i) Subject to the limitations described
below, the Corporation may pay any declared dividend (or any portion of any declared dividend) on the Mandatory Convertible Preferred Stock, whether or not for a current Dividend Period or any prior Dividend Period, as determined by the Board of
Directors (or an authorized committee thereof) in its sole discretion:
(A) by paying cash;
(B) by delivering shares of Common Stock; or
(C) through any combination of paying cash and delivering shares of Common Stock.
(ii) Each payment of a declared dividend on the Mandatory Convertible Preferred Stock shall be made in cash, except to the
extent the Corporation timely elects to make all or any portion of such payment in shares of Common Stock. The Corporation shall give notice to Holders of any such election, and the portion of such payment that will be made in cash and the portion
of such payment that will be made in Common Stock, on the earlier of the date the Corporation declares such dividend and the tenth Scheduled Trading Day immediately preceding the Dividend Payment Date for such dividend.
(iii) Any shares of Common Stock issued in payment or partial payment of a declared dividend shall be valued for such purpose
at the Average VWAP per share of Common Stock over the five consecutive Trading Day period ending on, and including, the second Trading Day immediately preceding the applicable Dividend Payment Date (the “Five-Day Average Price”), multiplied by 97%.
(d) No fractional shares of Common
Stock shall be delivered by the Corporation to Holders in payment or partial payment of a dividend. A cash adjustment shall instead be paid by the Corporation to each Holder that would otherwise be entitled to receive a fraction of a share of Common
Stock based on the Five-Day Average Price with respect to such Dividend.
(e) Notwithstanding the
foregoing, in no event shall the number of shares of Common Stock delivered in connection with any declared dividend exceed a number equal to the amount of such declared dividend as to which the Corporation has elected to deliver shares of Common
Stock in lieu of paying cash divided by $9.625, subject to adjustment in a manner inversely proportional to any anti-dilution adjustment to each Fixed Conversion Rate as set forth in Section 13
(such dollar amount, as adjusted from time to time, the “Floor Price”). To the extent that the amount of any declared dividend as to which the Corporation has elected to deliver shares of Common Stock in lieu of paying cash
exceeds the product of (i) the number of shares of Common Stock delivered in connection with such declared dividend and (ii) 97% of the Five-Day Average Price applicable to such dividend, the Corporation
shall, if it is legally able to do so, and to the extent permitted under the terms of the documents governing any of the Corporation’s indebtedness, notwithstanding any notice by the Corporation to the contrary, pay such excess amount in cash.
(f) To the extent that the Corporation, in its reasonable judgment, determines that a Shelf Registration Statement is required in
connection with the issuance of, or for resales of, Common Stock issued as payment of a dividend on the Mandatory Convertible Preferred Stock, including dividends paid in connection with a conversion, the Corporation shall, to the extent such a
Shelf Registration Statement is not currently filed and effective, use its commercially reasonable efforts to file and maintain the effectiveness of such a Shelf Registration Statement until the earlier of such time as all such shares of Common
Stock have been resold thereunder and such time as all such shares are freely tradable without registration by Holders thereof that are not, and have not been within the three months preceding, “affiliates” of the Corporation for
purposes of the Securities Act. To the extent applicable, the Corporation shall also use its commercially reasonable efforts to have such shares of Common Stock qualified or registered under applicable state securities laws, if required, and
approved for listing on the Nasdaq Global Select Market (or if the Common Stock is not then listed on the Nasdaq Global Select Market, on the principal other U.S. national or regional securities exchange on which the Common Stock is then listed).
SECTION 4. Liquidation, Winding-Up or Dissolution. (a) In the event of
any voluntary or involuntary liquidation, winding-up or dissolution of the Corporation, each Holder shall be entitled to receive the Liquidation Preference per share of Mandatory Convertible Preferred Stock,
plus an amount equal to accumulated and unpaid dividends on such shares to, but excluding, the date fixed for liquidation, winding-up or dissolution (the “Liquidation
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Dividend Amount”) to be paid out of the assets of the Corporation available for distribution to its stockholders, after satisfaction of liabilities owed to the Corporation’s
creditors and holders of any Senior Stock, and before any payment or distribution is made to holders of any Junior Stock, including, without limitation, Common Stock.
(b) Neither the sale of all or substantially all of the assets or business of the Corporation (other than in connection with the liquidation, winding-up or dissolution of the Corporation), nor the merger or consolidation of the Corporation into or with any other Person, or a statutory conversion or domestication, shall be deemed to be a voluntary or
involuntary liquidation, winding-up or dissolution of the Corporation for the purposes of this Section 4.
(c) If, upon the voluntary or involuntary liquidation, winding-up or dissolution of the Corporation,
the amounts payable with respect to (1) the Liquidation Preference plus the Liquidation Dividend Amount of the Mandatory Convertible Preferred Stock and (2) the liquidation preference of, and the amount of accumulated and unpaid
dividends to, but excluding, the date fixed for liquidation, winding-up or dissolution on, all other Parity Stock are not paid in full, the Holders and all holders of any such other Parity Stock shall share
equally and ratably in any distribution of the Corporation’s assets in proportion to the respective liquidation preferences and amounts equal to the accumulated and unpaid dividends to which they are entitled.
(d) After the payment to any Holder of the full amount of the Liquidation Preference and the Liquidation Dividend Amount for each of such
Holder’s shares of Mandatory Convertible Preferred Stock, such Holder as such shall have no right or claim to any of the remaining assets of the Corporation.
SECTION 5. No Redemption; No Sinking Fund. The Mandatory Convertible Preferred Stock shall not be subject to any redemption,
sinking fund or other similar provisions.
SECTION 6. Voting Rights.
(a) General. Holders shall not have any voting rights except as set forth in this Section 6 or as otherwise from time to time
specifically required by Delaware law.
(b) Right to Elect Two Directors Upon Nonpayment. (i) Whenever dividends on any shares
of Mandatory Convertible Preferred Stock have not been declared and paid for the equivalent of six or more Dividend Periods (including, for the avoidance of doubt, the Dividend Period beginning on, and including, the Initial Issue Date and ending
on, but excluding, September 1, 2026), whether or not for consecutive Dividend Periods (a “Nonpayment”), the Holders, voting together as a single class with holders of any and all other series of Voting Preferred Stock then
outstanding, shall be entitled at the Corporation’s next special or annual meeting of stockholders to vote for the election of a total of two additional members of the Board of Directors (the “Preferred Stock
Directors”); provided that the election of any such directors will not cause the Corporation to violate the corporate governance requirements of the Nasdaq Stock Market LLC (or any other exchange or automated quotation
system on which the Corporation’s securities may be listed or quoted) that requires listed or quoted companies to have a majority of independent directors; provided further that the Board of Directors shall at no time include more than
two Preferred Stock Directors. In the event of a Nonpayment, the authorized number of directors then constituting the Board of Directors will be increased by two (or the Corporation will vacate the offices of two directors), and the new directors
shall be designated for election at an annual or special meeting of stockholders called by the Board of Directors, subject to its fiduciary duties, at the request of the holders of record of at least 25% of the shares of Mandatory Convertible
Preferred Stock or of any other series of Voting Preferred Stock (provided that if such request is not received at least 90 calendar days before the date fixed for the next annual or special meeting of the stockholders, such election shall be
held at such next annual or special meeting of stockholders), and at each subsequent annual meeting, so long as the Holders continue to have such voting rights. At any meeting at which the Holders are entitled to elect Preferred Stock Directors, the
holders of record of a majority of the then outstanding shares of the Mandatory Convertible Preferred Stock and all other series of Voting Preferred Stock, present in person or represented by proxy, will constitute a quorum and the vote of the
holders of a majority of such shares of the Mandatory Convertible Preferred Stock and other Voting Preferred Stock so present or represented by proxy at any such meeting at which there shall be a quorum shall be sufficient to elect the preferred
stock directors. Whether a plurality, majority or other portion of the Mandatory Convertible Preferred Stock and any other Voting Preferred Stock have been voted in favor of any matter shall be determined by reference to the respective liquidation
preference amounts of the Mandatory Convertible Preferred Stock and such other Voting Preferred Stock voted.
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(ii) Any request to call a meeting for the initial election of the Preferred
Stock Directors after a Nonpayment shall be made by written notice, signed by the requisite holders of Mandatory Convertible Preferred Stock or Voting Preferred Stock then outstanding, and delivered to the Corporation in such manner as provided for
in Section 16 below, or as may otherwise be required by law.
(iii) If and when all accumulated and unpaid dividends
on the Mandatory Convertible Preferred Stock have been paid in full, or declared and a sum sufficient for such payment shall have been set aside (a “Nonpayment Remedy”), the Holders shall immediately and, without any further
action by the Corporation, be divested of the voting rights described in this Section 6(b), subject to the revesting of such rights in the event of each subsequent Nonpayment. If such voting rights for the Holders and all other holders of
Voting Preferred Stock shall have terminated, the term of office of each Preferred Stock Director so elected shall terminate at such time and the number of directors on the Board of Directors shall automatically decrease by two.
(iv) Any Preferred Stock Director may be removed at any time, with or without cause, by the holders of record of a majority in
voting power of the outstanding shares of the Mandatory Convertible Preferred Stock and any other series of Voting Preferred Stock then outstanding (voting together as a single class) when they have the voting rights described in this
Section 6(b). In the event that a Nonpayment shall have occurred and there shall not have been a Nonpayment Remedy, any vacancy in the office of a Preferred Stock Director (other than prior to the initial election of Preferred Stock Directors
after a Nonpayment) may be filled by the written consent of the Preferred Stock Director remaining in office or, if none remains in office, by a vote of the holders of record of a majority in voting power of the outstanding shares of the Mandatory
Convertible Preferred Stock and any other series of Voting Preferred Stock then outstanding (voting together as a single class) when they have the voting rights described in this Section 6(b); provided that the filling of each
vacancy will not cause the Corporation to violate the corporate governance requirements of the Nasdaq Stock Market LLC (or any other exchange or automated quotation system on which the Corporation’s securities may be listed or quoted) that
requires listed or quoted companies to have a majority of independent directors. Any such vote of Holders and holders of any Voting Preferred Stock to remove, or to fill a vacancy in the office of, a Preferred Stock Director may be taken only at an
annual or special meeting of stockholders of the Corporation, called as provided above for an initial election of Preferred Stock Directors after a Nonpayment (provided that if such request is not received at least 90 calendar days before the
date fixed for the next annual or special meeting of the stockholders of the Corporation, such vote shall be taken at such next annual or special meeting of stockholders of the Corporation). Each Preferred Stock Director elected at any annual or
special meeting of stockholders of the Corporation or by written consent of the other Preferred Stock Director shall hold office until the next annual meeting of the stockholders of the Corporation if such office shall not have previously terminated
and such Preferred Stock Director shall not have been removed from such office, in each case as provided above. The Preferred Stock Directors will each be entitled to one vote per director on any matter that comes before the Board of Directors for a
vote.
(c) Other Voting Rights. So long as any shares of Mandatory Convertible Preferred Stock are outstanding, in addition to any
other vote or consent of stockholders required by law or by the Certificate of Incorporation, the affirmative vote or consent of the Holders of at least two-thirds of the outstanding shares of Mandatory
Convertible Preferred Stock given in person or by proxy, either in writing without a meeting or by vote at any meeting called for such purpose, shall be necessary for effecting or validating:
(i) any authorization or creation of, or any increase in the authorized amount of, any Senior Stock;
(ii) any amendment, alteration or repeal of any provision of the Certificate of Incorporation or this Certificate of
Designations so as to materially and adversely affect the special rights, preferences, privileges or voting powers of the Mandatory Convertible Preferred Stock; or
(iii) any consummation of a binding share exchange or reclassification involving the Mandatory Convertible Preferred Stock, or
of a merger or consolidation of the Corporation with or into another Person, unless either (x) the shares of Mandatory Convertible Preferred Stock remain outstanding and have special
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rights, preferences, privileges and voting powers, taken as a whole, that are no less favorable to the Holders thereof in any material respect than the special rights, preferences, privileges and
voting powers of the Mandatory Convertible Preferred Stock immediately prior to such consummation, taken as a whole, or (y) in the case of any such merger or consolidation with respect to which the Corporation is not the surviving or resulting
entity, the shares of Mandatory Convertible Preferred Stock are converted into or exchanged for preference securities of the surviving or resulting entity or its ultimate parent, and such preference securities have special rights, preferences,
privileges and voting powers, taken as a whole, that are no less favorable to the holders thereof in any material respect than the special rights, preferences, privileges and voting powers of the Mandatory Convertible Preferred Stock immediately
prior to such consummation, taken as a whole; provided, however, that for all purposes of this Section 6(c), (1) any increase in the amount of the Corporation’s authorized but unissued shares of Preferred Stock, (2) any
increase in the amount of the Corporation’s authorized or issued shares of Mandatory Convertible Preferred Stock, (3) the creation and issuance, or an increase in the authorized or issued amount, of any series of Junior Stock or any other
series of Parity Stock and (4) the application of the provisions set forth in Section 13(e) shall in each case be deemed not to materially and adversely affect the special rights, preferences, privileges or voting powers of the Mandatory
Convertible Preferred Stock and shall not require the affirmative vote or consent of Holders.
(d) Change for Clarification.
Without the consent of the Holders of the Mandatory Convertible Preferred Stock, the Corporation may amend, alter, supplement or repeal any terms of the Mandatory Convertible Preferred Stock by amending or supplementing the Certificate of
Incorporation, this Certificate of Designations or any stock certificate representing shares of the Mandatory Convertible Preferred Stock:
(i) to cure any ambiguity, omission, inconsistency or mistake in any such agreement or instrument;
(ii) to make any provision with respect to matters or questions relating to the Mandatory Convertible Preferred Stock that is
not inconsistent with the provisions of this Certificate of Designations and that does not materially and adversely affect the rights of any Holder; or
(iii) to make any other change that does not materially and adversely affect the rights of any Holder (other than any Holder
that consents to such change).
In addition, without the consent of the Holders, the Corporation may amend, alter, supplement or repeal
any terms of the Mandatory Convertible Preferred Stock to (x) conform the terms of the Mandatory Convertible Preferred Stock to the description thereof in the Prospectus as supplemented and/or amended by the “Description of Mandatory
Convertible Preferred Stock” section of the Prospectus Supplement or (y) file a certificate of correction with respect to this Certificate of Designations to the extent permitted by Section 103(f) of the General Corporation Law of
the State of Delaware.
(e) Prior to the close of business on the applicable Conversion Date, the shares of Common Stock issuable upon
conversion of the Mandatory Convertible Preferred Stock shall not be deemed to be outstanding and Holders shall have no voting rights with respect to such shares of Common Stock by virtue of holding the Mandatory Convertible Preferred Stock,
including the right to vote on any amendment to the Certificate of Incorporation or this Certificate of Designations that would adversely affect the rights of holders of the Common Stock.
(f) The number of votes that each share of Mandatory Convertible Preferred Stock and each share of any Voting Preferred Stock participating in
the votes as described in this Section 6 shall have shall be in proportion to the liquidation preference of such share.
(g)
Procedures for Voting and Consents. The rules and procedures for calling and conducting any meeting of the Holders (including, without limitation, the fixing of a record date in connection therewith), the solicitation and use of proxies at
such a meeting, the obtaining of written consents and any other procedural aspect or matter with regard to such a meeting or such consents shall be governed by any rules the Board of Directors (or an authorized committee thereof), in its discretion,
may adopt from time to time, which rules and procedures shall conform to the requirements of the Certificate of Incorporation, the Bylaws, applicable law and the rules of any national securities exchange or other trading facility on which the
Mandatory Convertible Preferred Stock is listed or traded at the time.
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SECTION 7. Mandatory Conversion on the Mandatory Conversion Date. (a) Each
outstanding share of Mandatory Convertible Preferred Stock shall automatically convert (unless previously converted at the option of the Holder in accordance with Section 8 or pursuant to an exercise of a Fundamental Change Early Conversion
Right pursuant to Section 9) on the Mandatory Conversion Date (“Mandatory Conversion”) into a number of shares of Common Stock equal to the Mandatory Conversion Rate.
(b) The “Mandatory Conversion Rate” shall, subject to adjustment in accordance with Section 7(c), be as follows:
(i) if the Applicable Market Value is greater than the Threshold Appreciation Price, then the Mandatory Conversion Rate shall
be equal to 30.3040 shares of Common Stock per share of Mandatory Convertible Preferred Stock (the “Minimum Conversion Rate”);
(ii) if the Applicable Market Value is less than or equal to the Threshold Appreciation Price but equal to or greater than the
Initial Price, then the Mandatory Conversion Rate per share of Mandatory Convertible Preferred Stock shall be equal to $1,000 divided by the Applicable Market Value, rounded to the nearest
ten-thousandth of a share of Common Stock; or
(iii) if the Applicable Market Value
is less than the Initial Price, then the Mandatory Conversion Rate shall be equal to 36.3640 shares of Common Stock per share of Mandatory Convertible Preferred Stock (the “Maximum Conversion Rate”); provided that the Fixed
Conversion Rates and the Applicable Market Value are each subject to adjustment in accordance with the provisions of Section 13.
For
the avoidance of doubt, the Mandatory Conversion Rate per share of Mandatory Convertible Preferred Stock will in no event exceed the Maximum Conversion Rate, subject to adjustment in accordance with the provisions of Section 13 below and
exclusive of any amounts owing in respect of accumulated but unpaid dividends at the Corporation’s election in shares of Common Stock.
(c) If the Corporation declares a dividend on the Mandatory Convertible Preferred Stock for the Dividend Period ending on June 1, 2029,
the Corporation shall pay such dividend to the Record Holders at the close of business as of May 15, 2029 as set forth in Section 3. If, on or prior to May 15, 2029, the Corporation has not declared all or any portion of all
accumulated and unpaid dividends on the Mandatory Convertible Preferred Stock through June 1, 2029, the Mandatory Conversion Rate shall be adjusted so that Holders receive an additional number of shares of Common Stock equal to the amount of
such accumulated and unpaid dividends that have not been declared (the “Mandatory Conversion Additional Conversion Amount”), divided by the greater of (i) the Floor Price and (ii) 97% of the Five-Day Average Price (calculated as if the applicable Dividend Payment Date were June 1, 2029). To the extent that the Mandatory Conversion Additional Conversion Amount exceeds the product of such number of
additional shares of Common Stock and 97% of such Five-Day Average Price, the Corporation shall, if the Corporation is legally able to do so and to the extent permitted under the terms of the documents
governing any of the Corporation’s indebtedness, declare and pay such excess amount in cash pro rata per share of Mandatory Convertible Preferred Stock to the Holders.
SECTION 8. Early Conversion at the Option of the Holder. (a) Other than during a Fundamental Change Conversion Period, the
Holders shall have the right to convert their shares of Mandatory Convertible Preferred Stock, in whole or in part (but in no event less than one share of Mandatory Convertible Preferred Stock), at any time prior to June 1, 2029
(“Early Conversion”), into shares of Common Stock at the Minimum Conversion Rate, subject to adjustment as described in Section 13 and to satisfaction of the conversion procedures set forth in Section 10.
(b) If, as of any Early Conversion Date relating to an Early Conversion, the Corporation has not declared all or any portion of the
accumulated and unpaid dividends for all full Dividend Periods ending on or prior to the Dividend Payment Date immediately preceding such Early Conversion Date, the Minimum Conversion Rate shall be adjusted, with respect to such Early Conversion, so
that the converting Holder receives an additional number of shares
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of Common Stock equal to the amount of accumulated and unpaid dividends that have not been declared for such full Dividend Periods (the “Early Conversion Additional Amount”),
divided by the greater of (i) the Floor Price and (ii) the Average VWAP per share of the Common Stock over the 20 consecutive Trading Day period ending on, and including, the second Trading Day immediately preceding such Early
Conversion Date (such average being referred to as the “Early Conversion Average Price”). For the avoidance of doubt and notwithstanding the last sentence under Section 3(e), to the extent that the Early Conversion Additional
Amount exceeds the product of such number of additional shares of Common Stock and the Early Conversion Average Price, the Corporation will not have any obligation to pay the shortfall in cash. Except as described in the first sentence of this
Section 8(b), upon any Early Conversion of any shares of the Mandatory Convertible Preferred Stock, the Corporation shall make no payment or allowance for unpaid dividends on such shares of the Mandatory Convertible Preferred Stock, unless the
Early Conversion Date occurs after the Record Date for a declared dividend and on or prior to the immediately succeeding Dividend Payment Date, in which case the Corporation shall pay such dividend on such Dividend Payment Date to the Record Holder
of the converted shares Mandatory Convertible Preferred Stock as of such Record Date, in accordance with Section 3.
SECTION 9.
Fundamental Change Conversion. (a) If a Fundamental Change occurs on or prior to June 1, 2029, the Holders shall have the right (the “Fundamental Change Early Conversion Right”) to: (i) convert their shares
of Mandatory Convertible Preferred Stock, in whole or in part (but in no event less than one share of Mandatory Convertible Preferred Stock) (any such conversion pursuant to this Section 9(a) being a “Fundamental Change
Conversion”), at any time during the period (the “Fundamental Change Conversion Period”) that begins on, and includes, the effective date of such Fundamental Change (the “Effective Date”) and ends at
the close of business on the date that is the earlier of (x) 20 calendar days after the Effective Date (or, if later, the date that is 20 calendar days after Holders receive notice of such Fundamental Change) and (y) June 1, 2029 (and, for
the avoidance of doubt, the Fundamental Change Conversion Period may not end on a date that is later than June 1, 2029), into a number of shares of Common Stock equal to the Fundamental Change Conversion Rate per share of Mandatory Convertible
Preferred Stock; (ii) with respect to such converted shares of Mandatory Convertible Preferred Stock, receive an amount equal to the present value, as of the Effective Date, calculated using a discount rate of 8.90% per annum, of all scheduled
dividend payments on such shares (excluding any Accumulated Dividend Amount) for all the remaining full Dividend Periods and for the partial Dividend Period from, and including, such Effective Date to, but excluding, the next Dividend Payment Date
(the “Fundamental Change Dividend Make-Whole Amount”); and (iii) with respect to such converted shares of Mandatory Convertible Preferred Stock, to the extent that, as of such Effective Date, there is any Accumulated Dividend
Amount, receive payment of the Accumulated Dividend Amount (the amounts described in clauses (ii) and (iii), collectively, the “Make-Whole Dividend Amount”), in the case of clauses (ii) and (iii), subject to the
Corporation’s right to deliver shares of Common Stock in lieu of all or part of such amounts as set forth in clause (d) below; provided that, if such Effective Date or the relevant Fundamental Change Conversion Date falls
after the Record Date for a declared dividend and prior to the next Dividend Payment Date, the Corporation shall pay such dividend on such Dividend Payment Date to the Record Holders at the close of business on the immediately preceding Record Date,
in accordance with Section 3, such dividend shall not be included in the Accumulated Dividend Amount, and the Fundamental Change Dividend Make-Whole Amount shall not include the present value of the payment of such dividend.
(b) The Corporation shall provide written notice (a “Fundamental Change Notice”) to Holders of the Effective Date of a
Fundamental Change no later than the second Business Day following such Effective Date. The Fundamental Change Notice shall state:
(i) the event causing the Fundamental Change;
(ii) the Effective Date;
(iii) that Holders shall have the right to effect a Fundamental Change Conversion in connection with such Fundamental Change
during the Fundamental Change Conversion Period;
(iv) the Fundamental Change Conversion Period; and
(v) the instructions a Holder must follow to effect a Fundamental Change Conversion in connection with such Fundamental Change.
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(c) In addition, not later than the second Business Day following the Effective Date of a
Fundamental Change, the Corporation shall notify Holders of:
(i) the Fundamental Change Conversion Rate;
(ii) the Fundamental Change Dividend Make-Whole Amount and whether the Corporation will pay such amount, or any portion
thereof, in shares of Common Stock and, if applicable, the portion of such amount that will be paid in Common Stock; and
(iii) the Accumulated Dividend Amount and whether the Corporation will pay such amount, or any portion thereof, in shares of
Common Stock and, if applicable, the portion of such amount that will be paid in Common Stock.
If the Corporation notifies Holders of a
Fundamental Change later than the second Business Day following the Effective Date, the Fundamental Change Conversion Period will be extended by a number of days equal to the number of days from, and including, such Effective Date to, but excluding,
the date of the Fundamental Change Notice; provided, however, that the Fundamental Change Conversion Period will not be extended beyond June 1, 2029.
(d) (i) For any shares of Mandatory Convertible Preferred Stock that are converted during the Fundamental Change Conversion Period, subject to
the limitations described below, in addition to the Common Stock issued upon conversion at the Fundamental Change Conversion Rate, the Corporation may pay the Make-Whole Dividend Amount, determined in the Corporation’s sole discretion:
(A) by paying cash;
(B) by delivering shares of Common Stock; or
(C) through any combination of paying cash and delivering shares of Common Stock.
(ii) The Corporation shall pay the Make-Whole Dividend Amount in cash, except to the extent the Corporation elects on or prior
to the second Business Day following the Effective Date of a Fundamental Change to make all or any portion of such payments by delivering shares of Common Stock. If the Corporation elects to make any payment of the Make-Whole Dividend Amount, or any
portion thereof, in shares of Common Stock, such shares shall be valued for such purpose at 97% of the applicable Stock Price.
(iii) No fractional shares of Common Stock shall be delivered by the Corporation to converting Holders in respect of the
Make-Whole Dividend Amount. A cash adjustment shall instead be paid by the Corporation to each Holder that would otherwise be entitled to receive a fraction of a share of Common Stock based on the Average VWAP per share of Common Stock over the five
consecutive Trading Day period ending on, and including, the second Trading Day immediately preceding the relevant Fundamental Change Conversion Date.
(iv) Notwithstanding the foregoing, with respect to any Fundamental Change Conversion, in no event shall the number of shares
of Common Stock that the Corporation delivers in lieu of paying all or any portion of the Make-Whole Dividend Amount in cash exceed a number equal to the portion of the Make-Whole Dividend Amount to be paid by the delivery of Common Stock,
divided by the greater of (i) the Floor Price and (ii) 97% of the applicable Stock Price. To the extent that the portion of the Make-Whole Dividend Amount as to which the Corporation has elected to deliver shares of Common Stock in lieu
of paying cash exceeds the product of the number of shares of Common Stock delivered in respect of such portion of the Make-Whole Dividend Amount and 97% of the applicable Stock Price, the Corporation shall, if the Corporation is legally able to do
so, and to the extend permitted under the terms of the documents governing any of the Corporation’s indebtedness, notwithstanding any notice by the Corporation to the contrary, pay such excess amount in cash.
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(v) If the Corporation is prohibited from paying or delivering, as the case
may be, the Make-Whole Dividend Amount (whether in cash or in shares of Common Stock), in whole or in part, due to limitations of applicable Delaware law, the Fundamental Change Conversion Rate shall instead be increased by a number of shares of
Common Stock equal to the cash amount of the aggregate unpaid and undelivered Make-Whole Dividend Amount, divided by the greater of (i) the Floor Price and (ii) 97% of the applicable Stock Price. In such case, to the extent that the cash
amount of the aggregate unpaid and undelivered Make-Whole Dividend Amount exceeds the product of such number of additional shares of Common Stock and 97% of the applicable Stock Price, the Corporation shall not have any obligation to pay the
shortfall in cash.
SECTION 10. Conversion Procedures. (a) Pursuant to Section 7, on the Mandatory Conversion Date,
any outstanding shares of Mandatory Convertible Preferred Stock shall automatically convert into shares of Common Stock. The Person or Persons entitled to receive the shares of Common Stock issuable upon Mandatory Conversion of the Mandatory
Convertible Preferred Stock shall be treated as the record holder(s) of such shares of Common Stock as of the close of business on the Mandatory Conversion Date. Except as provided under Section 13(a)(vii), Section 13(c)(iii) and
Section 13(c)(v), prior to the close of business on the Mandatory Conversion Date, the shares of Common Stock issuable upon Mandatory Conversion of the Mandatory Convertible Preferred Stock shall not be deemed to be outstanding for any purpose
and Holders shall have no rights with respect to such shares of Common Stock, including voting rights, rights to respond to tender offers and rights to receive any dividends or other distributions on the Common Stock, by virtue of holding the
Mandatory Convertible Preferred Stock.
(b) To effect an Early Conversion pursuant to Section 8, a Holder must:
(i) complete and manually or electronically sign the conversion notice on the back of the Mandatory Convertible Preferred Stock
certificate or a facsimile of such conversion notice;
(ii) deliver the completed conversion notice and the certificated
shares of Mandatory Convertible Preferred Stock to be converted to the Conversion and Dividend Disbursing Agent;
(iii) if
required, furnish appropriate endorsements and transfer documents; and
(iv) if required, pay all applicable taxes or
duties, if any.
Notwithstanding the foregoing, to effect an Early Conversion pursuant to Section 8 of shares of Mandatory
Convertible Preferred Stock held in global form, the Holder must, in lieu of the foregoing, comply with the applicable procedures of DTC (or any other depositary for the shares of Mandatory Convertible Preferred Stock held in global form appointed
by the Corporation).
The Early Conversion shall be effective on the date on which a Holder has satisfied the foregoing requirements, to
the extent applicable (the “Early Conversion Date”); provided that, for the avoidance of doubt, in no event may such Early Conversion Date occur after June 1, 2029. A Holder shall not be required to pay any stock
transfer and documentary stamp taxes or duties relating to the issuance or delivery of Common Stock if such Holder exercises its Early Conversion rights, but such Holder shall be required to pay any tax or duty that may be payable relating to any
transfer involved in the issuance or delivery of Common Stock in a name other than the name of such Holder. A certificate representing the shares of Common Stock issuable upon Early Conversion shall be issued and delivered to the converting Holder,
together with delivery by the Corporation to the converting Holder of any cash to which the converting Holder is entitled, on the later of the second Business Day immediately succeeding the Early Conversion Date and the Business Day after the Holder
has paid in full all applicable taxes and duties, if any.
The Person or Persons entitled to receive the shares of Common Stock issuable
upon an Early Conversion shall be treated for all purposes as the record holder(s) of such shares of Common Stock as of the close of business on the applicable Early Conversion Date. Except as set forth in Section 13(a)(vii),
Section 13(c)(iii) and Section 13(c)(v), prior to the close of business on the applicable Early Conversion Date, the shares of Common Stock issuable upon Early Conversion of any shares of Mandatory Convertible Preferred Stock shall not be
deemed to be outstanding for any purpose, and Holders shall have no rights with respect to such shares of Common Stock (including voting rights, rights to respond to tender offers for the Common Stock and rights to receive any dividends or other
distributions on the Common Stock) by virtue of holding shares of Mandatory Convertible Preferred Stock.
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In the event that an Early Conversion is effected with respect to shares of Mandatory
Convertible Preferred Stock representing less than all the shares of Mandatory Convertible Preferred Stock held by a Holder, upon such Early Conversion the Corporation shall execute and instruct the Registrar and Transfer Agent to countersign and
deliver to the Holder thereof, at the expense of the Corporation, a certificate evidencing the shares of Mandatory Convertible Preferred Stock as to which Early Conversion was not effected.
(c) To effect a Fundamental Change Conversion pursuant to Section 9, a Holder must:
(i) complete and manually or electronically sign the conversion notice on the back of the Mandatory Convertible Preferred Stock
certificate or a facsimile of such conversion notice;
(ii) deliver the completed conversion notice and the certificated
shares of Mandatory Convertible Preferred Stock to be converted to the Conversion and Dividend Disbursing Agent;
(iii) if
required, furnish appropriate endorsements and transfer documents; and
(iv) if required, pay all applicable taxes or
duties, if any.
Notwithstanding the foregoing, to effect a Fundamental Change Conversion pursuant to Section 9 of shares of
Mandatory Convertible Preferred Stock held in global form, the Holder must, in lieu of the foregoing, comply with the applicable procedures of DTC (or any other depositary for the shares of Mandatory Convertible Preferred Stock held in global form
appointed by the Corporation).
The Fundamental Change Conversion shall be effective on the date on which a Holder has satisfied the
foregoing requirements, to the extent applicable (the “Fundamental Change Conversion Date”); provided that, for the avoidance of doubt, in no event may such Fundamental Change Conversion Date occur after June 1, 2029.
A Holder shall not be required to pay any stock transfer and documentary stamp taxes or duties relating to the issuance or delivery of Common Stock if such Holder exercises its Fundamental Change Early Conversion Right, but such Holder shall be
required to pay any tax or duty that may be payable relating to any transfer involved in the issuance or delivery of Common Stock in a name other than the name of such Holder. A certificate representing the shares of Common Stock issuable upon
Fundamental Change Conversion shall be issued and delivered to the converting Holder, together with delivery by the Corporation to the converting Holder of any cash to which the converting Holder is entitled, on the later of the second Business Day
immediately succeeding the Fundamental Change Conversion Date and the Business Day after the Holder has paid in full all applicable taxes and duties, if any.
The Person or Persons entitled to receive the shares of Common Stock issuable upon a Fundamental Change Conversion shall be treated for all
purposes as the record holder(s) of such shares of Common Stock as of the close of business on the applicable Fundamental Change Conversion Date. Except as set forth in Section 13(a)(vii), Section 13(c)(iii) and Section 13(c)(v),
prior to the close of business on the applicable Fundamental Change Conversion Date, the shares of Common Stock issuable upon Fundamental Change Conversion of any shares of Mandatory Convertible Preferred Stock shall not be deemed to be outstanding
for any purpose, and Holders shall have no rights with respect to such shares of Common Stock (including voting rights, rights to respond to tender offers for the Common Stock and rights to receive any dividends or other distributions on the Common
Stock) by virtue of holding shares of Mandatory Convertible Preferred Stock.
In the event that a Fundamental Change Conversion is
effected with respect to shares of Mandatory Convertible Preferred Stock representing less than all the shares of Mandatory Convertible Preferred Stock held by a Holder, upon such Fundamental Change Conversion the Corporation shall execute and
instruct the Registrar and Transfer Agent to countersign and deliver to the Holder thereof, at the expense of the Corporation, a certificate evidencing the shares of Mandatory Convertible Preferred Stock as to which Fundamental Change Conversion was
not effected.
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(d) In the event that a Holder shall not by written notice designate the name in which
shares of Common Stock to be issued upon conversion of such Mandatory Convertible Preferred Stock should be registered or, if applicable, the address to which the certificate or certificates representing such shares of Common Stock should be sent,
the Corporation shall be entitled to register such shares, and make such payment, in the name of the Holder as shown on the records of the Corporation and, if applicable, to send the certificate or certificates representing such shares of Common
Stock to the address of such Holder shown on the records of the Corporation.
(e) Shares of Mandatory Convertible Preferred Stock shall
cease to be outstanding on the applicable Conversion Date, subject to the right of Holders of such shares to receive shares of Common Stock issuable upon conversion of such shares of Mandatory Convertible Preferred Stock and other amounts and shares
of Common Stock, if any, to which they are entitled pursuant to Section 7, 8 or 9, as applicable and, if the applicable Conversion Date occurs after the Record Date for a declared dividend and on or prior to the immediately succeeding Dividend
Payment Date, subject to the right of the Record Holders of such shares on such Record Date to receive payment of the full amount of such declared dividend on such Dividend Payment Date pursuant to Section 3.
(f) If the Corporation (or an applicable withholding agent) is required to withhold on constructive distributions to a Holder and pay the
applicable withholding taxes, the Corporation may, at its option, or an applicable withholding agent may, withhold such taxes from payments of cash or shares of Common Stock payable to such Holder.
SECTION 11. Reservation of Common Stock. The Corporation shall at all times reserve and keep available out of its authorized and
unissued Common Stock or shares of Common Stock held in the treasury by the Corporation, solely for issuance upon the conversion of shares of Mandatory Convertible Preferred Stock as herein provided, free from any preemptive or other similar rights,
a number of shares of Common Stock equal to the maximum number of shares of Common Stock issuable upon conversion of all shares of Mandatory Convertible Preferred Stock then outstanding (including, for the avoidance of doubt, the maximum Mandatory
Conversion Additional Conversion Amount). For purposes of this Section 11(a), the number of shares of Common Stock that shall be issuable upon the conversion of all outstanding shares of Mandatory Convertible Preferred Stock shall be computed
as if at the time of computation all such outstanding shares were held by a single Holder.
(a) Notwithstanding the foregoing, the
Corporation shall be entitled to deliver upon conversion of shares of Mandatory Convertible Preferred Stock or as payment of any dividend on such shares of Mandatory Convertible Preferred Stock, as herein provided, shares of Common Stock reacquired
and held in the treasury by the Corporation (in lieu of the issuance of authorized and unissued shares of Common Stock), so long as any such treasury shares are free and clear of all liens, charges, security interests or encumbrances (other than
liens, charges, security interests and other encumbrances created by the Holders).
(b) All shares of Common Stock delivered upon
conversion of, or as payment of a dividend on, the Mandatory Convertible Preferred Stock shall be duly authorized, validly issued, fully paid and non-assessable, free and clear of all liens, claims, security
interests and other encumbrances (other than liens, charges, security interests and other encumbrances created by the Holders) and free of preemptive rights.
(c) Prior to the delivery of any securities that the Corporation shall be obligated to deliver upon conversion of, or as payment of a dividend
on, the Mandatory Convertible Preferred Stock, the Corporation shall comply with all federal and state laws and regulations thereunder requiring the registration of such securities with, or any approval of or consent to the delivery thereof by, any
governmental authority.
(d) The Corporation hereby covenants and agrees that, if at any time the Common Stock shall be listed on the
Nasdaq Global Select Market or any other national securities exchange or automated quotation system, the Corporation shall, if permitted by the rules of such exchange or automated quotation system, list and use its commercially reasonable efforts to
keep listed, so long as the Common Stock shall be so listed on such exchange or automated quotation system, all Common Stock issuable upon conversion of, or issuable in respect of the payment of dividends, the Accumulated Dividend Amount or the
Fundamental Change Dividend Make-Whole Amount on, the Mandatory Convertible Preferred Stock; provided, however, that if the rules of such exchange or automated quotation system permit the Corporation to defer the listing of such Common
Stock until the earlier of (x) the first conversion of Mandatory Convertible Preferred Stock into Common Stock in accordance with the provisions hereof and (y) the
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first payment of any dividends, any Accumulated Dividend Amount or any Fundamental Change Dividend Make-Whole Amount on the Mandatory Convertible Preferred
Stock, the Corporation covenants to list such Common Stock issuable upon the earlier of (1) the first conversion of the Mandatory Convertible Preferred Stock and (2) the first payment of any dividends, any Accumulated Dividend Amount or
any Fundamental Change Dividend Make-Whole Amount on the Mandatory Convertible Preferred Stock in accordance with the requirements of such exchange or automated quotation system at such time.
SECTION 12. Fractional Shares. (a) No fractional shares of Common Stock shall be issued as a result of any conversion of
shares of Mandatory Convertible Preferred Stock.
(b) In lieu of any fractional share of Common Stock otherwise issuable in respect of the
aggregate number of shares of Mandatory Convertible Preferred Stock that are converted on the Mandatory Conversion Date pursuant to Section 7 or at the option of the Holder pursuant to Section 8 or Section 9, the Corporation shall pay
an amount in cash (computed to the nearest cent) equal to the product of (i) that same fraction and (ii) the Average VWAP per share of the Common Stock over the five consecutive Trading Day period ending on, and including, the second
Trading Day immediately preceding the Mandatory Conversion Date, Early Conversion Date or Fundamental Change Conversion Date, as applicable.
(c) Subject to any applicable rules and procedures of DTC, if more than one share of the Mandatory Convertible Preferred Stock is surrendered
for conversion at one time by or for the same Holder, the number of full shares of Common Stock issuable upon conversion thereof shall be computed on the basis of the aggregate number of shares of the Mandatory Convertible Preferred Stock so
surrendered.
SECTION 13. Anti-Dilution Adjustments to the Fixed Conversion Rates.
(a) Each Fixed Conversion Rate shall be subject to the following adjustments:
(i) Stock Dividends and
Distributions. If the Corporation issues Common Stock to all or substantially all holders of Common Stock as a dividend or other distribution, each Fixed Conversion Rate in effect immediately prior to the close of business on the date fixed for
determination of the holders of Common Stock entitled to receive such dividend or other distribution shall be multiplied by a fraction:
(A) the numerator of which is the sum of (x) the number of shares of Common Stock outstanding immediately prior to the
close of business on the date fixed for such determination and (y) the total number of shares of Common Stock constituting such dividend or other distribution; and
(B) the denominator of which is the number of shares of Common Stock outstanding immediately prior to the close of business on
the date fixed for such determination.
Any increase made pursuant to this clause (i) shall become effective immediately after the
close of business on the date fixed for such determination. If any dividend or distribution described in this clause (i) is declared but not so paid or made, each Fixed Conversion Rate shall be decreased, effective as of the date the Board of
Directors (or an authorized committee thereof) publicly announces its decision not to make such dividend or distribution, to such Fixed Conversion Rate that would be in effect if such dividend or distribution had not been declared. For the purposes
of this clause (i), the number of shares of Common Stock outstanding immediately prior to the close of business on the date fixed for such determination shall not include shares held in treasury by the Corporation but shall include any shares
issuable in respect of any scrip certificates issued in lieu of fractions of shares of Common Stock. The Corporation shall not pay any dividend or make any distribution on shares of Common Stock held in treasury by the Corporation.
(ii) Issuance of Stock Purchase Rights. If the Corporation issues to all or substantially all holders of Common Stock
rights or warrants (other than rights or warrants issued pursuant to a stockholders’ rights plan, customary dividend reinvestment plan, or customary share purchase plan or other similar plans) entitling such holders, for a period of up to 45
calendar days after the announcement date of such issuance, to subscribe for or purchase shares of Common Stock at a price per share less than the Current Market Price of the Common Stock, each Fixed Conversion Rate in effect immediately prior to
the close of business on the date fixed for determination of the holders of Common Stock entitled to receive such rights or warrants shall be increased by multiplying such Fixed Conversion Rate by a fraction:
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(A) the numerator of which is the sum of (x) the number of shares of
Common Stock outstanding immediately prior to the close of business on the date fixed for such determination and (y) the number of shares of Common Stock issuable pursuant to such rights or warrants; and
(B) the denominator of which shall be the sum of (x) the number of shares of Common Stock outstanding immediately prior to
the close of business on the date fixed for such determination and (y) the number of shares of Common Stock equal to the quotient of the aggregate offering price payable to exercise such rights or warrants, divided by the Current Market
Price of the Common Stock.
Any increase made pursuant to this clause (ii) shall become effective immediately after the close of
business on the date fixed for such determination. In the event that such rights or warrants described in this clause (ii) are not so issued, each Fixed Conversion Rate shall be decreased, effective as of the date the Board of Directors (or an
authorized committee thereof) publicly announces its decision not to issue such rights or warrants, to such Fixed Conversion Rate that would then be in effect if such issuance had not been declared. To the extent that such rights or warrants are not
exercised prior to their expiration or shares of Common Stock are otherwise not delivered pursuant to such rights or warrants upon the exercise of such rights or warrants, each Fixed Conversion Rate shall be decreased to such Fixed Conversion Rate
that would then be in effect had the increase made upon the issuance of such rights or warrants been made on the basis of the delivery of only the number of shares of Common Stock actually delivered. In determining whether any rights or warrants
entitle the holders thereof to subscribe for or purchase shares of Common Stock at less than the Current Market Price of the Common Stock, and in determining the aggregate offering price payable to exercise such rights or warrants, there shall be
taken into account any consideration received by the Corporation for such rights or warrants and the amount payable to the Corporation upon exercise or conversion thereof, the value of such consideration (if other than cash) to be determined by the
Board of Directors (or an authorized committee thereof). For the purposes of this clause (ii), the number of shares of Common Stock at the time outstanding shall not include shares held in treasury by the Corporation but shall include any shares
issuable in respect of any scrip certificates issued in lieu of fractions of shares of Common Stock. The Corporation shall not issue any such rights or warrants in respect of shares of Common Stock held in treasury by the Corporation.
(iii) Subdivisions and Combinations of the Common Stock. If outstanding shares of Common Stock shall be subdivided into
a greater number of shares of Common Stock or combined into a lesser number of shares of Common Stock, each Fixed Conversion Rate in effect immediately prior to the open of business on the Effective Date of such subdivision or combination shall be
multiplied by a fraction:
(A) the numerator of which is the number of shares of Common Stock that would be
outstanding immediately after, and solely as a result of, such subdivision or combination; and
(B) the denominator of
which is the number of shares of Common Stock outstanding immediately prior to such subdivision or combination.
Any adjustment made pursuant to this
clause (iii) shall become effective immediately after the open of business on the Effective Date of such subdivision or combination.
(iv) Debt or Asset Distribution. (A) If the Corporation distributes to all or substantially all holders of Common
Stock evidences of its indebtedness, shares of capital stock, securities, rights to acquire the Corporation’s capital stock (other than rights issued pursuant to a stockholders’ rights plan so long as such rights have not separated from
the Common Stock), cash or other assets (excluding (1) any dividend or distribution as to which an adjustment was effected pursuant to Section 13(a)(i), (2) any rights or warrants as to which an adjustment was effected pursuant to
Section 13(a)(ii), (3) any dividend or distribution as to which the provisions set forth in Section 13(a)(v) shall apply and (4) any Spin-Off, as to which the provisions set forth in
Section 13(a)(iv)(B) shall apply) (any such evidences of indebtedness, shares of capital stock, securities, rights to acquire the Corporation’s capital stock, cash or other assets, the “Distributed Property”), each
Fixed Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of holders of Common Stock entitled to receive such distribution shall be multiplied by a fraction:
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(1) the numerator of which is the Current Market Price of the Common Stock,
and
(2) the denominator of which is the Current Market Price of the Common Stock minus the Fair Market Value, on
the Ex-Date of such distribution, of the portion of the Distributed Property so distributed applicable to one share of Common Stock.
Any increase made pursuant to this Section 13(a)(iv)(A) shall become effective immediately after the close of business on the date fixed
for such determination. In the event that such distribution described in this Section 13(a)(iv)(A) is not so made, each Fixed Conversion Rate shall be decreased, effective as of the date the Board of Directors (or an authorized committee
thereof) publicly announces its decision not to make such distribution, to such Fixed Conversion Rate that would then be in effect if such distribution had not been declared.
(B) In the case of a Spin-Off, each Fixed Conversion Rate in effect immediately prior
to the open of business on the Ex-Date of such distribution shall be multiplied by a fraction:
(1) the numerator of which is the sum of (x) the Current Market Price of the Common Stock and (y) the Current Market
Price of the portion of those shares of capital stock or similar equity interests so distributed that is applicable to one share of Common Stock, and
(2) the denominator of which is the Current Market Price of the Common Stock.
Any increase made pursuant to this Section 13(a)(iv)(B) shall be made immediately following the determination of the Current Market Price
of the Common Stock, but shall become retroactively effective immediately after the open of business on the Ex-Date of such distribution. In the event that such distribution described in this
Section 13(a)(iv)(B) is not so made, each Fixed Conversion Rate shall be decreased, effective as of the date the Board of Directors (or an authorized committee thereof) publicly announces its decision not to make such distribution, to such
Fixed Conversion Rate that would then be in effect if such distribution had not been declared. Because the Corporation shall make any increase to each Fixed Conversion Rate pursuant to this Section 13(a)(iv)(B) with retroactive effect as
described above, the Corporation shall delay the settlement of any conversion of the Mandatory Convertible Preferred Stock where any date for determining the number of shares of Common Stock issuable to a Holder upon such conversion occurs during
the period set forth in clause (ii) of the definition of “Current Market Price” until the second Business Day immediately following the last Trading Day of such period.
For purposes of this clause (iv) (and subject in all respects to clause (viii)), rights or warrants distributed by the Corporation to all or
substantially all holders of its Common Stock entitling them to subscribe for or purchase shares of the Corporation’s capital stock, including Common Stock (either initially or under certain circumstances), which rights or warrants, until the
occurrence of a specified event or events (“Trigger Event”): (i) are deemed to be transferred with such shares of the Common Stock; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of
the Common Stock, shall be deemed not to have been distributed for purposes of this clause (iv) (and no adjustment to the Fixed Conversion Rates under this clause (iv) shall be required) until the occurrence of the earliest Trigger Event,
whereupon such rights or warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Fixed Conversion Rates shall be made under this clause (iv). If any such rights or warrants, including any such
existing rights or warrants distributed prior to the Initial Issue Date, are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then
the date of the occurrence of any and each such event shall be deemed to be the date of distribution and the date fixed for the determination of the holders of Common Stock entitled to receive such distribution with respect to new rights or warrants
with such rights (in which case the existing rights or warrants shall be deemed to terminate and expire on such date without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution) of rights or
warrants, or any Trigger Event or other
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event (of the type described in the immediately preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Fixed
Conversion Rates under this clause (iv) was made, (1) in the case of any such rights or warrants that shall all have been redeemed or purchased without exercise by any holders thereof, upon such final redemption or purchase (x) the
Fixed Conversion Rates shall be readjusted as if such rights or warrants had not been issued and (y) the Fixed Conversion Rates shall then again be readjusted to give effect to such distribution, deemed distribution, Trigger Event or other
event, as the case may be, as though it were a cash distribution, equal to the per share redemption or purchase price received by a holder or holders of Common Stock with respect to such rights or warrants (assuming such holder had retained such
rights or warrants), made to all holders of Common Stock as of the date of such redemption or purchase, and (2) in the case of such rights or warrants that shall have expired or been terminated without exercise by any holders thereof, the Fixed
Conversion Rates shall be readjusted as if such rights and warrants had not been issued.
For purposes of clause (i), clause (ii) and
this clause (iv), if any dividend or distribution to which this clause (iv) is applicable includes one or both of:
(x) a dividend or
distribution of shares of Common Stock to which clause (i) is applicable (the “Clause I Distribution”); or
(y) an
issuance of rights or warrants to which clause (ii) is applicable (the “Clause II Distribution”), then (1) such dividend or distribution, other than the Clause I Distribution, if any, and the Clause II Distribution, if
any, shall be deemed to be a dividend or distribution to which this clause (iv) is applicable (the “Clause IV Distribution”) and any Fixed Conversion Rate adjustment required by this clause (iv) with respect to such
Clause IV Distribution shall then be made, and (2) the Clause I Distribution, if any, and Clause II Distribution, if any, shall be deemed to immediately follow the Clause IV Distribution and any Fixed Conversion Rate adjustment required by
clause (i) and clause (ii) with respect thereto shall then be made, except that, if determined by the Corporation (I) the date fixed for determination of the holders of Common Stock entitled to receive any Clause I Distribution or
Clause II Distribution shall be deemed to be the date fixed for the determination of holders of Common Stock entitled to receive the Clause IV Distribution and (II) any shares of Common Stock included in any Clause I Distribution or Clause II
Distribution shall be deemed not to be “outstanding immediately prior to the close of business on the date fixed for such determination” within the meaning of clauses (i) and (ii).
(v) Cash Distributions. If the Corporation dividends or distributes an amount consisting exclusively of cash to all or
substantially all holders of Common Stock (excluding (1) any cash that is distributed in exchange for the Common Stock in a Reorganization Event to which Section 13(e) applies, (2) any dividend or distribution in connection with the
liquidation, dissolution or winding-up of the Corporation and (3) any consideration payable as part of a tender or exchange offer by the Corporation or any Subsidiary of the Corporation covered by
Section 13(a)(vi)), each Fixed Conversion Rate in effect immediately prior to the close of business on the date fixed for determination of the holders of Common Stock entitled to receive such dividend or distribution shall be multiplied
by a fraction:
(1) the numerator of which is the Current Market Price of the Common Stock, and
(2) the denominator of which is the Current Market Price of the Common Stock minus the amount per share of Common Stock of
such dividend or distribution.
Any increase made pursuant to this clause (v) shall become effective immediately after the close of
business on the date fixed for the determination of the holders of Common Stock entitled to receive such dividend or distribution. In the event that any dividend or distribution described in this clause (v) is not so made, each Fixed Conversion
Rate shall be decreased, effective as of the date the Board of Directors (or an authorized committee thereof) publicly announces its decision not to make such dividend or distribution, to such Fixed Conversion Rate which would then be in effect if
such dividend or distribution had not been declared.
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(vi) Self Tender Offers and Exchange Offers. If the Corporation or
any Subsidiary of the Corporation successfully completes a tender or exchange offer pursuant to a Schedule TO or registration statement on Form S-4 for the Common Stock where the cash and the value of any
other consideration included in the payment per share of Common Stock exceeds the Current Market Price of the Common Stock, each Fixed Conversion Rate in effect immediately prior to the close of business on the date of expiration of the tender or
exchange offer (the “Expiration Date”) shall be multiplied by a fraction:
(A) the numerator of
which shall be equal to the sum of:
(1) the aggregate cash and Fair Market Value on the Expiration Date of any other
consideration paid or payable for shares of Common Stock purchased in such tender or exchange offer; and
(2) the product
of (x) the Current Market Price of the Common Stock and (y) the number of shares of Common Stock outstanding immediately after such tender or exchange offer expires (after giving effect to the purchase or exchange of shares of Common Stock
pursuant to such tender or exchange offer); and
(B) the denominator of which shall be equal to the product of
(1) the Current Market Price of the Common Stock and (2) the number of shares of Common Stock outstanding immediately prior to the time such tender or exchange offer expires (without giving effect to the purchase or exchange of shares of
Common Stock pursuant to such tender or exchange offer).
Any increase made pursuant to this clause (vi) shall be made immediately
following the determination of the Current Market Price of the Common Stock, but shall become retroactively effective immediately after the close of business on the Expiration Date. In the event that the Corporation or one of its Subsidiaries is
obligated to purchase shares of Common Stock pursuant to any such tender offer or exchange offer, but the Corporation or such Subsidiary is permanently prevented by applicable law from effecting any such purchases, or all such purchases are
rescinded, then each Fixed Conversion Rate shall be decreased to be such Fixed Conversion Rate that would then be in effect if such tender offer or exchange offer had not been made. Except as set forth in the preceding sentence, if the application
of this clause (vi) to any tender offer or exchange offer would result in a decrease in each Fixed Conversion Rate, no adjustment shall be made for such tender offer or exchange offer under this clause (vi). Because the Corporation shall make
any increase to each Fixed Conversion Rate pursuant to this clause (vi) with retroactive effect as described above, the Corporation shall delay the settlement of any conversion of the Mandatory Convertible Preferred Stock where any date for
determining the number of shares of Common Stock issuable to Holders upon such conversion occurs during the period set forth in clause (iii) of the definition of “Current Market Price” until the second Business Day immediately
following the last Trading Day of such period.
(vii) In cases where (i) the Fair Market Value of the Distributed
Property distributed per share of Common Stock as to which Section 13(a)(iv)(A) applies or (ii) the amount of cash distributed per share of Common Stock as to which Section 13(a)(v) applies, in each case, equals or exceeds the Average
VWAP per share of the Common Stock over the ten consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Date of such distribution, rather than being entitled to an
adjustment in each Fixed Conversion Rate, Holders shall be entitled to receive (without having to convert their Mandatory Convertible Preferred Stock), at the same time and upon the same terms as holders of Common Stock, the kind and amount of the
Distributed Property or cash, as the case may be, comprising the distribution that such Holder would have received if such Holder had owned, immediately prior to the record date for determining the holders of Common Stock entitled to receive the
distribution, for each share of Mandatory Convertible Preferred Stock, a number of shares of Common Stock equal to the Maximum Conversion Rate in effect on the date of such distribution.
(viii) Rights Plans. To the extent that the Corporation has a rights plan in effect with respect to the Common Stock on
any Conversion Date, upon conversion of any shares of Mandatory Convertible Preferred Stock, converting Holders shall receive, in addition to the Common Stock, the rights under such rights plan, unless, prior to such Conversion Date, the rights have
separated from the Common Stock, in which case each Fixed Conversion Rate shall be adjusted at the time of separation of such rights as if the Corporation made a distribution to all holders of the Common Stock as described in
Section 13(a)(iv)(A), subject to readjustment in the event of the expiration, termination or redemption of such rights. Any distribution of rights or warrants pursuant to a rights plan that would allow Holders to receive upon
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conversion, in addition to any shares of Common Stock, the rights described therein (unless such rights or warrants have separated from Common Stock (in which case each Fixed Conversion Rate
shall be adjusted at the time of separation as if the Corporation had made a distribution to all holders of Common Stock as described in Section 13(a)(iv)(A), subject to readjustment in the event of the expiration, termination or redemption of
such rights)) shall not constitute a distribution of rights or warrants that would entitle Holders to an adjustment to the Fixed Conversion Rates.
(b) Discretionary Adjustments. The Corporation may make such increases in each Fixed Conversion Rate, in addition to any other
increases required by this Section 13, as the Corporation deems advisable if the Board of Directors (or an authorized committee thereof) determines that such increase would be in the Corporation’s best interest or in order to avoid or
diminish any income tax to holders of the Common Stock resulting from any dividend or distribution of shares of Common Stock (or issuance of rights or warrants to acquire shares of Common Stock) or from any event treated as such for income tax
purposes or for any other reasons; provided that the same proportionate adjustment must be made to each Fixed Conversion Rate.
(c) Calculation of Adjustments; Adjustments to Floor Price and Stock Price. (i) All adjustments to each Fixed Conversion Rate
shall be calculated to the nearest 1/10,000th of a share of Common Stock. Prior to the first Trading Day of the Final Averaging Period, no adjustment to a Fixed Conversion Rate shall be required unless such adjustment would require an increase or
decrease of at least one percent therein. If any adjustment by reason of this Section 13(c)(i) is not required to be made because it would not change the Fixed Conversion Rates by at least one percent, such adjustment shall be carried forward
and taken into account in any subsequent adjustment; provided, however, that the Corporation shall make such adjustments, regardless of whether such aggregate adjustments amount to one percent or more of the Fixed Conversion Rates,
(x) on any Early Conversion Date or Fundamental Change Conversion Date; (y) on the Effective Date of any Fundamental Change; and (z) on each Trading Day of the Final Averaging Period.
(ii) If an adjustment is made to the Fixed Conversion Rates pursuant to Section 13(a) or 13(b), an inversely proportional
adjustment shall also be made to the Floor Price. Such adjustment shall be made by dividing the Floor Price by a fraction, the numerator of which shall be the Minimum Conversion Rate immediately after such adjustment pursuant to Section 13(a)
or 13(b) and the denominator of which shall be the Minimum Conversion Rate immediately before such adjustment. For the avoidance of doubt, if an adjustment is made to the Fixed Conversion Rates pursuant to Section 13(a) or 13(b), no separate
inversely proportional adjustment shall be made to the Initial Price or the Threshold Appreciation Price because the Initial Price is equal to $1,000 divided by the Maximum Conversion Rate (as adjusted in the manner described herein) and the
Threshold Appreciation Price is equal to $1,000 divided by the Minimum Conversion Rate (as adjusted in the manner described herein). Whenever any provision of this Certificate of Designations requires the Corporation to calculate the VWAP per
share of the Common Stock over a span of multiple days, the Board of Directors (or an authorized committee thereof) shall make appropriate adjustments (including, without limitation, to the Applicable Market Value, the Early Conversion Average
Price, the Stock Price and the Five-Day Average Price, as the case may be) to account for any adjustments, pursuant to Section 13(a) or 13(b), to the Fixed Conversion Rates that become effective, or any
event that would require such an adjustment if the record date, Ex-Date, Effective Date or Expiration Date, as the case may be, of such event occurs, during the relevant period used to calculate such prices or
values, as the case may be.
(iii) If:
(A) the record date for a dividend or distribution on Common Stock occurs after the end of the Final Averaging Period and
before the Mandatory Conversion Date; and
(B) such dividend or distribution would have resulted in an adjustment of the
number of shares of Common Stock issuable to the Holders had such record date occurred on or before the last Trading Day of the Final Averaging Period,
25
then the Corporation shall deem the Holders to be holders of record, for each share of their Mandatory
Convertible Preferred Stock, of a number of shares of Common Stock equal to the Mandatory Conversion Rate for purposes of that dividend or distribution. In this case, the Holders would receive the dividend or distribution on Common Stock together
with the number of shares of Common Stock issuable upon Mandatory Conversion.
(iv) If an adjustment is made to the Fixed
Conversion Rates pursuant to Section 13(a) or 13(b), a proportional adjustment shall be made to each Stock Price column heading set forth in the table included in the definition of “Fundamental Change Conversion Rate” as of the day
on which the Fixed Conversion Rates are so adjusted. Such adjustment shall be made by multiplying each Stock Price included in such table, applicable immediately prior to such adjustment, by a fraction, the numerator of which is the Minimum
Conversion Rate immediately prior to the adjustment giving rise to such Stock Price adjustment, and the denominator of which is the Minimum Conversion Rate as so adjusted.
(v) No adjustment to the Fixed Conversion Rates shall be made if Holders may participate (other than in the case of (x) a
share subdivision or share combination or (y) a tender or exchange offer), at the same time, upon the same terms and otherwise on the same basis as holders of Common Stock and solely as a result of holding Mandatory Convertible Preferred Stock,
in the transaction that would otherwise give rise to an adjustment without having to convert their Mandatory Convertible Preferred Stock as if they held, for each share of Mandatory Convertible Preferred Stock, a number of shares of Common Stock
equal to the Maximum Conversion Rate then in effect. In addition, the Fixed Conversion Rates shall not be adjusted except as provided in this Section 13. Without limiting the foregoing, the Fixed Conversion Rates shall not be adjusted:
(A) upon the issuance of any shares of Common Stock (or rights with respect thereto) pursuant to any present or future plan
providing for the reinvestment of dividends or interest payable on the Corporation’s securities and the investment of additional optional amounts in shares of Common Stock under any plan;
(B) upon the issuance of any shares of Common Stock or rights or warrants to purchase those shares pursuant to any present or
future employee, director or consultant benefit or other incentive plan or program of or assumed by the Corporation or any of its Subsidiaries;
(C) upon the issuance of any shares of Common Stock pursuant to any option, warrant, right or exercisable, exchangeable or
convertible security outstanding as of the Initial Issue Date;
(D) for a change solely in the par value of the Common
Stock;
(E) for sales of Common Stock for cash, including the sale of shares of Common Stock for a purchase price that is
less than the applicable market price per share of Common Stock or less than the Initial Price or the Threshold Appreciation Price, other than in a transaction described in Section 13(a)(ii) or Section 13(a)(iv)(A);
(F) for stock repurchases that are not tender or exchange offers, including pursuant to structured or derivative transactions;
(G) as a result of a tender offer solely to holders of fewer than 100 shares of Common Stock;
(H) as a result of a third-party tender or exchange offer, other than a tender or
exchange offer by one of the Corporation’s Subsidiaries as described in Section 13(a)(vi); or
(I) for
accumulated and unpaid dividends on the Mandatory Convertible Preferred Stock, except as provided in Section 7, Section 8 and Section 9.
26
(d) Notice of Adjustment. Whenever the Fixed Conversion Rates and the Fundamental
Change Conversion Rates set forth in the table in the definition of “Fundamental Change Conversion Rate” are to be adjusted, the Corporation shall:
(i) compute such adjusted Fixed Conversion Rates and Fundamental Change Conversion Rates and prepare and transmit to the
Transfer Agent an Officer’s Certificate setting forth such adjusted Fixed Conversion Rates and Fundamental Change Conversion Rates, the method of calculation thereof in reasonable detail and the facts requiring such adjustment and upon which
such adjustment is based;
(ii) as soon as practicable following the occurrence of an event that requires an adjustment to
the Fixed Conversion Rates and the Fundamental Change Conversion Rates, provide, or cause to be provided, a written notice to the Holders of the occurrence of such event; and
(iii) as soon as practicable following the determination of such adjusted Fixed Conversion Rates and Fundamental Change
Conversion Rates provide, or cause to be provided, to the Holders, upon written request by a beneficial owner of the Depositary Shares, a statement setting forth in reasonable detail the method by which the adjustments to the Fixed Conversion Rates
and Fundamental Change Conversion Rates were determined and setting forth such adjusted Fixed Conversion Rates and Fundamental Change Conversion Rates.
(e) Reorganization Events. In the event of:
(i) any consolidation or merger of the Corporation with or into another Person (other than a merger or consolidation in which
the Corporation is the continuing corporation and in which the Common Stock outstanding immediately prior to the merger or consolidation is not exchanged for cash, securities or other property of the Corporation or another Person);
(ii) any sale, transfer, lease or conveyance to another Person of all or substantially all of the consolidated property and
assets of the Corporation and its Subsidiaries;
(iii) any reclassification of Common Stock into securities, including
securities other than Common Stock; or
(iv) any statutory exchange of securities of the Corporation with another Person or
binding share exchange (other than in connection with a merger or consolidation),
in each case, as a result of which the Common Stock would be converted
into, or exchanged for, securities, cash or property (each, a “Reorganization Event”), each share of Mandatory Convertible Preferred Stock outstanding immediately prior to such Reorganization Event shall, without the consent of
the Holders, become convertible into the kind of securities, cash and other property that such Holder would have been entitled to receive if such Holder had converted its Mandatory Convertible Preferred Stock into Common Stock immediately prior to
such Reorganization Event (such securities, cash and other property, the “Exchange Property,” with each “Unit of Exchange Property” meaning the kind and amount of such Exchange Property that a holder of one
share of Common Stock is entitled to receive). For purposes of the foregoing, the type and amount of Exchange Property in the case of any Reorganization Event that causes the Common Stock to be converted into the right to receive more than a single
type of consideration (determined based in part upon any form of stockholder election) shall be deemed to be the weighted average of the types and amounts of consideration actually received by the holders of Common Stock in such Reorganization
Event. The Corporation shall notify Holders of such weighted average as soon as practicable after such determination is made. The number of Units of Exchange Property that the Corporation shall deliver upon conversion of each share of Mandatory
Convertible Preferred Stock or as a payment of dividends on the Mandatory Convertible Preferred Stock, as applicable, following the effective date of such Reorganization Event shall be determined as if references in Section 3, Section 7,
Section 8 and/or Section 9, as applicable, to shares of Common Stock were to Units of Exchange Property (without any interest thereon and without any right to dividends or distributions thereon which have a record date that is prior to the
date on which Holders become holders of record of the underlying Exchange Property, except as provided in Section 13(a)(vii), Section 13(c)(iii) and Section 13(c)(v)). For the purpose of determining which of
27
clause (i), (ii) or (iii) of Section 7(b) shall apply upon Mandatory Conversion, and for the purpose of calculating the Mandatory Conversion Rate if clause (ii) of
Section 7(b) is applicable, the value of a Unit of Exchange Property shall be determined in good faith by the Board of Directors (or an authorized committee thereof), except that if a Unit of Exchange Property includes common stock or American
Depositary Receipts (“ADRs”) that are traded on a U.S. national securities exchange, the value of such common stock or ADRs shall be the average over the Final Averaging Period of the
volume-weighted average prices for such common stock or ADRs, as displayed on the applicable Bloomberg screen (as determined in good faith by the Board of Directors (or an authorized committee thereof)), or,
if such price is not available, the average market value per share of such common stock or ADRs over such period as determined, using a volume-weighted average method, by a nationally recognized independent
investment banking firm retained by the Corporation for this purpose, which may include any of the Underwriters.
The provisions of this
Section 13(e) shall similarly apply to successive Reorganization Events and the provisions of Section 13 shall apply to any shares of capital stock or ADRs of the Corporation (or any successor thereto) received by the holders of Common
Stock in any such Reorganization Event.
The Corporation (or any successor thereto) shall, as soon as reasonably practicable (but in any
event within 20 calendar days) after the occurrence of any Reorganization Event, provide written notice to the Holders of such occurrence and of the kind and amount of the cash, securities or other property that constitute the Exchange Property.
Failure to deliver such notice shall not affect the operation of this Section 13(e).
SECTION 14. Transfer Agent, Registrar,
and Conversion and Dividend Disbursing Agent. The duly appointed Transfer Agent, Registrar and Conversion and Dividend Disbursing Agent for the Mandatory Convertible Preferred Stock shall be Computershare Trust Company, N.A. The Corporation may,
in its sole discretion, remove the Transfer Agent, Registrar or Conversion and Dividend Disbursing Agent in accordance with the agreement between the Corporation and the Transfer Agent, Registrar or Conversion and Dividend Disbursing Agent, as the
case may be; provided that if the Corporation removes Computershare Trust Company, N.A., the Corporation shall appoint a successor transfer agent, registrar or conversion and dividend disbursing agent, as the case may be, who shall accept
such appointment prior to the effectiveness of such removal. Upon any such removal or appointment, the Corporation shall send notice thereof by first-class mail, postage prepaid, to the Holders.
SECTION 15. Record Holders. To the fullest extent permitted by applicable law, the Corporation and the Transfer Agent may deem and
treat the Holder of any shares of Mandatory Convertible Preferred Stock as the true and lawful owner thereof for all purposes.
SECTION 16. Notices. All notices or communications in respect of the Mandatory Convertible Preferred Stock shall be sufficiently
given if given in writing and delivered in person or by first class mail, postage prepaid, or by electronic mail or facsimile, or if given in such other manner as may be permitted in this Certificate of Designations, in the Certificate of
Incorporation or the Bylaws and by applicable law. Notwithstanding the foregoing, if the shares of the Mandatory Convertible Preferred Stock are held in global form, such notices may also be given to the Holders in any manner permitted by DTC or any
similar facility used for the settlement of transactions in the Mandatory Convertible Preferred Stock.
SECTION 17. No Preemptive
Rights. The Holders shall have no preemptive or preferential rights to purchase or subscribe to any stock, obligations, warrants or other securities of the Corporation of any class.
SECTION 18. Other Rights. The shares of the Mandatory Convertible Preferred Stock shall not have any special rights, preferences,
privileges or voting powers or relative, participating, optional or other special rights, or qualifications, limitations or restrictions thereof, other than as set forth herein or in the Certificate of Incorporation or as provided by applicable law.
SECTION 19. Stock Certificates.
(a) Shares of Mandatory Convertible Preferred Stock shall be represented by stock certificates substantially in the form set forth as Exhibit
A hereto.
28
(b) Stock certificates representing shares of the Mandatory Convertible Preferred Stock
shall be signed by two authorized Officers of the Corporation, in accordance with the Bylaws and applicable Delaware law, by manual, electronic or facsimile signature.
(c) A stock certificate representing shares of the Mandatory Convertible Preferred Stock shall not be valid until manually or electronically
countersigned by an authorized signatory of the Transfer Agent and Registrar. Each stock certificate representing shares of the Mandatory Convertible Preferred Stock shall be dated the date of its countersignature.
(d) If any Officer of the Corporation who has signed a stock certificate no longer holds that office at the time the Transfer Agent and
Registrar countersigns the stock certificate, the stock certificate shall be valid nonetheless.
SECTION 20. Replacement
Certificates.
(a) If any Mandatory Convertible Preferred Stock certificate shall be mutilated, lost, stolen or destroyed, the
Corporation shall, at the expense of the Holder, issue, in exchange and in substitution for and upon cancellation of the mutilated Mandatory Convertible Preferred Stock certificate, or in lieu of and substitution for the Mandatory Convertible
Preferred Stock certificate lost, stolen or destroyed, a new Mandatory Convertible Preferred Stock certificate of like tenor and representing an equivalent Liquidation Preference of shares of Mandatory Convertible Preferred Stock, but only upon
receipt of evidence of such loss, theft or destruction of such Mandatory Convertible Preferred Stock certificate and indemnity, if requested, reasonably satisfactory to the Corporation and the Transfer Agent.
(b) The Corporation is not required to issue any certificate representing the Mandatory Convertible Preferred Stock on or after the Mandatory
Conversion Date. In lieu of the delivery of a replacement certificate following the Mandatory Conversion Date, the Transfer Agent, upon delivery of the evidence and indemnity described above, shall deliver the shares of Common Stock issuable and any
cash deliverable pursuant to the terms of the Mandatory Convertible Preferred Stock formerly evidenced by the certificate.
SECTION 21. Titles and Headings. The titles and headings of the sections and subsections of this Certificate of Designations have
been inserted for convenience of reference only, are not to be considered a part hereof, and shall in no way modify or restrict any of the terms or provisions hereof.
SECTION 22. Miscellaneous. (a) The Corporation shall pay any and all stock transfer and documentary stamp taxes that may be
payable in respect of any issuance or delivery of shares of Mandatory Convertible Preferred Stock or shares of Common Stock or other securities issued on account of Mandatory Convertible Preferred Stock pursuant hereto or certificates representing
such shares or securities. The Corporation shall not, however, be required to pay any such tax that may be payable in respect of any transfer involved in the issuance or delivery of shares of Common Stock or other securities in a name other than
that in which the shares of Mandatory Convertible Preferred Stock with respect to which such shares or other securities are issued or delivered were registered, and the Corporation shall not be required to make any such issuance or delivery unless
and until the Person otherwise entitled to such issuance or delivery has paid to the Corporation the amount of any such tax or has established, to the satisfaction of the Corporation, that such tax has been paid or is not payable.
(b) The Liquidation Preference and the Dividend Amount each shall be subject to equitable adjustment whenever there shall occur a stock split,
combination, reclassification or other similar event involving the Mandatory Convertible Preferred Stock. Such adjustments shall be determined in good faith by the Board of Directors (or an authorized committee thereof) and submitted by the Board of
Directors (or such authorized committee thereof) to the Transfer Agent.
29
Exhibit A
[FORM OF FACE OF MANDATORY CONVERTIBLE PREFERRED STOCK CERTIFICATE]
Certificate Number [__]
Number of Shares of Mandatory Convertible
Preferred Stock [_____]
CUSIP [__]
ISIN [__]
SUPER MICRO COMPUTER,
INC.
7.00% Series A Mandatory Convertible Preferred Stock
(par value $0.001 per share)
(Liquidation Preference as specified below)
SUPER MICRO COMPUTER, INC., a Delaware corporation (the “Corporation”), hereby certifies that [_______] (the
“Holder”), is the registered owner of [_______] fully paid and non-assessable shares of the Corporation’s designated 7.00% Series A Mandatory Convertible Preferred Stock, with par
value $0.001 per share and a Liquidation Preference of $1,000.00 per share (the “Mandatory Convertible Preferred Stock”). The shares of Mandatory Convertible Preferred Stock are transferable on the books and records of the
Registrar, in person or by a duly authorized attorney, upon surrender of this certificate duly endorsed and in proper form for transfer. The designations, special rights, privileges, restrictions, preferences and other terms and provisions of the
Mandatory Convertible Preferred Stock represented hereby are and shall in all respects be subject to the provisions of the Certificate of Designations of 7.00% Series A Mandatory Convertible Preferred Stock of Super Micro Computer, Inc. dated
June 15, 2026 as the same may be amended from time to time (the “Certificate of Designations”). Capitalized terms used herein but not defined shall have the meaning given them in the Certificate of Designations. The
Corporation will provide a copy of the Certificate of Designations to the Holder without charge upon written request to the Corporation at its principal place of business. In the case of any conflict between this Certificate and the Certificate of
Designations, the provisions of the Certificate of Designations shall control and govern.
Reference is hereby made to the provisions of
the Mandatory Convertible Preferred Stock set forth on the reverse hereof and in the Certificate of Designations, which provisions shall for all purposes have the same effect as if set forth at this place.
Upon receipt of this executed certificate, the Holder is bound by the Certificate of Designations and is entitled to the benefits thereunder.
Unless the Transfer Agent and Registrar have properly countersigned, these shares of Mandatory Convertible Preferred Stock shall not be
entitled to any benefit under the Certificate of Designations or be valid or obligatory for any purpose.
A-1
IN WITNESS WHEREOF, this certificate has been executed on behalf of the Corporation by two
Officers of the Corporation this [ ] day of [ ],[ ].
SUPER MICRO COMPUTER, INC.
By:
Name:
Title:
By:
Name:
Title:
A-2
COUNTERSIGNATURE
These are shares of Mandatory Convertible Preferred Stock referred to in the within-mentioned
Certificate of Designations.
Dated: __________
Computershare Trust Company, N.A., as Registrar and Transfer Agent
By:
Name:
Title:
A-3
[FORM OF REVERSE OF CERTIFICATE FOR MANDATORY CONVERTIBLE PREFERRED STOCK]
Cumulative dividends on each share of Mandatory Convertible Preferred Stock shall be payable at the applicable rate provided in the
Certificate of Designations.
The shares of Mandatory Convertible Preferred Stock shall be convertible in the manner and in accordance
with the terms set forth in the Certificate of Designations.
The Corporation shall furnish without charge to each Holder who so requests
a summary of the authority of the Board of Directors to determine variations for future series within a class of stock and the designations, limitations, preferences and relative, participating, optional or other special rights of each class or
series of share capital issued by the Corporation and the qualifications, limitations or restrictions of such preferences and/or rights.
A-4
NOTICE OF CONVERSION
(To be Executed by the Holder
in
order to Convert the Mandatory Convertible Preferred Stock)
The undersigned hereby irrevocably elects to convert (the
“Conversion”) 7.00% Series A Mandatory Convertible Preferred Stock (the “Mandatory Convertible Preferred Stock”), of Super Micro Computer, Inc. (hereinafter called the “Corporation”),
represented by stock certificate No(s). [______] (the “Mandatory Convertible Preferred Stock Certificates”), into common stock, par value $0.001 per share, of the Corporation (the “Common Stock”) according to
the conditions of the Certificate of Designations of the Mandatory Convertible Preferred Stock (the “Certificate of Designations”), as of the date written below. If Common Stock is to be issued in the name of a person other than
the undersigned, the undersigned shall pay all transfer taxes payable with respect thereto, if any. Each Mandatory Convertible Preferred Stock Certificate (or evidence of loss, theft or destruction thereof) is attached hereto.
Capitalized terms used but not defined herein shall have the meanings ascribed thereto in or pursuant to the Certificate of Designations.
Date of Conversion:
Applicable Conversion Rate:
Shares of Mandatory Convertible Preferred Stock to Be Converted:
Shares of Common Stock to Be Issued:*
Signature:
Name:
Address:**
Fax No.:
* The Corporation is not required to issue Common Stock until the
original Mandatory Convertible Preferred Stock Certificate(s) (or evidence of loss, theft or destruction thereof) to be converted are received by the Corporation or the Conversion and Dividend Disbursing Agent.
** Address where Common Stock and any other payments or certificates shall be
sent by the Corporation.
A-5
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers the shares of Mandatory Convertible Preferred Stock evidenced hereby to:
(Insert assignee’s social security or taxpayer identification number, if any)
(Insert address and zip code of assignee)
and
irrevocably appoints:
as agent to transfer the shares of Mandatory Convertible Preferred Stock evidenced hereby on the books of the Transfer Agent. The agent may substitute another
to act for him or her.
Date:
Signature:
(Sign exactly as your name appears on the other side of this Certificate)
Signature Guarantee:
(Signature must be guaranteed by an “eligible guarantor institution” that is a bank, stockbroker,
savings and loan association or credit union meeting the requirements of the Transfer Agent, which requirements include membership or participation in the Securities Transfer Agents Medallion Program (“STAMP”) or such other
“signature guarantee program” as may be determined by the Transfer Agent in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.)
A-6
EX-4.2
EX-4.2
Filename: d151436dex42.htm · Sequence: 4
EX-4.2
Exhibit 4.2
7.00% SERIES A MANDATORY CONVERTIBLE PREFERRED STOCK OF
SUPER MICRO COMPUTER, INC.
DEPOSIT AGREEMENT
among
SUPER MICRO
COMPUTER, INC.,
COMPUTERSHARE INC. and COMPUTERSHARE TRUST COMPANY, N.A.,
acting jointly as Depositary
and
THE HOLDERS FROM
TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN
Dated as of June 15, 2026
TABLE OF CONTENTS
PAGE
ARTICLE 1
DEFINED TERMS
Section 1.01.
Definitions
1
ARTICLE 2
ISSUE, DESCRIPTION, EXECUTION, DEPOSIT, REGISTRATION AND EXCHANGE OF
RECEIPTS
Section 2.01.
Appointment of Depositary
4
Section 2.02.
Rights, Preferences, Privileges and Voting Powers
4
Section 2.03.
Book-Entry System; Form and Transfer of Receipts
4
Section 2.04.
Deposit of Mandatory Convertible Preferred Stock; Execution and Delivery of Receipts
6
Section 2.05.
No Redemption of Depositary Shares
6
Section 2.06.
Registration of Transfer of Receipts
7
Section 2.07.
Split-ups and Combinations of Receipts; Surrender of Receipts and Withdrawal of Mandatory Convertible Preferred Stock
7
Section 2.08.
Limitations on Execution and Delivery, Transfer, Surrender and Exchange of Receipts
8
Section 2.09.
Lost Receipts, etc.
8
Section 2.10.
Cancellation and Destruction of Surrendered Receipts
8
Section 2.11.
Conversion at the Option of Holders
8
Section 2.12.
No Pre-Release
10
Section 2.13.
Receipt of Funds
10
ARTICLE 3
CERTAIN OBLIGATIONS OF RECORD HOLDERS OF RECEIPTS AND OF
THE CORPORATION
Section 3.01.
Filing Proofs; Certificates and Other Information
11
Section 3.02.
Payment of Taxes or Other Governmental Charges
11
Section 3.03.
Warranty as to Mandatory Convertible Preferred Stock
11
Section 3.04.
Warranty as to Receipts
11
Section 3.05.
Listing
11
ARTICLE 4
THE DEPOSITED SECURITIES; NOTICES
Section 4.01.
Cash Distributions
11
Section 4.02.
Distributions Other than Cash, Rights, Options or Privileges
12
Section 4.03.
Subscription Rights, Options or Privileges
13
Section 4.04.
Notice of Dividends, etc.; Fixing Record Date for Record Holders of Receipts
14
Section 4.05.
Voting Rights
14
Section 4.06.
Changes Affecting Deposited Securities and Reclassifications, Recapitalizations, etc.
14
Section 4.07.
Delivery of Reports
15
Section 4.08.
Lists of Receipt Record Holders
15
Section 4.09.
Corporation-owned Depositary Shares Disregarded
15
ARTICLE 5
THE DEPOSITARY, THE DEPOSITARY’S AGENTS, THE REGISTRAR AND
THE CORPORATION
Section 5.01.
Maintenance of Offices, Agencies and Transfer Books by the Depositary; Registrar; Depositary’s Agents
15
Section 5.02.
Prevention of or Delay in Performance by the Depositary, the Depositary’s Agents, the Registrar or the Transfer Agent
16
Section 5.03.
Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Transfer Agent
16
Section 5.04.
Resignation and Removal of the Depositary; Appointment of Successor Depositary
18
Section 5.05.
Corporate Notices and Reports
19
Section 5.06.
Indemnification by the Corporation
19
Section 5.07.
Fees, Charges and Expenses
20
Section 5.08.
Tax Compliance
20
ARTICLE 6
AMENDMENT AND TERMINATION
Section 6.01.
Amendment Without Consent of Record Holders
21
Section 6.02.
Amendment With Consent of Record Holders
21
Section 6.03.
Termination
22
ARTICLE 7
MISCELLANEOUS
Section 7.01.
Counterparts
22
Section 7.02.
Record Holders of Receipts Are Parties; Exclusive Benefit of Parties
22
Section 7.03.
Invalidity of Provisions
22
Section 7.04.
Notices
23
Section 7.05.
Appointment of Registrar and Transfer Agent
23
Section 7.06.
Governing Law
23
Section 7.07.
Inspection of Deposit Agreement and Certificate
24
Section 7.08.
Headings
24
Section 7.09.
Further Assurances
24
Section 7.10.
Confidentiality
24
EXHIBIT
Exhibit A — Form of Receipt
A-1
THIS DEPOSIT AGREEMENT dated as of June 15, 2026 among (i) SUPER MICRO COMPUTER,
INC., a Delaware corporation (the “Corporation”), (ii) COMPUTERSHARE INC, a Delaware corporation (“Computershare”), and its affiliate, COMPUTERSHARE TRUST COMPANY, N.A., a federally chartered trust company (the
“Trust Company” and, together with Computershare, jointly the “Depositary”) and (iii) the Record Holders from time to time of the Receipts described in this Agreement.
RECITALS
WHEREAS, the
parties desire to provide, as set forth in this Agreement, for the deposit of shares of the Corporation’s 7.00% Series A Mandatory Convertible Preferred Stock, par value $0.001 per share, from time to time with the Depositary for the purposes
set forth in this Agreement and for the issuance hereunder of Receipts (as defined herein) evidencing Depositary Shares (as defined herein) in respect of the Mandatory Convertible Preferred Stock (as defined herein) so deposited; and
WHEREAS, the Receipts are to be substantially in the form of Exhibit A annexed hereto, with appropriate insertions, modifications and
omissions, as hereinafter provided in this Agreement;
NOW, THEREFORE, in consideration of the premises, the parties hereto agree as
follows:
ARTICLE 1
DEFINED TERMS
Section 1.01. Definitions. The following definitions shall for all purposes, unless otherwise indicated, apply to the respective
terms (in the singular and plural forms of such terms) used in this Agreement:
“Accumulated Dividend Amount” shall
have the meaning set forth in the Certificate of Designations.
“Agreement” shall mean this agreement as originally
executed or, if amended or supplemented as provided herein, as so amended or supplemented.
“Average VWAP” shall have
the meaning set forth in the Certificate of Designations.
“Board of Directors” shall mean the board of directors of
the Corporation or a committee of such board duly authorized to act for it hereunder.
“Capital Stock” shall mean, for
any entity, any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) stock issued by that entity.
“Certificate of Designations” shall mean the Certificate of Designations establishing the Mandatory Convertible Preferred
Stock as a series of preferred stock of the Corporation.
“Certificate of Incorporation” shall mean the
Corporation’s Amended and Restated Certificate of Incorporation, as amended from time to time.
“close of
business” shall have the meaning set forth in the Certificate of Designations.
“Closing Sale Price” of any
security on any date shall mean the closing sale price per share (or if no closing sale price is reported, the average of the bid and ask prices or, if more than one in either case, the average of the average bid and the average ask prices) of such
security on that date as reported in composite transactions for the principal U.S. national or regional securities exchange on which such security is traded. If such security is not listed for trading on a U.S. national or regional securities
exchange on the relevant date, the “Closing Sale Price” shall be the last quoted bid price for such security in the over-the-counter market on the
relevant date as reported by OTC Markets Group Inc. or a similar organization. If such security is not so quoted, the “Closing Sale Price” shall be the average of the mid-point of the last
bid and ask prices for such security on the relevant date from each of at least three nationally recognized independent investment banking firms selected by the Corporation for this purpose.
1
“Common Stock” shall mean the common stock, par value $0.001 per share,
of the Corporation, subject to Section 13(e) of the Certificate of Designations.
“Computershare” shall have the
meaning set forth in the Preamble of this Agreement.
“Conversion Date” shall have the meaning set forth in the
Certificate of Designations.
“Conversion Number” shall have the meaning set forth in Section 2.11.
“Corporation” shall have the meaning set forth in the Preamble of this Agreement and shall include its successors and
assigns.
“Depositary” shall have the meaning set forth in the Preamble of this Agreement and, subject to the
provisions of Section 5.04, shall include its successors and assigns.
“Depositary Shares” shall mean the
depositary shares, each representing a 1/20th fractional interest in a share of the Mandatory Convertible Preferred Stock and evidenced by a Receipt.
“Depositary’s Agent” shall mean an agent appointed by the Depositary pursuant to Section 5.01.
“Depositary’s Office” shall mean the office of the Depositary at which at any particular time its depositary receipt
business shall be administered, which is currently in Canton, Massachusetts.
“Dividend Payment Date” shall have the
meaning set forth in the Certificate of Designations.
“DTC” shall have the meaning set forth in Section 2.03.
“DTC Receipt” shall have the meaning set forth in Section 2.03.
“Early Conversion Additional Conversion Amount” shall have the meaning set forth in the Certificate of Designations.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated
thereunder.
“Exchange Property” shall have the meaning set forth in the Certificate of Designations.
“Fundamental Change Dividend Make-whole Amount” shall have the meaning set forth in the Certificate of Designations.
“Funds” shall have the meaning set forth in Section 2.13.
“IRS” shall mean the United States Internal Revenue Service.
“Mandatory Convertible Preferred Stock” shall mean the shares of a series of the Corporation’s preferred stock par
value $0.001 per share, designated as its 7.00% Series A Mandatory Convertible Preferred Stock, par value $0.001 per share, having the rights, preferences, privileges and voting powers, including conversion, dividend, liquidation and voting rights,
as set forth in the Certificate of Designations.
“Moody’s” shall have the meaning set forth in
Section 2.13.
“Nasdaq” shall have the meaning set forth in Section 2.03.
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“Person” shall mean an individual, a corporation, a limited liability
company, an association, a partnership, a joint venture, a joint stock company, a trust, an unincorporated organization or a government or an agency or a political subdivision thereof.
“Physical Receipt” shall mean a definitive Receipt in physical form.
“Receipt” shall mean one of the depositary receipts issued hereunder, substantially in the form set forth as Exhibit
A hereto, whether in the form of DTC Receipts or Physical Receipts.
“Record Holder” as applied to a Receipt shall
mean the Person in whose name that Receipt is registered on the books of the Depositary maintained for such purpose.
“Registrar” shall mean Computershare Trust Company, N.A. or such other successor bank or trust company that shall be
appointed by the Corporation (or, in accordance with Section 5.01, the Depositary) to register ownership and transfers of Receipts as herein provided, and, if a successor Registrar shall be so appointed, references herein to “the
books” of or maintained by the Depositary shall be deemed, as applicable, to refer as well to the register maintained by such successor Registrar for such purpose.
“Remaining Fractional Share” shall have the meaning set forth in Section 4.02.
“Remaining Fractional Share Amount” shall have the meaning set forth in Section 4.02.
“S&P” shall have the meaning set forth in Section 2.13.
“Securities Act” shall mean the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Signature Guarantee” shall have the meaning set forth in Section 2.03.
“Subsidiary” shall mean, with respect to any Person, any corporation, association, partnership or other business entity of
which more than 50% of the total voting power of shares of Capital Stock or other interests (including partnership interests) entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers, general
partners or trustees thereof is at the time owned or controlled, directly or indirectly, by (i) such Person; (ii) such Person and one or more Subsidiaries of such Person; or (iii) one or more Subsidiaries of such Person.
“Trading Day” shall have the meaning set forth in the Certificate of Designations.
“Transfer Agent” shall mean Computershare Trust Company, N.A. or any bank or trust company appointed to transfer the
Receipts and the Mandatory Convertible Preferred Stock, as herein provided.
“Trust Company” shall have the meaning set
forth in the Preamble of this Agreement.
“Underwriters” shall mean the several underwriters listed in Schedule A to
the Underwriting Agreement.
“Underwriting Agreement” shall mean the underwriting agreement relating to the Depositary
Shares, dated June 10, 2026, among the Corporation and J.P. Morgan Securities LLC and Goldman Sachs & Co. LLC, as representatives of the several Underwriters.
“Unit of Exchange Property” shall have the meaning set forth in the Certificate of Designations.
Capitalized terms used and not defined in this Agreement shall have the respective meanings assigned to such terms in the Certificate of
Designations.
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ARTICLE 2
ISSUE, DESCRIPTION, EXECUTION, DEPOSIT, REGISTRATION
AND EXCHANGE OF RECEIPTS
Section 2.01. Appointment of Depositary.
The Corporation hereby appoints the Depositary, and the Depositary hereby accepts such appointment, as depositary for the Mandatory Convertible Preferred Stock, on the express terms and conditions set forth in this Agreement (and no implied
terms or conditions).
Section 2.02. Rights, Preferences, Privileges and Voting Powers. Subject to the terms of this
Agreement, each Record Holder of a Receipt is entitled, proportionately, to all the rights, preferences, privileges and voting powers of the Mandatory Convertible Preferred Stock represented by the Depositary Shares evidenced by such Receipt
(including the conversion, dividend, voting, and liquidation rights contained in the Certificate of Designations) and the same proportionate interest in any and all other property received by the Depositary in respect of such Mandatory Convertible
Preferred Stock and held under this Agreement.
Section 2.03. Book-Entry System; Form and Transfer of Receipts. The
Corporation and the Depositary shall make application to The Depository Trust Company (“DTC”) for acceptance of all of the Receipts for its book-entry settlement system. The Corporation hereby appoints the Depositary acting
through any authorized officer thereof as its attorney-in-fact, with full power to delegate, for purposes of executing any agreements, certifications or other
instruments or documents necessary or desirable in order to effect the acceptance of such Receipts for DTC eligibility. So long as the Receipts are eligible for book-entry settlement with DTC, unless otherwise required by law, all Depositary Shares
with book-entry settlement through DTC shall be represented by a receipt or receipts (the “DTC Receipt”), which shall be deposited with DTC (or its designee) evidencing all such Depositary Shares and registered in the name of the
nominee of DTC (initially Cede & Co.). The Depositary or such other entity as is agreed to by DTC may hold the DTC Receipt as custodian for DTC. Ownership of beneficial interests in the DTC Receipt shall be shown on, and the transfer of
such ownership shall be effected through, records maintained by (a) DTC or its nominee for such DTC Receipt or (b) institutions that have accounts with DTC. The DTC Receipt shall bear such legend or legends as may be required by DTC in
order for it to accept the Depositary Shares for its book-entry settlement system. The aggregate number of Depositary Shares evidenced by Receipts that may be executed and delivered under this Agreement is initially limited to 86,250,000, except for
Receipts executed and delivered in respect of Depositary Shares upon registration of transfer of, or in exchange for, or in lieu of other Receipts pursuant to this Section 2.03, Section 2.06, Section 2.07, Section 2.09,
Section 2.11 or Section 4.06.
The DTC Receipt shall be exchangeable for Physical Receipts only if (i) DTC notifies the
Corporation that it is unwilling or unable to continue as a clearing system in connection with the Receipts or (ii) DTC ceases to be a clearing agency registered under the Exchange Act and, in each case, a successor clearing system is not
appointed by the Corporation within 90 days of the Corporation receiving such notice or becoming aware that DTC is no longer so registered, as applicable. The Corporation shall provide written notice to the Depositary upon receipt of notice of the
occurrence of any event described in clause (i) or clause (ii) of the preceding sentence. Until such written notice is received by the Depositary, the Depositary may presume conclusively for all purposes that the events described in clause
(i) and clause (ii) of the first sentence of this paragraph have not occurred. If the beneficial owners of interests in Depositary Shares are entitled to exchange such interests for Physical Receipts as the result of an event described in
clause (i) or clause (ii) of the first sentence of this paragraph, then without unnecessary delay, the Depositary is hereby directed and shall provide written instructions to DTC to deliver the DTC Receipt to the Depositary for
cancellation, and, without unnecessary delay, the Corporation shall instruct the Depositary in writing to deliver to the beneficial owners of the Depositary Shares previously evidenced by the DTC Receipt Physical Receipts evidencing such Depositary
Shares.
Physical Receipts issued in exchange for all or a part of the DTC Receipt pursuant to this Section 2.03 shall be registered
in such names and in such authorized denominations as DTC, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Depositary. Upon execution and authentication, the Depositary shall deliver such Physical
Receipts to the Persons or entities in whose names such Physical Receipts are so registered.
At such time as all interests in a DTC
Receipt have been converted, canceled, surrendered or transferred, such DTC Receipt shall be, upon receipt thereof, canceled by the Depositary in accordance with standing procedures and existing instructions between DTC and DTC’s custodian. At
any time prior to such cancellation, if any interest in a DTC Receipt is exchanged for Physical Receipts, converted, canceled, surrendered or transferred to a transferee who
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receives Physical Receipts therefor or any Physical Receipt is exchanged or transferred for part of such DTC Receipt, the number of Depositary Shares evidenced by such DTC Receipt shall, in
accordance with the standing procedures and instructions existing between DTC and DTC’s custodian, be appropriately reduced or increased, as the case may be, and an endorsement shall be made on such DTC Receipt, by the Depositary or
DTC’s custodian, at the direction of the Depositary, to reflect such reduction or increase.
Beneficial owners of Depositary Shares
through DTC shall not receive or be entitled to receive Physical Receipts or be entitled to have Depositary Shares registered in their name, except as described in the third immediately preceding paragraph, in which case the provisions set forth in
such paragraph and the second immediately succeeding paragraph regarding the issuance of Physical Receipts shall apply.
Receipts shall be
in denominations of any number of whole Depositary Shares. The Corporation shall deliver to the Depositary from time to time such quantities of Receipts as the Depositary may request to enable the Depositary to perform its obligations under this
Agreement.
The DTC Receipt and Physical Receipts, if any, shall be substantially in the form set forth in Exhibit A annexed to
this Agreement and incorporated herein by reference, with appropriate insertions, modifications and omissions, as hereinafter provided and shall be engraved or otherwise prepared so as to comply with the applicable rules of Nasdaq Stock Market LLC
(“Nasdaq”) or any other securities exchange on which the Depositary Shares are then listed, if applicable. In the event the DTC Receipt becomes exchangeable for Physical Receipts as provided in this Section 2.03, the
Depositary, pending preparation of Physical Receipts and upon the written order of the Corporation, delivered in compliance with Section 2.04, shall execute and deliver temporary Receipts, which may be printed, lithographed or otherwise
substantially of the tenor of the Physical Receipts in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other variations as the Persons executing such Receipts may determine, as evidenced by their
execution of such Receipts. If temporary Receipts are issued, the Corporation and the Depositary will cause Physical Receipts to be prepared without unreasonable delay. After the preparation of Physical Receipts, the temporary Receipts shall be
exchangeable by the Record Holder for Physical Receipts upon surrender of the temporary Receipts at the Depositary’s Office or such other place or places as the Depositary shall determine pursuant to the second paragraph of Section 2.04,
without charge to the Record Holder. Upon surrender for cancellation of any one or more temporary Receipts, the Depositary is hereby authorized and instructed to, and shall, execute and deliver in exchange therefor Physical Receipts representing the
same number of Depositary Shares as represented by the surrendered temporary Receipt or Receipts, provided that the Depositary has been provided with all necessary information that it may request in order to execute and deliver such Physical Receipt
or Receipts. Such exchange shall be made at the Corporation’s expense and without any charge therefor to the Record Holder or the Depositary. Until so exchanged, the temporary Receipts shall in all respects be entitled to the same benefits
under this Agreement as Physical Receipts.
Receipts shall be executed by the Depositary by the manual, electronic or facsimile signature
of a duly authorized officer thereof; provided that if a Registrar for the Receipts (other than the Depositary) shall have been appointed then such Receipts shall be countersigned by manual, electronic or facsimile signature of a duly
authorized officer of the Registrar. No Receipt shall be entitled to any benefits under this Agreement or be valid or obligatory for any purpose unless it shall have been executed as provided in the preceding sentence. The Depositary shall record on
its books each Receipt so signed and delivered as hereinafter provided. Receipts bearing the manual, electronic or facsimile signature of a duly authorized signatory of the Depositary who was at any time a proper signatory of the Depositary shall
bind the Depositary, notwithstanding that such signatory ceased to hold such office prior to the execution and delivery of such Receipts by the Registrar or did not hold such office on the date of issuance of such Receipts.
Receipts may be endorsed with, or have incorporated in the text thereof, such legends or recitals or changes not inconsistent with the
provisions of this Agreement (but which do not affect the rights, duties, obligations or immunities of the Depositary), all as may be reasonably required by the Depositary and approved by the Corporation or which the Corporation has determined are
required to comply with any applicable law or any regulation thereunder or with the rules and regulations of the NYSE or any other securities exchange upon which the Mandatory Convertible Preferred Stock, the Depositary Shares or the Receipts may be
listed or to conform with any usage with respect thereto, or to indicate any special limitations or restrictions to which any particular Receipts are subject.
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Title to Depositary Shares evidenced by a Receipt that is properly endorsed, or accompanied
by a properly executed instrument of transfer accompanied by a guarantee of the signature thereon by a guarantor institution that is a participant in a signature guarantee program approved by the Securities Transfer Association at a guarantee level
acceptable to the Transfer Agent (a “Signature Guarantee”) or endorsement, shall be transferable by delivery with the same effect as in the case of a negotiable instrument; provided, however, that until transfer of
any particular Receipt shall be registered on the books of the Depositary as provided in Section 2.06, the Depositary may, notwithstanding any notice to the contrary, treat the Record Holder thereof at such time as the absolute owner thereof
(x) for the purpose of determining the Person (i) entitled to distributions of dividends or other distributions of securities, cash or other property or payments with respect to the Mandatory Convertible Preferred Stock, (ii) entitled
to exercise any voting or conversion rights with respect to the Mandatory Convertible Preferred Stock and (iii) entitled to receive any notice provided for in this Agreement and (y) for all other purposes.
Section 2.04. Deposit of Mandatory Convertible Preferred Stock; Execution and Delivery of Receipts. Subject to the terms and
conditions of this Agreement, the Corporation may from time to time deposit shares of Mandatory Convertible Preferred Stock under this Agreement by delivery to the Depositary of a certificate or certificates for such shares of Mandatory Convertible
Preferred Stock to be deposited, properly endorsed or accompanied, if required by the Depositary, by a duly executed instrument of transfer or endorsement, in form satisfactory to the Depositary, together with:
(a)
all such certifications as may be required by the Depositary in accordance with the provisions of this
Agreement, including the resolutions of the Board of Directors, as certified by the Secretary or any Assistant Secretary of the Corporation on the date thereof as being complete, accurate and in effect, relating to the issuance and sale of the
Mandatory Convertible Preferred Stock;
(b)
a letter of counsel to the Corporation authorizing reliance by the Depositary on such counsel’s opinions
delivered to the Underwriters pursuant to the terms of the Underwriting Agreement as to (i) the existence and good standing of the Corporation, (ii) the due authorization of the Depositary Shares and the status of the Depositary Shares as
validly issued, fully paid and non-assessable and (iii) the effectiveness of any registration statement under the Securities Act relating to the offering and sale of the Mandatory Convertible Preferred
Stock and the offering and sale of the Depositary Shares; and
(c)
a written order of the Corporation, directing the Depositary to execute and deliver to the Person or Persons
stated in such order a Receipt or Receipts for the number of Depositary Shares representing such deposited Mandatory Convertible Preferred Stock.
Deposited Mandatory Convertible Preferred Stock shall be held by the Depositary at the Depositary’s Office or at such other place or
places as the Depositary shall determine.
Upon receipt by the Depositary of a certificate or certificates for Mandatory Convertible
Preferred Stock deposited in accordance with the provisions of this Section 2.04, together with the other documents required as above specified, and upon recordation of the Mandatory Convertible Preferred Stock on the books of the Corporation
(or its duly appointed transfer agent) in the name of the Depositary or its nominee, the Depositary, subject to the terms and conditions of this Agreement, shall execute and deliver to, or upon the order of, the Person or Persons named in the
written order delivered to the Depositary referred to in the first paragraph of this Section 2.04, a Receipt or Receipts evidencing in the aggregate the number of Depositary Shares representing the Mandatory Convertible Preferred Stock so
deposited and registered in such name or names as may be requested by such Person or Persons. The Depositary shall execute and deliver such Receipt or Receipts at the Depositary’s Office or, at the request of such Person or Persons, such other
offices, if any, as the Depositary may designate. Delivery at other offices shall be at the risk and expense of the Person or Persons requesting such delivery.
Section 2.05. No Redemption of Depositary Shares. The Depositary Shares shall not be subject to redemption by the Corporation.
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Section 2.06. Registration of Transfer of Receipts. Subject to the express terms
and conditions of this Agreement, the Depositary shall register on its books from time to time transfers of Receipts upon any surrender thereof by a Record Holder in person or by its duly authorized attorney, properly endorsed or accompanied by a
properly executed instrument of transfer, including a Signature Guarantee and any other reasonable evidence of authority that may be required by the Transfer Agent, together with (if applicable) evidence of the payment of any taxes or charges as may
be required by law. Thereupon, the Depositary shall, without unreasonable delay, execute a new Receipt or Receipts evidencing the same aggregate number of Depositary Shares as those evidenced by the Receipt or Receipts surrendered and deliver such
new Receipt or Receipts to or upon the order of the Person entitled thereto.
Section 2.07.
Split-ups and Combinations of Receipts; Surrender of Receipts and Withdrawal of Mandatory Convertible Preferred Stock. Upon surrender of a Receipt or Receipts at the Depositary’s Office or at such
other offices as it may designate for the purpose of effecting a split-up, adjustment or combination of such Receipt or Receipts, and the receipt by the Depositary of all other necessary information and
documents, and subject to the terms and conditions of this Agreement, the Depositary shall execute a new Receipt or Receipts in the authorized denomination or denominations requested, evidencing the aggregate number of Depositary Shares evidenced by
the Receipt or Receipts surrendered, and shall deliver such new Receipt or Receipts to or upon the order of the Record Holder of the Receipt or Receipts so surrendered.
Any Record Holder of a Receipt or Receipts may withdraw the number of whole shares of Mandatory Convertible Preferred Stock and all money
and/or other property represented thereby by (x) in the case of Physical Receipt(s), surrendering such Receipt(s), or Depositary Shares represented by the Receipts, at the Depositary’s Office or at such other offices as the Depositary may
designate for such withdrawals and (y) in the case of a DTC Receipt, by complying with the appropriate DTC procedures for such withdrawal. Thereafter, without unreasonable delay (provided that the Depositary has been provided with all necessary
documentation), the Depositary shall deliver to such Record Holder, or to the Person or Persons designated by such Record Holder as hereinafter provided, the number of whole shares of Mandatory Convertible Preferred Stock and all money and/or other
property represented by such Receipt(s), or Depositary Shares represented by such Receipt(s), representing the Mandatory Convertible Preferred Stock subject to withdrawal, but Record Holders of such whole shares of Mandatory Convertible Preferred
Stock shall not thereafter be entitled to deposit such Mandatory Convertible Preferred Stock hereunder or to receive a Receipt evidencing Depositary Shares therefor. If a Physical Receipt delivered by the Record Holder to the Depositary in
connection with such withdrawal shall evidence a number of Depositary Shares in excess of the number of Depositary Shares representing the number of whole shares of Mandatory Convertible Preferred Stock to be withdrawn, the Depositary shall at the
same time, in addition to such number of whole shares of Mandatory Convertible Preferred Stock and such money and/or other property to be so withdrawn, deliver to such Record Holder, or subject to Section 2.06 upon its order, a new Physical
Receipt evidencing such excess number of Depositary Shares; provided, however, that such Physical Receipt shall only represent a whole number of Depositary Shares and the Depositary shall not issue any Physical Receipt evidencing a
fractional Depositary Share.
Delivery of the Mandatory Convertible Preferred Stock and money and/or other property being withdrawn may be
made by the delivery of such certificates, documents of title and other instruments as the Depositary may deem appropriate, which, if required by the Depositary, shall be properly endorsed or accompanied by proper instruments of transfer including,
but not limited to, a Signature Guarantee.
If the Mandatory Convertible Preferred Stock and the money and/or other property being
withdrawn are to be delivered to a Person or Persons other than the Record Holder of the related Receipt or Receipts being surrendered for withdrawal of such Mandatory Convertible Preferred Stock, such Record Holder shall execute and deliver to the
Depositary a written order so directing the Depositary, and the Depositary may require that the Physical Receipt(s) surrendered by such Record Holder for withdrawal of such shares of Mandatory Convertible Preferred Stock be properly endorsed in
blank or accompanied by a properly executed instrument of transfer in blank.
Delivery of the Mandatory Convertible Preferred Stock and
the money and/or other property represented by Receipts surrendered for withdrawal shall be made by the Depositary at the Depositary’s Office or at the office or offices of the Depositary designated for such purpose from time to time in
writing to the Corporation and all Record Holders, except that, at the request, risk and expense of the Record Holder surrendering such Receipt or Receipts and for the account of the Record Holder thereof, such delivery may be made at such other
place as may be designated by such Record Holder.
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A Record Holder who withdraws shares of Mandatory Convertible Preferred Stock and any such
money and/or other property shall not be required to pay any taxes or duties relating to the issuance or delivery of such shares of Mandatory Convertible Preferred Stock and any such money and/or other property, except that such Record Holder shall
be required to pay any tax or duty that may be payable relating to any transfer involved in the issuance or delivery of such shares of Mandatory Convertible Preferred Stock and any such money and/or other property in a name other than the name of
such Record Holder.
Section 2.08. Limitations on Execution and Delivery, Transfer, Surrender and Exchange of Receipts. As a
condition precedent to the execution and delivery, registration of transfer, split-up, adjustment, combination, surrender or exchange of any Receipt, any of the Depositary, any Depositary’s Agent and the
Corporation may require (a) payment to it of a sum sufficient for the payment (or, in the event that the Depositary or the Corporation shall have made such payment, the reimbursement to them) of any charges, taxes or expenses payable by the
Record Holder of a Receipt pursuant to Sections 3.02 and 5.07 (including, to the extent consistent with such Sections and Section 2.07, any such tax or charge with respect to the shares of Mandatory Convertible Preferred Stock being deposited
or withdrawn), (b) the production of evidence satisfactory to it as to the identity and genuineness of any signature, including a Signature Guarantee, or any other reasonable evidence of authority that may be required by the Depositary, or
(c) compliance with such regulations, if any, as the Depositary or the Corporation may establish consistent with the provisions of this Agreement and applicable law.
The deposit of the Mandatory Convertible Preferred Stock may be refused, the delivery of Receipts against Mandatory Convertible Preferred
Stock may be suspended, the registration of transfer of Receipts may be refused and the registration of transfer, surrender or exchange of outstanding Receipts may be suspended (i) during any period when the register of stockholders of the
Corporation is closed or (ii) if any such action is deemed reasonably necessary or advisable by any of the Depositary, any of the Depositary’s Agents and the Corporation at any time or from time to time because of any requirement of law
or of any government or governmental body or commission or under any provision of this Agreement.
Section 2.09. Lost Receipts,
etc. In case any Receipt shall be mutilated, destroyed, lost or stolen, and absent notice to the Depositary that such Receipt has been acquired by a bona fide purchaser, the Depositary shall execute and deliver a Receipt of like form and
tenor in exchange and substitution for such mutilated Receipt upon cancellation thereof, or in lieu of and in substitution for such destroyed, lost or stolen Receipt, upon (a) the filing by the Record Holder thereof with the Depositary of
evidence satisfactory to the Depositary of such destruction or loss or theft of such Receipt, of the authenticity thereof and of his or her ownership thereof; (b) the Record Holder thereof furnishing the Depositary with indemnification
reasonably satisfactory to the Depositary and the provision of an open penalty surety bond reasonably satisfactory to the Depositary and holding it and the Corporation harmless; and (c) the payment of any reasonable expense (including
reasonable fees, charges and expenses of the Depositary) in connection with such execution and delivery.
Section 2.10.
Cancellation and Destruction of Surrendered Receipts. All Receipts surrendered to the Depositary or any Depositary’s Agent, including Receipts surrendered in connection with any conversion of the Mandatory Convertible Preferred Stock
into Common Stock in accordance with the Certificate of Designations, shall be cancelled by the Depositary. Except as prohibited by applicable law or regulation, the Depositary is authorized and directed to destroy all Receipts so cancelled.
Section 2.11. Conversion at the Option of Holders. Subject to the terms and conditions of this Agreement, the Record Holder of any
Receipt may, at any time that Mandatory Convertible Preferred Stock may be converted pursuant to Section 8 or 9 of the Certificate of Designations, by (x) in the case of a Physical Receipt, surrendering such Physical Receipt at the
Depositary’s Office or such other office as the Depositary may from time to time designate for such purpose together with a notice of conversion properly completed and duly executed and a proper assignment of such Receipt to the Corporation or
the Transfer Agent or in blank to the Depositary or any of the Depositary’s Agents, and (y) in the case of a DTC Receipt, complying with the procedures of DTC in effect at that time, in each case, thereby instructing the Depositary to
cause the conversion of a specified number (the “Conversion Number”) of whole shares of Mandatory Convertible Preferred Stock represented by the Depositary Shares evidenced by such Receipt in accordance with the Certificate of
Designations, and specifying the name in which such Record Holder desires the Common Stock issuable upon conversion (including in respect of any Early Conversion Additional Conversion Amount, any Fundamental Change Dividend Make-whole Amount and any
Accumulated Dividend Amount, in each
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case, in accordance with the Certificate of Designations) to be registered and specifying payment instructions. Depositary Shares may be converted at the option of the Record Holder of any
Receipt only in lots of 20 Depositary Shares or integral multiples thereof. The Depositary shall be deemed to have no knowledge of the Conversion Number unless and until it shall have actually received written notice thereof from the Corporation,
and shall have no duty or obligation to investigate or inquire as to whether any Conversion Number contained in any such written notice is accurate, or whether it complies with the Certificate of Designations. If specified by the Record Holder in
such notice of conversion that Common Stock issuable upon conversion of the Depositary Shares shall be issued to a Person other than the Record Holder surrendering the Receipt for the Depositary Shares being converted, then the Record Holder shall
pay or cause to be paid any transfer or similar taxes payable in connection with the Common Stock or other securities so issued that are not payable by the Corporation pursuant to the Certificate of Designations or Section 3.02. In addition,
the Record Holder shall provide any other transfer forms, tax forms or other relevant documentation required and specified by the Transfer Agent for the Mandatory Convertible Preferred Stock, if necessary, to effect the conversion.
Upon fulfillment of the requirements in the foregoing paragraph, the Depositary is hereby authorized and instructed to, and shall, as promptly
as practicable, (a) give written notice to the Transfer Agent of (i) the Conversion Number (as specified in writing by the Corporation), (ii) the number of shares of Common Stock to be delivered upon conversion of such Conversion Number of
shares of Mandatory Convertible Preferred Stock (including in respect of any Early Conversion Additional Conversion Amount, any Fundamental Change Dividend Make-whole Amount and any Accumulated Dividend Amount, in each case, in accordance with the
Certificate of Designations) (as specified in writing by the Corporation), (iii) the amount of immediately available funds (as specified in writing by the Corporation), if any, to be delivered to the Record Holder of such Receipts in payment of any
fractional shares of Common Stock otherwise issuable upon conversion of such Conversion Number of shares of Mandatory Convertible Preferred Stock and (iv) the amount of cash (as specified in writing by the Corporation), if any, to be delivered
to the Record Holder of such Receipts in respect of any Fundamental Change Dividend Make-whole Amount and any Accumulated Dividend Amount, in each case, payable by the Corporation upon conversion of such Conversion Number of shares of Mandatory
Convertible Preferred Stock pursuant to the Certificate of Designations, (b) cancel such Receipt or, if a Registrar for Receipts (other than the Depositary) shall have been appointed, cause such Registrar to cancel such Receipt, and
(c) surrender to the Transfer Agent or any other authorized agent of the Corporation for conversion, in accordance with the Certificate of Designations (as specified in writing by the Corporation), certificates for the Mandatory Convertible
Preferred Stock represented by Depositary Shares as evidenced by such Receipt, together with delivery to the Corporation or the appropriate agent of the Corporation (pursuant to written instructions from the Corporation) any other information or
payment required by the Certificate of Designations (as specified in writing by the Corporation) for such conversion, and such certificates shall thereupon be canceled by the Transfer Agent or other authorized agent. The Depositary shall have no
duty or obligation to investigate or inquire as to whether the Corporation provided it with the correct number of shares of Common Stock to be delivered upon any conversion of the Mandatory Convertible Preferred Stock (including in respect of any
Early Conversion Additional Conversion Amount, any Fundamental Change Dividend Make-whole Amount and any Accumulated Dividend Amount), or the correct amount of cash to be delivered in payment of any fractional shares of Common Stock otherwise
issuable or in respect of any cash payable by the Corporation upon any conversion of the Mandatory Convertible Preferred Stock (including in respect of any Fundamental Change Dividend Make-whole Amount and any Accumulated Dividend Amount), and the
Depositary may rely conclusively on any such information provided by the Corporation.
As promptly as practicable after the Transfer Agent
or other authorized agent of the Corporation has received such certificates from the Depositary, (a) the Corporation shall cause to be furnished to the Depositary (i) a certificate or certificates evidencing such number of shares of Common
Stock to be delivered upon conversion of the Conversion Number of shares of Mandatory Convertible Preferred Stock (including in respect of any Early Conversion Additional Conversion Amount, any Fundamental Change Dividend Make-whole Amount and any
Accumulated Dividend Amount, in each case, in accordance with the Certificate of Designations), (ii) such amount of immediately available funds, if any, to be delivered in respect of any Fundamental Change Dividend Make-whole Amount and any
Accumulated Dividend Amount, in each case, payable by the Corporation upon conversion of such shares of Mandatory Convertible Preferred Stock pursuant to the Certificate of Designations, and (iii) such amount of immediately available funds, if
any, to be delivered in lieu of receiving fractional shares of Common Stock, as specified in a written notice from the Corporation and (b) the Depositary is hereby authorized and instructed to, and shall, deliver at the Depositary’s
Office, (i) a certificate or certificates evidencing the number of shares of Common Stock (including in respect of any Early Conversion Additional Conversion Amount, any Fundamental Change
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Dividend Make-whole Amount and any Accumulated Dividend Amount, in each case, in accordance with the Certificate of Designations) into which the Mandatory Convertible Preferred Stock represented
by Depositary Shares as evidenced by such Receipt has been converted, (ii) the amount of cash payable by the Corporation upon such conversion of such Mandatory Convertible Preferred Stock in respect of any Fundamental Change Dividend Make-whole
Amount and any Accumulated Dividend Amount, in each case, pursuant to the Certificate of Designations and (iii) the amount of cash payable by the Corporation upon such conversion of such Mandatory Convertible Preferred Stock in lieu of
delivering fractional shares of Common Stock, in each case, as specified in writing by the Corporation and that has been provided by the Corporation.
In the event that a Record Holder of a surrendered Receipt elects to convert fewer than all Depositary Shares evidenced by such Receipt under
this Section 2.11, upon such conversion, the Depositary shall, if requested in writing and provided with all necessary information and documents, authenticate, countersign and deliver to such Record Holder thereof, at the expense of the
Corporation, a new Receipt evidencing the Depositary Shares as to which such conversion was not effected.
Delivery of Common Stock
following a conversion pursuant to this Section 2.11 may be made by the delivery of such certificates, documents of title and other instruments as the Depositary may deem appropriate, which, if required by the Depositary, shall be properly
endorsed or accompanied by proper instruments of transfer. If such delivery is to be made otherwise than at the Depositary’s Office or at the office or offices of the Depositary designated for such purpose from time to time in writing to the
Corporation and all Record Holders, such delivery shall be made, as hereinafter provided, without unreasonable delay, at the risk of any Record Holder surrendering Receipts, and for the account of such Record Holder, to such place designated in
writing by such Record Holder and agreed by the Depositary.
For purposes of this Section 2.11 and Section 4.02, if the Common
Stock has been replaced by Exchange Property as a result of any transaction as described in Section 13(e) of the Certificate of Designations, references to Common Stock will be deemed to be references to a Unit of Exchange Property that a
holder of one share of Common Stock would have been entitled to receive in such transaction as determined pursuant to Section 13(e) of the Certificate of Designations.
Section 2.12. No Pre-Release. The Depositary shall not deliver any deposited Mandatory
Convertible Preferred Stock represented by Depositary Shares evidenced by Receipts prior to the receipt and cancellation of such Receipts or other similar method used with respect to Receipts held by DTC. The Depositary shall not issue any Receipts
prior to the receipt by the Depositary of the Mandatory Convertible Preferred Stock corresponding to Depositary Shares evidenced by such Receipts. At no time will any Receipts be outstanding if such Receipts do not evidence Depositary Shares
representing Mandatory Convertible Preferred Stock deposited with the Depositary, subject to the rights of holders to receive distributions upon conversion of the deposited Mandatory Convertible Preferred Stock pursuant to Section 4.01 or
Section 4.02.
Section 2.13. Receipt of Funds. All funds received by Computershare under this Agreement that are to be
distributed or applied by Computershare in the performance of its services hereunder (the “Funds”) shall be held by Computershare as agent for the Corporation and deposited in one or more bank accounts to be maintained by
Computershare in its name as agent for the Corporation. Until paid pursuant to this Agreement, Computershare may hold or invest the Funds through such accounts in: (i) obligations of, or guaranteed by, the United States of America,
(ii) commercial paper obligations rated A-1 or P-1 or better by Standard & Poor’s Corporation (“S&P”) or Moody’s
Investors Service, Inc. (“Moody’s”), respectively, (iii) money market funds that comply with Rule 2a-7 of the Investment Company Act of 1940, or (iv) demand deposit accounts,
short term certificates of deposit, bank repurchase agreements or bankers’ acceptances, of commercial banks with Tier 1 capital exceeding $1 billion or with an average rating above investment grade by S&P (LT Local Issuer Credit
Rating), Moody’s (Long Term Rating) and Fitch Ratings, Inc. (LT Issuer Default Rating) (each as reported by Bloomberg Finance L.P.). Computershare shall not bear responsibility or liability for any diminution of the Funds that may result from
any deposit or investment made by Computershare in accordance with this paragraph, including any losses resulting from a default by any bank, financial institution or other third party. For the avoidance of doubt, this Section 2.13 shall not
apply to any obligations and liabilities of the Corporation under this Agreement to Record Holders of Receipts. Computershare may from time to time receive interest, dividends or other earnings in connection with such deposits or investments.
Computershare shall not be obligated to pay such interest, dividends or earnings to the Corporation, any Record Holder or any other party.
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ARTICLE 3
CERTAIN OBLIGATIONS OF RECORD HOLDERS OF
RECEIPTS AND OF THE CORPORATION
Section 3.01. Filing
Proofs; Certificates and Other Information. Any Record Holder of a Receipt may be required from time to time to file proof of residence, or other matters or other information, to execute certificates and to make such representations and
warranties as the Depositary or the Corporation may reasonably deem necessary or proper. The Depositary or the Corporation may withhold the delivery, or delay the registration of transfer or exchange, of any Receipt or the withdrawal of the
Mandatory Convertible Preferred Stock represented by the Depositary Shares and evidenced by a Receipt or the distribution of any dividend or other distribution or the sale of any rights or of the proceeds thereof until such proof or other
information is filed or such certificates are executed or such representations and warranties are made.
Section 3.02. Payment of
Taxes or Other Governmental Charges. Record Holders of Receipts may be obligated to make payments to the Depositary of certain fees, charges and expenses, as provided in Section 5.07. Registration of transfer of any Receipt or any withdrawal of
Mandatory Convertible Preferred Stock and all money and/or other property represented by the Depositary Shares evidenced by such Receipt may be refused until any such payment due is made or satisfactory evidence is provided by such Record Holder to
the Depositary that such fees, charges and expenses have been paid, and any dividends, interest payments or other distributions may be withheld or any part of or all the Mandatory Convertible Preferred Stock represented by the Depositary Shares
evidenced by such Receipt and not theretofore sold may be sold for the account of the Record Holder thereof (after attempting by reasonable means to notify such Record Holder prior to such sale), and such dividends, interest payments or other
distributions or the proceeds of any such sale may be applied to any payment of such charges or expenses, the Record Holder of such Receipt remaining liable for any deficiency.
Section 3.03. Warranty as to Mandatory Convertible Preferred Stock. The Corporation hereby represents and warrants that the
Mandatory Convertible Preferred Stock, when issued, will be duly authorized, validly issued, fully paid and nonassessable. Such representation and warranty shall survive the deposit of the Mandatory Convertible Preferred Stock and the issuance of
the related Receipts.
Section 3.04. Warranty as to Receipts. The Corporation hereby represents and warrants that the
Receipts, when issued in accordance with this Agreement, will represent legal and valid interests in the Mandatory Convertible Preferred Stock. Such representation and warranty shall survive the deposit of the Mandatory Convertible Preferred Stock
and the issuance of the Receipts.
Section 3.05. Listing. The Corporation hereby covenants and agrees that it will apply to
list the Depositary Shares on the NYSE. If the Depositary Shares are listed on the NYSE, the Corporation covenants and agrees to use its reasonable best efforts to keep the Depositary Shares listed on the NYSE (or any of its successors).
ARTICLE 4
THE
DEPOSITED SECURITIES; NOTICES
Section 4.01. Cash Distributions. Whenever
Computershare shall receive any cash dividend or other cash distribution on the Mandatory Convertible Preferred Stock, Computershare shall, subject to Sections 3.01 and 3.02 and, if received, in accordance with written instructions from the
Corporation, distribute to Record Holders of Receipts on the record date fixed pursuant to Section 4.04 such amounts of such dividend or distribution as are, as nearly as practicable, in proportion to the respective number of Depositary Shares
evidenced by the Receipts held by such Record Holders; provided, however, that in case the Corporation or Computershare shall be required to withhold, and do withhold, from any cash dividend or other cash distribution in respect of the
Mandatory Convertible Preferred Stock an amount on account of taxes, the amount of cash made available for distribution or distributed in respect of Depositary Shares shall be reduced accordingly, and such withheld cash shall be treated for all
purposes of this
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Agreement as having been paid to the Record Holder of Receipts in respect of which the Corporation or the Depositary, as the case may be, made such withholding. In the event that the calculation
of any such cash dividend or other cash distribution to be paid to any Record Holder on the aggregate number of Depositary Shares held by such Record Holder results in an amount that is a fraction of a cent and that fraction of a cent is equal to or
greater than $0.005, the amount Computershare shall distribute to such Record Holder shall be rounded up to the next highest whole cent; otherwise, such fractional amount shall be disregarded by Computershare; provided, however, that
the Corporation shall pay the additional amount to the Depositary for distribution.
Each Record Holder of a Receipt shall provide the
Depositary with a properly completed IRS Form W-9 or the appropriate IRS Form W-8, as may be applicable. Each Record Holder of a Receipt acknowledges that, in the event
of non-compliance with the preceding sentence, the United States Internal Revenue Code of 1986, as amended, may require withholding or backup withholding by the Depositary of a portion of any of the
distributions to be made hereunder.
Section 4.02. Distributions Other than Cash, Rights, Options or Privileges. Whenever the
Depositary shall receive any distribution other than cash, rights, options or privileges upon the Mandatory Convertible Preferred Stock, the Depositary shall, at the direction of the Corporation (which the Corporation shall provide), subject to
Sections 3.01 and 3.02, distribute to Record Holders of Receipts on the record date fixed pursuant to Section 4.04 such amounts of the securities or property received by it as are, as nearly as practicable, in proportion to the respective
numbers of Depositary Shares evidenced by such Receipts held by such Record Holders, in any manner that the Depositary may deem equitable and practicable for accomplishing such distribution, including, without limitation, through book-entry transfer
through DTC in the case of DTC Receipts; provided that, in case the Depositary shall be required to withhold from any distribution in respect of the Mandatory Convertible Preferred Stock an amount on account of taxes, the amount of property
or securities made available for distribution or distributed in respect of Depositary Shares shall be reduced as necessary to permit any withholding, and such withheld property may be disposed of by the Depositary, without any further consent or
direction from the Corporation, in such manner as the Depositary reasonably deems necessary and practicable to pay such taxes and shall be treated for all purposes of this Agreement as having been paid to the Record Holder of the Receipt in respect
of which the Depositary made such withholding. The provisions of the immediately preceding sentence shall apply to any distribution by the Depositary of shares of Common Stock deliverable to the Record Holders as a result of the conversion of the
Mandatory Convertible Preferred Stock into shares of Common Stock in accordance with the terms of the Certificate of Designations (including, without limitation, upon mandatory conversion of such Mandatory Convertible Preferred Stock);
provided that, in such case, the distribution of shares of Common Stock shall be made to Record Holders as of the close of business on the relevant Conversion Date. If, in the opinion of the Depositary, after consultation with the Corporation,
such distribution cannot be made proportionately among such Record Holders in accordance with the direction of the Corporation (which the Corporation shall provide), or if for any other reason (including any requirement that the Corporation or the
Depositary withhold an amount on account of taxes or governmental charges) the Depositary deems, after consultation with the Corporation, such distribution not to be feasible, then the Depositary may, with the approval of the Corporation, adopt such
method as it deems equitable and practicable for the purpose of effecting such distribution, including the sale (at public or private sale) of the securities or property thus received, or any part thereof, in a commercially reasonable manner. The
net proceeds of any such sale shall, subject to Sections 3.01 and 3.02, be distributed or made available for distribution, as the case may be, by the Depositary to Record Holders of Receipts as provided by Section 4.01 in the case of a
distribution received in cash. The Corporation shall not make any distribution of such securities or property to the Depositary, and the Depositary shall not make any distribution of such securities or property to the Record Holders of Receipts,
unless the Corporation shall have provided an opinion of counsel stating that such distribution of securities or property has been registered under the Securities Act or does not need to be so registered in connection therewith.
In the event of a distribution of securities, whether upon mandatory conversion of the Mandatory Convertible Preferred Stock into Common Stock
or otherwise, fractional shares of such securities shall not be distributed to the Record Holders. Instead, a Record Holder that otherwise would have been entitled to receive a fraction of a security will receive an amount in cash, rounded to the
nearest cent, equal to such Record Holder’s proportionate interest in the net proceeds from the sale in the open market by the Depositary, or an agent of the Depositary or other entity as so instructed in writing by the Corporation, on behalf
of all such Record Holders, of the aggregate fractional shares of the securities that would otherwise have been issued, unless (i) the distribution of securities in question is the Corporation’s issuance of the shares of Common Stock upon
conversion of the Mandatory Convertible Preferred
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Stock, in which case such Record Holder will be entitled to receive an amount in cash (computed to the nearest cent) equal to the product of (x) that same fraction and (y) the Average
VWAP per share of Common Stock over the five consecutive Trading Day period ending on, and including, the second Trading Day immediately preceding the relevant Conversion Date; provided that if more than one share of the Mandatory Convertible
Preferred Stock is surrendered for, or subject to, conversion at one time by or for the same Record Holder, the number of shares of Common Stock issuable upon conversion thereof shall be computed on the basis of the aggregate number of shares of the
Mandatory Convertible Preferred Stock so surrendered for, or subject to, conversion or (ii) the distribution of securities in question is the Corporation’s issuance of shares of Common Stock in payment or partial payment of a dividend on
the Mandatory Convertible Preferred Stock, in which case such Record Holder will be entitled to receive an amount in cash (computed to the nearest cent) equal to the product of (x) that same fraction and (y) the Average VWAP per share of
Common Stock over the five consecutive Trading Day period ending on, and including, the second Trading Day immediately preceding the applicable Dividend Payment Date. The sale described in the immediately preceding sentence shall occur as soon as
practicable following the distribution date for such securities. In the event that such sale of the aggregate fractional shares of the securities that otherwise would have been issued is completed and a fraction of a share of such security still
remains (the “Remaining Fractional Share”), the Depositary shall immediately notify the Corporation in writing of the Remaining Fractional Share, which notice may be delivered via electronic mail to the address set forth in
Section 7.04. Upon receipt of such notice, the Board of Directors shall determine the cash equivalent of the Remaining Fractional Share (the “Remaining Fractional Share Amount”), which Remaining Fractional Share Amount shall
be equal to the Remaining Fractional Share, multiplied by the Closing Sale Price of such securities on the Trading Day immediately preceding the date of the distribution of such securities. The determination of the Remaining Fractional Share
Amount by the Board of Directors shall be binding on the parties hereto and on the Record Holders. The Corporation shall promptly transfer funds for the Remaining Fractional Share Amount to an account selected by the Depositary, and the Depositary
shall add the Remaining Fractional Share Amount to the net proceeds from the sale described above for distribution to the Record Holders otherwise entitled to receive the fractional shares of the securities.
The Person or Persons entitled to receive any shares of Common Stock issuable upon any conversion of the Mandatory Convertible Preferred Stock
shall be treated for all purposes as the record holder(s) of such shares of Common Stock as of the close of business on the relevant Conversion Date.
Section 4.03. Subscription Rights, Options or Privileges. If the Corporation shall at any time offer or cause to be offered to the
Persons in whose names the Mandatory Convertible Preferred Stock is recorded on the books of the Corporation any rights, options or privileges to subscribe for or to purchase any securities or any rights, options or privileges of any other nature,
the terms of such rights, options or privileges shall in each such instance be communicated promptly to the Depositary and thereafter such rights, options or privileges shall be made available by the Depositary to the Record Holders of Receipts in
such manner as the Corporation shall instruct, either by the issue to such Record Holders of warrants representing such rights, options or privileges or by such other method as may be approved by the Depositary in its discretion with the approval of
the Corporation; provided, however, that (a) if at the time of issuance or offer of any such rights, options or privileges, the Depositary determines that it is not lawful or (after consultation with the Corporation) not feasible
to make such rights, options or privileges available to Record Holders of Receipts by the issue of warrants or otherwise or (b) if Record Holders of Receipts do not desire to exercise such rights, options or privileges and so instruct the
Depositary, then the Depositary, in its commercially reasonable discretion (with approval of the Corporation, in any case where the Depositary has determined that it is not feasible to make such rights, options or privileges available), may, if
applicable laws or the terms of such rights, options or privileges permit such transfer, sell such rights, options or privileges at public or private sale, at such place or places and upon such terms as it may deem proper. The net proceeds of any
such sale shall, subject to Sections 3.01 and 3.02, be distributed by the Depositary to the Record Holders of Receipts entitled thereto as provided by Section 4.01 in the case of a distribution received in cash.
The Corporation shall notify the Depositary whether registration under the Securities Act of the securities to which any rights, options or
privileges relate is required in order for Record Holders of Receipts to be offered or sold the securities to which such rights, options or privileges relate, and the Corporation agrees with the Depositary that it will file promptly a registration
statement pursuant to the Securities Act with respect to such rights, options or privileges and securities and use its commercially reasonable efforts and take all steps available to it to cause such registration statement to become effective
sufficiently in advance of the expiration of such rights, options or privileges to enable such Record Holders to exercise such rights, options or privileges in compliance with the Securities Act. In
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no event shall the Depositary make available to the Record Holders of Receipts any right, option or privilege to subscribe for or to purchase any securities unless and until such registration
statement shall have become effective, or the Corporation shall have provided to the Depositary an opinion of counsel to the effect that the offering and sale of such securities to the Record Holders are exempt from registration under the provisions
of the Securities Act.
The Corporation shall notify the Depositary whether any other action under the laws of any jurisdiction or any
governmental or administrative authorization, consent or permit is required in order for such rights, options or privileges to be made available to Record Holders of Receipts, and the Corporation agrees with the Depositary that the Corporation shall
use its reasonable best efforts to take such action or obtain such authorization, consent or permit sufficiently in advance of the expiration of such rights, options or privileges to enable such Record Holders to exercise such rights, options or
privileges.
Section 4.04. Notice of Dividends, etc.; Fixing Record Date for Record Holders of Receipts. Whenever any cash
dividend or other cash distribution shall become payable or any distribution other than cash shall be made, or if rights, options or privileges shall at any time be offered, with respect to the Mandatory Convertible Preferred Stock, or whenever the
Depositary shall receive notice of any meeting at which holders of the Mandatory Convertible Preferred Stock are entitled to vote or of which holders of the Mandatory Convertible Preferred Stock are entitled to notice, or whenever the Depositary and
the Corporation shall decide it is appropriate, the Depositary shall in each such instance fix a record date (which shall be the same date as the record date fixed by the Corporation with respect to or otherwise in accordance with the terms of the
Mandatory Convertible Preferred Stock) for the determination of the Record Holders of Receipts who shall be entitled to receive such dividend, distribution, rights, options or privileges or the net proceeds of the sale thereof, or to give
instructions for the exercise of voting rights at any such meeting, or who shall be entitled to notice of such meeting or for any other appropriate reasons.
Section 4.05. Voting Rights. Subject to the provisions of the Certificate of Incorporation, upon receipt of notice of any meeting
at which the holders of the Mandatory Convertible Preferred Stock are entitled to vote or any solicitation of action by written consent of stockholders in lieu of a meeting, the Depositary shall, as soon as practicable thereafter, send to the Record
Holders of Receipts, determined on the record date as set forth in Section 4.04, a notice prepared by the Corporation that shall contain (a) such information as is contained in such notice of meeting and (b) a statement that the
Record Holders may, subject to any applicable restrictions, instruct the Depositary as to the exercise of the voting rights pertaining to the amount of Mandatory Convertible Preferred Stock represented by their respective Depositary Shares
(including an express indication that instructions may be given to the Depositary to give a discretionary proxy to a Person designated by the Corporation) and a brief statement as to the manner in which such instructions may be given. Each Record
Holder of Receipts on the record date (which shall be the same date as the record date fixed by the Corporation with respect to or otherwise in accordance with the terms of the Mandatory Convertible Preferred Stock) may instruct the Depositary as to
how to vote (including, for the avoidance of doubt, by written consent) the amount of the Mandatory Convertible Preferred Stock represented by such Record Holder’s Receipts in accordance with these instructions. Upon the written request of the
Record Holders of Receipts on the relevant record date, the Depositary shall endeavor insofar as practicable to vote or cause to be voted, in accordance with the instructions set forth in such requests, the maximum number of whole shares of
Mandatory Convertible Preferred Stock represented by the Depositary Shares evidenced by all Receipts as to which any particular voting instructions are received. The Corporation hereby agrees to take all action which may be deemed necessary by the
Depositary in order to enable the Depositary to vote such Mandatory Convertible Preferred Stock or cause such Mandatory Convertible Preferred Stock to be voted. In the absence of specific instructions from Record Holders of Receipts, the Depositary
shall abstain from voting the Mandatory Convertible Preferred Stock to the extent it does not receive such specific instructions from the Record Holders of Receipts.
Section 4.06. Changes Affecting Deposited Securities and Reclassifications, Recapitalizations, Etc. Upon any change in par or
stated value, split-up, combination or any other reclassification of the Mandatory Convertible Preferred Stock, subject to the provisions of the Certificate of Designations, or upon any recapitalization,
reorganization, merger or consolidation affecting the Corporation or to which it is a party, the Corporation shall instruct the Depositary in writing to, and the Depositary upon receipt of such written instructions setting forth any of the following
adjustments from the Corporation (which the Corporation shall provide), shall, (a) make such adjustments as are certified by the Corporation in the fraction of an interest represented by one Depositary Share in one share of Mandatory
Convertible Preferred Stock as may be necessary fully to reflect the effects of such change in par or stated value, split-up, combination or other reclassification of the Mandatory Convertible Preferred Stock,
or
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of such recapitalization, reorganization, merger or consolidation and (b) treat any securities that shall be received by the Depositary in exchange for or, subject to the final sentence of
this Section 4.06, upon conversion of or in respect of the Mandatory Convertible Preferred Stock as new deposited securities so received in exchange for or upon conversion or in respect of such Mandatory Convertible Preferred Stock. In any such
case the Corporation may in its discretion direct the Depositary to execute and deliver additional Receipts or may call for the surrender of all outstanding Receipts to be exchanged for new Receipts specifically describing such new deposited
securities. Anything to the contrary herein notwithstanding, Record Holders of Receipts shall have the right from and after the effective date of any such change in par or stated value, split-up, combination
or other reclassification of the Mandatory Convertible Preferred Stock or any such recapitalization, reorganization, merger or consolidation to surrender such Receipts to the Depositary with instructions to convert, exchange or surrender the
Mandatory Convertible Preferred Stock represented thereby only into or for, as the case may be, the kind and amount of shares and other securities and property and cash into which the Mandatory Convertible Preferred Stock represented by such
Receipts might have been converted or for which such Mandatory Convertible Preferred Stock might have been exchanged or surrendered immediately prior to the effective date of such transaction. Notwithstanding the foregoing, the Common Stock issuable
upon conversion of, or in lieu of cash dividends on, the Mandatory Convertible Preferred Stock shall not constitute new deposited securities hereunder and instead the provisions set forth in Section 4.02 shall apply.
Section 4.07. Delivery of Reports. The Depositary shall, at the sole expense of the Corporation, furnish to Record Holders of
Receipts any reports and communications received from the Corporation that are received by the Depositary, as the holder of the Mandatory Convertible Preferred Stock, and that the Corporation is required to furnish to the holders of the Mandatory
Convertible Preferred Stock.
Section 4.08. Lists of Receipt Record Holders. Reasonably promptly upon request from time to
time by the Corporation, at the sole expense of the Corporation, the Depositary shall furnish to it a list, as of the most recent practicable date, of the names, addresses and holdings of Depositary Shares of all registered Record Holders of
Receipts.
Section 4.09. Corporation-owned Depositary Shares Disregarded. In determining whether the Record Holders of the
requisite number of Depositary Shares have concurred in any vote (including, without limitation, in respect of any direction, consent, request, amendment, alteration or supplement) referred to in this Agreement, Depositary Shares that are owned by
the Corporation, by any Subsidiary thereof or by any Person directly or indirectly controlling or controlled by or under direct or indirect common control with the Corporation or any Subsidiary thereof shall be disregarded and deemed not to be
outstanding for the purpose of any such determination.
ARTICLE 5
THE DEPOSITARY, THE DEPOSITARY’S AGENTS,
THE REGISTRAR AND THE CORPORATION
Section 5.01.
Maintenance of Offices, Agencies and Transfer Books by the Depositary; Registrar; Depositary’s Agents. Upon execution of this Agreement, the Depositary shall maintain at the Depositary’s Office, facilities for the execution and
delivery, transfer, surrender and exchange, split-up and combination of Receipts and deposit and withdrawal of the Mandatory Convertible Preferred Stock, and at the offices of the Depositary’s Agents, if
any, facilities for the delivery, transfer, surrender and exchange of Receipts and deposit and withdrawal of the Mandatory Convertible Preferred Stock, all in accordance with the provisions of this Agreement.
The Registrar shall keep books at the Depositary’s Office for the registration and transfer of Receipts. Upon direction by the
Corporation and with reasonable notice to the Registrar, the Registrar shall open its books for inspection by the Record Holders of Receipts as directed by the Corporation; provided that any Record Holder shall be granted such right by the
Corporation only after certifying that such inspection shall be for a proper purpose reasonably related to such Person’s interest as an owner of Depositary Shares evidenced by the Receipts.
The Corporation may cause the Registrar to close such books, at any time or from time to time, when deemed expedient by it in connection with
the performance of its duties hereunder.
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The Depositary may, with the approval of the Corporation, appoint a Registrar for
registration of the Receipts or the Depositary Shares evidenced thereby. If the Receipts or the Depositary Shares evidenced thereby or the Mandatory Convertible Preferred Stock represented by such Depositary Shares shall be listed on one or more
national securities exchanges, the Depositary shall appoint a registrar (acceptable to the Corporation) for registration of the Receipts or Depositary Shares in accordance with any requirements of such exchange. Such registrar (which may be the
Registrar if so permitted by the requirements of any such exchange) may be removed and a substitute registrar may be appointed by the Depositary upon the request or with the approval of the Corporation. If the Receipts, Depositary Shares or
Mandatory Convertible Preferred Stock are listed on one or more other securities exchanges, the Registrar shall, at the expense and request of the Corporation, arrange such facilities for the delivery, transfer, surrender and exchange of the
Receipts, Depositary Shares or Mandatory Convertible Preferred Stock as may be required by law or applicable securities exchange regulation.
The Depositary may from time to time appoint one or more Depositary’s Agents to act in any respect for the Depositary for the purposes
of this Agreement and may from time to time appoint additional Depositary’s Agents and vary or terminate the appointment of such Depositary’s Agents; provided that the Depositary shall notify the Corporation of any such
appointment or variation or termination of such appointment.
Section 5.02. Prevention of or Delay in Performance by the
Depositary, the Depositary’s Agents, the Registrar or the Transfer Agent. None of the Depositary, any Depositary’s Agent, any Registrar and any Transfer Agent shall incur any liability to the Corporation or to any Record Holder of a
Receipt if by reason of any provision of any present or future law, or regulation thereunder, of the United States of America or of any other governmental authority or by reason of any provision, present or future, of the Certificate of
Incorporation, or by reason of any act of God, pandemics, epidemics, terrorist acts, shortage of supply, breakdowns or malfunctions, interruptions or malfunction of computer facilities, or loss of data due to power failures or mechanical
difficulties with information storage or retrieval systems, labor difficulties, civil unrest, war or other circumstance beyond the control of the relevant party, the Depositary, any such Depositary’s Agent, any such Registrar or any such
Transfer Agent shall be prevented, delayed or forbidden from, or subjected to any penalty on account of, doing or performing any act or thing which the terms of this Agreement provide shall be done or performed. Nor shall the Depositary, any
Depositary’s Agent, any Registrar nor any Transfer Agent incur liability to the Corporation or to any Record Holder of a Receipt (a) by reason of any nonperformance or delay, caused as aforesaid, in the performance of any act or thing
which the terms of this Agreement shall provide shall or may be done or performed or (b) by reason of any exercise of, or failure to exercise, any discretion provided for in this Agreement except, in case of any such exercise of, or failure to
exercise, discretion not caused as aforesaid, if caused by the gross negligence, willful misconduct or bad faith of the party charged with such exercise or failure to exercise (which gross negligence, willful misconduct or bad faith must be
determined by a final, non-appealable order, judgment, decree or ruling of a court of competent jurisdiction), or as otherwise explicitly set forth in this Agreement.
Section 5.03. Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Transfer Agent. None of the
Depositary, any Depositary’s Agent, any Registrar and any Transfer Agent assumes any obligation or shall be subject to any liability under this Agreement to Record Holders of Receipts, the Corporation or any other Person or entity other than
for its gross negligence, willful misconduct or bad faith (which gross negligence, willful misconduct or bad faith must be determined by a final, non-appealable order, judgment, decree or ruling of a court of
competent jurisdiction). Notwithstanding anything contained herein to the contrary, the aggregate liability of the Depositary, any Depositary’s Agent, any Transfer Agent or any Registrar during any term of this Agreement with respect to,
arising from, or arising in connection with this Agreement, or from all services provided or omitted to be provided under this Agreement, whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid hereunder
by the Corporation to the Depositary as fees and charges, but not including reimbursable expenses, during the twelve (12) months immediately preceding the event for which recovery is being sought. Notwithstanding anything to the contrary
herein, the Depositary shall not be liable for any incidental, indirect, special, punitive or consequential damages of any nature whatsoever, including, but not limited to, loss of anticipated profits, occasioned by breach of any provision of this
Agreement even if apprised of the possibility of such damages. For the avoidance of doubt, the limitations of liability set forth in this Section 5.03 shall not apply to any obligations and liabilities of the Corporation under this Agreement to
Record Holders of Receipts.
The Depositary, any Depositary’s Agent, any Transfer Agent and any Registrar hereunder may consult
legal counsel satisfactory to it, and the advice or opinion of such legal counsel shall be full and complete authorization and protection in respect of, and it shall not be liable and shall be indemnified by the Corporation for, any actions taken,
suffered or omitted by such party hereunder in accordance with the advice or opinion of such legal counsel.
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None of the Depositary, any Depositary’s Agent, any Registrar and any Transfer Agent
shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of the Mandatory Convertible Preferred Stock, the Depositary Shares or the Receipts, which, in its commercially reasonable opinion, may
involve it in expense or liability, unless indemnity reasonably satisfactory to it against all expense and liability be furnished as often as may be reasonably required.
None of the Depositary, any Depositary’s Agent, any Registrar and any Transfer Agent shall be liable for any action or any failure to
act by it in reliance upon the written advice of legal counsel or accountants, or information from any Person presenting Mandatory Convertible Preferred Stock for deposit, any Record Holder of a Receipt or any other Person believed by it in the
absence of bad faith to be competent to give such information. Each of the Depositary, any Depositary’s Agent, any Registrar and any Transfer Agent may rely, and shall each be protected in acting or omitting to act, upon any written notice,
request, direction or other document believed by it to be genuine and to have been signed or presented by the proper party or parties.
The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the shares of Mandatory Convertible
Preferred Stock or for the manner or effect of any such vote made, as long as any such action or non-action is not taken in bad faith or due to the willful misconduct or gross negligence of the Depositary
(which gross negligence, willful misconduct or bad faith must be determined by a final, non-appealable order, judgment, decree or ruling of a court of competent jurisdiction). The Depositary undertakes, and
any Registrar or Transfer Agent shall be required to undertake, to perform such duties and only such duties as are specifically set forth in this Agreement, and no implied covenants or obligations shall be read into this Agreement against the
Depositary or any Registrar or Transfer Agent.
The Depositary, its parent, affiliates and Subsidiaries, any Depositary’s Agent and
any Registrar or Transfer Agent may own, buy, sell and deal in any class of securities of the Corporation and its affiliates and in Receipts or Depositary Shares or have a pecuniary interest in any transaction in which the Corporation or its
affiliates may be interested or contract with or lend money to any such Person or otherwise act as fully or as freely as if it were not the Depositary, the Depositary’s parent, affiliate or Subsidiary, the Depositary’s Agent, the
Registrar or the Transfer Agent hereunder. The Depositary may also act as trustee, transfer agent or registrar of any of the securities of the Corporation and its affiliates.
It is intended that none of the Depositary, its agents and any Registrar, acting as a Depositary’s Agent or Registrar, as the case may
be, shall be deemed to be an “issuer” of the securities under federal securities laws or applicable state securities laws, it being expressly understood and agreed that the Depositary, any Depositary’s Agent and the Registrar are
acting only in a ministerial capacity as Depositary or Registrar for the Mandatory Convertible Preferred Stock.
The Corporation agrees
that is has previously or will register the offer and sale of the Mandatory Convertible Preferred Stock and the Depositary Shares in accordance with all applicable securities laws.
None of the Depositary, its officers, directors, employees or agents and the Registrar makes any representation or has any responsibility
(i) as to the validity of (a) the registration statement pursuant to which the offer and sale of the Depositary Shares and Mandatory Convertible Preferred Stock are registered under the Securities Act, (b) the Certificate of
Designations, (c) the Mandatory Convertible Preferred Stock, (d) the Depositary Shares, (e) the Receipts (except for its counter-signatures thereon) or (f) any instruments referred to in any of the foregoing or (ii) as to
the correctness of any statement made in any of the foregoing.
The Depositary assumes no responsibility for the correctness of the
description that appears in the Receipts. Notwithstanding any other provision herein or in the Receipts, the Depositary makes no warranties or representations as to the validity or genuineness of any Mandatory Convertible Preferred Stock at any time
deposited with the Depositary hereunder or of the Depositary Shares, as to the validity or sufficiency of this Agreement, as to the value of the Depositary Shares or as to any right, title or interest of the Record Holders of Receipts in and to the
Depositary Shares. The Depositary shall not be accountable for the use or application by the Corporation of the Depositary Shares or the Receipts or the proceeds thereof.
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The Depositary shall not have any liability for interest on any monies at any time received
by it pursuant to any of the provisions of this Agreement or of the Receipts, the Depositary Shares or the Mandatory Convertible Preferred Stock, nor shall it be obligated to segregate such monies from other monies held by it, except as required by
applicable law. The Depositary shall not be responsible for advancing funds on behalf of the Corporation and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments.
In the event the Depositary, the Depositary’s Agent or any Registrar or Transfer Agent believes any ambiguity or uncertainty exists
hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Depositary, the Depositary’s Agent or any Registrar or Transfer Agent hereunder, or in the administration of any of the
provisions of this Agreement, the Depositary shall deem it necessary or desirable that a matter be proved or established prior to taking, omitting or suffering to take any action hereunder, the Depositary may, in its sole discretion upon written
notice to the Corporation, refrain from taking any action and shall be fully protected and shall not be liable in any way to the Corporation, any Record Holders of Receipts or any other Person or entity for refraining from taking such action, unless
the Depositary receives written instructions or a certificate signed by the Corporation that eliminates such ambiguity or uncertainty to the reasonable satisfaction of the Depositary, Depositary’s Agent, Registrar or Transfer Agent or that
proves or establishes the applicable matter to the reasonable satisfaction of the Depositary, Depositary’s Agent, Registrar or Transfer Agent.
The Depositary undertakes not to issue any Receipt other than to evidence the Depositary Shares that have been delivered to, and are then on
deposit with, the Depositary. The Depositary also undertakes not to sell, except as provided herein, pledge or lend Depositary Shares or shares of Mandatory Convertible Preferred Stock held by it as Depositary.
Whenever in the performance of its duties under this Agreement, the Depositary, any Transfer Agent or any Registrar shall deem it necessary or
desirable that any fact or matter be proved or established by the Corporation prior to taking, suffering or omitting to take any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may
be deemed to be conclusively provided and established by a certificate signed by the Corporation and delivered to the Depositary, such Transfer Agent or such Registrar; and such certificate shall be full and complete authorization and protection to
the Depositary, such Transfer Agent or such Registrar and the Depositary, such Transfer Agent or such Registrar shall incur no liability for or in respect of any action taken, suffered or omitted by it under the provisions of this Agreement in
reliance upon such certificate.
The Depositary may rely on and be fully authorized and protected in acting or failing to act upon
(a) any guaranty of signature by an “eligible guarantor institution” that is a member or participant in the Securities Transfer Agents Medallion Program or other comparable “signature guarantee program” or insurance
program in addition to, or in substitution for, the foregoing; or (b) any law, act, regulation or any interpretation of the same even though such law, act, or regulation may thereafter have been altered, changed, amended or repealed.
The Depositary, any Transfer Agent, or any Registrar may execute and exercise any of the rights or powers hereby vested in it or perform any
duty hereunder either itself or by or through its attorneys or agents, and the Depositary shall not be answerable or accountable for any act, omission, default, neglect or misconduct of any such attorneys or agents or for any loss to the
Corporation, to the holders of the Receipts or any other Person resulting from any such act, omission, default, neglect or misconduct, absent gross negligence, willful misconduct or bad faith in the selection and continued employment thereof (which
gross negligence, willful misconduct or bad faith must be determined by a final, non-appealable order, judgment, decree or ruling of a court of competent jurisdiction).
The obligations of the Corporation and the rights and benefits of the Depositary set forth in this Section 5.03 shall survive the
termination of this Agreement and any replacement, removal, resignation or succession of any Depositary, Registrar, Transfer Agent or Depositary’s Agent.
Section 5.04. Resignation and Removal of the Depositary; Appointment of Successor Depositary. The Depositary may at any time
resign as Depositary hereunder by delivering notice of its election to do so to the Corporation, such resignation to take effect upon the appointment of a successor Depositary and its acceptance of such appointment as hereinafter provided.
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The Depositary may at any time be removed by the Corporation by notice of such removal
delivered to the Depositary, such removal to take effect upon the appointment of a successor Depositary hereunder and its acceptance of such appointment as hereinafter provided.
In the event the transfer agency relationship in effect between the Corporation and the Depositary terminates, the Depositary shall be deemed
to have resigned automatically.
In case at any time the Depositary acting hereunder shall resign or be removed, the Corporation shall,
within 60 days after the delivery of the notice of resignation or removal, as the case may be, appoint a successor Depositary, which shall be a bank or trust company that (a) is not an affiliate of the Corporation, (b) has its principal
office in the United States of America and (c) has a combined capital and surplus of at least $50,000,000. If no successor Depositary shall have been so appointed and have accepted appointment within 60 days after delivery of such notice, the
resigning or removed Depositary may, at the Corporation’s expense, petition any court of competent jurisdiction for the appointment of a successor Depositary. Every successor Depositary shall execute and deliver to its predecessor and to the
Corporation an instrument in writing accepting its appointment hereunder, and thereupon such successor Depositary, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor and
for all purposes shall be the Depositary under this Agreement, and such predecessor, upon payment of all sums due it and on the written request of the Corporation, shall promptly execute and deliver an instrument transferring to such successor all
rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest in the Mandatory Convertible Preferred Stock and any moneys, securities or other property held hereunder to such successor, and
shall deliver to such successor Depositary a list of the Record Holders of all outstanding Receipts and such records, books and other information in its possession relating thereto. Any successor Depositary shall promptly send notice of its
appointment to the Record Holders of Receipts.
Any entity into or with which the Depositary may be merged, consolidated or converted, or
any successor Person to which all or a substantial part of the assets of the Depositary may be transferred or which succeeds to the shareholder services business of the Depositary shall be the successor of the Depositary without the execution or
filing of any document or any further act, and notice thereof shall not be required hereunder. Such successor Depositary may authenticate the Receipts in the name of the predecessor Depositary or its own name as successor Depositary.
The provisions of this Section 5.04 as they apply to the Depositary apply to the Registrar and Transfer Agent, as if specifically
enumerated herein.
Section 5.05. Corporate Notices and Reports. The Corporation agrees that it shall deliver to the
Depositary, and the Depositary shall, promptly after receipt thereof, transmit to the Record Holders of Receipts, in each case, at the addresses recorded in the Depositary’s books, copies of all notices and reports (including, without
limitation, financial statements) required by law, by the rules of the NYSE or any other national securities exchange upon which the Mandatory Convertible Preferred Stock, the Depositary Shares or the Receipts are listed or by the Certificate of
Incorporation, to be furnished to the Record Holders of Receipts at the Corporation’s expense; provided that documents filed by the Corporation with the Securities and Exchange Commission via the EDGAR (or any successor thereto) system shall
be deemed to be filed with the Depositary and furnished to Record Holders of Receipts without any further action by the Corporation. In addition, the Depositary shall transmit to the Record Holders of Receipts at the Corporation’s expense,
including applicable fees, such other documents as may be requested by the Corporation.
Section 5.06. Indemnification by the
Corporation. Subject to Section 5.03, the Corporation shall indemnify the Depositary, any Depositary’s Agent and any Registrar or Transfer Agent (including each of their officers, directors, agents and employees) against, and hold
each of them harmless from, any loss, damage, cost, penalty, liability or expense (including the reasonable and documented costs and expenses of defending itself) actually and reasonably incurred by the Depositary which may arise out of acts
performed, suffered or omitted to be taken in connection with this Agreement and the Receipts by the Depositary, any Registrar, any Transfer Agent or any of their respective agents (including any Depositary’s Agent) and any transactions or
documents contemplated hereby, except for any liability arising out of gross negligence, willful misconduct or bad faith on the respective parts of any such Person or Persons (which gross negligence, willful misconduct or bad faith must be
determined by a final, non-appealable order, judgment, decree or ruling of a court of competent jurisdiction).
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From time to time, the Corporation may provide the Depositary with instructions concerning
the services performed by the Depositary hereunder. In addition, at any time the Depositary may apply to any officer of the Corporation for instruction, and may consult with legal counsel for the Depositary or the Corporation with respect to any
matter arising in connection with the services to be performed by the Depositary under this Agreement. The Depositary, any Depositary’s Agent, any Registrar, any Transfer Agent and their respective agents and subcontractors, as applicable,
shall not be liable and shall be indemnified by the Corporation for any action taken, suffered or omitted by them in reasonable reliance upon any Corporation instructions or upon the advice or opinion of such counsel. The Depositary shall not be
held to have notice of any change of authority of any person, until receipt of written notice thereof from the Corporation. The obligations of the Corporation set forth in this Section 5.06 shall survive the termination of this Agreement and
any replacement, removal, resignation or succession of any Depositary, Registrar, Transfer Agent or Depositary’s Agent.
Section 5.07. Fees, Charges and Expenses. The Corporation agrees promptly to pay the Depositary the compensation to be agreed upon
with the Corporation for all services rendered by the Depositary hereunder and to reimburse the Depositary, any Depositary’s Agent, any Transfer Agent and any Registrar for its reasonable and documented out-of-pocket expenses (including reasonable and documented counsel fees and expenses) incurred by the Depositary, such Depositary’s Agent, such Transfer Agent and such Registrar in connection with the
preparation, delivery, amendment, execution and administration of this Agreement and incident to the performance of their (or any of their agent’s) respective obligations hereunder. The Corporation shall pay all charges of the Depositary in
connection with the initial deposit of the Mandatory Convertible Preferred Stock and the initial issuance of the Depositary Shares and any change of the Mandatory Convertible Preferred Stock in accordance with Section 4.06. The Corporation
shall pay all transfer and other taxes and governmental charges arising solely from the existence of the depositary arrangements. The Record Holders shall not be required to pay any transfer and other taxes and governmental charges relating to the
Mandatory Convertible Preferred Stock, the Receipts or the Depositary Shares; provided that a Record Holder shall be required to pay any tax or duty that may be payable relating to any issuance or delivery of shares of Mandatory Convertible
Preferred Stock or Common Stock or transfers or exchanges of Depositary Shares or Receipts, in each case, in a name other than the name of such Record Holder. If, at the request of a Record Holder of Receipts, the Depositary incurs charges or
expenses for which the Corporation is not otherwise liable hereunder, then such Record Holder shall be liable for such charges and expenses; provided, however, that the Depositary may, at its sole option, request that the Corporation
direct a Record Holder of a Receipt to prepay the Depositary any charge or expense the Depositary has been asked to incur at the request of such Record Holder of Receipts. The Depositary shall not be liable for any failure to act or delay in acting
for such Person’s failure to prepay any such charge or expense. The Depositary shall present its statement for charges and expenses to the Corporation at such intervals as the Corporation and the Depositary may agree.
Section 5.08. Tax Compliance. The Depositary, on its own behalf and on behalf of the Corporation, will comply with all applicable
certification, information reporting and withholding (including “backup” withholding) requirements imposed by applicable tax laws, regulations or administrative practice with respect to (a) any payments made with respect to the
Depositary Shares and Mandatory Convertible Preferred Stock or (b) the issuance, delivery, holding, transfer or exercise of rights under the Receipts or the Depositary Shares. Such compliance shall include, without limitation, the preparation
and timely filing of required returns and the timely payment of all amounts required to be withheld to the appropriate taxing authority or its designated agent. The Corporation will provide withholding and reporting instructions in writing to the
Depositary from time to time as relevant, and upon reasonable request of the Depositary. The Depositary shall have no responsibilities with respect to tax withholding, reporting or payment except as specifically instructed by the Corporation or as
required by applicable law.
The Depositary shall comply with any lawful direction received from the Corporation with respect to the
application of such requirements to particular payments or holders or in other particular circumstances, and may for purposes of this Agreement rely on any such direction in accordance with the provisions of Section 5.03 hereof.
The Depositary shall maintain all appropriate records documenting compliance with such requirements in accordance with its retention policies,
and shall make such records available on request to the Corporation or to its authorized representatives during the term of this Agreement.
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ARTICLE 6
AMENDMENT AND TERMINATION
Section 6.01. Amendment Without Consent of Record Holders. Without the consent of the Record Holders of Receipts, the Receipts and
any provisions of this Agreement may at any time and from time to time be amended, altered or supplemented by agreement between the Corporation and the Depositary for the following purposes:
(a)
to cure any ambiguity, omission, inconsistency or mistake in this Agreement or the Receipts;
(b)
to make any provision with respect to matters or questions relating to the Depositary Shares that is not
inconsistent with the provisions of this Agreement and that does not materially and adversely affect the rights, preferences, privileges or voting powers of any Record Holder of Receipts;
(c)
to make any change reasonably necessary, in the Corporation’s reasonable determination, to reflect each
Depositary Share’s representation of 1/20th of a share of the Mandatory Convertible Preferred Stock;
(d)
to make any change reasonably necessary, in the Corporation’s reasonable determination, to comply with
the procedures of the Depositary and that does not materially and adversely affect the rights, preferences, privileges or voting powers of any Record Holder of Receipts; or
(e)
to make any other change that does not materially and adversely affect the rights, preferences, privileges or
voting powers of any Record Holder of Receipts (other than any Record Holder that consents to such change).
In
addition, without the consent of the Record Holders of Receipts, the Receipts and any provisions of this Agreement may at any time and from time to time be amended, altered, supplemented or repealed to conform such provisions to the description
thereof in the prospectus for the Depositary Shares, as supplemented and/or amended by the “Description of Depositary Shares” and the “Description of Mandatory Convertible Preferred Stock” sections of the preliminary
prospectus supplement for the Mandatory Convertible Preferred Stock and the Depositary Shares, as further supplemented and/or amended by the pricing term sheet related thereto. Every Record Holder of an outstanding Receipt at the time any such
action takes effect shall be deemed, by continuing to hold such Receipt, to consent and agree to such action and to be bound by this Agreement.
As a condition precedent to the Depositary’s execution of any amendment pursuant to this Section 6.01 or Section 6.02, the
Corporation shall deliver to the Depositary a certificate from a duly authorized officer of the Corporation that states that the proposed amendment is in compliance with the terms of this Section 6.01 or of Section 6.02, as applicable. No
supplement or amendment to the form of Receipts or this Agreement shall be effective unless duly executed by the Depositary and the Corporation. Notwithstanding anything in this Agreement to the contrary, the Depositary may, but shall not be
obligated to, enter into any supplement or amendment that adversely affects the Depositary’s own rights, duties, immunities or obligations under this Agreement.
Section 6.02. Amendment With Consent of Record Holders. With the consent of the Record Holders of at least a majority of the
aggregate number of Receipts then outstanding (determined in accordance with Section 4.09), the Receipts and any provisions of this Agreement may at any time and from time to time be amended, altered or supplemented by agreement between the
Corporation and the Depositary; provided, however, that, without the consent of each Record Holder of an outstanding Receipt affected, no such amendment, alteration or supplement shall:
(a)
reduce the number of Receipts the Record Holders of which must consent to an amendment, alteration or
supplement of the Receipts or this Agreement;
(b)
reduce the amount payable or deliverable in respect of the Receipts or extend the stated time for such payment
or delivery;
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(c)
impair the right, subject to the provisions of Section 2.07, Section 2.08 and Article 3, of any owner
of Depositary Shares to surrender any Receipt evidencing such Depositary Shares to the Depositary with instructions to deliver to the Record Holder the Mandatory Convertible Preferred Stock and all money and/or other property represented thereby;
(d)
change the currency in which payments in respect of the Depositary Shares or any Receipt evidencing such
Depositary Shares is made;
(e)
impair the right of any Record Holder of Receipts to receive payments or deliveries on such Record
Holder’s Receipts on or after the due dates therefor or to institute suit for the enforcement of any such payment or delivery;
(f)
make any change that materially and adversely affects the conversion rights of any Record Holder of Receipts;
or
(g)
make any change that materially and adversely affects the voting rights of any Record Holder of Receipts.
Section 6.03. Termination. This Agreement may be terminated by the Corporation or the Depositary only if
(a) all outstanding Depositary Shares issued hereunder have been cancelled, upon conversion of the Mandatory Convertible Preferred Stock into Common Stock in accordance with the Certificate of Designations or otherwise, or (b) there shall
have been made a final distribution in respect of the Mandatory Convertible Preferred Stock in connection with any liquidation, dissolution or winding up of the Corporation and such distribution shall have been distributed to the Record Holders of
Receipts representing Depositary Shares pursuant to Section 4.01 or 4.02, as applicable.
Upon the termination of this Agreement, the
Corporation shall be discharged from all obligations under this Agreement except for its obligations to the Depositary, any Depositary’s Agent, any Transfer Agent and any Registrar under Sections 5.03, 5.06 and 5.07, provided, further, that
Sections 5.02, 5.03, 5.06 and 5.07 shall survive the termination of this Agreement.
ARTICLE 7
MISCELLANEOUS
Section 7.01. Counterparts. This Agreement may be executed in any number of counterparts, and by each of the parties hereto on
separate counterparts, each of which counterparts, when so executed and delivered, shall be deemed an original, but all such counterparts taken together shall constitute one and the same instrument. A signature to this Agreement transmitted
electronically shall have the same authority, effect, and enforceability as an original signature (including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and
Records Act or other applicable law, e.g., DocuSign or Adobe Sign).
Section 7.02. Record Holders of Receipts Are Parties;
Exclusive Benefit of Parties. The Record Holders of Receipts from time to time shall be parties to this Agreement and shall be bound by all of the terms and conditions hereof and of the Receipts. This Agreement is for the exclusive benefit of
the parties hereto, and their respective assigns and successors hereunder, and shall not be deemed to give any legal or equitable right, remedy or claim to any other entity or Person whatsoever.
Section 7.03. Invalidity of Provisions. In case any one or more of the provisions contained in this Agreement or in the Receipts
should be or become invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein or therein shall in no way be affected, prejudiced or disturbed thereby; provided,
however, that if any such provision adversely affects the rights, duties, liabilities or obligations of the Depositary, the Depositary shall be entitled to resign immediately.
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Section 7.04. Notices. Any and all notices to be given to the Corporation
hereunder or under the Receipts shall be in writing and shall be deemed to have been duly given if personally delivered or sent by mail, or by facsimile transmission or electronic mail, confirmed by letter, addressed to the Corporation at:
Super Micro Computer, Inc.
980
Rock Avenue
San Jose, CA 95131
Attention: Derek Windham
Email:
derekw@supermicro.com
With a copy to (which alone shall not constitute notice):
Freshfields US LLP
855 Main
Street
Redwood City, CA 94063
Attention: Sarah Solum; Jeff Gould
Email: sarah.solum@freshfields.com; jeff.gould@freshfields.com
or at any other addresses of which the Corporation shall have notified the Depositary in writing.
Any and all notices to be given to the Depositary hereunder or under the Receipts shall be in writing and shall be deemed to have been duly
given if personally delivered or sent by mail, overnight courier service, or, if sent by facsimile transmission confirmed by letter, addressed to the Depositary at the Depositary’s Office at:
Computershare Inc.
Computershare
Trust Company, N.A.
150 Royall Street
Canton, MA 02021
Attention:
Relationship Manager
Email: sylvia.morales@computershare.com
or at any other address of which the Depositary shall have notified the Corporation in writing.
Subject to the immediately succeeding sentence, the Depositary shall give any and all notices directed to be given by the Corporation to any
Record Holder of a Receipt in writing, and such notices shall be deemed to have been duly given if personally delivered or sent by mail or facsimile transmission or confirmed by letter, addressed to such Record Holder at the address of such Record
Holder as it appears on the books of the Depositary. Notwithstanding the foregoing, if Depositary Shares are issued in book-entry form through DTC or any similar facility, such notices may be given to Record Holders in any manner permitted by DTC or
such facility, as the case may be.
Delivery of a notice sent by mail or by facsimile transmission shall be deemed to be effected at the
time when a duly addressed letter containing the same (or a confirmation thereof in the case of a facsimile transmission) is deposited, postage prepaid, in a post office letter box. However, the Depositary or the Corporation may act upon any
facsimile transmission received by it from the other, notwithstanding that such facsimile transmission shall not subsequently be confirmed by letter or as aforesaid.
Section 7.05. Appointment of Registrar and Transfer Agent. Unless otherwise set forth on a certificate duly executed by an
authorized officer of the Corporation, the Corporation hereby appoints Computershare Trust Company, N.A. as Registrar and Transfer Agent in respect of the Mandatory Convertible Preferred Stock deposited with the Depositary hereunder, and
Computershare Trust Company, N.A. hereby accepts such appointment. Computershare Trust Company, N.A., in such capacity under such appointment, shall be entitled to the same rights, indemnities, immunities and benefits as the Depositary hereunder as
if explicitly named in each such provision.
Section 7.06. Governing Law. This Agreement and the Receipts and all rights
hereunder and thereunder and provisions hereof and thereof, including without limitation any claim, controversy or dispute arising under or related to this Agreement or the Receipts, shall be governed by, and construed in accordance with, the laws
of the State of New York without giving effect to applicable conflicts of law principles.
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Section 7.07. Inspection of Deposit Agreement and Certificate. Copies of this
Agreement and the Certificate of Designations shall be filed with the Depositary and any of the Depositary’s Agents and shall be open to inspection upon reasonable notice during business hours at the Depositary’s Office by any Record
Holder of any Receipt.
Section 7.08. Headings. The headings of articles and sections in this Agreement and in the form of the
Receipt set forth in Exhibit A hereto have been inserted for convenience only and are not to be regarded as a part of this Agreement or the Receipts or to have any bearing upon the meaning or interpretation of any provision contained herein
or in the Receipts.
Section 7.09. Further Assurances. Each of the Corporation and the Depositary, respectively, agrees that
it will perform, acknowledge, and deliver or cause to be performed, acknowledged or delivered, all such further and other acts, documents, instruments and assurances as the Depositary or the Corporation, respectively, may reasonably require in
connection with the performance of this Agreement.
Section 7.10. Confidentiality. The Depositary and the Corporation agree
that all books, records, information and data pertaining to the business of the other party, including, inter alia, personal, non-public Record Holder information, and the fees for services to be performed
hereunder, which are exchanged or received pursuant to the negotiation or the carrying out of this Agreement, shall remain confidential, and shall not be voluntarily disclosed to any other Person, except as may be required by law or legal process.
Notwithstanding anything contained herein, each party may disclose relevant aspects of the other party’s confidential information to its officers, affiliates, agents, subcontractors and employees to the extent reasonably necessary to perform
its duties and obligations under this Agreement and such disclosure is not prohibited by applicable law.
[Signatures on following
pages]
24
IN WITNESS WHEREOF, the Corporation and the Depositary have duly executed this Agreement as
of the day and year first above set forth.
SUPER MICRO COMPUTER, INC.
By:
/s/ Charles Liang
Name: Charles Liang
Title: President and Chief Executive
Officer
[Signature page to the
Deposit Agreement]
COMPUTERSHARE INC. and
COMPUTERSHARE TRUST COMPANY, N.A.,
as Depositary
By:
/s/ Brooke Webb
Name: Brooke Webb
Title: Senior Vice President – Client Management
[Signature page to the
Deposit Agreement]
EXHIBIT A
[FORM OF FACE OF RECEIPT]
THE
DEPOSITARY SHARES REPRESENTED BY THIS RECEIPT ARE NOT SAVINGS ACCOUNTS, DEPOSITS OR OTHER OBLIGATIONS OF A BANK AND ARE NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER GOVERNMENT AGENCY.
[UNLESS THIS RECEIPT IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
(“DTC”), TO COMPUTERSHARE TRUST COMPANY, N.A. OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY RECEIPT ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREUNDER IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.]1
1
Insert for a DTC Receipt
A-1
Number DR-[____]
[Initially]2 ________ Depositary Shares
(CUSIP: 86800U 500)
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES,
EACH REPRESENTING ONE-TWENTIETH OF ONE SHARE OF
7.00% SERIES A MANDATORY CONVERTIBLE PREFERRED STOCK, OF
SUPER MICRO COMPUTER, INC.
Incorporated under the laws of the State of Delaware
(See reverse for certain definitions)
COMPUTERSHARE INC., a Delaware corporation, and its affiliate, COMPUTERSHARE TRUST COMPANY, N.A., a federally chartered trust company, jointly
as depositary (the “Depositary”), hereby certifies that ____________3 is the registered owner of [________ (________)]4 [the
number shown on Schedule I hereto of]5 DEPOSITARY SHARES (“Depositary Shares”), each Depositary Share representing a one-twentieth
interest in one share of the 7.00% Series A Mandatory Convertible Preferred Stock, par value $0.001 per share (the “Mandatory Convertible Preferred Stock”), of SUPER MICRO COMPUTER, INC., a Delaware corporation (the
“Corporation”), on deposit with the Depositary, subject to the terms and entitled to the benefits of the Deposit Agreement dated as of June 15, 2026 (the “Deposit Agreement”), among the Corporation, the
Depositary and the Record Holders from time to time of the Depositary Receipts. The rights, preferences, privileges and voting powers of the Mandatory Convertible Preferred Stock are set forth in a Certificate of Designations filed with the
Secretary of State of the State of Delaware. The aggregate number of Depositary Shares evidenced by Receipts that may be executed and delivered under the Deposit Agreement is initially limited to 86,250,000.
This Receipt and all rights hereunder and provisions hereof, including without limitation any claim, controversy or dispute arising under or
related to this Receipt, shall be governed by, and construed in accordance with, the laws of the State of New York without giving effect to applicable conflicts of law principles.
In the case of any conflict between this Receipt and the Deposit Agreement, the provisions of the Deposit Agreement shall control and govern.
This Depositary Receipt is issuable to [____________]6 as the registered owner of
the Depositary Shares represented hereby. By accepting this Depositary Receipt, the Record Holder hereof becomes a party to and agrees to be bound by all the terms and conditions of the Deposit Agreement.
This Depositary Receipt shall not be valid or obligatory for any purpose or entitled to any benefits under the Deposit Agreement unless it
shall have been executed by the Depositary by the manual, electronic or facsimile signature of a duly authorized officer and, if a Registrar in respect of the Depositary Receipts (other than the Depositary) shall have been appointed, by the manual,
electronic or facsimile signature of a duly authorized officer of such Registrar.
(signatures on following pages)
2
Insert for a DTC Receipt.
3
Insert “CEDE & CO.” for a DTC Receipt.
4
Insert for Physical Receipt.
5
Insert for DTC Receipt.
6
Insert “CEDE & CO.” for a DTC Receipt.
A-2
IN WITNESS WHEREOF, the Depositary, Transfer Agent and Registrar have duly executed this
Depositary Receipt as of the day and year set below.
Dated: ______________
Computershare Inc. and Computershare Trust Company, N.A.,
as Depositary
By:
Authorized Signatory
Countersigned and Registered:
Computershare Trust Company, N.A.,
as Transfer Agent and Registrar
By:
Authorized Signatory
A-3
[FORM OF REVERSE OF RECEIPT]
SUPER MICRO COMPUTER, INC.
UPON REQUEST, SUPER MICRO COMPUTER, INC. (THE “CORPORATION”) WILL FURNISH WITHOUT CHARGE TO EACH HOLDER OF A DEPOSITARY
RECEIPT WHO SO REQUESTS A COPY OF THE DEPOSIT AGREEMENT AND/OR A COPY OF THE CORPORATION’S AMENDED AND RESTATED CERTIFICATE OF INCORPORATION, AS AMENDED (INCLUDING THE CERTIFICATE OF DESIGNATIONS ESTABLISHING THE TERMS OF THE
CORPORATION’S 7.00% SERIES A MANDATORY CONVERTIBLE PREFERRED STOCK). ANY SUCH REQUEST IS TO BE ADDRESSED TO THE DEPOSITARY NAMED ON THE FACE OF THIS RECEIPT.
The Corporation will furnish without charge to each Record Holder of a Receipt who so requests the powers, designations, preferences and
relative, participating, optional or other special rights of each class of stock or series thereof of the Corporation, and the qualifications, limitations or restrictions of such preferences or rights. Such request may be made to the Corporation or
to the Registrar.
KEEP THIS RECEIPT IN A SAFE PLACE. IF IT IS LOST, STOLEN OR DESTROYED THE CORPORATION WILL REQUIRE A BOND OF INDEMNITY
AS A CONDITION TO THE ISSUANCE OF A REPLACEMENT RECEIPT.
A-4
ABBREVIATIONS
The following abbreviations, when used in the inscription of the face of this Receipt, shall be construed as though they were written out in
full according to applicable laws or regulations:
TEN COM = as tenants in common
UNIF GIFT MIN ACT = Uniform Gifts to Minors Act
CUST =
Custodian
TEN ENT = as tenants by the entireties
JT TEN =
joint tenants with right of survivorship and not as tenants in common
Additional abbreviations may also be used though not in the above
list.
A-5
Schedule I7
SCHEDULE OF EXCHANGES
Super
Micro Computer, Inc.
Depositary Shares, Each Representing a 1/20th Interest in
7.00%Series A Mandatory Convertible Preferred Stock, par value $0.001 per share
The number of Depositary Shares initially represented by this DTC Receipt shall be [ ]. Thereafter the Transfer
Agent and Registrar shall note changes in the number of Depositary Shares evidenced by this DTC Receipt in the table set forth below:
Date of Exchange
Amount of Decrease in
Number of Depositary
Shares Evidenced by this
DTC
Receipt
Amount of Increase in
Number of Depositary
Shares Evidenced by this
DTC Receipt
Number of Depositary
Shares Represented by
this DTC Receipt
Following Decrease or
Increate
Signature of Authorized
officer of Transfer Agent
and
Registrar
7
Attached Schedule I only to DTC Receipts.
A-6
[FORM OF ASSIGNMENT AND TRANSFER]
For value received, _______________ hereby sell(s), assign(s) and transfer(s) unto ______________________________ (Please insert social
security or other identifying number of assignee, together with such assignee’s name and address, including zip code) _______________ Depositary Shares represented by the within receipt, and hereby irrevocably constitute(s) and
appoint(s) _______________ attorney to transfer the Depositary Shares on the books of the within named Depositary, with full power of substitution in the premises.
Dated:
Signature(s)
Signature Guarantee
NOTICE:
THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS WRITTEN UPON THE FACE OF THE RECEIPT IN EVERY PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.
SIGNATURE(S)
GUARANTEED:
THE SIGNATURE(S) MUST BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS) WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM PURSUANT TO
SECURITIES AND EXCHANGE COMMISSION RULE 17Ad-15.
A-7
EX-5.1
EX-5.1
Filename: d151436dex51.htm · Sequence: 5
EX-5.1
Exhibit 5.1
Super Micro Computer, Inc.
980 Rock Avenue
San Jose, CA 95131
Silicon Valley
855 Main Street
Redwood City, CA 94063
T +1 (650) 618-9250
freshfields.us
June 15, 2026
Ladies and
Gentlemen:
We have acted as counsel to Super Micro Computer, Inc., a Delaware corporation (the “Company”), in
connection with the Company’s offering of 75,000,000 depositary shares (the “Initial Depositary Shares”), each representing a 1/20th interest in a share of the Company’s 7.00% Series A
Mandatory Convertible Preferred Stock, par value $0.001 per share (the “Preferred Stock”), and, at the option of the underwriters, 11,250,000 additional depositary shares (together with the Initial Depositary Shares, the
“Depositary Shares”), pursuant to (i) the shelf registration statement on Form S-3 filed with the Securities and Exchange Commission (the “SEC”) on
June 9, 2026 pursuant to the provisions of the Securities Act of 1933, as amended (the “Securities Act”) (File No. 333-296641) (as amended through the date hereof, and
together with the documents incorporated by reference therein, the “Registration Statement”), including a base prospectus (the “Base Prospectus”), as supplemented by the prospectus supplement dated
June 10, 2026 (together with the Base Prospectus and the documents incorporated by reference therein, the “Prospectus”), and (ii) an underwriting agreement dated June 10, 2026 (the
“Underwriting Agreement”) among the Company and J.P. Morgan Securities LLC and Goldman Sachs & Co. LLC, as representatives of the several underwriters listed in Schedule A thereto (the
“Underwriters”). The Preferred Stock is convertible into and, under certain circumstances, dividends in respect of the Preferred Stock may be payable in, shares of common stock of the Company, par value $0.001 per share
(the “Common Stock”), pursuant to the certificate of designations (the “Certificate of Designations”) establishing the terms of the Preferred Stock filed with the Secretary of State of the State of
Delaware on the date hereof. The Depositary Shares are being issued pursuant to a deposit agreement dated June 15, 2026 (the “Deposit Agreement”) between the Company and Computershare Inc. and Computershare Trust
Company, N.A., acting jointly as depositary (the “Depositary”).
We, as your counsel, have examined originals or
copies of such documents, corporate records, certificates of public officials and other instruments as we have deemed necessary or advisable for the purpose of rendering this opinion.
In rendering the opinions expressed herein, we have, without independent inquiry or investigation, assumed that (i) all documents
submitted to us as originals are authentic and complete, (ii) all documents submitted to us as copies conform to authentic, complete originals, (iii) all documents filed as exhibits to the Registration Statement that have not been executed
or that we have examined in draft, specimen or certificated form will conform to the forms thereof, (iv) all signatures on all documents that we reviewed are genuine, (v) all natural persons executing documents had and have the legal
capacity to do so, (vi) all statements in certificates of public officials and officers of the Company that we reviewed were and are accurate and (vii) all representations made by the Company as to matters of fact in the documents that we
reviewed were and are accurate.
2
|3
Based upon the foregoing, and subject to the additional assumptions and qualifications set
forth below, we advise you that, in our opinion:
1.
the Depositary Shares have been duly authorized by the Company and, when issued and delivered by the Depositary
in accordance with the provisions of the Deposit Agreement to, and paid for by, the Underwriters in accordance with the terms of the Underwriting Agreement, will be validly issued, fully paid and
non-assessable and will entitle the holders thereof to the rights specified in the Deposit Agreement and the depositary receipts evidencing ownership of such Depositary Shares;
2.
the Preferred Stock has been duly authorized for issuance and deposit and, when issued and deposited against
issuance of the Depositary Shares in accordance with the provisions of the Deposit Agreement, and upon the filing and effectiveness of the Certificate of Designations, will be validly issued, fully paid and
non-assessable; and
3.
The shares of Common Stock issuable upon conversion of, or declaration and payment of a dividend on, the
Preferred Stock, in accordance with the Certificate of Designations, when issued and delivered by the Company, will be validly issued, fully paid and non-assessable.
In connection with the opinions expressed above, we have assumed that, at or prior to the time of the issuance and delivery of each share of
Preferred Stock and the issuance and delivery of each share of Common Stock to be issued upon conversion of, or declaration and payment of a dividend on, the Preferred Stock (i) the resolutions of the board of directors of the Company that duly
established the terms of the Preferred Stock and duly authorized the issuance and delivery of each share of Common Stock to be issued upon conversion of, or declaration and payment of a dividend on, the Preferred Stock shall not have been modified
or rescinded; (ii) the Company shall remain validly existing as a corporation in good standing under the laws of the State of Delaware; (iii) there shall not have occurred any change in law affecting the validity or enforceability of such
share of Preferred Stock or Common Stock, as applicable, and (iv) the issuance and delivery of such share of Preferred Stock or the issuance and delivery of such share of Common Stock, the terms of such share of Preferred Stock or Common Stock,
as applicable, and compliance by the Company with the terms of such share of Preferred Stock or Common Stock, as applicable, will not violate any applicable law, any agreement or instrument then binding upon the Company or any restriction imposed by
any court or governmental body having jurisdiction over the Company.
We are members of the Bars of the States of New York and California
and the foregoing opinion is limited to the laws of the State of New York and the General Corporation Law of the State of Delaware.
We
hereby consent to the filing of this opinion as an exhibit to a Current Report on Form 8-K to be filed by the Company on the date hereof and further consent to the reference to our name under the caption
“Legal Matters” in the Prospectus, which is part of the Registration Statement. In giving this consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act.
3
|3
Very truly yours,
/s/ Freshfields US LLP
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