Exhibit
1.1
EXECUTION VERSION
WEATHERFORD INTERNATIONAL LTD.
(a Bermuda exempted company)
5.125% Senior Notes due 2020
6.750% Senior Notes due 2040
Guaranteed by
WEATHERFORD INTERNATIONAL LTD.
(a Swiss joint-stock corporation)
and
WEATHERFORD INTERNATIONAL, INC.
(a Delaware corporation)
UNDERWRITING AGREEMENT
Dated: September 16, 2010
WEATHERFORD INTERNATIONAL LTD.
(a Bermuda exempted company)
5.125% Senior Notes due 2020
6.750% Senior Notes due 2040
Guaranteed by
WEATHERFORD INTERNATIONAL LTD.
(a Swiss joint-stock corporation)
and
WEATHERFORD INTERNATIONAL, INC.
(a Delaware corporation)
UNDERWRITING AGREEMENT
September 16, 2010
Deutsche Bank Securities Inc.
Morgan Stanley & Co. Incorporated
UBS Securities LLC
J.P. Morgan Securities LLC
as Representatives of the several Underwriters
c/o Deutsche Bank Securities Inc.,
60 Wall Street, 4th Floor
New York, New York 10005
Ladies and Gentlemen:
Weatherford International Ltd., a Bermuda exempted company (Weatherford Bermuda or the
Company), Weatherford International Ltd., a Swiss joint-stock corporation (Weatherford
Switzerland or Parent), and Weatherford International, Inc., a Delaware corporation
(WFT-Delaware or Weatherford Delaware and, together with Parent, the Guarantors), confirm
their agreement with Deutsche Bank Securities Inc. (the Lead Representative) and each of the
other Underwriters named in Schedule A hereto (collectively, the Underwriters, which term shall
also include any underwriter substituted as hereinafter provided in Section 10 hereof), for whom
Deutsche Bank Securities Inc., Morgan Stanley & Co. Incorporated, UBS Securities LLC and J.P.
Morgan Securities LLC are acting as Representatives (in such capacity, the Representatives), with
respect to the issue and sale by the Company and the purchase by the Underwriters, acting severally
and not jointly, of the respective principal amounts set forth in said Schedule A of $800,000,000
aggregate principal amount of the Companys 5.125% Senior Notes due 2020 and $600,000,000 aggregate
principal amount of the Companys 6.750% Senior Notes due 2040 (collectively, the Notes),
guaranteed jointly and severally on an unsecured basis pursuant to guarantees (the Guarantees)
provided by the Guarantors. The Notes
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and the Guarantees are hereinafter collectively referred to as the Securities. The Securities
are to be issued pursuant to an indenture dated as of October 1, 2003 (as amended by the Third
Supplemental Indenture dated as of February 26, 2009, the Indenture) between the Company, the
Guarantors and Deutsche Bank Trust Company Americas, as trustee (the Trustee). The term
Indenture, as used herein, includes the Fourth Supplemental Indenture to be dated the Closing
Time establishing the form and terms of the Securities (the Supplemental Indenture). Securities
issued in book-entry form will be issued to Cede & Co. as nominee of The Depository Trust Company
(DTC) pursuant to a letter agreement, to be dated as of the Closing Time (as defined in Section
2(b) hereof), among the Company, the Trustee and DTC.
The Company and the Guarantors understand that the Underwriters propose to make a public
offering of the Securities as soon as the Representatives deem advisable after this Agreement has
been executed and delivered and the Indenture has been qualified under the Trust Indenture Act of
1939, as amended (the 1939 Act).
The Company and the Guarantors have filed with the U.S. Securities and Exchange Commission
(the Commission or the SEC) a registration statement on Form S-3 (Nos. 333-169400,
333-1699400-01, 333-169400-02), as amended, including the related base prospectus (the Base
Prospectus), covering the registration of the Securities under the U.S. Securities Act of 1933, as
amended (the 1933 Act). The Company and the Guarantors have also filed with the Commission a
preliminary prospectus supplement relating to the Securities and supplementing the Base Prospectus.
Promptly after execution and delivery of this Agreement, the Company and the Guarantors will
prepare and file a final prospectus supplement in accordance with the provisions of Rule 430B
(Rule 430B) of the rules and regulations of the Commission under the 1933 Act (the 1933 Act
Regulations) and paragraph (b) of Rule 424 (Rule 424(b)) of the 1933 Act Regulations. The
information included in such prospectus supplement that was omitted from such registration
statement at the time it became effective but that is deemed to be part of such registration
statement at the time it became effective pursuant to Rule 430B is referred to as Rule 430B
Information. The Base Prospectus and the preliminary prospectus supplement to the Base Prospectus
relating to the offering of the Securities, as of the Applicable Time, is herein called the
preliminary prospectus. Such registration statement, including the exhibits and any schedules
thereto (but excluding Form T-1), at the time it became effective, and including the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933 Act at such time
and the Rule 430B Information, is herein called the Registration Statement. Any registration
statement relating to the Securities filed pursuant to Rule 462(b) of the 1933 Act Regulations is
herein referred to as the Rule 462(b) Registration Statement, and after such filing the term
Registration Statement shall include the Rule 462(b) Registration Statement. The final
prospectus, including the prospectus supplement, in the form first furnished to the Underwriters
for use in connection with the offering of the Securities, is herein called the Prospectus. Each
issuer free writing prospectus (as defined in Rule 433 of the 1933 Act) is identified on Schedule B
hereto and referred to herein as an Issuer Free Writing Prospectus. For purposes of this
Agreement, all references to the Registration Statement, any preliminary prospectus, the
Prospectus, any Issuer Free Writing Prospectus or any amendment or supplement to any of the
foregoing shall be deemed to include the copy filed with the Commission pursuant to its Electronic
Data Gathering, Analysis and Retrieval system (EDGAR).
All references in this Agreement to financial statements and schedules and other information
which is contained, included or stated in the Registration Statement, any preliminary
prospectus or the Prospectus (or other references of like import) shall be deemed to mean and
include all such financial statements and schedules and other information which is incorporated by
reference in the Registration Statement, any preliminary prospectus or the Prospectus, as the case
may be; and all references in this Agreement to the Registration Statement, any Issuer Free Writing
Prospectus, any preliminary prospectus or the Prospectus shall be deemed to mean and include the
filing of any document under the U.S.
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Securities Exchange Act of 1934, as amended (the 1934 Act), and the rules and regulations of
the Commission thereunder (the 1934 Act Regulations) which is incorporated by reference in the
Registration Statement, such Issuer Free Writing Prospectus, such preliminary prospectus or the
Prospectus, as the case may be. The term Disclosure Package shall mean, collectively, as of the
Applicable Time, the Base Prospectus, the preliminary prospectus, any Issuer Free Writing
Prospectus, including any Permitted Free Writing Prospectus (as defined herein), and the Final Term
Sheet (as defined herein).
SECTION 1.
Representations and Warranties
.
(a)
Representations and Warranties by the Company and the Guarantors
. The Company and the
Guarantors jointly and severally represent and warrant to each Underwriter as of the date hereof,
as of the Applicable Time and as of the Closing Time referred to in Section 2(b) hereof, and agrees
with each Underwriter, as follows:
1.
Compliance with Registration Requirements
. The Company and the Guarantors
meet the requirements for use of Form S-3 under the 1933 Act. Each of the Registration
Statement, any Rule 462(b) Registration Statement and any post-effective amendment thereto
has become effective under the 1933 Act and no stop order suspending the effectiveness of
the Registration Statement, any Rule 462(b) Registration Statement or any post-effective
amendment thereto has been issued under the 1933 Act and no proceedings for that purpose
have been instituted or are pending or, to the knowledge of the Company or either of the
Guarantors, are contemplated by the Commission, and any request on the part of the
Commission for additional information has been complied with.
At the respective times the Registration Statement, any Rule 462(b) Registration
Statement and any parts thereof or post-effective amendments thereto became effective (for
the avoidance of doubt, including at the Applicable Time) and at the Closing Time, the
Registration Statement, the Rule 462(b) Registration Statement and any amendments and
supplements thereto complied and will comply in all material respects with the requirements
of the 1933 Act and the 1933 Act Regulations and the 1939 Act and the rules and regulations
of the Commission under the 1939 Act (the 1939 Act Regulations), and did not and will not
contain an untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading. Neither the
Prospectus nor any Issuer Free Writing Prospectus nor any amendments or supplements to the
Prospectus or any Issuer Free Writing Prospectus, at the time such document or any such
amendment or supplement was issued and at the Closing Time, included or will include an
untrue statement of a material fact or omitted or will 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. As of 5:00 p.m. (Eastern time) on the date of this
Agreement (the Applicable Time), the Disclosure Package did not include 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 representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement, the Prospectus or the Disclosure
Package made in reliance upon and in conformity with information furnished to the Company by
any Underwriter through the Representatives expressly for use in the Registration Statement
(or any amendment thereto), the Prospectus (or any amendment or supplement thereto) or the
Disclosure Package (or 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 6(b) hereof.
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Each preliminary prospectus and the Prospectus filed as part of the Registration
Statement as originally filed or as part of any amendment thereto complied when so filed in
all material respects with the 1933 Act Regulations and each preliminary prospectus and the
Prospectus delivered to the Underwriters for use in connection with this offering was
identical to the electronically transmitted copies thereof filed with the Commission
pursuant to EDGAR, except to the extent permitted by Regulation S-T.
2.
Parent is Well-Known Seasoned Issuer
. (i) At the time the Company or any
person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) of the
1933 Act) made any offer relating to the Securities in reliance on the exemption of Rule 163
of the 1933 Act, and (ii) as of the date of the execution and delivery of this Agreement
(with such date being used as the determination date for purposes of this clause (ii)), the
Parent was and is a well-known seasoned issuer as defined in Rule 405 of the 1933 Act.
3.
No Ineligible Issuers
. (i) At the earliest time after the filing of the
most recent amendment to the Registration Statement relating to the Securities that the
Company or another offering participant made a
bona fide
offer (within the meaning of Rule
164(h)(2) of the 1933 Act), and (ii) as of the date of the execution and delivery of this
Agreement (with such date being used as the determination date for purposes of this clause
(ii)), neither the Company nor either of the Guarantors was or is an Ineligible Issuer (as
defined in Rule 405 of the 1933 Act), without taking account of any determination by the
Commission pursuant to Rule 405 of the 1933 Act that it is not necessary that the Company or
either of the Guarantors be considered an Ineligible Issuer.
4.
Issuer Free Writing Prospectuses
. No Issuer Free Writing Prospectus, as of
its issue date and at all subsequent times through the completion of the offering of the
Securities or until any earlier date that the Company notified or notifies the
Representatives as described in the next sentence, did, does or will include any information
that conflicted, conflicts or will conflict with the information contained in the
Registration Statement, including any document incorporated by reference therein that has
not been superseded or modified. If at any time following issuance of an Issuer Free
Writing Prospectus there occurred or occurs an event or development as a result of which
such Issuer Free Writing Prospectus conflicted or would conflict with the information
contained in the Registration Statement, the Company has promptly notified or will promptly
notify the Representatives and has promptly amended or supplemented or will promptly amend
or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or
correct such conflict. The foregoing two sentences do not apply to statements in or
omissions from any Issuer Free Writing Prospectus based upon and in conformity with written
information furnished to the Company by any Underwriter through the Representatives
specifically 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 Section 6(b)
hereof.
5.
Distribution of Offering Material By the Company and the Guarantors
.
The
Company and the Guarantors have not distributed and will not distribute, prior to the later
of the Closing Date and the completion of the Underwriters distribution of the Securities,
any offering material in connection with the offering and sale of the Securities other than
a preliminary prospectus, the Prospectus, any Issuer Free Writing Prospectus included in
Schedule B hereto, any Permitted Free Writing Prospectus or the Registration Statement.
6.
Incorporated Documents
. The documents incorporated or deemed to be
incorporated by reference in the Registration Statement, the Prospectus and the Disclosure
Package (collectively, the Incorporated Documents) at the time they were or hereafter are
filed
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with the Commission, complied and will comply in all material respects with the
requirements of the 1934 Act and the 1934 Act Regulations, and, when read together with the
other information in such Registration Statement, Prospectus or Disclosure Package, as the
case may be, at the time the Registration Statement became effective, at the time the
Prospectus was issued, at the Applicable Time and at the Closing Time, did not and will not
contain an untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading.
7.
Independent Accountants
. The accountants who certified the financial
statements and supporting schedules included in the Registration Statement, the Disclosure
Package and the Prospectus are an independent registered public accounting firm as required
by the 1933 Act and the 1933 Act Regulations.
8.
Financial Statements
. The consolidated financial statements included in the
Registration Statement, the Prospectus and the Disclosure Package present fairly in all
material respects the financial position of Parent and its consolidated subsidiaries at the
dates indicated and the statement of operations, shareholders equity and cash flows of
Parent and its consolidated subsidiaries for the periods specified all prepared in
conformity with generally accepted accounting principles (GAAP) (subject, in the case of
interim statements, to normal year-end audit adjustments); and the Company has no material
contingent obligation that is not disclosed in such financial statements or in the
Registration Statement, Prospectus or Disclosure Package. The supporting schedules, if any,
included in the Registration Statement present fairly in accordance with GAAP the
information required to be stated therein. The summary financial information, the
capitalization table and the ratio of earnings to fixed charges included in the Prospectus
and Disclosure Package present fairly the information shown therein and have been compiled
on a basis consistent with that of the audited financial statements included in the
Registration Statement.
9.
No Material Adverse Change in Business
. Since the respective dates as of
which information is given in the Registration Statement, the Prospectus and the Disclosure
Package, except as otherwise stated therein, (A) there has been no material adverse change
in Parents consolidated financial position, shareholders equity, results of operations or
business of the Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business (a Material Adverse Effect), (B) there have
been no transactions entered into by the Company, either of the Guarantors or any of their
respective subsidiaries, other than those in the ordinary course of business, which are
material with respect to the Company and its subsidiaries considered as one enterprise, and
(C) there has been no dividend or distribution of any kind declared, paid or made by Parent
on any class of its share capital.
10.
Good Standing of the Company and the Guarantors
. The Company has been duly
organized and is validly existing as an exempted company in good standing under the laws of
Bermuda and has corporate power and authority to own, lease and operate its properties and
to conduct its business as described in the Prospectus and the Disclosure Package and to
enter into and perform its obligations under this Agreement, the Indenture and the Notes;
WFT-Delaware has been duly organized and is validly existing as a corporation in good
standing under the laws of the State of Delaware and has corporate power and authority to
own, lease and operate its properties and to conduct its business as described in the
Prospectus and the Disclosure Package and to enter into and perform its obligations under
this Agreement, the Indenture and the Guarantees; Parent has been duly organized and is
validly existing as a joint-stock corporation in good standing (to the extent applicable)
under the laws of Switzerland and has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in
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the Prospectus and the Disclosure Package and to enter into and perform its obligations
under this Agreement, the Indenture and the Guarantees; and the Company is duly qualified as
a foreign corporation to transact business and is in good standing in each other
jurisdiction in which such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure so to qualify or to
be in good standing would not result in a Material Adverse Effect; each Guarantor is duly
qualified as a foreign corporation to transact business and is in good standing in each
other jurisdiction in which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, expect where the failure to so
qualify or to be in good standing would not result in a material adverse change in the
consolidated financial position, shareholders equity, results of operations or business of
such Guarantor and its subsidiaries considered as one enterprise, whether or not arising in
the ordinary course of business.
11.
Good Standing of Subsidiaries
. All of the Companys subsidiaries (as
defined in Rule 405 of the 1933 Act Regulations) have been duly incorporated or formed and
are validly existing as corporations, limited liability companies, limited partnerships or
other forms of entities, as the case may be, in good standing under the laws of their
respective jurisdictions of incorporation or formation (to the extent applicable), have the
requisite power and authority to own their respective properties and conduct their
respective businesses, are duly qualified to do business and are in good standing as foreign
corporations, limited liability companies, limited partnerships or other forms of entities
in each jurisdiction in which their respective ownership or lease of property or the conduct
of their respective businesses requires such qualification, except to the extent that the
failure to be so qualified or be in good standing would not have a Material Adverse Effect.
12.
Capitalization
. Each of the Company and Parent has an authorized
capitalization as set forth in the Disclosure Package and the Prospectus, and all of the
issued shares of each of the Company and Parent, have been duly and validly authorized and
issued, are fully paid and non-assessable and conform to the description thereof contained
in the Disclosure Package and the Prospectus; the Company is an indirect, wholly owned
subsidiary of Parent; WFT-Delaware is an indirect, wholly owned subsidiary of the Company;
and all of the issued shares, share capital or other equity interests of each subsidiary of
the Company, have been duly and validly authorized and issued and are fully paid and
non-assessable and (except for directors qualifying shares) are owned directly or
indirectly by the Company, free and clear of all liens, encumbrances, equities or claims.
13.
Authorization of Agreement
. This Agreement has been duly authorized,
executed and delivered by the Company and the Guarantors.
14.
Authorization of the Indenture
. The Indenture has been duly authorized by
the Company and the Guarantors, duly qualified under the 1939 Act and duly executed and
delivered by the Company and the Guarantors. The Indenture constitutes a valid and binding
agreement of the Company and the Guarantors, enforceable against the Company and the
Guarantors in accordance with its terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting enforcement of creditors
rights generally and except as enforcement thereof is subject to general principles of
equity (regardless of whether enforcement is considered in a proceeding in equity or at
law).
15.
Authorization of the Securities
. The Securities have been duly authorized
and, at the Closing Time, will have been duly executed by the Company and each of the
Guarantors, as
6
the case may be, for issuance and sale pursuant to this Agreement. The Securities,
when authenticated, issued and delivered in the manner provided for in the Indenture and
delivered against payment of the purchase price therefor as provided in this Agreement, will
have been duly executed, authenticated, issued and delivered and will constitute valid and
binding obligations of the Company and each of the Guarantors, enforceable against the
Company and each Guarantor, as the case may be, in accordance with their terms, except as
the enforcement thereof may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), reorganization, moratorium or
similar laws affecting enforcement of creditors rights generally and except as enforcement
thereof is subject to general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law), and will be in the form contemplated by,
and entitled to the benefits of, the Indenture.
16.
Description of the Securities and the Indenture
. The Securities and the
Indenture will conform in all material respects to the respective statements relating
thereto contained in the Prospectus and the Disclosure Package and will be in substantially
the respective forms filed or incorporated by reference, as the case may be, as exhibits to
the Registration Statement.
17.
Absence of Defaults and Conflicts
. Neither the Company, either of the
Guarantors nor any of their respective subsidiaries is (i) in violation of its charter,
memorandum of association or bye-laws or similar governing document, as applicable, (ii) in
default, and no event has occurred which, with notice or lapse of time or both, would
constitute such a default, in the due performance or observance of any term, obligation,
agreement, covenant or condition contained in any contract, indenture, mortgage, deed of
trust, loan or credit agreement, lease or other agreement or instrument to which it is a
party or by which it is bound or which any of its properties or assets may be subject
(collectively, Agreements and Instruments) or (iii) in violation of any law, ordinance,
governmental rule, regulation or court decree to which it or its property or assets may be
subject, except with respect to (ii) or (iii), for any such violations or defaults that
would not be reasonably likely, singly or in the aggregate, to have a Material Adverse
Effect; and the execution, delivery and performance of this Agreement, the Indenture and the
Securities and the consummation of the transactions contemplated herein and in the
Registration Statement (including the issuance and sale of the Securities and the use of the
proceeds from the sale of the Securities as described in the Disclosure Package and the
Prospectus under the caption Use of Proceeds) and compliance by the Company and the
Guarantors with their respective obligations hereunder and under the Indenture and the
Securities have been duly authorized by all necessary corporate action and do not and will
not, whether with or without the giving of notice or passage of time or both, (i) conflict
with or result in a breach or violation of any of the terms or provisions of, or constitute
a default or Repayment Event (as defined below) under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of the Company or
either of the Guarantors or any of their respective subsidiaries pursuant to, the Agreements
and Instruments, (ii) result in any violation of the provisions of the charter, articles or
memorandum of association, organizational regulations or bye-laws (or similar governing
document) of the Company or either of the Guarantors or any of their respective subsidiaries
or (iii) result in any violation of any applicable law, statute, rule, regulation, judgment,
order, writ or decree of any government, government instrumentality or court, domestic or
foreign, having jurisdiction over the Company or either of the Guarantors or any of their
respective subsidiaries or any of their assets, properties or operations; except for such
conflict, breach, violation or default which would, for purposes of clauses (i) and (iii)
above, either individually or in the aggregate, not have a Material Adverse Effect. As used
herein, a Repayment Event means any event or condition which gives the holder of any note,
debenture or other evidence of indebtedness (or any person acting on such holders behalf)
the right to
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require the repurchase, redemption or repayment of all or a portion of such
indebtedness by the Company or either of the Guarantors or any of their respective
subsidiaries.
18.
Absence of Labor Dispute
. No labor dispute with the employees of the
Company, either of the Guarantors or any of their respective subsidiaries exists or, to the
knowledge of the Company or either of the Guarantors, is imminent, which would reasonably be
expected to have a Material Adverse Effect; and there are no significant unfair labor
practice complaints pending against the Company, either of the Guarantors or any of their
respective subsidiaries or, to the knowledge of the Company or either of the Guarantors,
threatened against any of them.
19.
Absence of Proceedings
. Except as described in the Registration Statement,
the Prospectus and the Disclosure Package, there is no action, suit, proceeding, inquiry or
investigation before or brought by any court or governmental agency or body, domestic or
foreign, now pending, or, to the knowledge of the Company, threatened, against or affecting
the Company, either of the Guarantors or any of their respective subsidiaries, which is
required to be disclosed in the Registration Statement or the Prospectus, or which would
reasonably be expected to result in a Material Adverse Effect, or which would reasonably be
expected to materially and adversely affect the consummation of the transactions
contemplated in this Agreement or the performance by the Company and the Guarantors of their
respective obligations hereunder; the aggregate of all pending legal or governmental
proceedings to which the Company, either of the Guarantors or any of their respective
subsidiaries is a party or of which any of their respective property or assets is the
subject which are not described in the Registration Statement, the Prospectus or the
Disclosure Package, including ordinary routine litigation incidental to the business, would
not reasonably be expected to result in a Material Adverse Effect.
20.
Accuracy of Exhibits
. There are no contracts or documents which are
required to be described in the Registration Statement, the Prospectus or the documents
incorporated by reference therein or to be filed as exhibits thereto which have not been so
described and filed as required.
21.
Possession of Intellectual Property
. The Company, the Guarantors and their
respective subsidiaries own or possess adequate rights to use all material patents, patent
applications, trademarks, service marks, trade names, trademark registrations, service mark
registrations, copyrights and licenses necessary for the conduct of their respective
businesses and have no reason to believe that the conduct of their respective businesses
will conflict with, and have not received any notice of any claim of conflict with, any such
rights of others, except where such conflict could not reasonably be expected to have a
Material Adverse Effect.
22.
Absence of Manipulation
. None of the Company, the Guarantors or any of
their affiliates has taken, nor will the Company, either of the Guarantors or any of their
affiliates take, directly or indirectly, any action which is designed to or which has
constituted or which would be expected to cause or result in stabilization or manipulation
of the price of any security of the Company or either of the Guarantors to facilitate the
sale or resale of the Securities.
23.
Absence of Further Requirements
. No filing with, or authorization,
approval, consent, license, order, registration, qualification or decree of, any court or
governmental authority or agency is necessary or required for the performance by the Company
and the Guarantors of their respective obligations hereunder, in connection with the
offering, issuance or sale of the Securities hereunder or the consummation of the
transactions contemplated by this Agreement or for the due execution, delivery or
performance of the Indenture by the Company
8
and the Guarantors, except (A) as may be required under the 1933 Act or the 1933 Act
Regulations or state or securities laws and the Companies Act 1981 of Bermuda and except for
the qualification of the Indenture under the 1939 Act or (B) as have already been made,
obtained or rendered, as applicable, and except where the failure to so make, obtain or
render, singly or in the aggregate, would not reasonably be expected to result in a Material
Adverse Effect.
24.
Possession of Licenses and Permits
. The Company, the Guarantors and their
respective subsidiaries possess such permits, licenses, approvals, consents and other
authorizations (collectively, Governmental Licenses) issued by the appropriate federal,
state, local or foreign regulatory agencies or bodies necessary to conduct the business now
operated by them, except where the failure so to possess would not, singly or in the
aggregate, reasonably be expected to result in a Material Adverse Effect; the Company, the
Guarantors and their respective subsidiaries are in compliance with the terms and conditions
of all such Governmental Licenses, except where the failure so to comply would not, singly
or in the aggregate, reasonably be expected to result in a Material Adverse Effect; all of
the Governmental Licenses are valid and in full force and effect, except when the invalidity
of such Governmental Licenses or the failure of such Governmental Licenses to be in full
force and effect would not, singly or in the aggregate, reasonably be expected to result in
a Material Adverse Effect; and neither the Company, either of the Guarantors nor any of
their respective subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding, would result in a
Material Adverse Effect.
25.
Title to Property
. The Company, the Guarantors and their respective
subsidiaries have good and indefeasible title in fee simple to all real property owned by
the Company, either of the Guarantors or their respective subsidiaries, as applicable, and
good and valid title to all other properties owned by them, in each case, free and clear of
all mortgages, pledges, liens, security interests, claims, restrictions or encumbrances of
any kind except such as (a) are described in the Disclosure Package and the Prospectus or
(b) would not, singly or in the aggregate, reasonably be expected to result in a Material
Adverse Effect; and all of the leases and subleases material to the business of the Company,
the Guarantors and their respective subsidiaries, considered as one enterprise, and under
which the Company, either of the Guarantors or any of their respective subsidiaries holds
properties described in the Disclosure Package and the Prospectus, are in full force and
effect, and neither the Company, either of the Guarantors nor any of their respective
subsidiaries has any notice of any material claim of any sort that has been asserted by
anyone adverse to the rights of the Company, either of the Guarantors or any of their
respective subsidiaries under any of the leases or subleases mentioned above, or affecting
or questioning the rights of the Company, either of the Guarantors or any such subsidiary to
the continued possession of the leased or subleased premises under any such lease or
sublease.
26.
Investment Company Act
. Neither the Company nor either Guarantor is, and
upon the issuance and sale of the Securities as herein contemplated and the application of
the net proceeds therefrom as described in the Disclosure Package and the Prospectus,
neither the Company nor either Guarantor will be, an investment company or an entity
controlled by an investment company, as such terms are defined in the U.S. Investment
Company Act of 1940, as amended (the 1940 Act).
27.
Environmental Laws
. Except as described in the Registration Statement, the
Prospectus and the Disclosure Package and except as would not, singly or in the aggregate,
result in a Material Adverse Effect, (A) neither the Company, either of the Guarantors nor
any of their
9
respective subsidiaries is in violation of any federal, state, local or foreign
statute, law, rule, regulation, ordinance, code, policy or rule of common law or any
judicial or administrative interpretation thereof, including any judicial or administrative
order, consent, decree or judgment, relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface water, groundwater, land
surface or subsurface strata) or wildlife, including, without limitation, laws and
regulations relating to the release or threatened release of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances, petroleum or petroleum
products, asbestos-containing materials or mold (collectively, Hazardous Materials) or to
the manufacture, processing, distribution, use, treatment, storage, disposal, transport or
handling of Hazardous Materials (collectively, Environmental Laws), (B) the Company, the
Guarantors and their respective subsidiaries have all permits, authorizations and approvals
required under any applicable Environmental Laws and are each in compliance with their
requirements, (C) there are no pending or, to the knowledge of the Company, threatened
administrative, regulatory or judicial actions, suits, demands, demand letters, claims,
liens, notices of noncompliance or violation, investigation or proceedings relating to any
Environmental Law against the Company, either of the Guarantors or any of their respective
subsidiaries and (D) there are no events or circumstances that would reasonably be expected
to form the basis of an order for clean-up or remediation, or an action, suit or proceeding
by any private party or governmental body or agency, against or affecting the Company,
either of the Guarantors or any of their respective subsidiaries relating to Hazardous
Materials or any Environmental Laws.
28.
Subsequent Events
. Neither the Company, either of the Guarantors nor any
of their respective subsidiaries has sustained, since the date of the latest audited
financial statements included in the Registration Statement, the Prospectus and the
Disclosure Package, any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise than as set forth or
contemplated in the Registration Statement, the Prospectus or the Disclosure Package; and,
since such date, there has not been any material change in the share capital or long-term
debt of the Company, either of the Guarantors or any of their respective subsidiaries, or
any material adverse change or any development involving a prospective material adverse
change in the condition, financial or otherwise, or in the earnings or business of the
Company, the Guarantors or their respective subsidiaries, otherwise than as set forth or
contemplated in the Registration Statement, the Prospectus or the Disclosure Package.
29.
Insurance
. The Company, the Guarantors and each of their respective
subsidiaries carry, or are covered by, insurance in such amounts and covering such risks as
they reasonably deem sufficient for the conduct of their respective businesses and the value
of their respective properties, and neither the Company, either of the Guarantors nor any of
their respective subsidiaries has received notice of cancellation or non-renewal of such
insurance.
30.
Books and Records
. Except (i) as described in the Registration Statement,
the Prospectus and the Prospectus Supplement (including, at the time made, the Companys
previous filings with the SEC that are incorporated by reference therein) and the Disclosure
Package or (ii) as would not reasonably be expected to result in a Material Adverse Affect,
each of the Company, the Guarantors and their respective subsidiaries (i) makes and keeps
books and records, which accurately reflect transactions and dispositions of its assets,
(ii) maintains internal accounting controls which provide reasonable assurance that (A)
transactions are executed in accordance with managements general and specific
authorization, (B) transactions are recorded as necessary to permit preparation of its
financial statements and to maintain accountability for its assets, (C) access to its assets
is permitted only in accordance with managements general and specific
10
authorization and (D) the recorded accountability for its assets is compared with
existing assets at reasonable intervals.
31.
Foreign Corrupt Practices Act
. Except (i) as described in the Registration
Statement, the Prospectus and the Disclosure Package or (ii) as would not reasonably be
expected to (a) result in a Material Adverse Effect or (b) materially and adversely affect
the consummation of the transactions contemplated in this Agreement or the performance by
the Company and the Guarantors of their respective obligations hereunder, neither the
Company, either of the Guarantors nor any of their respective subsidiaries, nor any
director, officer, agent, employee or shareholder acting on behalf of the Company, either of
the Guarantors or any of their respective subsidiaries, is aware of or has used any
corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense
relating to political activity; made any direct or indirect unlawful payment to any foreign
or domestic government official or employee from corporate funds; violated or is in
violation of any provision of the U.S. Foreign Corrupt Practices Act of 1977, as amended,
and the rules and regulations thereunder (collectively, the FCPA) or similar law,
ordinance, rule or regulation applicable to the Company, either of the Guarantors or any of
their respective subsidiaries; or made any unlawful bribe, rebate, payoff, influence
payment, kickback or other unlawful payment. Except as would not reasonably be expected to
(i) result in a Material Adverse Effect or (ii) materially and adversely affect the
consummation of the transactions contemplated in this Agreement or the performance by the
Company and the Guarantors of their respective obligations hereunder, the Company, the
Guarantors, their respective subsidiaries and, to the knowledge of the Company and the
Guarantors, their respective affiliates, have conducted their business in compliance with
the FCPA and have instituted and maintain policies and procedures designed to ensure, and
which are reasonably expected to continue to ensure, continued compliance therewith.
32.
No Conflict with Money Laundering Laws
.
The operations of the Company, the
Guarantors and their respective subsidiaries are and have been conducted at all times in
compliance with applicable financial recordkeeping and reporting requirements of the U.S.
Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering
statutes of all applicable jurisdictions, the rules and regulations thereunder and any
related or similar rules, regulations or guidelines issued, administered or enforced by any
governmental agency (collectively, the 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, either of the Guarantors or any of their respective
subsidiaries with respect to the Money Laundering Laws is pending or, to the best knowledge
of the Company and the Guarantors, threatened.
33.
U.S. Sanctions Laws and Regulations
. Except (i) as described in the
Registration Statement, the Prospectus and the Disclosure Package or (ii) as would not
reasonably be expected to (a) result in a Material Adverse Effect or (b) materially and
adversely affect the consummation of the transactions contemplated in this Agreement or the
performance by the Company and the Guarantors of their respective obligations hereunder,
neither the Company, either of the Guarantors nor any of their respective subsidiaries nor
to the knowledge of the Company any director, officer, agent, employee or affiliate of the
Company, either of the Guarantors or any of their respective subsidiaries acting on behalf
of the Company, either of the Guarantors, or any of their respective subsidiaries, has taken
any action that may have violated U.S. sanctions laws and regulations administered by the
Office of Foreign Assets Control of the U.S. Department of the Treasury (OFAC); and the
Company will not directly or indirectly use the proceeds of the offering, or lend,
contribute or otherwise make available such proceeds, to any subsidiary, joint venture
partner or other person or entity, for the purpose of financing the activities of any person
11
currently subject to any U.S. sanctions administered by OFAC, in each case other than
in compliance with all applicable OFAC rules, regulations and procedures.
34.
Borrowing Regulations
. Neither the Company, either of the Guarantors nor
any of their respective subsidiaries has taken, or will take, any action that might cause
this Agreement or the issuance or sale of the Securities to violate Regulation T (12 C.F.R.
Part 220), Regulation U (12 C.F.R. Part 221) or Regulation X (12 C.F.R. Part 224) of the
Board of Governors of the Federal Reserve System.
35.
Disclosure Controls and Procedures
. (i) Each of the Company and Parent has
established and maintains disclosure controls and procedures (as such term is defined in
Rules 13a-15(e) and 15d-15(e) under the 1934 Act); (ii) such disclosure controls and
procedures are designed to ensure that information required to be disclosed by the Company
or Parent, as applicable, in the reports it files or submits under the 1934 Act is
accumulated and communicated to its management, including its principal executive officer
and its principal financial officer, as appropriate, to allow timely decisions regarding
required disclosure; and (iii) such disclosure controls and procedures are effective in all
material respects to perform the functions for which they were established. Since the date
of the most recent evaluation of such disclosure controls and procedures, there have been no
significant changes in internal controls or in other factors that could significantly affect
internal controls, including any corrective actions with regard to significant deficiencies
and material weaknesses.
36.
Internal Controls
. Except as disclosed in the Registration Statement, the
Disclosure Package and the Prospectus, since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus, there has not been (i)
any significant deficiency in the design or operation of internal controls which could
adversely affect the ability of Parent to record, process, summarize and report financial
data nor any material weaknesses in internal controls; or (ii) any fraud, whether or not
material, that involves management or other employees who have a significant role in the
internal controls of Parent. Except as disclosed in the Registration Statement, the
Disclosure Package and the Prospectus, since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus, there have been no
significant changes in internal controls or in other factors that could significantly affect
internal controls, including any corrective actions with regard to significant deficiencies
and material weaknesses. Parent has designed and maintain internal control over financial
reporting (as such term is defined in Rules 13a-15(f) and Rules 15d-15(f) under the 1934
Act, referred to herein as Reporting Controls), and the Reporting Controls are (i)
designed to, and sufficient to, provide reasonable assurance (A) that transactions are
executed in accordance with managements general or specific authorizations; (B) that
transactions are recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain asset
accountability; (C) that access to assets is permitted only in accordance with managements
general or specific authorization; (D) that 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 (E) regarding the reliability of financial reporting
and the preparation of financial statements for external purposes in accordance with
generally accepted accounting principles and include, without limitation, those processes
specifically referred to in Rule 13a-15(f) and Rule 15d-15(f) and (ii) to the knowledge of
Parent, effective to perform the functions for which they are maintained.
(b)
Officers Certificates
. Any certificate signed by any officer of the Company or
either Guarantor delivered to the Representatives or to counsel for the Underwriters shall be
deemed a
12
representation and warranty by the Company or such Guarantor, as the case may be, to each
Underwriter as to the matters covered thereby.
SECTION 2.
Sale and Delivery to Underwriters; Closing
.
(a)
Securities
.
1. On the basis of the representations, warranties and agreements herein contained and
subject to the terms and conditions herein set forth, the Company and the Guarantors agree
to sell to each Underwriter, severally and not jointly, and each Underwriter, severally and
not jointly, agrees to purchase from the Company and the Guarantors, at a price equal to
99.212% of the principal amount thereof, the aggregate principal amount of the 5.125% Senior
Notes due 2020 and related Guarantees set forth in Schedule A opposite the name of such
Underwriter, plus any additional principal amount of securities which such Underwriter may
become obligated to purchase pursuant to the provisions of Section 10 hereof.
2. On the basis of the representations, warranties and agreements herein contained and
subject to the terms and conditions herein set forth, the Company and the Guarantors agree
to sell to each Underwriter, severally and not jointly, and each Underwriter, severally and
not jointly, agrees to purchase from the Company and the Guarantors, at a price equal to
98.719% of the principal amount thereof, the aggregate principal amount of the 6.750% Senior
Notes due 2040 and related Guarantees set forth in Schedule A opposite the name of such
Underwriter, plus any additional principal amount of securities which such Underwriter may
become obligated to purchase pursuant to the provisions of Section 10 hereof.
(b)
Payment
. Payment of the purchase price for, and delivery of certificates for, the
Securities shall be made at the offices of Baker & McKenzie LLP, Houston, Texas 77002, or at such
other place as shall be agreed upon by the Representatives and the Company, at 9:00 A.M. (Eastern
time) on the fifth business day after the date hereof (unless postponed in accordance with the
provisions of Section 10), or such other time not later than ten business days after such date as
shall be agreed upon by the Representatives and the Company (such time and date of payment and
delivery being herein called Closing Time).
Payment shall be made to the Company by wire transfer of immediately available funds to a bank
account designated by the Company, against delivery to the Representatives for the respective
accounts of the Underwriters of certificates for the Securities to be purchased by them. It is
understood that each Underwriter has authorized the Representatives, for its account, to accept
delivery of, receipt for, and make payment of the purchase price for, the Securities which it has
agreed to purchase. The Lead Representative, individually and not as representative of the
Underwriters, may (but shall not be obligated to) make payment of the purchase price for the
Securities to be purchased by any Underwriter whose funds have not been received by the Closing
Time, but such payment shall not relieve such Underwriter from its obligations hereunder. Delivery
of the Securities shall be made through the facilities of DTC.
(c)
Denominations; Registration
. Certificates for the Securities shall be in such
denominations ($2,000 or integral multiples of $1,000 in excess of $2,000) and registered
in such names as the Representatives may request in writing at least one full business day before
the Closing Time. The Securities will be made available for examination and packaging by the
Representatives in The City of New York not later than 10:00 A.M. (Eastern time) on the business
day prior to the Closing Time.
SECTION 3.
Covenants of the Company and the Guarantors
. The Company and the
Guarantors jointly and severally covenant with each Underwriter as follows:
13
(a)
Compliance with Securities Regulations and Commission Requests
. The Company and the
Guarantors, subject to Section 3(b), will comply with the requirements of Rule 430B and will notify
the Representatives immediately, and confirm the notice in writing, (i) when any post-effective
amendment to the Registration Statement shall become effective, or when any supplement to the
Prospectus, any amended Prospectus, or any Issuer Free Writing Prospectus or supplement or
amendment thereto shall have been filed, (ii) of the receipt of any comments from the Commission
with respect to the Registration Statement, the preliminary prospectus, the Prospectus or any
Issuer Free Writing Prospectus, (iii) of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the preliminary prospectus, the Prospectus
or any Issuer Free Writing Prospectus or any document incorporated by reference therein or for
additional information, and (iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or suspending the use of any
preliminary prospectus, of the Prospectus or of any Issuer Free Writing Prospectus, or of the
suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of
the initiation or threatening of any proceedings for any of such purposes. The Company and the
Guarantors will promptly effect the filings necessary pursuant to Rule 424(b) and Rule 433 and will
take such steps as they deem necessary to ascertain promptly whether the form of prospectus
transmitted for filing under Rule 424(b) and the Final Term Sheet transmitted for filing under Rule
433 were received for filing by the Commission and, in the event that any such document was not,
they will promptly file such document. The Company and the Guarantors will use their reasonable
best efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain
the lifting thereof as soon as possible. The Company shall pay the required Commission filing fees
relating to the Securities within the time period required by Rule 456(b)(i) of the 1933 Act
Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and
457(r) of the 1933 Act Regulations and, if applicable, shall have updated the Calculation of
Registration Fee table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment
to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b).
(b)
Filing of Amendments
. The Company and the Guarantors will give the Representatives notice
of their intention to file or prepare any amendment to the Registration Statement (including any
filing under Rule 462(b)) or any amendment, supplement or revision to any of the prospectus
included in the Registration Statement at the time it became effective, the preliminary prospectus,
the Prospectus or any Issuer Free Writing Prospectus, whether pursuant to the 1933 Act, the 1934
Act or otherwise, will furnish the Representatives with copies of any such documents a reasonable
amount of time prior to such proposed filing or use, as the case may be, and will not file or use
any such document without the consent of the Representatives, which consent shall not be
unreasonably withheld.
(c)
Final Term Sheet
. The Company and the Guarantors will file, pursuant to Rule 433(d) under
the 1933 Act and within the time required by such rule, the final term sheet containing only the
description of the Securities in the form attached hereto as Schedule D (the Final Term Sheet).
(d)
Permitted Free Writing Prospectuses
. Each of the Company and the Guarantors represents
that it has not made, and agrees that, unless it obtains the prior written consent of the
Representatives, it will not make, any offer relating to the Securities that would constitute an
Issuer Free Writing Prospectus or that would otherwise constitute a free writing prospectus (as
defined in Rule 405 of the 1933 Act) required to be filed by the Company or a Guarantor with the
Commission or retained by the Company under Rule 433 of the 1933 Act; provided that the prior
written consent of the Representatives hereto shall be deemed to have been given in respect of the
Issuer Free Writing Prospectuses identified on Schedule B hereto. Any such free writing prospectus
consented to by the Representatives is herein referred to as a Permitted Free Writing Prospectus.
Each of the Company and the Guarantors agrees that (i) it has treated and will treat, as the case
may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, and (ii) has
complied and will comply, as the case may
14
be, with the requirements of Rules 164 and 433 of the 1933 Act applicable to any Permitted
Free Writing Prospectus, including in respect of timely filing with the Commission, legending and
record keeping. The Company and the Guarantors consent to the use by any Underwriter of a free
writing prospectus that (a) is not an issuer free writing prospectus as defined in Rule 433, and
(b) contains only (i) information describing the preliminary terms of the Securities or their
offering, (ii) information permitted by Rule 134 under the 1933 Act, (iii) information that
describes the final terms of the Securities or their offering and that is included in the Final
Term Sheet, or (iv) (subject to the Companys review) information regarding comparable bond prices.
(e)
Delivery of Registration Statements
. The Company and the Guarantors have furnished or
will deliver to the Representatives and counsel for the Underwriters, without charge, signed copies
of the Registration Statement as originally filed and of each amendment thereto (including exhibits
filed therewith or incorporated by reference therein and documents incorporated or deemed to be
incorporated by reference therein) and signed copies of all consents and certificates of experts,
and will also deliver to the Representatives, without charge, a conformed copy of the Registration
Statement as originally filed and of each amendment thereto (without exhibits) for each of the
Underwriters. The copies of the Registration Statement and each amendment thereto furnished to the
Underwriters will be identical to the electronically transmitted copies thereof filed with the
Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(f)
Delivery of Prospectuses
. The Company and the Guarantors have delivered to each
Underwriter, without charge, as many copies of each preliminary prospectus and Issuer Free Writing
Prospectus as such Underwriter reasonably requested, and the Company and the Guarantors hereby
consent to the use of such copies for purposes permitted by the 1933 Act. The Company and the
Guarantors will furnish to each Underwriter, without charge, during the period when the Prospectus
is required to be delivered under the 1933 Act, such number of copies of the Prospectus (as amended
or supplemented) and any Issuer Free Writing Prospectuses as such Underwriter may reasonably
request. The preliminary prospectus, preliminary prospectus supplement, Prospectus, and each
Issuer Free Writing Prospectus and any amendments or supplements to such documents furnished to the
Underwriters will be identical to the electronically transmitted copies thereof filed with the
Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(g)
Continued Compliance with Securities Laws
. The Company and the Guarantors will comply
with the 1933 Act and the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations and the
1939 Act and the 1939 Act Regulations so as to permit the completion of the distribution of the
Securities as contemplated in this Agreement and in the Disclosure Package and the Prospectus.
From the Applicable Time until such time as it is determined that a prospectus is no longer
required by the 1933 Act to be delivered in connection with the sale of the Securities, any event
shall occur or condition shall exist as a result of which it is necessary, in the opinion of
counsel for the Underwriters or for the Company or the Guarantors, to amend the Registration
Statement or amend or supplement the Prospectus or the Disclosure Package in order that the
Prospectus or the Disclosure Package will not include any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein not misleading in
the light of the circumstances existing at the time it is delivered to a purchaser, or if it shall
be necessary, in the opinion of such counsel or pursuant to notice from the Commission, at any such
time to amend the Registration Statement, file a new registration statement or amend or supplement
the Prospectus or the Disclosure Package in order to comply with the requirements of the 1933 Act
or the 1933 Act Regulations, the Company and the Guarantors will promptly prepare and file with the
Commission, subject to Section 3(b), such new registration statement, amendment or supplement as
may be necessary to correct such statement or omission or to make the Registration Statement, the
Prospectus or the Disclosure Package comply with such requirements, the Company and the Guarantors
will furnish to the Underwriters such number of copies of such new registration statement,
15
amendment or supplement as the Underwriters may reasonably request and use its commercially
reasonable efforts to cause such new registration statement or amendment to be declared effective
as soon as practicable. In any such case, the Company will promptly notify the Representatives of
such filings and effectiveness.
(h)
Blue Sky Qualifications
. The Company and the Guarantors will use their best efforts, in
cooperation with the Underwriters, to qualify the Securities for offering and sale under the
applicable securities laws of such states and other jurisdictions as the Representatives may
designate and to maintain such qualifications in effect for a period of not less than one year from
the later of the effective date of the Registration Statement and any Rule 462(b) Registration
Statement; provided, however, that the Company and the Guarantors 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 so subject itself to taxation in
respect of doing business in any jurisdiction in which it is not otherwise so subject. The Company
and the Guarantors will also supply the Underwriters with such information as is necessary for the
determination of the legality of the Securities for investment under the laws of such jurisdictions
as the Underwriters may request.
(i)
Rule 158
. The Company will timely file such reports pursuant to the 1934 Act as are
necessary in order to make generally available to its securityholders an earnings statement for the
purposes of, and to provide the benefits contemplated by, the last paragraph of Section 11(a) of
the 1933 Act.
(j)
Use of Proceeds
. The Company will use the net proceeds received by it from the sale of
the Securities in the manner specified in the Prospectus under Use of Proceeds. The Company will
not use any such proceeds in a manner that would trigger the application of Circulars of the Swiss
Bankers Association NR 6746 of 29 June 1993 or otherwise result in tax withholding in Switzerland
with respect to amounts payable to holders of the Securities.
(k)
Reporting Requirements
. The Company, during the period when the Prospectus is required to
be delivered under the 1933 Act, will file all documents required to be filed with the Commission
pursuant to the 1934 Act within the time periods required by the 1934 Act and the 1934 Act
Regulations.
(l)
Rating of Securities
. The Company and the Guarantors will take all reasonable action
necessary to enable Standard & Poors, a division of The McGraw-Hill Companies, Inc. (S&P), and
Moodys Investors Service Inc. (Moodys) to provide their respective credit ratings of the
Securities.
(m)
DTC
. The Company and the Guarantors will cooperate with the Representatives and use
commercially reasonable efforts to permit the Securities to be eligible for clearance and
settlement through the facilities of DTC.
(n)
Renewal of Registration Statement.
If by the third anniversary (the Renewal Deadline)
of the initial effective date of the Registration Statement, any of the Securities remain unsold by
the Underwriters, the Company and the Guarantors will, upon reasonable written request from the
Underwriters, promptly file, (i) if they have not already done so and are eligible to do so, a new
automatic shelf registration statement relating to the Securities, in a form reasonably
satisfactory to the Representatives or (ii) if they have not already done so but are no longer
eligible to file an automatic shelf registration statement, a new shelf registration statement
relating to the Securities, in a form reasonably satisfactory to the Representatives, and will use
their commercially reasonable efforts to cause such registration statement to be declared effective
within 180 days after the Renewal Deadline. The Company and the Guarantors will take all other
action necessary or appropriate to permit the public offering and
16
sale of the Securities to continue as contemplated in the expired registration statement
relating to the Securities. References herein to the Registration Statement shall include such new
automatic shelf registration statement or such new shelf registration statement, as the case may
be.
SECTION 4.
Payment of Expenses
.
(a)
Expenses
. The Company and the Guarantors will pay all expenses incident to the
performance of their respective 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 preparation, printing and delivery to the
Underwriters of this Agreement, the Indenture and such other documents as may be required in
connection with the offering, purchase, sale, issuance or delivery of the Securities, (iii) the
preparation, issuance and delivery of the certificates for the Securities to the Underwriters, (iv)
the fees and disbursements of counsel for the Company and the Guarantors, accountants and other
advisors, (v) the qualification of the Securities under securities laws in accordance with the
provisions of Section 3(h) hereof, including filing fees and the reasonable fees and disbursements
of counsel for the Underwriters in connection therewith and in connection with the preparation of
the Blue Sky Survey and any supplement thereto, (vi) the printing and delivery to the Underwriters
of copies of each preliminary prospectus and of the Prospectus, any Issuer Free Writing Prospectus
and any amendments or supplements to such documents, (vii) the preparation, printing and delivery
to the Underwriters of copies of the Blue Sky Survey and any supplement thereto, (viii) the fees
and expenses of the Trustee, including the fees and disbursements of counsel for the Trustee in
connection with the Indenture and the Securities, (ix) the costs and expenses of the Company
relating to investor presentations on any road show undertaken in connection with the marketing
of the Securities, including without limitation, expenses associated with the production of road
show slides and graphics, fees and expenses of any consultants engaged in connection with the road
show presentations, travel and lodging expenses of the representatives and officers of the Company
and the Guarantors and any such consultants, and the cost of aircraft and other transportation
chartered in connection with the road show, (x) any fees payable in connection with the rating of
the Securities, and (xi) the filing fees incident to, and the reasonable fees and disbursements of
counsel to the Underwriters in connection with, the review, if any, by the Financial Industry
Regulatory Authority, Inc. of the terms of the sale of the Securities; provided that, the
Underwriters shall pay their own costs and expenses, including the costs and expenses of counsel,
any transfer taxes on the Securities that they may sell and the expenses of advertising any
offering of the Securities made by the Underwriters.
(b)
Termination of Agreement
. If this Agreement is terminated by the Representatives in
accordance with the provisions of Section 5, Section 9(a)(i) or the first clause of Section
9(a)(iii) hereof, the Company and the Guarantors shall reimburse the Underwriters for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of counsel for the
Underwriters.
SECTION 5.
Conditions of Underwriters Obligations
. The obligations of the several
Underwriters hereunder are subject to the accuracy of the representations and warranties of the
Company and the Guarantors contained in Section 1 hereof or in certificates of any officer of the
Company, either Guarantor or any subsidiary of the Company or either Guarantor delivered pursuant
to the provisions hereof, to the performance by the Company and the Guarantors of their covenants
and other obligations hereunder, and to the following further conditions:
(a)
Effectiveness of Registration Statement
. The Registration Statement, including any Rule
462(b) Registration Statement, has become effective and at Closing Time no stop order suspending
the effectiveness of the Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to the reasonable satisfaction
of counsel to the
17
Underwriters. A prospectus containing the Rule 430B Information shall have been filed with
the Commission in accordance with Rule 424(b) (or a post-effective amendment providing such
information shall have been filed and become effective). In addition, the Final Term Sheet shall
have been filed in accordance with the requirements of Rule 433. The Company shall have paid the
required Commission filing fees relating to the Securities within the time period required by Rule
456(b)(i) of the 1933 Act Regulations without regard to the proviso therein and otherwise in
accordance with Rules 456(b) and 457(r) of the 1933 Act Regulations and, if applicable, shall have
updated the Calculation of Registration Fee table in accordance with Rule 456(b)(1)(ii) either in
a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed
pursuant to Rule 424(b).
(b)
Opinion of Counsel for Company and the Guarantors
.
1. At Closing Time, the Representatives shall have received the favorable opinion,
dated as of Closing Time, of Baker & McKenzie LLP, counsel for the Company and the
Guarantors, in form and substance reasonably satisfactory to counsel for the Underwriters,
together with signed or reproduced copies of such letter for each of the other Underwriters
to the effect set forth in Exhibit A-1 hereto.
2. At Closing Time, the Representatives shall have received the favorable opinion,
dated as of Closing Time, of the Vice President and Co-General Counsel for the Company and
the Guarantors, in form and substance reasonably satisfactory to counsel for the
Underwriters, together with signed or reproduced copies of such letter for each of the other
Underwriters to the effect set forth in Exhibit A-2 hereto.
3. At Closing Time, the Representatives shall have received the favorable opinion,
dated as of Closing Time, of Conyers Dill & Pearman Limited, special Bermuda counsel for the
Company, in form and substance reasonably satisfactory to counsel for the Underwriters,
together with signed or reproduced copies of such letter for each of the other Underwriters
to the effect set forth in Exhibit A-3 hereto.
4. At Closing Time, the Representatives shall have received the favorable opinion,
dated as of Closing Time, of Baker & McKenzie Geneva, special Swiss counsel for the Company
and Parent, in form and substance reasonably satisfactory to counsel for the Underwriters,
together with signed or reproduced copies of such letter for each of the other Underwriters
to the effect set forth in Exhibit A-4 hereto.
(c)
Opinion of Counsel for Underwriters
.
1. At Closing Time, the Representatives shall have received the favorable opinion,
dated as of Closing Time, of Baker Botts L.L.P., counsel for the Underwriters, in form and
substance reasonably satisfactory to counsel for the Underwriters, together with signed or
reproduced copies of such letter for each of the other Underwriters to the effect set forth
in Exhibit A-5 hereto.
2. At Closing Time, the Representatives shall have received the favorable opinion,
dated as of Closing Time, of Appleby, counsel for the Underwriters, in form and substance
reasonably satisfactory to counsel for the Underwriters, together with signed or reproduced
copies of such letter for each of the other Underwriters to the effect set forth in Exhibit
A-6 hereto.
(d)
Officers Certificate
. At Closing Time, there shall not have been, since the date hereof
or since the respective dates as of which information is given in the Prospectus or the Disclosure
Package,
18
any material adverse change, or any development involving a material adverse change, in the
consolidated financial position, shareholders equity, results of operations or business of Parent
and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of
business, and the Representatives shall have received a certificate of the President or a Vice
President of the Company and the Guarantors and of the chief financial or chief accounting officer
of the Company and the Guarantors, dated as of Closing Time, to the effect that (i) there has been
no such material adverse change, (ii) the representations and warranties in Section 1(a) hereof are
true and correct with the same force and effect as though expressly made at and as of Closing Time,
(iii) the Company and the Guarantors have complied with all agreements and satisfied all conditions
on their part to be performed or satisfied at or prior to Closing Time, and (iv) no stop order
suspending the effectiveness of the Registration Statement has been issued and no proceedings for
that purpose have been instituted or are pending or, to such officers knowledge, contemplated by
the Commission.
(e)
Accountants Comfort Letter
. At the time of the execution of this Agreement, the
Representatives shall have received from Ernst & Young LLP a letter dated such date, in form and
substance satisfactory to the Representatives, together with signed or reproduced copies of such
letter for each of the other Underwriters containing statements and information of the type
ordinarily included in accountants comfort letters to underwriters with respect to the financial
statements and certain financial information relating to Parent and its subsidiaries contained in
the Registration Statement and the preliminary prospectus.
(f)
Bring-down Comfort Letter
. At Closing Time, the Representatives shall have received from
Ernst & Young LLP a letter, dated as of Closing Time, to the effect that they reaffirm the
statements made in the letter furnished pursuant to subsection (e)(i) of this Section, except that
the specified date referred to shall be a date not more than two business days prior to Closing
Time, and providing information of the type ordinarily included in accountants comfort letters
to underwriters with respect to the financial statements and certain financial information relating
to Parent and its subsidiaries contained in the Prospectus.
(g)
Company and Guarantors Certifications Regarding Earnings and Financial Information
. At
the time of the execution of this Agreement and again at the Closing Time, the Representatives
shall have received from the Chief Accounting Officer and the Controller of the Company and Parent,
a certificate dated such date, in form and substance satisfactory to the Representatives, together
with signed or reproduced copies of such certificate for each of the other Underwriters containing
statements and information of the type ordinarily included in accountants comfort letters to
underwriters with respect to (i) earnings and financial information relating to the Company, the
Guarantors and their respective subsidiaries for the three months and six months ended June 30,
2010 and as of June 30, 2010, to the extent such information is included or incorporated by
reference in the Prospectus or the Disclosure Package, as well as the period from July 1, 2010 to
the Closing Date, and (ii) unaudited financial information, including pro forma financial
information, in the consolidated financial statements of the Company included in its Annual Report
on Form 10-K for the year ended December 31, 2009.
(h)
Maintenance of Rating
. At Closing Time, the Securities shall be rated at least
[
intentionally omitted
] by Moodys and [
intentionally omitted
] by S&P, and the Company and the
Guarantors shall have delivered to the Representatives a letter dated as of a date not more than 7
business days prior to the Closing Time, from each such rating agency, or other evidence
satisfactory to the Representatives, confirming that the Securities have such ratings; and since
the date of this Agreement, there shall not have occurred a downgrading in the rating assigned to
the Securities or any of the Companys or either Guarantors other debt securities by any
nationally recognized statistical rating agency, as that term is defined by the Commission for
purposes of Rule 15c3-1(c)(2)(vi)(F) under the
19
1934 Act, and no such organization shall have publicly announced that it has under
surveillance or review its rating of the Securities or any debt securities of the Company or either
Guarantor.
(i)
Additional Documents
. At Closing Time, counsel for the Underwriters shall have been
furnished with such other documents and opinions as they may reasonably require for the purpose of
enabling them to pass upon the issuance and sale of the Securities as herein contemplated, or in
order to evidence the accuracy of any of the representations or warranties, or the fulfillment of
any of the conditions, herein contained; and all proceedings taken by the Company and the
Guarantors in connection with the issuance and sale of the Securities as herein contemplated shall
be reasonably satisfactory in form and substance to the Representatives and counsel for the
Underwriters. Without limiting the generality of the foregoing, such counsel shall have been
furnished with appropriate evidence of timely filing of the Prospectus with the Registrar of
Companies in Bermuda.
(j)
Termination of Agreement
. If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated by the
Representatives by notice to the Company at any time at or prior to Closing Time, and such
termination shall be without liability of any party to any other party except as provided in
Section 4 and except that Sections 1, 6, 7 and 8 shall survive any such termination and remain in
full force and effect.
SECTION 6.
Indemnification
.
(a)
Indemnification of the Underwriters.
Each of the Company and the Guarantors, jointly and
severally, agree to indemnify and hold harmless each Underwriter, its affiliates and each of its
and its affiliates directors, officers, employees and agents, and each person, if any, who
controls any Underwriter within the meaning of the 1933 Act and the 1934 Act against any loss,
claim, damage, liability or expense, as incurred, to which such Underwriter or such controlling
person may become subject, insofar as such loss, claim, damage, liability or expense (or actions in
respect thereof as contemplated below) arises out of or is based upon (i) any untrue statement or
alleged untrue statement of a material fact contained in the Registration Statement (or any
amendment thereto), including the Rule 430B Information, or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to make the statements
therein not misleading; or (ii) any untrue statement or alleged untrue statement of a material fact
contained in any preliminary prospectus, any Issuer Free Writing Prospectus or the Prospectus (or
any amendment or supplement thereto), or the omission or alleged omission therefrom of a material
fact necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, and to reimburse each Underwriter, its affiliates and each of
its and its affiliates officers, directors, employees, agents and each such controlling person for
any and all expenses (including the fees and disbursements of counsel chosen by the
Representatives) as such expenses are reasonably incurred by such Underwriter, or its affiliates or
any of its or its affiliates officers, directors, employees and agents or such controlling person
in connection with investigating, defending, settling, compromising or paying any such loss, claim,
damage, liability, expense or action; provided, however, that the foregoing indemnity agreement
shall not apply to any loss, claim, damage, liability or expense to the extent, but only to the
extent, arising out of or based upon any untrue statement or alleged untrue statement or omission
or alleged omission made in reliance upon and in conformity with written information furnished to
the Company and the Guarantors by the Representatives expressly for use in the Registration
Statement, any preliminary prospectus, any Issuer Free Writing Prospectus (including any Permitted
Free Writing Prospectus) or the Prospectus (or any amendment or supplement thereto), which
information is identified in Section 6(b) hereof. The indemnity agreement set forth in this
Section 6(a) shall be in addition to any liabilities that the Company and the Guarantors may
otherwise have.
20
(b)
Indemnification of the Company, the Guarantors and their Directors and Officers.
Each
Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company and the
Guarantors, their respective directors, their respective officers and employees and each person, if
any, who controls the Company or a Guarantor within the meaning of the 1933 Act or the 1934 Act,
against any loss, claim, damage, liability or expense, as incurred, to which the Company and the
Guarantors or any such director, officer, employee or controlling person may become subject,
insofar as such loss, claim, damage, liability or expense (or actions in respect thereof as
contemplated below) arises out of or is based upon (i) any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (or any amendment thereto),
including the Rule 430B Information, or the omission or alleged omission therefrom of a material
fact required to be stated therein or necessary to make the statements therein not misleading; or
(ii) any untrue statement or alleged untrue statement of a material fact contained in any
preliminary prospectus or the Prospectus (or any amendment or supplement thereto), or the omission
or alleged omission therefrom of a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading, in each case to the
extent, and only to the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in the Registration Statement, any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto), in reliance upon and in conformity with
written information furnished to the Company and the Guarantors by the Representatives expressly
for use therein; and to reimburse the Company and the Guarantors or any such director, officer,
employee or controlling person for any legal and other expense reasonably incurred by the Company
and the Guarantors or any such director, officer, employee or controlling person in connection with
investigating, defending, settling, compromising or paying any such loss, claim, damage, liability,
expense or action. Each of the Company and the Guarantors hereby acknowledges that the only
information that the Underwriters have furnished to the Company and the Guarantors expressly for
use in the Registration Statement, any Issuer Free Writing Prospectus, any preliminary prospectus
or the Prospectus (or any amendment or supplement thereto) are the statements set forth in the
fifth, ninth and tenth paragraphs under the caption Underwriting in the Prospectus. The
indemnity agreement set forth in this Section 6(b) shall be in addition to any liabilities that
each Underwriter may otherwise have.
(c)
Notifications and Other Indemnification Procedures.
Promptly after receipt by an
indemnified party under this Section 6 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made against an indemnifying party
under this Section 6, notify the indemnifying party in writing of the commencement thereof; but the
failure to so notify the indemnifying party (i) will not relieve it from liability under paragraph
(a) or (b) above unless and to the extent it did not otherwise learn of such action and such
failure results in the forfeiture by the indemnifying party of substantial rights and defenses and
(ii) will not, in any event, relieve the indemnifying party from any liability other than the
indemnification obligation provided in paragraph (a) or (b) above. In case any such action is
brought against any indemnified party and such indemnified party seeks or intends to seek indemnity
from an indemnifying party, the indemnifying party will be entitled to participate in, and, to the
extent that it shall elect, jointly with all other indemnifying parties similarly notified, by
written notice delivered to the indemnified party promptly after receiving the aforesaid notice
from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to
such indemnified party; provided, however, that if the defendants in any such action include both
the indemnified party and the indemnifying party and the indemnified party shall have reasonably
concluded that a conflict may arise between the positions of the indemnifying party and the
indemnified party in conducting the defense of any such action or that there may be legal defenses
available to it and/or other indemnified parties that are different from or additional to those
available to the indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assume such legal defenses and to otherwise participate in the defense
of such action on behalf of such indemnified party or parties. Upon receipt of notice from the
indemnifying party to such indemnified party of such indemnifying partys election so to assume the
defense of such action and reasonable approval by the indemnified party
21
of counsel, the indemnifying party will not be liable to such indemnified party under this
Section 6 for any legal or other expenses subsequently incurred by such indemnified party in
connection with the defense thereof unless (i) the indemnified party shall have employed separate
counsel in accordance with the proviso to the preceding sentence (it being understood, however,
that the indemnifying party shall not be liable for the expenses of more than one separate counsel
(other than reasonably necessary local counsel) reasonably approved by the indemnifying party (or
the Representatives in the case of Section 6), representing the indemnified parties who are parties
to such action) or (ii) the indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time after notice of
commencement of the action, in each of which cases the fees and expenses of counsel shall be at the
expense of the indemnifying party.
(d)
Settlements.
The indemnifying party under this Section 6 shall not be liable for any
settlement of any proceeding effected without its written consent, but if settled with such consent
or if there be a final, non-appealable judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party against any loss, claim, damage, liability or expense by reason of
such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified
party shall have requested an indemnifying party to reimburse the indemnified party for fees and
expenses of counsel as contemplated by Section 6(c) hereof, the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without its written consent if (i)
such settlement is entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such
settlement at least 30 days before such settlement is entered into, and (iii) such indemnifying
party shall not have reimbursed the indemnified party in accordance with such request prior to the
date of such settlement. No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement, compromise or consent to the entry of judgment in any
pending or threatened action, suit or proceeding in respect of which any indemnified party is or
could have been a party and indemnity was or could have been sought hereunder by such indemnified
party, unless such settlement, compromise or consent (i) includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of such action, suit or
proceeding 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 party.
SECTION 7.
Contribution
. To the extent the indemnification provided for in Section 6
is for any reason unavailable to or otherwise insufficient to hold harmless an indemnified party in
respect of any losses, claims, damages, liabilities or expenses referred to therein, then each
indemnifying party shall contribute to the aggregate amount paid or payable by such indemnified
party, as incurred, as a result of any losses, claims, damages, liabilities or expenses referred to
therein (i) in such proportion as is appropriate to reflect the relative benefits received by the
Company and the Guarantors, on the one hand, and the Underwriters, on the other hand, from the
offering of the Securities pursuant to this Agreement or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative fault of the
Company and the Guarantors, on the one hand, and the Underwriters, on the other hand, in connection
with the statements or omissions which resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The relative benefits received
by the Company and the Guarantors, on the one hand, and the Underwriters, on the other hand, in
connection with the offering of the Securities pursuant to this Agreement shall be deemed to be in
the same respective proportions as the total net proceeds from the offering of the Securities
pursuant to this Agreement (before deducting expenses) received by the Company and the Guarantors,
and the total underwriting discount received by the Underwriters, in each case as set forth on the
front cover page of the Prospectus bear to the aggregate initial public offering price of the
Securities as set forth on such cover. The relative fault of the Company and the Guarantors, on
the one hand, and the Underwriters, on the other hand, shall be determined by reference to, among
other things, whether any such untrue or
22
alleged untrue statement of a material fact or omission or alleged omission to state a
material fact or any such inaccurate or alleged inaccurate representation or warranty relates to
information supplied by the Company or a Guarantor, on the one hand, or the Underwriters, on the
other hand, and the parties relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the losses, claims, damages, liabilities
and expenses referred to above shall be deemed to include, subject to the limitations set forth in
Section 6(c), any legal or other fees or expenses reasonably incurred by such party in connection
with investigating or defending any action or claim. The Company, the Guarantors and the
Underwriters agree that it would not be just and equitable if contribution pursuant to this Section
7 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 which does not take account of the equitable
considerations referred to in this Section 7.
Notwithstanding the provisions of this Section 7, no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to the public exceeds the amount of
any damages which such Underwriter has otherwise been required to pay by reason of any such untrue
or alleged untrue statement or omission or the alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent misrepresentation. The
Underwriters obligations to contribute pursuant to this Section 7 are several, and not joint, in
proportion to their respective underwriting commitments as set forth opposite their names in
Schedule A. For purposes of this Section 7, each director, officer, employee and agent of an
Underwriter and each person, if any, who controls an Underwriter within the meaning of the 1933 Act
and the 1934 Act shall have the same rights to contribution as such Underwriter, and each director
of the Company or of a Guarantor, each officer or employee of the Company or of a Guarantor and
each person, if any, who controls the Company or a Guarantor within the meaning of the 1933 Act and
the 1934 Act shall have the same rights to contribution as the Company or a Guarantor.
SECTION 8.
Representations, Warranties and Agreements to Survive
. All
representations, warranties and agreements contained in this Agreement or in certificates of
officers of the Company, the Guarantors or any of their respective subsidiaries submitted pursuant
hereto, shall remain operative and in full force and effect regardless of (i) any investigation
made by or on behalf of any Underwriter or its Affiliates or selling agents, any person controlling
any Underwriter, its officers or directors or any person controlling the Company or a Guarantor,
and (ii) delivery of and payment for the Securities.
SECTION 9.
Termination of Agreement
.
(a)
Termination; General
. The Representatives may terminate this Agreement, by notice to the
Company, at any time at or prior to Closing Time (i) if there has been, since the time of execution
of this Agreement or since the respective dates as of which information is given in the Prospectus
(exclusive of any supplement thereto), any material adverse change, or any development involving a
material adverse change, in the consolidated financial position, shareholders equity, results of
operations or business of Parent and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, or (ii) if there has occurred any material adverse
change in the financial markets in the United States or the international financial markets, any
outbreak of hostilities or escalation thereof or other calamity or crisis or any change or
development involving a prospective change in national or international political, financial or
economic conditions, in each case the effect of which is such as to make it, in the judgment of the
Representatives, impracticable or inadvisable to market the Securities or to enforce contracts for
the sale of the Securities, or (iii) if trading in any securities of the Company or Parent has been
suspended or materially limited by the Commission, or if trading generally on the
23
American Stock Exchange, the New York Stock Exchange or in The NASDAQ Stock Market has been
suspended or materially limited, or minimum or maximum prices for trading have been fixed, or
maximum ranges for prices have been required, by any of said exchanges or by such system or by
order of the Commission, the Financial Industry Regulatory Authority, Inc. or any other
governmental authority, or a material disruption has occurred in commercial banking or securities
settlement, or (iv) a material disruption has occurred in commercial banking or securities
settlement or clearance services in the United States or Bermuda, or (v) if a banking moratorium
has been declared by any U.S. Federal or New York or Bermudian authorities.
(b)
Liabilities
. If this Agreement is terminated pursuant to this Section, such termination
shall be without liability of any party to any other party except as provided in Section 4 hereof,
and provided further that Sections 6 and 7 shall survive such termination and remain in full force
and effect.
SECTION 10.
Default by One or More of the Underwriters
. If one or more of the
Underwriters shall fail at Closing Time to purchase the Securities which it or they are obligated
to purchase under this Agreement (the Defaulted Securities), the Representatives shall have the
right, within 24 hours thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all, of the Defaulted
Securities in such amounts as may be agreed upon and upon the terms herein set forth; if, however,
the Representatives shall not have completed such arrangements within such 24-hour period, then:
if the number of Defaulted Securities does not exceed 10% of the aggregate principal
amount of the Securities to be purchased hereunder, each of the non-defaulting Underwriters shall
be obligated, severally and not jointly, to purchase the full amount thereof in the proportions
that their respective underwriting obligations hereunder bear to the underwriting obligations of
all non-defaulting Underwriters, or
if the number of Defaulted Securities exceeds 10% of the aggregate principal amount of
the Securities to be purchased hereunder, this Agreement shall terminate without liability on the
part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting Underwriter from
liability in respect of its default.
In the event of any such default which does not result in a termination of this Agreement,
either the Representatives or the Company shall have the right to postpone Closing Time for a
period not exceeding seven days in order to effect any required changes in the Registration
Statement or Prospectus or in any other documents or arrangements. As used herein, the term
Underwriter includes any person substituted for an Underwriter under this Section 10.
SECTION 11.
No Advisory or Fiduciary Responsibility
.
Each of the Company and the
Guarantors acknowledges and agrees that: (i) the purchase and sale of the Securities pursuant to
this Agreement, including the determination of the public offering price of the Securities and any
related discounts and commissions, is an arms-length commercial transaction between the Company
and the Guarantors, on the one hand, and the several Underwriters, on the other hand, and the
Company and the Guarantors are capable of evaluating and understanding and understand and accept
the terms, risks and conditions of the transactions contemplated by this Agreement; (ii) in
connection with each transaction contemplated hereby and the process leading to such transaction
each Underwriter is and has been acting solely as a principal and is not the financial advisor,
agent or fiduciary of the Company, the Guarantors or their respective affiliates, shareholders,
creditors or employees or any other party; (iii) no Underwriter has assumed or will assume an
advisory, agency or fiduciary responsibility in favor of the Company or the
24
Guarantors with respect to any of the transactions contemplated hereby or the process leading
thereto (irrespective of whether such Underwriter has advised or is currently advising the Company
or either of the Guarantors on other matters) and no Underwriter has any obligation to the Company
or either Guarantor with respect to the offering contemplated hereby except the obligations
expressly set forth in this Agreement; (iv) the several Underwriters and their respective
affiliates may be engaged in a broad range of transactions that involve interests that differ from
those of the Company and the Guarantors and that the several Underwriters have no obligation to
disclose any of such interests by virtue of any advisory, agency or fiduciary relationship; and (v)
the Underwriters have not provided any legal, accounting, regulatory or tax advice with respect to
the offering contemplated hereby and the Company and the Guarantors have consulted their own legal,
accounting, regulatory and tax advisors to the extent they deemed appropriate.
This Agreement supersedes all prior agreements and understandings (whether written or oral)
between the Company, the Guarantors and the several Underwriters, or any of them, with respect to
the subject matter hereof. The Company and the Guarantors hereby waive and release, to the fullest
extent permitted by law, any claims that the Company and the Guarantors may have against the
several Underwriters with respect to any breach or alleged breach of agency or fiduciary duty with
respect to the transactions contemplated by this Agreement.
SECTION 12.
Notices
. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted by any standard form
of telecommunication as follows:
|
(a)
|
|
if to the Company:
|
|
|
|
|
Weatherford International Ltd.
515 Post Oak Blvd., Suite 600
Houston, Texas 77027
Attention: Joseph C. Henry
Facsimile: (713) 693-4481
|
|
|
(b)
|
|
if to the Guarantors:
|
|
|
|
|
Weatherford International, Inc.
515 Post Oak Blvd., Suite 600
Houston, Texas 77027
Attention: Joseph C. Henry
Facsimile: (713) 693-4481
|
|
|
(c)
|
|
if to the Underwriters:
|
|
c/o:
|
|
Deutsche Bank Securities Inc.
60 Wall Street
4th Floor
New York, New York 10005
Attention: Debt Capital Markets Syndicate
Facsimile: (212) 797-2202
|
with a copy to the general counsel or to such other person or address as any party will specify by
giving notice in writing to the other party. All notices and other communications given to a party
in accordance with the provisions of this Agreement will be deemed to have been given (i) three
business days after the
25
same are sent by certified or registered mail, postage prepaid, return receipt requested, (ii) when
delivered by hand or transmitted by telecopy (answer back received) or (iii) one business day after
the same are sent by a reliable overnight courier service, with acknowledgment of receipt
requested. Notwithstanding the preceding sentence, notice of change of address will be effective
only upon actual receipt thereof.
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 their respective clients, including the Company, which information may
include the name and address of their respective clients, as well as other information that will
allow the Underwriters to properly identify their respective clients.
SECTION 13.
Parties
. This Agreement shall each inure to the benefit of and be binding
upon the Underwriters, the Company, the Guarantors and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to give any person,
firm, company or corporation, other than the Underwriters, the Company, the Guarantors and their
respective successors and the controlling persons and officers and directors referred to in
Sections 6 and 7 and their heirs, estates and legal representatives, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision herein contained. This
Agreement and all conditions and provisions hereof are intended to be for the sole and exclusive
benefit of the Underwriters, the Company, the Guarantors and their respective successors, and said
controlling persons and officers and directors and their heirs, estates and legal representatives,
and for the benefit of no other person, firm, company or corporation. No purchaser of Securities
from any Underwriter shall be deemed to be a successor by reason merely of such purchase.
SECTION 14.
GOVERNING LAW
. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO ANY CONFLICTS OF LAWS
PRINCIPLES THEREOF TO THE EXTENT THEY WOULD RESULT IN THE APPLICATION OF THE LAWS OF ANY OTHER
JURISDICTION.
SECTION 15.
SUBMISSION TO JURISDICTION AND WAIVER
. By the execution and delivery of
this Agreement, the Company and the Guarantors submit to the non-exclusive jurisdiction of any
federal or New York State court located in the City of New York in any suit or proceeding arising
out of or relating to the Securities or this Agreement. Each of the parties hereto hereby
irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so,
any objection which it may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement in any New York State or federal court in
the City of New York, or any appellate court with respect to any of the foregoing. Each of the
parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such court. To the extent
that the Company or either Guarantor has or hereafter may acquire any immunity from jurisdiction of
any court (including, without limitation, any court in the United States, the State of New York,
Bermuda, Switzerland or any political subdivision thereof) or from any legal process (whether
through service of notice, attachment prior to judgment, attachment in aid of execution, execution
or otherwise) with respect to itself or its property or assets, this Agreement, or any other
actions to enforce judgments in respect of any thereof, the Company and the Guarantors hereby
irrevocably waive such immunity, and any defense based on such immunity, in respect of their
respective obligations under the above-referenced documents and the transactions contemplated
thereby, to the fullest extent permitted by law.
In addition to the foregoing, each of the Company and the Guarantors agrees to irrevocably
appoint CT Corporation Systems as its authorized agent on which any and all legal process may be
served in any such action, suit or proceeding brought in the courts specified in the preceding
paragraph. Each of
26
the Company and the Guarantors agrees that service of process in respect of it upon such agent
shall be deemed to be effective service of process upon it in any such action, suit or proceeding.
Each of the Company and the Guarantors agrees that the failure of such agent to give notice to it
of any such service shall not impair or affect the validity of such service or any judgment
rendered in any such action, suit or proceeding based thereon. If for any reason such agent shall
cease to be available to act as such, each of the Company and the Guarantors agrees to irrevocably
appoint another such agent in New York City as its authorized agent for service of process, on the
terms and for the purposes of this Section 15. Nothing herein shall in any way be deemed to limit
the ability of the Underwriters, the Trustee or any other person to serve any such legal process in
any other manner permitted by applicable law or to obtain jurisdiction over the Company either
Guarantor or bring actions, suits or proceedings against them in such other jurisdiction, and in
such matter, as may be permitted by applicable law.
SECTION 16.
Counterparts
. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such counterparts shall
together constitute one and the same Agreement.
SECTION 17.
Effect of Headings
. The Section headings herein are for convenience only
and shall not affect the construction hereof.
[signatures on following page]
27
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts,
will become a binding agreement among the Underwriters, the Company and the Guarantors in
accordance with its terms.
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Very truly yours,
WEATHERFORD INTERNATIONAL LTD.,
a Bermuda exempted company
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By
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/s/ Joseph C. Henry
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Name:
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Joseph C. Henry
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Title:
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Vice President, Co-General Counsel and
Assistant Secretary
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WEATHERFORD INTERNATIONAL, INC.,
a Delaware corporation
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By
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/s/ Joseph C. Henry
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Name:
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Joseph C. Henry
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Title:
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Vice PresidentLegal and Secretary
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WEATHERFORD INTERNATIONAL LTD.,
a Swiss joint-stock corporation
|
|
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By
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/s/ Joseph C. Henry
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|
|
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Name:
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Joseph C. Henry
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Title:
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Vice President, Co-General Counsel and
Assistant Secretary
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28
CONFIRMED AND ACCEPTED,
as of the date first above written
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|
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Deutsche Bank Securities Inc.
|
|
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By
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/s/ Ben Smilchensky
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Name:
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Ben Smilchensky
|
|
|
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Title:
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Managing Director
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|
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|
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By
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/s/ Marc Fratepietro
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|
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Name:
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Marc Fratepietro
|
|
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Title:
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Managing Director
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Morgan Stanley & Co. Incorporated
|
|
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By
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/s/ Yurij Slyz
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|
|
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Name:
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Yurij Slyz
|
|
|
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Title:
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Executive Director
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UBS Securities LLC
|
|
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By
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/s/ Rohit Mathur
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|
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Name:
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Rohit Mathur
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|
|
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Title:
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Executive Director
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By
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/s/ Mark Spadaccini
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|
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Name:
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Mark Spadaccini
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|
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Title:
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Associate Director
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J.P. Morgan Securities LLC
|
|
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By
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/s/ Maria Sramek
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Name:
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Maria Sramek
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Title:
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Executive Director
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For themselves and as Representatives of the other Underwriters named in Schedule A hereto.
29
SCHEDULE A
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5.125% Senior Notes
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6.750% Senior Notes
|
Underwriter
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|
due 2020
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due 2040
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Deutsche Bank Securities Inc.
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|
$
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186,667,000
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|
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$
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140,000,000
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Morgan Stanley & Co. Incorporated
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|
$
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186,667,000
|
|
|
$
|
140,000,000
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|
UBS Securities LLC
|
|
$
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186,666,000
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|
|
$
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140,000,000
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J.P. Morgan Securities LLC
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|
$
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96,000,000
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|
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$
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72,000,000
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Credit Agricole Securities (USA) LLC
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|
$
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48,000,000
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|
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$
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36,000,000
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RBS Securities Inc.
|
|
$
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48,000,000
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|
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$
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36,000,000
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Wells Fargo Securities, LLC
|
|
$
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48,000,000
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|
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$
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36,000,000
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|
Total
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$
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800,000,000
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|
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$
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600,000,000
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Sch A-1
SCHEDULE B
FREE WRITING PROSPECTUSES
The Final Term Sheet attached to this Agreement as Schedule D
Sch B-1
SCHEDULE C
SCHEDULED SUBSIDIARIES
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List Company Name
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State of Organization
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Weatherford Artificial Lift Systems, Inc.
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Delaware
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WEUS Holding Inc.
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Delaware
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Sch C-1
SCHEDULE D
Issuer Free Writing Prospectus dated September 16, 2010 relating to the
Preliminary Prospectus Supplement dated September 16, 2010
Final Term Sheet Relating To
$800,000,000 5.125% Senior Notes due 2020
$600,000,000 6.750% Senior Notes due 2040
This term sheet relates only to the notes referenced above and the related guarantees (together,
the securities) and should be read together with the preliminary prospectus supplement dated
September 16, 2010 (including the documents incorporated by reference therein and the accompanying
prospectus dated September 16, 2010) relating to the offering before making a decision in
connection with an investment in the securities. The information in this term sheet supersedes the
information in the preliminary prospectus supplement to the extent that it is inconsistent
therewith. Terms used but not defined herein have the meanings ascribed to them in the preliminary
prospectus supplement.
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Issuer:
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Weatherford International Ltd., a Bermuda exempted company
(Weatherford)
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Guarantors:
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Weatherford International Ltd., a Swiss joint-stock
corporation (Bloomberg Ticker: WFT)
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Weatherford International, Inc., a Delaware corporation
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Ratings:
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[
Intentionally Omitted
]
|
|
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Note: A securities rating is not a recommendation to buy, sell or
hold securities and may be subject to revision or withdrawal at
any time.
|
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Securities:
|
|
$800,000,000 5.125% Senior Notes due 2020
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|
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$600,000,000 6.750% Senior Notes due 2040
|
|
|
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Format:
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SEC registered (global) (Nos. 333-169400,
333-169400-01, 333-169400-02)
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|
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CUSIP / ISIN No.
|
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2020 Notes: 94707V AA8 / US94707VAA89
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2040 Notes: 94707V AB6 / US94707VAB62
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|
|
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Trade Date:
|
|
September 16, 2010
|
|
|
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Expected Settlement:
|
|
September 23, 2010 (T+5)
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Sch D-1
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|
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Maturity:
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2020 Notes: September 15, 2020, subject to earlier redemption
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2040 Notes: September 15, 2040, subject to earlier redemption
|
|
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Price To Public:
|
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2020 Notes: 99.862% of principal amount,
plus accrued interest from September 23,
2010, if settlement occurs after that
date; $798,896,000 total
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2040 Notes: 99.594% of principal amount, plus accrued
interest from September 23, 2010, if settlement occurs after that date;
$597,564,000 total
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Underwriting Discounts and Commissions:
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0.65% of principal
amount; $5,200,000 total for the 2020 Notes
0.875% of principal amount; $5,250,000 total
for the 2040 Notes
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Proceeds, After
Expenses, to
Weatherford:
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Weatherford expects to receive approximately $1.38 billion of proceeds from the notes offering
after deducting discounts and commissions payable to the underwriters and deducting expenses
payable by Weatherford related to the notes offering.
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Concessions and
Reallowances:
|
|
The underwriters may offer notes to dealers at a price that represents a concession not in
excess of 0.40% of the principal amount for the 2020 Notes and 0.50% of the principal amount
of the 2040 Notes. The underwriters may allow, and the dealers may reallow, a discount not in
excess of 0.25% of the principal amount of the Notes to other dealers.
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Coupon:
|
|
2020 Notes: 5.125% per year (payable semi-annually)
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|
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2040 Notes: 6.750% per year (payable semi-annually)
|
|
|
|
Interest Payment Dates:
|
|
Interest will accrue from September 23, 2010, and will be payable semi-annually in arrears on March
15 and September 15 of each year, beginning on March 15, 2011, to holders of record at the close of
business on the preceding March 1 and September 1, respectively.
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Benchmark Treasury:
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2020 Notes: 2.625% due August 15, 2020
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|
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2040 Notes: 4.375% due May 15, 2040
|
|
|
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Benchmark Treasury Spot:
|
|
2020 Notes: 2.768%
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|
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2040 Notes: 3.932%
|
|
|
|
Spread:
|
|
2020 Notes: +237.5 basis points over Benchmark Treasury
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|
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2040 Notes: +285 basis points over Benchmark Treasury
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|
|
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Yield:
|
|
2020 Notes: 5.143%
|
|
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2040 Notes: 6.782%
|
|
|
|
Make Whole Call At Any Time:
|
|
The greater of 100% of principal amount or discounted present value at Adjusted Treasury Rate
+35 bps (0.35%) for the 2020 Notes, and +45 bps (0.45%) for the 2040 Notes
|
Sch D-2
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Denominations:
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$2,000 and multiples of $1,000 in excess of $2,000
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Joint Bookrunners:
|
|
Deutsche Bank Securities Inc.
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|
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Morgan Stanley & Co. Incorporated
|
|
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UBS Securities LLC
|
|
|
J.P. Morgan Securities LLC
|
|
|
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Co-Managers:
|
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Credit Agricole Securities (USA) Inc.
|
|
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RBS Securities Inc.
|
|
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Wells Fargo Securities, LLC
|
The issuer and the guarantors have filed a registration statement (including a prospectus), as well
as a prospectus supplement, with the SEC for the offering to which this communication relates.
Before you invest, you should read the prospectus supplement and the accompanying prospectus and
other documents the issuer and the guarantors have filed with the SEC for more complete information
about the issuer, the guarantors and this offering. You may obtain these documents for free by
visiting EDGAR on the SEC Web site at www.sec.gov. Alternatively, the issuer, any underwriter or
any dealer participating in the offering will arrange to send you the prospectus supplement and the
accompanying prospectus if you request them by calling Deutsche Bank Securities Inc. toll-free at
1-800-503-4611, Morgan Stanley & Co., Incorporated toll-free at 1-866-718-1649, UBS Securities LLC
toll-free at 1-877-827-6444 (ext. 561-3884) or J.P. Morgan Securities LLC collect at 212-834-4533.
This final term sheet does not contain a complete description of the notes or the offering. It
should be read together with the prospectus supplement relating to the offering and the
accompanying prospectus.
This communication does not constitute an offer to sell or the solicitation of an offer to buy any
securities in any jurisdiction to any person to whom it is unlawful to make such offer or
solicitation in such jurisdiction.
Any disclaimers or other notices that may appear below are not applicable to this communication and
should be disregarded. Such disclaimers were automatically generated as a result of this
communication being sent via email or another communication system.
Sch D-3
Exhibit A-1
FORM OF OPINION OF COMPANYS COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)(1)
1.
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Weatherford Delaware is a corporation validly existing and in good standing under the
laws of the State of Delaware, with corporate power and corporate authority to own its
properties and conduct its business as described in the Disclosure Package and the Prospectus.
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2.
|
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The Underwriting Agreement has been duly authorized, executed and delivered by
Weatherford Delaware.
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3.
|
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No Governmental Approval is required on the part of any of Weatherford Bermuda,
Weatherford Switzerland or Weatherford Delaware (collectively, the Companies) for the
execution, delivery and performance by such entity of the Underwriting Agreement and the sale,
issuance and delivery of the Securities under the Underwriting Agreement, except for
Governmental Approvals that have been obtained. As used in this paragraph,
Governmental
Approval
means any consent, approval, license, authorization or validation of, or filing,
recording or registration with, any executive, legislative, judicial, administrative or
regulatory body of the State of New York, the State of Texas, the State of Delaware or the
United States of America, pursuant to (i) applicable laws of the State of New York, (ii)
applicable laws of the State of Texas, (iii) the General Corporation Law of the State of
Delaware (the
DGCL
) or (iv) the federal laws of the United States.
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4.
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The execution and delivery by Weatherford Bermuda and Weatherford Switzerland of, and
the performance by Weatherford Bermuda and Weatherford Switzerland of their respective
obligations under, the Underwriting Agreement, the Indenture and the Securities will not
result in any violation of the laws of the State of New York or the State of Texas, the DGCL
or the federal laws of the United States as currently in effect. The execution and delivery
by Weatherford Delaware of, and the performance by Weatherford Delaware of its obligations
under, the Underwriting Agreement, the Indenture and the Securities will not result in any
violation of (A) its amended and restated certificate of incorporation or amended and restated
by-laws, each as amended to date, or (B) the laws of the State of New York or Texas, the DGCL
or the federal laws of the United States.
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5.
|
|
The Notes and the Guarantees are each in the form contemplated by the Indenture.
|
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6.
|
|
The Indenture has been duly authorized, executed and delivered by Weatherford Delaware
and constitutes the valid and binding obligation of Weatherford Delaware, enforceable against
Weatherford Delaware in accordance with its terms, under the applicable laws of the State of
New York.
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7.
|
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The Guarantees have been duly authorized by Weatherford Delaware and, when the Notes
have been duly authenticated by the Trustee in accordance with the provisions of the Indenture
(which fact we have not determined by an inspection of the Securities) and delivered to and
paid for by the Underwriters in accordance with the Underwriting Agreement (and assuming the
due
|
A-1-1
|
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authorization of the Guarantees by Weatherford Switzerland), the Guarantees will constitute
valid and binding obligations of Weatherford Delaware and Weatherford Switzerland,
enforceable against Weatherford Delaware and Weatherford Switzerland in accordance with
their respective terms, under the applicable laws of the State of New York.
|
8.
|
|
Assuming the due authorization of the Indenture by Weatherford Bermuda, the Indenture
constitutes the valid and binding obligation of Weatherford Bermuda, enforceable against
Weatherford Bermuda in accordance with its terms, under the applicable laws of the State of
New York.
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|
9.
|
|
Assuming the due authorization by Weatherford Bermuda of the Notes, when the Notes
have been issued and executed by Weatherford Bermuda and duly authenticated by the Trustee in
accordance with the provisions of the Indenture (which fact we have not determined by an
inspection of the Securities) and delivered to and paid for by the Underwriters in accordance
with the Underwriting Agreement, the Notes will constitute valid and binding obligations of
Weatherford Bermuda, enforceable against Weatherford Bermuda in accordance with their terms,
under the applicable laws of the State of New York, and will be entitled to the benefits of
the Indenture.
|
|
10.
|
|
The Registration Statement has become effective under the Securities Act and, to our
knowledge, no stop order suspending the effectiveness of the Registration Statement has been
issued under the Securities Act and no proceeding for that purpose has been instituted or is
pending or threatened by the SEC. The Prospectus was filed with the SEC on September 16, 2010
in the manner and within the time period required by Rule 424(b) of the Rules and Regulations.
The Final Term Sheet was filed with the SEC on September 16, 2010 in the manner and within
the time period required by Rule 433 of the Rules and Regulations.
|
|
11.
|
|
(a) The Registration Statement and the Prospectus, as of their respective effective
or issue dates, appeared on their face to be appropriately responsive in all material respects
to the requirements of the Securities Act and the Rules and Regulations; and (b) the
Incorporated Documents, when they were filed with the SEC, appeared on their face to be
appropriately responsive in all material respects with the requirements of the Securities
Exchange Act of 1934, as amended, and the rules and regulations thereunder, in each case other
than the financial statements and the notes and supporting schedules, and other financial and
related accounting data and information, included therein or excluded therefrom or the
exhibits to the Registration Statement, as to which no opinion is rendered.
|
|
12.
|
|
The statements (A) in the Disclosure Package and the Prospectus under the caption
Description of Notes, Description of Debt Securities and United States Federal Income Tax
Considerations and (B) in the Registration Statement in Item 15 (with respect to Weatherford
Delaware), in each case insofar as such statements purport to summarize certain provisions of
documents referred to therein and reviewed by us as described above, constitute descriptions
of agreements or refer to statements of law or legal conclusions, fairly summarize the matters
referred to therein in all material respects, subject to the qualifications and assumptions
stated therein.
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|
13.
|
|
Neither the Company nor either of the Guarantors is required, and upon the issuance
and sale of the Securities as herein contemplated and the application of the net proceeds
therefrom as described in the Prospectus and the Disclosure Package none of them will be
required, to register as an investment company within the meaning of said term as used in
the 1940 Act.
|
A-1-2
14.
|
|
The Indenture has been duly qualified under the Trust Indenture Act of 1939, as
amended.
|
|
15.
|
|
The Companies have complied with the conditions precedent under the Indenture to
enter into the Supplemental Indenture, and the execution of the Supplemental Indenture is
authorized and permitted by the Indenture.
|
In addition, such counsel shall provide a statement to the effect that such counsel has
participated in conferences with certain officers and other representatives of the Companies,
representatives of the independent public accountants of the Companies and the Underwriters
representatives, at which the contents of the Registration Statement, the Disclosure Package and
the Prospectus and related matters were discussed; and that, although such counsel is not (except
with respect to the opinions set forth in paragraphs 11 and 12 above) pass upon and does not
(except with respect to the opinions set forth in paragraphs 11 and 12 above) assume any
responsibility for and shall not be deemed to have independently verified the accuracy,
completeness or fairness of the statements contained in the Registration Statement, the Disclosure
Package or the Prospectus, or incorporated by reference therein, on the basis of the foregoing
(relying with respect to factual matters upon statements made by officers and other representatives
of the Companies), no facts have come to such counsels attention that have led such counsel to
believe that (i) the Registration Statement, at the most recent time such Registration Statement
became effective, contained an untrue statement of a material fact or omitted to state any material
fact required to be stated therein or necessary to make the statements therein not misleading, (ii)
the Disclosure Package, as of the Applicable Time (which you have informed us is a time prior to
the time of the first sale of the Securities by any Underwriter), contained an untrue statement of
a material fact or omitted to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading, (iii) as of
its date, the Prospectus contained an untrue statement of a material fact or omitted to state any
material fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or (iv) as of the date hereof, the Prospectus contains
an untrue statement of a material fact or omits to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under which they were made, not
misleading, it being understood that such counsels statement may note that such counsel did not
participate in the preparation of the Incorporated Documents and that such counsel expresses no
statement or belief with respect to (A) the financial statements and related schedules, including
the notes and schedules thereto and the auditors report thereon, and (B) any other financial or
accounting data or information or assessments of or reports on the effectiveness of internal
control over financial reporting, included or incorporated or deemed incorporated by reference in,
or excluded from, the Registration Statement, the Prospectus or the Disclosure Package.
___________
In rendering such opinion, such counsel may state that their opinion is limited to matters
governed by the Federal laws of the United States of America, the laws of the State of Texas and
the State of New York and the General Corporation Law of the State of Delaware. In addition, such
counsel may state that their opinion is subject to customary exceptions and qualifications. Such
counsel may also state that, insofar as such opinion involves factual matters, they have relied, to
the extent they deem proper, upon certificates of officers of the Company, Parent and their
subsidiaries and certificates of public officials.
A-1-3
Exhibit A-2
FORM OF OPINION OF COMPANYS IN-HOUSE COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)(2)
1.
|
|
The Company is duly qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of business, except where the failure so
to qualify or to be in good standing would not reasonably be expected to result in a Material
Adverse Effect.
|
|
2.
|
|
Weatherford Delaware is a corporation duly incorporated under the laws of the State of
Delaware. Each Guarantor is duly qualified as a foreign corporation to transact business and
is in good standing in each jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of business, except where the
failure so to qualify or to be in good standing would not reasonably be expected to result in
a material adverse change in the consolidated financial position, shareholders equity,
results of operations or business of such Guarantor and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business (a
Guarantor
Material Adverse Effect
).
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|
3.
|
|
Each of the direct or indirect subsidiaries of the Company set forth on
Schedule C
to
the Underwriting Agreement (the
Scheduled Subsidiaries
) is duly incorporated,
validly existing and in good standing under the laws of the State of Delaware, with due
corporate power and authority to own, lease and operate its properties and to conduct its
business as described in the Disclosure Package and the Prospectus; and all of the outstanding shares of capital stock of each of the Scheduled Subsidiaries have been duly authorized and
validly issued, are fully paid and non-assessable and are held of record, directly or
indirectly, by the Company.
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4.
|
|
To my knowledge, there is no action, suit or proceeding before or by any government,
governmental instrumentality or court, domestic or foreign, now pending or threatened against
or affecting the Company, the Guarantors or any of their respective subsidiaries, or to which
any of their respective properties are subject, that are of a character required to be
described in the Registration Statement or the Disclosure Package that are not so described.
|
|
5.
|
|
The (i) execution and delivery of, and the performance by each of the Company and the
Guarantors of its respective obligations under, the Underwriting Agreement, the Indenture and
the Securities (collectively, the Transaction Agreements), (ii) consummation of the
transactions contemplated in the Underwriting Agreement (including the use of the proceeds
from the sale of the Securities as described in the Prospectus under the caption Use of
Proceeds), and (iii) compliance by each of the Company and the Guarantors with its respective
obligations under the Transaction Agreements, do not and will not, whether with or without the
giving of notice or lapse of time or both, constitute a breach of, or default or Repayment
Event (as defined in Section 1(a)(17) of the Underwriting Agreement) under any indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or any other agreement or
instrument, known to me, to which the Company, either of the Guarantors or any of their
respective subsidiaries is a party or by which any of them may be bound, or to which any of
the property or assets of the Company, either of the Guarantors or any of their respective
subsidiaries is subject (except for such breaches, defaults
|
A-2-1
|
|
or Repayment Events that would not reasonably be expected to have a Material Adverse Effect,
or in the case of a Guarantor, a Guarantor Material Adverse Effect), nor will such action
result in any violation of the provisions of the charter or by-laws or other governing
documents of the Company, the Guarantors or any of the Scheduled Subsidiaries or any
applicable law, judgment, order, writ or decree known to me of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over the Company, either
of the Guarantors or any of their respective subsidiaries or any of their respective
properties, assets or operations.
|
6.
|
|
All descriptions in the Registration Statement of contracts and other documents to which the
Company, either of the Guarantors or any of their respective subsidiaries is a party are fair
summaries in all material respects; and to my knowledge, there are no franchises, contracts,
indentures, mortgages, loan agreements, notes, leases or other instruments required to be
described or referred to in the Registration Statement or to be filed as exhibits to the
Registration Statement, other than those described or referred to therein or filed or
incorporated by reference as exhibits thereto.
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In addition, I have participated in conferences with certain officers and other
representatives of the Company and the Guarantors, representatives of the independent public
accountants of the Company and the Guarantors and the Underwriters representatives, at which the
contents of the Registration Statement, the Disclosure Package and the Prospectus and related
matters were discussed. Although I am not (except with respect to the opinion set forth in
paragraph 6 above) passing upon and do not (except with respect to the opinion set forth in
paragraph 6 above) assume any responsibility for and shall not be deemed to have independently
verified the accuracy, completeness or fairness of the statements contained in the Registration
Statement, the Disclosure Package or the Prospectus, or incorporated by reference therein, on the
basis of the foregoing (relying with respect to factual matters to the extent I deem appropriate
upon statements made by officers and other representatives of the Company and the Guarantors), no
facts have come to my attention that have led me to believe that (i) the Registration Statement, at
the most recent time such Registration Statement became effective, contained an untrue statement of
a material fact or omitted to state any material fact required to be stated therein or necessary to
make the statements therein not misleading, (ii) the Disclosure Package, as of the Applicable Time
(which you have informed me is a time prior to the time of the first sale of the Securities by any
Underwriter), contained an untrue statement of a material fact or omitted to state any material
fact necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, (iii) as of its date, the Prospectus contained an untrue
statement of a material fact or omitted to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not misleading,
or (iv) as of the date hereof, the Prospectus contains an untrue statement of a material fact or
omits to state any material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, it being understood I express no
statement or belief in this letter with respect to (A) the financial statements and related
schedules, including the notes and schedules thereto and the auditors report thereon, (B) any
other financial or accounting data or information and (C) assessments of or reports on the
effectiveness of internal controls over financial reporting, included or incorporated or deemed
incorporated by reference in, or excluded from, the Registration Statement, the Prospectus or the
Disclosure Package.
____________
In rendering such opinion, such counsel may state that his opinion is limited to matters
governed by the Federal laws of the United States of America, the laws of the State of Texas and
the General Corporation Law of the State of Delaware. In addition, such counsel may state that his
opinion is subject to customary exceptions and qualifications.
A-2-2
Exhibit A-3
FORM OF OPINION OF COMPANY COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)(3)
1.
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The Company is duly incorporated and existing under the laws of Bermuda in good standing
(meaning solely that it has not failed to make any filing with any Bermuda governmental
authority, or to pay any Bermuda government fee or tax, which would make it liable to be
struck off the Register of Companies and thereby cease to exist under the laws of Bermuda).
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2.
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The Company has the necessary corporate power and authority to execute, deliver and perform
its obligations under the Underwriting Agreement, the Indenture and the Notes (collectively,
the Documents), including the execution and delivery of the Notes, and the necessary
corporate power to conduct its business as described under the caption About Us in the Base
Prospectus and as described under the caption Weatherford in the preliminary prospectus.
The execution and delivery of the Documents by the Company and the performance by the Company
of its obligations thereunder will not violate the memorandum of association or bye-laws of
the Company nor any applicable law, regulation, order or decree in Bermuda.
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3.
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The Company has taken all corporate action required to authorise its execution, delivery and
performance of the Documents, including the execution and delivery of the Notes. The
Documents have been duly executed and delivered by or on behalf of the Company and constitute
the valid and binding obligations of the Company, enforceable against the Company in
accordance with the terms thereof.
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4.
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No order, consent, approval, licence, authorisation or validation of, filing with or
exemption by any government or public body or authority of Bermuda or any sub-division thereof
is required to authorise or is required in connection with the execution, delivery,
performance and enforcement of the Documents, including the execution and delivery of the
Notes, except such as have been duly obtained or filed in accordance with Bermuda law.
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5.
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It is not necessary or desirable to ensure the enforceability in Bermuda of the Documents
that they be registered in any register kept by, or filed with, any governmental authority or
regulatory body in Bermuda. However, to the extent that any of the Documents creates a charge
over assets of the Company, it may be desirable to ensure the priority in Bermuda of the
charge that it be registered in the Register of Charges in accordance with Section 55 of the
Companies Act 1981. On registration, to the extent that Bermuda law governs the priority of a
charge, such charge will have priority in Bermuda over any unregistered charges, and over any
subsequently registered charges, in respect of the assets which are the subject of the charge.
A registration fee of $557 will be payable in respect of the registration.
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While there is no exhaustive definition of a charge under Bermuda law, a charge includes any
interest created in property by way of security (including any mortgage, assignment, pledge,
lien or hypothecation). As the Documents are governed by the laws of the State of New York
(the Foreign Laws), the question of whether they create such an interest in property would
be determined under the Foreign Laws.
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A-3-1
6.
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The Documents will not be subject to ad valorem stamp duty in Bermuda and no registration,
documentary, recording, transfer or other similar tax, fee or charge is payable in Bermuda
other than as stated in paragraph 5 hereof in connection with the execution, delivery, filing,
registration or performance of the Documents or in connection with the admissibility in
evidence thereof (other than ordinary court filing fees).
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7.
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The Company has received an assurance from the Minister of Finance under the Exempted
Undertakings Tax Protection Act, 1966 that, in the event of there being enacted in Bermuda any
legislation imposing tax computed on profits or income or computed on any capital asset, gain
or appreciation, or any tax in the nature of estate duty or inheritance tax, then the
imposition of any such tax shall not until 28 March 2016 be applicable to the Company or any
of its operations or its shares, debentures or other obligations, except insofar as such tax
applies to persons ordinarily resident in Bermuda or to tax payable in accordance with the
provisions of the Land Tax Act 1967 or otherwise payable in relation to any land leased to the
Company.
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8.
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Based solely upon a review of the register of members of the Company dated September [__],
2010, prepared by American Stock Transfer & Trust Company, the branch registrar of the
Company, the issued share capital of the Company consists of [__] common shares, par value
US$1.00, each of which is validly issued, fully paid and non-assessable (which term when used
herein means that no further sums are required to be paid by the holders thereof in connection
with the issue thereof). The issued shares of the Company are not subject to any statutory
pre-emptive or similar statutory rights.
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9.
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The statements contained in the Prospectus under the caption Certain Bermuda and Swiss Tax
Considerations and in Item 15 Indemnification of Directors and Officers of the
Registration Statement, to the extent that they constitute statements of Bermuda law, are
accurate in all material respects.
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10.
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Based solely on a search of the public records in respect of the Company maintained at the
offices of the Registrar of Companies at [__] on September [__], 2010 (which would not reveal
details of matters which have not been lodged for registration or have been lodged for
registration but not actually registered at the time of our search) and a search of the Cause
Book of the Supreme Court of Bermuda conducted at [__] on September [__], 2010 (which would
not reveal details of proceedings which have been filed but not actually entered in the Cause
Book at the time of our search), no steps have been, or are being, taken in Bermuda for the
appointment of a receiver or liquidator to, or for the winding-up, dissolution, reconstruction
or reorganisation of, the Company.
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11.
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The choice of the Foreign Laws as the governing law of the Documents is a valid choice of law
and would be recognised and given effect to in any action brought before a court of competent
jurisdiction in Bermuda, except for those laws (i) which such court considers to be procedural
in nature, (ii) which are revenue or penal laws or (iii) the application of which would be
inconsistent with public policy, as such term is interpreted under the laws of Bermuda. The
submission in the Underwriting Agreement and the Indenture to the non-exclusive jurisdiction
of the courts specified therein (the Foreign Courts), and the appointment of CT Corporation
Systems by the Company as its agent for service of legal process in connection with
proceedings in the Foreign Courts pursuant to the Underwriting Agreement, is valid and binding
upon the Company.
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12.
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The courts of Bermuda would recognise as a valid judgment, a final and conclusive judgment in
personam obtained in the Foreign Courts against the Company based upon the Documents under
which a sum of money is payable (other than a sum of money payable in respect of multiple
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A-3-2
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damages, taxes or other charges of a like nature or in respect of a fine or other penalty)
and would give a judgment based thereon provided that (a) such courts had proper
jurisdiction over the parties subject to such judgment, (b) such courts did not contravene
the rules of natural justice of Bermuda, (c) such judgment was not obtained by fraud, (d)
the enforcement of the judgment would not be contrary to the public policy of Bermuda, (e)
no new admissible evidence relevant to the action is submitted prior to the rendering of the
judgment by the courts of Bermuda and (f) there is due compliance with the correct
procedures under the laws of Bermuda.
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13.
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The authorised capital of the Company conforms, as to legal matters, to the description
thereof contained in the Base Prospectus contained in the Registration Statement in all
material respects.
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14.
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There is no income or other tax of Bermuda imposed by withholding or otherwise on any payment
to be made by the Company or either of the Guarantors to the holders of the Notes.
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15.
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The Company has been designated as non-resident of Bermuda for the purposes of the Exchange
Control Act, 1972 and, as such, is free to acquire, hold, transfer and sell foreign currency
(including the payment of dividends or other distributions) and securities without
restriction.
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16.
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The Company is not entitled to any immunity under the laws of Bermuda, whether characterised
as sovereign immunity or otherwise, from any legal proceedings to enforce the Documents in
respect of itself or its property.
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17.
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The obligations of the Company under the Notes will rank at least
pari passu
in priority of
payment with all other unsecured unsubordinated indebtedness of the Company, other than
indebtedness which is preferred by virtue of any provision of the laws of Bermuda of general
application.
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A-3-3
Exhibit A-4
FORM OF OPINION OF COMPANY COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)(4)
*
1.
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Weatherford Switzerland is a joint stock corporation duly incorporated and validly existing
under the laws of Switzerland.
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2.
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Weatherford Switzerland has the necessary corporate power and authority to: (a) execute,
deliver and perform its obligations under the Underwriting Agreement, the Indenture and the
Guarantees of Weatherford Switzerland (collectively, the Documents), including the execution
and delivery of the Guarantees of Weatherford Switzerland (the Swiss Guarantees); and (b)
own its properties and conduct its business as described in the Disclosure Package and the
Prospectus. The execution and delivery of the Documents by Weatherford Switzerland and the
performance by Weatherford Switzerland of its obligations thereunder will not violate the
articles of association or organizational regulations of Weatherford Switzerland nor any
applicable law, regulation, order or decree in Switzerland.
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3.
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Weatherford Switzerland has taken all corporate action required to authorize its execution,
delivery and performance of the Documents, including the authorization of the execution and
delivery of the Underwriting Agreement, the Indenture and the Swiss Guarantees. The Documents
have been duly executed and delivered by or on behalf of Weatherford Switzerland and
constitute the valid and binding obligations of Weatherford Switzerland, enforceable against
Weatherford Switzerland in accordance with the terms thereof.
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4.
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No order, consent, approval, licence, authorisation or validation of, filing with or
exemption by any government or public body or authority of Switzerland or any sub-division
thereof is required to authorise or is required in connection with the execution, delivery,
performance and enforcement of the Documents, including the execution and delivery of the
Swiss Guarantees, except such as have been duly obtained or filed in accordance with Swiss
law.
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5.
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It is not necessary or desirable to ensure the enforceability in Switzerland of the Documents
that they be registered in any register kept by, or filed with, any governmental authority or
regulatory body in Switzerland.
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6.
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The Documents will not be subject to ad valorem stamp duty in Switzerland and no
registration, documentary, recording, transfer or other similar tax, fee or charge is payable
in Switzerland in connection with the execution, delivery, filing, registration or performance
of the Documents or in connection with the admissibility in evidence thereof (other than
ordinary court filing fees).
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7.
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The statements contained in the Disclosure Package and the Prospectus under the caption
Certain Bermuda and Swiss Tax Considerations and in Item 15 Indemnification of Directors
and Officers of the Registration Statement, to the extent that they constitute statements of
Swiss law, or summaries of any provisions of Weatherford Switzerlands articles of association
or organizational regulations, are accurate in all material respects.
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*
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To be reviewed by Swiss counsel to the
Underwriters.
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A-4-1
8.
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Based solely on the search of the public records in respect of Weatherford Switzerland
referred to in such opinion, no steps have been, or are being, taken in Switzerland for the
appointment of a receiver or liquidator to, or for the winding-up, dissolution, reconstruction
or reorganisation of, Weatherford Switzerland.
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9.
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The choice of the laws of the State of New York as the governing law of the Documents is a
valid choice of law and would be recognised and given effect to in any action brought before a
court of competent jurisdiction in Switzerland, except for those laws (i) which such court
considers to be procedural in nature, (ii) which are revenue or penal laws, (iii) the
application of which would be inconsistent with public policy, as such term is interpreted
under the laws of Switzerland or (iv) which are regarded by such courts as mandatory
provisions of Swiss law and are, accordingly, applicable regardless of any choice of law.
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10.
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The submission in the Underwriting Agreement and the Indenture to the non-exclusive
jurisdiction of the courts specified therein (the Foreign Courts), and the appointment of CT
Corporation Systems by Weatherford Switzerland as its agent for service of legal process in
connection with proceedings in the Foreign Courts pursuant to the Underwriting Agreement, is
valid and binding upon Weatherford Switzerland.
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11.
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The courts of Switzerland would recognise as a valid judgment, a final and conclusive
judgment in personam obtained in the Foreign Courts against Weatherford Switzerland based upon
the Documents under which a sum of money is payable and would give a judgment based thereon
provided that (a) such courts had proper jurisdiction over the parties subject to such
judgment, (b) such courts did not contravene the rules of natural justice of Switzerland, (c)
such judgment was not obtained by fraud, (d) the enforcement of the judgment would not be
contrary to the public policy of Switzerland, (e) no new admissible evidence relevant to the
action is submitted prior to the rendering of the judgment by the courts of Switzerland, (f)
there is due compliance with the correct procedures under the laws of Switzerland, and (g)
there is no other ground for refusal as set out in Article 27 of the Swiss Federal Act on
International Private Law (a translation of which is attached hereto for the ease of
reference).
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12.
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There is no income or other tax of Switzerland imposed by withholding or otherwise on any
payment to be made by the Company or Weatherford Switzerland to the holders of the Notes.
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13.
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Weatherford Switzerland is not entitled to any immunity under the laws of Switzerland,
whether characterised as sovereign immunity or otherwise, from any legal proceedings to
enforce the Documents in respect of itself or its property.
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14.
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The obligations of Weatherford Switzerland under the Swiss Guarantees will rank at least
pari
passu
in priority of payment with all other unsecured unsubordinated indebtedness of
Weatherford Switzerland.
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A-4-2
Exhibit A-5
FORM OF OPINION OF UNDERWRITERS COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(c)(1)
1.
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The Indenture has been duly authorized on behalf of WFT-Delaware. The Indenture has been duly
executed and delivered by WFT-Delaware, and constitutes the valid and binding obligation of
WFT-Delaware, and, assuming that (a) the Indenture has been duly authorized, executed and
delivered by the Company, Parent and the Trustee and (b) the Company has the necessary
exempted company power and authority to execute and deliver, and perform its obligations
under, the Indenture, the Indenture constitutes a valid and binding obligation of the Company,
Parent and WFT-Delaware, enforceable against the Company, Parent and WFT-Delaware in
accordance with its terms, under the applicable laws of the State of New York, except as the
enforcement thereof may be limited by bankruptcy, insolvency (including, without limitation,
all laws relating to fraudulent transfers), reorganization, moratorium or similar laws
affecting enforcement of creditors rights generally and except as enforcement thereof is
subject to general principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law) and judicial discretion.
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2.
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Assuming that (a) the global notes representing the Notes (the Global Notes) have been duly
authorized, executed and delivered by the Company and (b) the Company has the necessary
exempted company power and authority to execute and deliver, and perform its obligations
under, the Global Notes, when the Global Notes have been issued, executed and authenticated in
accordance with the terms of the Indenture and delivered against payment therefor in
accordance with the terms of the Indenture and the Underwriting Agreement, the Global Notes
will constitute valid and binding obligations of the Company, enforceable against the Company
in accordance with their respective terms, under the applicable laws of the State of New York,
except as the enforcement thereof may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), reorganization, moratorium or similar
laws affecting enforcement of creditors rights generally and except as enforcement thereof is
subject to general principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law) and judicial discretion, and will be entitled to the benefits
of the Indenture.
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3.
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Each Global Note is in the form contemplated by the Indenture.
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4.
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The Guarantees have been duly authorized on behalf of WFT-Delaware and, when the Global Notes
have been duly authenticated by the Trustee in accordance with the provisions of the Indenture
and delivered to and paid for by the Underwriters in accordance with the terms of the
Indenture and the Underwriting Agreement, the Guarantees of WFT-Delaware will constitute valid
and binding obligations of WFT-Delaware, enforceable against WFT-Delaware in accordance with
their respective terms, under the applicable laws of the State of New York, except as the
enforcement thereof may be limited by bankruptcy, insolvency (including, without limitation,
all laws relating to fraudulent transfers), reorganization, moratorium or similar laws
affecting enforcement of creditors rights generally and except as enforcement thereof is
subject to general principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law) and judicial discretion.
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A-5-1
5.
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The Registration Statement has become effective under the 1933 Act and any required filing of
the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period
required by Rule 424(b). The Final Term Sheet has been filed with the Commission in
accordance with the requirements of Rule 433 under the 1933 Act.
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6.
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To our knowledge, no stop order suspending the effectiveness of the Registration Statement
has been issued under the 1933 Act and no proceeding for that purpose has been instituted or
is pending or threatened by the Commission.
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7.
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The statements in the Disclosure Package and the Prospectus under the caption Description of
Notes, and Description of Debt Securities, insofar as such statements purport to summarize
certain provisions of documents referred to therein and reviewed by us as described above,
constitute descriptions of agreements or refer to statements of law or legal conclusions,
fairly summarize the matters referred to therein in all material respects, subject to the
qualifications and assumptions stated therein.
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During the course of the preparation of the Preliminary Prospectus Supplement and the
Prospectus Supplement, we have participated in conferences with officers and other representatives
of the Company and the Guarantors and your representatives, at which the contents of the
Registration Statement, the Disclosure Package and the Prospectus and related matters were
discussed, and, although we are not passing upon and do not assume any responsibility for the
accuracy, completeness or fairness of any portion of the Registration Statement, the Disclosure
Package and the Prospectus (except with respect to the opinion set forth in paragraph 7 above), and
we have not checked the accuracy or completeness of, or otherwise verified any information
contained in the Registration Statement, the Disclosure Package and the Prospectus, on the basis of
the foregoing (relying as to materiality to a certain extent upon officers and other
representatives of the Company and the Guarantors), no facts have come to our attention which have
caused us to believe that, (i) as of the most recent effective date of the Registration Statement,
the Registration Statement contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements therein not
misleading, (ii) as of the Applicable Time (which you have informed us is prior to the time of the
first sale of any of the Securities by any Underwriter), the Disclosure Package contained an 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,
or (iii) as of its date, the Prospectus contained, or, as of the date hereof, contains, an untrue
statement of a material fact or omitted or omits 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. In this paragraph, references to the Registration Statement, the Disclosure Package or
the Prospectus do not include references to any of the following, as to which we have not been
asked to comment, which the Registration Statement, the Disclosure Package or the Prospectus
contains or incorporates by reference or omits: (i) any financial statements, including any notes
and schedules, if any, thereto, and the auditors reports on the audited portions thereof, (ii) any
auditors reports on internal control over financial reporting, (iii) any other accounting or
financial information, (iv) any representation or warranty or statement of fact included in any
exhibit to the Registration Statement or (v) the Form T-1 of the Trustee.
_______
In rendering such opinion, such counsel may state that their opinion is limited to matters
governed by the Federal laws of the United States of America, the laws of the State of Texas and
the State of New York and the General Corporation Law of the State of Delaware. In addition, such
counsel may state that their opinion is subject to customary exceptions and qualifications. In
giving such opinion such counsel may rely, as to all matters governed by the laws of jurisdictions
other than the law of the State of
A-5-2
New York, the State of Texas and the federal law of the United States and the General Corporation
Law of the State of Delaware, upon the opinions of counsel satisfactory to the Representatives.
Such counsel may also state that, insofar as such opinion involves factual matters, they have
relied, to the extent they deem proper, upon certificates of officers of the Company, the
Guarantors and their respective subsidiaries and certificates of public officials.
A-5-3
Exhibit A-6
FORM OF OPINION OF UNDERWRITERS COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(c)(2)
(1)
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The Company is an exempted company incorporated with limited liability and existing
under the laws of Bermuda. The Company possesses the capacity to sue and be sued in its own
name and is in good standing under the laws of Bermuda.
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(2)
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The Company has all requisite corporate power and authority to enter into, execute, deliver,
and perform its obligations under the Subject Agreements including the issuance and delivery
of the Note to the Underwriters, and to take all action as may be necessary to complete the
transactions contemplated thereby.
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(3)
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The Company has the necessary corporate power to conduct the business authorised in its
Memorandum of Association and therefore, to conduct its business as described under the
caption About Us in the Registration Statement and Weatherford in the Preliminary
Prospectus.
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(4)
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The execution, delivery and performance by the Company of the Subject Agreements to which it
is a party and the transactions contemplated thereby (including the issue, sale and delivery
of the Note to the Underwriters) have been duly authorised by all necessary corporate action
on the part of the Company, pursuant to Bermuda law.
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(5)
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The Underwriting Agreement and the Indenture have been duly executed by the Company and each
constitutes legal, valid and binding obligations of the Company, enforceable against the
Company in accordance with its terms.
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(6)
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The Notes have been duly executed by the Company and, when authenticated and delivered in the
manner contemplated in the Indenture and paid for in accordance with the terms of the
Underwriting Agreement, will constitute a legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms.
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(7)
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Subject as otherwise provided in this opinion, and except for the filing of the Prospectus
with the Registrar of Companies in Bermuda (which must be made as soon as practicable after
publication of the Prospectus), no consent, licence or authorisation of, filing with,
registration on any register kept by, or other act by or in respect of, any governmental
authority or court of Bermuda is required to be obtained by the Company in connection with the
execution, delivery or performance by the Company of the Subject Agreements, including the
issue and delivery of the
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A-6-1
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Note, or to ensure the legality, validity, admissibility into evidence or enforceability as
to the Company, of the Subject Agreements except as have been duly obtained or made in
accordance with Bermuda law.
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(8)
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The execution, delivery and performance by the Company of the Subject Agreements and the
transactions contemplated thereby and the issue of the Note do not and will not violate,
conflict with or constitute a default under (i) any requirement of any law or any regulation
of Bermuda or (ii) the Constitutional Documents.
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(9)
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Under Bermuda law, the Underwriters will not be deemed to be resident, domiciled, carrying on
any commercial activity in Bermuda or subject to any taxation in Bermuda by reason only of the
entry into, performance or enforcement of the Subject Agreements to which they are a party or
the transactions contemplated thereby. It is not necessary under Bermuda law that the
Underwriters be authorised, qualified or otherwise entitled to carry on business in Bermuda
for their execution, delivery, performance or enforcement of the Subject Agreements.
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(10)
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The choice of the laws of the State of New York as the proper law to govern the Underwriting
Agreement and the Indenture respectively (together the Agreements) is a valid choice of law
under Bermuda law and such choice of law would be recognised, upheld and applied by the courts
of Bermuda as the proper law of the Agreements in proceedings brought before them in relation
to the Agreements, provided that (i) the point is specifically pleaded; (ii) such choice of
law is valid and binding under the laws of the State of New York; and (iii) recognition would
not be contrary to public policy as that term is understood under Bermuda law.
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(11)
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The submission by the Company to the jurisdiction of the federal or New York State courts
located in the City of New York in respect of the Underwriting Agreement and any federal or
state court located in the Borough of Manhattan in the City of New York in respect of the
Indenture is not contrary to Bermuda law and would be recognised by the courts of Bermuda as a
legal, valid and binding submission to the jurisdiction of the said courts, if such submission
is accepted by such courts and is legal, valid and binding under the laws of the State of New
York.
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(12)
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A final and conclusive judgment of a foreign court against the Company based upon the Subject
Agreements (other than a court of jurisdiction to which The Judgments (Reciprocal Enforcement)
Act 1958 applies, and it does not apply to the courts of the State of New York) under which a
sum of money is payable (not being a sum payable in respect of taxes or other charges of a
like nature, in respect of a fine or other penalty, or in respect of multiple damages as
defined in The
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A-6-2
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Protection of Trading Interests Act 1981) may be the subject of enforcement proceedings in
the Supreme Court of Bermuda under the common law doctrine of obligation by action on the
debt evidenced by the foreign courts judgment. A final opinion as to the availability of
this remedy should be sought when the facts surrounding the foreign courts judgment are
known, but, on general principles, we would expect such proceedings to be successful
provided that:
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(i)
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the court which gave the judgment was competent to hear the action in accordance
with private international law principles as applied in Bermuda; and
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(ii)
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the judgment is not contrary to public policy in Bermuda, has not been obtained
by fraud or in proceedings contrary to natural justice and is not based on an error in
Bermuda law.
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Enforcement of such a judgment against assets in Bermuda may involve the conversion of the
judgment debt into Bermuda dollars, but the Bermuda Monetary Authority has indicated that its
present policy is to give the consents necessary to enable recovery in the currency of the
obligation. No ad valorum stamp duty or similar or other tax or duty is payable in Bermuda on
the enforcement of a foreign judgement. Court Fees will be payable in connection with
proceedings for enforcement
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(13)
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Charges over the assets of Bermuda companies (other than real property in Bermuda or a ship
or aircraft registered in Bermuda) wherever situated, and charges on assets situated in
Bermuda (other than real property in Bermuda or a ship or aircraft registered in Bermuda)
which belong to companies incorporated outside Bermuda, are capable of being registered in
Bermuda in the office of the Registrar of Companies pursuant to the provisions of Part V of
the Companies Act 1981 (the Act). Registration under the Act is the only method of
registration of charges over the assets of Bermuda companies in Bermuda except charges over
real property in Bermuda or ships or aircraft registered in Bermuda. Registration under the
Act is not compulsory and does not affect the validity or enforceability of a charge and there
is no time limit within which registration of a charge must be effected. However, in the
event that questions of priority fall to be determined by reference to Bermuda law, any charge
registered pursuant to the Act will take priority over any other charge which is registered
subsequently in regard to the same assets, and over all other charges created over such assets
after 1 July, 1983, which are not registered.
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As the Subject Agreements are governed by the laws of the State of New York, the question as
to whether any of the Subject Agreements creates a charge would be determined under the laws
of the State of New York.
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A-6-3
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Based solely upon the Company Search, there is one charge registered in Bermuda over assets
of the Company bearing registration number 14645 which was registered on 14 November 2002
being an Unlimited Guarantee dated 12 November 2002 made between the Company and The Royal
Bank of Scotland plc.
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(14)
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The appointment by the Company of CT Corporation Systems as agent for the receipt of any
service of process in respect of any court in the State of New York in connection with any
matter arising out of or in connection with the Agreements is a valid and effective
appointment, if such appointment is valid and binding under the laws of the State of New York
and if no other procedural requirements are necessary in order to validate such appointment.
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A-6-4
Exhibit 4.1
WEATHERFORD INTERNATIONAL LTD.,
a Bermuda exempted company
as Issuer
WEATHERFORD INTERNATIONAL LTD.,
a Swiss joint-stock corporation
as Guarantor
WEATHERFORD INTERNATIONAL, INC.,
a Delaware corporation
as Guarantor
and
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Trustee
FOURTH SUPPLEMENTAL INDENTURE
Dated as of September 23, 2010
To
INDENTURE
Dated as of October 1, 2003
5.125% SENIOR
NOTES DUE
2020
6.750% SENIOR
NOTES DUE
2040
TABLE OF CONTENTS
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Page
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ARTICLE 1
Relation to Indenture; Definitions
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1
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SECTION 1.01.
Relation to Indenture
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1
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SECTION 1.02.
Definitions
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1
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SECTION 1.03.
General References
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1
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ARTICLE 2
The Series of Securities
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2
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SECTION 2.01.
The Form and Title of the Securities
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2
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SECTION 2.02.
Amount
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2
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SECTION 2.03.
Stated Maturity and Denominations
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2
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SECTION 2.04.
Interest and Interest Rates
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2
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SECTION 2.05.
Place of Payment
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2
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SECTION 2.06.
Optional Redemption
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3
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SECTION 2.07.
Unconditional Guarantee
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3
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ARTICLE 3
Other Amendments to Indenture
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3
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SECTION 3.01.
Amendments to Indenture
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3
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ARTICLE 4
Miscellaneous
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9
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SECTION 4.01.
Certain Trustee Matters
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9
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SECTION 4.02.
Continued Effect
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9
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SECTION 4.03.
Governing Law
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9
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SECTION 4.04.
Counterparts
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9
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EXHIBIT
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Exhibit A-1:
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Form of 2020 Note
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Exhibit A-2:
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Form of 2040 Note
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Exhibit B:
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Form of Guarantee Notation
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FOURTH SUPPLEMENTAL INDENTURE dated as of September 23, 2010 (this
Fourth Supplemental
Indenture
), among Weatherford International Ltd
.
, a Bermuda exempted company (the
Company
), Weatherford International Ltd., a Swiss joint-stock corporation (
Weatherford
Switzerland
), Weatherford International, Inc., a Delaware corporation (
Weatherford Delaware.
,
and, together with Weatherford Switzerland, the
Guarantors
), and Deutsche Bank Trust Company
Americas, a New York banking corporation, as trustee under the Indenture referred to below (in such
capacity, the
Trustee
).
RECITALS OF THE COMPANY
WHEREAS, the Company, Weatherford Delaware and the Trustee are parties to an Indenture dated
as of October 1, 2003 (the
Original Indenture
) (the Original Indenture, as supplemented from time
to time, including without limitation pursuant to the Third Supplemental Indenture dated as of
February 26, 2009 (the
Third Supplemental Indenture
), among the Company, the Guarantors and the
Trustee, and this Fourth Supplemental Indenture being referred to herein as the
Indenture
); and
WHEREAS, under the Original Indenture as supplemented and amended by the Third Supplemental
Indenture, a new series of Securities may at any time be established in accordance with the
provisions of the Original Indenture as supplemented and amended by the Third Supplemental
Indenture, and the terms of such series may be established by a supplemental indenture executed by
the Company, the Guarantors and the Trustee; and
WHEREAS, the Company and the Guarantors propose to create under the Indenture two new series
of Securities, which will be guaranteed by the Guarantors pursuant to their Guarantees as set forth
in Article Fourteen of the Original Indenture as supplemented and amended by the Third Supplemental
Indenture (as made applicable to the Notes, defined herein, pursuant to this Fourth Supplemental
Indenture); and
WHEREAS, all acts and things necessary to make the Notes, when executed by the Company and
authenticated and delivered by the Trustee as provided in the Indenture, the valid and binding
obligations of the Company, to make the Guarantees of such Notes by the Guarantors the valid and
binding obligation of the Guarantors, and to make this Fourth Supplemental Indenture a valid and
binding agreement in accordance with the Original Indenture, have been done or performed;
NOW, THEREFORE, in consideration of the premises, agreements and obligations set forth herein
and for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree, for the equal and proportionate benefit of all
Holders of the Notes, as follows:
ARTICLE 1
Relation to Indenture; Definitions
SECTION 1.01.
Relation to Indenture.
With respect to the Notes and the Guarantees thereof by the Guarantors, this Fourth
Supplemental Indenture constitutes an integral part of the Indenture.
SECTION 1.02.
Definitions.
For all purposes of this Fourth Supplemental Indenture, capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned thereto in the Original Indenture as
supplemented and amended by the Third Supplemental Indenture.
SECTION 1.03.
General References.
All references in this Fourth Supplemental Indenture to Articles and Sections, unless
otherwise specified, refer to the corresponding Articles and Sections of this Fourth Supplemental
Indenture; and the terms
herein
,
hereof
,
hereunder
and any other word of similar import
refers to this Fourth Supplemental Indenture.
1
ARTICLE 2
The Series of Securities
SECTION 2.01.
The Form and Title of the Securities.
There is hereby established two new series of Securities to be issued under the Indenture and
to be designated as the Companys 5.125% Senior Notes due 2020 (the
2020 Notes
) and the Companys
6.750% Senior Notes due 2040 (the
2040 Notes
and together with the 2020 Notes, the
Notes
). The
Notes shall be substantially in the forms attached as
Exhibits A-1
and
A-2
hereto,
in each case, with such appropriate insertions, omissions, substitutions and other variations as
are required or permitted by the Indenture, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as the Company may deem appropriate
or as may be required or appropriate to comply with any applicable laws or with any rules made
pursuant thereto or with the rules of any securities exchange or automated quotation system on
which the Notes may be listed or traded, or to conform to general usage, or as may, consistently
with the Indenture, be determined by the officers executing such Notes, as evidenced by their
execution thereof.
The Notes shall be executed, authenticated and delivered in accordance with the provisions of,
and shall in all respects be subject to, the terms, conditions and covenants of the Original
Indenture as supplemented and amended by the Third Supplemental Indenture and this Fourth
Supplemental Indenture (including the forms of Note set forth as
Exhibits A-1
and
A-2
hereto (the terms of which are incorporated in and made a part of this Fourth
Supplemental Indenture for all intents and purposes)).
SECTION 2.02.
Amount.
The aggregate principal amount of the Notes which may be authenticated and delivered pursuant
hereto is unlimited. The Trustee shall initially authenticate and deliver Notes for original issue
in initial aggregate principal amounts of up to $800,000,000 of the 2020 Notes and up to
$600,000,000 of the 2040 Notes upon delivery to the Trustee of a Company Order for the
authentication and delivery of such Notes. The Company may, from time to time, without notice to or
the consent of the Holders of the Notes, increase the principal amount of the Notes under the
Indenture and issue such increased principal amount (or any portion thereof), in which case any
additional Notes so issued will have the same form and terms (other than the date of issuance and,
under certain circumstances, the date from which interest thereon will begin to accrue), and will
carry the same right to receive accrued and unpaid interest, as the Notes previously issued, and
such additional Notes will form a single series with the Notes previously issued.
SECTION 2.03.
Stated Maturity and Denominations.
The Stated Maturity of the 2020 Notes shall be September 15, 2020 and the Stated Maturity of
the 2040 Notes shall be September 15, 2040. The Notes are issuable only in registered form without
coupons in denominations of U.S. $2,000 and any integral multiple of $1,000 in excess thereof.
SECTION 2.04.
Interest and Interest Rates.
The rate or rates at which the Notes shall bear interest, the date or dates from which such
interest shall accrue, the Interest Payment Dates on which any such interest shall be payable and
the Regular Record Date for any interest payable on any Interest Payment Date, in each case, shall
be as set forth in the form of applicable Note set forth as
Exhibit A-1
or
Exhibit
A-2
hereto.
SECTION 2.05.
Place of Payment.
As long as any Notes are outstanding, the Company shall maintain an office or agency in the
Borough of Manhattan, The City of New York, where Notes may be presented for payment.
2
SECTION 2.06.
Optional Redemption.
At its option, the Company may redeem either series of the Notes, in whole or in part, in
principal amounts of $2,000 or an integral multiple of $1,000 in excess thereof, at any time or
from time to time, at the applicable redemption price determined as set forth in the form of
applicable Note attached hereto as
Exhibits A-1
and
A-2
, in accordance with the
terms set forth in the Note and in accordance with Article Eleven of the Original Indenture.
SECTION 2.07.
Unconditional Guarantees.
Article Fourteen of the Original Indenture (as amended and supplemented by the Third
Supplemental Indenture and this Fourth Supplemental Indenture) shall be applicable to the Notes,
and accordingly, as more fully set forth in such Article Fourteen, the Guarantors, jointly and
severally, fully, irrevocably, unconditionally and absolutely guarantee to the Holders of Notes and
to the Trustee the due and punctual payment of the principal of, and premium, if any, and interest
on the Notes, and all other Indenture Obligations, when and as the same shall become due and
payable, whether at the Stated Maturity, upon redemption or by declaration of acceleration or
otherwise.
To further evidence the Guarantees of the Notes, the Guarantors hereby agree that a notation
of such Guarantees in substantially in the form attached as
Exhibit B
hereto, in each case,
with such appropriate insertions, omissions, substitutions and other variations as are required or
permitted by the Indenture, shall be endorsed on each Note authenticated and delivered by the
Trustee and executed by either manual or facsimile signature of an officer of each of the
Guarantors. Each Guarantor hereby agrees that its Guarantee of the Notes shall remain in full force
and effect notwithstanding any failure to endorse on any such Note a notation relating to the
Guarantee thereof.
ARTICLE 3
Other Amendments to Indenture
SECTION 3.01.
Amendments to Indenture
The amendments contained in this Section 3.01 shall apply to the Notes only and not to any
other series of Securities issued under the Indenture. Such amendments shall be effective only for
so long as there remain outstanding any Notes. The Indenture is hereby amended, subject to the
preamble of this Section 3.01 and with respect to the Notes only, by amending and restating
Sections 10.5 and 10.6 thereto as follows and by adding the following as new Sections 10.10 and
10.11 thereto:
Section 10.5. Limitation on Liens.
Weatherford Switzerland will not, nor will it permit any Subsidiary to, create, assume, incur
or suffer to exist any Lien upon any property, whether owned or leased on the date of this Fourth
Supplemental Indenture or thereafter acquired, to secure any Debt of Weatherford Switzerland or any
other Person (other than the Securities issued hereunder), without in any such case making
effective provision whereby all of the Securities Outstanding hereunder shall be secured equally
and ratably with, or prior to, such Debt so long as such Debt shall be so secured. This restriction
shall not apply to:
(1) Liens (i) existing on the date any Securities are issued under this Indenture or
(ii) provided for under the terms of agreements existing on such date securing indebtedness
existing on such date;
(2) Liens on current assets to secure current liabilities;
(3) Liens on property acquired, constructed, altered or improved by Weatherford
Switzerland or any Subsidiary of Weatherford Switzerland after the date of this Indenture
which are created or assumed contemporaneously with, or within one year after, such
acquisition (or in the case of property constructed, altered or improved, after the
completion and commencement of commercial operation of such property, whichever is later) to
secure or provide for the payment of any part of the purchase price of such property or the
cost of such construction, alteration or improvement, it being understood that if a
commitment for
3
such a financing is obtained prior to or within such one year period, the applicable Lien
shall be deemed to be included in this clause (3) whether or not such Lien is created within
such one year period; provided that in the case of any such construction, alteration or
improvement the Lien shall not apply to any property theretofore owned by Weatherford
Switzerland or any Subsidiary of Weatherford Switzerland, other than (i) the property so
altered or improved and (ii) any theretofore unimproved real property on which the property
so constructed or altered, or the improvement, is located;
(4) Liens on any property existing at the time of acquisition thereof (including Liens
on any property acquired from or held by a Person which is consolidated or amalgamated with
or merged with or into Weatherford Switzerland or a Subsidiary of Weatherford Switzerland)
and Liens outstanding at the time any Person becomes a Subsidiary of Weatherford Switzerland
that are not incurred in connection with such entity becoming a Subsidiary of Weatherford
Switzerland;
(5) Liens in favor of Weatherford Switzerland or any Subsidiary of Weatherford
Switzerland;
(6) Liens on any property (i) in favor of the United States, any State thereof, any
foreign country or any department, agency, instrumentality or political subdivision of any
such jurisdiction, to secure partial, progress, advance or other payments pursuant to any
contract or statute, (ii) securing any indebtedness incurred for the purpose of financing
all or any part of the purchase price or the cost of constructing, installing or improving
the property subject to such Liens, including, without limitation, Liens to secure Debt of
the pollution control or industrial revenue bond type, or (iii) securing indebtedness issued
or guaranteed by the United States, any State thereof, any foreign country, or any
department, agency, instrumentality or political subdivision of any such jurisdiction;
(7) Permitted Liens; and
(8) any extension, renewal, or replacement (or successive extensions, renewals or
replacements), in whole or in part, of any Lien referred to in any of the foregoing clauses
(1), (2), (3), (4), (5), and (6); provided, however, that the principal amount of Debt
secured thereby shall not exceed the principal amount of Debt so secured at the time of such
extension, renewal or replacement, together with the reasonable costs related to such
extension, renewal or replacement, and that such extension, renewal or replacement shall be
limited to all or a part of the property which secured the Lien so extended, renewed or
replaced (plus improvements on such property).
Notwithstanding the foregoing provisions of this Section 10.5, Weatherford Switzerland and any
Subsidiary of Weatherford Switzerland may issue, assume or guarantee secured Debt, which would
otherwise be subject to the foregoing restrictions, in an aggregate amount which, together with all
other such secured Debt and together with the aggregate amount of Attributable Indebtedness of
Weatherford Switzerland and its Subsidiaries deemed to be outstanding in respect of all
Sale-Leaseback Transactions (excluding any such Sale-Leaseback Transactions the proceeds of which
have been applied in accordance with clauses (a), (b) or (c) of Section 10.6) does not exceed 15%
of Consolidated Net Worth, as shown on a consolidated balance sheet, as of a date not more than 150
days prior to the proposed transaction, prepared by Weatherford Switzerland in accordance with
generally accepted accounting principles.
For purposes of this Section 10.5 and for Section 10.6 only, Subsidiary means (i) a corporation
more than 50% of the outstanding voting stock of which is owned, directly or indirectly, by
Weatherford Switzerland or by one or more other Subsidiaries of Weatherford Switzerland, or by
Weatherford Switzerland and one or more other Subsidiaries of Weatherford Switzerland or (ii) any
partnership or similar business organization more than 50% of the ownership interests having
ordinary voting power of which shall at the time be so owned. For the purposes of this definition,
voting stock means capital stock or equity interests which ordinarily have voting power for the
election of directors, whether at all times or only so long as no senior class of stock has such
voting power by reason of any contingency.
4
Section 10.6. Restriction of Sale-Leaseback Transactions.
Weatherford Switzerland shall not, and shall not permit any Subsidiary of Weatherford
Switzerland to, enter into any Sale-Leaseback Transaction with any Person (other than Weatherford
Switzerland or a Subsidiary of Weatherford Switzerland) unless:
(a) at the time of entering into such Sale-Leaseback Transaction, Weatherford
Switzerland or such Subsidiary of Weatherford Switzerland would be entitled to incur Debt,
in a principal amount equal to the Attributable Indebtedness with respect to such
Sale-Leaseback Transaction, secured by a Lien on the property subject to such Sale-Leaseback
Transaction, pursuant to Section 10.5 without equally and ratably securing the Securities
pursuant to such Section;
(b) after the Issue Date and within a period commencing six months prior to the
consummation of such Sale-Leaseback Transaction and ending six months after the consummation
thereof, Weatherford Switzerland or such Subsidiary of Weatherford Switzerland shall have
expended for property used or to be used in the ordinary course of business of Weatherford
Switzerland or such Subsidiary of Weatherford Switzerland (including amounts expended for
additions, expansions, alterations, repairs and improvements thereto) an amount equal to all
or a portion of the net proceeds of such Sale-Leaseback Transaction, and Weatherford
Switzerland shall have elected to designate such amount as a credit against such
Sale-Leaseback Transaction (with any such amount not being so designated to be applied as
set forth in clause (c) below; or
(c) during the 12-month period after the effective date of such Sale-Leaseback
Transaction, Weatherford Switzerland shall have applied to the voluntary defeasance or
retirement of Securities or any pari passu indebtedness of Weatherford Switzerland an amount
equal to the net proceeds of the sale or transfer of the real or personal property leased in
such Sale-Leaseback Transaction, which amount shall not be less than the fair value of such
property at the time of entering into such Sale-Leaseback Transaction (adjusted to reflect
the remaining term of the lease and any amount expended by Weatherford Switzerland as set
forth in clause (b) above), less an amount equal to the principal amount of Securities and
pari passu indebtedness voluntarily defeased or retired by Weatherford Switzerland within
such 12-month period and not designated as a credit against any other Sale-Leaseback
Transaction entered into by Weatherford Switzerland or any Subsidiary of Weatherford
Switzerland during such period.
Section 10.10 Change of Control Repurchase at the Option of Holders
(a) Upon the occurrence of a Change of Control Triggering Event, Holders of Securities will
have the right to require the Company to make an offer (the Change of Control Offer) to
repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of
their Securities at a purchase price in cash equal to 101% of the aggregate principal amount of
Securities repurchased plus accrued and unpaid interest, if any, on the Securities repurchased, to
the date of purchase (the Change of Control Payment). Within 30 days following any Change of
Control Triggering Event, the Company will mail a notice to each Holder of Securities describing
the transaction or transactions that constitute the Change of Control Triggering Event and stating:
(1) that the Change of Control Offer is being made pursuant to this Section
10.10 and that all Securities tendered will be accepted for payment;
(2) the purchase price and the purchase date, which shall be no earlier than 30
days and no later than 60 days from the date such notice is mailed (the Change of
Control Payment Date);
(3) that any Securities not tendered will continue to accrue interest;
(4) that, unless the Company defaults in the payment of the Change of Control
Payment, all Securities accepted for payment pursuant to the Change of Control Offer
will cease to accrue interest after the Change of Control Payment Date;
5
(5) that Holders electing to have any Securities repurchased pursuant to a
Change of Control Offer will be required to surrender the Securities, with the form
entitled Option of Holder to Elect Purchase attached to the Securities completed,
or transfer by book-entry transfer, to the Paying Agent at the address specified in
the notice prior to the close of business on the third Business Day preceding the
Change of Control Payment Date;
(6) that Holders will be entitled to withdraw their election if the Paying
Agent receives, not later than the close of business on the second Business Day
preceding the Change of Control Payment Date, a telegram, telex, facsimile,
transmission or letter setting forth the name of the Holder, the principal amount of
Securities delivered for purchase, and a statement that such Holder is withdrawing
his election to have the Securities purchased; and
(7) that Holders whose Securities are being purchased only in part will be
issued new Securities equal in principal amount to the unpurchased portion of the
Securities surrendered, which unpurchased portion must be equal to $2,000 in
principal amount or in any integral multiple of $1,000 in excess thereof.
The Company will comply with the requirements of Rule 14e-1 under the Exchange Act, and any
other securities laws and regulations thereunder to the extent those laws and regulations are
applicable in connection with the repurchase of the Securities as a result of a Change of Control
Triggering Event. To the extent that the provisions of any securities laws or regulations conflict
with the provisions of this Section 10.10 (or compliance with this Section 10.10 would constitute a
violation of any such laws or regulations), the Company will comply with the applicable securities
laws and regulations and will not be deemed to have breached its obligations under this Section
10.10 by virtue of such conflicts.
(b) On or before the Change of Control Payment Date, the Company will be required, to the
extent lawful, to:
(1) accept for payment all Securities or portions of Securities properly tendered
pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in
respect of all Securities or portions of Securities properly tendered; and
(3) deliver or cause to be delivered to the Trustee the Securities properly accepted.
The Paying Agent will promptly (but in any case not later than five days after the Change of
Control Payment Date) mail to each Holder of Securities properly tendered the Change of Control
Payment for such Securities, and the Trustee will promptly authenticate and mail (or cause to be
transferred by book entry) to each Holder a new Security equal in principal amount to any
unpurchased portion of the Securities surrendered, if any; provided that each new Security will be
in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof. The Company
will publicly announce the results of the Change of Control Offer on or as soon as practicable
after the Change of Control Payment Date.
If Holders of not less than 95% in aggregate principal amount of a series of outstanding
Securities validly tender and do not withdraw such Securities in a Change of Control Offer and the
Company, or any third party making a Change of Control Offer in lieu of the Company as described
below, purchases all of such Securities validly tendered and not withdrawn by such Holders, the
Company will have the right, upon not less than 30 nor more than 60 days prior notice, given not
more than 30 days following such purchase pursuant to the Change of Control Offer described above,
to redeem such Securities that remain outstanding following such purchase at a redemption price in
cash equal to the applicable Change of Control Payment plus, to the extent not included in the
Change of Control Payment, accrued and unpaid interest, if any, to the date of redemption.
(d) Notwithstanding anything to the contrary in this Section 10.10, the Company will not be
required to make a Change of Control Offer with respect to a series of Securities upon a Change of
Control Triggering Event if
6
(1) a third party makes the Change of Control Offer in the manner, at the times and otherwise in
compliance with the requirements set forth in this Section 10.10 and purchases all Securities
properly tendered and not withdrawn under the Change of Control Offer, or (2) notice of redemption
has been given pursuant to Section 11.4 with respect to a redemption of all such Securities then
outstanding pursuant to Article Eleven, unless and until there is a default in payment of the
applicable redemption price.
(e) For purposes of this Section 10.10, the following definitions shall be applicable:
(1) Below Investment Grade Rating Event means, with respect to a series of
Securities, the Securities are rated below an Investment Grade Rating by each of the Rating
Agencies on any date from the date of the public notice of an arrangement that could result
in a Change of Control until the end of the 60-day period following public notice of the
occurrence of the Change of Control (which 60-day period shall be extended so long as the
rating of the Securities is under publicly announced consideration for possible downgrade by
either of the Rating Agencies).
(2) Change of Control means the occurrence of any of the following: (1) the direct or
indirect sale, transfer, conveyance or other disposition (other than by way of merger,
amalgamation, consolidation, plan or scheme of arrangement, exchange offer, business
combination or similar transaction of the Weatherford Parent Company), in one or a series of
related transactions, of all or substantially all of the properties or assets of the
Weatherford Parent Company and its Subsidiaries taken as a whole to any person (as such term
is used in Section 13(d) of the Exchange Act) other than the Weatherford Parent Company or
one of its Subsidiaries or a Person controlled by the Weatherford Parent Company or one of
its Subsidiaries; (2) the consummation of any transaction (including, without limitation,
any merger, amalgamation, consolidation, plan or scheme of arrangement, exchange offer,
business combination or similar transaction) the result of which is that any person (as such
term is used in Section 13(d) of the Exchange Act) becomes the beneficial owner, directly or
indirectly, of more than 50% of the then outstanding number of the Weatherford Parent
Companys voting shares (excluding a Redomestication of the Weatherford Parent Company); or
(3) the first day on which a majority of the members of the Weatherford Parent Companys
Board of Directors are not Continuing Directors.
(3) Change of Control Triggering Event means the occurrence of both a Change of
Control and a Below Investment Grade Rating Event.
(4) Continuing Directors means, as of any date of determination, any member of the
Board of Directors of the Weatherford Parent Company who (1) was a member of such Board of
Directors on the date of the issuance of the Securities; or (2) was nominated for election
or appointed or elected to such Board of Directors with the approval of a majority of the
Continuing Directors who were members of such Board of Directors at the time of such
nomination, appointment or election (either by a specific vote or by approval of the
Weatherford Parent Companys proxy statement in which such member was named as a nominee for
election as a director, without objection to such nomination).
(5) Investment Grade Rating means a rating equal to or higher than Baa3 (or the
equivalent under any successor ratings categories of Moodys) by Moodys and BBB- (or the
equivalent under any successor ratings categories of S&P) by S&P.
(6) Moodys means Moodys Investors Service, Inc.
(7) Rating Agencies means (1) each of Moodys and S&P; and (2) if either of Moodys
or S&P ceases to rate the Securities or fails to make a rating of the Securities publicly
available for reasons outside of the Weatherford Parent Companys control, a nationally
recognized statistical rating organization within the meaning of Rule 15c3-1(c)(2)(vi)(F)
under the Exchange Act, selected by the Weatherford Parent Company (as certified by a
resolution of the Weatherford Parent Companys Board of Directors) as a replacement agency
for Moodys or S&P, or both of them, as the case may be.
7
(8) Redomestication means:
(a) any amalgamation, merger, plan or scheme of arrangement, exchange offer,
business combination, reincorporation, reorganization, consolidation or similar
action of the Weatherford Parent Company with or into any other person (as such term
is used in Section 13(d) of the Exchange Act), or of any other person (as such term
is used in Section 13(d) of the Exchange Act) with or into the Weatherford Parent
Company, or the sale, distribution or other disposition (other than by lease) of all
or substantially all of the properties or assets of the Weatherford Parent Company
and its Subsidiaries taken as a whole to any other person (as such term is used in
Section 13(d) of the Exchange Act),
(b) any continuation, discontinuation, domestication, redomestication,
amalgamation, merger, plan or scheme of arrangement, exchange offer, business
combination, reincorporation, reorganization, conversion, consolidation or similar
action with respect to the Weatherford Parent Company pursuant to the law of the
jurisdiction of its organization and of any other jurisdiction, or
(c) the formation of a Person that becomes, as part of the transaction or
series of related transactions, the direct or indirect owner of substantially all of
the voting shares of the Weatherford Parent Company (the New Parent),
if as a result thereof
(x) in the case of any action specified in clause (a), the entity that is the
surviving, resulting or continuing Person in such amalgamation, merger, plan or
scheme of arrangement, exchange offer, business combination, reincorporation,
reorganization, consolidation or similar action, or the transferee in such sale,
distribution or other disposition,
(y) in the case of any action specified in clause (b), the entity that
constituted the Weatherford Parent Company immediately prior thereto (but
disregarding for this purpose any change in its jurisdiction of organization), or
(z) in the case of any action specified in clause (c), the New Parent
(in any such case, the Surviving Person) is a corporation or other entity, validly
incorporated or formed and existing in good standing (to the extent the concept of good
standing is applicable) under the laws of Delaware or another State of the United States or
under the laws of the United Kingdom, The Kingdom of the Netherlands or another member
country of the European Union or under the laws of any other jurisdiction, whose voting
shares of each class of capital stock issued and outstanding immediately following such
action, and giving effect thereto, shall be beneficially owned by substantially the same
Persons, in substantially the same percentages, as was such capital stock or shares of the
entity constituting the Weatherford Parent Company immediately prior thereto and, if the
Surviving Person is the New Parent, the Surviving Person continues to be owned, directly or
indirectly, by substantially all of the Persons who were shareholders of the Weatherford
Parent Company immediately prior to such transaction.
(9) S&P means Standard & Poors Ratings Services, a division of The McGraw-Hill
Companies, Inc.
(10) Weatherford Parent Company means initially Weatherford Switzerland or, if a
Redomestication has occurred subsequent to the date hereof and prior to the event in
question or the date of determination, the Surviving Person resulting from such prior
Redomestication.
Section 10.11 Use of Proceeds.
The Company will not use any of the net proceeds received by it from the issuance and sale of
the Notes in a manner that would trigger the application of Circulars of the Swiss Bankers
Association NR 6746 of 29 June 1993 or otherwise result in tax withholding with respect to amounts
payable to Holders under the Securities.
8
ARTICLE 4
Miscellaneous
SECTION 4.01.
Certain Trustee Matters.
The recitals contained herein shall be taken as the statements of the Company and the
Guarantors, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this Fourth
Supplemental Indenture or the Notes or the proper authorization or the due execution hereof or
thereof by the Company.
SECTION 4.02.
Continued Effect.
Except as expressly supplemented and amended by the Third Supplemental Indenture and this
Fourth Supplemental Indenture, the Original Indenture shall continue in full force and effect in
accordance with the provisions thereof, and the Original Indenture, as supplemented and amended by
the Third Supplemental Indenture, is in all respects hereby ratified and confirmed. This Fourth
Supplemental Indenture and all of its provisions shall be deemed a part of the Original Indenture
in the manner and to the extent herein and therein provided.
SECTION 4.03.
Governing Law.
This Fourth Supplemental Indenture and the Notes shall be governed by and construed in
accordance with the laws of the State of New York.
SECTION 4.04.
Counterparts.
This instrument may be executed in any number of counterparts, each of which shall be deemed
to be an original, but all such counterparts shall together constitute but one and the same
instrument.
(Signature Pages Follow)
9
IN WITNESS WHEREOF, the parties hereto have caused this Fourth Supplemental Indenture to be
duly executed and delivered, all as of the day and year first above written.
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WEATHERFORD INTERNATIONAL LTD.
a Bermuda exempted company
as Issuer
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By:
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Name:
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Joseph C. Henry
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Title:
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Vice President, Co-General Counsel and
Assistant Secretary
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WEATHERFORD INTERNATIONAL LTD.
a Swiss joint-stock corporation
as Guarantor
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By:
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Name:
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Joseph C. Henry
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Title:
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Vice President, Co-General Counsel and Secretary
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WEATHERFORD INTERNATIONAL, INC.
a Delaware corporation
as Guarantor
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By:
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Name:
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Joseph C. Henry
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Title:
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Vice President Legal and Secretary
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10
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DEUTSCHE BANK TRUST COMPANY AMERICAS
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By:
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Deutsche Bank National Trust Company
as Trustee
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By:
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Name:
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Title:
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By:
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Name:
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Title:
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11
EXHIBIT A-1
Form of 2020 Note
[FORM OF FACE OF NOTE]
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND
IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE
TRANSFERRED TO, OR REGISTERED OR EXCHANGED FOR SECURITIES REGISTERED IN THE NAME OF, ANY PERSON
OTHER THAN THE DEPOSITARY OR A NOMINEE THEREOF AND NO SUCH TRANSFER MAY BE REGISTERED, EXCEPT IN
THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
EVERY SECURITY AUTHENTICATED AND DELIVERED UPON REGISTRATION OF TRANSFER OF, OR IN EXCHANGE FOR OR
IN LIEU OF, THIS SECURITY SHALL BE A GLOBAL SECURITY SUBJECT TO THE FOREGOING, EXCEPT IN SUCH
LIMITED CIRCUMSTANCES.
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY
(DTC) (55 WATER STREET, NEW YORK, NEW YORK) TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO., OR
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC, AND ANY PAYMENT IS MADE TO
CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC, ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL,
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
A-1-1
WEATHERFORD INTERNATIONAL LTD.
a Bermuda exempted company
5.125% Senior Notes due 2020
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Rate of Interest
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Maturity Date
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Original Issue Date
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5.125%
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September 15, 2020
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September 23, 2010
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No. ___
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U.S. $________________________
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CUSIP No. 94707V AA8
Weatherford International Ltd., a Bermuda exempted company (herein called the
Company
), for
value received, hereby promises to pay to Cede & Co. or registered assigns, the principal sum of
_______________________
United States Dollars on the maturity date shown above, and to pay interest thereon, at the annual
rate of interest shown above, from the original issue date shown above or from the most recent
Interest Payment Date (as hereinafter defined) to which interest has been paid or duly provided
for, payable semi-annually on March 15 and September 15 of each year (each, an
Interest Payment
Date
) and at such maturity date, commencing on the first such date after the original issue date
hereof, except that if such original issue date is on or after a Regular Record Date (as defined
below) but before the next Interest Payment Date, interest payments will commence on the second
Interest Payment Date following the original issue date.
The interest so payable, and punctually paid or duly provided for, on any Interest Payment
Date will, as provided in the Indenture, be paid to the person in whose name this Security is
registered at the close of business on the
Regular Record Date
for any such Interest Payment
Date, which shall be the fourteenth calendar day (whether or not a Business Day) preceding the
applicable Interest Payment Date. Any such interest not so punctually paid or duly provided for,
and any interest payable on such defaulted interest (to the extent lawful), will forthwith cease to
be payable to the Holder on such Regular Record Date and shall be paid to the person in whose name
this Security is registered at the close of business on a special record date for the payment of
such defaulted interest to be fixed by the Company, notice of which shall be given to Holders of
Securities not less than 14 days prior to such special record date. Payment of the principal of and
interest on this Security will be made at the agency of the Company maintained for that purpose in
New York, New York and at any other office or agency maintained by the Company for such purpose, in
United States dollars;
provided
,
however
, that, at the option of the Company, payment of interest,
other than interest due on the maturity date shown above, may be made by check mailed to the
address of the person entitled thereto as such address shall appear in the Security Register.
Reference is hereby made to the further provisions of this Security set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as if set forth at
this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to
on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under
the Indenture or be valid or obligatory for any purpose.
(Signature Page Follows)
A-1-2
IN WITNESS WHEREOF, Weatherford International Ltd., a Bermuda exempted company, has caused
this instrument to be executed in its corporate name by the signature of its duly authorized
officer.
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WEATHERFORD INTERNATIONAL LTD.
a Bermuda exempted company
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By:
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Name:
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Title:
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DATED: September 23, 2010
TRUSTEES CERTIFICATE OF AUTHENTICATION
This is one of the 5.125% Senior Notes due 2020 referred to in the within-mentioned Indenture.
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DEUTSCHE BANK TRUST COMPANY AMERICAS,
by Deutsche Bank National Trust Company,
as Trustee
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By:
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Authorized Signatory
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By:
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Authorized Signatory
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A-1-3
[REVERSE OF NOTE]
WEATHERFORD INTERNATIONAL LTD.
a Bermuda exempted company
5.125% Senior Notes due 2020
This Security is one of a duly authorized issue of senior securities of Weatherford
International Ltd., a Bermuda exempted company (the
Company
) (herein called the
Securities
),
issued and to be issued in one or more series under an Indenture, dated as of October 1, 2003 (the
Original Indenture
) (the Original Indenture, as supplemented and amended by the Third
Supplemental Indenture thereto, dated as of February 26, 2009, and the Fourth Supplemental
Indenture thereto, dated September 23, 2010, among the Company, Weatherford International Ltd., a
Swiss joint-stock corporation (
Weatherford Switzerland
), Weatherford International, Inc., a
Delaware corporation (together with Weatherford Switzerland, the
Guarantors
), and Deutsche Bank
Trust Company Americas, as Trustee (herein called the
Trustee
, which term includes any successor
trustee under the Original Indenture and any supplements and amendments thereto) being collectively
referred to as the
Indenture
), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement, of the respective rights, limitations of rights, duties
and immunities thereunder of the Company, the Guarantors, the Trustee and the Holders of the
Securities and of the terms upon which the Securities are, and are to be, authenticated and
delivered. As provided in the Indenture, the Securities may be issued in one or more series, which
different series may be issued in various aggregate principal amounts, may mature at different
times, may bear interest, if any, at different rates, may be subject to different redemption
provisions, if any, may be subject to different sinking, purchase or analogous funds, if any, may
be subject to different covenants and Events of Default and may otherwise vary as in the Indenture
provided or permitted. This Security is one of the series designated on the face hereof.
This Security is the general, unsecured, senior obligation of the Company and is guaranteed
pursuant to guarantees (the
Guarantees
) by each of the Guarantors on a joint and several basis.
The Guarantees are the general, unsecured, senior obligation of the Guarantors.
The Securities are subject to redemption upon not less than 30 nor more than 60 days notice
by mail, at any time, as a whole or in part, at the election of the Company at a Redemption Price
equal to the greater of: (a) 100% of the principal amount of Securities then outstanding to be
redeemed, plus accrued and unpaid interest thereon to the redemption date; or (b) the sum of the
present values of the remaining scheduled payments of principal and interest on the Securities then
outstanding to be redeemed (not including any portion of such payments of interest accrued as of
the redemption date), discounted to the redemption date on a semi-annual basis (computed based on a
360-day year consisting of twelve 30-day months) at the Adjusted Treasury Rate, plus 35 basis
points (0.35%), as calculated by an Independent Investment Banker, plus accrued and unpaid interest
thereon to the redemption date; but interest installments whose Stated Maturity is on or prior to
such Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor
Securities, of record at the close of business on the relevant Record Dates referred to on the face
hereof, all as provided in the Indenture.
Adjusted Treasury Rate
means, with respect to any redemption date: (a) the yield, under the
heading which represents the average for the immediately preceding week, appearing in the most
recently published statistical release designated H.15(519) or any successor publication which is
published weekly by the Board of Governors of the Federal Reserve System and which establishes
yields on actively traded United States Treasury securities adjusted to constant maturity under the
caption Treasury Constant Maturities, for the maturity corresponding to the Comparable Treasury
Issue (if no maturity is within three months before or after the remaining life, as defined below,
yields for the two published maturities most closely corresponding to the Comparable Treasury Issue
will be determined and the Adjusted Treasury Rate will be interpolated or extrapolated from such
yields on a straight-line basis, rounding to the nearest month); or (b) if such release (or any
successor release) is not published during the week preceding the calculation date or does not
contain such yields, the rate per year equal to the semi-annual equivalent yield to maturity of the
Comparable Treasury Issue, calculated using a price for the Comparable Treasury Issue (expressed as
a percentage of its principal amount) equal to the Comparable Treasury Price for such redemption
date. The Adjusted Treasury Rate will be calculated on the third business day preceding the
redemption date.
Comparable Treasury Issue
means the United States Treasury security selected by an
Independent Investment Banker as having a maturity comparable to the remaining term of the
Securities to be redeemed that would be used, at the time of selection and in accordance with
customary financial practice, in pricing new issues of corporate debt securities of comparable
maturity to the remaining term of such Securities.
A-1-4
Comparable Treasury Price
means (1) the average of five Reference Treasury Dealer Quotations
for the redemption date, after excluding the highest and lowest Reference Treasury Dealer
Quotations, or (2) if an Independent Investment Banker obtains fewer than five such Reference
Treasury Dealer Quotations, the average of all such quotations.
Independent Investment Banker
means Deutsche Bank Securities Inc., Morgan Stanley & Co.
Incorporated, UBS Securities LLC or J.P. Morgan Securities LLC or any of their respective
successors, as designated by the Company, or if all such firms are unwilling or unable to serve as
such, an independent investment and banking institution of national standing appointed by the
Company.
Reference Treasury Dealer
means: (a) Deutsche Bank Securities Inc., Morgan Stanley & Co.
Incorporated, UBS Securities LLC or J.P. Morgan Securities LLC and each of their respective
successors; provided that, if any such Reference Treasury Dealer ceases to be a primary U.S.
Government securities dealer in the United States (Primary Treasury Dealer), the Company will
substitute another Primary Treasury Dealer; and (b) up to one other Primary Treasury Dealer
selected by the Company.
Reference Treasury Dealer Quotations
means, with respect to each Reference Treasury Dealer
and any redemption date, the average, as determined by an Independent Investment Banker, of the bid
and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) quoted in writing to an Independent Investment Banker at 3:00 p.m., New York City
time, on the third business day preceding such redemption date.
In the event of redemption of this Security in part only, a new Security or Securities of this
series and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder
hereof upon the cancellation hereof.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and
the modification of the rights and obligations of the Company and the Guarantors and the rights of
the Holders of the Securities of each series to be affected under the Indenture at any time by the
Company and the Guarantors and the Trustee with the consent of the Holders of a majority in
aggregate principal amount of the Securities at the time Outstanding of each series to be affected.
The Indenture also contains provisions permitting the Holders of specified percentages in aggregate
principal amount of the Securities of each series at the time Outstanding, on behalf of the Holders
of all Securities of such series, to waive compliance by the Company and the Guarantors with
certain provisions of the Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and
binding upon such Holder and upon all future Holders of this Security and of any Security issued
upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security or of the Indenture
shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay
the principal of (and premium, if any) and interest on this Security at the times, place(s) and
rate, and in the coin or currency, herein prescribed.
This Global Security or portion hereof may not be exchanged for Definitive Securities of this
series except in the limited circumstances provided in the Indenture. The holders of beneficial
interests in this Global Security will not be entitled to receive physical delivery of Definitive
Securities except as described in the Indenture and will not be considered the Holders thereof for
any purpose under the Indenture.
The Securities are issuable only in registered form without coupons in denominations of U.S.
$2,000 and any integral multiple of $1,000 in excess thereof. As provided in the Indenture and
subject to certain limitations therein set forth, Securities of this series are exchangeable for a
like aggregate principal amount of Securities of this series and of like tenor of a different
authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or exchange, but the
Company may require payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the Company, the
Guarantors, the Trustee and any agent of the Company, the Guarantors or the Trustee may treat the
Person in whose name this Security is registered as the owner hereof for all purposes, whether or
not this Security be overdue, and none of the Company, the Guarantors, the Trustee nor any such
agent shall be affected by notice to the contrary.
A-1-5
No recourse under or upon any obligation, covenant or agreement of or contained in the
Indenture or of or contained in any Security, or the Guarantees endorsed thereon, or for any claim
based thereon or otherwise in respect thereof, or in any Security or in the Guarantees, or because
of the creation of any indebtedness represented thereby, shall be had against any incorporator,
shareholder, member, officer, manager or director, as such, past, present or future, of the Company
or the Guarantors or of any successor Person, either directly or through the Company or the
Guarantors or any successor Person, whether by virtue of any constitution, statute or rule of law,
or by the enforcement of any assessment, penalty or otherwise; it being expressly understood that
all such liability is hereby expressly waived and released by the acceptance hereof and as a
condition of, and as part of the consideration for, the Securities and the execution of the
Indenture.
The Indenture provides that the Company and the Guarantors (a) will be discharged from any and
all obligations in respect of the Securities (except for certain obligations described in the
Indenture), or (b) need not comply with certain restrictive covenants of the Indenture, in each
case if the Company or a Guarantor deposits, in trust, with the Trustee money or U.S. Government
Obligations (or a combination thereof) which through the payment of interest thereon and principal
thereof in accordance with their terms will provide money, in an amount sufficient to pay all the
principal of and interest on the Securities, but such money need not be segregated from other funds
except to the extent required by law.
As more fully provided in the Indenture, no Holder may pursue any remedy under the Indenture
unless the Trustee shall have failed to act after notice of an Event of Default and written request
by Holders of at least 25% in principal amount of a series of the Securities and the offer to the
Trustee of indemnity satisfactory to it; however, such provision does not affect the right to sue
for enforcement of any overdue payment on any Security.
Except as otherwise defined herein, all terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
Customary abbreviations may be used in the name of a Holder or any assignee, such as: TEN COM
( = tenants in common), TEN ENT ( = tenants by the entireties), JT TEN ( = joint tenants with right
of survivorship and not as tenants in common), CUST ( = Custodian) and U/G/M/A ( = Uniform Gifts to
Minors Act).
The Company will furnish to any holder of record of this Security, upon written request,
without charge, a copy of the Indenture. Requests may be made to: Weatherford International Ltd.,
515 Post Oak Blvd., Suite 600, Houston, Texas 77027, Attention: Corporate Secretary.
This Security shall be governed by and construed in accordance with the laws of the State of
New York without regard to any principles of conflicts of law thereof that would result in the
application of the laws of any other jurisdiction.
A-1-6
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
(Please Print or Typewrite Name and Address of Assignee)
the within instrument of WEATHERFORD INTERNATIONAL LTD., a Bermuda exempted company, and does
hereby irrevocably constitute and appoint
Attorney to transfer said instrument on the books of the within-named Company, with full power of
substitution in the premises.
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Please Insert Social Security or
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Other Identifying Number of Assignee:
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Dated:
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(Signature)
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Signature
Guarantee:
(Participant in a Recognized Signature
Guaranty Medallion Program)
NOTICE: The signature to this assignment must correspond with the name as written upon the
face of the within instrument in every particular, without alteration or enlargement or any change
whatever.
A-1-7
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company pursuant to Section 10.10
or 11.6 of the Indenture, check the appropriate box below:
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o
Section 10.10
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Section 11.6
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If you want to elect to have only part of the Security purchased by the Company pursuant to
Section 10.10 or Section 11.6 of the Indenture, state the amount you elect to have purchased:
$
_____________________________
Date:
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Your Signature:
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(Sign exactly as your name appears on the face of this Security)
Tax Identification No.:
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Signature Guarantee*:
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*
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Participant in a recognized Signature Guarantee Medallion Program
(or other signature guarantor acceptable to the Trustee).
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A-1-8
SCHEDULE OF INCREASES OR DECREASES
IN GLOBAL SECURITY
The following increases or decreases in this Global Security have been made:
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Amount of
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Principal Amount of
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Decrease in
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Amount of Increase
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this Global Security
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Signature of
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Principal
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in Principal Amount
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following such
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authorized signatory
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Amount of this
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of this
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decrease
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of Trustee or
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Date of Exchange
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Global Security
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Global Security
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(or increase)
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Depositary
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A-1-9
EXHIBIT A-2
Form of 2040 Note
[FORM OF FACE OF NOTE]
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND
IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE
TRANSFERRED TO, OR REGISTERED OR EXCHANGED FOR SECURITIES REGISTERED IN THE NAME OF, ANY PERSON
OTHER THAN THE DEPOSITARY OR A NOMINEE THEREOF AND NO SUCH TRANSFER MAY BE REGISTERED, EXCEPT IN
THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
EVERY SECURITY AUTHENTICATED AND DELIVERED UPON REGISTRATION OF TRANSFER OF, OR IN EXCHANGE FOR OR
IN LIEU OF, THIS SECURITY SHALL BE A GLOBAL SECURITY SUBJECT TO THE FOREGOING, EXCEPT IN SUCH
LIMITED CIRCUMSTANCES.
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY
(DTC) (55 WATER STREET, NEW YORK, NEW YORK) TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO., OR
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC, AND ANY PAYMENT IS MADE TO
CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC, ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL,
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
A-2-1
WEATHERFORD INTERNATIONAL LTD.
a Bermuda exempted company
6.750% Senior Notes due 2040
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Rate of Interest
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Maturity Date
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Original Issue Date
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6.750%
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September 15, 2040
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September 23, 2010
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No. ___
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U.S. $________________________
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CUSIP No. 94707V AB6
Weatherford International Ltd., a Bermuda exempted company (herein called the
Company
), for
value received, hereby promises to pay to Cede & Co. or registered assigns, the principal sum of
_______________________
United States Dollars on the maturity date shown above, and to pay interest thereon, at the annual
rate of interest shown above, from the original issue date shown above or from the most recent
Interest Payment Date (as hereinafter defined) to which interest has been paid or duly provided
for, payable semi-annually on March 15 and September 15 of each year (each, an
Interest Payment
Date
) and at such maturity date, commencing on the first such date after the original issue date
hereof, except that if such original issue date is on or after a Regular Record Date (as defined
below) but before the next Interest Payment Date, interest payments will commence on the second
Interest Payment Date following the original issue date.
The interest so payable, and punctually paid or duly provided for, on any Interest Payment
Date will, as provided in the Indenture, be paid to the person in whose name this Security is
registered at the close of business on the
Regular Record Date
for any such Interest Payment
Date, which shall be the fourteenth calendar day (whether or not a Business Day) preceding the
applicable Interest Payment Date. Any such interest not so punctually paid or duly provided for,
and any interest payable on such defaulted interest (to the extent lawful), will forthwith cease to
be payable to the Holder on such Regular Record Date and shall be paid to the person in whose name
this Security is registered at the close of business on a special record date for the payment of
such defaulted interest to be fixed by the Company, notice of which shall be given to Holders of
Securities not less than 14 days prior to such special record date. Payment of the principal of and
interest on this Security will be made at the agency of the Company maintained for that purpose in
New York, New York and at any other office or agency maintained by the Company for such purpose, in
United States dollars;
provided
,
however
, that, at the option of the Company, payment of interest,
other than interest due on the maturity date shown above, may be made by check mailed to the
address of the person entitled thereto as such address shall appear in the Security Register.
Reference is hereby made to the further provisions of this Security set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as if set forth at
this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to
on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under
the Indenture or be valid or obligatory for any purpose.
(Signature Page Follows)
A-2-2
IN WITNESS WHEREOF, Weatherford International Ltd., a Bermuda exempted company, has caused
this instrument to be executed in its corporate name by the signature of its duly authorized
officer.
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WEATHERFORD INTERNATIONAL LTD.
a Bermuda exempted company
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By:
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Name:
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Title:
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DATED: September 23, 2010
TRUSTEES CERTIFICATE OF AUTHENTICATION
This is one of the 6.750% Senior Notes due 2040 referred to in the within-mentioned Indenture.
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DEUTSCHE BANK TRUST COMPANY AMERICAS,
by Deutsche Bank National Trust Company,
as Trustee
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By:
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Authorized Signatory
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By:
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Authorized Signatory
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A-2-3
[REVERSE OF NOTE]
WEATHERFORD INTERNATIONAL LTD.
a Bermuda exempted company
6.750% Senior Notes due 2040
This Security is one of a duly authorized issue of senior securities of Weatherford
International Ltd., a Bermuda exempted company (the
Company
) (herein called the
Securities
),
issued and to be issued in one or more series under an Indenture, dated as of October 1, 2003 (the
Original Indenture
) (the Original Indenture, as supplemented and amended by the Third
Supplemental Indenture thereto, dated as of February 26, 2009, and the Fourth Supplemental
Indenture thereto, dated September 23, 2010, among the Company, Weatherford International Ltd., a
Swiss joint-stock corporation (
Weatherford Switzerland
), Weatherford International, Inc., a
Delaware corporation (together with Weatherford Switzerland, the
Guarantors
), and Deutsche Bank
Trust Company Americas, as Trustee (herein called the
Trustee
, which term includes any successor
trustee under the Original Indenture and any supplements and amendments thereto) being collectively
referred to as the
Indenture
), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement, of the respective rights, limitations of rights, duties
and immunities thereunder of the Company, the Guarantors, the Trustee and the Holders of the
Securities and of the terms upon which the Securities are, and are to be, authenticated and
delivered. As provided in the Indenture, the Securities may be issued in one or more series, which
different series may be issued in various aggregate principal amounts, may mature at different
times, may bear interest, if any, at different rates, may be subject to different redemption
provisions, if any, may be subject to different sinking, purchase or analogous funds, if any, may
be subject to different covenants and Events of Default and may otherwise vary as in the Indenture
provided or permitted. This Security is one of the series designated on the face hereof.
This Security is the general, unsecured, senior obligation of the Company and is guaranteed
pursuant to guarantees (the
Guarantees
) by each of the Guarantors on a joint and several basis.
The Guarantees are the general, unsecured, senior obligation of the Guarantors.
The Securities are subject to redemption upon not less than 30 nor more than 60 days notice
by mail, at any time, as a whole or in part, at the election of the Company at a Redemption Price
equal to the greater of: (a) 100% of the principal amount of Securities then outstanding to be
redeemed, plus accrued and unpaid interest thereon to the redemption date; or (b) the sum of the
present values of the remaining scheduled payments of principal and interest on the Securities then
outstanding to be redeemed (not including any portion of such payments of interest accrued as of
the redemption date), discounted to the redemption date on a semi-annual basis (computed based on a
360-day year consisting of twelve 30-day months) at the Adjusted Treasury Rate, plus 45 basis
points (0.45%), as calculated by an Independent Investment Banker, plus accrued and unpaid interest
thereon to the redemption date; but interest installments whose Stated Maturity is on or prior to
such Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor
Securities, of record at the close of business on the relevant Record Dates referred to on the face
hereof, all as provided in the Indenture.
Adjusted Treasury Rate
means, with respect to any redemption date: (a) the yield, under the
heading which represents the average for the immediately preceding week, appearing in the most
recently published statistical release designated H.15(519) or any successor publication which is
published weekly by the Board of Governors of the Federal Reserve System and which establishes
yields on actively traded United States Treasury securities adjusted to constant maturity under the
caption Treasury Constant Maturities, for the maturity corresponding to the Comparable Treasury
Issue (if no maturity is within three months before or after the remaining life, as defined below,
yields for the two published maturities most closely corresponding to the Comparable Treasury Issue
will be determined and the Adjusted Treasury Rate will be interpolated or extrapolated from such
yields on a straight-line basis, rounding to the nearest month); or (b) if such release (or any
successor release) is not published during the week preceding the calculation date or does not
contain such yields, the rate per year equal to the semi-annual equivalent yield to maturity of the
Comparable Treasury Issue, calculated using a price for the Comparable Treasury Issue (expressed as
a percentage of its principal amount) equal to the Comparable Treasury Price for such redemption
date. The Adjusted Treasury Rate will be calculated on the third business day preceding the
redemption date.
Comparable Treasury Issue
means the United States Treasury security selected by an
Independent Investment Banker as having a maturity comparable to the remaining term of the
Securities to be redeemed that would be used, at the time of selection and in accordance with
customary financial practice, in pricing new issues of corporate debt securities of comparable
maturity to the remaining term of such Securities.
A-2-4
Comparable Treasury Price
means (1) the average of five Reference Treasury Dealer Quotations
for the redemption date, after excluding the highest and lowest Reference Treasury Dealer
Quotations, or (2) if an Independent Investment Banker obtains fewer than five such Reference
Treasury Dealer Quotations, the average of all such quotations.
Independent Investment Banker
means Deutsche Bank Securities Inc., Morgan Stanley & Co.
Incorporated, UBS Securities LLC or J.P. Morgan Securities LLC or any of their respective
successors, as designated by the Company, or if all such firms are unwilling or unable to serve as
such, an independent investment and banking institution of national standing appointed by the
Company.
Reference Treasury Dealer
means: (a) Deutsche Bank Securities Inc., Morgan Stanley & Co.
Incorporated, UBS Securities LLC or J.P. Morgan Securities LLC and each of their respective
successors; provided that, if any such Reference Treasury Dealer ceases to be a primary U.S.
Government securities dealer in the United States (Primary Treasury Dealer), the Company will
substitute another Primary Treasury Dealer; and (b) up to one other Primary Treasury Dealer
selected by the Company.
Reference Treasury Dealer Quotations
means, with respect to each Reference Treasury Dealer
and any redemption date, the average, as determined by an Independent Investment Banker, of the bid
and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) quoted in writing to an Independent Investment Banker at 3:00 p.m., New York City
time, on the third business day preceding such redemption date.
In the event of redemption of this Security in part only, a new Security or Securities of this
series and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder
hereof upon the cancellation hereof.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and
the modification of the rights and obligations of the Company and the Guarantors and the rights of
the Holders of the Securities of each series to be affected under the Indenture at any time by the
Company and the Guarantors and the Trustee with the consent of the Holders of a majority in
aggregate principal amount of the Securities at the time Outstanding of each series to be affected.
The Indenture also contains provisions permitting the Holders of specified percentages in aggregate
principal amount of the Securities of each series at the time Outstanding, on behalf of the Holders
of all Securities of such series, to waive compliance by the Company and the Guarantors with
certain provisions of the Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and
binding upon such Holder and upon all future Holders of this Security and of any Security issued
upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security or of the Indenture
shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay
the principal of (and premium, if any) and interest on this Security at the times, place(s) and
rate, and in the coin or currency, herein prescribed.
This Global Security or portion hereof may not be exchanged for Definitive Securities of this
series except in the limited circumstances provided in the Indenture. The holders of beneficial
interests in this Global Security will not be entitled to receive physical delivery of Definitive
Securities except as described in the Indenture and will not be considered the Holders thereof for
any purpose under the Indenture.
The Securities are issuable only in registered form without coupons in denominations of U.S.
$2,000 and any integral multiple of $1,000 in excess thereof. As provided in the Indenture and
subject to certain limitations therein set forth, Securities of this series are exchangeable for a
like aggregate principal amount of Securities of this series and of like tenor of a different
authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or exchange, but the
Company may require payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the Company, the
Guarantors, the Trustee and any agent of the Company, the Guarantors or the Trustee may treat the
Person in whose name this Security is registered as the owner hereof for all purposes, whether or
not this Security be overdue, and none of the Company, the Guarantors, the Trustee nor any such
agent shall be affected by notice to the contrary.
A-2-5
No recourse under or upon any obligation, covenant or agreement of or contained in the
Indenture or of or contained in any Security, or the Guarantees endorsed thereon, or for any claim
based thereon or otherwise in respect thereof, or in any Security or in the Guarantees, or because
of the creation of any indebtedness represented thereby, shall be had against any incorporator,
shareholder, member, officer, manager or director, as such, past, present or future, of the Company
or the Guarantors or of any successor Person, either directly or through the Company or the
Guarantors or any successor Person, whether by virtue of any constitution, statute or rule of law,
or by the enforcement of any assessment, penalty or otherwise; it being expressly understood that
all such liability is hereby expressly waived and released by the acceptance hereof and as a
condition of, and as part of the consideration for, the Securities and the execution of the
Indenture.
The Indenture provides that the Company and the Guarantors (a) will be discharged from any and
all obligations in respect of the Securities (except for certain obligations described in the
Indenture), or (b) need not comply with certain restrictive covenants of the Indenture, in each
case if the Company or a Guarantor deposits, in trust, with the Trustee money or U.S. Government
Obligations (or a combination thereof) which through the payment of interest thereon and principal
thereof in accordance with their terms will provide money, in an amount sufficient to pay all the
principal of and interest on the Securities, but such money need not be segregated from other funds
except to the extent required by law.
As more fully provided in the Indenture, no Holder may pursue any remedy under the Indenture
unless the Trustee shall have failed to act after notice of an Event of Default and written request
by Holders of at least 25% in principal amount of a series of the Securities and the offer to the
Trustee of indemnity satisfactory to it; however, such provision does not affect the right to sue
for enforcement of any overdue payment on any Security.
Except as otherwise defined herein, all terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
Customary abbreviations may be used in the name of a Holder or any assignee, such as: TEN COM
( = tenants in common), TEN ENT ( = tenants by the entireties), JT TEN ( = joint tenants with right
of survivorship and not as tenants in common), CUST ( = Custodian) and U/G/M/A ( = Uniform Gifts to
Minors Act).
The Company will furnish to any holder of record of this Security, upon written request,
without charge, a copy of the Indenture. Requests may be made to: Weatherford International Ltd.,
515 Post Oak Blvd., Suite 600, Houston, Texas 77027, Attention: Corporate Secretary.
This Security shall be governed by and construed in accordance with the laws of the State of
New York without regard to any principles of conflicts of law thereof that would result in the
application of the laws of any other jurisdiction.
A-2-6
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
(Please Print or Typewrite Name and Address of Assignee)
the within instrument of WEATHERFORD INTERNATIONAL LTD., a Bermuda exempted company, and does
hereby irrevocably constitute and appoint
Attorney to transfer said instrument on the books of the within-named Company, with full power of
substitution in the premises.
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Please Insert Social Security or
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Other Identifying Number of Assignee:
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Dated:
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(Signature)
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Signature
Guarantee:
(Participant in a Recognized Signature
Guaranty Medallion Program)
NOTICE: The signature to this assignment must correspond with the name as written upon the
face of the within instrument in every particular, without alteration or enlargement or any change
whatever.
A-2-7
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company pursuant to Section 10.10
or 11.6 of the Indenture, check the appropriate box below:
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o
Section 10.10
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o
Section 11.6
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If you want to elect to have only part of the Security purchased by the Company pursuant to
Section 10.10 or Section 11.6 of the Indenture, state the amount you elect to have purchased:
$
_____________________________
Date:
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Your Signature:
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(Sign exactly as your name appears on the face of this Security)
Tax Identification No.:
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Signature Guarantee*:
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*
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Participant in a recognized Signature Guarantee Medallion Program
(or other signature guarantor acceptable to the Trustee).
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A-2-8
SCHEDULE OF INCREASES OR DECREASES
IN GLOBAL SECURITY
The following increases or decreases in this Global Security have been made:
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Amount of
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Principal Amount of
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Decrease in
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Amount of Increase
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this Global Security
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Signature of
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Principal
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in Principal Amount
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following such
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authorized signatory
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Amount of this
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of this
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decrease
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of Trustee or
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Date of Exchange
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Global Security
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Global Security
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(or increase)
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Depositary
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A-2-9
EXHIBIT B
[FORM OF GUARANTEE NOTATION]
Each Guarantor (which term includes any successor Person in such capacity under the
Indenture), has fully, unconditionally and absolutely guaranteed, to the extent set forth in the
Indenture and subject to the provisions in the Indenture, the due and punctual payment of the
principal of, and premium, if any, and interest on the Securities of this series and all other
amounts due and payable under the Indenture and such Securities by the Company.
The obligations of the Guarantors to the Holders of Securities and to the Trustee pursuant to
the Guarantees and the Indenture are expressly set forth in Article Fourteen of the Indenture and
reference is hereby made to the Indenture for the precise terms of the Guarantees.
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Guarantors:
WEATHERFORD INTERNATIONAL LTD.
a Swiss joint-stock corporation
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By:
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Name:
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Title:
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WEATHERFORD INTERNATIONAL, INC.
a Delaware corporation
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By:
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Name:
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Title:
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B-1