UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): February 25, 2009
WEATHERFORD INTERNATIONAL LTD.
(Exact name of registrant as specified in charter)
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Switzerland
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333-135244-02
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98-0606750
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(State of Incorporation)
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(Commission File No.)
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(I.R.S. Employer Identification No.)
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Alpenstrasse 15, 6300 Zug, Switzerland
(Address of Principal Executive Offices)
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Not applicable
(Zip Code)
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Registrants telephone number, including area code: +41-41-729-4242
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the
filing obligation of the registrant under any of the following provisions (see General Instruction
A.2. below):
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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TABLE OF CONTENTS
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Item 1.01.
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Entry into a Material Definitive Agreement.
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Supplemental Indentures
On February 26, 2009, Weatherford International Ltd., a Swiss joint stock corporation
(Weatherford-Switzerland), Weatherford International Ltd., a Bermuda exempted company
(Weatherford-Bermuda), and Weatherford International Inc., a Delaware corporation
(Weatherford-Delaware), entered into supplemental indentures (the Supplemental Indentures),
with respect to the following indentures, pursuant to which Weatherford-Switzerland guarantees all
of Weatherford-Bermudas and Weatherford-Delawares liabilities and obligations under the
following:
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the Indenture, dated May 17, 1996, relating to $350,000,000 principal amount of
6.625% Senior Notes due 2011 issued by Weatherford-Delaware;
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Indenture, dated October 1, 2003, relating to the following debt securities
issued by Weatherford-Bermuda: (i) $250,000,000 principal amount of 4.95% Senior
Notes due 2013; (ii) $500,000,000 principal amount of 5.15% Senior Notes due 2013;
(iii) $350,000,000 principal amount of 5.50% Senior Notes due 2016; (iv)
$500,000,000 principal amount of 6.00% Senior Notes due 2018; (v) $600,000,000
principal amount of 6.50% Senior Notes due 2036; (vi) $500,000,000 principal amount
of 7.00% Senior Notes due 2038; (vii) $1,000,000,000 principal amount of 9.625%
Senior Notes due 2019; and (viii) $250,000,000 principal amount of 9.875% Senior
Notes due 2039; and
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Indenture, dated June 18, 2007, relating to the following debt securities issued
by Weatherford-Delaware: (i) $600,000,000 principal amount of 5.95% Senior Notes
due 2012; (ii) $600,000,000 principal amount of 6.35% Senior Notes due 2017; and
(iii) $300,000,000 principal amount of 6.80% Senior Notes due 2037.
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The Supplemental Indentures are filed as Exhibits 4.1, 4.2 and 4.3 to this Current Report on
Form 8-K and are incorporated herein by reference.
Warrant Assignment
On February 26, 2009, Weatherford-Switzerland and Weatherford-Bermuda entered into a
Warrant Assignment and Assumption Agreement (the Assignment Agreement) regarding
outstanding warrants to purchase an aggregate of 12.9 million common shares of
Weatherford-Bermuda, par value $1.00 per share (the
Weatherford-Bermuda Common Shares),
at an exercise price of $15.00 per share (collectively, the Warrants).
Under the Assignment Agreement, Weatherford-Bermuda assigned to Weatherford-Switzerland, and
Weatherford-Switzerland assumed, all of Weatherford-Bermudas rights and obligations under the
Warrants. As a result, the holders of the Warrants are entitled to receive, in accordance with the
terms of the Warrants, one Weatherford-Switzerland registered share (collectively, the
Weatherford-Switzerland Registered Shares) on exercise of the Warrants in lieu of each
Weatherford-Bermuda Common Share that they were entitled to receive upon
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exercise of the Warrants. The Assignment Agreement is filed as Exhibit 10.1 to this Current
Report on Form 8-K and is incorporated herein by reference.
Credit Facilities
Weatherford-Bermuda is a borrower under the following credit agreements (collectively, the
Credit Facilities):
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the Second Amended and Restated Credit Agreement dated as of May 2, 2006, among
Weatherford International Ltd., Weatherford International, Inc., Weatherford
Liquidity Management Hungary Limited Liability Company, JPMorgan Chase Bank as
Administrative Agent, and the other Lenders party thereto, which provides for a
$1.5 billion revolving credit facility;
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the Credit Agreement dated as of March 19, 2008, among Weatherford International
Ltd., Weatherford International, Inc., Deutsche Bank AG Cayman Islands Branch as
Administrative Agent, and the other Lenders party thereto, which provides for a
$250 million revolving credit facility; and
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the Credit Agreement dated as of October 20, 2008, among Weatherford
International Ltd., Weatherford International, Inc., UBS AG, Stamford Branch as
Administrative Agent, and the other Lenders party thereto, which provides for a
$500 million revolving credit facility.
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Weatherford-Switzerland executed a guarantee of each of the Credit Facilities (the Credit
Facility Guarantees). The Credit Facility Guarantees executed by Weatherford-Switzerland are
filed as Exhibits 10.2, 10.3 and 10.4 to this Current Report on Form 8-K and are incorporated
herein by reference.
Assumption and Amendment of Stock Plans
On February 25, 2009, Weatherford-Switzerland and Weatherford-Bermuda entered into an
Assumption and General Amendment Agreement pursuant to which, among others:
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Weatherford-Bermuda assigned to Weatherford-Switzerland, and
Weatherford-Switzerland assumed, the following equity incentive plans of
Weatherford-Bermuda, including all award or grant documents or agreements
thereunder: Weatherford International Ltd. Non-Employee Director Stock Option
Agreements; Weatherford International Ltd. 2006 Omnibus Incentive Plan;
Weatherford International Ltd. Restricted Share Plan; and Weatherford
International, Inc. 1998 Employee Stock Option Plan.
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Weatherford-Bermuda assigned to Weatherford-Switzerland, and
Weatherford-Switzerland assumed, the employment agreements between
Weatherford-Bermuda and each of Jessica Abarca, Andrew P. Becnel, M. David Colley,
Bernard J. Duroc-Danner, Stuart E. Ferguson, Carel W. Hoyer, James M. Hudgins, Burt
M. Martin and Keith R. Morley (the Executives), which agreements are dated
effective as of December 31, 2008.
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Weatherford-Bermuda assigned to Weatherford-Switzerland, and
Weatherford-Switzerland assumed, the obligations to issue or cause to be issued shares under the following benefit plans of Weatherford-Bermuda: Weatherford
International, Inc. Executive Deferred Compensation Stock Ownership Plan;
Weatherford International, Inc. Foreign Executive Deferred Compensation Stock Plan;
and Weatherford International Ltd. Deferred Compensation Plan for Non-Employee
Directors. The plans remain plans of Weatherford-Bermuda and were not assumed by
Weatherford-Switzerland.
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The Assumption and General Amendment Agreement also provides that references to
Weatherford-Bermuda in the employment agreements between Weatherford-Delaware and each of the
Executives, which agreements are dated effective as of January 1, 2009 (other than the agreements
of Messrs. Hudgins and Hoyer, which are dated effective as of February 9, 2009), will be references
to Weatherford-Switzerland. These employment agreements remain agreements of Weatherford-Delaware
and were not assumed by Weatherford-Switzerland. Further, references to Weatherford-Bermuda in the
equity-incentive plans, benefits plans and other employment agreements noted above were also
changed to references to Weatherford-Switzerland. Also, all awards or grants under the
equity-incentive plans continue to be exercisable, issuable, held, available or vest upon the same
terms and conditions as under the previously-existing awards or grants, except that upon the
exercise, issuance, holding, availability or vesting of those awards or grants,
Weatherford-Switzerland Registered Shares are now issuable or available, or benefits or other
amounts determined, in lieu of Weatherford-Bermuda Common Shares.
This agreement is effective as of immediately prior to the effective time of the Transaction
(as such term is defined in Item 8.01 below).
The Assumption and General Amendment Agreement is filed as Exhibit 10.5 to this Current Report
on Form 8-K and is incorporated by reference herein.
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Item 2.03
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Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
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The descriptions of the Supplemental Indentures and the Credit Facility Guarantees under Item
1.01 are incorporated herein by reference.
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Item 3.02
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Unregistered Sales of Equity Securities.
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On February 26, 2009, pursuant to the Transaction, each holder of Weatherford-Bermuda Common
Shares outstanding immediately before the Transaction received one Weatherford-Switzerland
Registered Share, in exchange for each outstanding common share of Weatherford-Bermuda.
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connection with the Transaction, Weatherford-Switzerland issued a
total of 697,802,003 Weatherford-Switzerland Registered Shares
(excluding Weatherford-Switzerland Registered Shares issued in
exchange for Weatherford-Bermuda Common Shares held in treasury) to the holders of Weatherford-Bermuda Common
Shares immediately prior to the effective time of the Transaction. The terms and conditions of the
issuance and exchange of the securities were sanctioned by the Supreme Court of Bermuda, after a
hearing upon the fairness of such terms and conditions at which all Weatherford-Bermuda
shareholders had a right to appear and of which adequate notice had been given. The issuance
was exempt from the registration requirements of the Securities Act of 1933, as amended (the
Securities Act), by virtue of Section 3(a)(10) of the Securities Act.
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Item 3.03
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Material Modification to Rights of Security Holders.
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The information included under Item 5.03 and Item 8.01 is incorporated herein by reference.
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Item 5.01
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Changes in Control of Registrant.
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The description of the Transaction under Item 8.01 is incorporated herein by reference.
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Item 5.02
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Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
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As of February 26, 2009, following the completion of the Transaction, the directors and
executive officers of Weatherford-Bermuda immediately prior to the Transaction became the directors
and executive officers of Weatherford-Switzerland. Weatherford-Bermudas directors carry their
terms of office over to the Weatherford-Switzerland board of directors; but such terms will expire
at the first general meeting of shareholders of Weatherford-Switzerland.
In connection with the completion of the Transaction,
all directors and executive officers of Weatherford-Switzerland will enter into indemnification agreements with each of its directors and
executive officers that provide for indemnification and expense advancement and include related
provisions intended to facilitate the indemnitees receipt of such benefits. A form of the
indemnification agreement is filed as Exhibit 10.6 to this Current Report on Form 8-K and is
incorporated herein by reference.
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Item 5.03
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Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
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On February 26, 2009, in connection with and effective upon completion of the Transaction,
Weatherford-Switzerland amended and restated its articles of association. The summary of the
material terms of the articles of association, as amended and restated, and the organizational
regulations and the comparison of the rights of shareholders under those documents described under
the headings Description of Weatherford-Switzerland Shares and Comparison of Rights of
Shareholders in Weatherford-Bermudas definitive proxy statement dated January 13, 2009 and filed
with the Securities and Exchange Commission (the Commission) on January 15, 2009 is incorporated
herein by reference. In addition, on February 26, 2009, in
conjunction with the completion of the Transaction,
Weatherford-Switzerlands par value per Weatherford-Switzerland
Registered Share was set at par value 1.16 Swiss francs per
share, the Swiss franc equivalent to US$1 par value per
Weatherford-Bermuda Common Share. The complete text of the articles of association and organizational
regulations of Weatherford-Switzerland are filed as Exhibits 3.1 and 3.2, respectively, to this
Current Report on Form 8-K and are incorporated herein by reference. The summary of the articles
of association and organizational regulations is qualified in its entirety by reference to Exhibits
3.1 and 3.2, respectively.
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On February 26, 2009, Weatherford-Bermuda and Weatherford-Switzerland completed a share
exchange transaction under the terms of a share exchange agreement, dated as of December 10, 2008
(the Share Exchange Agreement), effected by way of a scheme of arrangement under Bermuda law
(the Scheme of Arrangement), for purposes of changing
our place of incorporation from Bermuda to Switzerland (collectively, the Transaction). In the
Transaction, each holder of Weatherford-Bermuda Common Shares outstanding immediately prior to the
Transaction received one Weatherford-Switzerland Registered Share in exchange for each outstanding
Weatherford-Bermuda Common Share. As a result of the Transaction, Weatherford-Bermuda became a
direct, wholly-owned subsidiary of Weatherford-Switzerland. On February 26, 2009, Weatherford-Switzerland issued a press release
announcing the completion of the Transaction. The press release is attached as Exhibit 99.1.
Prior to the Transaction, the Weatherford-Bermuda Common Shares were registered pursuant to
Section 12(b) of the Securities Exchange Act of 1934, as amended (the Exchange Act), and listed
on the New York Stock Exchange (NYSE) under the symbol WFT. As a result of the Transaction, all
of the Weatherford-Bermuda Common Shares were exchanged for Weatherford-Switzerland Registered
Shares. Accordingly, Weatherford-Bermuda requested that the NYSE file with the Commission a Form 25
to remove the Weatherford-Bermuda Common Shares from listing on the NYSE. Weatherford-Bermuda
expects to file a Form 15 with the Commission to terminate the registration of the
Weatherford-Bermuda Common Shares and suspend its reporting obligations under Sections 13 and 15(d)
of the Exchange Act.
Pursuant to Rule 12g-3(a) promulgated under the Exchange Act, the Weatherford-Switzerland
Registered Shares are deemed registered under Section 12(b) of the Exchange Act. The
Weatherford-Switzerland Registered Shares were approved for listing on the NYSE and began trading
under the symbol WFT, the same symbol under which the Weatherford-Bermuda Common Shares
previously traded, on February 26, 2009.
Set forth below is a description of the share capital of Weatherford-Switzerland. For
purposes of the following description, references to the Company, we and our refer to
Weatherford-Switzerland.
DESCRIPTION OF SHARE CAPITAL OF WEATHERFORD-SWITZERLAND
The following description of our share capital is a summary. This summary is not complete and
is subject to the complete text of our articles of association and organizational regulations,
which are filed as Exhibits 3.1 and 3.2, respectively, to this Current Report on Form 8-K and
incorporated herein by reference. We encourage you to read those documents carefully.
Capital Structure
We only have one class of shares outstanding, so all references to voting rights in this
Description of Share Capital mean the voting rights of Weatherford-Switzerland Registered Shares,
unless another class of shares is subsequently created. Likewise, a majority of the par value of
the registered shares will mean a majority of the par value of
our registered shares, par value 1.16 Swiss francs per share.
Issued Share Capital
. Our registered share capital as of February 26, 2009 is approximately
845.5 million Swiss francs, comprised of approximately 728.9 million
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registered
shares, each with a par value of 1.16 Swiss francs per share,
including 31.1 million treasury shares.
Authorized Share Capital.
Our board of directors is authorized to issue new registered shares
at any time during the two-year period beginning February 26, 2009 and thereby increase our share
capital, by a maximum amount of 50% of the share capital registered in the commercial register
(which registered share capital currently is approximately 845.5 million Swiss francs, or
approximately 728.9 million registered
shares) without obtaining additional shareholder approval. After the expiration of this two-year
period, and each subsequent two-year period, authorized share capital will be available to the
board of directors for issuance of additional registered shares only if new authorized capital is
created to that effect by the shareholders.
The board of directors determines the time of the issuance, the issuance price, the manner in
which the new registered shares have to be paid in, the date from which the new registered shares
carry the right to dividends and the conditions for the exercise of the preferential subscription
rights with respect to the issuance and the allotment of preferential subscription rights that are
not exercised. The board of directors may allow preferential subscription rights that are not
exercised to expire, or it may place such rights or registered shares, the preferential
subscription rights of which have not been exercised, at market conditions or use them otherwise in
the interest of the Company.
In an authorized capital increase, our shareholders would have preferential subscription
rights to obtain newly issued registered shares in an amount proportional to the par value of the
registered shares they already hold. However, the board of directors may withdraw or limit these
preferential subscription rights in certain circumstances as set forth in our articles of
association. For further details on these circumstances, see Preferential Subscription Rights
and Advance Subscription Rights.
Conditional Share Capital.
Our articles of association provide for a conditional share capital
that permits the issuance of additional registered shares up to a maximum amount of 50% of the
share capital registered in the commercial register (which registered
share capital currently is
approximately 728.9 million
registered shares) without obtaining additional shareholder approval. These registered shares may
be issued:
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through the exercise of conversion, exchange, option, warrant or similar rights
for the subscription of shares granted to third parties or shareholders in connection
with bonds, options, warrants or other securities newly or already issued in national
or international capital markets or new or already existing contractual obligations by
or of the Company, one or more of our subsidiaries, or any of their respective
predecessors; or
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through the issuance of registered shares, options or other share-based awards
to directors, employees, contractors, consultants or other persons providing services
to us or our subsidiaries.
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The advance subscription rights and preferential subscription rights of shareholders shall be
excluded in connection with the issuance of any shares or rights entitling their holders to receive
or acquire any shares out of our conditional capital as set forth in our articles of association.
See Preferential Subscription Rights and Advance Subscription Rights below.
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Other Classes or Series of Shares.
The board of directors may not create shares with increased
voting powers without the affirmative resolution adopted by shareholders holding at least 66 2/3%
of the voting rights and a majority of the par value of the registered shares represented at a
general meeting. The shareholders may create preferred shares with a relative majority of the votes
cast at a general meeting.
Preferential Subscription Rights and Advance Subscription Rights
Under the Swiss Code of Obligations, which we refer to as the Swiss Code, the prior approval
of a general meeting of shareholders is required to authorize, for later issuance, the issuance of
registered shares, or rights to subscribe for, or convert into, registered shares (which rights may
be connected to debt instruments or other obligations). In addition, the existing shareholders will
generally have preferential subscription rights in relation to such registered shares for
authorized share capital and conditional share capital or advance subscription rights in relation
to such rights for conditional share capital in proportion to the respective par values of their
holdings.
If the general meeting of shareholders has approved the creation of authorized capital, it may
thereby delegate the decision whether to withdraw or limit the preferential subscription rights for
cause to the board of directors. Our articles of association provide for this delegation with
respect to our authorized share capital in the circumstances described below under Authorized
Share Capital. Furthermore, the advance subscription rights and preferential subscription rights
of shareholders shall be excluded in connection with the issuance of any shares or rights with
respect to our conditional share capital in the circumstances described below under Conditional
Share Capital.
Authorized Share Capital.
The board of directors is authorized to withdraw or limit the
preferential subscription rights with respect to the issuance of registered shares from the
authorized capital for cause, in particular if:
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the issue price of the new registered shares is determined by reference to the
then-prevailing market conditions;
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the registered shares are issued in connection with the acquisition of an
enterprise or business or any part of an enterprise or business, the financing or
refinancing of any such transactions or the financing of new investment plans of the
Company;
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the registered shares are issued in connection with the intended broadening of
the shareholder constituency of the Company in certain financial or investor markets,
for the purposes of the participation of strategic partners, or in connection with the
listing of the registered shares on domestic or foreign stock exchanges;
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in connection with a placement or sale of registered shares, the grant of an
over-allotment option (including options with respect to any security convertible into shares, such as convertible debt securities or otherwise) of up to 20% of the total
number of registered shares in a placement or sale of registered shares to the initial
purchasers or underwriters;
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for the participation in a benefit or other plan by directors, employees,
contractors, consultants and other persons performing services for our benefit or the
benefit of any of our subsidiaries; or
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if the shares to be issued will be issued for any consideration (including
debt, equity or assets of another company) other than for cash consideration.
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Conditional Share Capital.
In connection with the issuance of bonds, notes, warrants or other
financial instruments or contractual obligations convertible into or exercisable or exchangeable
for registered shares of the Company, the advance subscription rights and the preferential
subscription rights of shareholders are excluded with respect to registered shares issued from our
conditional share capital and to the relevant bond, note or other right issued by the Company.
Dividends
Under Swiss law, dividends may be paid out only if the corporation has sufficient
distributable profits from the previous fiscal year, or if the corporation has freely distributable
reserves, each as will be presented on the audited annual stand-alone statutory balance sheet.
Payments out of the registered share capital (in other words, the aggregate par value of our
registered share capital) in the form of dividends are not allowed; however, payments out of
registered share capital may be made by way of a capital reduction. The freely distributable
reserves of a Swiss corporation consist of the portion of its general reserves, other free
reserves, retained earnings and current net profits which is in excess of its restricted equity
(the concept of restricted equity covering primarily (1) the corporations share capital and (2)
its general reserve up to an amount equal to one half of the share capital or 20% in case of
holding companies). See Reduction of Share Capital for more information. Qualifying additional
paid-in capital may only be paid out as dividends to shareholders following approval by the
shareholders of a reclassification of such qualifying additional paid-in capital as freely
distributable reserves (to the extent permissible under the Swiss Code). We may seek to reclassify
part of our qualifying additional paid-in capital to freely distributable reserves, to the extent
that it exceeds 50% of our share capital. The affirmative vote of shareholders representing a
relative majority of the votes cast at a general meeting must approve reserve reclassifications and
distributions of dividends. The board of directors may propose to shareholders that a dividend be
paid but cannot itself authorize the dividend.
Under the Swiss Code, if our general reserves amount to less than 20% of the share capital
recorded in the commercial register (i.e., 20% of the aggregate par value of our registered
capital), then at least 5% of our annual profit must be retained as general reserves. The Swiss
Code and our articles of association permit us to accrue additional general reserves. In addition,
we are required to create a special reserve on our stand-alone annual statutory balance sheet in
the amount of the purchase price of registered shares that we or any of our subsidiaries
repurchase, which amount may not be used for dividends or subsequent repurchases.
Swiss companies generally must maintain a separate company, stand-alone statutory balance
sheet for the purpose of, among other things, determining the amounts available for the return of
capital to shareholders, including by way of a distribution of dividends. Our auditor must confirm
that a dividend proposal made to shareholders conforms with the requirements of the Swiss Code and
our articles of association. Dividends are usually due and payable shortly
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after the shareholders have passed a resolution approving the payment. Our articles of
association provide that dividends that have not been claimed within five years after the due date
become the property of the Company and are allocated to the general reserves.
We are required under Swiss law to declare any dividends and other capital distributions in
Swiss francs. We intend to make any dividend payments to holders of our shares in U.S. dollars,
unless the holders provide notice to our transfer agent, American Stock Transfer & Trust Company,
LLC, that they wish to receive dividend payments in Swiss francs. American Stock Transfer & Trust
Company, LLC will be responsible for paying the U.S. dollars or Swiss francs to registered holders
of shares, less amounts subject to withholding for taxes.
Repurchases of Registered Shares
The Swiss Code limits a companys ability to hold or repurchase its own registered shares. We
and our subsidiaries may only repurchase shares if and to the extent that sufficient freely
distributable reserves are available, as described above under Dividends. The aggregate par
value of all registered shares held by us and our subsidiaries may not exceed 10% of our registered
share capital. However, we may repurchase our own registered shares beyond the statutory limit of
10% if the shareholders have passed a resolution at a general meeting of shareholders authorizing
the board of directors to repurchase registered shares in an amount in excess of 10% and the
repurchased shares are dedicated for cancellation. Any registered shares repurchased pursuant to
such an authorization will then be cancelled at the next general meeting upon the approval of
shareholders representing a relative majority of the votes cast at the general meeting. Repurchased
registered shares held by us or our subsidiaries do not carry any rights to vote at a general
meeting of shareholders but are entitled to the economic benefits generally associated with the
shares.
Reduction of Share Capital
Capital distributions may also take the form of a distribution of cash or property that is
based upon a reduction of our share capital recorded in the commercial register. Such a capital
reduction requires the approval of shareholders representing a relative majority of the votes cast
at the general meeting. A special audit report must confirm that creditors claims remain fully
covered despite the reduction in the share capital recorded in the commercial register. Upon
approval by the general meeting of shareholders of the capital reduction, the board of directors
must give public notice of the capital reduction resolution in the Swiss Official Gazette of
Commerce three times and notify creditors that they may request, within two months of the third
publication, satisfaction of or security for their claims.
General Meetings of Shareholders
The general meeting of shareholders is our supreme corporate body. Ordinary and extraordinary
shareholders meetings may be held. The following powers will be vested exclusively in the
shareholders meeting:
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adoption and amendment of our articles of association;
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election of members of the board of directors and the auditor;
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approval of the annual business report, the stand-alone statutory financial
statements and the consolidated financial statements;
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payments of dividends and any other distributions of capital to shareholders
(excluding share repurchases below 10% of the registered share capital, to the extent
that sufficient freely distributable reserves are available);
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discharge of the members of the board of directors from liability for business
conducted during the previous fiscal year; and
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any other resolutions that are submitted to a general meeting of shareholders
pursuant to law, our articles of association or by voluntary submission by the board of
directors (unless a matter is within the exclusive competence of the board of directors
pursuant to the Swiss Code).
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Under the Swiss Code and our articles of association, we must hold an annual, ordinary general
meeting of shareholders within six months after the end of our fiscal year for the purpose, among
other things, of approving the annual financial statements and the annual business report, and the
annual election of directors for the class whose term has expired. The invitation to general
meetings must be published in the Swiss Official Gazette of Commerce and sent to the shareholders
of record at least 20 calendar days prior to the relevant general meeting of shareholders. The
notice of a meeting must state the items on the agenda and the proposals of the board of directors
and of the shareholders who demanded that a shareholders meeting be held or that an item be
included on the agenda and, in case of elections, the names of the nominated candidates. No
resolutions may be passed at a shareholders meeting concerning agenda items for which proper notice
was not given. This does not apply, however, to proposals made during a shareholders meeting to
convene an extraordinary shareholders meeting or to initiate a special investigation. No previous
notification will be required for proposals concerning items included on the agenda or for debates
as to which no vote is taken.
Annual general meetings of shareholders may be convened by the board of directors or, under
certain circumstances, by the auditor. A general meeting of shareholders must generally be held at
or near the place of incorporation of the Company, as decided by the board of directors of the
Company.
An extraordinary general meeting of the Company may be called upon the resolution of the board
of directors or, under certain circumstances, by the auditor. In addition, the board of directors
is required to convene an extraordinary general meeting of shareholders if so resolved by the
general meeting of shareholders, or if so requested by shareholders holding an aggregate of at
least 10% of the registered shares, specifying the items for the agenda and their proposals, or if
it appears from the stand-alone annual statutory balance sheet that half of the Companys share
capital and reserves are not covered by the Companys assets. In the latter case, the board of
directors must immediately convene an extraordinary general meeting of shareholders and propose
financial restructuring measures.
Under our articles of association, any shareholder satisfying the formal requirements of the
Swiss Code may request that an item be included on the agenda of a general meeting of shareholders.
Such shareholder may also nominate one or more directors for election.
10
Shareholder proposals to be included in the proxy materials for an annual general meeting must
comply with Rule 14a-8 promulgated by the Commission to be considered for inclusion in the proxy
statement for that meeting. For any matters submitted outside the process of Rule 14a-8, a request
for inclusion of an item on the agenda or a nominee must be in writing and requested at least 60
and no more than 90 calendar days prior to the scheduled and announced date of the next general
meeting of shareholders. The request must specify the relevant agenda items and motions, together
with evidence of the required shares recorded in the share register, as well as any other
information as would be required to be included in a proxy statement pursuant to the rules of the
Commission.
Under the Swiss Code, a general meeting of shareholders for which a notice of meeting has been
duly published or communicated may not be adjourned without publishing or communicating a new
notice of meeting.
Our annual report and auditors report must be made available for inspection by the
shareholders at our place of incorporation no later than 20 days prior to the meeting. Each
shareholder is entitled to request immediate delivery of a copy of these documents free of charge.
Shareholders of record will be notified of this in writing.
Voting
Each registered share carries one vote at a general meeting of shareholders. Voting rights may
be exercised by shareholders registered in our share register or by a duly appointed proxy of a
registered shareholder, which proxy need not be a shareholder. Our articles of association do not
limit the number of registered shares that may be voted by a single shareholder.
Treasury shares, whether owned by us or one of our majority-owned subsidiaries, will not be
entitled to vote at general meetings of shareholders.
Pursuant to our articles of association, the shareholders generally take resolutions and
decide elections upon a relative majority of the votes cast at the general meeting of shareholders
(broker non-votes, abstentions and blank and invalid ballots and withdrawals shall be disregarded),
unless otherwise provided by law or our articles of association. If the number of directors
nominated for election is greater than the number of directors to be elected, the persons receiving
the most votes (up to the number of directors to be elected) will be elected as directors. Our
articles of association do not provide for cumulative voting for election of directors.
The acting chair may direct that elections be held by use of an electronic voting system.
Electronic resolutions and elections are considered equal to resolutions and elections taken by way
of a written ballot.
The Swiss Code and/or our articles of association require the affirmative vote of at least
two-thirds of the voting rights and a majority of the par value of the registered shares, each as
represented at a general meeting, to approve the following matters:
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the amendment to or the modification of the purpose of the Company;
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the creation or cancellation of shares with privileged voting rights;
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11
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the restriction on the transferability of shares and any amendment in relation
thereto;
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the restriction on the exercise of the right to vote and any amendment in
relation thereto;
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an authorized or conditional increase in the nominal share capital;
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an increase in the nominal share capital through (1) the conversion of capital
surplus, (2) a contribution in kind for an acquisition of assets, or (3) a grant of
special privileges;
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the limitation or withdrawal of preferential subscription rights or advance
subscription rights;
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a change in the place of incorporation of the Company;
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the conversion of registered shares into bearer shares and vice versa;
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the dissolution of the Company; and
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the removal of a member of the board of directors.
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The same supermajority voting requirements apply to resolutions in relation to transactions
among corporations based on Switzerlands Federal Act on Mergers, Demergers, Transformations and
the Transfer of Assets, which we refer to as the Merger Act, including a merger, demerger or
conversion of a corporation (other than a cash-out or certain squeeze-out mergers, in which
minority shareholders of the company being acquired may be compensated in a form other than through
shares of the acquiring company, for instance, through cash or securities of a parent company of
the acquiring company or of another company in such a merger, an affirmative vote of 90% of the
outstanding registered shares is required). Swiss law may also impose this supermajority voting
requirement in connection with the sale of all or substantially all of its assets by us. See
Appraisal Rights and Compulsory Acquisitions.
Quorum for General Meetings
The presence of shareholders, in person or by proxy, holding at least two-thirds of the
registered shares recorded in our share register and generally entitled to vote at a meeting, is a
quorum for the transaction of the following business:
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the adoption of a resolution with respect to the removal of a serving director;
and
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the adoption of a resolution to amend Article 21 which sets forth the quorum
at a general meeting required for certain matters, Articles 18 and 20 which set
forth the level of shareholder approval required for certain matters, Article 23
which sets forth the term of office of a director and Article 24 which sets forth
the organization and remuneration of the board of directors.
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The presence of shareholders, in person or by proxy, holding at least one-third of the
registered shares recorded in our share register and generally entitled to vote at a meeting, is a
quorum for the transaction of any other business.
12
Under the Swiss Code, the board of directors has no authority to waive quorum requirements
stipulated in the articles of association.
Inspection of Books and Records
Under the Swiss Code, a shareholder has a right to seek information from the board of
directors with regard to the information in the share register concerning his own shares and
otherwise to the extent necessary to exercise his shareholder rights. No other person has a right
to inspect the share register. The books and correspondence of a Swiss company may be inspected
with the express authorization of the general meeting of shareholders or by resolution of the board
of directors and subject to the safeguarding of the Companys business secrets. At a general
meeting of shareholders, any shareholder is entitled to request information from the board of
directors concerning the affairs of the Company. Shareholders may also ask the auditor questions
regarding its audit of the Company. The board of directors and the auditor must answer
shareholders questions to the extent necessary for the exercise of shareholders rights and
subject to prevailing business secrets or other material interests of the Company.
Special Investigation
If the shareholders inspection and information rights as outlined above prove to be
insufficient, any shareholder may propose to the general meeting of shareholders that specific
facts be examined by a special commissioner in a special investigation. If the general meeting of
shareholders approves the proposal, we or any shareholder may, within 30 calendar days after the
general meeting of shareholders, request the court at our registered office to appoint a special
commissioner. If the general meeting of shareholders rejects the request, one or more shareholders
representing at least 10% of the share capital or holders of registered shares in an aggregate par
value of at least two million Swiss francs may request the court to appoint a special commissioner.
The court will issue such an order if the petitioners can credibly establish that the board of
directors, any member of the board or an officer of the Company infringed the law or our articles
of association and thereby damaged the Company or the shareholders. The costs of the investigation
would generally be allocated to the Company and only in exceptional cases to the petitioners.
Appraisal Rights and Compulsory Acquisitions
Business combinations and other transactions that are binding on all shareholders are governed
by the Merger Act. A statutory merger or demerger requires that at least 66 2/3% of the registered
shares and a majority of the par value of the registered shares represented at the general meeting
of shareholders vote in favor of the transaction. Under the Merger Act, a demerger may take two
forms:
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a legal entity may divide all of its assets and transfer such assets to other
legal entities, with the shareholders of the transferring entity receiving equity
securities in the acquiring entities and the transferring entity dissolving upon
deregistration in the commercial register; or
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a legal entity may transfer all or a portion of its assets to other legal
entities, with the shareholders of the transferring entity receiving equity securities
in the acquiring entities.
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13
If a transaction under the Merger Act receives all of the necessary consents, all shareholders
would be compelled to participate in the transaction. See Voting.
Swiss companies may be acquired by an acquirer through the direct acquisition of the share
capital of the Swiss company. With respect to corporations, such as the Company, that are limited
by shares, the Merger Act provides for the possibility of a so-called cash-out or squeeze-out
merger if the acquirer controls 90% of the outstanding registered shares. In these limited
circumstances, minority shareholders of the company being acquired may be compensated in a form
other than through shares of the acquiring company (for instance, through cash or securities of a
parent company of the acquiring company or of another company). For business combinations effected
in the form of a statutory merger or demerger and subject to Swiss law, the Merger Act provides
that if the equity rights have not been adequately preserved or compensation payments in the
transaction are unreasonable, a shareholder may request the competent court to determine a
reasonable amount of compensation.
In addition, under Swiss law, the sale of all or substantially all of its assets by the
Company may require a resolution of the general meeting of shareholders passed by holders of at
least two-thirds of the voting rights and a majority of the par value of the registered shares,
each as represented at the general meeting of shareholders. Whether or not a shareholder resolution
is required depends on the particular transaction, including whether the following test is
satisfied:
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the Company sells a core part of its business, without which it is economically
impracticable or unreasonable to continue to operate the remaining business;
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the Companys assets, after the divestment, are not invested in accordance with
the Companys statutory business purpose; and
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the proceeds of the divestment are not earmarked for reinvestment in accordance
with the Companys business purpose but, instead, are intended for distribution to
shareholders or for financial investments unrelated to the Companys business.
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If all of the foregoing apply, a shareholder resolution would likely be required.
Anti-Takeover Provisions
Our articles of association have provisions that could have an anti-takeover effect. These
provisions are intended to enhance the likelihood of continuity and stability in the composition of
the board of directors and in the policies formulated by the board of directors, and may have the
effect of discouraging actual or threatened changes of control by limiting certain actions that may
be taken by a potential acquirer prior to its having obtained sufficient control to adopt a special
resolution amending our articles of association.
Under the Swiss Code, directors may at any time, with or without cause, be removed from office
by resolution of the shareholders at a general meeting of shareholders, provided that a proposal
for such resolution has been put on the agenda for the meeting in accordance with the requirements
of the Swiss Code and our articles of association. Our articles of association provide that a
decision of the shareholders at a general meeting to remove a director requires the vote of
shareholders holding at least 66 2/3% of the voting rights and the absolute majority of the
registered shares represented at that meeting as well as a quorum of at least two-thirds of
the registered shares recorded in our share register.
14
Under Swiss law, there is generally no prohibition of business combinations with interested
shareholders. However, in certain circumstances, shareholders and members of the board of directors
of Swiss companies, as well as certain persons associated with them, must refund any payments they
receive that are not made on an arms length basis.
Our articles of association include an authorized share capital, according to which the board
of directors is authorized, at any time during a maximum two-year period, to issue a number of
registered shares up to 50% of the share capital registered in the commercial register and to limit
or withdraw the preferential subscription rights of the existing shareholders for a proper cause.
For other provisions that could be considered to have an anti-takeover effect, see
Preferential Subscription Rights and Advance Subscription Rights General Meetings of
Shareholders and Voting above.
Legal Name; Formation; Fiscal Year; Registered Office
The legal and commercial name of the Company is Weatherford International Ltd. We were
initially formed, and our articles of association registered, on
November 26, 2008, which articles of association were amended
and restated, as described herein, in conjunction with the completion
of the Transaction. We are
incorporated and domiciled in Zug, Canton of Zug, Switzerland and operate under the Swiss Code as a
stock corporation (Aktiengesellschaft). We are recorded in the Commercial Register of the Canton of
Zug with the registration number CH-170.3.032 888-3. Our fiscal year is the calendar year, but our
first fiscal year following our formation will run from November 26, 2008 to December 31, 2009, as
permitted by Swiss law.
The address of our registered office is Weatherford International Ltd., Alpenstrasse 15, 6300
Zug, Switzerland, and the telephone number at that address is +41-41-729-4242.
Corporate Purpose
Our business purpose is to acquire, hold, administer and transfer participations in entities
in Switzerland and abroad, either directly or indirectly, in particular in entities which are
active in the field of services providing with respect to the acquisition and production of natural
energy and of the financing of such activities. We may also acquire, administer and transfer
patents, trademarks and technical and industrial know-how as well as real estate assets, and engage
in any commercial, financial or other activities which are directly or indirectly related to these
purposes. We may also participate in the financing, including by providing of guarantees and
sureties, of affiliates of the Company.
Duration; Dissolution; Rights upon Liquidation
The duration of the Company is unlimited. We may be dissolved at any time with the approval of
shareholders holding two-thirds of the voting rights and a majority of the par value of the
registered shares represented at a general meeting. Dissolution by court order is possible in the
event of our bankruptcy, or for cause at the request of shareholders holding at least 10% of our
share capital. Under Swiss law, any surplus arising out of liquidation, after the settlement of
all claims of all creditors, will be distributed to shareholders in proportion to the paid-up
par value of registered shares held, subject to Swiss withholding tax requirements.
15
Certificated and Uncertificated Shares
We are authorized to issue registered shares in certificated or uncertificated form.
Stock Exchange Listing
Our registered shares are listed for trading on the NYSE under the symbol WFT.
No Sinking Fund
The registered shares have no sinking fund provisions.
No Redemption and Conversion
The registered shares are not convertible into shares of any other class or series or subject
to redemption either by us or the holder of the shares.
Transfer and Registration of Shares
We have not imposed any restrictions applicable to the transfer of our registered shares. Our
share register will initially be kept by American Stock Transfer & Trust Company, LLC, which acts
as transfer agent and registrar. The share register reflects only record owners of our shares.
Swiss law does not recognize fractional share interests.
16
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Item 9.01
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Financial Statements and Exhibits.
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Exhibit Number
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Description
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3.1
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Articles of Association of Weatherford International Ltd.,
a Swiss joint stock corporation.
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3.2
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Organizational Regulations of
Weatherford International Ltd., a Swiss joint stock corporation.
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4.1
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Fifth Supplemental Indenture, dated as of February 26,
2009, among Weatherford International, Inc., a Delaware
corporation, Weatherford International Ltd., a Bermuda
exempted company, Weatherford International Ltd., a Swiss joint stock
corporation, and The Bank of New York, as successor
trustee, to the Indenture dated as of May 17, 1996 (the
1996 Indenture).
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4.2
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Third Supplemental Indenture, dated as of February 26,
2009, among Weatherford International Ltd., a Bermuda
exempted company, Weatherford International, Inc., a
Delaware corporation, Weatherford International Ltd., a
Swiss joint stock corporation, and Deutsche Bank Trust Company
Americas, as trustee, to the Indenture dated as of October
1, 2003 (the 2003 Indenture).
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4.3
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Second Supplemental Indenture, dated as of February 26,
2009, among Weatherford International, Inc., a Delaware
corporation, Weatherford International Ltd., a Bermuda
exempted company, Weatherford International Ltd., a Swiss joint stock
corporation, and Deutsche Bank Trust Company Americas, as
trustee, to the Indenture dated as of June 18, 2007 (the
2007 Indenture).
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5.1
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Opinion of Baker & McKenzie Geneva relating to the
guarantees of Weatherford International Ltd., a Swiss joint stock
corporation, with respect to the 9.625% Senior Notes due
2019 and 9.875% Senior Notes due 2039, issued by
Weatherford International Ltd., a Bermuda exempted company,
under the 2003 Indenture.
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5.2
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Opinion of Andrews Kurth relating to the guarantees of
Weatherford International Ltd., a Swiss joint stock corporation, with
respect to the 9.625% Senior Notes due 2019 and 9.875%
Senior Notes due 2039, issued by Weatherford International
Ltd., a Bermuda exempted company, under the 2003 Indenture.
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10.1
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Warrant Assignment and Assumption Agreement, dated February
26, 2009, between Weatherford International Ltd., a Bermuda
exempted company, and Weatherford International Ltd., a
Swiss joint stock corporation.
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10.2
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Guaranty
Agreement, dated as of February 26, 2009, by Weatherford
International Ltd., a Swiss joint stock corporation, in favor
of the lenders and certain other parties under the Second
Amended and Restated Credit Agreement dated as of May 2,
2006, among Weatherford International Ltd., a Bermuda
exempted company, Weatherford
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17
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International, Inc., Weatherford Liquidity Management Hungary Limited Liability
Company, JPMorgan Chase Bank as Administrative Agent, and
the other Lenders party thereto.
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10.3
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Guaranty Agreement, dated as of February 26, 2009, by
Weatherford International Ltd., a Swiss joint stock corporation, in
favor of the lenders and certain other parties under the
Credit Agreement dated as of March 19, 2008, among
Weatherford International Ltd., a Bermuda exempted company,
Weatherford International, Inc., Deutsche Bank AG Cayman
Islands Branch as Administrative Agent, and the other
Lenders party thereto.
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10.4
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Guaranty Agreement, dated as of February 26, 2009, by
Weatherford International Ltd., a Swiss joint stock corporation, in
favor of the lenders and certain other parties under the
Credit Agreement dated as of October 20, 2008, among
Weatherford International Ltd., a Bermuda exempted company,
Weatherford International, Inc., UBS AG, Stamford Branch as
Administrative Agent, and the other Lenders party thereto.
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10.5
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Assumption and General Amendment Agreement, dated February
25, 2009, between Weatherford International Ltd., a Bermuda
exempted company, and Weatherford International Ltd., a
Swiss joint stock corporation.
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10.6
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Form
of Indemnification Agreement of Weatherford International Ltd., a
Swiss joint stock corporation, for use with directors and
executive officers.
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99.1
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Press
Release dated February 26, 2009.
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18
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly
caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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Date: February 26, 2009
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WEATHERFORD INTERNATIONAL LTD.,
a Swiss corporation
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By:
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/s/ Burt M. Martin
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Name:
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Burt M. Martin
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Title:
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Senior Vice President
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19
EXHIBIT INDEX
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Exhibit Number
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Description
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3.1
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Articles of Association of Weatherford International Ltd.,
a Swiss joint stock corporation.
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3.2
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Organizational Regulations of
Weatherford International Ltd., a Swiss joint stock corporation.
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4.1
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Fifth Supplemental Indenture, dated as of February 26,
2009, among Weatherford International, Inc., a Delaware
corporation, Weatherford International Ltd., a Bermuda
exempted company, Weatherford International Ltd., a Swiss joint stock
corporation, and The Bank of New York, as successor
trustee, to the Indenture dated as of May 17, 1996 (the
1996 joint stock Indenture).
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4.2
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Third Supplemental Indenture, dated as of February 26,
2009, among Weatherford International Ltd., a Bermuda
exempted company, Weatherford International, Inc., a
Delaware corporation, Weatherford International Ltd., a
Swiss joint stock corporation, and Deutsche Bank Trust Company
Americas, as trustee, to the Indenture dated as of October
1, 2003 (the 2003 Indenture).
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4.3
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Second Supplemental Indenture, dated as of February 26,
2009, among Weatherford International, Inc., a Delaware
corporation, Weatherford International Ltd., a Bermuda
exempted company, Weatherford International Ltd., a Swiss joint stock
corporation, and Deutsche Bank Trust Company Americas, as
trustee, to the Indenture dated as of June 18, 2007 (the
2007 Indenture).
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5.1
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Opinion of Baker & McKenzie Geneva relating to the
guarantees of Weatherford International Ltd., a Swiss joint stock
corporation, with respect to the 9.625% Senior Notes due
2019 and 9.875% Senior Notes due 2039, issued by
Weatherford International Ltd., a Bermuda exempted company,
under the 2003 Indenture.
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5.2
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Opinion of Andrews Kurth relating to the guarantees of
Weatherford International Ltd., a Swiss joint stock corporation, with
respect to the 9.625% Senior Notes due 2019 and 9.875%
Senior Notes due 2039, issued by Weatherford International
Ltd., a Bermuda exempted company, under the 2003 Indenture.
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10.1
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Warrant Assignment and Assumption Agreement, dated February
26, 2009, between Weatherford International Ltd., a Bermuda
exempted company, and Weatherford International Ltd., a
Swiss joint stock corporation.
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10.2
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Guaranty Agreement, dated as of February 26,
2009, by Weatherford International Ltd., a
Swiss joint stock corporation, in favor
of the lenders and certain other parties under the Second
Amended and Restated Credit Agreement dated as of May 2,
2006, among Weatherford International Ltd., a Bermuda
exempted company, Weatherford International, Inc.,
Weatherford Liquidity Management Hungary Limited Liability
Company, JPMorgan Chase Bank as Administrative Agent, and
the other Lenders party thereto.
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20
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10.3
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Guaranty Agreement, dated as of February 26, 2009, by
Weatherford International Ltd., a Swiss joint stock corporation, in
favor of the lenders and certain other parties under the
Credit Agreement dated as of March 19, 2008, among
Weatherford International Ltd., a Bermuda exempted company,
Weatherford International, Inc., Deutsche Bank AG Cayman
Islands Branch as Administrative Agent, and the other
Lenders party thereto.
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10.4
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Guaranty Agreement, dated as of February 26, 2009, by
Weatherford International Ltd., a Swiss joint stock corporation, in
favor of the lenders and certain other parties under the
Credit Agreement dated as of October 20, 2008, among
Weatherford International Ltd., a Bermuda exempted company,
Weatherford International, Inc., UBS AG, Stamford Branch as
Administrative Agent, and the other Lenders party thereto.
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10.5
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Assumption and General Amendment Agreement, dated February
25, 2009, between Weatherford International Ltd., a Bermuda
exempted company, and Weatherford International Ltd., a
Swiss joint stock corporation.
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10.6
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Form
of Indemnification Agreement of Weatherford International Ltd., a
Swiss joint stock corporation, for use with directors and
executive officers.
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99.1
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Press
Release dated February 26, 2009.
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21
Exhibit 3.1
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ARTICLES OF ASSOCIATION
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STATUTEN
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of
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der
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Weatherford International Ltd.
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Weatherford International Ltd.
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in Zug
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in Zug
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___
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___
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SECTION 1 NAME, PLACE OF
INCORPORATION, PURPOSE AND DURATION
OF THE COMPANY
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ABSCHNITT 1 FIRMA, SITZ, DAUER UND
ZWECK DER GESELLSCHAFT
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Article 1 Name, Place of
Incorporation
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Artikel 1 Firma, Sitz
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Under the name Weatherford
International Ltd. (the
Company
)
there exists a corporation with its
place of incorporation in Zug,
Canton of Zug, Switzerland.
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Unter der Firma Weatherford
International Ltd. (die
Gesellschaft
) besteht eine
Aktiengesellschaft mit Sitz in Zug,
Kanton Zug, Schweiz.
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Unless otherwise defined in these
Articles of Association, capitalized
terms shall have the meaning
ascribed to such terms in Article 35
hereof.
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Sofern in diesen Statuten nichts
anderes bestimmt wird, haben
definierte Begriffe die in Artikel
35 festgelegte Bedeutung.
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Article 2 Purpose
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Artikel 2 Zweck
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1. The purpose of the Company is to
acquire, hold, administer and
transfer participations in entities
in Switzerland and abroad, either
directly or indirectly, in
particular in entities which are
active in the field of services
providing with respect to the
acquisition and production of
natural energy and of the financing
of such activities.
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1. Zweck der Gesellschaft ist der
Erwerb, das Halten, die Verwaltung,
die Veräusserung von direkten oder
indirekten Beteiligungen an
Unternehmen im In- und Ausland, die
im Bereich der Erbringung von
Dienstleistungen zum Erwerb und zur
Produktion von natürlichen
Energiequellen und der Finanzierung
dieser Aktivitäten tätig sind.
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2. The Company may establish branch
offices and subsidiaries in Switzerland
and abroad.
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2. Die Gesellschaft kann
Zweigniederlassungen und
Tochtergesellschaften im In- un Ausland
errichten.
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3. The Company may acquire, administer
and transfer patents, trademarks and
technical and industrial know-how as
well as real estate assets. The Company
may engage in any commercial, financial
or other activities which are directly
or indirectly related to the purpose of
the Company.
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3. Die Gesellschaft kann Patente,
Handelsmarken, technische und industrielle
Kenntnisse sowie Grundstücke erwerben,
verwalten und übertragen. Die Gesellschaft
kann alle finanziellen, kommerziellen und
anderen Tätigkeiten ausüben, welche mit dem
Zweck der Gesellschaft direkt oder indirekt
in Zusammenhang stehen.
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4. The Company may also participate in
the financing, including by means of the
providing of guarantees and sureties of
any kind, of other entities of the group
to which the Company belongs in the
general interest of such group.
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4. Die Gesellschaft kann im Übrigen im
Rahmen des allgemeinen Gruppeninteresses an
Finanzierungen von mittelbaren und
unmittelbaren Tochtergesellschaften
teilnehmen, namentlich Garantien und
Bürgschaften jeglicher Art eingehen,
solange dies im Interesse der Gruppe liegt.
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5. The Company may generally engage in
all types of transactions and may take
all measures that appear appropriate to
promote the purpose of the Company or
that are related thereto.
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5. Die Gesellschaft kann grundsätzlich alle
Tätigkeiten ausüben und Massnahmen
ergreifen, die geeignet erscheinen, den
Zweck der Gesellschaft zu fördern, oder die
mit diesem zusammenhängen.
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Article 3 Duration
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Artikel 3 Dauer
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The duration of the Company is unlimited.
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Die Dauer der Gesellschaft ist unbeschränkt.
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SECTION 2 SHARE CAPITAL
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ABSCHNITT 2 AKTIENKAPITAL
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Article 4 Share Capital
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Artikel 4 Aktienkapital
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The share capital of the Company is CHF
845,487,611.96 and is divided into
728,868,631 fully paid up registered
shares. Each registered share has a par
value of CHF 1.16 (each such
registered share hereinafter a
Share
and
collectively the
Shares
).
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Das Aktienkapital der Gesellschaft beträgt
CHF 845487611.96 und ist eingeteilt in
728868631 voll liberierte Namenaktien.
Jede Namenaktie hat einen Nennwert von CHF
1.16 (jede Namenaktie nachfolgend
bezeichnet als
Aktie
bzw. die
Aktien
).
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Article 5 Authorized Share Capital
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Artikel 5 Genehmigtes Kapital
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1. The Board of Directors is authorized
to increase the share capital, at
anytime until February 25, 2011, by a maximum
amount of CHF 422,743,805.40 by issuing a
maximum of 364,434,315 fully paid up
Shares with a par value of CHF 1.16 each.
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1. Der Verwaltungsrat ist ermächtigt, das
Aktienkapital jederzeit bis zum 25. Februar 2011
im Maximalbetrag von CHF 422743805.40 durch
Ausgabe von höchstens 364434315
vollständig zu liberierenden
Aktien mit einem Nennwert von je CHF
1.16 zu erhöhen.
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2. The Board of Directors shall
determine the time of the issuance, the
issue price, the manner in which the new
Shares have to be paid up, the date from
which the Shares carry the right to
dividends, the conditions for the
exercise of the preferential
subscription rights and the allotment of
preferential subscription rights that
have not been exercised. The Board of
Directors may allow the preferential
subscription rights that have not been
exercised to expire, or it may place
such rights or Shares, the preferential
subscription rights of which have not
been exercised, at market conditions or
use them otherwise in the interest of
the Company.
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2. Der Verwaltungsrat legt den Zeitpunkt
der Ausgabe, den Ausgabebetrag, die Art,
wie die neuen Aktien zu liberieren sind,
den Beginn der Dividendenberechtigung, die
Bedingungen für die Ausübung der
Bezugsrechte sowie die Zuteilung der
Bezugsrechte, welche nicht ausgeübt wurden,
fest. Nicht-ausgeübte Bezugsrechte kann der
Verwaltungsrat verfallen lassen, oder er
kann diese bzw. Aktien, für welche
Bezugsrechte eingeräumt, aber nicht
ausgeübt werden, zu Marktkonditionen
platzieren oder anderweitig im Interesse
der Gesellschaft verwenden.
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3. The Board of Directors is authorized
to withdraw or limit the preferential
subscription rights of the shareholders,
and to allot them to third parties, for
cause, which shall include the
following:
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3. Der Verwaltungsrat ist ermächtigt, die
Bezugsrechte der Aktionäre aus
nachfolgenden wichtigen Gründen zu
entziehen oder zu beschränken und Dritten
zuzuweisen:
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(a) if the issue price of
the new Shares is determined
by reference to the market
price; or
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(a) wenn der Ausgabebetrag der neuen Aktien
unter Berücksichtigung des Marktpreises
festgesetzt wird; oder
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(b) for the acquisition of
an enterprise, part(s) of an
enterprise or
participations, or for the
financing or refinancing of
any of such transactions, or
for the financing of new
investment plans of the
Company; or
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(b) für die Übernahme von
Unternehmen, Unternehmensteilen
oder Beteiligungen oder für die
Finanzierung oder Refinanzierung
solcher Transaktionen oder die
Finanzierung von neuen
Investitionsvorhaben der
Gesellschaft; oder
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(c) for purposes of
broadening the shareholder
constituency of the Company
in certain financial or
investor markets, for
purposes of the
participation of strategic
partners, or in connection
with the listing of new
Shares on domestic or
foreign stock exchanges; or
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(c) zum Zwecke der Erweiterung des
Aktionärskreises in bestimmten
Finanz- oder Investoren-Märkten,
zur Beteiligung von strategischen
Partnern, oder im Zusammenhang mit
der Kotierung von neuen Aktien an
inländischen oder ausländischen
Börsen; oder
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(d) for purposes of granting
an over-allotment option
(including options with
respect to any security
convertible into Shares,
such as convertible debt
securities or otherwise)
(Greenshoe) of up to 20% of
the total number of Shares
in a placement or sale of
Shares to the respective
initial purchaser(s) or
underwriter(s); or
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(d) für die Einräumung einer
Mehrzuteilungsoption
(einschliesslich Optionen im
Hinblick auf Wertpapiere, die in
Aktien umwandelbar sind, wie etwa
wandelbare Schuldverschreibungen
oder andere) (Greenshoe) von bis zu
20% der zu platzierenden oder zu
verkaufenden Aktien an die
betreffenden Erstkäufer oder
Festübernehmer im Rahmen einer
Aktienplatzierung oder eines
Aktienverkaufs; oder
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(e) for the participation in
a benefit or other plan by
members of the Board of
Directors, members of the
executive management,
employees, contractors,
consultants or other Persons
performing services for the
benefit of the Company or
any of its subsidiaries; or
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(e) für die Teilnahme an einem
Beteiligungs- oder anderem Plan von
Mitgliedern des Verwaltungsrates,
Mitgliedern der Geschäftsleitung,
Mitarbeitern, Beauftragten,
Beratern oder anderen Personen, die
für die Gesellschaft oder eine
ihrer Tochtergesellschaften
Leistungen erbringen; oder
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(f) if the Shares to be
issued will be issued for
any consideration (including
debt, equity or assets of
another company) other than
for cash consideration.
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(f) wenn die Aktien anders als in
bar (d.h. durch Einlage von
Fremdkapital, Eigenkapital oder
Sacheinlage von Vermögensteilen
eines anderen Unternehmens)
liberiert werden.
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4. The new Shares shall be subject to
the limitations for registration in the
share register pursuant to Articles 7
and 9.
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4. Die neuen Aktien unterliegen den
Eintragungsbeschränkungen in das
Aktienbuch von Artikel 7 und 9.
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Article 6 Conditional Share Capital
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Artikel 6 Bedingtes Aktienkapital
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1. The share capital may be increased in
an amount not to exceed CHF 422,743,805.40 through the issuance of up
to 364,434,315 fully paid up Shares with a
par value of CHF 1.16 per Share
through:
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1. Das Aktienkapital kann sich
durch Ausgabe von höchstens
364434315 voll zu liberierenden
Aktien im Nennwert von je CHF
1.16 um höchstens CHF
422743805.40 aus folgenden Gründen
erhöhen:
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(a) the exercise of
conversion, exchange,
option, warrant or similar
rights for the subscription
of Shares (hereinafter the
Rights
) granted to third
parties or shareholders in
connection with bonds,
options, warrants or other
securities newly or already
issued in national or
international capital
markets or new or already
existing contractual
obligations by or of the
Company, one or more of its
group companies, or any of
their respective
predecessors (hereinafter
collectively, the
Rights-Bearing Obligations
);
and/or
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(a) die Ausübung von Wandel-,
Tausch-, Options-, Bezugs- oder
ähnlichen Rechten auf den Bezug von
Aktien (nachfolgend die
Rechte
),
die Dritten oder Aktionären in
Verbindung mit auf nationalen oder
internationalen Kapitalmärkten neu
oder bereits ausgegebenen
Anleihensobligationen, Optionen,
Warrants oder anderen
Finanzmarktinstrumenten oder in
Verbindung mit neuen oder bereits
bestehenden vertraglichen
Verpflichtungen der Gesellschaft
oder anderen Gesellschaften der
Gruppe respektive deren
Rechtsvorgängern (nachfolgend
zusammen die
mit Rechten
verbundenen Obligationen
) erteilt
wurden; und/oder durch
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(b) the issuance of Shares
(including shares of
restricted stock) or
Rights-Bearing Obligations
granted to members of the
Board of Directors, members
of the executive management,
employees, contractors,
consultants or other Persons
providing services to the
Company or its subsidiaries.
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(b) die Ausgabe von Aktien
(einschliesslich vinkulierter
Aktien) oder mit Rechten
verbundenen Obligationen an
Mitglieder des Verwaltungsrates,
Mitglieder der Geschäftsleitung,
Arbeitnehmer, Beauftragte, Berater
oder andere Personen, welche
Dienstleistungen für die
Gesellschaft oder ihre
Tochtergesellschaften erbringen.
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2. The preferential subscription rights
and advance subscription rights of the
shareholders shall be excluded in
connection with the issuance of any
Shares, Rights or Rights-Bearing
Obligations pursuant to Article 6 para
1(a) and (b).
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2. Die Bezugsrechte und die
Vorwegzeichnungsrechte der
Aktionäre sind ausgeschlossen, im
Zusammenhang mit der Ausgabe von
Aktien, Rechten oder mit Rechten
verbundenen Obligationen gemäss
Artikel 6 Absatz 1(a) und (b).
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3. The new Shares acquired through the
exercise of Rights-Bearing Obligations
shall be subject to the limitations for
registration in the share register
pursuant to Articles 7 and 9.
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3. Die neuen Aktien, welche über
die Ausübung von mit Rechten
verbundenen Obligationen erworben
werden, unterliegen den
Eintragungsbeschränkungen in das
Aktienbuch gemäss Artikel 7 und 9.
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Article 7 Share Register, Exercise of
Rights, Restriction on Registration,
Nominees, Transfer Restrictions
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Artikel 7 Aktienbuch, Rechtsausübung, Eintragungsbeschränkungen, Nominees, Vinkulierung
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1. The Company shall maintain, itself or
through a third party, a share register
that lists the surname, first name,
address and citizenship (in the case of
legal entities, the company name and
company seat) of the holders and
usufructuaries of the Shares as well as
the nominees. A Person recorded in the
share register shall notify the share
registrar of any change in address.
Until such notification shall have
occurred, all written communication from
the Company to Persons of record shall
be deemed to have validly been made if
sent to the address recorded in the
share register.
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1. Die Gesellschaft oder von ihr
beauftragte Dritte führen ein
Aktienbuch. Darin werden die
Eigentümer und Nutzniesser der
Aktien sowie Nominees mit Namen und
Vornamen, Wohnort, Adresse und
Staatsangehörigkeit (bei
juristischen Personen mit Firma und
Sitz) eingetragen. Ändert eine im
Aktienbuch eingetragene Person ihre
Adresse, so hat sie dies dem
Aktienbuchführer mitzuteilen.
Solange dies nicht geschehen ist,
gelten alle brieflichen
Mitteilungen der Gesellschaft an
die im Aktienbuch eingetragenen
Personen als rechtsgültig an die
bisher im Aktienbuch eingetragene
Adresse erfolgt.
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2. An acquirer of Shares shall be
recorded upon request in the share
register as a shareholder with voting
rights; provided, however, that any such
acquirer expressly declares to have
acquired the Shares in its own name and
for its own account, save that the Board
of Directors may record nominees who
hold Shares in their own name, but for
the account of third parties, as
shareholders of record in the share
register of the Company. Beneficial
owners of Shares who hold Shares through
a nominee exercise the shareholders
rights through the intermediation of
such nominee.
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2. Ein Erwerber von Aktien wird auf
Gesuch als Aktionär mit Stimmrecht
im Aktienbuch eingetragen,
vorausgesetzt, dass ein solcher
Erwerber ausdrücklich erklärt, die
Aktien im eigenen Namen und auf
eigene Rechnung erworben zu haben.
Der Verwaltungsrat kann Nominees,
welche Aktien im eigenen Namen aber
auf fremde Rechnung halten, als
Aktionäre mit Stimmrecht im
Aktienbuch der Gesellschaft
eintragen. Die an den Aktien
wirtschaftlich Berechtigten, welche
die Aktien über einen Nominee
halten, üben Aktionärsrechte
mittelbar über den Nominee aus.
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3. After hearing the registered
shareholder concerned, the Board of
Directors may cancel the registration of
such shareholder as a shareholder with
voting rights in the share register with
retroactive effect as of the date of
registration, if such registration was
made based on false or misleading
information. The relevant shareholder
shall be informed promptly of the
cancellation.
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3. Der Verwaltungsrat kann nach
Anhörung des eingetragenen
Aktionärs dessen Eintragung im
Aktienbuch als Aktionär mit
Stimmrecht rückwirkend auf das
Datum der Eintragung streichen,
wenn diese durch falsche oder
irreführende Angaben zustande
gekommen ist. Der Betroffene muss
über die Streichung sofort
informiert werden.
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Article 8 Share Certificates
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Artikel 8 Aktienzertifikate
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1. A shareholder may at any time request
an attestation of the number of Shares
held by it. The shareholder is not
entitled, however, to request that
certificates representing the Shares be
printed and delivered.
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1. Ein Aktionär kann von der
Gesellschaft jederzeit eine
Bescheinigung über die von ihm
gehaltenen Aktien verlangen. Der
Aktionär hat jedoch keinen
Anspruch, den Druck und die
Auslieferung von Aktienzertifikaten
zu verlangen.
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2. The Company may at any time print and
deliver certificates for the Shares, and
may, with the consent of the
shareholder, cancel issued certificates
that are delivered to it without
replacement.
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2. Die Gesellschaft kann jederzeit
Zertifikate für Aktien drucken und
ausliefern und mit Zustimmung des
Aktionärs ausgegebene Urkunden, die
bei ihr eingeliefert werden,
ersatzlos annullieren.
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3. Uncertificated Shares and the
appurtenant rights associated therewith
may be transferred only by written
assignment. For the assignment to be
valid against the Company, notification
to the Company shall be required. If
uncertificated Shares are administered
by a transfer agent, trust company, bank
or similar entity (the
Transfer Agent
),
such Shares and the appurtenant rights
associated therewith may be transferred
only with the cooperation of the
Transfer Agent or such other Person or
Persons as determined by the Board of
Directors.
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3. Aktien, für die keine
Aktientitel ausgegeben wurden, und
die damit verbundenen Rechte können
nur durch Zession übertragen
werden. Eine solche Zession bedarf
der Anzeige an die Gesellschaft, um
ihr gegenüber Wirkungen zu
entfalten. Werden Aktien, für die
keine Aktientitel ausgegeben
wurden, im Auftrag des Aktionärs
von einem Transfer Agenten, einer
Trust Gesellschaft, Bank oder
ähnlicher Gesellschaft verwaltet
(der
Transfer Agent
), so können
diese Aktien und die damit
verbundenen Rechte nur unter
Mitwirkung des Transfer Agenten
oder einer anderen derartigen
Person oder einer durch den
Verwaltungsrat gewählten Personen,
übertragen werden.
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4. If uncertificated Shares are pledged
in favor of any Person other than the
Transfer Agent, notification to such
Transfer Agent shall be required for the
pledge to be effective.
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4. Werden Aktien, für die keine
Aktientitel ausgegeben wurden,
zugunsten von jemand anderem als
dem Transfer Agenten verpfändet, so
ist zur Gültigkeit der Verpfändung
eine Anzeige an den Transfer
Agenten erforderlich.
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5. If the Company decides to print and
deliver share certificates, the share
certificates shall bear the signatures
of two duly authorized signatories of
the Company, at least one of which shall
be a member of the Board of Directors.
These signatures may be facsimile
signatures.
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5. Für den Fall, dass die
Gesellschaft beschliesst,
Aktienzertifikate zu drucken und
auszugeben, müssen die
Aktienzertifikate die Unterschrift
von zwei zeichnungsberechtigten
Personen tragen. Mindestens eine
dieser Personen muss ein Mitglied
des Verwaltungsrates sein.
Faksimile-Unterschriften sind
erlaubt.
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6. The Company may in any event issue
share certificates representing more
than one Share.
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6. Die Gesellschaft kann in jedem
Fall Aktienzertifikate ausgeben,
die mehr als eine Aktie verkörpern.
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7. The Board of Directors or any officer
of the Company to whom the Board of
Directors has delegated authority may
authorize any Transfer Agent to issue,
and any registrar of the Company to
register, at any time and from time to
time unless otherwise directed, a new
certificate or certificates of stock in
place of a certificate or certificates
theretofore issued by the Company,
alleged to have been lost or destroyed,
upon receipt by the Transfer Agent of
evidence of such loss or destruction,
which may be the affidavit of the
applicant; a bond indemnifying the
Company and any Transfer Agent and
registrar of the class of stock involved
against claims that may be made against
it or them on account of the lost or
destroyed certificate or the issuance of
a new certificate, of such kind and in
such amount as the Board of Directors
shall have authorized the Transfer Agent
to accept generally or as the Board of
Directors or an authorized officer shall
approve in particular cases; and any
other documents or instruments that the
Board of Directors or an authorized
officer may require from time to time to
protect adequately the interest of the
Company.
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7. Der Verwaltungsrat oder jedes
Mitglied der Geschäftsführung, dem
der Verwaltungsrat die Kompetenz
dazu eigeräumt hat, darf jeden
Transfer Agenten und jeden
Registerführer des Unternehmens
ermächtigen, jederzeit ein neues
Aktienzertifikat oder ein bereits
ausgebenes Aktienzertifikat, dessen
Verlust oder Zerstörung behauptet
wird, auszugeben bzw. zu
registrieren, wenn ein Beweis für
den Verlust oder die Zerstörung
vorliegt, wobei der Beweis für
Verlust oder Zerstörung in Form
einer beglaubigten Erklärung des
Antragstellers erbracht werden
kann, wenn eine Sicherheit für
mögliche Klagen aufgrund der
verlorenen oder zerstörten
Zertifikate oder der Ausgabe neuer
Zertifikate gestellt wird, wobei
Art und Betrag der Sicherheit den
Weisungen und der Ermächtigung des
Verwaltungsrats entsprechen müssen,
und wenn alle anderen Dokumente
oder Instrumente vorliegen, die der
Verwaltungsrat oder ein
ermächtigtes Mitglied der
Geschäftsführung zu gegebener Zeit
benötigt, um die Interessen des
Unternehmens adäquat zu schützen.
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Article 9 Exercise of Rights
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Artikel 9 Rechtsausübung
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1. The Company shall only accept one
representative per Share.
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1. Die Gesellschaft anerkennt nur
einen Vertreter pro Aktie.
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2. Voting rights and appurtenant rights
associated therewith may be exercised in
relation to the Company by a
shareholder, usufructuary of Shares or
nominee only to the extent that such
Person is recorded in the share register
with the right to exercise his voting
rights.
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2. Stimmrechte und die damit
verbundenen Rechte können der
Gesellschaft gegenüber von einem
Aktionär, Nutzniesser der Aktien
oder Nominee jeweils nur im Umfang
ausgeübt werden, wie dieser mit
Stimmrecht im Aktienbuch
eingetragen ist.
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SECTION 3 CORPORATE BODIES
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ABSCHNITT 3 GESELLSCHAFTS-ORGANE
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A. General Meeting of Shareholders
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A. Generalversammlung
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Article 10 Authority
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Artikel 10 Zuständigkeit
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The General Meeting of Shareholders
is the supreme corporate body of the
Company.
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Die Generalversammlung ist das
oberste Organ der Gesellschaft.
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Article 11 Annual General Meeting
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Artikel 11 Ordentliche Generalversammlung
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The Annual General Meeting shall be
held each year within six months
after the close of the fiscal year of
the Company. The Annual Report and
the Auditors Report shall be made
available for inspection by the
shareholders at the registered office
of the Company no later than twenty
calendar days prior to the Annual
General Meeting. Each shareholder is
entitled to request prompt delivery
of a copy of the Annual Report and
the Auditors Report free of charge.
Shareholders of record will be
notified of the availability of the
Annual Report and the Auditors
Report in writing.
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Die ordentliche Generalversammlung
findet alljährlich innerhalb von
sechs Monaten nach Abschluss des
Geschäftsjahres statt. Spätestens
zwanzig Kalendertage vor der
Versammlung sind der
Geschäftsbericht und der
Revisionsbericht den Aktionären am
Gesellschaftssitz zur Einsicht
vorzulegen. Jeder Aktionär kann
verlangen, dass ihm unverzüglich
eine Ausfertigung des
Geschäftsberichts und des
Revisionsberichts ohne Kostenfolge
zugesandt wird. Die im Aktienbuch
eingetragenen Aktionäre werden über
die Verfügbarkeit des
Geschäftsberichts und des
Revisionsberichts durch
schriftliche Mitteilung
unterrichtet.
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Article 12 Extraordinary General
Meetings
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Artikel 12 Ausserordentliche
Generalversammlung
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1. Extraordinary General Meetings
shall be held in the circumstances
provided by law, in particular when
deemed necessary or appropriate by
the Board of Directors or if so
requested by the Auditor.
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1. Ausserordentliche
Generalversammlungen finden in den
vom Gesetz vorgesehenen Fällen
statt, insbesondere, wenn der
Verwaltungsrat es für notwendig
oder angezeigt erachtet oder die
Revisionsstelle dies verlangt.
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2. An Extraordinary General Meeting
shall further be convened by the
Board of Directors upon resolution of
a General Meeting of Shareholders or
if so requested by one or more
shareholders who, in the aggregate,
represent at least one-tenth of the
share capital recorded in the share
register of the Company and who
submit (a)(1) a request signed by
such shareholder(s) that specifies
the item(s) to be included on the
agenda, (2) the respective proposals
of the shareholders and (3) evidence
of the required shareholdings
recorded in the share register and
(b) such other information as would
be required to be included in a proxy
statement pursuant to the rules of
the U.S. Securities and Exchange
Commission (
SEC
).
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2. Ausserdem muss der
Verwaltungsrat eine
ausserordentliche
Generalversammlung einberufen, wenn
es eine Generalversammlung so
beschliesst oder wenn ein oder
mehrere Aktionäre, welche zusammen
mindestens ein Zehntel des im
Aktienbuch der Gesellschaft
eingetragenen Aktienkapitals
vertreten, dies verlangen, unter
der Voraussetzung, dass folgende
Angabe gemacht werden: (a)(1) die
Verhandlungsgegenstände,
schriftlich unterzeichnet von
dem/den antragstellenden
Aktionär(en), (2) die Anträge sowie
(3) der Nachweis der erforderlichen
Anzahl der im Aktienbuch
eingetragenen Aktien; und (b) die
weiteren Informationen, die von der
Gesellschaft nach den Regeln der
U.S. Securities and Exchange
Commission (
SEC
) in einem sog.
Proxy Statement aufgenommen und
veröffentlicht werden müssen.
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Article 13 Notice of Shareholders
Meeting
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Artikel 13 Einberufung
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1. Notice of a General Meeting of
Shareholders shall be given by the
Board of Directors or, if necessary,
by the Auditor, no later than 20
calendar days prior to the date of
the General Meeting of Shareholders.
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1. Die Generalversammlung wird
durch den Verwaltungsrat,
nötigenfalls die Revisionsstelle,
spätestens 20 Kalendertage vor dem
Tag der Generalversammlung
einberufen.
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2. Notice of the General Meeting of
Shareholders shall be given by way of
a one-time announcement in the
official means of publication of the
Company pursuant to Article 33. The
notice period shall be deemed to have
been observed if notice of the
General Meeting of Shareholders is
published in such official means of
publication, it being understood that
the date of publication is not to be
included for purposes of computing
the notice period. Shareholders of
record shall in addition be informed
of the General Meeting of
Shareholders by ordinary mail or such
other means as determined by the
Board of Directors, which additional
notification may contain such
information as determined by the
Board of Directors.
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2. Die Einberufung erfolgt durch
einmalige Bekanntmachung im
Publikationsorgan der Gesellschaft
gemäss Artikel 33. Für die
Einhaltung der Einberufungsfrist
ist der Tag der Veröffentlichung
der Einberufung im
Publikationsorgan massgeblich,
wobei der Tag der Veröffentlichung
nicht mitzuzählen ist. Die im
Aktienbuch eingetragenen Aktionäre
sollen zudem auf dem ordentlichen
Postweg oder auf anderem durch den
Verwaltungsrat festlegtem Weg über
die Generalversammlung informiert
werden. Die zusätzliche
Benachrichtigung enhält
Informationen, die vom
Verwaltungsrat bestimmt wurden.
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3. The notice of a General Meeting of
Shareholders shall specify the items
on the agenda and the proposals of
the Board of Directors and, subject
to Articles 12 and 14, the
shareholder(s) who requested that a
General Meeting of Shareholders be
held or an item be included on the
agenda, and, in the event of
elections, the name(s) of the
candidate(s) that has or have been
put on the ballot for election.
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3. Die Einberufung muss die
Verhandlungsgegenstände sowie die
Anträge des Verwaltungsrates und
des oder der Aktionäre, gemäss
Artikeln 12 und 14, welche die
Durchführung einer
Generalversammlung oder die
Traktandierung eines
Verhandlungsgegenstandes verlangt
haben, und bei Wahlgeschäften die
Namen des oder der zur Wahl
vorgeschlagenen Kandidaten
enthalten.
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Article 14 Agenda
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Artikel 14 Traktandierung
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1. Any shareholder satisfying the
requirements of article 699 of the
Swiss Code of Obligations (
CO
) may
request that an item be included on
the agenda of a General Meeting of
Shareholders. An inclusion of an
item on the agenda must be requested
in writing at least 60 and no more
than 90 calendar days prior to the
scheduled and announced date of the
next General Meeting of Shareholders
and shall specify the relevant agenda
items and proposals, together with
evidence of the required
shareholdings recorded in the share
register.
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1. Jeder Aktionär, der die
Voraussetzungen von Art. 699 des
Schweizerischen Obligationenrechts
(
OR
) erfüllt, kann die
Traktandierung eines
Verhandlungsgegenstandes verlangen.
Das Traktandierungsbegehren muss
mindestens 60 und nicht später als
90 Kalendertage vor dem Datum der
Generalversammlung, schriftlich
unter Angabe des
Verhandlungsgegenstandes und der
Anträge sowie unter Nachweis der
erforderlichen Anzahl im Aktienbuch
eingetragenen Aktien eingereicht
werden.
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2. No resolution may be passed at a
General Meeting of Shareholders
concerning an agenda item in relation
to which due notice was not given.
Proposals made during a General
Meeting of Shareholders to (i)
convene an Extraordinary General
Meeting or (ii) initiate a special
investigation in accordance with
article 697a CO are not subject to
the due notice requirement set forth
herein.
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2. Zu nicht gehörig angekündigten
Verhandlungsgegenständen können
keine Beschlüsse gefasst werden.
Hiervon ausgenommen sind jedoch der
Beschluss über den in einer
Generalversammlung gestellten
Antrag auf (i) Einberufung einer
ausserordentlichen
Generalversammlung sowie (ii)
Durchführung einer Sonderprüfung
gemäss Artikel 697a OR.
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3. No prior notice is required to
bring motions related to items
already on the agenda or for the
discussion of matters on which no
resolution is to be taken.
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3. Zur Stellung von Anträgen im
Rahmen der Verhandlungsgegenstände
und zu Verhandlungen ohne
Beschlussfassung bedarf es keiner
vorgängigen Ankündigung.
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Article 15 Acting Chair, Minutes,
Vote Counters
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Artikel 15 Vorsitz der
Generalver-sammlung, Protokoll,
Stimmenzähler
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1. At the General Meeting of
Shareholders, the Chairman of the
Board of Directors or, in his
absence, the Vice-Chairman or any
other person designated by the Board
of Directors shall take the chair.
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1. An der Generalversammlung führt
der Präsident des Verwaltungsrates
oder, bei dessen Verhinderung, der
Vizepräsident oder eine andere vom
Verwaltungsrat bezeichnete Person
den Vorsitz.
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2. The acting chair of the General
Meeting of Shareholders shall appoint
the secretary and the vote counters,
none of whom need be shareholders.
The minutes of the General Meeting of
Shareholders shall be signed by the
acting chair and the secretary.
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2. Der Vorsitzende der
Generalversammlung bestimmt den
Protokollführer und die
Stimmenzähler, die alle nicht
Aktionäre sein müssen. Das
Protokoll ist vom Vorsitzenden und
vom Protokollführer zu
unterzeichnen.
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3. The acting chair of the General
Meeting of Shareholders shall have
all powers and authority necessary
and appropriate to ensure the orderly
conduct of the General Meeting of
Shareholders.
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3. Der Vorsitzende der
Generalversammlung hat sämtliche
Leitungsbefugnisse, die für die
ordnungsgemässe Durchführung der
Generalversammlung nötig und
angemessen sind.
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Article 16 Right to Participation and
Representation
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Artikel 16 Recht auf
Teilnahme,
Vertretung der Aktionäre
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Each shareholder recorded in the
share register as of the record date
for the meeting is entitled to
participate at the General Meeting of
Shareholders and in any vote taken.
The shareholders may be represented
by proxies who need not be
shareholders. The Board of Directors
shall issue the particulars of the
right to representation and
participation at the General Meeting
of Shareholders in procedural rules.
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Jeder im Aktienbuch eingetragene
Aktionär ist ab dem Datum der
Eintragung berechtigt, an der
Generalversammlung und deren
Beschlüssen teilzunehmen. Ein
Aktionär kann sich an der
Generalversammlung vertreten
lassen, wobei der Vertreter nicht
Aktionär sein muss. Der
Verwaltungsrat regelt die
Einzelheiten über die Vertretung
und Teilnahme an der
Generalversammlung in
Verfahrensvorschriften.
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Article 17 Voting Rights
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Artikel 17 Stimmrecht
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Each Share shall convey the right to
one vote. The right to vote is
subject to the conditions of Articles
7 and 9.
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Jede Aktie berechtigt zu einer
Stimme. Das Stimmrecht untersteht
den Bedingungen von Artikel 7 und
9.
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Article 18 Resolutions and Elections
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Artikel 18 Beschlüsse und Wahlen
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1. Unless otherwise required by law
or these Articles of Association, the
General Meeting of Shareholders shall
take resolutions and decide elections
upon a relative majority of the votes
cast at the General Meeting of
Shareholders (whereby abstentions,
broker nonvotes, blank or invalid
ballots and withdrawals shall be
disregarded for purposes of
establishing the majority).
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1. Die Generalversammlung fasst
Beschlüsse und entscheidet Wahlen,
soweit das Gesetz oder diese
Statuten es nicht anders bestimmen,
mit der relativen Mehrheit der
abgegebenen Aktienstimmen (wobei
Enthaltungen, sog. Broker Nonvotes,
leere oder ungültige Stimmen für
die Bestimmung des Mehrs nicht
berücksichtigt werden).
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2. Where the number of persons
validly proposed for election as a
member of the Board of Directors is
greater than the number of Directors
to be elected, the persons receiving
the most votes (up to the number of
Directors to be elected) shall be
elected as members of the Board of
Directors. Votes against any
candidate, abstentions, broker
nonvotes, blank or invalid ballots
and withdrawals shall have no impact
on the election of members of the
Board of Directors.
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2. Die Generalversammlung
entscheidet über die Wahl von
Mitgliedern des Verwaltungsrates
nach dem proportionalen
Wahlverfahren, wonach diejenige
Person, welche die grösste Zahl der
abgegebenen Aktienstimmen für einen
Verwaltungsratssitz erhält, als für
den betreffenden
Verwaltungsratssitz gewählt gilt.
Aktienstimmen gegen einen
Kandidaten, Stimmenthaltungen, sog.
Broker Nonvotes, ungültige oder
leere Stimmen und Rücknahmen haben
für die Zwecke keine Auswirkungen
auf die Wahl von Mitgliedern des
Verwaltungsrates.
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3. For the removal of a serving
member of the Board of Directors, the
voting requirement set forth in
Article 20 para. 1(k) and the
presence quorum set forth in Article
21 para. 1(a) shall apply.
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3. Für die Abwahl von amtierenden
Mitgliedern des Verwaltungsrates
gilt das Mehrheitserfordernis
gemäss Artikel 20 Abs. 1(k) sowie
das Präsenzquorum von Artikel 21
Abs. 1(a).
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4. Unless otherwise required by law,
resolutions and elections at General
Meeting of Shareholders shall be
decided by a written ballot. The
acting chair may also hold
resolutions and elections by use of
an electronic voting system, which
shall be considered equal to
resolutions and elections taken by
way of a written ballot.
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4. Unter Vorbehalt anderer
gesetzlicher Vorschriften werden
Beschlüsse und Wahlen an der
Generalversammlung durch
schriftliche Abstimmung getroffen.
Der Vorsitzende kann Abstimmungen
und Wahlen auch mittels
elektronischem Verfahren
durchführen lassen, wobei dieses
schriftlichen Abstimmungen und
Wahlen gleichgestellt ist.
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Article 19 Powers of the General
Meeting of Shareholders
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Artikel 19 Befugnisse der
Generalver-sammlung
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The following powers shall be vested
exclusively in the General Meeting of Shareholders:
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Der Generalversammlung sind folgende Geschäfte vorbehalten:
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(a) The adoption and
amendment of these
Articles of Association;
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(a) Die Festsetzung und Änderung
dieser Statuten;
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(b) the election of the
members of the Board of
Directors and the
Auditor;
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(b) die Wahl der Mitglieder des
Verwaltungsrates und der
Revisionsstelle;
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(c) the approval of the
Annual Report and the
Consolidated Financial
Statements;
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(c) die Genehmigung des
Jahresberichtes und der
Konzernrechnung;
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(d) the approval of the
Annual Statutory
Financial Statements of
the Company and the
resolution on the
allocation of profit
shown on the Annual
Statutory Balance Sheet,
in particular the
determination of any
dividend;
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(d) die Genehmigung der
Jahresrechnung sowie die
Beschlussfassung über die
Verwendung des Bilanzgewinnes,
insbesondere die Festsetzung der
Dividende;
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(e) the discharge from
liability of the members
of the Board of
Directors; and
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(e) die Entlastung der Mitglieder
des Verwaltungsrates;
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(f) the adoption of
resolutions on matters
that are reserved to the
General Meeting of
Shareholders by law,
these Articles of
Association or, subject
to article 716a CO, that
are submitted to the
General Meeting of
Shareholders by the Board
of Directors.
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(f) die Beschlussfassung über die
Gegenstände, die der
Generalversammlung durch das Gesetz
oder die Statuten vorbehalten sind
oder ihr, vorbehältlich Artikel
716a OR, durch den Verwaltungsrat
vorgelegt warden.
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Article 20 Special Vote
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Artikel 20 Besonderes Quorum
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1. The approval of at least
two-thirds of the votes and the
absolute majority of the par value of
Shares, each as represented at a
General Meeting of Shareholders,
shall be required for resolutions
with respect to:
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1. Ein Beschluss der
Generalversammlung, der mindestens
zwei Drittel der an der
Generalversammlung vertretenen
Stimmen und die absolute Mehrheit
der an der Generalversammlung
vertretenen Aktiennennwerte auf
sich vereinigt, ist erforderlich
für:
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(a) The amendment or
modification of the
purpose of the Company as
described in Article 2;
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(a) Die Ergänzung oder Änderung des
Gesellschaftszweckes gemäss Artikel
2;
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(b) the creation and the
cancellation of shares
with privileged voting
rights;
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(b) die Einführung und Abschaffung
von Stimmrechtsaktien;
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(c) the restriction on
the transferability of
Shares and the
cancellation of such
restriction;
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(c) die Beschränkung der
Übertragbarkeit der Aktien und die
Aufhebung einer solche
Beschränkung;
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(d) the restriction on
the exercise of the right
to vote and the
cancellation of such
restriction;
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(d) die Beschränkung der Ausübung
des Stimmrechts und die Aufhebung
einer solchen Beschränkung;
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(e) an authorized or
conditional increase in
share capital;
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(e) eine genehmigte oder bedingte
Kapitalerhöhung;
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(f) an increase in share
capital through (i) the
conversion of capital
surplus, (ii)
contribution in kind or
for purposes of an
acquisition of assets, or
(iii) the granting of
special privileges;
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(f) die Kapitalerhöhung (i) aus
Eigenkapital, (ii) gegen
Sacheinlage oder zwecks
Sachübernahme oder (iii) die
Gewährung von besonderen Vorteilen;
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(g) the limitation on or
withdrawal of
preferential subscription
rights and advance
subscription rights;
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(g) die Einschränkung oder
Aufhebung von Bezugsrechten und
Vorwegzeichnungsrechten;
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(h) the relocation of the
place of incorporation of
the Company;
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(h) die Verlegung des Sitzes der
Gesellschaft;
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(i) the conversion of
Shares into bearer shares
and vice versa;
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(i) die Umwandlung von Namen- in
Inhaberaktien und umgekehrt;
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(j) the dissolution of
the Company; and
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(j) die Auflösung der Gesellschaft;
und
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(k) a resolution with
respect to the removal of
a serving member of the
Board of Directors.
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(k) die Beschlussfassung über die
Abwahl eines amtierenden
Verwaltungsratsmitglieds.
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Article 21 Presence Quorum
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Artikel 21 Präsenzquorum
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1. The matters set forth in para 1(a)
and 1(b) below require that a quorum
of shareholders of record holding in
person or by proxy at least
two-thirds of the share capital
recorded in the share register of the
Company are present at the time when
the General Meeting of Shareholders
proceeds to business:
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1. Die nachfolgend in Absatz 1(a)
und 1(b) aufgeführten
Angelegenheiten erfordern zum
Zeitpunkt der Konstituierung der
Generalversammlung ein
Präsenzquorum von Aktionären oder
deren Vertretern, welche mindestens
zwei Drittel des im Aktienbuch der
Gesellschaft eingetragenen
Aktienkapitals vertreten, damit die
Generalversammlung beschlussfähig
ist:
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(a) The adoption of a
resolution with respect
to the removal of a
serving Director; and
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(a) Die Beschlussfassung über die
Abwahl eines amtierenden
Verwaltungsratsmitglieds; und
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(b) The adoption of a
resolution to amend,
vary, suspend the
operation of, disapply or
cancel this Article 21 or
Articles 18, 20, 22, 23
or 24.
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(b) die Beschlussfassung, diesen
Artikel 21 oder Artikel 18, 20, 22,
23 oder 24 zu ergänzen, zu ändern,
nicht anzuwenden oder ausser Kraft
zu setzen.
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2. The adoption of any other
resolution or election requires that
at least a one-third of all the
Shares entitled to vote be
represented at the time when the
General Meeting of Shareholders
proceeds to business.
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2. Jede andere Beschlussfassung
oder Wahl setzt zu ihrer Gültigkeit
voraus, dass zum Zeitpunkt der
Konstituierung der
Generalversammlung zumindest ein
Drittel aller stimmberechtigten
Aktien anwesend ist.
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B. Board of Directors
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B. Verwaltungsrat
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Article 22 Number of Directors
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Artikel 22 Anzahl der Verwaltungsräte
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The Board of Directors shall consist
of no less than three and no more
than 18 members.
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Der Verwaltungsrat besteht aus
mindestens drei und höchstens 18
Mitgliedern.
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Article 23 Term of Office
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Artikel 23 Amtsdauer
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1. The Directors shall be elected at
the Annual General Meeting of
Shareholders or at any General
Meeting of Shareholders called for
the purpose of electing Directors.
Directors shall hold office for such
term as the shareholders may
determine or, in the absence of such
determination, until the next Annual
General Meeting of Shareholders or
until their successors are elected or
their office is otherwise vacated.
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1. Der Verwaltungsrat wird von der
jährlich stattfindenden
Generalversammlung oder einer zu
diesem Zweck einberufenen
Generalversammlung gewählt. Die
Amtsdauer wird von der
Generalversammlung bestimmt, bzw.
läuft, falls nichts festgelegt
wird, bis zur nächsten jährlichen
Generalversammlung oder bis
Nachfolger gewählt werden oder der
Verwaltungsrat aus einem anderen
Grunde von seinem Amt befreit wird.
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2. If, before the expiration of his
term of office, a Director should be
replaced for whatever reason, the
term of office of the newly elected
member of the Board of Directors
shall expire at the end of the term
of office of his predecessor.
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2. Wenn ein Verwaltungsratsmitglied
vor Ablauf seiner Amtsdauer aus
welchen Gründen auch immer ersetzt
wird, endet die Amtsdauer des an
seiner Stelle gewählten neuen
Verwaltungsratsmitgliedes mit dem
Ende der Amtsdauer seines
Vorgängers.
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Article 24 Organization of the Board
of Directors, Remuneration
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Artikel 24 Organisation des Verwaltungs-rates, Entschädigung
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1. The Board of Directors shall elect
from among its members a Chairman.
It may elect one or more
Vice-Chairmen. It shall further
appoint a Secretary, who need not be
a member of the Board of Directors.
Subject to applicable law and these
Articles of Association, the Board of
Directors shall establish the
particulars of its organization in
organizational regulations.
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1. Der Verwaltungsrat wählt aus
seiner Mitte einen Vorsitzenden. Er
kann einen oder mehrere
Vizepräsidenten wählen. Er bestellt
weiter einen Sekretär, welcher
nicht Mitglied des Verwaltungsrates
sein muss. Der Verwaltungsrat
regelt unter Vorbehalt der
Bestimmungen des Gesetzes und
dieser Statuten die Einzelheiten
seiner Organisation in einem
Organisationsreglement.
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2. The members of the Board of
Directors shall be entitled to
reimbursement of all expenses
incurred in the interest of the
Company, as well as remuneration for
their services that is appropriate in
view of their functions and
responsibilities. The amount of the
remuneration shall be determined by
the Board of Directors upon
recommendation by a committee of the
Board of Directors. Members of the
Board of Directors may also
participate in the Companys benefit
and other plans.
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2. Die Mitglieder des
Verwaltungsrates haben Anspruch auf
Ersatz ihrer im Interesse der
Gesellschaft aufgewendeten Auslagen
sowie auf eine ihrer Tätigkeit und
Verantwortung entsprechende
Entschädigung, die der
Verwaltungsrat auf Antrag eines
Ausschusses des Verwaltungsrates
festlegt. Der Verwaltungsrat kann
auch an Beteiligungs- und anderen
Plänen der Gesellschaft teilnehmen.
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3. The Company shall indemnify and
hold harmless, to the fullest extent
permitted by law, the existing and
former members of the Board of
Directors and officers, and their
heirs, executors and administrators,
out of the assets of the Company from
and against all threatened, pending
or completed actions, suits or
proceedings whether civil,
criminal, administrative or
investigative and all costs,
charges, losses, damages and expenses
which they or any of them, their
heirs, executors or administrators,
shall or may incur or sustain by or
by reason of any act done or alleged
to be done, concurred or alleged to
be concurred in or omitted or alleged
to be omitted in or about the
execution of their duty, or alleged
duty, or by reason of the fact that
he is or was a member of the Board of
Director or officer of the Company,
or while serving as a member of the
Board of Director or officer of the
Company is or was serving at the
request of the Company as a director,
officer, employee or agent of another
corporation, partnership, joint
venture, trust or other enterprise;
provided, however, that this
indemnity shall not extend to any
matter in which any of said persons
is found, in a final judgment or
decree of a court or governmental or
administrative authority of competent
jurisdiction not subject to appeal,
to have committed an intentional or
grossly negligent breach of his
statutory duties as a member of the
Board of Director or officer.
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3. Soweit gesetzlich zulässig, hält
die Gesellschaft aktuelle und
ehemalige Mitglieder des
Verwaltungsrates und der
Geschäftsleitung sowie deren Erben,
Konkurs- oder Nachlassmassen aus
Gesellschaftsmitteln für Schäden,
Verluste und Kosten aus drohenden,
hängigen oder abgeschlossenen
Klagen, Verfahren oder
Untersuchungen zivil-, straf- oder
verwaltungsrechtlicher oder anderer
Natur schadlos, welche ihnen oder
ihren Erben, Konkurs- oder
Nachlassmassen entstehen aufgrund
von tatsächlichen oder behaupteten
Handlungen, Zustimmungen oder
Unterlassungen im Zusammenhang mit
der Ausübung ihrer Pflichten oder
behaupteten Pflichten oder aufgrund
der Tatsache, dass sie Mitglied des
Verwaltungsrates oder der
Geschäftsleitung der Gesellschaft
sind oder waren oder auf
Aufforderung der Gesellschaft als
Mitglied des Verwaltungsrates, der
Geschäftsleitung oder als
Arbeitnehmer oder Agent eines
anderen Unternehmens, einer anderen
Gesellschaft, einer
nicht-rechtsfähigen
Personengesellschaft oder eines
Trusts sind oder waren. Diese
Pflicht zur Schadloshaltung besteht
nicht, soweit in einem endgültigen,
nicht weiterziehbaren Entscheid
eines zuständigen Gerichts bzw.
einer zuständigen
Verwaltungsbehörde entschieden
worden ist, dass eine der genannten
Personen ihre Pflichten als
Mitglied des Verwaltungsrates oder
der Geschäftsleitung absichtlich
oder grobfahrlässig verletzt hat.
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4. Without limiting the foregoing
paragraph 3 of this Article 24, the
Company shall advance court costs and
attorneys fees to the existing
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4. Ohne den vorangehenden Absatz 3
dieses Artikels 24 einzuschränken,
bevorschusst die Gesellschaft
Mitgliedern des Verwaltungsrates und
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and former members of the Board of
Directors and officers. The Company
may however recover such advanced
costs if any of said persons is
found, in a final judgment or decree
of a court or governmental or
administrative authority of competent
jurisdiction not subject to appeal,
to have committed an intentional or
grossly negligent breach of his
statutory duties as a Director or
officer.
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der Geschäftsleitung Gerichts-
und Anwaltskosten. Die Gesellschaft
kann solche Vorschüsse
zurückfordern, wenn ein zuständiges
Gericht oder eine zuständige
Verwaltungsbehörde in einem
endgültigen, nicht weiterziehbaren
Urteil bzw. Entscheid zum Schluss
kommt, dass eine der genannten
Personen ihre Pflichten als
Mitglied des Verwaltungsrates oder
der Geschäftsleitung absichtlich
oder grobfahrlässig verletzt hat.
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5. The rights to indemnification and
advancement of expenses conferred in
this Article 24 shall not be
exclusive of any other right which
any person may have or hereafter
acquire under any statute or
regulation, these Articles of
Association, any agreement, vote of
the shareholders or otherwise.
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5. Der Anspruch auf Ersatz und
Bevorschussung von Kosten gemäss
diesem Artikel 24 besteht oder
entsteht ungeachtet anderer
Ansprüche, kraft Gesetz, Statuten,
Vereinbarung, Beschluss der
Aktionäre oder aus anderem Grund
wird durch diese Bestimmung nicht
berührt.
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Article 25 Specific Powers of the
Board of Directors
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Artikel 25 Befugnisse des Verwaltungs-rates
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1. The Board of Directors has the
non-delegable and inalienable duties
as specified in article 716a CO, in
particular:
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1. Der Verwaltungsrat hat die in
Artikel 716a OR statuierten
unübertragbaren und unentziehbaren
Aufgaben, insbesondere:
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(a) the ultimate
direction of the business
of the Company and the
issuance of the required
directives;
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(a) die Oberleitung der
Gesellschaft und die Erteilung der
nötigen Weisungen;
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(b) the determination of
the organization of the
Company;
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(b) die Festlegung der Organisation;
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(c) the administration of
the accounting system and
of the financial
controls, as well as the
financial planning to the
extent necessary to
manage the Company;
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(c) die Ausgestaltung des
Rechnungswesens, der
Finanzkontrolle sowie der
Finanzplanung, sofern diese für die
Führung der Gesellschaft notwendig
ist;
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(d) the appointment and
removal of the persons
responsible for the
management and
representation of the
Company;
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(d) die Ernennung und Abberufung
der mit der Geschäftsführung und
der Vertretung betrauten Personen
und die Regelung ihrer
Zeichungsberechtigung
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(e) the ultimate
supervision of the
persons entrusted with
management duties, in
particular with regard to
compliance with law,
these Articles of
Association, regulations
and directives;
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(e) die Oberaufsicht über die mit
der Geschäftsführung betrauten
Personen, namentlich im Hinblick
auf die Befolgung der Gesetze,
Statuten, Reglemente und Weisungen;
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(f) the preparation of
the annual business
report and the General
Meeting of Shareholders
and to carry out the
resolutions adopted by
the General Meeting of
Shareholders; and
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(f) die Erstellung des
Geschäftsberichtes sowie die
Vorbereitung der Generalversammlung
und die Ausführung ihrer
Beschlüsse; und
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(g) the notification of
the court in case of
insolvency.
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(g) die Benachrichtigung des
Richters im Falle der
Überschuldung.
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2. In addition, the Board of
Directors may pass resolutions with
respect to all matters that are not
reserved to the General Meeting of
Shareholders by law or under these
Articles of Association.
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2. Der Verwaltungsrat kann überdies
in allen Angelegenheiten Beschluss
fassen, die nicht nach Gesetz oder
Statuten der Generalversammlung
zugeteilt sind.
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3. The Board of Directors may submit
benefit or incentive plans of the
Company to the General Meeting of
Shareholders for approval.
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3. Der Verwaltungsrat kann
Beteiligungspläne der Gesellschaft
der Generalversammlung zur
Genehmigung vorlegen.
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Article 26 Delegation of Powers
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Artikel 26 Übertragung von Befugnissen
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Subject to Article 25 para. 1 and the
applicable provisions of the CO, the
Board of Directors may delegate the
management of the Company in whole or
in part to individual Directors, one
or more committees of the Board of
Directors or to Persons other than
Directors pursuant to organizational
regulations.
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Der Verwaltungsrat kann unter
Vorbehalt von Artikel 25 Abs. 1
sowie der Vorschriften des OR die
Geschäftsführung nach Massgabe
eines Organisationsreglements ganz
oder teilweise an eines oder
mehrere seiner Mitglieder, an einen
oder mehrere Ausschüsse des
Verwaltungsrates oder an Dritte
übertragen.
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Article 27 Meeting of the Board of
Directors
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Artikel 27 Sitzungen des Verwaltungsrats
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1. Except as otherwise set forth in
organizational regulations of the
Board of Directors, the attendance
quorum necessary for the transaction
of the business of the Board of
Directors shall be the greater of two
Directors, and not less than
one-third of the total number of
Directors. No attendance quorum shall
be required for resolutions of the
Board of Directors providing for the
confirmation of a capital increase or
for the amendment of the Articles of
Association in connection therewith.
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1. Sofern das vom Verwaltungsrat
erlassene Organisationsreglement
nichts anderes festlegt, sind zur
gültigen Beschlussfassung über
Geschäfte des Verwaltungsrates
wenigstens zwei Verwalungsräte
nötig und nicht weniger als ein
Drittel aller Mitglieder des
Verwalungsrates. Kein Präsenzquorum
ist erforderlich für die
Anpassungs- und
Feststellungsbeschlüsse des
Verwaltungsrates im Zusammenhang
mit Kapitalerhöhungen.
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2. The Board of Directors shall pass
its resolutions with the majority of
the votes cast by the Directors
present at a meeting at which the
attendance quorum of para. 1 of this
Article 27 is satisfied.
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2. Der Verwaltungsrat fasst seine
Beschlüsse mit einer Mehrheit der
von den anwesenden Verwaltungsräten
abgegebenen Stimmen, vorausgesetzt,
das Präsenzquorum von Absatz 1
dieses Artikels 27 ist erfüllt.
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3. Resolutions of the Board of
Directors may be passed without a
meeting by way of written consent by
a majority of the Directors, provided
that no Director requests oral
deliberations. A resolution in
writing (in one or more counterparts)
signed by the Directors that voted
for such resolution (including signed
copies sent by facsimile or email)
shall be valid and effectual as if it
had been passed at a meeting of the
Board of Directors, duly convened and
held.
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3. Beschlüsse des Verwaltungsrates
können auf schriftlichem Wege von
der Mehrheit der Mitglieder
getroffen werden, sofern nicht ein
Mitglied mündliche Beratung
verlangt. Ein schriftlicher
Beschluss (in einer oder mehreren
Ausfertigungen), der von den
Verwaltungsräten unterzeichnet ist,
die für einen solchen Beschluss
gestimmt haben (einschliesslich
unterschriebenen Kopien per Telefax
oder E-Mail gesendet) hat die
gleiche Gültigkeit wie die an einer
Sitzung gefassten Beschlüsse.
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Article 28 Signature Power
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Artikel 28 Zeichnungs-berechtigung
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The due and valid representation of
the Company by members of the Board
of Directors and other Persons shall
be set forth in organizational
regulations.
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Die rechtsverbindliche Vertretung
der Gesellschaft durch Mitglieder
des Verwaltungsrates und durch
Dritte wird in einem
Organisationsreglement festgelegt.
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C. Auditor
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C. Revisionsstelle
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Article 29 Term, Powers and Duties
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Artikel 29 Amtsdauer,
Befugnisse und Pflichten
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1. The Board of Directors shall
propose the nomination of the Auditor
of the Company for election by the
General Meeting of Shareholders. The
Auditor shall have the powers and
duties vested in it by law.
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1. Die Revisionsstelle wird von der
Generalversammlung gewählt und es
obliegen ihr die vom Gesetz
zugewiesenen Befugnisse und
Pflichten.
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2. The term of office of the Auditor
shall be one year, commencing on the
day of election at an Annual General
Meeting of Shareholders and
terminating on the day of the next
Annual General Meeting of
Shareholders.
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2. Die Amtsdauer der
Revisionsstelle beträgt ein Jahr,
beginnend am Tage der Wahl an einer
ordentlichen Generalversammlung und
endend am Tage der nächsten
ordentlichen Generalversammlung.
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SECTION 4 ANNUAL STATUTORY FINANCIAL
STATEMENTS, CONSOLIDATED FINANCIAL
STATEMENTS AND PROFIT ALLOCATION
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ABSCHNITT 4
JAHRESRECHNUNG,KONZERN-RECHNUNG UND
GEWINN-VERTEILUNG
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Article 30 Fiscal Year
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Artikel 30 Geschäftsjahr
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The Board of Directors determines the
fiscal year.
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Der Verwaltungsrat legt das
Geschäftsjahr fest.
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Article 31 Allocation of Profit Shown
on the Annual Statutory Balance
Sheet, Reserves
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Artikel 31 Verteilung des Bilanzgewinns, Reserven
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1. The profit shown on the Annual
Statutory Balance Sheet shall be
allocated by the General Meeting of
Shareholders in accordance with
applicable law. The Board of
Directors shall submit its proposals
to the General Meeting of
Shareholders.
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1. Über den Bilanzgewinn verfügt
die Generalversammlung im Rahmen
der anwendbaren gesetzlichen
Vorschriften. Der Verwaltungsrat
unterbreitet ihr seine Vorschläge.
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2. Further reserves may be taken in
addition to the reserves required by
law.
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2. Neben der gesetzlichen Reserve
können weitere Reserven geschaffen
werden.
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3. Dividends that have not been
collected within five years after
their payment date shall enure to the
Company and be allocated to the
general statutory reserves.
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3. Dividenden, welche nicht
innerhalb von fünf Jahren nach
ihrem Auszahlungsdatum bezogen
werden, fallen an die Gesellschaft
und werden in die allgemeinen
gesetzlichen Reserven verbucht.
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SECTION 5 WINDING-UP AND LIQUIDATION
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ABSCHNITT 5 AUFLÖSUNG UND LIQUIDATION
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Article 32 Winding-up and Liquidation
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Artikel 32 Auflösung und Liquidation
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1. The General Meeting of
Shareholders may at any time resolve
on the winding-up and liquidation of
the Company pursuant to applicable
law and the provisions set forth in
these Articles of Association.
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1. Die Generalversammlung kann
jederzeit die Auflösung und
Liquidation der Gesellschaft nach
Massgabe der gesetzlichen und
statutarischen Vorschriften
beschliessen.
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2. The liquidation shall be effected
by the Board of Directors, unless the
General Meeting of Shareholders shall
appoint other Persons as liquidators.
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2. Die Liquidation wird durch den
Verwaltungsrat durchgeführt, sofern
sie nicht durch die
Generalversammlung anderen Personen
übertragen wird.
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3. The liquidation of the Company
shall be effectuated pursuant to the
statutory provisions.
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3. Die Liquidation der Gesellschaft
erfolgt nach Massgabe der
gesetzlichen Vorschriften.
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4. Upon discharge of all liabilities,
the assets of the Company shall be
distributed to the shareholders
pursuant to the amounts paid in,
unless these Articles of Association
provide otherwise.
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4. Nach erfolgter Tilgung der
Schulden wird das Vermögen unter
die Aktionäre nach Massgabe der
eingezahlten Beträge verteilt,
soweit diese Statuten nichts
anderes vorsehen.
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SECTION 6 ANNOUNCEMENTS,
COMMUNICATIONS
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ABSCHNITT 6 BEKANNT-MACHUNGEN, MITTEILUNGEN
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Article 33 Announcements,
Communications
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Artikel 33 Bekanntmachungen, Mitteilungen
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1. The official means of publication
of the Company shall be the Swiss
Official Gazette of Commerce.
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1. Publikationsorgan der
Gesellschaft ist das Schweizerische
Handelsamtsblatt.
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2. To the extent that individual
notification is not required by law,
stock exchange regulations or these
Articles of Association, all
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2. Soweit keine individuelle
Benachrichtigung durch das Gesetz,
börsengesetzliche Bestimmungen oder
diese Statuten verlangt wird,
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communications to the shareholders
shall be deemed valid if published in
the Swiss Official Gazette of
Commerce. Written communications by
the Company to its shareholders shall
be sent by ordinary mail to the last
address of the shareholder or
authorized recipient recorded in the
share register. Financial
institutions holding Shares for
beneficial owners and recorded in
such capacity in the share register
shall be deemed to be authorized
recipients.
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gelten sämtliche Mitteilungen an
die Aktionäre als gültig erfolgt,
wenn sie im Schweizerischen
Handelsamtsblatt veröffentlicht
worden sind. Schriftliche
Bekanntmachungen der Gesellschaft
an die Aktionäre werden auf dem
ordentlichen Postweg an die letzte
im Aktienbuch verzeichnete Adresse
des Aktionärs oder des
bevollmächtigten Empfängers
geschickt. Finanzinstitute, welche
Aktien für wirtschaftlich
Berechtigte halten und als solches
im Aktienbuch eingetragen sind,
gelten als bevollmächtigte
Empfänger.
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SECTION 7 ORIGINAL LANGUAGE
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ABSCHNITT 7 VERBINDLICHER ORIGINALTEXT
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Article 34 Original Language
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Artikel 34 Verbindlicher Originaltext
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In the event of deviations between
the German and English version of
these Articles of Association, the
German text shall prevail.
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Falls sich zwischen der deutschen
und englischen Fassung dieser
Statuten Differenzen ergeben, hat
die deutsche Fassung Vorrang.
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SECTION 8 DEFINITIONS
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ABSCHNITT 8 DEFINITIONEN
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Article 35
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Artikel 35
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1. CO
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1. OR
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The term
CO
has the
meaning assigned to it in
Article 14 para. 1. To
the extent the CO is
amended, references
herein to the articles or
provisions of the CO
shall be deemed to be
references to the
relevant replacement or
amended provisions of the
CO.
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Der Begriff
OR
hat die in Artikel
14 Abs. 1 aufgeführte Bedeutung. Im
Fall von Revisionen des OR gelten
die hierin enthaltenen Bezugnahmen
zu Bestimmungen des OR als
Bezugnahmen auf die
Ersatzbestimmungen oder geänderten
Bestimmungen des OR.
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2. Company
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2. Gesellschaft
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The term
Company
has the
meaning assigned to it in
Article 1.
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Der Begriff
Gesellschaft
hat die in
Artikel 1 aufgeführte Bedeutung.
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3. Person
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3. Person
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Person
means any
individual, company,
corporation, limited
liability company,
partnership,
unincorporated
association or other
entity. When two or more
Persons act as a
partnership, limited
partnership, syndicate,
or other group for the
purpose of acquiring,
holding, or disposing of
securities of the
Company, such syndicate
or group shall be deemed
a Person for the
purposes of this
definition.
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Person
bedeutet jede natürliche
Person, Kapitalgesellschaft,
rechts- oder nicht-rechtsfähige
Personengesellschaft oder jeder
andere Rechtsträger. Wenn zwei oder
mehr Personen als
Personengesellschaft,
Kommanditgesellschaft, Syndikat
oder andere Gruppe mit dem Zweck
des Erwerbs, des Haltens oder der
Zurverfügungstellung von
Sicherheiten der Gesellschaft
handeln, soll ein solches Syndikat
als Person im Sinne dieser
Definition gelten.
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4. Rights
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4. Rechte
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The term
Rights
has the
meaning assigned to it in
Article 6 para. 1.
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Der Begriff
Rechte
hat die in
Artikel 6 Abs. 1 aufgeführte
Bedeutung.
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5. Rights-Bearing Obligations
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5. Mit Rechten verbundenen
|
The term
Rights-Bearing
Obligations
has the
meaning assigned to it in
Article 6 para. 1.
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Obligationen
Der Begriff
mit Rechten verbundenen
Obligationen
hat die in Artikel 6
Abs. 1 aufgeführte Bedeutung.
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6.
SEC
The term
SEC
has the
meaning assigned to it in
Article 12 para. 2.
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6. SEC
Der Begriff
SEC
hat die in Artikel
12 Abs. 2 aufgeführte Bedeutung.
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7. Share(s)
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7. Aktie(n)
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The term
Share(s)
has the
meaning assigned to it in
Article 4.
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Der Begriff
Aktie(n)
hat die in
Artikel 4 aufgeführte Bedeutung.
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8. Transfer Agent
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8. Transfer Agent
|
The term
Transfer Agent
has the meaning assigned
to it in Article 8 para.
3.
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Der Begriff
Transfer Agent
hat die
in Artikel 8 Abs. 3 aufgeführte
Bedeutung.
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SECTION 9 TRANSITIONAL PROVISIONS
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ABSCHNITT 9 ÜBERGANGS-BESTIMMUNGEN
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Article 36 Contribution in Kind
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Artikel 36 Sacheinlage
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The Company acquires, in connection
with the capital increase of February
26, 2009, and in accordance with the
order issued by the Supreme Court of
Bermuda on February 20, 2009
sanctioning the scheme of arrangement
of February 17, 2009 between
Weatherford International Ltd., an
exempted company with limited
liability under the laws of Bermuda
with registered office in Bermuda and
listed on the New York Stock Exchange
(
Weatherford Bermuda
), and its
shareholders, as approved by the
shareholders of Weatherford Bermuda
(the
Scheme of Arrangement
), in
relation with an agreement dated
December 10, 2008, all of the 728,782,425 common shares of Weatherford Bermuda,
which have a total value of CHF
7,922,062,403.82. As consideration for this contribution, the Company issues to a
nominee, acting on behalf and for the
account of the holders of common
shares of Weatherford Bermuda, a
total of 728,782,425 Shares with a
total par value of CHF 845,387,613. The
difference between the aggregate par
value of the issued Shares and the
total value of the contribution, in
the amount of CHF 7,076,674,790.82, is
allocated to the reserves of the
Company.
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Die Gesellschaft übernimmt bei der
Kapitalerhöhung vom 26. Februar
2009 gemäss einem Vertrag von 10.
Dezember 2008 in Verbindung mit
einem Urteil des Supreme Court von
Bermuda vom 20. Februar 2009 zum
Umstrukturierungsplan (scheme of
arrangement) vom 17. Februar 2009
zwischen der Weatherford
International Ltd., einer
Gesellschaft mit beschränkter
Haftung gemäss Bermuda Recht mit
Sitz in Bermuda und Kotierung an
der New York Stock Exchange
(
Weatherford Bermuda
), und ihren
Aktionären, der von den Aktionären
der Weatherford Bermuda genehmigt
wurde (
der Plan
), alle 728782425 Aktien
der Weatherford Bermuda, welche
einen Wert von insgesamt CHF
7922062403.82 haben. Als Gegenleistung für diese Sacheinlage gibt die
Gesellschaft einem Umtauschagenten
(nominee), handelnd auf Rechnung
der Aktionäre der Weatherford
Bermuda, insgesamt 728782425 voll
einbezahlte Aktien mit einem
Nennwert von insgesamt CHF
845387613 aus. Die Gesellschaft
weist die Differenz zwischen dem
totalen Nennwert der ausgegebenen
Aktien und dem Übernahmewert der
Sacheinlage im Gesamtbetrag von CHF
7076674790.82 den Reserven der Gesellschaft zu.
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Exhibit 3.2
ORGANIZATIONAL
REGULATIONS
dated as
of February 25,
2009
of
Weatherford
International Ltd.,
a Swiss
corporation with its registered office in Zug
ARTICLE 1
SCOPE AND
BASIS
Section
1.01.
Basis
.
These
Organizational Regulations (the
Organizational
Regulations
) are enacted by the Board of Directors of
Weatherford International Ltd. (the
Company
) pursuant to
article 716b of the Swiss Code of Obligations (
CO
)
and Article 26 of the Companys articles of
association (the
Articles of Association
). The
Organizational Regulations govern the internal organization and
the duties, powers and responsibilities of the Board of
Directors, Board Committees and officers of the Company
(collectively, the
Executive Bodies
).
Section
1.02.
Group
Companies
.
The Company is an operating and
holding company with international subsidiaries active in
businesses that are involved in providing equipment and related
services used for drilling, evaluation, completion, production
and intervention of oil and natural gas wells. The Executive
Bodies of the Company shall duly respect the legal independence
of all subsidiary companies and the local laws applicable to
them. To ensure proper functioning among the Company and its
subsidiaries, in the interests of the Company and its
shareholders and to comply with various requirements imposed by
relevant laws and regulatory authorities, the Board of Directors
shall supervise and, where necessary and appropriate, coordinate
the business of the Company and its subsidiaries by providing
overall guidance and support.
Section
1.03.
Interpretation
.
(a) Words importing the singular number shall also include
the plural number and vice-versa.
(b) Words importing the masculine gender shall also include
the feminine gender.
ARTICLE 2
CORPORATE
ORGANIZATION
The Company shall have the following functions and committees:
(a) the Board of Directors (the
Board
);
(b) the chairman of the Board (the
Chairman
);
(c) the board committees established from time to time
pursuant to these Organizational Regulations (the
Board
Committees
);
(d) the chief executive officer of the Company (the
Chief Executive Officer
); and
(e) the officers and other management of the Company.
ARTICLE 3
THE BOARD
Section
3.01.
Constitution
.
The
Board shall elect from among its members one Chairman. It may
elect one or more Vice-Chairmen. It shall further appoint a
Secretary who need not be a member of the Board. The Secretary
shall keep the minutes of the General Meetings of Shareholders
and the meetings of the Board and give notice of such meetings
and shall perform like duties for the committees of the Board
when so required. In the case of the absence or inability to act
of the Secretary, any Assistant Secretary (or, in the case of
keeping minutes of the General Meeting of Shareholders or the
meetings of the Board, any other person designated by the
presiding officer of such meeting) may act in the
Secretarys place.
Section
3.02.
Board
Composition
.
In selecting candidates for
Board membership the Board shall give due consideration to the
governance framework set forth in the Corporate Governance
Principles of the Company.
1
Section
3.03.
Powers
and Duties
.
(a) The Board is the ultimate executive body of the Company
and shall determine the principles of the business strategy and
policies. The Board shall exercise its function as required by
law, the Articles of Association and these Organizational
Regulations.
(b) The Board shall be authorized to pass resolutions on
all matters that are not reserved to the General Meeting of
Shareholders or to other Executive Bodies by applicable law, the
Articles of Association or these Organizational Regulations.
(c) In particular, the Board has the following powers and
duties:
(i) the ultimate direction of the Company and the issuance
of the necessary guidelines in accordance with applicable law
and regulations;
(ii) the determination of the Companys organizational
structure, including the promulgation and the amendment of these
Organizational Regulations;
(iii) the determination of the Companys accounting
principles, financial control and financial planning;
(iv) the appointment and removal of the persons responsible
for the management and representation of the Company;
(v) the ultimate supervision of the persons entrusted with
the management of the Company, in particular with regard to
their compliance with applicable law, the Articles of
Association, these Organizational Regulations and other
applicable instructions and guidelines;
(vi) the review and approval of the business report and the
financial statements of the Company as well as the preparation
of the General Meeting of Shareholders and the implementation of
its resolutions;
(vii) the notification of the court if the liabilities of
the Company exceed the assets of the Company (article 725
CO);
(viii) the adoption of resolutions concerning an increase
in the share capital of the Company to the extent that such
power is vested in the Board (article 651 para. 4 CO) and
of resolutions concerning the confirmation of capital increases
and corresponding amendments to the Articles of Association, as
well as making the required report on the capital increase;
(ix) the establishment of the Companys dividend
policy;
(x) the proposal to the General Meeting of Shareholders of
candidates for election or re-election to the Board, upon
recommendation of the Corporate Governance and Nominating
Committee;
(xi) the response to any takeover offer for the Company;
(xii) the establishment of any code of ethics, code of
conduct and business practice;
(xiii) the determination of any membership and terms of
reference of any Board Committees;
(xiv) the approval of any agreements to which the Company
is a party relating to mergers, demergers, transformations
and/or
transfer of assets, to the extent required pursuant to the Swiss
Merger Act
and/or
unless approval by the General Meeting of Shareholders is
required pursuant to the Swiss Merger Act;
(xv) the appointment and removal of the Chairman (giving
due consideration to the Corporate Governance Guidelines of the
Company) and the Secretary, the members of Board Committees and
the officers, as well as the determination of their signatory
power (see Section 9.01);
(xvi) the approval of the annual investment and operating
budget;
(xvii) the approval of share buybacks of the
Company; and
2
(xviii) the determination for the Company to enter into new
areas of activity and withdrawal from existing areas of
business, each within the purpose of the Company as specified in
the Companys Articles of Association.
Section
3.04.
Delegation
of Management
.
To the extent permitted by
applicable law and stock exchange rules and except as otherwise
provided herein, the Board herewith delegates, in the sense of
article 716b CO, all other duties, including the
implementation of the Board and committee resolutions as well as
the supervision of particular aspects of the business and the
management of the Company, to the Chief Executive Officer.
Subject to Section 3.07, Directors will have complete and
open access to the officers of the Company, including the Chief
Executive Officer.
Section
3.05.
Meetings
.
(a) The Board shall meet together for the transaction of
business, convening, adjourning and otherwise regulating its
meetings as it thinks fit. The Board shall give due
consideration to the governance framework set forth in the
Corporate Governance Guidelines of the Company.
(b) Regularly scheduled meetings of the Board may be held
at such time and at such place as shall from time to time be
determined by the Chairman. Special meetings of the Board may be
called by the Chairman or any two members of the Board. Any
member of the Board may request that the Chairman convene a
meeting as soon as practicable, subject to providing a reason
for so requesting a meeting.
(c) No notice need be given of any regular meeting of the
Board or of any adjourned meeting of the Board. No notice need
be given to any Director who signs a written waiver thereof or
who attends the meeting without protesting the lack of notice.
Notices need not state the purpose of the meeting. Attendance of
a Director at any meeting shall constitute a waiver of notice of
such meeting, except when a Director attends and makes it known
that he is attending for the express purpose of objecting to the
transaction of any business on the grounds that the meeting is
not lawfully convened, and such purpose is duly recorded in the
minutes of such meeting.
(d) Notice of each special meeting of the Board shall be
given to each Director either by first class mail or by a mail
service equivalent to first class mail, at least three days
before the meeting, by overnight or other express
delivery service at least two days before the meeting, or by
telecopy, facsimile, personal written delivery,
e-mail
(or
other electronic means of communication) or telephone at least
one day before the meeting. Any notice given by telephone shall
be immediately confirmed by telecopy, facsimile, or
e-mail
(or
other electronic means of communication). Notices are deemed to
have been given: by mail, when deposited in the mail with
postage prepaid; by overnight or other express
delivery service, the day after sending; by telecopy or
facsimile, upon receipt of a transmittal confirmation; and by
personal delivery,
e-mail
or
telephone, at the time of delivery. Written notices shall be
sent to a Director at the address or
e-mail
address designated by such Director for that purpose or, if none
has been so designated, at such Directors last known
residence, business or
e-mail
address.
(e) Any one or more Directors or any committee thereof may
participate in a meeting of the Board or committee by conference
telephone or similar communications equipment by means of which
all persons participating in the meeting can hear each other,
and participation in a meeting by such means shall constitute
presence in person at such meeting.
Section
3.06.
Attendance
Quorum; Resolutions and Minutes
.
(a) The attendance quorum necessary for the transaction of
the business of the Board shall be the greater of two Directors,
and not less than one-third of the total number of Directors. No
attendance quorum shall be required for resolutions of the Board
providing for the confirmation of a capital increase or for the
amendment of the Articles of Association in connection therewith.
(b) The Board shall pass its resolutions with the majority
of the votes cast by the Directors present at a meeting at which
the attendance quorum of Section 3.06(a) above is
satisfied. The Chairman shall have the same vote as each other
Director.
3
(c) Resolutions of the Board may be passed without a
meeting by way of written consent by a majority of the whole
Board, provided that no member of the Board requests oral
deliberations. In such a case, a resolution in writing (in one
or more counterparts) signed by a majority the Directors or all
the members of a committee of the Directors (including signed
copies sent by facsimile or email) shall be as valid and
effectual as if it had been passed at a meeting of the Board or
committee, as the case may be, duly convened and held.
(d) The Board shall cause minutes to be made for the
purpose of recording the proceedings at all meetings of the
Company and the Directors and of committees of the Board. The
minutes of Board meetings shall be signed by the acting chairman
and the secretary and must be approved by the Board. The minutes
of committee meetings shall be signed by the acting chairman and
must be approved by such committee.
Section
3.07.
Information
and Reporting
.
(a) At Board meetings, each member of the Board is entitled
to request and receive from other Directors and from the Chief
Executive Officer information on all affairs of the Company.
(b) Outside of Board meetings, each Director may request
information from the Chief Executive Officer on the general
course of business and, upon approval of the Chairman, each
Director may obtain information on specific transactions
and/or
access to business documents.
Section
3.08.
Compensation
.
Each
Director shall be entitled to receive as compensation for such
Directors services as a Director or committee member or
for attendance at meetings of the Board or committees, or both,
such amounts and type of compensation (if any) as shall be fixed
from time to time by the Board or the Compensation Committee. In
determining Directors compensation, the Board shall give
due consideration to the governance framework set forth in the
Corporate Governance Guidelines of the Company as well as the
recommendations of the Compensation Committee. Each Director
shall be entitled to reimbursement for reasonable traveling
expenses incurred by such Director in attending any such meeting.
Section
3.09.
Conflicts
of Interest
.
(a) Any Director, or any Directors firm, partner or
any company with whom any Director is associated, may act in a
professional capacity for the Company and such Director or such
Directors firm, partner or such company shall be entitled
to remuneration for professional services as if such Director
were not a Director, provided that nothing herein shall
authorize a Director or Directors firm, partner or company
to act as auditor of the Company.
(b) A Director who is directly or indirectly interested in
a contract or proposed contract or arrangement with the Company
shall disclose the nature of such interest as required by
applicable law.
(c) The Director facing a conflict of interests shall not
participate in the deliberations and resolutions on matters
involving such conflict of interests.
Section
3.010.
Participation
by Non-Members
.
Persons who are not members
of the Board of Directors or committees of the Board may
participate in meetings of such bodies if their expertise is
required and they have been invited by the chairperson of such
body. Such persons shall not vote upon any resolutions.
ARTICLE 4
CHAIRMAN AND
VICE-CHAIRMAN
Section
4.01.
Power
and Duties
.
The Chairman of the Board shall
preside at all meetings of the Board. Further, the Chairman has
the following powers and duties:
(a) contact with the officers and management of the Company
between Board meetings in order to be informed about important
business developments;
(b) preparing the agenda for the General Meetings of
Shareholders and Board meetings;
(c) presiding over the General Meetings of Shareholders and
Board meetings;
4
(d) informing the full Board without delay of material
extraordinary events; and
(e) any other matters reserved by law, the Articles of
Association or these Organizational Regulations to the Chairman.
Section
4.02.
Authority
.
Should
the Chairman be unable or unavailable to exercise his functions,
his functions shall be assumed by the Vice-Chairman, if one has
been elected, or if the latter has not been elected or should be
unable or unavailable, another Director appointed by the Board.
ARTICLE 5
BOARD
COMMITTEES
Section
5.01.
General
.
(a) The Board may, by resolution passed by a majority of
the whole Board, designate one or more committees, each
committee to consist of one or more of the Directors, as
designated by the Board. The Board may designate one or more
alternate Directors as members of any committee, who may replace
any absent member at any meeting of the committee. In the
absence of a member of a committee, the member or members
thereof present at any meeting and not disqualified from voting,
whether or not constituting a quorum, may unanimously appoint
another member of the Board to act at the meeting in the place
of any such absent member. At all meetings of any committee, a
majority of its members (or the member, if only one) shall
constitute a quorum for the transaction of business, and the act
of a majority of the members present shall be the act of any
such committee, unless otherwise specifically provided by law,
the Articles of Association or these Organizational Regulations.
The Board shall have the power at any time to change the number
and members of any such committee, to fill vacancies and to
discharge any such committee.
(b) Sections 3.05 and 3.06(b) through (d) above
with respect to notice of, and participation in, meetings of the
Board shall apply also to meetings of committees, unless
different provisions shall be prescribed by the Board. Each
committee shall serve at the discretion of the Board. It shall
keep minutes of its meetings and report the same to the Board
when required and shall observe such procedures as are
prescribed by the Board.
(c) Any committee of the Board, to the extent provided by
the provisions set forth herein and in such committees
charter, but subject to any limitation imposed by the Swiss Code
of Obligations, shall have and may exercise all the powers
and authority of the Board in the management of the affairs of
the Company that are assigned to it by the Board, and may further
assist the Board in implementing its resolutions. The Board may
delegate to any such committee the necessary powers to that
effect pursuant to the provisions of such committees
charter.
(d) The committees have the right, at any time and in their
discretion, to make or request inquiries in all matters within
their responsibilities as specified in such committees
charter. They may hire independent legal advisors, auditors and
other experts, in particular to establish a comparison with
general principles of best practice or otherwise. The expenses
shall be borne by the Company.
Section
5.02.
Individual
Committees
.
The committees of the Board shall
be the Audit Committee, the Compensation Committee, the
Corporate Governance and Nominating Committee and any other
committees designated by the Board.
ARTICLE 6
CHIEF
EXECUTIVE OFFICER
Section
6.01.
Powers
and Duties
.
Subject to applicable law,
regulations and stock exchange rules, the day-to-day executive
management of the Company shall be the responsibility of the
Chief Executive Officer. If the President (as described below)
shall not be designated the Chief Executive Officer of the
Company, such President shall have such authority and perform
such duties as may be prescribed from time to time by the Board
or the Chief Executive Officer. The Chief Executive Officer
shall have the primary responsibility for the management of the
Company, and shall directly report to the Board.
5
Section
6.02.
Reporting
.
The
Chief Executive Officer shall regularly inform the Board at the
Board meetings on the current course of business and all major
business matters of the Company.
ARTICLE 7
OFFICERS
Section
7.01.
Composition
.
The
officers of the Company shall be chosen by the Board and shall
include a Chief Executive Officer, a President and one or more
Vice Presidents (who may be further classified by such
descriptions as Executive, Senior or
Assistant as determined by the Board), and such
other officers, as the Board may deem necessary or appropriate.
The Board may from time to time authorize any officer to appoint
and remove any other officer or agent and to prescribe such
persons authority and duties. Any person may hold at one
time two or more offices. Each officer shall have such authority
and perform such duties, in addition to those specified in these
Articles, as may be prescribed by the Board from time to time.
Section
7.02.
Term
of Office
.
Each officer shall hold office for
the term for which appointed by the Board, and until the
persons successor has been appointed and qualified or
until such persons earlier resignation or removal. Any
officer may be removed by the Board, with or without cause. The
election or appointment of an officer shall not in and of itself
create contractual rights to bind the Company. Any officer may
resign at any time by giving written notice to the Board or the
Secretary. Any such resignation shall take effect at the time
specified therein or, if such time is not specified therein,
then upon receipt of such notice, and, unless otherwise
specified therein, the acceptance of such resignation shall not
be necessary to make it effective.
ARTICLE 8
FISCAL YEAR
Section
8.01.
Determination
.
The
fiscal year of the Company shall start on January 1 and end on
December 31.
ARTICLE 9
GENERAL
PROVISIONS
Section
9.01.
Signatory
Power
.
The Directors, officers and other
persons authorized to represent the Company and its subsidiaries
have individual or joint signatory power, as determined
appropriate by the Board from time to time or as otherwise
required by applicable law.
Section
9.02.
Insurance
.
The
Company may procure directors and officers liability
insurance for the Directors and for officers of the Company. Any
costs of insurance shall be charged to the Company or its
subsidiaries.
ARTICLE 10
FINAL
PROVISIONS
Section
10.01.
Change
of or Amendments to these Organizational
Regulations
.
Any change of or amendment to
these Organizational Regulations shall only be valid if the
Board approved such change or amendment with the attendance
quorum and the majority as set forth in Section 3.06(a),
(b) and (c), respectively.
SO RESOLVED as
of February 25,
2009.
6
EXHIBIT 4.1
FIFTH SUPPLEMENTAL INDENTURE
among
WEATHERFORD INTERNATIONAL, INC.,
a Delaware corporation,
WEATHERFORD INTERNATIONAL LTD.,
a Bermuda exempted company,
WEATHERFORD INTERNATIONAL LTD.,
a Swiss corporation,
and
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
as Trustee
Dated as of
February 26, 2009
to Indenture dated as of May 17, 1996
TABLE OF CONTENTS
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ARTICLE ONE AMENDMENTS TO THE INDENTURE
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2
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SECTION 101 Applicability of Amendments
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2
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SECTION 102 Definitions
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2
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SECTION 103 Notices
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3
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SECTION 104 Additional Events of Default
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3
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SECTION 105 Trustee Matters
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3
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SECTION 106 Defeasance and Covenant Defeasance
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4
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SECTION 107 Guarantee
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4
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ARTICLE TWO SECURITIES TO WHICH ARTICLE ONE APPLICABLE
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9
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SECTION 201 Securities to which Article One Applicable
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9
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ARTICLE THREE MISCELLANEOUS PROVISIONS
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9
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SECTION 301 Integral Part
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9
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SECTION 302 General Definitions
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10
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SECTION 303 Adoption, Ratification and Confirmation
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10
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SECTION 304 Trust Indenture Act Controls
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10
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SECTION 305 Governing Law
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10
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SECTION 306 Severability
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10
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SECTION 307 Counterpart Originals
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10
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SECTION 308 Successors
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10
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SECTION 309 Table of Contents and Headings
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10
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SECTION 310 Benefit of Fifth Supplemental Indenture
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11
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SECTION 311 Acceptance by Trustee
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11
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-i-
THIS FIFTH SUPPLEMENTAL INDENTURE, dated as of February 26, 2009, among Weatherford
International, Inc., a Delaware corporation (the
Company
), Weatherford International Ltd., a
Bermuda exempted company (
Weatherford Bermuda
), Weatherford International Ltd., a Swiss
corporation (
Weatherford Switzerland
), and The
Bank of New York Mellon Trust Company, N.A. (as successor in interest to Bank
of Montreal Trust Company) (the
Trustee
).
RECITALS OF THE COMPANY
WHEREAS, the Company has heretofore executed and delivered to the Trustee an Indenture, dated
as of May 17, 1996, as supplemented by the First Supplemental Indenture thereto, dated as of May
27, 1998, the Second Supplemental Indenture thereto, dated as of June 30, 2000 (the
Second
Supplemental Indenture
), the Third Supplemental Indenture thereto, dated as of November 16, 2001
(the
Third Supplemental Indenture
), and the Fourth Supplemental Indenture thereto, dated as of
June 26, 2002 (the
Fourth Supplemental Indenture
, and such indenture as so supplemented, the
"
Indenture
), providing for the issuance from time to time of one or more series of the Companys
Securities; and
WHEREAS, the Company, in accordance with an Officers Certificate dated as of May 28, 1996,
previously issued $200 million original aggregate principal amount of its 7
1
/
4
% Notes due May 15,
2006, none of which notes remain outstanding as of the date hereof; and
WHEREAS, the Company, in accordance with the Second Supplemental Indenture, previously issued
$910 million aggregate original principal amount of its Zero Coupon Convertible Debentures due June
30, 2020, none of which debentures remain outstanding as of the date hereof; and
WHEREAS, the Company has, in accordance with the Third Supplemental Indenture, previously
issued $350 million aggregate original principal amount of its 6
5
/
8
% Notes due 2011 (the
6
5
/
8
%
Notes
), which 6
5
/
8
% Notes remain outstanding as of the date hereof; and
WHEREAS, Weatherford Bermuda has, in accordance with the Fourth Supplemental Indenture,
previously provided a guarantee of the 6
5
/
8
% Notes; and
WHEREAS, pursuant to a share exchange transaction effected by a scheme of arrangement, in
connection with a share exchange agreement, between Weatherford Bermuda and Weatherford
Switzerland, pursuant to which each holder of common shares of Weatherford Bermuda issued and
outstanding immediately before the transaction transferred such common shares to Weatherford
Switzerland solely in exchange for (through a nominee acting on behalf and for the account of the
shareholders) the same number of shares of Weatherford Switzerland (the
Redomestication
), the
Company has, contemporaneously with the effectiveness of this Fifth Supplemental Indenture, become
an indirect, wholly-owned subsidiary of Weatherford Switzerland and Weatherford Bermuda has become
a direct, wholly-owned subsidiary of Weatherford Switzerland; and
WHEREAS, in connection with such Redomestication, Weatherford Switzerland has determined that
it will be in the best interests of and beneficial to Weatherford Switzerland to
enter into this Fifth Supplemental Indenture for the purposes of providing a guarantee of the
6
5
/
8
% Notes in accordance with the terms of this Fifth Supplemental Indenture; and
WHEREAS, Sections 901(2) and 901(3) of the Indenture permit the execution of supplemental
indentures without the consent of any Holders to add any additional Events of Default with respect
to, and to add to the covenants of the Company for the benefit of, all or any series of Securities;
and
WHEREAS, Section 901(5) of the Indenture permits the execution of supplemental indentures
without the consent of any Holders to add to, change or eliminate any provisions of the Indenture
in respect of one or more series of Securities; provided, that any such change or elimination does
not adversely affect in any material respect any outstanding Security of any series created prior
to the execution of such supplemental indenture; and
WHEREAS, the Company, pursuant to the foregoing authority, proposes in and by this Fifth
Supplemental Indenture to supplement and amend the Indenture in certain respects; and
WHEREAS,
the changes contained herein do not adversely affect in any material
respect any Holder of any outstanding Security; and
WHEREAS,
the Trustee is hereby authorized and directed to execute this Fifth
Supplemental Indenture; and
WHEREAS,
all things necessary have been done to make this Fifth Supplemental
Indenture a valid and legally binding
agreement of the Company, Weatherford Bermuda and Weatherford Switzerland, in accordance with its
terms.
NOW THEREFORE:
In consideration of the premises provided for herein, the Company, Weatherford Bermuda,
Weatherford Switzerland and the Trustee mutually covenant and agree as follows:
ARTICLE ONE
AMENDMENTS TO THE INDENTURE
SECTION 101
Applicability of Amendments
.
The amendments contained in this Article ONE of this Fifth Supplemental Indenture shall apply only
to any series of Securities issued under the Indenture which have specifically been made subject to
such amendments, and not to any other series of Securities issued under the Indenture, and any
covenants provided in this Article ONE of this Fifth Supplemental Indenture are expressly being
included solely for the benefit of such Securities and not for the benefit of any other series of
Securities issued under the Indenture. These amendments shall be effective for so long as there
remain Outstanding any Securities of a series to which the provisions of this Article ONE apply.
SECTION 102
Definitions
.
Section 101 of the Indenture is hereby amended, subject to Section 201 of this Fifth Supplemental
Indenture, to add Weatherford Switzerland to the definition of the term Guarantor by replacing
the current definition of such term with the following:
2
Guarantors shall mean Weatherford International Ltd., a Bermuda exempted
company, until a successor Person shall have become such pursuant to the applicable
provisions of this Indenture (and thereafter shall mean such successor Person), and
Weatherford International Ltd., a Swiss corporation, until a successor Person shall
have become such pursuant to the applicable provisions of this Indenture (and
thereafter shall mean such successor Person), and Guarantor shall mean either (i)
Weatherford International Ltd., a Bermuda exempted company, or its successor Person,
or (ii) Weatherford International Ltd., a Swiss corporation, or its successor
Person.
SECTION 103
Notices.
Section 105 of the Indenture is hereby amended, subject to Section 201 of this Fifth Supplemental
Indenture, by replacing the current subsection (3) with the following:
(3) a Guarantor by the Trustee or by any Holder shall be sufficient for every
purpose hereunder (unless otherwise herein expressly provided) if in writing and
mailed, first-class postage prepaid, to such Guarantor addressed to it at:
Weatherford International Ltd., c/o Weatherford International, Inc., 515 Post Oak
Blvd., Houston, Texas 77027, to the attention of its Treasurer, or at any other
address previously furnished in writing to the Trustee by such Guarantor.
SECTION 104
Additional Events of Default.
Section 501 of the Indenture is hereby amended, subject to Section 201 of this Fifth Supplemental
Indenture, by (a) replacing the words and the Guarantor each time said words appear in
subsections (4) and (7) thereof with the words and the Guarantors, (b) replacing the words the
Guarantor each time said words appear in subsections (9), (10) and (11) thereof with the words
any Guarantor, and (c) replacing the existing subsection (8) thereof with the following:
(8) default in the performance, or breach, of any covenant or warranty of any
Guarantor in this Indenture, and continuation of such default or breach for a period
of 90 days after there has been given, by registered or certified mail, to the
Company and such Guarantor by the Trustee or to the Company and such Guarantor and
the Trustee by the Holders of at least 25% in principal amount of the Outstanding
Securities of that series a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a Notice of Default
hereunder; or
SECTION 105
Trustee Matters.
Section 605 of the Indenture is hereby amended, subject to Section 201 of this Fifth Supplemental
Indenture, by replacing the words the Guarantor each time said words appear therein, with the
words any Guarantor.
3
SECTION 106
Defeasance and Covenant Defeasance.
Article THIRTEEN of the Indenture is hereby amended, subject to Section 201 of this Fifth
Supplemental Indenture, by replacing the existing Section 1307 with the following:
SECTION 1307
Effects of Defeasance on Guarantors
.
Upon any defeasance in accordance with Section 1302 hereof of the Securities of
a series to which this Section 1307 has been made applicable, all Guarantors shall
be discharged from their obligations hereunder in respect of the Securities of such
series to the same extent and subject to the same conditions as the Company is
released from its obligations hereunder in respect of the Securities of such series.
Upon any covenant defeasance in accordance with Section 1303 hereof of the
Securities of a series to which this Section 1307 has been made applicable, all
Guarantors shall be discharged from their obligations under Section 1905(a) hereof
in respect of the Securities of such series to the same extent and subject to the
same conditions as the Company is released from its obligations in respect of the
Securities of such series under Section 801 hereof.
SECTION 107
Guarantee.
Article NINETEEN of the Indenture is hereby amended, subject to Section 201 of this Fifth
Supplemental Indenture, by replacing the current Article NINETEEN with the following:
ARTICLE NINETEEN
GUARANTEES OF SECURITIES
SECTION 1901
Unconditional Guarantees
.
(a) For value received, each Guarantor hereby fully, irrevocably,
unconditionally and absolutely guarantees to the Holders of Securities of
each series to which this Article NINETEEN has been made applicable and to
the Trustee the due and punctual payment of the principal of, and premium,
if any, and interest on such Securities, Liquidated Damages, if any, and all
other amounts due and payable under this Indenture and such Securities by
the Company to the Trustee or such Holders (including, without limitation,
all costs and expenses (including reasonable legal fees and disbursements)
incurred by the Trustee or such Holders in connection with the enforcement
of this Indenture and the Guarantees) (collectively, the
Indenture
Obligations
), when and as such principal, premium, if any, interest,
Liquidated Damages, if any, and other amounts shall become due and payable,
whether at the Stated Maturity, upon redemption or by declaration of
acceleration or otherwise, according to the terms of such Securities and
this Indenture. The guarantees by the Guarantors set forth in this Article
NINETEEN are referred to herein as the
Guarantees.
Without limiting the
generality of the foregoing, the Guarantors liability shall extend to all
amounts that constitute part of the
4
Indenture Obligations and would be owed by the Company to the Trustee
or such Holders under this Indenture and such Securities but for the fact
that they are unenforceable, reduced, limited, impaired, suspended or not
allowable due to the existence of a bankruptcy, reorganization or similar
proceeding involving the Company.
(b) Failing payment when due of any amount guaranteed pursuant to the
Guarantees, for whatever reason, each Guarantor will be obligated to pay the
same, without duplication, immediately to the Trustee, without set-off or
counterclaim or other reduction whatsoever (whether for taxes, withholding
or otherwise). Each Guarantee hereunder is intended to be a general,
unsecured, senior obligation of the applicable Guarantor and will rank
pari
passu
in right of payment with all indebtedness of such Guarantor that is
not, by its terms, expressly subordinated in right of payment to the
Guarantee of such Guarantor. Each Guarantor hereby agrees that, to the
fullest extent permitted by applicable law, its obligations hereunder shall
be full, irrevocable, unconditional and absolute, irrespective of the
validity, regularity or enforceability of such Securities, the Guarantees or
this Indenture, the absence of any action to enforce the same, any waiver or
consent by any Holder with respect to any provisions hereof or thereof, the
recovery of any judgment against the Company, any action to enforce the same
or any other circumstance which might otherwise constitute a legal or
equitable discharge or defense of such Guarantor. Each Guarantor hereby
agrees that in the event of a default in payment of the principal of, or
premium, if any, or interest on such Securities, or Liquidated Damages, if
any, or any other amounts payable under this Indenture and such Securities
by the Company to the Trustee or the Holders thereof, whether at the Stated
Maturity, upon redemption or by declaration of acceleration or otherwise,
legal proceedings may be instituted by the Trustee on behalf of such Holders
or, subject to Section 5.06 hereof, by such Holders, on the terms and
conditions set forth in this Indenture, directly against such Guarantor to
enforce its Guarantee without first proceeding against the Company or any
other Guarantor.
(c) To the fullest extent permitted by applicable law, the obligations
of the Guarantors under this Article NINETEEN shall be as aforesaid full,
irrevocable, unconditional and absolute and shall not be impaired, modified,
discharged, released or limited by any occurrence or condition whatsoever,
including, without limitation, (i) any compromise, settlement, release,
waiver, renewal, extension, indulgence or modification of, or any change in,
any of the obligations and liabilities of the Company or any Guarantor
contained in any of such Securities or this Indenture, (ii) any impairment,
modification, release or limitation of the liability of the Company, any
Guarantor or any of their estates in bankruptcy, or any remedy for the
enforcement thereof, resulting from the operation of any present or future
provision of any applicable Bankruptcy Law, as
5
amended, or other statute or from the decision of any court, (iii) the
assertion or exercise by the Trustee or any such Holder of any rights or
remedies under any of such Securities or this Indenture or their delay in or
failure to assert or exercise any such rights or remedies, (iv) the
assignment or the purported assignment of any property as security for any
of such Securities, including all or any part of the rights of the Company
or any Guarantor under this Indenture, (v) the extension of the time for
payment by the Company or any Guarantor of any payments or other sums or any
part thereof owing or payable under any of the terms and provisions of any
of such Securities or this Indenture or of the time for performance by the
Company or any Guarantor of any other obligations under or arising out of
any such terms and provisions or the extension or the renewal of any
thereof, (vi) the modification or amendment (whether material or otherwise)
of any duty, agreement or obligation of the Company or any Guarantor set
forth in this Indenture, (vii) the voluntary or involuntary liquidation,
dissolution, sale or other disposition of all or substantially all of the
assets, marshaling of assets and liabilities, receivership, insolvency,
bankruptcy, assignment for the benefit of creditors, reorganization,
arrangement, composition or readjustment, rehabilitation or relief of, or
other similar proceeding affecting, the Company or any Guarantor or any of
their respective assets, or the disaffirmance of any of such Securities, the
Guarantees or this Indenture in any such proceeding, (viii) the release or
discharge of the Company or any Guarantor from the performance or observance
of any agreement, covenant, term or condition contained in any of such
instruments by operation of law, (ix) the unenforceability of any of such
Securities, the Guarantees or this Indenture, (x) any change in the name,
business, capital structure, corporate existence, or ownership of the
Company or any Guarantor, or (xi) any other circumstance which might
otherwise constitute a defense available to, or a legal or equitable
discharge of, a surety or any Guarantor.
(d) To the fullest extent permitted by applicable law, each Guarantor
hereby (i) waives diligence, presentment, demand of payment, notice of
acceptance, filing of claims with a court in the event of the merger,
insolvency or bankruptcy of the Company or any Guarantor, and all demands
and notices whatsoever, (ii) acknowledges that any agreement, instrument or
document evidencing the Guarantees may be transferred and that the benefit
of its obligations hereunder shall extend to each holder of any agreement,
instrument or document evidencing the Guarantees without notice to them and
(iii) covenants that its Guarantee will not be discharged except by complete
performance of the Guarantees. To the fullest extent permitted by
applicable law, each Guarantor further agrees that if at any time all or any
part of any payment theretofore applied by any Person to any Guarantee is,
or must be, rescinded or returned for any reason whatsoever, including
without limitation, the insolvency, bankruptcy or reorganization of any
Guarantor, such Guarantee shall, to
6
the extent that such payment is or must be rescinded or returned, be
deemed to have continued in existence notwithstanding such application, and
the Guarantees shall continue to be effective or be reinstated, as the case
may be, as though such application had not been made.
(e) The Guarantors shall be subrogated to all rights of the Holders and
the Trustee against the Company in respect of any amounts paid by the
Guarantors pursuant to the provisions of this Indenture;
provided, however,
that the Guarantors shall not be entitled to enforce or to receive any
payments arising out of, or based upon, such right of subrogation with
respect to any of such Securities until all of such Securities and the
Guarantees thereof shall have been indefeasibly paid in full or discharged.
(f) A director, officer, employee or stockholder, as such, of a
Guarantor shall not have any liability for any obligations of such Guarantor
under this Indenture or for any claim based on, in respect of or by reason
of such obligations or their creation.
(g) No failure to exercise and no delay in exercising, on the part of
the Trustee or the Holders, any right, power, privilege or remedy under this
Article NINETEEN and the Guarantees shall operate as a waiver thereof, nor
shall any single or partial exercise of any rights, power, privilege or
remedy preclude any other or further exercise thereof, or the exercise of
any other rights, powers, privileges or remedies. The rights and remedies
herein provided for are cumulative and not exclusive of any rights or
remedies provided in law or equity. Nothing contained in this Article
NINETEEN shall limit the right of the Trustee or the Holders to take any
action to accelerate the maturity of such Securities pursuant to Article
Five or to pursue any rights or remedies hereunder or under applicable law.
SECTION 1902
Execution and Delivery of Notation of Guarantees
.
To further evidence the Guarantees, each Guarantor hereby agrees that a
notation of its Guarantee may be endorsed on each Security of a series to which this
Article NINETEEN has been made applicable authenticated and delivered by the Trustee
and executed by either manual or facsimile signature of an officer of such
Guarantor.
Each Guarantor hereby agrees that its Guarantee shall remain in full force and
effect notwithstanding any failure to endorse on any such Security a notation
relating to the Guarantees thereof.
If an officer of a Guarantor whose signature is on this Indenture or a Security
no longer holds that office at the time the Trustee authenticates such
7
Security or at any time thereafter, such Guarantors Guarantee of such Security
shall be valid nevertheless.
The delivery by the Trustee of any Security of a series to which this Article
NINETEEN has been made applicable, after the authentication thereof under this
Indenture, shall constitute due delivery of the Guarantees set forth in this
Indenture on behalf of the applicable Guarantor.
SECTION 1903
Reports by Guarantors
.
In addition to the certificates delivered to the Trustee pursuant to Section
1904, the Guarantors shall file with the Trustee and the Commission, and transmit to
Holders of Outstanding Securities of each series to which this Article NINETEEN has
been made applicable, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant thereto; provided that any such
information, documents or reports required to be filed with the Commission pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, shall be
filed with the Trustee within 15 days after the same is so required to be filed with
the Commission.
SECTION 1904
Statement by Officer as to Default
.
Each Guarantor shall, so long as any Securities of a series to which this
Article NINETEEN has been made applicable are Outstanding, deliver to the Trustee,
within 120 days after the end of each fiscal year of the Company beginning in 2002,
a brief certificate from the principal executive officer, principal financial
officer or principal accounting officer as to his or her knowledge of such
Guarantors compliance with all conditions and covenants under this Indenture. For
purposes of this Section 1904, such compliance shall be determined without regard to
any period of grace or requirement of notice under this Indenture. Such certificate
shall comply with Section 314(a)(4) of the Trust Indenture Act.
SECTION 1905
Limitations on Merger and Consolidation of Guarantors
.
(a) No Guarantor shall, so long as any Securities to which this Article
NINETEEN has been made applicable are Outstanding, consolidate with or merge
into any other Person or convey, transfer or lease its properties and assets
substantially as an entirety to any other Person, unless:
(1) The Person formed by such consolidation or into which such
Guarantor is merged or the Person which acquires by conveyance or
transfer, or which leases, the properties and assets of such
Guarantor substantially as an entirety shall be an exempted company,
corporation, partnership, limited liability company or trust and
shall expressly assume, by an indenture supplemental
8
hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the obligations of such Guarantor
hereunder;
(2) immediately after giving effect to such transaction, no
Event of Default, and no event which, after notice or lapse of time
or both, would become an Event of Default, shall have occurred and
be continuing; and
(3) such Guarantor has delivered to the Trustee an officers
certificate of such Guarantor and an Opinion of Counsel, each
stating that such consolidation, merger, conveyance, transfer or
lease and such supplemental indenture comply with this Section
1905(a) and that all conditions precedent herein provided for
relating to such transaction have been complied with.
(b) Upon any consolidation of a Guarantor with, or merger of a
Guarantor into, any other Person or any conveyance, transfer or lease of the
properties and assets of a Guarantor substantially as an entirety to any
other Person in accordance with Section 1905(a), the successor Person formed
by such consolidation or into which such Guarantor is merged or to which
such conveyance, transfer or lease is made shall succeed to, and be
substituted for, and may exercise every right and power of, such Guarantor
under this Indenture with the same effect as if such successor Person had
been named as a Guarantor herein, and thereafter, except in the case of a
lease, the predecessor Person shall be relieved of all obligations and
covenants under this Indenture and such Securities and coupons and may
liquidate and dissolve.
ARTICLE TWO
SECURITIES TO WHICH ARTICLE ONE APPLICABLE
SECTION 201
Securities to which Article One Applicable
.
The Company and the Guarantors hereby agree in accordance with Sections 901(2), 901(3) and 901(5)
of the Indenture that the amendments to the Indenture set forth in Article ONE of this Fifth
Supplemental Indenture are hereby made applicable to the 6
5
/
8
% Notes, and only to the Securities of
this specified series.
ARTICLE THREE
MISCELLANEOUS PROVISIONS
SECTION 301
Integral Part
.
This Fifth Supplemental Indenture constitutes an integral part of the Indenture to the extent
provided in Section 201 hereof.
9
SECTION 302
General Definitions
.
For all purposes of this Fifth Supplemental Indenture, capitalized terms used herein without
definition shall have the meanings specified in the Indenture.
SECTION 303
Adoption, Ratification and Confirmation
.
The Indenture, as supplemented and amended by this Fifth Supplemental Indenture, is in all respects
hereby adopted, ratified and confirmed, and this Fifth Supplemental Indenture shall be deemed part
of the Indenture in the manner and to the extent herein and therein provided. The provisions of
this Fifth Supplemental Indenture shall, subject to the terms hereof, supersede the provisions of
the Indenture to the extent the Indenture is inconsistent herewith.
SECTION 304
Trust Indenture Act Controls
.
If any provision of this Indenture limits, qualifies or conflicts with the duties imposed by
operation of TIA § 318(c), the imposed duties shall control.
SECTION 305
Governing Law
.
THIS FIFTH SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK.
SECTION 306
Severability
.
In case any provision in this Fifth Supplemental Indenture shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions shall, to the
fullest extent permitted by applicable law, not in any way be affected or impaired thereby.
SECTION 307
Counterpart Originals
.
The parties may sign any number of copies of this Fifth Supplemental Indenture. Each signed copy
shall be an original, but all of them together represent the same agreement.
SECTION 308
Successors
.
All agreements of the Company or any Guarantor in this Fifth Supplemental Indenture shall bind its
successors. All agreements of the Trustee in this Fifth Supplemental Indenture shall bind its
successors.
SECTION 309
Table of Contents and Headings
.
The table of contents and headings of the Articles and Sections of this Fifth Supplemental
Indenture have been inserted for convenience of reference only, are not to be considered a part
hereof and shall in no way modify or restrict any of the terms or provisions hereof.
10
SECTION 310
Benefit of Fifth Supplemental Indenture
.
Nothing in this Fifth Supplemental Indenture, express or implied, shall give to any Person, other
than the parties hereto, any Security Registrar, any Paying Agent and their successors hereunder,
and the Holders of Securities of any series to which the amendments of the Indenture set forth in
Article ONE hereof have been made applicable, any benefit or any legal or equitable right, remedy
or claim under this Fifth Supplemental Indenture.
SECTION 311
Acceptance by Trustee
.
The Trustee accepts the amendments to the Indenture effected by this Fifth Supplemental Indenture
and agrees to execute the trusts created by the Indenture as hereby amended, but only upon the
terms and conditions set forth in this Fifth Supplemental Indenture and the Indenture. Without
limiting the generality of the foregoing, the Trustee assumes no responsibility for the correctness
of the recitals contained herein, which shall be taken as the statements of the Company and the
Guarantors, and, except as provided in the Indenture, the Trustee shall not be responsible or
accountable in any way whatsoever for or with respect to the validity or execution or sufficiency
of this Fifth Supplemental Indenture, and the Trustee makes no representation with respect thereto.
[SIGNATURE PAGE FOLLOWS]
11
IN WITNESS WHEREOF, the parties hereto have caused this Fifth Supplemental Indenture to be
duly executed as of the day and year first written above.
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WEATHERFORD INTERNATIONAL, INC.,
a Delaware corporation
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By:
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/s/ Burt M. Martin
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Name:
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Burt M. Martin
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Title:
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Senior Vice President
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WEATHERFORD INTERNATIONAL LTD.,
a Bermuda exempted company
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By:
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/s/ Burt M. Martin
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Name:
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Burt M. Martin
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Title:
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Senior Vice President
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WEATHERFORD INTERNATIONAL LTD.,
a Swiss corporation
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By:
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/s/ Burt M. Martin
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Name:
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Burt M. Martin
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Title:
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Senior Vice President
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THE BANK OF NEW YORK MELLON TRUST
COMPANY, N.A.,
as Trustee
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By:
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/s/
Mauri J. Cowen
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Name:
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Mauri J. Cowen
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Title:
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Vice President
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12
EXHIBIT 4.2
THIRD SUPPLEMENTAL INDENTURE
among
WEATHERFORD INTERNATIONAL LTD.,
a Bermuda exempted company,
WEATHERFORD INTERNATIONAL, INC.,
a Delaware corporation,
WEATHERFORD INTERNATIONAL LTD.,
a Swiss corporation,
and
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Trustee
Dated as of
February 26, 2009
to Indenture dated as of October 1, 2003
TABLE OF CONTENTS
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ARTICLE 1
Amendments to the Indenture
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2
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SECTION 1.01.
Definitions
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2
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SECTION 1.02.
Certain References to the Guarantor
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3
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SECTION 1.03.
Additional References to the Guarantor
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3
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SECTION 1.04.
Certain References to the Guarantee
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3
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SECTION 1.05.
Certain Cross-References in the Indenture
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4
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SECTION 1.06.
Compliance Certificates and Opinions
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4
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SECTION 1.07.
Form of Documents Delivered to Trustee
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4
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SECTION 1.08.
Notices
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5
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SECTION 1.09.
Governing Law
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5
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SECTION 1.10.
Incorporators, Shareholders, Officers and
Directors of the Company and Guarantor Exempt from Individual
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Liability
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6
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SECTION 1.11.
Forms Generally
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6
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SECTION 1.12.
Form of Reverse of Security
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6
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SECTION 1.13.
The Securities
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SECTION 1.14.
Trustee Matters
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10
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SECTION 1.15.
Consolidation, Amalgamation, Merger and Sale
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SECTION 1.16.
Supplemental Indentures
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13
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SECTION 1.17.
Covenants
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13
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SECTION 1.18.
Guarantee
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14
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ARTICLE 2
Miscellaneous Provisions
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18
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SECTION 2.01.
General Definitions
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18
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SECTION 2.02.
Continued Effect
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18
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SECTION 2.03.
Governing Law
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18
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SECTION 2.04.
Severability
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18
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SECTION 2.05.
Counterparts
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18
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SECTION 2.06.
Successors
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SECTION 2.07.
Table of Contents and Headings
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SECTION 2.08.
Benefit of Third Supplemental Indenture
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19
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SECTION 2.09.
Acceptance by Trustee
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-i-
This THIRD SUPPLEMENTAL INDENTURE, dated as of February 26, 2009, among Weatherford
International Ltd., a Bermuda exempted company (the
Company
), Weatherford International, Inc., a
Delaware corporation (
Weatherford U.S.
), Weatherford International Ltd., a Swiss corporation
(
Weatherford Switzerland
), and Deutsche Bank Trust Company Americas, as trustee (the
Trustee
).
RECITALS OF THE COMPANY
WHEREAS, the Company has heretofore executed and delivered to the Trustee an Indenture, dated
as of October 1, 2003, as supplemented by the First Supplemental Indenture thereto, dated as of
March 25, 2008 (the
First Supplemental Indenture
), and the Second Supplemental Indenture thereto,
dated as of January 8, 2009 (the
Second Supplemental Indenture
, and such indenture as so
supplemented, the
Indenture
), providing for the issuance from time to time of one or more series
of the Companys Securities; and
WHEREAS, the Company, in accordance with an Officers Certificate dated as of October 7, 2003,
previously issued $250 million original aggregate principal amount of its 4.95% Senior Notes due
2013 (the
4.95% 2013 Notes
); and
WHEREAS, the Company, in accordance with an Officers Certificate dated as of January 17,
2006, previously issued $350 million original aggregate principal amount of its 5.50% Senior Notes
due 2016 (the
2016 Notes
); and
WHEREAS, the Company, in accordance with an Officers Certificate dated as of August 7, 2006,
previously issued $600 million original aggregate principal amount of its 6.50% Senior Notes due
2036 (the
2036 Notes
); and
WHEREAS, the Company, in accordance with the First Supplemental Indenture, previously issued
$500 million aggregate original principal amount of its 5.15% Senior Notes due 2013 (the
5.15%
2013 Notes
), $500 million aggregate original principal amount of its 6.00% Senior Notes due 2018
(the
2018 Notes
) and $500 million aggregate original principal amount of its 7.00% Senior Notes
due 2038 (the
2038 Notes
); and
WHEREAS, the Company, in accordance with the Second Supplemental Indenture, previously issued
$1 billion original aggregate principal amount of its 9.625% Senior Notes due 2019 (the
2019
Notes
) and $250 million original aggregate principal amount of its 9.875% Senior Notes due 2039
(the
2039 Notes
and collectively with the 4.95% 2013 Notes, the 2016 Notes, the 2036 Notes, the
5.15% 2013 Notes, the 2018 Notes, the 2038 Notes and the 2019 Notes, the
Notes
)); and
WHEREAS, the Notes remain Outstanding as of the date hereof; and
WHEREAS, Weatherford U.S. has, in accordance with the Indenture, previously provided a
guarantee of the Notes; and
WHEREAS, pursuant to a share exchange transaction effected by a scheme of arrangement, in
connection with a share exchange agreement, between the Company and Weatherford Switzerland,
pursuant to which each holder of common shares of the Company
issued and outstanding immediately before the transaction transferred such common shares to
Weatherford Switzerland solely in exchange for (through a nominee acting on behalf and for the
account of the shareholders) the same number of shares of Weatherford Switzerland (the
Redomestication
), the Company, contemporaneously with the effectiveness of this Third
Supplemental Indenture, has become a direct, wholly-owned subsidiary of Weatherford Switzerland,
and Weatherford U.S. has become an indirect, wholly-owned subsidiary of Weatherford Switzerland;
and
WHEREAS, in connection with such Redomestication, Weatherford Switzerland has determined that
it will be in the best interests of and beneficial to Weatherford Switzerland to enter into this
Third Supplemental Indenture for the purposes of providing a guarantee of the Notes in accordance
with the terms of this Third Supplemental Indenture; and
WHEREAS, Section 9.1(3) of the Indenture permits the execution of supplemental indentures
without the consent of any Holders to add to the covenants of the Company for the benefit of all or
any series of Securities; and
WHEREAS, Section 9.1(6) of the Indenture permits the execution of supplemental indentures
without the consent of any Holders to change or eliminate any of the provisions of the Indenture;
provided, that any such change or elimination shall become effective only when there is no Security
Outstanding of any series created prior to the execution of such supplemental indenture which is
entitled to the benefit of such provision; and
WHEREAS, the Company, pursuant to the foregoing authority, proposes in and by this Third
Supplemental Indenture to supplement and amend the Indenture in certain respects; and
WHEREAS, all things necessary have been done to make this Third Supplemental Indenture a valid
agreement of the Company, Weatherford U.S. and Weatherford Switzerland, in accordance with its
terms.
NOW THEREFORE:
In consideration of the premises provided for herein, the Company, Weatherford U.S.,
Weatherford Switzerland and the Trustee mutually covenant and agree as follows:
ARTICLE 1
Amendments to the Indenture
SECTION 1.01.
Definitions
.
Section 1.1 of the Indenture is hereby amended by (a) replacing the words the Guarantor each time
said words appear in the defined terms Board of Directors, Board Resolution, Opinion of
Counsel, Outstanding and Vice President with the words a Guarantor and (b) replacing the
definitions of Bankruptcy Law, Company Request or Company Order, Guarantee, Guarantor and
Officers Certificate with the following, respectively:
Bankruptcy Law means any applicable Federal, State, Bermuda or Swiss
bankruptcy, insolvency, reorganization or other similar law.
-2-
Company Request or Company Order means, in the case of the Company, a
written request or order signed in the name of the Company by its Chairman of the
Board, its Chief Executive Officer, its President, any of its Vice Presidents or any
other duly authorized officer of the Company or any person duly authorized by any of
them, and delivered to the Trustee and, in the case of a Guarantor, a written
request or order signed in the name of such Guarantor by its Chairman of the Board,
its Chief Executive Officer, its President, any of its Vice Presidents or any other
duly authorized officer of such Guarantor or any person duly authorized by any of
them, and delivered to the Trustee.
Guarantees has the meaning specified in Section 14.1.
Guarantors shall mean Weatherford International, Inc., a Delaware
corporation, until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture (and thereafter shall mean such successor
Person), and Weatherford International Ltd., a Swiss corporation, until a successor
Person shall have become such pursuant to the applicable provisions of this
Indenture (and thereafter shall mean such successor Person), and Guarantor shall
mean either (i) Weatherford International, Inc., a Delaware corporation, or its
successor Person, or (ii) Weatherford International Ltd., a Swiss corporation, or
its successor Person.
Officers Certificate means, in the case of the Company, a certificate
signed by the Chairman of the Board, the Chief Executive Officer, the President, any
Vice President or any other duly authorized officer of the Company, or a person duly
authorized by any of them, and delivered to the Trustee and, in the case of a
Guarantor, a certificate signed by the Chairman of the Board, the Chief Executive
Officer, the President, any Vice President or any other duly authorized officer of
such Guarantor, or a person duly authorized by any of them, and delivered to the
Trustee.
SECTION 1.02.
Certain References to
the Guarantor
.
Sections 1.2, 1.5, 3.1, 5.2, 5.3, 5.4, 6.3 and 6.6, subsections (1) and (2) of Section 1.6,
subsection (c) of Section 3.3 and the fourth paragraph of Section 6.14 of the Indenture are each
hereby amended by replacing the words the Guarantor each time said words appear therein with the
words a Guarantor.
SECTION 1.03.
Additional References to
the Guarantor
.
Sections 1.10, 1.16, 3.5, 3.6, 3.8, 5.9, 5.15, 6.4, 7.2, 9.2, 10.3, 13.2 and 13.3, the third
paragraph of Section 6.14 and the first and last paragraphs of Section 9.1 of the Indenture are
each hereby amended by replacing the words the Guarantor each time said words appear therein with
the words the Guarantors.
SECTION 1.04.
Certain References to
the Guarantee
.
-3-
Sections 1.11, 1.12, 1.14, 3.1, 3.5, 3.6, 5.4 and 5.7 of the Indenture are each hereby amended by
replacing the words the Guarantee each time said words appear therein with the words the
Guarantees.
SECTION 1.05.
Certain Cross-References in the Indenture
.
The Indenture is hereby amended by (a) replacing the phrase Section 1.2 each time said phrase
appears in Sections 3.1 and 3.5 of the Indenture and in the definition of Place of Payment with
the phrase Section 10.2, (b) replacing the phrase Section 1.3 appearing in Section 4.1 of the
Indenture with the phrase Section 10.3 and (c) replacing the phrase Section 1303 appearing in
Section 13.5 of the Indenture with the phrase Section 13.3.
SECTION 1.06.
Compliance Certificates and Opinions
.
Section 1.3 of the Indenture is hereby amended by replacing the first paragraph thereof with the
following:
Upon any application or request by the Company or a Guarantor to the Trustee
to take any action under any provision of this Indenture, the Company or such
Guarantor, as the case may be, shall furnish to the Trustee an Officers Certificate
stating that all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with and an Opinion of Counsel
stating that in the opinion of such counsel all such conditions precedent, if any,
have been complied with, except that in the case of any such application or request
as to which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or request, no
additional certificate or opinion need be furnished except as required under Section
314(c) of the Trust Indenture Act.
SECTION 1.07.
Form of Documents Delivered to Trustee
.
Section 1.4 of the Indenture is hereby amended by replacing the second paragraph thereof with the
following:
Any certificate or opinion of an officer of the Company or a Guarantor may be
based, insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows or, in the exercise of
reasonable care, should know that the certificate or opinion or representations with
respect to the matters upon which his certificate or opinion is based are erroneous.
Any such certificate or opinion of counsel may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by, an officer
or officers of the Company or such Guarantor, as the case may be, stating that the
information with respect to such factual matters is in the possession of the Company
or such Guarantor, as the case may be, unless such counsel knows that the
certificate or opinion or representations with respect to such matters are
erroneous.
-4-
SECTION 1.08.
Notices
.
Section 1.6 of the Indenture is hereby amended by replacing subsection (3) thereof with the
following:
(3) a Guarantor by the Company, the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to such Guarantor addressed
to it at: Weatherford International, Inc. or Weatherford International Ltd., c/o
Weatherford International, Inc., as applicable, 515 Post Oak Blvd., Houston, Texas
77027, to the attention of its Corporate Secretary, or at any other address
previously furnished in writing to the Trustee by such Guarantor.
SECTION 1.09.
Governing Law
.
Section 1.13 of the Indenture is hereby amended by replacing such Section 1.13 with the following:
THIS INDENTURE, THE SECURITIES AND THE GUARANTEES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
To the fullest extent permitted by applicable law, each of the Company and the
Guarantors hereby irrevocably submits to the jurisdiction of any Federal or state
court located in the Borough of Manhattan in The City of New York, New York in any
suit, action or proceeding based on or arising out of or relating to this Indenture
or any Securities and irrevocably agrees that all claims in respect of such suit or
proceeding may be determined in any such court. Each of the Company and the
Guarantors irrevocably waives, to the fullest extent permitted by law, any objection
which it may have to the laying of the venue of any such suit, action or proceeding
brought in an inconvenient forum. Each of the Company and the Guarantors agrees that
final judgment in any such suit, action or proceeding brought in such a court shall
be conclusive and binding and may be enforced in the courts of Bermuda (or any other
courts of any other jurisdiction to which either of them is subject) by a suit upon
such judgment, provided that service of process is effected upon the Company. Each
of the Company and the Guarantors hereby irrevocably designates and appoints CT
Corporation Systems, New York, New York (the Process Agent) as its authorized
agent for purposes of this Section 1.13, it being understood that the designation
and appointment of the Process Agent as such authorized agent shall become effective
immediately without any further action on the part of the Company or such Guarantor,
as the case may be. Each of the Company and the Guarantors further agrees that,
unless otherwise required by law, service of process upon the Process Agent and
written notice of said service to the Company or a Guarantor, as the case may be,
mailed by prepaid registered first class mail or delivered to the Process Agent at
its principal office, shall be deemed in every respect effective service of process
upon the Company or such Guarantor, as the case may be, in any such suit or
-5-
proceeding. Each of the Company and the Guarantors further agrees to take any
and all action, including the execution and filing of any and all such documents and
instruments as may be necessary, to continue such designation and appointment of the
Process Agent in full force and effect so long as the Company or such Guarantor, as
the case may be, has any outstanding obligations under this Indenture. To the extent
the Company or a Guarantor, as the case may be, has or hereafter may acquire any
immunity from jurisdiction of any court or from any legal process (whether through
service of notice, attachment prior to judgment, attachment in aid of execution,
executor or otherwise) with respect to itself or its property, each of the Company
and such Guarantor hereby irrevocably waives such immunity in respect of its
obligations under this Indenture to the extent permitted by law.
SECTION 1.10.
Incorporators, Shareholders, Officers and Directors of the Company and Guarantor
Exempt from Individual Liability
.
Section 1.18 of the Indenture is hereby amended by (a) replacing the words the Guarantee each
time said words appear therein with any Guarantee and (b) replacing the words the Guarantor
each time said words appear therein with the words any Guarantor.
SECTION 1.11.
Forms Generally
.
The first paragraph of Section 2.1 of the Indenture is hereby amended by replacing such paragraph
with the following:
The Securities of each series and, if applicable, the notation thereon
relating to the Guarantees, shall be in substantially the form set forth in this
Article Two, or in such other form or forms as shall be established by or pursuant
to a Board Resolution or in one or more indentures supplemental hereto, in each case
with such appropriate insertions, omissions, substitutions and other variations as
are required or permitted by this Indenture, and may have such letters, numbers or
other marks of identification and such legends or endorsements placed thereon as may
be required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities and,
if applicable, such Guarantees, as evidenced by their execution thereof.
SECTION 1.12.
Form of Reverse of Security
.
The first, second, eleventh, seventeenth, eighteenth, nineteenth, twenty-first and twenty-second
paragraphs of Section 2.3 of the Indenture are hereby amended by replacing such paragraphs with the
following, respectively:
This Security is one of a duly authorized issue of senior securities of 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 (herein called the Indenture),
between the Company, Weatherford International, Inc. and Deutsche Bank Trust Company
Americas, as Trustee (herein called the Trustee,
-6-
which term includes any successor trustee under 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 [,
limited in aggregate principal amount to $. . . . . . . . . . ].
This Security is the general, unsecured, senior obligation of the Company [
if
applicable, insert
and is guaranteed pursuant to a guarantee (the Guarantee) by
each of Weatherford International, Inc., a Delaware corporation (Weatherford U.S.)
and Weatherford International Ltd., a Swiss corporation (Weatherford Switzerland
and collectively with Weatherford U.S., the Guarantors). The Guarantees are the
general, unsecured, senior obligation of the Guarantors.]
The Indenture permits, with certain exceptions as therein provided, the amendment
thereof and the modification of the rights and obligations of the Company [
If
applicable, insert
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 [
If applicable, insert
and the Guarantors] and the Trustee with the consent
of the Holders of a majority in principal amount of the Securities at the time
Outstanding of each series to be affected. The Indenture also contains provisions
permitting the Holders of specified percentages in principal amount of the
Securities of each series at the time Outstanding, on behalf of the Holders of all
Securities of such series, to waive compliance by the Company [
If applicable,
insert
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.
Prior to due presentment of this Security for registration of transfer, the
Company, [
If applicable, insert
the Guarantors,] the Trustee and any agent of the
Company [
If applicable, insert
, 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, [
If
applicable, insert
the Guarantors,] the Trustee nor any such agent shall be
affected by notice to the contrary.
-7-
No recourse under or upon any obligation, covenant or agreement of or contained in
the Indenture or of or contained in any Security, [
If applicable, insert
, or any
Guarantee endorsed thereon,] or for any claim based thereon or otherwise in respect
thereof, or in any Security [
If applicable, insert
or in any Guarantee], 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 [
If applicable, insert
or any Guarantor] or of
any successor Person, either directly or through the Company [
If applicable,
insert
or any Guarantor] 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 [
If applicable, insert
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 [
If
applicable, insert
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.
[
If a Definitive Security, insert
as
a separate page
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.
Please Insert Social Security or Other Identifying Number of Assignee:
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.]
-8-
[
If a Security to which Article Fourteen has been made applicable, insert the
following Form of Notation on such Security relating to the Guarantee
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 and all other amounts due and payable under the Indenture and the
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.
Guarantors:
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WEATHERFORD INTERNATIONAL,
INC.,
a Delaware corporation
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By:
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WEATHERFORD INTERNATIONAL LTD.,
a Swiss corporation
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By:
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SECTION 1.13.
The Securities
.
Section 3.3 of the Indenture is hereby amended by replacing the first and second paragraphs thereof
with the following, respectively:
The Securities shall be executed on behalf of the Company by its Chairman of
the Board, its Chief Executive Officer, its President, its Chief Financial Officer
or any of its Vice Presidents and need not be attested. The signature of any of
these officers on the Securities may be manual or facsimile. Any Guarantee endorsed
on the Securities shall be executed on behalf of the applicable Guarantor by its
Chairman of the Board, its Chief Executive Officer, its President, its Chief
Financial Officer or any of its Vice Presidents and need not be attested. The
signature of any of these officers on any Guarantee may be manual or facsimile.
-9-
Securities and any Guarantee bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company or a Guarantor,
as the case may be, shall bind the Company or such Guarantor, as the case may be,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not hold
such offices at the date of such Securities.
SECTION 1.14.
Trustee Matters
.
Article Six of the Indenture is hereby amended by replacing Sections 6.5, 6.11 and 6.13 with the
following, respectively:
Section 6.5.
May Hold Securities
.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company or, if applicable, any Guarantor, in its
individual or any other capacity, may become the owner or pledgee of Securities and,
subject to Sections 310(b) and 311 of the Trust Indenture Act and Sections 6.8, 6.9
and 6.13, may otherwise deal with the Company or, if applicable, such Guarantor with
the same rights it would have if it were not Trustee, Authenticating Agent, Paying
Agent, Security Registrar or such other agent.
Section 6.11.
Acceptance of Appointment by Successor
.
(a) In case of the appointment hereunder of a successor Trustee
with respect to all Securities, every such successor Trustee so
appointed shall execute, acknowledge and deliver to the Company, the
Guarantors (if applicable) and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the
retiring Trustee; but, on the request of the Company or, if
applicable, a Guarantor or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an
instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all) series,
the Company, the Guarantors (if applicable), the retiring Trustee
and each successor Trustee with respect to the Securities of one or
more series shall execute and deliver an indenture supplemental
hereto wherein each successor Trustee shall accept
-10-
such appointment and which (1) shall contain such provisions as
shall be necessary or desirable to transfer and confirm to, and to
vest in, each successor Trustee all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of
that or those series to which the appointment of such successor
Trustee relates, (2) if the retiring Trustee is not retiring with
respect to all Securities, shall contain such provisions as shall be
deemed necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Trustee with respect to
the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring
Trustee, and (3) shall add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee,
it being understood that nothing herein or in such supplemental
indenture shall constitute such Trustees co-trustees of the same
trust and that each such Trustee shall be trustee of a trust or
trusts hereunder separate and apart from any trust or trusts
hereunder administered by any other such Trustee; and upon the
execution and delivery of such supplemental indenture the
resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates;
but, on request of the Company, a Guarantor (if applicable) or any
successor Trustee, such retiring Trustee shall duly assign, transfer
and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of
that or those series to which the appointment of such successor
Trustee relates.
(c) Upon request of any such successor Trustee, the Company
and, if applicable, the Guarantors shall execute any and all
instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as the case may
be.
(d) No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be
qualified and eligible under this Article and the Trust Indenture
Act.
Section 6.13.
Preferential Collection of Claims Against Company
.
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Reference is made to Section 311 of the Trust Indenture Act. For purposes of
Section 311(b) of the Trust Indenture Act,
(1) the term cash transaction means any transaction in which full
payment for goods or securities sold is made within seven days after
delivery of the goods or securities in currency or in checks or other orders
drawn upon banks or bankers and payable upon demand; and
(2) the term self-liquidating paper means any draft, bill of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company or, if applicable, a Guarantor for the purpose of
financing the purchase, processing, manufacturing, shipment, storage or sale
of goods, wares or merchandise and which is secured by documents evidencing
title to, possession of, or a lien upon, the goods, wares or merchandise or
the receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the security is
received by the Trustee simultaneously with the creation of the creditor
relationship with the Company or, if applicable, such Guarantor arising from
the making, drawing, negotiating or incurring of the draft, bill of
exchange, acceptance or obligation.
SECTION 1.15.
Consolidation, Amalgamation, Merger and Sale
Article Eight of the Indenture is hereby amended by replacing Article Eight with the following:
ARTICLE EIGHT
CONSOLIDATION, AMALGAMATION, MERGER AND SALE
Section 8.1.
Company May Consolidate, Etc., Only on Certain Terms
.
The Company and, if any Securities of a series to which Article Fourteen has
been made applicable are Outstanding, each Guarantor shall not consolidate or
amalgamate with or merge into any other Person or convey, transfer or lease its
properties and assets as, or substantially as, an entirety to any Person unless:
(1) the Person formed by such consolidation or amalgamation or into
which the Company or such Guarantor, as the case may be, is merged or the
Person which acquires by conveyance or transfer, or which leases, the
properties and assets of the Company or such Guarantor, as the case may be,
as, or substantially as, an entirety shall be a corporation and shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due and
punctual payment of the principal of and any premium and interest on all the
Securities and the performance or observance of every other covenant of this
Indenture on the part of the Company or such Guarantor, as the case may be,
to be performed or observed and shall have expressly provided for conversion
rights in respect of any series of Outstanding Securities with conversion
rights;
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(2) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time or both, would
become an Event of Default, shall have occurred and be continuing; and
(3) the Company or such Guarantor, as the case may be, has delivered to
the Trustee an Officers Certificate and an Opinion of Counsel, each stating
that such consolidation, amalgamation, merger, conveyance, sale, transfer or
lease and such supplemental indenture, if any, comply with this Article
Eight and that all conditions precedent herein provided for relating to such
transaction have been complied with.
Section 8.2.
Successor Substituted
.
Upon any consolidation or amalgamation of the Company or a Guarantor, as the
case may be, with or merger of the Company or a Guarantor, as the case may be, into,
any other Person or any conveyance, transfer or lease of the properties and assets
of the Company or a Guarantor, as the case may be, as, or substantially as, an
entirety in accordance with Section 8.1, the successor or resulting Person formed by
or resulting upon such consolidation or amalgamation or into which the Company or
such Guarantor, as the case may be, is merged or to which such conveyance, transfer
or lease is made shall succeed to, and be substituted for, and may exercise every
right and power of, the Company or such Guarantor, as the case may be, under this
Indenture with the same effect as if such successor Person had been named as the
Company or such Guarantor, as the case may be, herein, and thereafter, except in the
case of a lease, the predecessor Person shall be relieved of all obligations and
covenants under this Indenture and the Securities and may liquidate and dissolve.
SECTION 1.16.
Supplemental Indentures
.
Section 9.1 of the Indenture is hereby amended by replacing subsection (2) of Section 9.1 with the
following:
(2) to evidence the succession of another Person to a Guarantor and the
assumption by any such successor of the Guarantee of such Guarantor herein and, to
the extent applicable, endorsed upon any Securities; or
SECTION 1.17.
Covenants.
Article Ten of the Indenture is hereby amended by replacing Sections 10.4 and 10.7 with the
following, respectively:
Section 10.4.
Existence
.
Subject to Article Eight, the Company and, if any Securities of a series to
which Article Fourteen has been made applicable are Outstanding, each Guarantor will
do or cause to be done all things necessary to preserve and keep in
-13-
full force and effect its existence, rights (charter and statutory) and
franchises; provided, however, that the Company and, if applicable, the Guarantors
shall not be required to preserve any such right or franchise if the Board of
Directors shall determine that the preservation thereof is no longer desirable in
the conduct of the business of the Company or such Guarantor, as the case may be.
Section 10.7.
Statement by Officers as to Default
.
Annually, within 150 days after the close of each fiscal year beginning with
the first fiscal year during which one or more series of Securities are Outstanding,
the Company and, if any Securities of a series to which Article Fourteen has been
made applicable are Outstanding, each Guarantor will deliver to the Trustee a brief
certificate (which need not include the statements set forth in Section 1.3) from
the principal executive officer, principal financial officer or principal accounting
officer of the Company and, if applicable, such Guarantor as to his or her knowledge
of the Companys or such Guarantors, as the case may be, compliance (without regard
to any period of grace or requirement of notice provided herein) with all conditions
and covenants under the Indenture and, if the Company or such Guarantor, as the case
may be, shall be in Default, specifying all such Defaults and the nature and status
thereof of which such officer has knowledge.
SECTION 1.18.
Guarantee
.
Article Fourteen of the Indenture is hereby amended by replacing Article Fourteen with the
following:
ARTICLE FOURTEEN
GUARANTEES OF SECURITIES
Section 14.1.
Unconditional Guarantees
.
For value received, each Guarantor hereby fully, irrevocably, unconditionally
and absolutely guarantees to the Holders of Securities of each series to which this
Article Fourteen has been made applicable as provided in Section 3.1(22) and to the
Trustee the due and punctual payment of the principal of, and premium, if any, and
interest on such Securities, and all other amounts due and payable under this
Indenture and such Securities by the Company to the Trustee or such Holders
(including, without limitation, all costs and expenses (including reasonable legal
fees and disbursements) incurred by the Trustee or such Holders in connection with
the enforcement of this Indenture and the Guarantees) (collectively, the Indenture
Obligations), when and as such principal, premium, if any, interest, if any, and
other amounts shall become due and payable, whether at the Stated Maturity, upon
redemption or by declaration of acceleration or otherwise, according to the terms of
such Securities and this Indenture. The guarantees by the Guarantors set forth in
this Article Fourteen are referred to herein as the Guarantees
.
Without limiting
the generality of the
-14-
foregoing, the Guarantors liability shall extend to all amounts that
constitute part of the Indenture Obligations and would be owed by the Company to the
Trustee or such Holders under this Indenture and such Securities but for the fact
that they are unenforceable, reduced, limited, impaired, suspended or not allowable
due to the existence of a bankruptcy, reorganization or similar proceeding involving
the Company.
Failing payment when due of any amount guaranteed pursuant to the Guarantees,
for whatever reason, each Guarantor will be obligated (to the fullest extent
permitted by applicable law) to pay the same immediately to the Trustee, without
set-off or counterclaim or other reduction whatsoever (whether for taxes,
withholding or otherwise). Each Guarantee hereunder is intended to be a general,
unsecured, senior obligation of the applicable Guarantor and will rank
pari passu
in
right of payment with all unsecured indebtedness of such Guarantor that is not, by
its terms, expressly subordinated in right of payment to the Guarantee of such
Guarantor. Each Guarantor hereby agrees that, to the fullest extent permitted by
applicable law, its obligations hereunder shall be full, irrevocable, unconditional
and absolute, irrespective of the validity, regularity or enforceability of such
Securities, the Guarantees or this Indenture, the absence of any action to enforce
the same, any waiver or consent by any Holder with respect to any provisions hereof
or thereof, the recovery of any judgment against the Company, any action to enforce
the same or any other circumstance which might otherwise constitute a legal or
equitable discharge or defense of such Guarantor. Such Guarantor hereby agrees that
in the event of a default in payment of the principal of, or premium, if any, or
interest on such Securities, or any other amounts payable under this Indenture and
such Securities by the Company to the Trustee or the Holders thereof, whether at the
Stated Maturity, upon redemption or by declaration of acceleration or otherwise,
legal proceedings may be instituted by the Trustee on behalf of such Holders or,
subject to Section 5.7 hereof, by such Holders, on the terms and conditions set
forth in this Indenture, directly against such Guarantor to enforce its Guarantee
without first proceeding against the Company or any other Guarantor.
To the fullest extent permitted by applicable law, the obligations of the
Guarantors under this Article Fourteen shall be as aforesaid full, irrevocable,
unconditional and absolute and shall not be impaired, modified, discharged, released
or limited by any occurrence or condition whatsoever, including, without limitation,
(i) any compromise, settlement, release, waiver, renewal, extension, indulgence or
modification of, or any change in, any of the obligations and liabilities of the
Company or any Guarantor contained in any of such Securities or this Indenture, (ii)
any impairment, modification, release or limitation of the liability of the Company,
any Guarantor or any of their estates in bankruptcy, or any remedy for the
enforcement thereof, resulting from the operation of any present or future provision
of any applicable Bankruptcy Law, as amended, or other statute or from the decision
of any court, (iii) the assertion or exercise by the Trustee or any such Holder of
any rights or remedies under any of such Securities or this Indenture or their delay
in or failure to assert or exercise any such rights or
-15-
remedies, (iv) the assignment or the purported assignment of any property as
security for any of such Securities, including all or any part of the rights of the
Company or any Guarantor under this Indenture, (v) the extension of the time for
payment by the Company or any Guarantor of any payments or other sums or any part
thereof owing or payable under any of the terms and provisions of any of such
Securities or this Indenture or of the time for performance by the Company or any
Guarantor of any other obligations under or arising out of any such terms and
provisions or the extension or the renewal of any thereof, (vi) the modification or
amendment (whether material or otherwise) of any duty, agreement or obligation of
the Company or any Guarantor set forth in this Indenture, (vii) the voluntary or
involuntary liquidation, dissolution, sale or other disposition of all or
substantially all of the assets, marshaling of assets and liabilities, receivership,
insolvency, bankruptcy, assignment for the benefit of creditors, reorganization,
arrangement, composition or readjustment, rehabilitation or relief of, or other
similar proceeding affecting, the Company or any Guarantor or any of their
respective assets, or the disaffirmance of any of such Securities, the Guarantees or
this Indenture in any such proceeding, (viii) the release or discharge of the
Company or any Guarantor from the performance or observance of any agreement,
covenant, term or condition contained in any of such instruments by operation of
law, (ix) the unenforceability of any of such Securities, the Guarantees or this
Indenture, (x) any change in the name, business, capital structure, corporate
existence, or ownership of the Company or any Guarantor, or (xi) any other
circumstance which might otherwise constitute a defense available to, or a legal or
equitable discharge of, a surety or any Guarantor.
To the fullest extent permitted by applicable law, each Guarantor hereby (i)
waives diligence, presentment, demand of payment, notice of acceptance, filing of
claims with a court in the event of the merger, insolvency or bankruptcy of the
Company or any Guarantor, and all demands and notices whatsoever, (ii) acknowledges
that any agreement, instrument or document evidencing the Guarantees may be
transferred and that the benefit of its obligations hereunder shall extend to each
holder of any agreement, instrument or document evidencing the Guarantees without
notice to them and (iii) covenants that its Guarantee will not be discharged except
by complete performance of the Guarantees. To the fullest extent permitted by
applicable law, each Guarantor further agrees that if at any time all or any part of
any payment theretofore applied by any Person to any Guarantee is, or must be,
rescinded or returned for any reason whatsoever, including without limitation, the
insolvency, bankruptcy or reorganization of any Guarantor, such Guarantee shall, to
the extent that such payment is or must be rescinded or returned, be deemed to have
continued in existence notwithstanding such application, and the Guarantees shall
continue to be effective or be reinstated, as the case may be, as though such
application had not been made.
The Guarantors shall be subrogated to all rights of the Holders and the Trustee
against the Company in respect of any amounts paid by the Guarantors pursuant to the
provisions of this Indenture; provided, however
,
that the
-16-
Guarantors shall not be entitled to enforce or to receive any payments arising
out of, or based upon, such right of subrogation with respect to any of such
Securities until all of such Securities and the Guarantees thereof shall have been
indefeasibly paid in full or discharged.
A director, officer, employee or stockholder, as such, of a Guarantor shall not
have any liability for any obligations of such Guarantor under this Indenture or for
any claim based on, in respect of or by reason of such obligations or their
creation.
To the fullest extent permitted by applicable law, no failure to exercise and
no delay in exercising, on the part of the Trustee or the Holders, any right, power,
privilege or remedy under this Article Fourteen and the Guarantees shall operate as
a waiver thereof, nor shall any single or partial exercise of any rights, power,
privilege or remedy preclude any other or further exercise thereof, or the exercise
of any other rights, powers, privileges or remedies. The rights and remedies herein
provided for are cumulative and not exclusive of any rights or remedies provided in
law or equity. Nothing contained in this Article Fourteen shall limit the right of
the Trustee or the Holders to take any action to accelerate the maturity of such
Securities pursuant to Article Five or to pursue any rights or remedies hereunder or
under applicable law.
Section 14.2.
Execution and Delivery of Notation of Guarantees
.
To further evidence the Guarantees, each Guarantor hereby agrees that a
notation of its Guarantee may be endorsed on each Security of a series to which this
Article Fourteen has been made applicable authenticated and delivered by the Trustee
and executed by either manual or facsimile signature of an officer of such
Guarantor.
Each Guarantor hereby agrees that its Guarantee of Securities of a series to
which this Article Fourteen has been made applicable shall remain in full force and
effect notwithstanding any failure to endorse on any such Security a notation
relating to any Guarantee thereof.
If an officer of a Guarantor whose signature is on this Indenture or a Security
no longer holds that office at the time the Trustee authenticates such Security or
at any time thereafter, such Guarantors Guarantee of such Security shall be valid
nevertheless.
The delivery by the Trustee of any Security of a series to which this Article
Fourteen has been made applicable, after the authentication thereof under this
Indenture, shall constitute due delivery of the Guarantees set forth in this
Indenture on behalf of the applicable Guarantor.
Section 14.3.
Reports by Guarantors
.
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In addition to the certificates delivered to the Trustee pursuant to Section
10.7, the Guarantors shall file with the Trustee and the Commission, and transmit to
Holders of Outstanding Securities of each series to which this Article Fourteen has
been made applicable, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant thereto; provided that any such
information, documents or reports required to be filed with the Commission pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, shall be
filed with the Trustee within 15 days after the same is so required to be filed with
the Commission.
The receipt by the Trustee of any reports, documents or information pursuant to
this Section 14.3 shall not constitute notice or constructive notice of any
information contained in such reports or documents or determinable from information
contained in such reports or documents.
ARTICLE 2
Miscellaneous Provisions
SECTION 2.01.
General Definitions
.
For all purposes of this Third Supplemental Indenture, capitalized terms used herein without
definition shall have the meanings specified in the Indenture.
SECTION 2.02.
Continued Effect
.
Except as expressly supplemented and amended by this Third Supplemental Indenture, the Indenture
shall continue in full force and effect in accordance with the provisions thereof, and the
Indenture is in all respects hereby ratified and confirmed. This Third Supplemental Indenture and
all of its provisions shall be deemed a part of the Indenture in the manner and to the extent
herein and therein provided.
SECTION 2.03.
Governing Law
.
THIS THIRD SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK.
SECTION 2.04.
Severability
.
In case any provision in this Third Supplemental Indenture shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions shall, to the
fullest extent permitted by applicable law, not in any way be affected or impaired thereby.
SECTION 2.05.
Counterparts
.
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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.
SECTION 2.06.
Successors
.
All agreements of the Company or any Guarantor in this Third Supplemental Indenture shall bind its
successors. All agreements of the Trustee in this Third Supplemental Indenture shall bind its
successors.
SECTION 2.07.
Table of Contents and Headings
.
The table of contents and headings of the Articles and Sections of this Third Supplemental
Indenture have been inserted for convenience of reference only, are not to be considered a part
hereof and shall in no way modify or restrict any of the terms or provisions hereof.
SECTION 2.08.
Benefit of Third Supplemental Indenture
.
Nothing in this Third Supplemental Indenture, express or implied, shall give to any Person, other
than the parties hereto, any Security Registrar, any Paying Agent and their successors hereunder,
and the Holders of Securities of any series to which the amendments of the Indenture set forth in
Article 1 hereof have been made applicable, any benefit or any legal or equitable right, remedy or
claim under this Third Supplemental Indenture.
SECTION 2.09.
Acceptance by Trustee
.
The Trustee accepts the amendments to the Indenture effected by this Third Supplemental Indenture
and agrees to execute the trusts created by the Indenture as hereby amended, but only upon the
terms and conditions set forth in this Third Supplemental Indenture and the Indenture. Without
limiting the generality of the foregoing, the Trustee assumes no responsibility for the correctness
of the recitals contained herein, which shall be taken as the statements of the Company and the
Guarantors, and, except as provided in the Indenture, the Trustee shall not be
responsible or accountable in any way whatsoever for or with respect to the validity or execution
or sufficiency of this Third Supplemental Indenture, and the Trustee makes no representation with
respect thereto.
[SIGNATURE PAGE FOLLOWS]
-19-
IN WITNESS WHEREOF, the parties hereto have caused this Third Supplemental Indenture to be
duly executed as of the day and year first written above.
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WEATHERFORD INTERNATIONAL LTD.,
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a Bermuda exempted company
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By:
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/s/ Burt M. Martin
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Name: Burt M. Martin
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Title: Senior Vice President
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WEATHERFORD INTERNATIONAL, INC.,
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a Delaware corporation
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By:
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/s/ Burt M. Martin
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Name: Burt M. Martin
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Title: Senior Vice President
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WEATHERFORD INTERNATIONAL LTD.,
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a Swiss corporation
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By:
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/s/ Burt M. Martin
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Name: Burt M. Martin
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Title: Senior Vice President
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DEUTSCHE BANK TRUST COMPANY AMERICAS, as Trustee
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By:
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DEUTSCHE BANK NATIONAL
TRUST COMPANY
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By:
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/s/ Irina Golovashchuk
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Name: Irina Golovashchuk
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Title: Assistant Vice President
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By:
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/s/ David Contino
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Name: David Contino
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Title: Vice President
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-20-
EXHIBIT 4.3
SECOND SUPPLEMENTAL INDENTURE
among
WEATHERFORD INTERNATIONAL, INC.,
a Delaware corporation,
WEATHERFORD INTERNATIONAL LTD.,
a Bermuda exempted company,
WEATHERFORD INTERNATIONAL LTD.,
a Swiss corporation,
and
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Trustee
Dated as of
February 26, 2009
to Indenture dated as of June 18, 2007
TABLE OF CONTENTS
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ARTICLE 1
Amendments to the Indenture
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2
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SECTION 1.01.
Definitions
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2
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SECTION 1.02.
Certain References to the Guarantor
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3
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SECTION 1.03.
Additional References to the Guarantor
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3
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SECTION 1.04.
Certain References Regarding Weatherford Bermuda
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3
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SECTION 1.05.
Certain References to the Guarantee
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3
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SECTION 1.06.
Compliance Certificates and Opinions
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4
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SECTION 1.07.
Form of Documents Delivered to Trustee
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4
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SECTION 1.08.
Notices
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4
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SECTION 1.09.
Governing Law
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5
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SECTION 1.10.
Incorporators, Shareholders, Officers and
Directors of the Company and Guarantor Exempt from Individual
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Liability
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6
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SECTION 1.11.
Forms Generally
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6
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SECTION 1.12.
Form of Reverse of Security
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6
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SECTION 1.13.
The Securities
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9
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SECTION 1.14.
Events of Default
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9
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SECTION 1.15.
Trustee Matters
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9
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SECTION 1.16.
Reports by the Guarantors and the Company
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12
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SECTION 1.17.
Consolidation, Amalgamation, Merger and Sale
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13
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SECTION 1.18.
Supplemental Indentures
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14
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SECTION 1.19.
Covenants
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14
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SECTION 1.20.
Guarantee
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15
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ARTICLE 2
Miscellaneous Provisions
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19
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SECTION 2.01.
General Definitions
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19
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SECTION 2.02.
Continued Effect
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SECTION 2.03.
Governing Law
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SECTION 2.04.
Severability
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SECTION 2.05.
Counterparts
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SECTION 2.06.
Successors
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SECTION 2.07.
Table of Contents and Headings
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SECTION 2.08.
Benefit of Second Supplemental Indenture
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20
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SECTION 2.09.
Acceptance by Trustee
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-i-
This SECOND SUPPLEMENTAL INDENTURE, dated as of February 26, 2009, among Weatherford
International, Inc., a Delaware corporation (the
Company
), Weatherford International Ltd., a
Bermuda exempted company (
Weatherford Bermuda
), Weatherford International Ltd., a Swiss
corporation (
Weatherford Switzerland
), and Deutsche Bank Trust Company Americas, as trustee (the
Trustee
).
RECITALS OF THE COMPANY
WHEREAS, the Company has heretofore executed and delivered to the Trustee an Indenture, dated
as of June 18, 2007, as supplemented by the First Supplemental Indenture thereto, dated as of June
18, 2007 (the
First Supplemental Indenture
, and such indenture as so supplemented, the
Indenture
), providing for the issuance from time to time of one or more series of the Companys
Securities; and
WHEREAS, the Company, in accordance with the First Supplemental Indenture, previously issued
$600 million aggregate original principal amount of its 5.95% Senior Notes due 2012 (the
2012
Notes
), $600 million aggregate original principal amount of its 6.35% Senior Notes due 2017 (the
2017 Notes
) and $300 million aggregate original principal amount of its 6.80% Senior Notes due
2037 (the
2037 Notes
and collectively with the 2012 Notes and the 2017 Notes, the
Notes
), which
Notes remain Outstanding as of the date hereof; and
WHEREAS, Weatherford Bermuda has, in accordance with the Indenture, previously provided a
guarantee of the Notes; and
WHEREAS, pursuant to a share exchange transaction effected by a scheme of arrangement, in
connection with a share exchange agreement, between Weatherford Bermuda and Weatherford
Switzerland, pursuant to which each holder of common shares of Weatherford Bermuda issued and
outstanding immediately before the transaction transferred such common shares to Weatherford
Switzerland solely in exchange for (through a nominee acting on behalf and for the account of the
shareholders) the same number of shares of Weatherford Switzerland (the
Redomestication
), the
Company, contemporaneously with the effectiveness of this Second Supplemental Indenture, has become
an indirect, wholly-owned subsidiary of Weatherford Switzerland, and Weatherford Bermuda has become
a direct, wholly-owned subsidiary of Weatherford Switzerland; and
WHEREAS, in connection with such Redomestication, Weatherford Switzerland has determined that
it will be in the best interests of and beneficial to Weatherford Switzerland to enter into this
Second Supplemental Indenture for the purposes of providing a guarantee of the Notes in accordance
with the terms of this Second Supplemental Indenture; and
WHEREAS, Section 9.1(3) of the Indenture permits the execution of supplemental indentures
without the consent of any Holders to add to the covenants of the Company for the benefit of all or
any series of Securities; and
WHEREAS, Section 9.1(6) of the Indenture permits the execution of supplemental indentures
without the consent of any Holders to change or eliminate any of the provisions of the Indenture;
provided, that any such change or elimination shall become effective only when there
is no Security Outstanding of any series created prior to the execution of such supplemental
indenture which is entitled to the benefit of such provision; and
WHEREAS, the Company, pursuant to the foregoing authority, proposes in and by this Second
Supplemental Indenture to supplement and amend the Indenture in certain respects; and
WHEREAS, all things necessary have been done to make this Second Supplemental Indenture a
valid agreement of the Company, Weatherford Bermuda and Weatherford Switzerland, in accordance with
its terms.
NOW THEREFORE:
In consideration of the premises provided for herein, the Company, Weatherford Bermuda,
Weatherford Switzerland and the Trustee mutually covenant and agree as follows:
ARTICLE 1
Amendments to the Indenture
SECTION 1.01.
Definitions
.
Section 1.1 of the Indenture is hereby amended by (a) replacing the words the Guarantor each time
said words appear in the defined terms Board of Directors, Board Resolution, Opinion of
Counsel, Outstanding and Vice President with the words a Guarantor, (b) adding the
definitions of Weatherford Bermuda and Weatherford Switzerland as indicated below, and (c)
replacing the definitions of Bankruptcy Law, Company Request or Company Order, Guarantee,
Guarantor and Officers Certificate with the following, respectively:
Bankruptcy Law means any applicable Federal, State, Bermuda or Swiss
bankruptcy, insolvency, reorganization or other similar law.
Company Request or Company Order means, in the case of the Company, a
written request or order signed in the name of the Company by its Chairman of the
Board, its Chief Executive Officer, its President, any of its Vice Presidents or any
other duly authorized officer of the Company or any person duly authorized by any of
them, and delivered to the Trustee and, in the case of a Guarantor, a written
request or order signed in the name of such Guarantor by its Chairman of the Board,
its Chief Executive Officer, its President, any of its Vice Presidents or any other
duly authorized officer of such Guarantor or any person duly authorized by any of
them, and delivered to the Trustee.
Guarantees has the meaning specified in Section 14.1.
Guarantors shall mean Weatherford Bermuda, until a successor Person shall
have become such pursuant to the applicable provisions of this Indenture (and
thereafter shall mean such successor Person), and Weatherford Switzerland,
until a successor Person shall have become such pursuant to the applicable
provisions of this Indenture (and thereafter shall mean such successor Person),
-2-
and Guarantor shall mean either (i) Weatherford Bermuda or its successor
Person, or (ii) Weatherford Switzerland or its successor Person.
Officers Certificate means, in the case of the Company, a certificate
signed by the Chairman of the Board, the Chief Executive Officer, the President, any
Vice President or any other duly authorized officer of the Company, or a person duly
authorized by any of them, and delivered to the Trustee and, in the case of a
Guarantor, a certificate signed by the Chairman of the Board, the Chief Executive
Officer, the President, any Vice President or any other duly authorized officer of
such Guarantor, or a person duly authorized by any of them, and delivered to the
Trustee.
Weatherford Bermuda means Weatherford International Ltd., a Bermuda exempted
company.
Weatherford Switzerland means Weatherford International Ltd., a Swiss
corporation.
SECTION 1.02.
Certain References to
"
the Guarantor
.
Sections 1.2, 1.5, 3.1, 5.2, 5.3, 5.4, 6.3 and 6.6, subsections (1) and (2) of Section 1.6,
subsection (c) of Section 3.3, subsections (4) and (5) of Section 5.1 and the fourth paragraph of
Section 6.14 of the Indenture are each hereby amended by replacing the words the Guarantor each
time said words appear therein with the words a Guarantor.
SECTION 1.03.
Additional References to
"
the Guarantor
.
Sections 1.10, 1.16, 3.5, 3.6, 3.8, 5.9, 5.15, 6.4, 7.2, 9.2, 10.3, 10.8, 13.2 and 13.3, the third
paragraph of Section 6.14, subsection (3) of Section 9.1 and the first and last paragraphs of
Section 9.1 of the Indenture are each hereby amended by replacing the words the Guarantor each
time said words appear therein with the words the Guarantors.
SECTION 1.04.
Certain References Regarding Weatherford Bermuda
Sections 10.5 and 10.6 of the Indenture and the definitions of Consolidated Net Worth, Permitted
Liens, Sale-Leaseback Transaction and Subsidiary in Section 1.1 of the Indenture are each
hereby amended by replacing the words the Guarantor each time said words appear therein with the
words Weatherford Bermuda.
SECTION 1.05.
Certain References to
the Guarantee
.
Sections 1.11, 1.12, 1.14, 3.1, 3.5, 3.6, 5.4 and 5.7 of the Indenture are each hereby amended by
replacing the words the Guarantee each time said words appear therein with the words the
Guarantees.
-3-
SECTION 1.06.
Compliance Certificates and Opinions
.
Section 1.3 of the Indenture is hereby amended by replacing the first paragraph thereof with the
following:
Upon any application or request by the Company or a Guarantor to the Trustee
to take any action under any provision of this Indenture, the Company or such
Guarantor, as the case may be, shall furnish to the Trustee an Officers Certificate
stating that all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with and an Opinion of Counsel
stating that in the opinion of such counsel all such conditions precedent, if any,
have been complied with, except that in the case of any such application or request
as to which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or request, no
additional certificate or opinion need be furnished except as required under Section
314(c) of the Trust Indenture Act.
SECTION 1.07.
Form of Documents Delivered to Trustee
.
Section 1.4 of the Indenture is hereby amended by replacing the second paragraph thereof with the
following:
Any certificate or opinion of an officer of the Company or a Guarantor may be
based, insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows or, in the exercise of
reasonable care, should know that the certificate or opinion or representations with
respect to the matters upon which his certificate or opinion is based are erroneous.
Any such certificate or opinion of counsel may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by, an officer
or officers of the Company or such Guarantor, as the case may be, stating that the
information with respect to such factual matters is in the possession of the Company
or such Guarantor, as the case may be, unless such counsel knows that the
certificate or opinion or representations with respect to such matters are
erroneous.
SECTION 1.08.
Notices
.
Section 1.6 of the Indenture is hereby amended by replacing subsection (3) thereof with the
following:
(3) a Guarantor by the Company, the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to such Guarantor addressed
to it at: Weatherford International Ltd., 515 Post Oak Blvd., Houston, Texas 77027,
to the attention of its Corporate Secretary, or at any other address previously
furnished in writing to the Trustee by such Guarantor.
-4-
SECTION 1.09.
Governing Law
.
Section 1.13 of the Indenture is hereby amended by replacing such Section 1.13 with the following:
THIS INDENTURE, THE SECURITIES AND THE GUARANTEES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
To the fullest extent permitted by applicable law, each of the Company and the
Guarantors hereby irrevocably submits to the jurisdiction of any Federal or state
court located in the Borough of Manhattan in The City of New York, New York in any
suit, action or proceeding based on or arising out of or relating to this Indenture
or any Securities and irrevocably agrees that all claims in respect of such suit or
proceeding may be determined in any such court. Each of the Company and the
Guarantors irrevocably waives, to the fullest extent permitted by law, any objection
which it may have to the laying of the venue of any such suit, action or proceeding
brought in an inconvenient forum. Each of the Company and the Guarantors agrees that
final judgment in any such suit, action or proceeding brought in such a court shall
be conclusive and binding and may be enforced in the courts of Bermuda (or any other
courts of any other jurisdiction to which either of them is subject) by a suit upon
such judgment, provided that service of process is effected upon the Company. Each
of the Company and the Guarantors hereby irrevocably designates and appoints CT
Corporation Systems, New York, New York (the Process Agent) as its authorized
agent for purposes of this Section 1.13, it being understood that the designation
and appointment of the Process Agent as such authorized agent shall become effective
immediately without any further action on the part of the Company or such Guarantor,
as the case may be. Each of the Company and the Guarantors further agrees that,
unless otherwise required by law, service of process upon the Process Agent and
written notice of said service to the Company or a Guarantor, as the case may be,
mailed by prepaid registered first class mail or delivered to the Process Agent at
its principal office, shall be deemed in every respect effective service of process
upon the Company or such Guarantor, as the case may be, in any such suit or
proceeding. Each of the Company and the Guarantors further agrees to take any and
all action, including the execution and filing of any and all such documents and
instruments as may be necessary, to continue such designation and appointment of the
Process Agent in full force and effect so long as the Company or such Guarantor, as
the case may be, has any outstanding obligations under this Indenture. To the extent
the Company or a Guarantor, as the case may be, has or hereafter may acquire any
immunity from jurisdiction of any court or from any legal process (whether through
service of notice, attachment prior to judgment, attachment in aid of execution,
executor or otherwise) with respect to itself or its property, each of the Company
and such Guarantor hereby irrevocably waives such immunity in respect of its
obligations under this Indenture to the extent permitted by law.
-5-
SECTION 1.10.
Incorporators, Shareholders, Officers and Directors of the Company and Guarantor
Exempt from Individual Liability
.
Section 1.18 of the Indenture is hereby amended by (a) replacing the words the Guarantee each
time said words appear therein with any Guarantee and (b) replacing the words the Guarantor
each time said words appear therein with the words any Guarantor.
SECTION 1.11.
Forms Generally
.
The first paragraph of Section 2.1 of the Indenture is hereby amended by replacing such paragraph
with the following:
The Securities of each series and, if applicable, the notation thereon
relating to the Guarantees, shall be in substantially the form set forth in this
Article Two, or in such other form or forms as shall be established by or pursuant
to a Board Resolution or in one or more indentures supplemental hereto, in each case
with such appropriate insertions, omissions, substitutions and other variations as
are required or permitted by this Indenture, and may have such letters, numbers or
other marks of identification and such legends or endorsements placed thereon as may
be required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities and,
if applicable, such Guarantees, as evidenced by their execution thereof.
SECTION 1.12.
Form of Reverse of Security
.
The first, second, eleventh, seventeenth, eighteenth, nineteenth, twenty-first and twenty-second
paragraphs of Section 2.3 of the Indenture are hereby amended by replacing such paragraphs with the
following, respectively:
This Security is one of a duly authorized issue of senior securities of the Company
(herein called the Securities), issued and to be issued in one or more series
under an Indenture, dated as of June 18, 2007 (herein called the Indenture),
between the Company, Weatherford International Ltd. and Deutsche Bank Trust Company
Americas, as Trustee (herein called the Trustee, which term includes any successor
trustee under 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
-6-
provided or permitted. This Security is one of the series designated on the face
hereof [, limited in aggregate principal amount to
$. . . . . . . . . . ].
This Security is the general, unsecured, senior obligation of the Company [
if
applicable, insert
and is guaranteed pursuant to a guarantee (the Guarantee) by
each of Weatherford International Ltd., a Bermuda exempted company (Weatherford
Bermuda) and Weatherford International Ltd., a Swiss corporation (Weatherford
Switzerland and collectively with Weatherford Bermuda, the Guarantors). The
Guarantees are the general, unsecured, senior obligation of the Guarantors.]
The Indenture permits, with certain exceptions as therein provided, the amendment
thereof and the modification of the rights and obligations of the Company [
If
applicable, insert
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 [
If applicable, insert
and the Guarantors] and the Trustee with the consent
of the Holders of a majority in principal amount of the Securities at the time
Outstanding of each series to be affected. The Indenture also contains provisions
permitting the Holders of specified percentages in principal amount of the
Securities of each series at the time Outstanding, on behalf of the Holders of all
Securities of such series, to waive compliance by the Company [
If applicable,
insert
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.
Prior to due presentment of this Security for registration of transfer, the
Company, [
If applicable, insert
the Guarantors,] the Trustee and any agent of the
Company [
If applicable, insert
, 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, [
If
applicable, insert
the Guarantors,] the Trustee nor any such agent shall be
affected by notice to the contrary.
No recourse under or upon any obligation, covenant or agreement of or contained in
the Indenture or of or contained in any Security, [
If applicable, insert
, or any
Guarantee endorsed thereon,] or for any claim based thereon or otherwise in respect
thereof, or in any Security [
If applicable, insert
or in any Guarantee], 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 [
If applicable, insert
or any Guarantor] or of
any successor Person, either directly or through the Company [
If applicable,
insert
or any Guarantor] 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
-7-
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 [
If applicable, insert
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 [
If
applicable, insert
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.
[
If a Definitive Security, insert
as
a separate page
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, INC., a Delaware corporation,
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.
Please Insert Social Security or Other Identifying Number of Assignee:
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.]
[
If a Security to which Article Fourteen has been made applicable, insert the
following Form of Notation on such Security relating to the Guarantee
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 and all other amounts due and payable under the Indenture and the
Securities by the Company.
-8-
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:
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WEATHERFORD INTERNATIONAL LTD.,
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a Bermuda exempted company
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By:
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WEATHERFORD INTERNATIONAL LTD.,
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a Swiss corporation
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By:
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SECTION 1.13.
The Securities
.
Article Three of the Indenture is hereby amended by (a) replacing the words the Guarantor
appearing in the first paragraph of Section 3.3 with the words the applicable Guarantor and (b)
replacing the second paragraph of Section 3.3 with the following:
Securities and any Guarantee bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company or a Guarantor,
as the case may be, shall bind the Company or such Guarantor, as the case may be,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not hold
such offices at the date of such Securities.
SECTION 1.14.
Events of Default.
Section 5.1 of the Indenture is hereby amended by replacing the words the Guarantor appearing in
subsection (3) thereof with the words any Guarantor.
SECTION 1.15.
Trustee Matters
.
Article Six of the Indenture is hereby amended by replacing Sections 6.5, 6.11 and 6.13 with the
following, respectively:
Section 6.5.
May Hold Securities
.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company or, if applicable, any Guarantor, in
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its individual or any other capacity, may become the owner or pledgee of
Securities and, subject to Sections 310(b) and 311 of the Trust Indenture Act and
Sections 6.8, 6.9 and 6.13, may otherwise deal with the Company or, if applicable,
such Guarantor with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such other agent.
Section 6.11.
Acceptance of Appointment by Successor
.
(a) In case of the appointment hereunder of a successor Trustee
with respect to all Securities, every such successor Trustee so
appointed shall execute, acknowledge and deliver to the Company, the
Guarantors (if applicable) and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the
retiring Trustee; but, on the request of the Company or, if
applicable, a Guarantor or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an
instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all) series,
the Company, the Guarantors (if applicable), the retiring Trustee
and each successor Trustee with respect to the Securities of one or
more series shall execute and deliver an indenture supplemental
hereto wherein each successor Trustee shall accept such appointment
and which (1) shall contain such provisions as shall be necessary or
desirable to transfer and confirm to, and to vest in, each successor
Trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to
which the appointment of such successor Trustee relates, (2) if the
retiring Trustee is not retiring with respect to all Securities,
shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or
those series as to which the retiring Trustee is not retiring shall
continue to be vested in the retiring Trustee, and (3) shall add to
or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute
such Trustees co-trustees of the same trust and that each such
-10-
Trustee shall be trustee of a trust or trusts hereunder
separate and apart from any trust or trusts hereunder administered
by any other such Trustee; and upon the execution and delivery of
such supplemental indenture the resignation or removal of the
retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such
successor Trustee relates; but, on request of the Company, a
Guarantor (if applicable) or any successor Trustee, such retiring
Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee
hereunder with respect to the Securities of that or those series to
which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company
and, if applicable, the Guarantors shall execute any and all
instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as the case may
be.
(d) No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be
qualified and eligible under this Article and the Trust Indenture
Act.
Section 6.13.
Preferential Collection of Claims Against Company
.
Reference is made to Section 311 of the Trust Indenture Act. For purposes of
Section 311(b) of the Trust Indenture Act,
(1) the term cash transaction means any transaction in which full
payment for goods or securities sold is made within seven days after
delivery of the goods or securities in currency or in checks or other orders
drawn upon banks or bankers and payable upon demand; and
(2) the term self-liquidating paper means any draft, bill of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company or, if applicable, a Guarantor for the purpose of
financing the purchase, processing, manufacturing, shipment, storage or sale
of goods, wares or merchandise and which is secured by documents evidencing
title to, possession of, or a lien upon, the goods, wares or merchandise or
the receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the security is
received by the Trustee simultaneously with the creation of
-11-
the creditor relationship with the Company or, if applicable, such
Guarantor arising from the making, drawing, negotiating or incurring of the
draft, bill of exchange, acceptance or obligation.
SECTION 1.16.
Reports by the Guarantors and the Company
.
Section 7.4 of the Indenture is hereby amended by replacing such Section 7.4 with the following:
Section 7.4.
Reports by the Guarantors and the Company
.
Each Guarantor and the Company shall:
(a) file with the Trustee, within 15 days after such Guarantor
or the Company, as applicable, is required to file the same with the
Commission, copies of the annual reports and of the information,
documents and other reports (or copies of such portions of any of
the foregoing as the Commission may from time to time by rules and
regulations prescribe) which such Guarantor or the Company, as
applicable, may be required to file with the Commission pursuant to
Section 13 or Section 15(d) of the Exchange Act; or, if such
Guarantor or the Company, as applicable, is not required to file
information, documents or reports pursuant to either of said
Sections, then it shall file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time
by the Commission, such of the supplementary and periodic
information, documents and reports which may be required pursuant to
Section 13 of the Exchange Act in respect of a security listed and
registered on a national securities exchange as may be prescribed
from time to time in such rules and regulations;
(b) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with
respect to compliance by the Guarantors and the Company with the
conditions and covenants of this Indenture as may be required from
time to time by such rules and regulations; and
(c) transmit by mail to all Holders, as their names and
addresses appear in the Security Register, within 30 days after the
filing thereof with the Trustee, such summaries of any information,
documents and reports required to be filed by the Guarantors and the
Company pursuant to clauses (a) and (b) of this Section as may be
required by rules and regulations prescribed from time to time by
the Commission.
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The receipt by the Trustee of any reports, documents or information pursuant to
(a) and (b) of this Section 7.4 shall not constitute notice or constructive notice
of any information contained in such reports or documents or determinable from
information contained in such reports or documents, including a Guarantors and the
Companys compliance with any covenants hereunder (as to which the Trustee is
entitled to rely exclusively on a certificate pursuant to Section 10.7 hereof).
SECTION 1.17.
Consolidation, Amalgamation, Merger and Sale
.
Article Eight of the Indenture is hereby amended by replacing Article Eight with the following:
ARTICLE EIGHT
CONSOLIDATION, AMALGAMATION, MERGER AND SALE
Section 8.1.
Company May Consolidate, Etc., Only on Certain Terms
.
The Company and, if any Securities of a series to which Article Fourteen has
been made applicable are Outstanding, each Guarantor shall not consolidate or
amalgamate with or merge into any other Person or convey, transfer or lease its
properties and assets as, or substantially as, an entirety to any Person unless:
(1) the Person formed by such consolidation or amalgamation or into
which the Company or such Guarantor, as the case may be, is merged or the
Person which acquires by conveyance or transfer, or which leases, the
properties and assets of the Company or such Guarantor, as the case may be,
as, or substantially as, an entirety shall be a corporation and shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due and
punctual payment of the principal of and any premium and interest on all the
Securities and the performance or observance of every other covenant of this
Indenture on the part of the Company or such Guarantor, as the case may be,
to be performed or observed and shall have expressly provided for conversion
rights in respect of any series of Outstanding Securities with conversion
rights;
(2) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time or both, would
become an Event of Default, shall have occurred and be continuing; and
(3) the Company or such Guarantor, as the case may be, has delivered to
the Trustee an Officers Certificate and an Opinion of Counsel, each stating
that such consolidation, amalgamation, merger, conveyance, sale, transfer or
lease and such supplemental indenture, if any, comply with this Article
Eight and that all conditions precedent herein provided for relating to such
transaction have been complied with.
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Section 8.2.
Successor Substituted
.
Upon any consolidation or amalgamation of the Company or a Guarantor, as the
case may be, with or merger of the Company or a Guarantor, as the case may be, into,
any other Person or any conveyance, transfer or lease of the properties and assets
of the Company or a Guarantor, as the case may be, as, or substantially as, an
entirety in accordance with Section 8.1, the successor or resulting Person formed by
or resulting upon such consolidation or amalgamation or into which the Company or
such Guarantor, as the case may be, is merged or to which such conveyance, transfer
or lease is made shall succeed to, and be substituted for, and may exercise every
right and power of, the Company or such Guarantor, as the case may be, under this
Indenture with the same effect as if such successor Person had been named as the
Company or such Guarantor, as the case may be, herein, and thereafter, except in the
case of a lease, the predecessor Person shall be relieved of all obligations and
covenants under this Indenture and the Securities and may liquidate and dissolve.
SECTION 1.18.
Supplemental Indentures
.
Section 9.1 of the Indenture is hereby amended by replacing subsection (2) of Section 9.1 with the
following:
(2) to evidence the succession of another Person to a Guarantor and the
assumption by any such successor of the Guarantee of such Guarantor herein and, to
the extent applicable, endorsed upon any Securities; or
SECTION 1.19.
Covenants.
Article Ten of the Indenture is hereby amended by replacing Sections 10.4 and 10.7 with the
following, respectively:
Section 10.4.
Existence
.
Subject to Article Eight, the Company and, if any Securities of a series to
which Article Fourteen has been made applicable are Outstanding, each Guarantor will
do or cause to be done all things necessary to preserve and keep in full force and
effect its existence, rights (charter and statutory) and franchises; provided,
however, that the Company and, if applicable, the Guarantors shall not be required
to preserve any such right or franchise if the Board of Directors shall determine
that the preservation thereof is no longer desirable in the conduct of the business
of the Company or such Guarantor, as the case may be.
Section 10.7.
Statement by Officers as to Default
.
Annually, within 150 days after the close of each fiscal year beginning with
the first fiscal year during which one or more series of Securities are Outstanding,
the Company and, if any Securities of a series to which Article Fourteen has been
made applicable are Outstanding, each Guarantor will deliver
-14-
to the Trustee a brief certificate (which need not include the statements set
forth in Section 1.3) from the principal executive officer, principal financial
officer or principal accounting officer of the Company and, if applicable, such
Guarantor as to his or her knowledge of the Companys or such Guarantors, as the
case may be, compliance (without regard to any period of grace or requirement of
notice provided herein) with all conditions and covenants under the Indenture and,
if the Company or such Guarantor, as the case may be, shall be in Default,
specifying all such Defaults and the nature and status thereof of which such officer
has knowledge.
SECTION 1.20.
Guarantee
.
Article Fourteen of the Indenture is hereby amended by replacing Article Fourteen with the
following:
ARTICLE FOURTEEN
GUARANTEES OF SECURITIES
Section 14.1.
Unconditional Guarantees
.
For value received, each Guarantor hereby fully, irrevocably, unconditionally
and absolutely guarantees to the Holders of Securities of each series to which this
Article Fourteen has been made applicable as provided in Section 3.1(22) and to the
Trustee the due and punctual payment of the principal of, and premium, if any, and
interest on such Securities, and all other amounts due and payable under this
Indenture and such Securities by the Company to the Trustee or such Holders
(including, without limitation, all costs and expenses (including reasonable legal
fees and disbursements) incurred by the Trustee or such Holders in connection with
the enforcement of this Indenture and the Guarantees) (collectively, the Indenture
Obligations), when and as such principal, premium, if any, interest, if any, and
other amounts shall become due and payable, whether at the Stated Maturity, upon
redemption or by declaration of acceleration or otherwise, according to the terms of
such Securities and this Indenture. The guarantees by the Guarantors set forth in
this Article Fourteen are referred to herein as the Guarantees"
.
Without limiting
the generality of the foregoing, the Guarantors liability shall extend to all
amounts that constitute part of the Indenture Obligations and would be owed by the
Company to the Trustee or such Holders under this Indenture and such Securities but
for the fact that they are unenforceable, reduced, limited, impaired, suspended or
not allowable due to the existence of a bankruptcy, reorganization or similar
proceeding involving the Company.
Failing payment when due of any amount guaranteed pursuant to the Guarantees,
for whatever reason, each Guarantor will be obligated (to the fullest extent
permitted by applicable law) to pay the same immediately to the Trustee, without
set-off or counterclaim or other reduction whatsoever (whether for taxes,
withholding or otherwise). Each Guarantee hereunder is intended to be a general,
-15-
unsecured, senior obligation of the applicable Guarantor and will rank
pari
passu
in right of payment with all unsecured indebtedness of such Guarantor that is
not, by its terms, expressly subordinated in right of payment to the Guarantee of
such Guarantor. Each Guarantor hereby agrees that, to the fullest extent permitted
by applicable law, its obligations hereunder shall be full, irrevocable,
unconditional and absolute, irrespective of the validity, regularity or
enforceability of such Securities, the Guarantees or this Indenture, the absence of
any action to enforce the same, any waiver or consent by any Holder with respect to
any provisions hereof or thereof, the recovery of any judgment against the Company,
any action to enforce the same or any other circumstance which might otherwise
constitute a legal or equitable discharge or defense of such Guarantor. Such
Guarantor hereby agrees that in the event of a default in payment of the principal
of, or premium, if any, or interest on such Securities, or any other amounts payable
under this Indenture and such Securities by the Company to the Trustee or the
Holders thereof, whether at the Stated Maturity, upon redemption or by declaration
of acceleration or otherwise, legal proceedings may be instituted by the Trustee on
behalf of such Holders or, subject to Section 5.7 hereof, by such Holders, on the
terms and conditions set forth in this Indenture, directly against such Guarantor to
enforce its Guarantee without first proceeding against the Company or any other
Guarantor.
To the fullest extent permitted by applicable law, the obligations of the
Guarantors under this Article Fourteen shall be as aforesaid full, irrevocable,
unconditional and absolute and shall not be impaired, modified, discharged, released
or limited by any occurrence or condition whatsoever, including, without limitation,
(i) any compromise, settlement, release, waiver, renewal, extension, indulgence or
modification of, or any change in, any of the obligations and liabilities of the
Company or any Guarantor contained in any of such Securities or this Indenture, (ii)
any impairment, modification, release or limitation of the liability of the Company,
any Guarantor or any of their estates in bankruptcy, or any remedy for the
enforcement thereof, resulting from the operation of any present or future provision
of any applicable Bankruptcy Law, as amended, or other statute or from the decision
of any court, (iii) the assertion or exercise by the Trustee or any such Holder of
any rights or remedies under any of such Securities or this Indenture or their delay
in or failure to assert or exercise any such rights or remedies, (iv) the assignment
or the purported assignment of any property as security for any of such Securities,
including all or any part of the rights of the Company or any Guarantor under this
Indenture, (v) the extension of the time for payment by the Company or any Guarantor
of any payments or other sums or any part thereof owing or payable under any of the
terms and provisions of any of such Securities or this Indenture or of the time for
performance by the Company or any Guarantor of any other obligations under or
arising out of any such terms and provisions or the extension or the renewal of any
thereof, (vi) the modification or amendment (whether material or otherwise) of any
duty, agreement or obligation of the Company or any Guarantor set forth in this
Indenture, (vii) the voluntary or involuntary liquidation, dissolution, sale or
other disposition of all or substantially all of the assets, marshaling of assets
and
-16-
liabilities, receivership, insolvency, bankruptcy, assignment for the benefit
of creditors, reorganization, arrangement, composition or readjustment,
rehabilitation or relief of, or other similar proceeding affecting, the Company or
any Guarantor or any of their respective assets, or the disaffirmance of any of such
Securities, the Guarantees or this Indenture in any such proceeding, (viii) the
release or discharge of the Company or any Guarantor from the performance or
observance of any agreement, covenant, term or condition contained in any of such
instruments by operation of law, (ix) the unenforceability of any of such
Securities, the Guarantees or this Indenture, (x) any change in the name, business,
capital structure, corporate existence, or ownership of the Company or any
Guarantor, or (xi) any other circumstance which might otherwise constitute a defense
available to, or a legal or equitable discharge of, a surety or any Guarantor.
To the fullest extent permitted by applicable law, each Guarantor hereby (i)
waives diligence, presentment, demand of payment, notice of acceptance, filing of
claims with a court in the event of the merger, amalgamation, insolvency, winding up
or bankruptcy of the Company or any Guarantor, and all demands and notices
whatsoever, (ii) acknowledges that any agreement, instrument or document evidencing
the Guarantees may be transferred and that the benefit of its obligations hereunder
shall extend to each holder of any agreement, instrument or document evidencing the
Guarantees without notice to them and (iii) covenants that its Guarantee will not be
discharged except by complete performance of the Guarantees. To the fullest extent
permitted by applicable law, each Guarantor further agrees that if at any time all
or any part of any payment theretofore applied by any Person to any Guarantee is, or
must be, rescinded or returned for any reason whatsoever, including without
limitation, the insolvency, bankruptcy or reorganization of any Guarantor, such
Guarantee shall, to the extent that such payment is or must be rescinded or
returned, be deemed to have continued in existence notwithstanding such application,
and the Guarantees shall continue to be effective or be reinstated, as the case may
be, as though such application had not been made.
The Guarantors shall be subrogated to all rights of the Holders and the Trustee
against the Company in respect of any amounts paid by the Guarantors pursuant to the
provisions of this Indenture; provided, however
,
that the Guarantors shall not be
entitled to enforce or to receive any payments arising out of, or based upon, such
right of subrogation with respect to any of such Securities until all of such
Securities and the Guarantees thereof shall have been indefeasibly paid in full or
discharged.
A director, officer, employee or shareholder, as such, of a Guarantor shall not
have any liability for any obligations of such Guarantor under this Indenture or for
any claim based on, in respect of or by reason of such obligations or their
creation.
-17-
To the fullest extent permitted by applicable law, no failure to exercise and
no delay in exercising, on the part of the Trustee or the Holders, any right, power,
privilege or remedy under this Article Fourteen and the Guarantees shall operate as
a waiver thereof, nor shall any single or partial exercise of any rights, power,
privilege or remedy preclude any other or further exercise thereof, or the exercise
of any other rights, powers, privileges or remedies. The rights and remedies herein
provided for are cumulative and not exclusive of any rights or remedies provided in
law or equity. Nothing contained in this Article Fourteen shall limit the right of
the Trustee or the Holders to take any action to accelerate the maturity of such
Securities pursuant to Article Five or to pursue any rights or remedies hereunder or
under applicable law.
Section 14.2.
Execution and Delivery of Notation of Guarantees
.
To further evidence the Guarantees, each Guarantor hereby agrees that a
notation of its Guarantee may be endorsed on each Security of a series to which this
Article Fourteen has been made applicable authenticated and delivered by the Trustee
and executed by either manual or facsimile signature of an officer of such
Guarantor.
Each Guarantor hereby agrees that its Guarantee of Securities of a series to
which this Article Fourteen has been made applicable shall remain in full force and
effect notwithstanding any failure to endorse on any such Security a notation
relating to any Guarantee thereof.
If an officer of a Guarantor whose signature is on this Indenture or a Security
no longer holds that office at the time the Trustee authenticates such Security or
at any time thereafter, such Guarantors Guarantee of such Security shall be valid
nevertheless.
The delivery by the Trustee of any Security of a series to which this Article
Fourteen has been made applicable, after the authentication thereof under this
Indenture, shall constitute due delivery of the Guarantees set forth in this
Indenture on behalf of the applicable Guarantor.
Section 14.3.
Reports by Guarantors
.
In addition to the certificates delivered to the Trustee pursuant to Section
10.7, the Guarantors shall file with the Trustee and the Commission, and transmit to
Holders of Outstanding Securities of each series to which this Article Fourteen has
been made applicable, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant thereto; provided that any such
information, documents or reports required to be filed with the Commission pursuant
to Section 13 or 15(d) of the Exchange Act shall be filed with the Trustee within 15
days after the same is so required to be filed with the Commission.
-18-
The receipt by the Trustee of any reports, documents or information pursuant to
this Section 14.3 shall not constitute notice or constructive notice of any
information contained in such reports or documents or determinable from information
contained in such reports or documents.
ARTICLE 2
Miscellaneous Provisions
SECTION 2.01.
General Definitions
.
For all purposes of this Second Supplemental Indenture, capitalized terms used herein without
definition shall have the meanings specified in the Indenture.
SECTION 2.02.
Continued Effect
.
Except as expressly supplemented and amended by this Second Supplemental Indenture, the Indenture
shall continue in full force and effect in accordance with the provisions thereof, and the
Indenture is in all respects hereby ratified and confirmed. This Second Supplemental Indenture and
all of its provisions shall be deemed a part of the Indenture in the manner and to the extent
herein and therein provided.
SECTION 2.03.
Governing Law
.
THIS SECOND SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK.
SECTION 2.04.
Severability
.
In case any provision in this Second Supplemental Indenture shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions shall, to the
fullest extent permitted by applicable law, not in any way be affected or impaired thereby.
SECTION 2.05.
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.
SECTION 2.06.
Successors
.
All agreements of the Company or any Guarantor in this Second Supplemental Indenture shall bind its
successors. All agreements of the Trustee in this Second Supplemental Indenture shall bind its
successors.
-19-
SECTION 2.07.
Table of Contents and Headings
The table of contents and headings of the Articles and Sections of this Second Supplemental
Indenture have been inserted for convenience of reference only, are not to be considered a part
hereof and shall in no way modify or restrict any of the terms or provisions hereof.
SECTION 2.08.
Benefit of Second Supplemental Indenture
.
Nothing in this Second Supplemental Indenture, express or implied, shall give to any Person, other
than the parties hereto, any Security Registrar, any Paying Agent and their successors hereunder,
and the Holders of Securities of any series to which the amendments of the Indenture set forth in
Article 1 hereof have been made applicable, any benefit or any legal or equitable right, remedy or
claim under this Second Supplemental Indenture.
SECTION 2.09.
Acceptance by Trustee
.
The Trustee accepts the amendments to the Indenture effected by this Second Supplemental Indenture
and agrees to execute the trusts created by the Indenture as hereby amended, but only upon the
terms and conditions set forth in this Second Supplemental Indenture and the Indenture. Without
limiting the generality of the foregoing, the Trustee assumes no responsibility for the correctness
of the recitals contained herein, which shall be taken as the statements of the Company and the
Guarantors, and, except as provided in the Indenture, the Trustee shall not be responsible or
accountable in any way whatsoever for or with respect to the validity or execution or sufficiency
of this Second Supplemental Indenture, and the Trustee makes no representation with respect
thereto.
[SIGNATURE PAGE FOLLOWS]
-20-
IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental Indenture to be
duly executed as of the day and year first written above.
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WEATHERFORD INTERNATIONAL, INC.,
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a Delaware corporation
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By:
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/s/ Burt M. Martin
Name: Burt M. Martin
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Title: Senior Vice President
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WEATHERFORD INTERNATIONAL LTD.,
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a Bermuda exempted company
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By:
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/s/ Burt M. Martin
Name: Burt M. Martin
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Title: Senior Vice President
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WEATHERFORD INTERNATIONAL LTD.,
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a Swiss corporation
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By:
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/s/ Burt M. Martin
Name: Burt M. Martin
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Title: Senior Vice President
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DEUTSCHE BANK TRUST COMPANY AMERICAS, as Trustee
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By:
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DEUTSCHE BANK NATIONAL
TRUST COMPANY
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By:
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/s/ Irina Golovashchuk
Name: Irina Golovashchuk
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Title: Assistant Vice President
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By:
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/s/ David Contino
Name: David Contino
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Title: Vice President
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-21-
Exhibit 10.2
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT
(this
Guaranty
), dated as of February 26, 2009, is made by
WEATHERFORD INTERNATIONAL LTD., a Swiss joint stock corporation (
WIL-Switzerland
) and,
after the Share Exchange (as such term is defined in the Amendment (as hereinafter defined)), the
sole shareholder of Weatherford International, Ltd., a Bermuda exempted company (
WIL
), in
favor of (i) the banks and other financial institutions that are parties to the Credit Agreement
(as hereinafter defined) and each assignee thereof becoming a
Lender
as provided therein
(collectively, the
Lenders
), (ii) JPMorgan Chase Bank, N.A., in its capacity as
administrative agent (the
Administrative Agent
) under the terms of the Credit Agreement,
and (iii) JPMorgan Chase Bank, N.A., in its capacity as issuer of letters of credit (the
Issuing Bank
) under the terms of the Credit Agreement;
W
I
T
N
E
S
S
E
T
H
:
WHEREAS,
WIL, Weatherford International, Inc., a Delaware corporation (
WII
), as a
guarantor, Weatherford Capital Management Services Limited Liability Company, a Hungarian limited
liability company (
WCMS
), Weatherford Liquidity Management Hungary Limited Liability
Company, a Hungarian limited liability company (
HOC
, and together with WIL and WCMS,
collectively, the
Borrowers
), WIL-Switzerland, certain Lenders and the Administrative
Agent have entered into that certain Omnibus Consent and Amendment to Second Amended and Restated
Credit Agreement dated as of January 9, 2009 (the
Amendment
) in order to amend that
certain Second Amended and Restated Credit Agreement dated as of May 2, 2006 (as amended, restated,
supplemented or otherwise modified from time to time, the
Credit Agreement
; terms defined
therein and not otherwise defined herein being used herein as therein defined) among the Borrowers,
WII, as a guarantor, the Administrative Agent and the Lenders party thereto; and
WHEREAS,
it is a condition precedent to the effectiveness of the Amendment that
WIL-Switzerland execute and deliver this Guaranty, and WIL-Switzerland desires to execute and
deliver this Guaranty to satisfy such requirement;
NOW, THEREFORE
, in consideration of the premises and in order to satisfy the requirements of
the Credit Agreement and the Amendment, and for other good and valuable consideration,
WIL-Switzerland hereby agrees as follows:
SECTION 1.
Guaranty
.
(a) In consideration of, and in order to induce the Administrative Agent and the Lenders to
enter into the Amendment and to make Loans to, and the Issuing Bank to issue Letters of Credit for
the account of, the Borrowers (including, without limitation, any additional Persons becoming
Borrowers under the Credit Agreement after the date hereof), WIL-Switzerland hereby absolutely,
unconditionally and irrevocably guarantees in favor of all of the Lenders, the Administrative Agent
and the Issuing Bank, the punctual payment and performance when due, whether at stated maturity, by
acceleration or otherwise, of the Obligations and all covenants of the Borrowers and the other
Guarantors, now or hereafter existing under the Credit Agreement and the other Loan Documents to
which any Borrower or any Guarantor is a party,
whether for principal, LC Exposure, interest (including interest accruing or becoming owing
both prior to and subsequent to the commencement of any proceeding against or with respect to any
Borrower or any Guarantor under any applicable bankruptcy or insolvency law (including the
Bankruptcy Code), fees, commissions, expenses (including reasonable attorneys fees and expenses)),
indemnities, or otherwise (all such obligations being, as applicable, the
Guaranteed
Obligations
). WIL-Switzerland agrees to pay any and all expenses incurred by each Lender, the
Administrative Agent and the Issuing Bank in enforcing this Guaranty against WIL-Switzerland.
(b) This Guaranty is an absolute, unconditional, present and continuing guaranty of payment
and not of collection and is in no way conditioned upon any attempt to collect from any Borrower or
any Guarantor or any other action, occurrence or circumstance whatsoever.
(c) The obligations of WIL-Switzerland under this Guaranty shall be limited to an aggregate
amount equal to the largest amount that would not render this Guaranty subject to avoidance under
Section 548 of the Bankruptcy Code or any comparable provisions of applicable law.
SECTION 2.
Continuing Guaranty
.
(a) WIL-Switzerland guarantees that the Guaranteed Obligations shall be paid strictly in
accordance with the terms of the Credit Agreement and the other Loan Documents;
provided
that if
payment in respect of any Guaranteed Obligations shall be due in a currency other than Dollars and
if, by reason of any legal prohibition, disruption of currency or foreign exchange markets, war or
civil disturbance or other event, payment of such Guaranteed Obligations in such currency shall be
impossible or, in the reasonable judgment of the Administrative Agent, the Issuing Bank or any
Lender, not consistent with the protection of its rights or interests, then, at the election of the
Administrative Agent, the Issuing Bank or such Lender, WIL-Switzerland shall make payment of the
Dollar Equivalent of such Guaranteed Obligations and shall indemnify the Administrative Agent, the
Issuing Bank or such Lender against any losses or expenses (including losses or expenses resulting
from fluctuations in exchange rates) that it shall sustain as a result of such alternative payment.
WIL-Switzerland agrees that, to the maximum extent permitted by applicable law, the Guaranteed
Obligations and Loan Documents to which any Borrower is a party may be extended or renewed, and
indebtedness thereunder repaid and reborrowed in whole or in part, without notice to or assent by
WIL-Switzerland, and that WIL-Switzerland shall remain bound upon this Guaranty notwithstanding any
extension, renewal or other alteration of any of the Guaranteed Obligations or such Loan Documents
or any repayment and reborrowing of Loans to the Borrowers. The obligations of WIL-Switzerland
under this Guaranty are absolute and unconditional irrespective of the value, genuineness,
validity, regularity or enforceability of the obligations of the Borrowers under the Credit
Agreement or any other Loan Document or any substitution, release or exchange of any other
guarantee of or security for the Obligations. To the maximum extent permitted by applicable law,
except as otherwise expressly provided in the Credit Agreement or any other Loan Document to which
WIL-Switzerland is a party, the obligations of WIL-Switzerland under this Guaranty shall be
absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the
terms hereof under any circumstances whatsoever, including:
(i) any modification, amendment, supplement, renewal, extension for any period,
increase, decrease, alteration or rearrangement of all or any part of the Guaranteed
Obligations, or of the Credit Agreement or any other Loan Document executed in connection
therewith, or any contract or understanding among the Borrowers, any Guarantor, the
Administrative Agent, the Issuing Bank or the Lenders, or any other Person, pertaining to
the Guaranteed Obligations;
(ii) any adjustment, indulgence, forbearance or compromise that might be granted or
given by the Administrative Agent, the Issuing Bank or the Lenders to WIL-Switzerland, any
other Guarantor, any Borrower or any other Person liable on the Guaranteed Obligations;
(iii) the insolvency, bankruptcy, arrangement, adjustment, composition, liquidation,
disability, dissolution or lack of power of WIL-Switzerland, any other Guarantor, any
Borrower or any other Person at any time liable for the payment of all or part of the
Guaranteed Obligations; or any dissolution or winding up of WIL-Switzerland, any other
Guarantor or any Borrower, or any sale, lease or transfer of any or all of the assets of
WIL-Switzerland, any other Guarantor or any Borrower, or any changes in the shareholders of
WIL-Switzerland, any other Guarantor or any Borrower, or any reorganization of
WIL-Switzerland, any other Guarantor or any Borrower;
(iv) the invalidity, illegality or unenforceability of all or any part of the
Guaranteed Obligations, or any document or agreement executed in connection with the
Guaranteed Obligations, for any reason whatsoever, including the fact that (A) the
Guaranteed Obligations, or any part thereof, exceed the amount permitted by law, (B) the act
of creating the Guaranteed Obligations, or any part thereof is
ultra vires
, (C) the officers
or representatives executing the documents or otherwise creating the Guaranteed Obligations
acted in excess of their authority, (D) the Guaranteed Obligations or any part thereof
violate applicable usury laws, (E) WIL-Switzerland, any other Guarantor or any Borrower has
valid defenses, claims, and offsets (whether at law or in equity, by agreement or by
statute) which render the Guaranteed Obligations wholly or partially uncollectible from
WIL-Switzerland, any other Guarantor or any Borrower, (F) the creation, performance, or
repayment of the Guaranteed Obligations (or execution, delivery and performance of any
document or instrument representing any part of the Guaranteed Obligations or executed in
connection with any of the Guaranteed Obligations, or given to secure the repayment of the
Guaranteed Obligations) is illegal, uncollectible, legally impossible or unenforceable, or
(G) the Credit Agreement, any other Loan Document, or any other document or instrument
pertaining to any of the Guaranteed Obligations has been forged or otherwise is irregular or
not genuine or authentic;
(v) any full or partial release of the liability of WIL-Switzerland, any other
Guarantor or any Borrower on the Guaranteed Obligations or any part thereof, or any other
Person now or hereafter liable, whether directly or indirectly, jointly, severally, or
jointly and severally, to pay, perform, guarantee, or assure the payment of the Guaranteed
Obligations or any part thereof; it being recognized, acknowledged, and agreed by
WIL-Switzerland that WIL-Switzerland may be required to pay the Guaranteed Obligations in
full without assistance or support of any other Person, and that WIL-Switzerland has
not been induced to enter into this Guaranty on the basis of a contemplation, belief,
understanding or agreement that any other Person shall be liable to perform the Guaranteed
Obligations or that the Administrative Agent, the Issuing Bank or any Lender shall look to
any other Person to perform the Guaranteed Obligations;
(vi) the taking or accepting of any other security, collateral or guaranty, or other
assurance of payment, for all or any part of the Guaranteed Obligations;
(vii) any release, surrender, exchange, subordination, deterioration, waste, loss or
impairment of any collateral, property or security, at any time existing in connection with,
or assuring or securing payment of, all or any part of the Guaranteed Obligations;
(viii) the failure of the Administrative Agent, the Lenders, the Issuing Bank or any
other Person to exercise diligence or reasonable care in the preservation, protection,
enforcement, sale or other handling or treatment of all or any part of such collateral,
property or security;
(ix) the fact that any collateral, security or Lien contemplated or intended to be
given, created or granted as security for the repayment of the Guaranteed Obligations shall
not be properly perfected or created, or shall prove to be unenforceable or subordinate to
any other Lien; it being recognized and agreed by WIL-Switzerland that WIL-Switzerland is
not entering into this Guaranty in reliance on, or in contemplation of the benefits of, the
validity, enforceability, collectibility or value of any of the collateral for the
Guaranteed Obligations;
(x) any payment by any Borrower, WIL-Switzerland or any other Guarantor to the
Administrative Agent, the Issuing Bank or any Lender is held to constitute a preference
under bankruptcy or insolvency laws, or for any other reason either the Administrative
Agent, the Issuing Bank or any Lender is required to refund such payment or pay such amount
to any Borrower, WIL-Switzerland, any other Guarantor or any other Person; or
(xi) any other action taken or omitted to be taken with respect to the Credit
Agreement, this Guaranty, any other Loan Document, the Guaranteed Obligations, or the
security and collateral therefor, whether or not such action or omission prejudices
WIL-Switzerland or increases the likelihood that WIL-Switzerland shall be required to pay
the Guaranteed Obligations pursuant to the terms hereof;
it being the unambiguous and unequivocal intention of WIL-Switzerland that WIL-Switzerland shall be
obligated to pay the Guaranteed Obligations when due, notwithstanding any occurrence, circumstance,
event, action, or omission whatsoever, whether contemplated or uncontemplated, and whether or not
otherwise or particularly described herein, except for the full and final payment and satisfaction
of the Guaranteed Obligations after the termination of all of the Commitments.
(b) WIL-Switzerland further agrees that, to the fullest extent permitted by law, as between
WIL-Switzerland, on the one hand, and the Administrative Agent, the Issuing Bank
and the Lenders, on the other hand, (i) the maturity of the Obligations may be accelerated as
provided in Section 9.01 of the Credit Agreement for the purposes of this Guaranty, notwithstanding
any stay, injunction or other prohibition preventing the acceleration of the Obligations as against
any Borrower and (ii) in the event of any purported acceleration (whether by declaration or
automatic) of the Obligations as provided in Section 9.01 of the Credit Agreement, the Obligations
(whether or not due and payable) shall forthwith become due and payable by WIL-Switzerland for the
purpose of this Guaranty.
SECTION 3.
Effect of Debtor Relief Laws
. If after receipt of any payment of, or
proceeds of any security applied (or intended to be applied) to the payment of all or any part of
the Guaranteed Obligations, the Administrative Agent, the Issuing Bank or any Lender is for any
reason compelled to surrender or voluntarily surrenders, such payment or proceeds to any Person (a)
because such payment or application of proceeds is or may be avoided, invalidated, declared
fraudulent, set aside, determined to be void or voidable as a preference, fraudulent conveyance,
fraudulent transfer, impermissible set-off or a diversion of trust funds or (b) for any other
reason, including (i) any judgment, decree or order of any court or administrative body having
jurisdiction over the Administrative Agent, the Issuing Bank, any Lender or any of their respective
properties or (ii) any settlement or compromise of any such claim effected by the Administrative
Agent, the Issuing Bank or any Lender with any such claimant (including any Borrower or any other
Guarantor), then the Guaranteed Obligations or any part thereof intended to be satisfied shall be
reinstated and continue, and this Guaranty shall continue in full force as if such payment or
proceeds had not been received, notwithstanding any revocation thereof or the cancellation of any
instrument evidencing any of the Guaranteed Obligations or otherwise; and WIL-Switzerland shall be
liable to pay the Administrative Agent, the Issuing Bank and the Lenders, and hereby does indemnify
the Administrative Agent, the Issuing Bank and the Lenders and hold them harmless for the amount of
such payment or proceeds so surrendered and all reasonable expenses (including reasonable
attorneys fees, court costs and expenses attributable thereto) incurred by the Administrative
Agent, the Issuing Bank or any such Lender in the defense of any claim made against it that any
payment or proceeds received by the Administrative Agent, the Issuing Bank or any such Lender in
respect of all or part of the Guaranteed Obligations must be surrendered. The provisions of this
paragraph shall survive the termination of this Guaranty and any satisfaction and discharge of the
Borrowers by virtue of any payment, court order, or any law.
SECTION 4.
Waiver
. WIL-Switzerland hereby waives promptness, diligence, notice of
acceptance and any other notice with respect to any of the Guaranteed Obligations and this Guaranty
and waives presentment, demand for payment, notice of intent to accelerate, notice of dishonor or
nonpayment and any requirement that the Administrative Agent, the Issuing Bank or any Lender
institute suit, collection proceedings or take any other action to collect any of the Guaranteed
Obligations, including any requirement that the Administrative Agent, the Issuing Bank or any
Lender protect, secure, perfect or insure any Lien against any property subject thereto or exhaust
any right or take any action against any Borrower, any Guarantor or any other Person or any
collateral (it being the intention of the Administrative Agent, the Issuing Bank, the Lenders, and
WIL-Switzerland that this Guaranty is to be a guaranty of payment and not of collection). It shall
not be necessary for the Administrative Agent, the Issuing Bank or any Lender, in order to enforce
any payment by WIL-Switzerland hereunder, to institute suit or exhaust its rights and remedies
against WIL-Switzerland, any other Guarantor, any Borrower or
any other Person, including others liable to pay the Guaranteed Obligations, or to enforce its
rights against any security ever given to secure payment thereof. WIL-Switzerland hereby expressly
waives to the maximum extent permitted by applicable law each and every right to which it may be
entitled by virtue of the suretyship laws of the State of Texas or any other state in which it may
be located, including any and all rights it may have pursuant to Rule 31, Texas Rules of Civil
Procedure, Section 17.001 of the Texas Civil Practice and Remedies Code and Chapter 34 of the Texas
Business and Commerce Code. WIL-Switzerland hereby waives marshaling of assets and liabilities,
notice by the Administrative Agent, the Issuing Bank or any Lender of any indebtedness or liability
to which such Person applies or may apply any amounts received by it, and of the creation,
advancement, increase, existence, extension, renewal, rearrangement or modification of the
Guaranteed Obligations. WIL-Switzerland expressly waives, to the extent permitted by applicable
law, the benefit of any and all laws providing for exemption of property from execution or for
valuation and appraisal upon foreclosure.
SECTION 5.
Agreement to Defer Exercise of Subrogation
. Notwithstanding any payment or
payments made by WIL-Switzerland hereunder, or any setoff or application by the Administrative
Agent, the Issuing Bank or any Lender of any security or of any credits or claims, WIL-Switzerland
will not assert or exercise any rights of the Administrative Agent, the Issuing Bank or any Lender
or of itself against any other Guarantor or any Borrower to recover the amount of any payment made
hereunder by WIL-Switzerland to the Administrative Agent, the Issuing Bank or any Lender by way of
any claim, remedy or subrogation, reimbursement, exoneration, contribution, indemnity,
participation or otherwise arising by contract, by statute, under common law or otherwise, and
WIL-Switzerland shall not have any right to exercise any right of recourse to or any claim against
assets or property of any Borrower or of any other Guarantor for such amounts, in each case unless
and until the Obligations of such Borrower or obligations of such Guarantor guaranteed hereby have
been fully and finally satisfied. Until such time (but not thereafter), WIL-Switzerland hereby
agrees not to exercise any claim, right or remedy which it may now have or hereafter acquire
against any other Guarantor or any Borrower that arises under the Credit Agreement or any other
Loan Document or from the performance by WIL-Switzerland of the Guaranty hereunder including any
claim, remedy or right of subrogation, reimbursement, exoneration, contribution, indemnification or
participation in any claim, right or remedy of the Administrative Agent, the Issuing Bank or any
Lender against any Borrower or any Guarantor, or any security that the Administrative Agent, the
Issuing Bank or any Lender now has or hereafter acquires pursuant hereto securing the Obligations
of the Borrowers or obligations of any Guarantor under the Credit Agreement or any other Loan
Document, whether or not such claim, right or remedy arises in equity, under contract, by statute,
under common law or otherwise. If any amount shall be paid to WIL-Switzerland by any Borrower or
any Guarantor after payment in full of the Obligations, and the Obligations shall thereafter be
reinstated in whole or in part and the Administrative Agent, the Issuing Bank or any Lender forced
to repay any sums received by any of them in payment of the Obligations, this Guaranty shall be
automatically reinstated and such amount shall be held in trust for the benefit of the
Administrative Agent, the Issuing Bank and the Lenders and shall forthwith be paid to the
Administrative Agent to be credited and applied to the Guaranteed Obligations, whether matured or
unmatured. The provisions of this paragraph shall survive the termination of this Guaranty, and
any satisfaction and discharge of any Borrower or any Guarantor by virtue of any payment, court
order or any federal or state law.
SECTION 6.
Full Force and Effect
. This Guaranty is a continuing guaranty and shall
remain in full force and effect until all of the Guaranteed Obligations under the Credit Agreement
and the other Loan Documents to which any Borrower or any Guarantor is a party and all other
amounts payable under this Guaranty have been paid in full (after the termination of the
Commitments). All rights, remedies and powers provided in this Guaranty may be exercised, and all
waivers contained in this Guaranty may be enforced, only to the extent that the exercise or
enforcement thereof does not violate any provisions of applicable law which may not be waived.
SECTION 7.
Severability
. Any provision of this Guaranty held to be invalid, illegal
or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such invalidity, illegality or unenforceability without affecting the validity, legality and
enforceability of the remaining provisions hereof, and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other jurisdiction.
SECTION 8.
Amendments, Etc
. No amendment or waiver of any provision of this Guaranty
nor consent to any departure by WIL-Switzerland therefrom shall in any event be effective unless
the same shall be in writing executed by the Administrative Agent.
SECTION 9.
Notices
. All notices and other communications provided for hereunder shall
be given in the manner specified in the Credit Agreement (i) in the case of the Administrative
Agent, at the address specified for the Administrative Agent in the Credit Agreement, and (ii) in
the case of WIL-Switzerland, at the address specified therefor in this Guaranty.
SECTION 10.
No Waiver; Remedies
. No failure or delay by the Administrative Agent, the
Issuing Bank or any Lender in exercising any right or power hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or further exercise
thereof or the exercise of any other right or power. The rights and remedies of the Administrative
Agent, the Issuing Bank and the Lenders hereunder are cumulative and are not exclusive of any
rights or remedies that they would otherwise have. No waiver of any provision of this Guaranty or
consent to any departure by WIL-Switzerland therefrom shall in any event be effective unless the
same shall be permitted by
Section 8
hereof, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given.
SECTION 11.
Right of Set Off
. Upon the occurrence and during the continuance of any
Event of Default, the Administrative Agent, the Issuing Bank and each Lender is hereby authorized
at any time and from time to time, without notice to WIL-Switzerland (any such notice being
expressly waived by WIL-Switzerland), to set off and apply any and all deposits (general or
special, time or demand, provisional or final but excluding the funds held in accounts clearly
designated as escrow or trust accounts held by WIL-Switzerland for the benefit of Persons which are
not Affiliates of WIL-Switzerland), whether or not such setoff results in any loss of interest or
other penalty, and including all certificates of deposit, at any time held and other obligations at
any time owing by the Administrative Agent, the Issuing Bank or such Lender to or for the credit or
the account of WIL-Switzerland against any and all of the
Guaranteed Obligations irrespective of whether or not the Administrative Agent, the Issuing
Bank or such Lender shall have made any demand under the Credit Agreement, this Guaranty, the Notes
or any other Loan Document. The rights of the Administrative Agent, the Issuing Bank and the
Lenders under this Section are in addition to other rights and remedies (including other rights of
setoff) which the Administrative Agent, the Issuing Bank or the Lenders may have. This Section is
subject to the terms and provisions of Section 4.01(a) of the Credit Agreement.
SECTION 12.
Transfer Of Obligations
. This Guaranty shall (i) be binding upon
WIL-Switzerland, its successors and assigns and (ii) inure to the benefit of and be enforceable by
the Administrative Agent, for the benefit of itself, the Lenders and the Issuing Bank.
SECTION 13.
Governing Law
. This Guaranty and the rights and obligations of the
parties hereto shall be construed in accordance with and governed by the law of the State of New
York.
SECTION 14.
Submission to Jurisdiction; Consent To Service Of Process; Waiver of Jury
Trial
.
(a) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS GUARANTY OR OTHERWISE RELATED HERETO
MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK SITTING IN THE BOROUGH OF MANHATTAN OR THE
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, AND, BY EXECUTION AND DELIVERY
OF THIS GUARANTY, WIL-SWITZERLAND HEREBY CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO
THE JURISDICTION OF THE AFORESAID COURTS SOLELY FOR THE PURPOSE OF ADJUDICATING ITS RIGHTS OR THE
RIGHTS OF THE ADMINISTRATIVE AGENT, THE LENDERS AND THE ISSUING BANK WITH RESPECT TO THIS GUARANTY
OR ANY DOCUMENT RELATED HERETO. WIL-SWITZERLAND HEREBY IRREVOCABLY DESIGNATES CT CORPORATION
SYSTEM, 111 8TH AVENUE, NEW YORK, NEW YORK 10011, AS THE DESIGNEE, APPOINTEE AND AGENT OF
WIL-SWITZERLAND TO RECEIVE, FOR AND ON BEHALF OF WIL-SWITZERLAND, SERVICE OF PROCESS IN SUCH
JURISDICTION IN ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS GUARANTY OR ANY DOCUMENT
RELATED HERETO AND SUCH SERVICE SHALL BE DEEMED COMPLETED THIRTY DAYS AFTER MAILING THEREOF TO SAID
AGENT. IT IS UNDERSTOOD THAT A COPY OF SUCH PROCESS SERVED ON SUCH AGENT WILL BE PROMPTLY
FORWARDED BY MAIL TO WIL-SWITZERLAND AT ITS ADDRESS SET FORTH HEREIN, BUT THE FAILURE OF
WIL-SWITZERLAND TO RECEIVE SUCH COPY SHALL NOT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, AFFECT
IN ANY WAY THE SERVICE OF SUCH PROCESS. IF FOR ANY REASON SERVICE OF PROCESS CANNOT PROMPTLY BE
MADE ON EITHER SUCH LOCAL AGENT, WIL-SWITZERLAND FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF
PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF
COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO WIL-SWITZERLAND AT ITS SAID
ADDRESS, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH
MAILING. WIL-SWITZERLAND HEREBY IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING, WITHOUT
LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF
FORUM
NON
CONVENIENS
, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR
PROCEEDING IN SUCH RESPECTIVE JURISDICTIONS IN RESPECT OF THIS GUARANTY OR ANY DOCUMENT RELATED
HERETO. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE ADMINISTRATIVE AGENT TO SERVE PROCESS IN ANY
OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST
WIL-SWITZERLAND IN ANY OTHER JURISDICTION.
(b) TO THE EXTENT PERMITTED BY APPLICABLE LAW, WIL-SWITZERLAND HEREBY IRREVOCABLY WAIVES ALL
RIGHT OF TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR IN CONNECTION
WITH THIS GUARANTY OR ANY OTHER LOAN DOCUMENT OR ANY MATTER ARISING IN CONNECTION HEREWITH OR
THEREWITH.
SECTION 15.
Payments by Guarantor
.
(a) Any and all payments by or on account of any obligation of WIL-Switzerland hereunder shall
be understood to be minimum payment obligations. When entering into this Agreement, WIL-Switzerland
has assumed that any and all payments by or on account of any obligation of WIL-Switzerland
hereunder will not be subject to any deduction for Indemnified Taxes or Other Taxes (collectively,
the
Covered Taxes
). WIL-Switzerland agrees that if it shall be required to deduct any
Covered Taxes from such payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to additional sums payable
under this Section) the Administrative Agent, the Issuing Bank or the Lender (as the case may be)
receives an amount equal to the sum it would have received had no such deductions been made, (ii)
WIL-Switzerland shall make such deductions and (iii) WIL-Switzerland shall pay the full amount
deducted to the relevant Governmental Authority in accordance with applicable law. If requested by
the Administrative Agent, WIL-Switzerland shall provide to the Administrative Agent those documents
which are required by law and applicable double taxation treaties to be provided by the payer of
such tax, for each relevant Lender to prepare a claim for refund of Swiss withholding tax.
WIL-Switzerland shall indemnify the Administrative Agent, the Issuing Bank and each Lender, within
20 days after written demand therefor, for the full amount of any Covered Taxes directly assessed
against and paid by the Administrative Agent, the Issuing Bank or such Lender, as the case may be,
on or with respect to any payment by or on account of the Guaranteed Obligations (including Covered
Taxes imposed or asserted on or attributable to amounts payable under this Section) and any
penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or
not such Covered Taxes were correctly or legally imposed or asserted by the relevant Governmental
Authority. A certificate as to the amount of such payment or liability delivered to
WIL-Switzerland by a Lender or the Issuing Bank, or by the Administrative Agent on its own behalf
or on behalf of a Lender or the Issuing Bank, shall be presumed correct absent manifest error.
(b) WIL-Switzerland will remit to the appropriate Governmental Authority, prior to delinquency
(assuming WIL-Switzerland has received notification of a claim for
Covered Taxes within 10 Business Days prior to the date the delinquency commences), all
Covered Taxes payable in respect of any payment by or on account of any obligations of
WIL-Switzerland hereunder. Within 30 days after the date of any payment of Covered Taxes,
WIL-Switzerland will furnish to the Administrative Agent the original or a certified copy of a
receipt evidencing payment of such Covered Taxes or such other evidence thereof as may be
reasonably satisfactory to the Administrative Agent. At the reasonable request of WIL-Switzerland,
the Administrative Agent will request the Lenders to provide any reasonable tax forms,
certifications or other documents that would result in a reduction in the amount of Covered Taxes
hereunder; provided, however, the obligation of WIL-Switzerland to make payments for Covered Taxes
hereunder shall not be conditioned upon any Lender providing any such tax forms, certifications or
other documents.
SECTION 16.
Judgment Currency
. The obligation of WIL-Switzerland to make payments on
any Guaranteed Obligation to the Lenders, to the Issuing Bank or to the Administrative Agent
hereunder in any currency (the
first currency
) shall not be discharged or satisfied by
any tender or recovery pursuant to any judgment expressed in or converted into any other currency
(the
second currency
) except to the extent to which such tender or recovery shall result
in the effective receipt by the applicable Lender, Issuing Bank or the Administrative Agent of the
full amount of the first currency payable, and accordingly the primary obligation of
WIL-Switzerland shall be enforceable as an alternative or additional cause of action for the
purpose of recovery in the second currency of the amount (if any) by which such effective receipt
shall fall short of the full amount of the full currency payable and shall not be affected by a
judgment being obtained for any other sum due hereunder.
SECTION 17.
Automatic Acceleration in Certain Events
. Upon the occurrence of an Event
of Default specified in Section 9.01(f) or (g) of the Credit Agreement, all Guaranteed Obligations
shall automatically become immediately due and payable by WIL-Switzerland, without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by WIL-Switzerland, and
regardless of whether payment of the Guaranteed Obligations by the Borrowers has then been
accelerated.
SECTION 18.
Information
. WIL-Switzerland assumes all responsibility for being and
keeping itself informed of the Borrowers financial condition and assets, and of all other
circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations and the nature,
scope and extent of the risks that WIL-Switzerland assumes and incurs hereunder, and agrees that
the Administrative Agent, the Issuing Bank and the Lenders will not have any duty to advise
WIL-Switzerland of information known to any of them regarding such circumstances or risks.
SECTION 19.
Survival of Agreement
. All covenants, agreements, representations and
warranties made by WIL-Switzerland herein shall be considered to have been relied upon by the
Administrative Agent, the Issuing Bank and the Lenders and shall survive the execution and delivery
of this Guaranty and the other Loan Documents and the making of any Loans and issuance of any
Letters of Credit, regardless of any investigation made by any party or on its behalf and
notwithstanding that the Administrative Agent, the Issuing Bank or any Lender may have had notice
or knowledge of any Default or incorrect representation or warranty at the time any credit is
extended under the Credit Agreement, and shall continue in full force and effect as long as any amount payable under this Guaranty is
outstanding and unpaid.
SECTION 20.
Counterparts
. This Guaranty may be executed in counterparts (and by
different parties hereto on different counterparts), each of which shall constitute an original,
but all of which when taken together shall constitute a single contract.
(
Remainder of this page intentionally left blank.)
IN WITNESS WHEREOF
, WIL-Switzerland and the Administrative Agent have caused this Guaranty to
be duly executed and delivered by their respective duly authorized officers as of the date first
above written.
Address for Notices:
Weatherford International Ltd.
c/o Weatherford International, Inc.
515 Post Oak Blvd.
Houston, Texas 77027
Attention: General Counsel
|
|
|
|
|
WEATHERFORD INTERNATIONAL LTD.
,
a Swiss joint stock corporation
|
By:
|
/s/
Andrew P. Becnel
|
|
Name:
|
Andrew P. Becnel
|
|
Title:
|
Senior Vice President
and Chief Financial Officer
|
|
JPMORGAN CHASE BANK, N.A.
,
as Administrative Agent
|
By:
|
/s/
Helen A. Carr
|
|
Name:
|
Helen A. Carr
|
|
Title:
|
Managing Director
|
|
Signature Page to Guaranty Agreement
Exhibit 10.3
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT
(this
Guaranty
), dated as of February 26, 2009, is made by
WEATHERFORD INTERNATIONAL LTD., a Swiss joint stock corporation (
WIL-Switzerland
) and,
after the Share Exchange (as such term is defined in the Amendment (as hereinafter defined)), the
sole shareholder of Weatherford International, Ltd., a Bermuda exempted company (
WIL
or
the
Borrower
), in favor of (i) the banks and other financial institutions that are
parties to the Credit Agreement (as hereinafter defined) and each assignee thereof becoming a
Lender
as provided therein (collectively, the
Lenders
), (ii) Deutsche Bank AG
Cayman Islands Branch, in its capacity as administrative agent (the
Administrative Agent
)
under the terms of the Credit Agreement, and (iii) Deutsche Bank AG Cayman Islands Branch, in its
capacity as issuer of letters of credit (the
Issuing Bank
) under the terms of the Credit
Agreement;
W
I
T
N
E
S
S
E
T
H
:
WHEREAS,
WIL, Weatherford International, Inc., a Delaware corporation (
WII
), as a
guarantor, WIL-Switzerland, certain Lenders and the Administrative Agent have entered into that
certain Omnibus Consent and Amendment to Credit Agreement dated as of January 9, 2009 (the
Amendment
) in order to amend that certain Credit Agreement dated as of March 19, 2008 (as
amended, restated, supplemented or otherwise modified from time to time, the
Credit
Agreement
; terms defined therein and not otherwise defined herein being used herein as therein
defined) among the Borrower, WII, as a guarantor, the Administrative Agent and the Lenders party
thereto; and
WHEREAS,
it is a condition precedent to the effectiveness of the Amendment that
WIL-Switzerland execute and deliver this Guaranty, and WIL-Switzerland desires to execute and
deliver this Guaranty to satisfy such requirement;
NOW, THEREFORE
, in consideration of the premises and in order to satisfy the requirements of
the Credit Agreement and the Amendment, and for other good and valuable consideration,
WIL-Switzerland hereby agrees as follows:
SECTION 1.
Guaranty
.
(a) In consideration of, and in order to induce the Administrative Agent and the Lenders to
enter into the Amendment and to make Loans to, and the Issuing Bank to issue Letters of Credit for
the account of, the Borrower (including, without limitation, any additional Persons becoming
Borrowers under the Credit Agreement after the date hereof), WIL-Switzerland hereby absolutely,
unconditionally and irrevocably guarantees in favor of all of the Lenders, the Administrative Agent
and the Issuing Bank, the punctual payment and performance when due, whether at stated maturity, by
acceleration or otherwise, of the Obligations and all covenants of the Borrower and the other
Guarantors, now or hereafter existing under the Credit Agreement and the other Loan Documents to
which the Borrower or any Guarantor is a party, whether for principal, LC Exposure, interest
(including interest accruing or becoming owing both prior to and subsequent to the commencement of
any proceeding against or with respect to the Borrower or any Guarantor under any applicable
bankruptcy or insolvency law (including the
Bankruptcy Code), fees, commissions, expenses (including reasonable attorneys fees and
expenses)), indemnities, or otherwise (all such obligations being, as applicable, the
Guaranteed Obligations
). WIL-Switzerland agrees to pay any and all expenses incurred by
each Lender, the Administrative Agent and the Issuing Bank in enforcing this Guaranty against
WIL-Switzerland.
(b) This Guaranty is an absolute, unconditional, present and continuing guaranty of payment
and not of collection and is in no way conditioned upon any attempt to collect from the Borrower or
any Guarantor or any other action, occurrence or circumstance whatsoever.
(c) The obligations of WIL-Switzerland under this Guaranty shall be limited to an aggregate
amount equal to the largest amount that would not render this Guaranty subject to avoidance under
Section 548 of the Bankruptcy Code or any comparable provisions of applicable law.
SECTION 2.
Continuing Guaranty
.
(a) WIL-Switzerland guarantees that the Guaranteed Obligations shall be paid strictly in
accordance with the terms of the Credit Agreement and the other Loan Documents;
provided
that if
payment in respect of any Guaranteed Obligations shall be due in a currency other than Dollars and
if, by reason of any legal prohibition, disruption of currency or foreign exchange markets, war or
civil disturbance or other event, payment of such Guaranteed Obligations in such currency shall be
impossible or, in the reasonable judgment of the Administrative Agent, the Issuing Bank or any
Lender, not consistent with the protection of its rights or interests, then, at the election of the
Administrative Agent, the Issuing Bank or such Lender, WIL-Switzerland shall make payment of the
Dollar Equivalent of such Guaranteed Obligations and shall indemnify the Administrative Agent, the
Issuing Bank or such Lender against any losses or expenses (including losses or expenses resulting
from fluctuations in exchange rates) that it shall sustain as a result of such alternative payment.
WIL-Switzerland agrees that, to the maximum extent permitted by applicable law, the Guaranteed
Obligations and Loan Documents to which the Borrower is a party may be extended or renewed, and
indebtedness thereunder repaid and reborrowed in whole or in part, without notice to or assent by
WIL-Switzerland, and that WIL-Switzerland shall remain bound upon this Guaranty notwithstanding any
extension, renewal or other alteration of any of the Guaranteed Obligations or such Loan Documents
or any repayment and reborrowing of Loans to the Borrower. The obligations of WIL-Switzerland
under this Guaranty are absolute and unconditional irrespective of the value, genuineness,
validity, regularity or enforceability of the obligations of the Borrower under the Credit
Agreement or any other Loan Document or any substitution, release or exchange of any other
guarantee of or security for the Obligations. To the maximum extent permitted by applicable law,
except as otherwise expressly provided in the Credit Agreement or any other Loan Document to which
WIL-Switzerland is a party, the obligations of WIL-Switzerland under this Guaranty shall be
absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the
terms hereof under any circumstances whatsoever, including:
(i) any modification, amendment, supplement, renewal, extension for any period,
increase, decrease, alteration or rearrangement of all or any part of the Guaranteed
2
Obligations, or of the Credit Agreement or any other Loan Document executed in
connection therewith, or any contract or understanding among the Borrower, any Guarantor,
the Administrative Agent, the Issuing Bank or the Lenders, or any other Person, pertaining
to the Guaranteed Obligations;
(ii) any adjustment, indulgence, forbearance or compromise that might be granted or
given by the Administrative Agent, the Issuing Bank or the Lenders to WIL-Switzerland, any
other Guarantor, the Borrower or any other Person liable on the Guaranteed Obligations;
(iii) the insolvency, bankruptcy, arrangement, adjustment, composition, liquidation,
disability, dissolution or lack of power of WIL-Switzerland, any other Guarantor, the
Borrower or any other Person at any time liable for the payment of all or part of the
Guaranteed Obligations; or any dissolution or winding up of WIL-Switzerland, any other
Guarantor or the Borrower, or any sale, lease or transfer of any or all of the assets of
WIL-Switzerland, any other Guarantor or the Borrower, or any changes in the shareholders of
WIL-Switzerland, any other Guarantor or the Borrower, or any reorganization of
WIL-Switzerland, any other Guarantor or the Borrower;
(iv) the invalidity, illegality or unenforceability of all or any part of the
Guaranteed Obligations, or any document or agreement executed in connection with the
Guaranteed Obligations, for any reason whatsoever, including the fact that (A) the
Guaranteed Obligations, or any part thereof, exceed the amount permitted by law, (B) the act
of creating the Guaranteed Obligations, or any part thereof is
ultra vires
, (C) the officers
or representatives executing the documents or otherwise creating the Guaranteed Obligations
acted in excess of their authority, (D) the Guaranteed Obligations or any part thereof
violate applicable usury laws, (E) WIL-Switzerland, any other Guarantor or the Borrower has
valid defenses, claims, and offsets (whether at law or in equity, by agreement or by
statute) which render the Guaranteed Obligations wholly or partially uncollectible from
WIL-Switzerland, any other Guarantor or the Borrower, (F) the creation, performance, or
repayment of the Guaranteed Obligations (or execution, delivery and performance of any
document or instrument representing any part of the Guaranteed Obligations or executed in
connection with any of the Guaranteed Obligations, or given to secure the repayment of the
Guaranteed Obligations) is illegal, uncollectible, legally impossible or unenforceable, or
(G) the Credit Agreement, any other Loan Document, or any other document or instrument
pertaining to any of the Guaranteed Obligations has been forged or otherwise is irregular or
not genuine or authentic;
(v) any full or partial release of the liability of WIL-Switzerland, any other
Guarantor or the Borrower on the Guaranteed Obligations or any part thereof, or any other
Person now or hereafter liable, whether directly or indirectly, jointly, severally, or
jointly and severally, to pay, perform, guarantee, or assure the payment of the Guaranteed
Obligations or any part thereof; it being recognized, acknowledged, and agreed by
WIL-Switzerland that WIL-Switzerland may be required to pay the Guaranteed Obligations in
full without assistance or support of any other Person, and that WIL-Switzerland has not
been induced to enter into this Guaranty on the basis of a contemplation, belief,
3
understanding or agreement that any other Person shall be liable to perform the
Guaranteed Obligations or that the Administrative Agent, the Issuing Bank or any Lender
shall look to any other Person to perform the Guaranteed Obligations;
(vi) the taking or accepting of any other security, collateral or guaranty, or other
assurance of payment, for all or any part of the Guaranteed Obligations;
(vii) any release, surrender, exchange, subordination, deterioration, waste, loss or
impairment of any collateral, property or security, at any time existing in connection with,
or assuring or securing payment of, all or any part of the Guaranteed Obligations;
(viii) the failure of the Administrative Agent, the Lenders, the Issuing Bank or any
other Person to exercise diligence or reasonable care in the preservation, protection,
enforcement, sale or other handling or treatment of all or any part of such collateral,
property or security;
(ix) the fact that any collateral, security or Lien contemplated or intended to be
given, created or granted as security for the repayment of the Guaranteed Obligations shall
not be properly perfected or created, or shall prove to be unenforceable or subordinate to
any other Lien; it being recognized and agreed by WIL-Switzerland that WIL-Switzerland is
not entering into this Guaranty in reliance on, or in contemplation of the benefits of, the
validity, enforceability, collectibility or value of any of the collateral for the
Guaranteed Obligations;
(x) any payment by the Borrower, WIL-Switzerland or any other Guarantor to the
Administrative Agent, the Issuing Bank or any Lender is held to constitute a preference
under bankruptcy or insolvency laws, or for any other reason either the Administrative
Agent, the Issuing Bank or any Lender is required to refund such payment or pay such amount
to the Borrower, WIL-Switzerland, any other Guarantor or any other Person; or
(xi) any other action taken or omitted to be taken with respect to the Credit
Agreement, this Guaranty, any other Loan Document, the Guaranteed Obligations, or the
security and collateral therefor, whether or not such action or omission prejudices
WIL-Switzerland or increases the likelihood that WIL-Switzerland shall be required to pay
the Guaranteed Obligations pursuant to the terms hereof;
it being the unambiguous and unequivocal intention of WIL-Switzerland that WIL-Switzerland shall be
obligated to pay the Guaranteed Obligations when due, notwithstanding any occurrence, circumstance,
event, action, or omission whatsoever, whether contemplated or uncontemplated, and whether or not
otherwise or particularly described herein, except for the full and final payment and satisfaction
of the Guaranteed Obligations after the termination of all of the Commitments.
(b) WIL-Switzerland further agrees that, to the fullest extent permitted by law, as between
WIL-Switzerland, on the one hand, and the Administrative Agent, the Issuing Bank and the Lenders,
on the other hand, (i) the maturity of the Obligations may be accelerated as provided in Section
9.01 of the Credit Agreement for the purposes of this Guaranty,
4
notwithstanding any stay, injunction or other prohibition preventing the acceleration of the
Obligations as against the Borrower and (ii) in the event of any purported acceleration (whether by
declaration or automatic) of the Obligations as provided in Section 9.01 of the Credit Agreement,
the Obligations (whether or not due and payable) shall forthwith become due and payable by
WIL-Switzerland for the purpose of this Guaranty.
SECTION 3.
Effect of Debtor Relief Laws
. If after receipt of any payment of, or
proceeds of any security applied (or intended to be applied) to the payment of all or any part of
the Guaranteed Obligations, the Administrative Agent, the Issuing Bank or any Lender is for any
reason compelled to surrender or voluntarily surrenders, such payment or proceeds to any Person (a)
because such payment or application of proceeds is or may be avoided, invalidated, declared
fraudulent, set aside, determined to be void or voidable as a preference, fraudulent conveyance,
fraudulent transfer, impermissible set-off or a diversion of trust funds or (b) for any other
reason, including (i) any judgment, decree or order of any court or administrative body having
jurisdiction over the Administrative Agent, the Issuing Bank, any Lender or any of their respective
properties or (ii) any settlement or compromise of any such claim effected by the Administrative
Agent, the Issuing Bank or any Lender with any such claimant (including the Borrower or any other
Guarantor), then the Guaranteed Obligations or any part thereof intended to be satisfied shall be
reinstated and continue, and this Guaranty shall continue in full force as if such payment or
proceeds had not been received, notwithstanding any revocation thereof or the cancellation of any
instrument evidencing any of the Guaranteed Obligations or otherwise; and WIL-Switzerland shall be
liable to pay the Administrative Agent, the Issuing Bank and the Lenders, and hereby does indemnify
the Administrative Agent, the Issuing Bank and the Lenders and hold them harmless for the amount of
such payment or proceeds so surrendered and all reasonable expenses (including reasonable
attorneys fees, court costs and expenses attributable thereto) incurred by the Administrative
Agent, the Issuing Bank or any such Lender in the defense of any claim made against it that any
payment or proceeds received by the Administrative Agent, the Issuing Bank or any such Lender in
respect of all or part of the Guaranteed Obligations must be surrendered. The provisions of this
paragraph shall survive the termination of this Guaranty and any satisfaction and discharge of the
Borrower by virtue of any payment, court order, or any law.
SECTION 4.
Waiver
. WIL-Switzerland hereby waives promptness, diligence, notice of
acceptance and any other notice with respect to any of the Guaranteed Obligations and this Guaranty
and waives presentment, demand for payment, notice of intent to accelerate, notice of dishonor or
nonpayment and any requirement that the Administrative Agent, the Issuing Bank or any Lender
institute suit, collection proceedings or take any other action to collect any of the Guaranteed
Obligations, including any requirement that the Administrative Agent, the Issuing Bank or any
Lender protect, secure, perfect or insure any Lien against any property subject thereto or exhaust
any right or take any action against the Borrower, any Guarantor or any other Person or any
collateral (it being the intention of the Administrative Agent, the Issuing Bank, the Lenders, and
WIL-Switzerland that this Guaranty is to be a guaranty of payment and not of collection). It shall
not be necessary for the Administrative Agent, the Issuing Bank or any Lender, in order to enforce
any payment by WIL-Switzerland hereunder, to institute suit or exhaust its rights and remedies
against WIL-Switzerland, any other Guarantor, the Borrower or any other Person, including others
liable to pay the Guaranteed Obligations, or to enforce its rights against any security ever given
to secure payment thereof. WIL-Switzerland hereby
5
expressly waives to the maximum extent permitted by applicable law each and every right to
which it may be entitled by virtue of the suretyship laws of the State of Texas or any other state
in which it may be located, including any and all rights it may have pursuant to Rule 31, Texas
Rules of Civil Procedure, Section 17.001 of the Texas Civil Practice and Remedies Code and Chapter
34 of the Texas Business and Commerce Code. WIL-Switzerland hereby waives marshaling of assets and
liabilities, notice by the Administrative Agent, the Issuing Bank or any Lender of any indebtedness
or liability to which such Person applies or may apply any amounts received by it, and of the
creation, advancement, increase, existence, extension, renewal, rearrangement or modification of
the Guaranteed Obligations. WIL-Switzerland expressly waives, to the extent permitted by
applicable law, the benefit of any and all laws providing for exemption of property from execution
or for valuation and appraisal upon foreclosure.
SECTION 5.
Agreement to Defer Exercise of Subrogation
. Notwithstanding any payment or
payments made by WIL-Switzerland hereunder, or any setoff or application by the Administrative
Agent, the Issuing Bank or any Lender of any security or of any credits or claims, WIL-Switzerland
will not assert or exercise any rights of the Administrative Agent, the Issuing Bank or any Lender
or of itself against any other Guarantor or the Borrower to recover the amount of any payment made
hereunder by WIL-Switzerland to the Administrative Agent, the Issuing Bank or any Lender by way of
any claim, remedy or subrogation, reimbursement, exoneration, contribution, indemnity,
participation or otherwise arising by contract, by statute, under common law or otherwise, and
WIL-Switzerland shall not have any right to exercise any right of recourse to or any claim against
assets or property of the Borrower or of any other Guarantor for such amounts, in each case unless
and until the Obligations of such Borrower or obligations of such Guarantor guaranteed hereby have
been fully and finally satisfied. Until such time (but not thereafter), WIL-Switzerland hereby
agrees not to exercise any claim, right or remedy which it may now have or hereafter acquire
against any other Guarantor or the Borrower that arises under the Credit Agreement or any other
Loan Document or from the performance by WIL-Switzerland of the Guaranty hereunder including any
claim, remedy or right of subrogation, reimbursement, exoneration, contribution, indemnification or
participation in any claim, right or remedy of the Administrative Agent, the Issuing Bank or any
Lender against the Borrower or any Guarantor, or any security that the Administrative Agent, the
Issuing Bank or any Lender now has or hereafter acquires pursuant hereto securing the Obligations
of the Borrower or obligations of any Guarantor under the Credit Agreement or any other Loan
Document, whether or not such claim, right or remedy arises in equity, under contract, by statute,
under common law or otherwise. If any amount shall be paid to WIL-Switzerland by the Borrower or
any Guarantor after payment in full of the Obligations, and the Obligations shall thereafter be
reinstated in whole or in part and the Administrative Agent, the Issuing Bank or any Lender forced
to repay any sums received by any of them in payment of the Obligations, this Guaranty shall be
automatically reinstated and such amount shall be held in trust for the benefit of the
Administrative Agent, the Issuing Bank and the Lenders and shall forthwith be paid to the
Administrative Agent to be credited and applied to the Guaranteed Obligations, whether matured or
unmatured. The provisions of this paragraph shall survive the termination of this Guaranty, and
any satisfaction and discharge of the Borrower or any Guarantor by virtue of any payment, court
order or any federal or state law.
SECTION 6.
Full Force and Effect
. This Guaranty is a continuing guaranty and shall
remain in full force and effect until all of the Guaranteed Obligations under the Credit
6
Agreement and the other Loan Documents to which the Borrower or any Guarantor is a party and
all other amounts payable under this Guaranty have been paid in full (after the termination of the
Commitments). All rights, remedies and powers provided in this Guaranty may be exercised, and all
waivers contained in this Guaranty may be enforced, only to the extent that the exercise or
enforcement thereof does not violate any provisions of applicable law which may not be waived.
SECTION 7.
Severability
. Any provision of this Guaranty held to be invalid, illegal
or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such invalidity, illegality or unenforceability without affecting the validity, legality and
enforceability of the remaining provisions hereof, and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other jurisdiction.
SECTION 8.
Amendments, Etc
. No amendment or waiver of any provision of this Guaranty
nor consent to any departure by WIL-Switzerland therefrom shall in any event be effective unless
the same shall be in writing executed by the Administrative Agent.
SECTION 9.
Notices
. All notices and other communications provided for hereunder shall
be given in the manner specified in the Credit Agreement (i) in the case of the Administrative
Agent, at the address specified for the Administrative Agent in the Credit Agreement, and (ii) in
the case of WIL-Switzerland, at the address specified therefor in this Guaranty.
SECTION 10.
No Waiver; Remedies
. No failure or delay by the Administrative Agent, the
Issuing Bank or any Lender in exercising any right or power hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or further exercise
thereof or the exercise of any other right or power. The rights and remedies of the Administrative
Agent, the Issuing Bank and the Lenders hereunder are cumulative and are not exclusive of any
rights or remedies that they would otherwise have. No waiver of any provision of this Guaranty or
consent to any departure by WIL-Switzerland therefrom shall in any event be effective unless the
same shall be permitted by
Section 8
hereof, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given.
SECTION 11.
Right of Set Off
. Upon the occurrence and during the continuance of any
Event of Default, the Administrative Agent, the Issuing Bank and each Lender is hereby authorized
at any time and from time to time, without notice to WIL-Switzerland (any such notice being
expressly waived by WIL-Switzerland), to set off and apply any and all deposits (general or
special, time or demand, provisional or final but excluding the funds held in accounts clearly
designated as escrow or trust accounts held by WIL-Switzerland for the benefit of Persons which are
not Affiliates of WIL-Switzerland), whether or not such setoff results in any loss of interest or
other penalty, and including all certificates of deposit, at any time held and other obligations at
any time owing by the Administrative Agent, the Issuing Bank or such Lender to or for the credit or
the account of WIL-Switzerland against any and all of the Guaranteed Obligations irrespective of
whether or not the Administrative Agent, the Issuing Bank or such Lender shall have made any demand
under the Credit Agreement, this Guaranty,
7
the Notes or any other Loan Document. The rights of the Administrative Agent, the Issuing
Bank and the Lenders under this Section are in addition to other rights and remedies (including
other rights of setoff) which the Administrative Agent, the Issuing Bank or the Lenders may have.
This Section is subject to the terms and provisions of Section 4.01(a) of the Credit Agreement.
SECTION 12.
Transfer Of Obligations
. This Guaranty shall (i) be binding upon
WIL-Switzerland, its successors and assigns and (ii) inure to the benefit of and be enforceable by
the Administrative Agent, for the benefit of itself, the Lenders and the Issuing Bank.
SECTION 13.
Governing Law
. This Guaranty and the rights and obligations of the
parties hereto shall be construed in accordance with and governed by the law of the State of New
York.
SECTION 14.
Submission to Jurisdiction; Consent To Service Of Process; Waiver of Jury
Trial
.
(a) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS GUARANTY OR OTHERWISE RELATED HERETO
MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK SITTING IN THE BOROUGH OF MANHATTAN OR THE
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, AND, BY EXECUTION AND DELIVERY
OF THIS GUARANTY, WIL-SWITZERLAND HEREBY CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO
THE JURISDICTION OF THE AFORESAID COURTS SOLELY FOR THE PURPOSE OF ADJUDICATING ITS RIGHTS OR THE
RIGHTS OF THE ADMINISTRATIVE AGENT, THE LENDERS AND THE ISSUING BANK WITH RESPECT TO THIS GUARANTY
OR ANY DOCUMENT RELATED HERETO. WIL-SWITZERLAND HEREBY IRREVOCABLY DESIGNATES CT CORPORATION
SYSTEM, 111 8TH AVENUE, NEW YORK, NEW YORK 10011, AS THE DESIGNEE, APPOINTEE AND AGENT OF
WIL-SWITZERLAND TO RECEIVE, FOR AND ON BEHALF OF WIL-SWITZERLAND, SERVICE OF PROCESS IN SUCH
JURISDICTION IN ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS GUARANTY OR ANY DOCUMENT
RELATED HERETO AND SUCH SERVICE SHALL BE DEEMED COMPLETED THIRTY DAYS AFTER MAILING THEREOF TO SAID
AGENT. IT IS UNDERSTOOD THAT A COPY OF SUCH PROCESS SERVED ON SUCH AGENT WILL BE PROMPTLY
FORWARDED BY MAIL TO WIL-SWITZERLAND AT ITS ADDRESS SET FORTH HEREIN, BUT THE FAILURE OF
WIL-SWITZERLAND TO RECEIVE SUCH COPY SHALL NOT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, AFFECT
IN ANY WAY THE SERVICE OF SUCH PROCESS. IF FOR ANY REASON SERVICE OF PROCESS CANNOT PROMPTLY BE
MADE ON EITHER SUCH LOCAL AGENT, WIL-SWITZERLAND FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF
PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF
COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO WIL-SWITZERLAND AT ITS SAID
ADDRESS, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING. WIL-SWITZERLAND HEREBY
IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO THE LAYING OF
VENUE
8
OR BASED ON THE GROUNDS OF
FORUM
NON
CONVENIENS
, WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH RESPECTIVE JURISDICTIONS IN
RESPECT OF THIS GUARANTY OR ANY DOCUMENT RELATED HERETO. NOTHING HEREIN SHALL AFFECT THE RIGHT OF
THE ADMINISTRATIVE AGENT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL
PROCEEDINGS OR OTHERWISE PROCEED AGAINST WIL-SWITZERLAND IN ANY OTHER JURISDICTION.
(b) TO THE EXTENT PERMITTED BY APPLICABLE LAW, WIL-SWITZERLAND HEREBY IRREVOCABLY WAIVES ALL
RIGHT OF TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR IN CONNECTION
WITH THIS GUARANTY OR ANY OTHER LOAN DOCUMENT OR ANY MATTER ARISING IN CONNECTION HEREWITH OR
THEREWITH.
SECTION 15.
Payments by Guarantor
.
(a) Any and all payments by or on account of any obligation of WIL-Switzerland hereunder shall
be understood to be minimum payment obligations. When entering into this Agreement, WIL-Switzerland
has assumed that any and all payments by or on account of any obligation of WIL-Switzerland
hereunder will not be subject to any deduction for Indemnified Taxes or Other Taxes (collectively,
the
Covered Taxes
). WIL-Switzerland agrees that if it shall be required to deduct any
Covered Taxes from such payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to additional sums payable
under this Section) the Administrative Agent, the Issuing Bank or the Lender (as the case may be)
receives an amount equal to the sum it would have received had no such deductions been made, (ii)
WIL-Switzerland shall make such deductions and (iii) WIL-Switzerland shall pay the full amount
deducted to the relevant Governmental Authority in accordance with applicable law. If requested by
the Administrative Agent, WIL-Switzerland shall provide to the Administrative Agent those documents
which are required by law and applicable double taxation treaties to be provided by the payer of
such tax, for each relevant Lender to prepare a claim for refund of Swiss withholding tax.
WIL-Switzerland shall indemnify the Administrative Agent, the Issuing Bank and each Lender, within
20 days after written demand therefor, for the full amount of any Covered Taxes directly assessed
against and paid by the Administrative Agent, the Issuing Bank or such Lender, as the case may be,
on or with respect to any payment by or on account of the Guaranteed Obligations (including Covered
Taxes imposed or asserted on or attributable to amounts payable under this Section) and any
penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or
not such Covered Taxes were correctly or legally imposed or asserted by the relevant Governmental
Authority. A certificate as to the amount of such payment or liability delivered to
WIL-Switzerland by a Lender or the Issuing Bank, or by the Administrative Agent on its own behalf
or on behalf of a Lender or the Issuing Bank, shall be presumed correct absent manifest error.
(b) WIL-Switzerland will remit to the appropriate Governmental Authority, prior to delinquency
(assuming WIL-Switzerland has received notification of a claim for Covered Taxes within 10 Business
Days prior to the date the delinquency commences), all Covered Taxes payable in respect of any
payment by or on account of any obligations of WIL-
9
Switzerland hereunder. Within 30 days after the date of any payment of Covered Taxes,
WIL-Switzerland will furnish to the Administrative Agent the original or a certified copy of a
receipt evidencing payment of such Covered Taxes or such other evidence thereof as may be
reasonably satisfactory to the Administrative Agent. At the reasonable request of WIL-Switzerland,
the Administrative Agent will request the Lenders to provide any reasonable tax forms,
certifications or other documents that would result in a reduction in the amount of Covered Taxes
hereunder; provided, however, the obligation of WIL-Switzerland to make payments for Covered Taxes
hereunder shall not be conditioned upon any Lender providing any such tax forms, certifications or
other documents.
SECTION 16.
Judgment Currency
. The obligation of WIL-Switzerland to make payments on
any Guaranteed Obligation to the Lenders, to the Issuing Bank or to the Administrative Agent
hereunder in any currency (the
first currency
) shall not be discharged or satisfied by
any tender or recovery pursuant to any judgment expressed in or converted into any other currency
(the
second currency
) except to the extent to which such tender or recovery shall result
in the effective receipt by the applicable Lender, Issuing Bank or the Administrative Agent of the
full amount of the first currency payable, and accordingly the primary obligation of
WIL-Switzerland shall be enforceable as an alternative or additional cause of action for the
purpose of recovery in the second currency of the amount (if any) by which such effective receipt
shall fall short of the full amount of the full currency payable and shall not be affected by a
judgment being obtained for any other sum due hereunder.
SECTION 17.
Automatic Acceleration in Certain Events
. Upon the occurrence of an Event
of Default specified in Section 9.01(f) or (g) of the Credit Agreement, all Guaranteed Obligations
shall automatically become immediately due and payable by WIL-Switzerland, without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by WIL-Switzerland, and
regardless of whether payment of the Guaranteed Obligations by the Borrower has then been
accelerated.
SECTION 18.
Information
. WIL-Switzerland assumes all responsibility for being and
keeping itself informed of the Borrowers financial condition and assets, and of all other
circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations and the nature,
scope and extent of the risks that WIL-Switzerland assumes and incurs hereunder, and agrees that
the Administrative Agent, the Issuing Bank and the Lenders will not have any duty to advise
WIL-Switzerland of information known to any of them regarding such circumstances or risks.
SECTION 19.
Survival of Agreement
. All covenants, agreements, representations and
warranties made by WIL-Switzerland herein shall be considered to have been relied upon by the
Administrative Agent, the Issuing Bank and the Lenders and shall survive the execution and delivery
of this Guaranty and the other Loan Documents and the making of any Loans and issuance of any
Letters of Credit, regardless of any investigation made by any party or on its behalf and
notwithstanding that the Administrative Agent, the Issuing Bank or any Lender may have had notice
or knowledge of any Default or incorrect representation or warranty at the time any credit is
extended under the Credit Agreement, and shall continue in full force and effect as long as any
amount payable under this Guaranty is outstanding and unpaid.
10
SECTION 20.
Counterparts
. This Guaranty may be executed in counterparts (and by
different parties hereto on different counterparts), each of which shall constitute an original,
but all of which when taken together shall constitute a single contract.
(
Remainder of this page intentionally left blank.)
11
IN WITNESS WHEREOF
, WIL-Switzerland and the Administrative Agent have caused this Guaranty to
be duly executed and delivered by their respective duly authorized officers as of the date first
above written.
Address for Notices:
Weatherford International Ltd.
c/o Weatherford International, Inc.
515 Post Oak Blvd.
Houston, Texas 77027
Attention: General Counsel
|
|
|
|
|
WEATHERFORD INTERNATIONAL LTD.
,
a Swiss joint stock corporation
|
By:
|
/s/
Andrew P. Becnel
|
Name:
|
Andrew P. Becnel
|
Title:
|
Senior Vice President and
Chief
Financial Officer
|
|
DEUTSCHE BANK AG CAYMAN ISLANDS
BRANCH,
as Administrative Agent
|
By:
|
/s/
Marcus Tarkington
|
Name:
|
Marcus Tarkington
|
Title:
|
Director
|
|
|
|
|
By:
|
/s/ Rainer Meier
|
Name:
|
Rainer Meier
|
Title:
|
Director
|
|
Signature Page to Guaranty Agreement
Exhibit 10.4
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT
(this
Guaranty
), dated as of February 26, 2009, is made by
WEATHERFORD INTERNATIONAL LTD., a Swiss joint stock corporation (
WIL-Switzerland
) and,
after the Share Exchange (as such term is defined in the Amendment (as hereinafter defined)), the
sole shareholder of Weatherford International, Ltd., a Bermuda exempted company (
WIL
), in
favor of (i) the banks and other financial institutions that are parties to the Credit Agreement
(as hereinafter defined) and each assignee thereof becoming a
Lender
as provided therein
(collectively, the
Lenders
), and (ii) UBS AG, Stamford Branch, in its capacity as
administrative agent (the
Administrative Agent
) under the terms of the Credit Agreement,
and (iii) UBS AG, Stamford Branch, in its capacity as issuer of letters of credit (the
Issuing
Bank
) under the terms of the Credit Agreement.
W
I
T
N
E
S
S
E
T
H
:
WHEREAS,
WIL, Weatherford International, Inc., a Delaware corporation (
WII
), as a
guarantor, WIL-Switzerland, the Lenders party thereto and the Administrative Agent have entered
into a certain Amendment to Credit Agreement dated as of January 9, 2009 (the
Amendment
)
in order to amend that certain Credit Agreement dated as of October 20, 2008 (as amended, restated,
supplemented or otherwise modified from time to time, the
Credit Agreement
; terms defined
therein and not otherwise defined herein being used herein as therein defined) among WIL, the other
Persons from time to time Borrowers thereunder (together with WIL, collectively, the
Borrowers
), WII, as a guarantor, the Administrative Agent and the Lenders party thereto;
and
WHEREAS,
it is a condition precedent to the effectiveness of the Amendment that
WIL-Switzerland execute and deliver this Guaranty, and WIL-Switzerland desires to execute and
deliver this Guaranty to satisfy such requirement;
NOW, THEREFORE
, in consideration of the premises and in order to satisfy the requirements of
the Credit Agreement and the Amendment, and for other good and valuable consideration,
WIL-Switzerland hereby agrees as follows:
SECTION 1.
Guaranty
.
(a) In consideration of, and in order to induce the Administrative Agent and the Lenders to
enter into the Amendment and to make Loans to, and the Issuing Bank to issue Letters of Credit for
the account of, the Borrowers (including, without limitation, any additional Persons becoming
Borrowers under the Credit Agreement after the date hereof), WIL-Switzerland hereby absolutely,
unconditionally and irrevocably guarantees in favor of all of the Lenders, the Administrative Agent
and the Issuing Bank, the punctual payment and performance when due, whether at stated maturity, by
acceleration or otherwise, of the Obligations and all covenants of the Borrowers and the other
Guarantors, now or hereafter existing under the Credit Agreement and the other Loan Documents to
which any Borrower or any Guarantor is a party, whether for principal, LC Exposure, interest
(including interest accruing or becoming owing both prior to and subsequent to the commencement of
any proceeding against or with respect to any Borrower or any Guarantor under any applicable
bankruptcy or insolvency law (including the
Bankruptcy Code), fees, commissions, expenses (including reasonable attorneys fees and
expenses)), indemnities, or otherwise (all such obligations being, as applicable, the
Guaranteed Obligations
). WIL-Switzerland agrees to pay any and all expenses incurred by
each Lender, the Administrative Agent and the Issuing Bank in enforcing this Guaranty against
WIL-Switzerland.
(b) This Guaranty is an absolute, unconditional, present and continuing guaranty of payment
and not of collection and is in no way conditioned upon any attempt to collect from any Borrower or
any Guarantor or any other action, occurrence or circumstance whatsoever.
(c) The obligations of WIL-Switzerland under this Guaranty shall be limited to an aggregate
amount equal to the largest amount that would not render this Guaranty subject to avoidance under
Section 548 of the Bankruptcy Code or any comparable provisions of applicable law.
SECTION 2.
Continuing Guaranty
.
(a) WIL-Switzerland guarantees that the Guaranteed Obligations shall be paid strictly in
accordance with the terms of the Credit Agreement and the other Loan Documents. WIL-Switzerland
agrees that, to the maximum extent permitted by applicable law, the Guaranteed Obligations and Loan
Documents to which any Borrower is a party may be extended or renewed, and indebtedness thereunder
repaid and reborrowed in whole or in part, without notice to or assent by WIL-Switzerland, and that
WIL-Switzerland shall remain bound upon this Guaranty notwithstanding any extension, renewal or
other alteration of any of the Guaranteed Obligations or such Loan Documents or any repayment and
reborrowing of Loans to the Borrowers. The obligations of WIL-Switzerland under this Guaranty are
absolute and unconditional irrespective of the value, genuineness, validity, regularity or
enforceability of the obligations of the Borrowers under the Credit Agreement or any other Loan
Document or any substitution, release or exchange of any other guarantee of or security for the
Obligations. To the maximum extent permitted by applicable law, except as otherwise expressly
provided in the Credit Agreement or any other Loan Document to which WIL-Switzerland is a party,
the obligations of WIL-Switzerland under this Guaranty shall be absolute, unconditional and
irrevocable, and shall be performed strictly in accordance with the terms hereof under any
circumstances whatsoever, including:
(i) any modification, amendment, supplement, renewal, extension for any period,
increase, decrease, alteration or rearrangement of all or any part of the Guaranteed
Obligations, or of the Credit Agreement or any other Loan Document executed in connection
therewith, or any contract or understanding among the Borrowers, any Guarantor, the
Administrative Agent, the Issuing Bank or the Lenders, or any other Person, pertaining to
the Guaranteed Obligations;
(ii) any adjustment, indulgence, forbearance or compromise that might be granted or
given by the Administrative Agent, the Issuing Bank or the Lenders to WIL-Switzerland, any
other Guarantor, any Borrower or any other Person liable on the Guaranteed Obligations;
(iii) the insolvency, bankruptcy, arrangement, adjustment, composition, liquidation,
disability, dissolution or lack of power of WIL-Switzerland, any other Guarantor, any
Borrower or any other Person at any time liable for the payment of all or part of the
Guaranteed Obligations; or any dissolution or winding up of WIL-Switzerland, any other
Guarantor or any Borrower, or any sale, lease or transfer of any or all of the assets of
WIL-Switzerland, any other Guarantor or any Borrower, or any changes in the shareholders of
WIL-Switzerland, any other Guarantor or any Borrower, or any reorganization of
WIL-Switzerland, any other Guarantor or any Borrower;
(iv) the invalidity, illegality or unenforceability of all or any part of the
Guaranteed Obligations, or any document or agreement executed in connection with the
Guaranteed Obligations, for any reason whatsoever, including the fact that (A) the
Guaranteed Obligations, or any part thereof, exceed the amount permitted by law, (B) the act
of creating the Guaranteed Obligations, or any part thereof is
ultra vires
, (C) the officers
or representatives executing the documents or otherwise creating the Guaranteed Obligations
acted in excess of their authority, (D) the Guaranteed Obligations or any part thereof
violate applicable usury laws, (E) WIL-Switzerland, any other Guarantor or any Borrower has
valid defenses, claims, and offsets (whether at law or in equity, by agreement or by
statute) which render the Guaranteed Obligations wholly or partially uncollectible from
WIL-Switzerland, any other Guarantor or any Borrower, (F) the creation, performance, or
repayment of the Guaranteed Obligations (or execution, delivery and performance of any
document or instrument representing any part of the Guaranteed Obligations or executed in
connection with any of the Guaranteed Obligations, or given to secure the repayment of the
Guaranteed Obligations) is illegal, uncollectible, legally impossible or unenforceable, or
(G) the Credit Agreement, any other Loan Document, or any other document or instrument
pertaining to any of the Guaranteed Obligations has been forged or otherwise is irregular or
not genuine or authentic;
(v) any full or partial release of the liability of WIL-Switzerland, any other
Guarantor or any Borrower on the Guaranteed Obligations or any part thereof, or any other
Person now or hereafter liable, whether directly or indirectly, jointly, severally, or
jointly and severally, to pay, perform, guarantee, or assure the payment of the Guaranteed
Obligations or any part thereof; it being recognized, acknowledged, and agreed by
WIL-Switzerland that WIL-Switzerland may be required to pay the Guaranteed Obligations in
full without assistance or support of any other Person, and that WIL-Switzerland has not
been induced to enter into this Guaranty on the basis of a contemplation, belief,
understanding or agreement that any other Person shall be liable to perform the Guaranteed
Obligations or that the Administrative Agent, the Issuing Bank or any Lender shall look to
any other Person to perform the Guaranteed Obligations;
(vi) the taking or accepting of any other security, collateral or guaranty, or other
assurance of payment, for all or any part of the Guaranteed Obligations;
(vii) any release, surrender, exchange, subordination, deterioration, waste, loss or
impairment of any collateral, property or security, at any time existing in connection with,
or assuring or securing payment of, all or any part of the Guaranteed Obligations;
(viii) the failure of the Administrative Agent, the Lenders, the Issuing Bank or any
other Person to exercise diligence or reasonable care in the preservation, protection,
enforcement, sale or other handling or treatment of all or any part of such collateral,
property or security;
(ix) the fact that any collateral, security or Lien contemplated or intended to be
given, created or granted as security for the repayment of the Guaranteed Obligations shall
not be properly perfected or created, or shall prove to be unenforceable or subordinate to
any other Lien; it being recognized and agreed by WIL-Switzerland that WIL-Switzerland is
not entering into this Guaranty in reliance on, or in contemplation of the benefits of, the
validity, enforceability, collectibility or value of any of the collateral for the
Guaranteed Obligations;
(x) any payment by any Borrower, WIL-Switzerland or any other Guarantor to the
Administrative Agent, the Issuing Bank or any Lender is held to constitute a preference
under bankruptcy or insolvency laws, or for any other reason either the Administrative
Agent, the Issuing Bank or any Lender is required to refund such payment or pay such amount
to any Borrower, WIL-Switzerland, any other Guarantor or any other Person; or
(xi) any other action taken or omitted to be taken with respect to the Credit
Agreement, this Guaranty, any other Loan Document, the Guaranteed Obligations, or the
security and collateral therefor, whether or not such action or omission prejudices
WIL-Switzerland or increases the likelihood that WIL-Switzerland shall be required to pay
the Guaranteed Obligations pursuant to the terms hereof;
it being the unambiguous and unequivocal intention of WIL-Switzerland that WIL-Switzerland shall be
obligated to pay the Guaranteed Obligations when due, notwithstanding any occurrence, circumstance,
event, action, or omission whatsoever, whether contemplated or uncontemplated, and whether or not
otherwise or particularly described herein, except for the full and final payment and satisfaction
of the Guaranteed Obligations after the termination of all of the Commitments.
(b) WIL-Switzerland further agrees that, to the fullest extent permitted by law, as between
WIL-Switzerland, on the one hand, and the Administrative Agent, the Issuing Bank and the Lenders,
on the other hand, (i) the maturity of the Obligations may be accelerated as provided in Section
9.01 of the Credit Agreement for the purposes of this Guaranty, notwithstanding any stay,
injunction or other prohibition preventing the acceleration of the Obligations as against any
Borrower and (ii) in the event of any purported acceleration (whether by declaration or automatic)
of the Obligations as provided in Section 9.01 of the Credit Agreement, the Obligations (whether or
not due and payable) shall forthwith become due and payable by WIL-Switzerland for the purpose of
this Guaranty.
SECTION 3.
Effect of Debtor Relief Laws
. If after receipt of any payment of, or
proceeds of any security applied (or intended to be applied) to the payment of all or any part of
the Guaranteed Obligations, the Administrative Agent, the Issuing Bank or any Lender is for any
reason compelled to surrender or voluntarily surrenders, such payment or proceeds to any Person
(a) because such payment or application of proceeds is or may be avoided, invalidated,
declared fraudulent, set aside, determined to be void or voidable as a preference, fraudulent
conveyance, fraudulent transfer, impermissible set-off or a diversion of trust funds or (b) for any
other reason, including (i) any judgment, decree or order of any court or administrative body
having jurisdiction over the Administrative Agent, the Issuing Bank, any Lender or any of their
respective properties or (ii) any settlement or compromise of any such claim effected by the
Administrative Agent, the Issuing Bank or any Lender with any such claimant (including any Borrower
or any other Guarantor), then the Guaranteed Obligations or any part thereof intended to be
satisfied shall be reinstated and continue, and this Guaranty shall continue in full force as if
such payment or proceeds had not been received, notwithstanding any revocation thereof or the
cancellation of any instrument evidencing any of the Guaranteed Obligations or otherwise; and
WIL-Switzerland shall be liable to pay the Administrative Agent, the Issuing Bank and the Lenders,
and hereby does indemnify the Administrative Agent, the Issuing Bank and the Lenders and hold them
harmless for the amount of such payment or proceeds so surrendered and all reasonable expenses
(including reasonable attorneys fees, court costs and expenses attributable thereto) incurred by
the Administrative Agent, the Issuing Bank or any such Lender in the defense of any claim made
against it that any payment or proceeds received by the Administrative Agent, the Issuing Bank or
any such Lender in respect of all or part of the Guaranteed Obligations must be surrendered. The
provisions of this paragraph shall survive the termination of this Guaranty and any satisfaction
and discharge of the Borrowers by virtue of any payment, court order, or any law.
SECTION 4.
Waiver
. WIL-Switzerland hereby waives promptness, diligence, notice of
acceptance and any other notice with respect to any of the Guaranteed Obligations and this Guaranty
and waives presentment, demand for payment, notice of intent to accelerate, notice of dishonor or
nonpayment and any requirement that the Administrative Agent, the Issuing Bank or any Lender
institute suit, collection proceedings or take any other action to collect any of the Guaranteed
Obligations, including any requirement that the Administrative Agent, the Issuing Bank or any
Lender protect, secure, perfect or insure any Lien against any property subject thereto or exhaust
any right or take any action against any Borrower, any Guarantor or any other Person or any
collateral (it being the intention of the Administrative Agent, the Issuing Bank, the Lenders, and
WIL-Switzerland that this Guaranty is to be a guaranty of payment and not of collection). It shall
not be necessary for the Administrative Agent, the Issuing Bank or any Lender, in order to enforce
any payment by WIL-Switzerland hereunder, to institute suit or exhaust its rights and remedies
against WIL-Switzerland, any other Guarantor, any Borrower or any other Person, including others
liable to pay the Guaranteed Obligations, or to enforce its rights against any security ever given
to secure payment thereof. WIL-Switzerland hereby expressly waives to the maximum extent permitted
by applicable law each and every right to which it may be entitled by virtue of the suretyship laws
of the State of Texas or any other state in which it may be located, including any and all rights
it may have pursuant to Rule 31, Texas Rules of Civil Procedure, Section 17.001 of the Texas Civil
Practice and Remedies Code and Chapter 34 of the Texas Business and Commerce Code. WIL-Switzerland
hereby waives marshaling of assets and liabilities, notice by the Administrative Agent, the Issuing
Bank or any Lender of any indebtedness or liability to which such Person applies or may apply any
amounts received by it, and of the creation, advancement, increase, existence, extension, renewal,
rearrangement or modification of the Guaranteed Obligations. WIL-Switzerland expressly waives,
to the extent permitted by applicable law, the benefit of any and all laws providing
for exemption of property from execution or for valuation and appraisal upon foreclosure.
SECTION 5.
Agreement to Defer Exercise of Subrogation
. Notwithstanding any payment or
payments made by WIL-Switzerland hereunder, or any setoff or application by the Administrative
Agent, the Issuing Bank or any Lender of any security or of any credits or claims, WIL-Switzerland
will not assert or exercise any rights of the Administrative Agent, the Issuing Bank or any Lender
or of itself against any other Guarantor or any Borrower to recover the amount of any payment made
hereunder by WIL-Switzerland to the Administrative Agent, the Issuing Bank or any Lender by way of
any claim, remedy or subrogation, reimbursement, exoneration, contribution, indemnity,
participation or otherwise arising by contract, by statute, under common law or otherwise, and
WIL-Switzerland shall not have any right to exercise any right of recourse to or any claim against
assets or property of any Borrower or of any other Guarantor for such amounts, in each case unless
and until the Obligations of such Borrower or obligations of such Guarantor guaranteed hereby have
been fully and finally satisfied. Until such time (but not thereafter), WIL-Switzerland hereby
agrees not to exercise any claim, right or remedy which it may now have or hereafter acquire
against any other Guarantor or any Borrower that arises under the Credit Agreement or any other
Loan Document or from the performance by WIL-Switzerland of the Guaranty hereunder including any
claim, remedy or right of subrogation, reimbursement, exoneration, contribution, indemnification or
participation in any claim, right or remedy of the Administrative Agent, the Issuing Bank or any
Lender against any Borrower or any Guarantor, or any security that the Administrative Agent, the
Issuing Bank or any Lender now has or hereafter acquires pursuant hereto securing the Obligations
of the Borrowers or obligations of any Guarantor under the Credit Agreement or any other Loan
Document, whether or not such claim, right or remedy arises in equity, under contract, by statute,
under common law or otherwise. If any amount shall be paid to WIL-Switzerland by any Borrower or
any Guarantor after payment in full of the Obligations, and the Obligations shall thereafter be
reinstated in whole or in part and the Administrative Agent, the Issuing Bank or any Lender forced
to repay any sums received by any of them in payment of the Obligations, this Guaranty shall be
automatically reinstated and such amount shall be held in trust for the benefit of the
Administrative Agent, the Issuing Bank and the Lenders and shall forthwith be paid to the
Administrative Agent to be credited and applied to the Guaranteed Obligations, whether matured or
unmatured. The provisions of this paragraph shall survive the termination of this Guaranty, and
any satisfaction and discharge of any Borrower or any Guarantor by virtue of any payment, court
order or any federal or state law.
SECTION 6.
Full Force and Effect
. This Guaranty is a continuing guaranty and shall
remain in full force and effect until all of the Guaranteed Obligations under the Credit Agreement
and the other Loan Documents to which any Borrower or any Guarantor is a party and all other
amounts payable under this Guaranty have been paid in full (after the termination of the
Commitments). All rights, remedies and powers provided in this Guaranty may be exercised, and all
waivers contained in this Guaranty may be enforced, only to the extent that the exercise or
enforcement thereof does not violate any provisions of applicable law which may not be waived.
SECTION 7.
Severability
. Any provision of this Guaranty held to be invalid, illegal
or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such
invalidity, illegality or unenforceability without affecting the validity, legality and
enforceability of the remaining provisions hereof, and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other jurisdiction.
SECTION 8.
Amendments, Etc
. No amendment or waiver of any provision of this Guaranty
nor consent to any departure by WIL-Switzerland therefrom shall in any event be effective unless
the same shall be in writing executed by the Administrative Agent.
SECTION 9.
Notices
. All notices and other communications provided for hereunder shall
be given in the manner specified in the Credit Agreement (i) in the case of the Administrative
Agent, at the address specified for the Administrative Agent in the Credit Agreement, and (ii) in
the case of WIL-Switzerland, at the address specified therefor in this Guaranty.
SECTION 10.
No Waiver; Remedies
. No failure or delay by the Administrative Agent, the
Issuing Bank or any Lender in exercising any right or power hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or further exercise
thereof or the exercise of any other right or power. The rights and remedies of the Administrative
Agent, the Issuing Bank and the Lenders hereunder are cumulative and are not exclusive of any
rights or remedies that they would otherwise have. No waiver of any provision of this Guaranty or
consent to any departure by WIL-Switzerland therefrom shall in any event be effective unless the
same shall be permitted by
Section 8
hereof, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given.
SECTION 11.
Right of Set Off
. Upon the occurrence and during the continuance of any
Event of Default, the Administrative Agent, the Issuing Bank and each Lender is hereby authorized
at any time and from time to time, without notice to WIL-Switzerland (any such notice being
expressly waived by WIL-Switzerland), to set off and apply any and all deposits (general or
special, time or demand, provisional or final but excluding the funds held in accounts clearly
designated as escrow or trust accounts held by WIL-Switzerland for the benefit of Persons which are
not Affiliates of WIL-Switzerland), whether or not such setoff results in any loss of interest or
other penalty, and including all certificates of deposit, at any time held and other obligations at
any time owing by the Administrative Agent, the Issuing Bank or such Lender to or for the credit or
the account of WIL-Switzerland against any and all of the Guaranteed Obligations irrespective of
whether or not the Administrative Agent, the Issuing Bank or such Lender shall have made any demand
under the Credit Agreement, this Guaranty, the Notes or any other Loan Document. The rights of the
Administrative Agent, the Issuing Bank and the Lenders under this Section are in addition to other
rights and remedies (including other rights of setoff) which the Administrative Agent, the Issuing
Bank or the Lenders may have. This Section is subject to the terms and provisions of Section
4.01(a) of the Credit Agreement.
SECTION 12.
Transfer Of Obligations
. This Guaranty shall (i) be binding upon
WIL-Switzerland, its successors and assigns and (ii) inure to the benefit of and be enforceable by
the Administrative Agent, for the benefit of itself, the Lenders and the Issuing Bank.
SECTION 13.
Governing Law
. This Guaranty and the rights and obligations of the
parties hereto shall be construed in accordance with and governed by the law of the State of New
York.
SECTION 14.
Submission to Jurisdiction; Consent To Service Of Process; Waiver of Jury
Trial
.
(a) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS GUARANTY OR OTHERWISE RELATED HERETO
MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK SITTING IN THE BOROUGH OF MANHATTAN OR THE
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, AND, BY EXECUTION AND DELIVERY
OF THIS GUARANTY, WIL-SWITZERLAND HEREBY CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO
THE JURISDICTION OF THE AFORESAID COURTS SOLELY FOR THE PURPOSE OF ADJUDICATING ITS RIGHTS OR THE
RIGHTS OF THE ADMINISTRATIVE AGENT, THE LENDERS AND THE ISSUING BANK WITH RESPECT TO THIS GUARANTY
OR ANY DOCUMENT RELATED HERETO. WIL-SWITZERLAND HEREBY IRREVOCABLY DESIGNATES CT CORPORATION
SYSTEM, 111 8TH AVENUE, NEW YORK, NEW YORK 10011, AS THE DESIGNEE, APPOINTEE AND AGENT OF
WIL-SWITZERLAND TO RECEIVE, FOR AND ON BEHALF OF WIL-SWITZERLAND, SERVICE OF PROCESS IN SUCH
JURISDICTION IN ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS GUARANTY OR ANY DOCUMENT
RELATED HERETO AND SUCH SERVICE SHALL BE DEEMED COMPLETED THIRTY DAYS AFTER MAILING THEREOF TO SAID
AGENT. IT IS UNDERSTOOD THAT A COPY OF SUCH PROCESS SERVED ON SUCH AGENT WILL BE PROMPTLY
FORWARDED BY MAIL TO WIL-SWITZERLAND AT ITS ADDRESS SET FORTH HEREIN, BUT THE FAILURE OF
WIL-SWITZERLAND TO RECEIVE SUCH COPY SHALL NOT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, AFFECT
IN ANY WAY THE SERVICE OF SUCH PROCESS. IF FOR ANY REASON SERVICE OF PROCESS CANNOT PROMPTLY BE
MADE ON EITHER SUCH LOCAL AGENT, WIL-SWITZERLAND FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF
PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF
COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO WIL-SWITZERLAND AT ITS SAID
ADDRESS, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING. WIL-SWITZERLAND HEREBY
IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO THE LAYING OF
VENUE OR BASED ON THE GROUNDS OF
FORUM
NON
CONVENIENS
, WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH RESPECTIVE JURISDICTIONS IN
RESPECT OF THIS GUARANTY OR ANY DOCUMENT RELATED HERETO. NOTHING HEREIN SHALL AFFECT THE RIGHT OF
THE ADMINISTRATIVE AGENT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL
PROCEEDINGS OR OTHERWISE PROCEED AGAINST WIL-SWITZERLAND IN ANY OTHER JURISDICTION.
(b) TO THE EXTENT PERMITTED BY APPLICABLE LAW, WIL-SWITZERLAND HEREBY IRREVOCABLY WAIVES ALL
RIGHT OF TRIAL BY JURY IN
ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR IN CONNECTION WITH THIS GUARANTY OR
ANY OTHER LOAN DOCUMENT OR ANY MATTER ARISING IN CONNECTION HEREWITH OR THEREWITH.
SECTION 15.
Payments by Guarantor
.
(a) Any and all payments by or on account of any obligation of WIL-Switzerland hereunder shall
be understood to be minimum payment obligations. When entering into this Agreement, WIL-Switzerland
has assumed that any and all payments by or on account of any obligation of WIL-Switzerland
hereunder will not be subject to any deduction for Indemnified Taxes or Other Taxes (collectively,
the
Covered Taxes
). WIL-Switzerland agrees that if it shall be required to deduct any
Covered Taxes from such payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to additional sums payable
under this Section) the Administrative Agent, the Issuing Bank or the Lender (as the case may be)
receives an amount equal to the sum it would have received had no such deductions been made, (ii)
WIL-Switzerland shall make such deductions and (iii) WIL-Switzerland shall pay the full amount
deducted to the relevant Governmental Authority in accordance with applicable law. If requested by
the Administrative Agent, WIL-Switzerland shall provide to the Administrative Agent those documents
which are required by law and applicable double taxation treaties to be provided by the payer of
such tax, for each relevant Lender to prepare a claim for refund of Swiss withholding tax.
WIL-Switzerland shall indemnify the Administrative Agent, the Issuing Bank and each Lender, within
20 days after written demand therefor, for the full amount of any Covered Taxes directly assessed
against and paid by the Administrative Agent, the Issuing Bank or such Lender, as the case may be,
on or with respect to any payment by or on account of the Guaranteed Obligations (including Covered
Taxes imposed or asserted on or attributable to amounts payable under this Section) and any
penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or
not such Covered Taxes were correctly or legally imposed or asserted by the relevant Governmental
Authority. A certificate as to the amount of such payment or liability delivered to
WIL-Switzerland by a Lender or the Issuing Bank, or by the Administrative Agent on its own behalf
or on behalf of a Lender or the Issuing Bank, shall be presumed correct absent manifest error.
(b) WIL-Switzerland will remit to the appropriate Governmental Authority, prior to delinquency
(assuming WIL-Switzerland has received notification of a claim for Covered Taxes within 10 Business
Days prior to the date the delinquency commences), all Covered Taxes payable in respect of any
payment by or on account of any obligations of WIL-Switzerland hereunder. Within 30 days after the
date of any payment of Covered Taxes, WIL-Switzerland will furnish to the Administrative Agent the
original or a certified copy of a receipt evidencing payment of such Covered Taxes or such other
evidence thereof as may be reasonably satisfactory to the Administrative Agent. At the reasonable
request of WIL-Switzerland, the Administrative Agent will request the Lenders to provide any
reasonable tax forms, certifications or other documents that would result in a reduction in the
amount of Covered Taxes hereunder; provided, however, the obligation of WIL-Switzerland to make
payments for Covered Taxes hereunder shall not be conditioned upon any Lender providing any such
tax forms, certifications or other documents.
SECTION 16.
Judgment Currency
. WIL-Switzerlands obligation hereunder to make
payments shall not be discharged or satisfied by any tender or recovery pursuant to any judgment
expressed in or converted into any currency other than U.S. Dollars, except to the extent that such
tender or recovery results in the effective receipt by the applicable Lender, Issuing Bank or the
Administrative Agent of the full amount of U.S. Dollars expressed to be payable under this Guaranty
or the Credit Agreement. If for the purpose of obtaining or enforcing judgment against
WIL-Switzerland in any court or in any jurisdiction, it becomes necessary to convert into or from
any currency other than U.S. Dollars an amount due in U.S. Dollars, such amount shall be converted
into the currency required hereunder at the rate determined by the Administrative Agent as the rate
quoted by it in accordance with methods customarily used by the Administrative Agent for such or
similar purposes as the spot rate for the purchase by the Administrative Agent of the required
currency with the currency of actual payment through its principal foreign exchange trading office
at approximately 11:00 A.M. (local time at such office) two Business Days prior to the effective
date of such conversion, provided that the Administrative Agent may obtain such spot rate from
another financial institution actively engaged in foreign currency exchange if the Administrative
Agent does not then have a spot rate for the required currency. The parties hereto hereby agree,
to the fullest extent that they may effectively do so under applicable law, that (i) if for the
purposes of obtaining any judgment or award it becomes necessary to convert from any currency other
than the currency required hereunder into the currency required hereunder any amount in connection
with the Guaranteed Obligations, then the conversion shall be made as provided above on the
Business Day before the day on which the judgment or award is given, (ii) in the event that there
is a change in the applicable conversion rate prevailing between the Business Day before the day on
which the judgment or award is given and the date of payment, WIL-Switzerland will pay to the
Administrative Agent, for the benefit of the Lenders, such additional amounts (if any) as may be
necessary, and the Administrative Agent, on behalf of the Lenders, will pay to WIL-Switzerland such
excess amounts (if any) as result from such change in the rate of exchange, to assure that the
amount paid on such date is the amount in such other currency, which when converted at the
conversion rate described herein on the date of payment, is the amount then due in the currency
required hereunder, and (iii) any amount due from WIL-Switzerland under this Section shall be due
as a separate debt and shall not be affected by judgment or award being obtained for any other sum
due.
SECTION 17.
Automatic Acceleration in Certain Events
. Upon the occurrence of an Event
of Default specified in Section 9.01(f) or (g) of the Credit Agreement, all Guaranteed Obligations
shall automatically become immediately due and payable by WIL-Switzerland, without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by WIL-Switzerland, and
regardless of whether payment of the Guaranteed Obligations by the Borrowers has then been
accelerated.
SECTION 18.
Information
. WIL-Switzerland assumes all responsibility for being and
keeping itself informed of the Borrowers financial condition and assets, and of all other
circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations and the nature,
scope and extent of the risks that WIL-Switzerland assumes and incurs hereunder, and agrees that
the Administrative Agent, the Issuing Bank and the Lenders will not have any duty to advise
WIL-Switzerland of information known to any of them regarding such circumstances or risks.
SECTION 19.
Survival of Agreement
. All covenants, agreements, representations and
warranties made by WIL-Switzerland herein shall be considered to have been relied upon by the
Administrative Agent, the Issuing Bank and the Lenders and shall survive the execution and delivery
of this Guaranty and the other Loan Documents and the making of any Loans and issuance of any
Letters of Credit, regardless of any investigation made by any party or on its behalf and
notwithstanding that the Administrative Agent, the Issuing Bank or any Lender may have had notice
or knowledge of any Default or incorrect representation or warranty at the time any credit is
extended under the Credit Agreement, and shall continue in full force and effect as long as any
amount payable under this Guaranty is outstanding and unpaid.
SECTION 20.
Counterparts
. This Guaranty may be executed in counterparts (and by
different parties hereto on different counterparts), each of which shall constitute an original,
but all of which when taken together shall constitute a single contract.
SECTION 21.
Currency of Payment
. All payments to be made by WIL-Switzerland hereunder
shall be made in U.S. Dollars and, in the case of any required conversion of any currency, shall be
determined, and the related amounts calculated, in the manner provided in
Section 16
.
(
Remainder of this page intentionally left blank.)
IN WITNESS WHEREOF
, WIL-Switzerland and the Administrative Agent have caused this Guaranty to
be duly executed and delivered by their respective duly authorized officers as of the date first
above written.
Address for Notices:
Weatherford International Ltd.
c/o Weatherford International, Inc.
515 Post Oak Blvd.
Houston, Texas 77027
Attention: General Counsel
|
|
|
|
|
WEATHERFORD INTERNATIONAL LTD.
,
a Swiss joint stock corporation
|
By:
|
/s/
Andrew P. Becnel
|
|
Name:
|
Andrew P. Becnel
|
|
Title:
|
Senior Vice President and
Chief Financial Officer
|
|
UBS AG, STAMFORD BRANCH
,
as Administrative Agent
|
By:
|
/s/
Mary E. Evans
|
|
Name:
|
Mary E. Evans
|
|
Title:
|
Associate Director
Banking Product Services US
|
|
|
|
|
By:
|
/s/ Irja R. Otsa
|
|
Name:
|
Irja R. Otsa
|
|
Title:
|
Associate Director
Banking Product Services US
|
|
Signature Page to Guaranty Agreement
Exhibit
10.5
ASSUMPTION AND GENERAL AMENDMENT AGREEMENT
This Assumption and General Amendment Agreement (this
Agreement
) is made as of
February 25, 2009, by and between Weatherford International Ltd., an exempted company incorporated
with limited liability under the laws of Bermuda (
Weatherford Bermuda
), and Weatherford
International Ltd., a joint stock company registered in Switzerland, canton of Zug
(
Weatherford Switzerland
).
RECITALS
WHEREAS
, the boards of directors of Weatherford Bermuda and Weatherford Switzerland have
previously approved a series of transactions to be effected pursuant to a share exchange agreement
(the
Exchange Agreement
) and by way of a scheme of arrangement in accordance with the
laws of Bermuda and Switzerland, pursuant to which Weatherford Switzerland will become the parent
holding company of Weatherford Bermuda as a result of the remittance of Weatherford Switzerlands
registered shares (
Registered Shares
) in exchange for Weatherford Bermuda common shares
(
Common Shares
) (such transactions are collectively referred to as the
Redomestication
);
WHEREAS
, in accordance with Swiss law, the Redomestication will become effective at the time
that the Swiss Register of Commerce registers the capital increase of the Company, as contemplated
in connection with the Redomestication (the
Effective Time
);
WHEREAS
, each of Weatherford Bermuda and Weatherford International, Inc., a Delaware
corporation and wholly-owned indirect subsidiary of Weatherford Bermuda (
Weatherford
Delaware
) (i) maintains and sponsors those certain equity compensation-related plans, and
certain other plans, agreements, awards and arrangements listed on
Exhibit A
hereto
(collectively, the
Assumed Stock Plans
), providing for the grant or award to its
directors, officers and employees and other persons of (a) options, restricted shares or other
rights to purchase or receive Common Shares or (b) the right to receive benefits or other amounts
by reference to Common Shares (individually, an
Assumed Stock Award
and collectively, the
Assumed Stock Awards
), and (ii) maintains and sponsors those certain equity
compensation-related plans, and certain other plans, agreements, awards and arrangements listed on
Exhibit B
hereto (collectively, the
Other Stock Plans
), providing for the grant
or award to its directors, officers and employees and other persons of (a) options, restricted
shares or other rights to purchase or receive Common Shares or (b) the right to receive benefits or
other amounts by reference to Common Shares (individually, an
Other Stock Award
and
collectively, the
Other Stock Awards
);
WHEREAS
, Weatherford Bermuda has previously entered into those certain employment agreements
listed on
Exhibit C
hereto (collectively, the
Assumed Employment Agreements
);
WHEREAS
, Weatherford Delaware has previously entered into those certain employment agreements
listed on
Exhibit D
hereto (collectively, the
Other Employment Agreements
); and
WHEREAS
, in connection with the Redomestication and pursuant to the Exchange Agreement,
Weatherford Switzerland desires (i) to assume and adopt the Assumed Stock Plans and the Assumed
Stock Awards, and to issue or cause to be issued Registered Shares (from Weatherford Switzerland or
through one of its subsidiaries) in lieu of Common Shares being issued in connection with such
Assumed Stock Plans and Assumed Stock Awards, (ii) to assume the obligations of Weatherford Bermuda
to issue or cause to be issued Registered Shares (from Weatherford Switzerland or through one of
its subsidiaries) in lieu of Common Shares being issued in connection with the Other Stock Plans
and the related Other Stock Awards, but not assume the Other Stock Plans or Other Stock Awards,
(iii) to assume and adopt the Assumed Employment Agreements, and (iv) the Other Employment
Agreements to be amended such that references to Weatherford Bermuda are replaced with references
to Weatherford Switzerland.
NOW, THEREFORE
, in consideration of the foregoing and for good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, at and as of the Effective Time:
1. Pursuant to the terms of this Agreement and the Exchange Agreement, Weatherford Bermuda hereby
assigns to Weatherford Switzerland, and Weatherford Switzerland hereby accepts from Weatherford
Bermuda and hereby assumes, the Assumed Stock Plans and the related Assumed Stock Awards and the
rights and obligations of Weatherford Bermuda under the Assumed Stock Plans and Assumed Stock
Awards. As a result of such assignment and assumption, Weatherford Switzerland will be the sponsor
of the Assumed Stock Plans and Registered Shares will be issued under the Assumed Stock Plans in
lieu of Common Shares being issued thereunder.
2. Pursuant to the terms of this Agreement and the Exchange Agreement, Weatherford Bermuda hereby
assigns to Weatherford Switzerland, and Weatherford Switzerland hereby accepts from Weatherford
Bermuda and hereby assumes, the obligations to issue or cause to be issued, Registered Shares in
connection with the Other Stock Plans and related Other Stock Awards. As a result of such
assignment and assumption, Weatherford Switzerland will issue or cause to be issued Registered
Shares (from Weatherford Switzerland or through one of its subsidiaries) in lieu of Common Shares
being issued in connection with such Other Stock Plans and Other Stock Awards.
3. Pursuant to the terms of this Agreement and the Exchange Agreement, Weatherford Bermuda hereby
assigns to Weatherford Switzerland, and Weatherford Switzerland hereby accepts and assumes from
Weatherford Bermuda, the Assumed Employment Agreements, including the rights and obligations of
Weatherford Bermuda thereunder. The registered address of Weatherford Switzerland for purposes of
the Assumed Employment Agreements is Alpenstrasse 15, 6300 Zug, Switzerland.
4. To the extent any Assumed Stock Plan, Assumed Stock Award, Other Stock Plan or Other Stock Award
(each, a
Benefit Document
, and collectively, the
Benefit Documents
) provides
for the issuance, acquisition, holding or purchase of, or otherwise relates to or references,
Common Shares, then, pursuant to the terms hereof and thereof, such Benefit
Document is hereby
amended to provide for the issuance, acquisition, purchase or holding of, or otherwise relate to or
reference, Registered Shares (or benefits or other amounts determined in accordance with the
Benefit Documents).
5. All references in the Assumed Stock Plans and Assumed Stock Awards to Weatherford Bermuda or its
predecessors are hereby amended to be references to Weatherford Switzerland. Only with respect to
the obligations to issue Common Shares, all references in the Other Stock Plans and Other Stock
Awards to Weatherford Bermuda or its predecessors are hereby amended to be references to
Weatherford Switzerland. All references in the Assumed Employment Agreements and the Other
Employment Agreements to Weatherford Bermuda or its predecessors are hereby amended to be
references to Weatherford Switzerland; no other changes or amendments are hereby made to the Other
Employment Agreements.
6. All outstanding Assumed Stock Awards and Other Stock Awards or any other benefits available
which are based on Common Shares and which have been granted under the Assumed Stock Plans or Other
Stock Plans (including, as applicable, any Common Shares exchanged in connection with the
Redomestication) shall remain outstanding pursuant to the terms hereof and thereof.
7. Each Assumed Stock Award and each Other Stock Award shall, pursuant to the terms hereof and
thereof, be exercisable, issuable, held, available or vest upon the same terms and conditions as
under the applicable Benefit Document, except that upon the exercise, issuance, holding,
availability or vesting of such Assumed Stock Awards or Other Stock Awards, as applicable,
Registered Shares are hereby issuable or available, or benefits or other amounts determined, in
lieu of Common Shares.
8. Each Assumed Stock Award and Other Stock Award that is a stock option (i) is hereby assumed by
Weatherford Switzerland, or (ii) the obligations thereunder are hereby assumed by Weatherford
Switzerland, as applicable, in such manner that Weatherford Switzerland would be a corporation
assuming a stock option in a transaction to which section 424(a) applies within the meaning of
Section 424 of the Internal Revenue Code of 1986, as amended (the
Code
), were Section 424
of the Code applicable to such Assumed Stock Award or Other Stock Award, with regard to the
requirements of Treasury Regulation Section 1.424-1(a)(5)(iii) for options that are intended to
qualify under Section 422 of the Code, and with regard to the requirements of Treasury Regulation
Section 1.409A-1(b)(5)(v)(D) for other options.
9. The parties hereto acknowledge that the benefit and other plans (and the obligations to issue
Common Shares provided therein) of Weatherford Bermuda, Weatherford Delaware or any of their
affiliates that are not listed on
Exhibit A
,
Exhibit B
, or
Exhibit C
are
not assigned to or assumed or otherwise adopted by Weatherford Switzerland as provided hereby. For
the avoidance of doubt, the Other Employment Agreements are not being assumed by Weatherford
Switzerland.
10. Subject to the terms of this Agreement, as amended hereby, each Benefit Document is
specifically ratified and reaffirmed by Weatherford Switzerland.
11. This Agreement will be effective immediately prior to the Effective Time subject to effective
completion of the Redomestication by the Effective Time.
(Remainder of page intentionally blank)
IN WITNESS WHEREOF
, the undersigned have executed this Agreement, which may be executed in
multiple counterparts, but when taken together make one and the same instrument, as of the date
first set forth above.
WEATHERFORD INTERNATIONAL LTD.
a Bermuda exempted company
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By:
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/s/ Burt M. Martin
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Name:
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Burt M. Martin
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Title:
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Senior Vice President
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WEATHERFORD INTERNATIONAL LTD.
a joint stock company registered in Switzerland
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By:
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/s/ Burt M. Martin
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Name:
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Burt M. Martin
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Title:
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Director
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Solely for purposes of the last sentence of Section 5, Weatherford International, Inc. also
executes this Agreement.
WEATHERFORD INTERNATIONAL, INC.
a Delaware corporation
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By:
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/s/ Burt M. Martin
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Name:
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Burt M. Martin
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Title:
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Senior Vice President
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[Signature page to Stock Plan Assumption and General Amendment Agreement]
EXHIBIT A
Assumed Stock Plans
1. Weatherford International Ltd. Non-Employee Director Stock Option Agreements
2. Weatherford International Ltd. 2006 Omnibus Incentive Plan
3. Weatherford International Ltd. Restricted Share Plan
4. Weatherford International, Inc. 1998 Employee Stock Option Plan
EXHIBIT B
Other Stock Plans
1. Weatherford International, Inc. Executive Deferred Compensation Stock Ownership Plan
2. Weatherford International, Inc. Foreign Executive Deferred Compensation Stock Plan
3. Weatherford International Ltd. Deferred Compensation Plan for Non-Employee Directors
EXHIBIT C
Weatherford International Ltd.
Assumed Employment Agreements
1. Amended and Restated Employment Agreement dated December 31, 2008, between Weatherford
International Ltd. and Jessica Abarca
2. Amended and Restated Employment Agreement dated December 31, 2008, between Weatherford
International Ltd. and Andrew P. Becnel
3. Amended and Restated Employment Agreement dated December 31, 2008, between Weatherford
International Ltd. and M. David Colley
4. Amended and Restated Employment Agreement dated December 31, 2008, between Weatherford
International Ltd. and Bernard J. Duroc-Danner
5. Amended and Restated Employment Agreement dated December 31, 2008, between Weatherford
International Ltd. and Stuart E. Ferguson
6. Amended and Restated Employment Agreement dated December 31, 2008, between Weatherford
International Ltd. and Burt M. Martin
7. Amended and Restated Employment Agreement dated December 31, 2008, between Weatherford
International Ltd. and Keith R. Morley
8. Amended and Restated Employment Agreement effective as of December 31, 2008, between
Weatherford International Ltd. and James M. Hudgins
9. Amended and Restated Employment Agreement effective as of December 31, 2008, between
Weatherford International Ltd. and Carel W. Hoyer
EXHIBIT D
Weatherford International, Inc.
Other Employment Agreements
1. Employment Agreement effective as of January 1, 2009, between Weatherford International, Inc.
and Jessica Abarca
2. Employment Agreement effective as of January 1, 2009, between Weatherford International, Inc.
and Andrew P. Becnel
3. Employment Agreement effective as of January 1, 2009, between Weatherford International, Inc.
and M. David Colley
4. Employment Agreement effective as of January 1, 2009, between Weatherford International, Inc.
and Bernard J. Duroc-Danner
5. Employment Agreement effective as of January 1, 2009, between Weatherford International, Inc.
and Stuart E. Ferguson
6. Employment Agreement effective as of January 1, 2009, between Weatherford International, Inc.
and Burt M. Martin
7. Employment Agreement effective as of January 1, 2009, between Weatherford International, Inc.
and Keith R. Morley
8.
Employment Agreement effective as of February 9, 2009, between Weatherford International, Inc.
and James M. Hudgins
9. Employment Agreement effective as of February 9, 2009, between Weatherford International, Inc.
and Carel W. Hoyer
Exhibit 10.6
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT is made on the [___], 2009, between Weatherford
International Ltd., a corporation incorporated under the laws of Switzerland with its registered
address at Alpenstrasse 15, in 6304 Zug, Switzerland (the
Company
); and [___]
(
Indemnitee
).
WHEREAS Indemnitee is a director and/or an officer of the Company;
WHEREAS highly skilled and competent persons are becoming more reluctant to serve public
companies as directors or officers unless they are provided with adequate protection through
insurance and indemnification against inordinate risks of claims and actions against them arising
out of their service to and activities on behalf of such companies;
WHEREAS uncertainties relating to indemnification increase the difficulty of attracting and
retaining such persons;
WHEREAS the Board has determined that an inability to attract and retain such persons is
detrimental to the best interests of the Company and that the Company should act to assure such
persons that there will be increased certainty of such protection in the future;
WHEREAS, it is reasonable, prudent and necessary for the Company contractually to obligate
itself to indemnify Indemnitee to the fullest extent permitted by Swiss law so that Indemnitee will
serve or continue to serve the Company free from undue concern that Indemnitee will not be so
indemnified; and
WHEREAS, Indemnitee is willing to serve, continue to serve and to take on additional service
for or on behalf of the Company on the condition that Indemnitee be so indemnified.
NOW, THEREFORE, in consideration of the premises and the covenants contained herein, the
Company and Indemnitee do hereby covenant and agree as follows:
1. INTERPRETATION
1.1 In this Agreement unless the context otherwise requires, the following words and
expressions shall have the following meanings:
Agreement
means this Indemnification Agreement;
Board
means the board of directors of the Company;
Business Day
means any day on which banks in Switzerland are open for business;
Corporate Status
means the status of a person who is or was a director, officer,
employee, agent, or fiduciary of the Company or any other Group Company, or is or was serving at
the request of the Company as a director, officer, employee, agent or fiduciary of any other
company, corporation, partnership, limited liability company, joint venture, trust, employee
benefit plan or other entity or enterprise;
Disinterested Director
means a director of the Company who is not or was not a party
to a Proceeding in respect of which indemnification is sought by Indemnitee;
Group Companies
means the Company and each subsidiary of the Company (wherever
incorporated or organized);
Independent Counsel
means a law firm or a member of a law firm that neither is
presently nor in the past five years has been retained to represent: (i) the Company or Indemnitee
in any matter material to either such party, or (ii) any other party to the Proceeding giving rise
to a claim for indemnification hereunder. Notwithstanding the foregoing, the term Independent
Counsel shall not include any person who, under the applicable standards of professional conduct
then prevailing, would have a conflict of interest in representing either the Company or Indemnitee
in an action to determine Indemnitees right to indemnification under this Agreement;
Parties
means the parties to this Agreement collectively, and
Party
means
any one of them; and
Proceeding
means any action, suit, arbitration, alternate dispute resolution
mechanism, investigation, administrative hearing or any other proceeding whether civil, criminal,
administrative or investigative and whether formal or informal;
1.2 In this Agreement unless the context otherwise requires:
1.2.1 references to statutory provisions shall be construed as references to those provisions
as amended or re-enacted or as their application is modified by other provisions from time to time
and shall include references to any provisions of which they are re-enactments (whether with or
without modification);
1.2.2 references to clauses and schedules are references to clauses hereof and schedules
hereto; references to sub-clauses or paragraphs are, unless otherwise stated, references to
sub-clauses of the clause or paragraphs of the schedule in which the reference appears;
1.2.3 references to the singular shall include the plural and vice versa and references to the
masculine shall include the feminine and/or neuter and vice versa; and
1.2.4 references to persons shall include companies, partnerships, associations and bodies of
persons, whether incorporated or unincorporated.
2. AGREEMENT TO SERVE
Indemnitee agrees to serve as a director and/or an officer of the Company. This Agreement does
not create or otherwise establish any right on the part of Indemnitee to be and continue to be
elected or appointed a director and/or an officer of the Company or any other
Group Company and does not create an employment contract between the Company and Indemnitee.
3. INDEMNITY OF DIRECTOR/OFFICER
3.1 Subject to clause 10, the Company shall indemnify Indemnitee if Indemnitee is a party or
is threatened to be made a party to any threatened, pending or completed Proceeding, including a
Proceeding brought by or in the right of the Company, by reason of the fact that Indemnitee is or
was a director, officer, employee, agent, or fiduciary of the Company or is or was serving at the
request of the Company as a director, officer, employee, agent, or fiduciary of any other company,
corporation, partnership, limited liability company, joint venture, trust, employee benefit plan or
other entity or enterprise or by reason of anything done or not done by Indemnitee in any such
capacity. Subject to clause 10, pursuant to this sub-clause 3.1 Indemnitee shall be indemnified
against expenses (including attorneys fees and disbursements), judgments, penalties, fines and
amounts paid in settlement actually and reasonably incurred by Indemnitee in connection with such
Proceeding (including, but not limited to, the investigation, defense, settlement or appeal
thereof).
3.2 Notwithstanding any other provision of this Agreement other than clause 10, Indemnitee
shall be indemnified against all expenses (including attorneys fees and disbursements) actually
and reasonably incurred by Indemnitee or on Indemnitees behalf in defending any Proceedings
referred to in clause 3.1 in which judgment is given in his favour, in which he is acquitted, or in
respect of which relief is granted to him.
Subject to clause 10, the Company shall indemnify Indemnitee for such portion of the expenses
(including attorneys fees), witness fees, damages, judgments, fines and amounts paid in settlement
and any other amounts that Indemnitee becomes legally obligated to pay in connection with any
Proceeding referred to in clause 3.1 in respect of which Indemnitee is entitled to indemnification
hereunder, even if Indemnitee is not entitled to indemnification hereunder for the total amount
thereof.
4. INDEMNIFICATION FOR EXPENSES OF A WITNESS
Subject to clause 10, to the extent that Indemnitee is, by reason of Indemnitees Corporate
Status, a witness in any proceeding, Indemnitee shall be indemnified by the Company against all
expenses actually and reasonably incurred by Indemnitee or on Indemnitees behalf in connection
therewith.
5. DETERMINATION OF ENTITLEMENT TO INDEMNIFICATION
5.1 Indemnitee shall request indemnification pursuant to this Agreement by notice in writing
to the secretary of the Company. The secretary shall, promptly upon receipt of Indemnitees request
for indemnification, advise in writing the Board or such other person or persons empowered to make
the determination as provided in sub-clause 5.2 that Indemnitee has made such request for
indemnification. Subject to clause 10, upon making such request for indemnification, Indemnitee
shall be presumed to be entitled to indemnification hereunder and
the Company shall have the burden of proof in the making of any determination contrary to such
presumption.
5.2 Upon written request by Indemnitee for indemnification pursuant to sub-clause 3.1, the
entitlement of Indemnitee to indemnification pursuant to the terms of this Agreement shall be
determined by the following person or persons who shall be empowered to make such determination:
5.2.1 the Board, by a majority vote of the Disinterested Directors; or
5.2.2 if such vote is not obtainable or, even if obtainable, if such Disinterested Directors
so direct by majority vote, by Independent Counsel in a written opinion to the Board, a copy of
which shall be delivered to Indemnitee; or
5.2.3 by a majority vote of the shareholders.
5.3 For purposes of sub-clause 5.2, Independent Counsel shall be selected by the Board and
approved by Indemnitee. Upon failure of the Board to so select such Independent Counsel or upon
failure of Indemnitee to so approve, either the Board or Indemnitee may request the International
Chamber of Commerce (the
ICC
) to appoint an Independent Counsel in accordance with the
provisions regarding the appointment of experts contained in the ICCs Rules for Expertise. Such
determination of entitlement to indemnification shall be made not later than 60 days after receipt
by the Company of a written request for indemnification. Such request shall include documentation
or information which is necessary for such determination and which is reasonably available to
Indemnitee. Subject to clause 10, any expenses (including attorneys fees) incurred by Indemnitee
in connection with Indemnitees request for indemnification hereunder shall be borne by the Company
irrespective of the outcome of the determination of Indemnitees entitlement to indemnification.
If the person or persons making such determination shall determine that Indemnitee is entitled to
indemnification as to part (but not all) of the application for indemnification, such persons may
reasonably prorate such partial indemnification among such claims, issues or matters in respect of
which indemnification is requested.
6. ADVANCEMENT OF EXPENSES
All reasonable expenses incurred by Indemnitee (including attorneys fees, retainers and
advances of disbursements required of Indemnitee) shall be paid by the Company in advance of the
final disposition of any Proceeding at the request of Indemnitee as promptly as possible, and in
any event within twenty days after the receipt by the Company of a statement or statements from
Indemnitee requesting such advance or advances from time to time. Indemnitees entitlement to such
expenses shall include those incurred in connection with any Proceeding by Indemnitee seeking an
adjudication or award in arbitration pursuant to this Agreement. Such statement or statements
shall reasonably evidence the expenses incurred by Indemnitee in connection therewith and shall
include or be accompanied by an undertaking by or on behalf of Indemnitee to repay such amount if
it is ultimately determined that Indemnitee is not entitled to be indemnified against such expenses
by the Company as provided by this Agreement or otherwise. Subject to clause 10, the Company shall
have the burden of proof in any
determination under this clause 6. No amounts advanced hereunder shall be deemed an extension of
credit by the Company to Indemnitee.
7. REMEDIES OF INDEMNITEE IN CASES OF DETERMINATION NOT TO INDEMNIFY OR TO ADVANCE EXPENSES
7.1 In the event that: (a) a determination is made that Indemnitee is not entitled to
indemnification hereunder; (b) payment has not been timely made following a determination of
entitlement to indemnification pursuant to clause 5; or (c) expenses are not advanced pursuant to
clause 6, Indemnitee shall be entitled to apply to a court of competent jurisdiction at the place
of incorporation of the Company for a determination of Indemnitees entitlement to such
indemnification or advance.
7.2 Alternatively to sub-clause 7.1, Indemnitee, at Indemnitees option, may seek an award in
arbitration to be conducted by an arbitral tribunal administered by the Swiss Chambers of Commerce
in accordance with the Swiss Rules of International Arbitration in force on the date when the
notice of arbitration is submitted in accordance with the rules set out in this Agreement. The seat
of the arbitration shall be at the place of incorporation of the Company. The arbitral proceedings
shall be conducted in the English language. The Company shall not oppose Indemnitees right to
seek any such adjudication or award in arbitration or any other claim.
7.3 Subject to clause 10, if a determination is made pursuant to the terms of clause 5 that
Indemnitee is entitled to indemnification, the Company shall be bound by such determination and is
precluded from asserting that such determination has not been made or that the procedure by which
such determination was made is not valid, binding and enforceable. If the court or arbitral
tribunal shall determine that Indemnitee is entitled to any indemnification hereunder, the Company
shall pay all reasonable expenses (including attorneys fees and disbursements) actually incurred
by Indemnitee in connection with such adjudication or award in arbitration (including, but not
limited to, any appellate proceedings).
8. OTHER RIGHTS TO INDEMNIFICATION
The indemnification and advancement of expenses (including attorneys fees) provided by this
Agreement shall not be deemed exclusive of any other right to which Indemnitee may now or in the
future be entitled under any provision of the Companys articles of association or organizational
regulations or any agreement, vote of shareholders, the Board or Disinterested Directors, provision
of law, or otherwise, provided, however, that where the Company may indemnify
Indemnitee pursuant to either this Agreement or the articles of association or organizational
regulations of the Company, the Company may indemnify Indemnitee under either this Agreement or the
articles of association or organizational regulations of the Company but Indemnitee shall, in no
case, be indemnified by the Company in
respect of any expense, liability or cost of any type for which payment is or has been actually
made to Indemnitee under any insurance policy, indemnity clause, articles of association or
organizational regulations of the Company or agreement, except in respect of any excess beyond such
payment. This Agreement shall not supersede any indemnification or
other agreements previously entered into between Indemnitee and
Weatherford International Ltd., a Bermuda company, and/or Weatherford
International, Inc., a Delaware corporation, it being the intention
of the Parties that Indemnitee shall be entitled to the
indemnification provided under any or all agreements to the fullest
extent permitted by Swiss or other applicable law.
9. ATTORNEYS FEES AND OTHER EXPENSES TO ENFORCE AGREEMENT
In the event that Indemnitee is subject to or intervenes in any Proceeding in which the
validity or enforceability of this Agreement is at issue or seeks an adjudication or award in
arbitration to enforce Indemnitees rights under, or to recover damages for breach of, this
Agreement, Indemnitee, if Indemnitee prevails in whole or in part in such action, shall be entitled
to recover from the Company and shall be indemnified by the Company against, any actual expenses
for attorneys fees and disbursements reasonably incurred by Indemnitee, provided that in bringing
such action, Indemnitee acted in good faith.
10. LIMITATION OF INDEMNIFICATION
10.1 Notwithstanding any other terms of this Agreement, nothing herein shall indemnify
Indemnitee against, or exempt Indemnitee from, any liability in respect of Indemnitees gross
negligence and willful intent pursuant to Art. 100 § 1 of the Swiss Code of Obligations; provided
however, that to the extent Swiss applicable law changes after the date of this Agreement so that
the Company may, under such law, at the applicable time, indemnify Indemnitee to an extent greater
than provided in this clause 10 (as a result of the restrictions contained in this clause 10), the
Company shall indemnify Indemnitee without regard to the restrictions contained in this clause 10
to the fullest extent permitted under applicable law at such time.
10.2 In addition, notwithstanding any other terms of this Agreement, nothing herein shall
indemnify Indemnitee against, or exempt Indemnitee from, any liability in respect of Indemnitees
fraud and dishonesty.
11. LIABILITY INSURANCE
To the extent the Company maintains an insurance policy or policies providing directors and
officers liability insurance, Indemnitee shall be covered by such policy or policies, in
accordance with its or their terms, to the maximum extent of the coverage available for any Company
director or officer and to the fullest extent permitted by Swiss law.
12. DURATION OF AGREEMENT
This Agreement shall apply with respect to Indemnitees occupation of any of the position(s)
described in sub-clause 3.1 of this Agreement prior to the date of this Agreement and with respect
to all periods of such service after the date of this Agreement, even though Indemnitee may have
ceased to occupy such positions(s).
13. NOTICE OF PROCEEDINGS BY INDEMNITEE
13.1 Indemnitee agrees promptly to notify the Company in writing upon being served with any
summons, citation, subpoena, complaint, indictment, information or other document relating to any
Proceeding which may be subject to indemnification hereunder, provided, however, that the failure
to so notify the Company will not relieve the Company from any liability it may have to Indemnitee
except to the extent that such failure materially prejudices the Companys ability to defend such
claim. With respect to any such Proceeding as to which Indemnitee notifies the Company of the
commencement thereof:
13.1.1 the Company will be entitled to participate therein at its own expense; and
13.1.2 except as otherwise provided below, to the extent that it may wish, the Company jointly
with any other indemnifying party similarly notified will be entitled to assume the defense
thereof, with counsel reasonably satisfactory to Indemnitee. After notice from the Company to
Indemnitee of its election so to assume the defense thereof, the Company will not be liable to
Indemnitee under this Agreement for any legal or other expenses subsequently incurred by Indemnitee
in connection with the defense thereof other than reasonable costs of investigation or as otherwise
provided below. Indemnitee shall have the right to employ Indemnitees own counsel in such
Proceeding, but the fees and expenses of such counsel incurred after notice from the Company of its
assumption of the defense thereof shall be at the expense of Indemnitee and not subject to
indemnification hereunder unless: (a) the employment of counsel by Indemnitee has been authorized
by the Company; (b) in the reasonable opinion of counsel to Indemnitee there is or may be a
conflict of interest between the Company and Indemnitee in the conduct of the defense of such
Proceeding; or (c) the Company shall not in fact have employed counsel to assume the defense of
such action, in each of which cases, subject to clause 10, the fees and expenses of counsel shall
be at the expense of the Company.
13.2 Neither the Company nor Indemnitee shall settle any claim without the prior written
consent of the other (which shall not be unreasonably withheld).
14. NOTICES
Any notice required to be given hereunder shall be in writing in the English language and
shall be served by sending the same by prepaid recorded post, facsimile or by delivering the same
by hand to the address of the Party or Parties in question as set out below (or such other address
as such Party or Parties shall notify the other Parties of in accordance with this clause). Any
notice sent by post as provided in this clause shall be deemed to have been served five Business
Days after dispatch and any notice sent by facsimile as provided in this clause shall be deemed to
have been served at the time of dispatch and in proving the service of the same it will be
sufficient to prove in the case of a letter that such letter was properly stamped, addressed and
placed in the post; and in the case of a facsimile that such facsimile was duly dispatched to a
current facsimile number of the addressee.
Company
Weatherford International Ltd.
Alpenstrasse 15
6304 Zug
Switzerland
Attn: Secretary
Indemnitee
[
]
15. MISCELLANEOUS
15.1 Notwithstanding the expiration or termination of this Agreement howsoever arising, such
expiration or termination shall not operate to affect such of the provisions hereof as are
expressed or intended to remain in full force and effect.
15.2 If any of the clauses, conditions, covenants or restrictions of this Agreement or any
deed or document emanating from it shall be found to be void but would be valid if some part
thereof were deleted or modified, then such clause, condition, covenant or restriction shall apply
with such deletion or modification as may be necessary to make it valid and effective so as to give
effect as nearly as possible to the intent manifested by such clause, condition, covenant or
restriction.
15.3 This Agreement shall be binding upon the Company and its successors and assigns
(including any transferee of all or substantially all of its assets and any successor or resulting
company by merger, amalgamation or operation of law) and shall inure to the benefit of Indemnitee
and Indemnitees spouse, assigns, heirs, estate, devises, executors, administrators or other legal
representatives.
15.4 This Agreement (together with any documents referred to herein) constitutes the whole
agreement between the Parties relating to its subject matter and supersedes any prior
indemnification arrangement between the Company (or its predecessor) and Indemnitee (except as
specifically set forth in clause 8).
15.5 No provision in this Agreement may be amended unless such amendment is agreed to in
writing, signed by Indemnitee and by a duly authorized officer of the Company. No waiver by either
Party of any breach by the other Party of any condition or provision of this Agreement to be
performed by such other Party shall be deemed a waiver of a similar or dissimilar condition or
provision at the same or any prior or subsequent time. Any waiver must be in writing and signed by
Indemnitee or a duly authorized officer of the Company, as the case may be.
15.6 The headings in this Agreement are inserted for convenience only and shall not affect the
construction of this Agreement.
15.7 This Agreement may be executed in counterparts each of which when executed and delivered
shall constitute an original but all such counterparts together shall constitute one and the same
instrument.
15.8 The terms and conditions of this Agreement and the rights of the parties hereunder shall
be governed by and construed in all respects in accordance with the laws of Switzerland. The
Parties to this Agreement hereby irrevocably agree that the court at the place of incorporation of
the Company shall have non-exclusive jurisdiction in respect of any dispute, suit, action,
arbitration or proceedings (
Agreement Proceedings
) which may arise out of or in
connection with this Agreement and waive any objection to Agreement Proceedings in such court on
the grounds of venue or on the basis that the Agreement Proceedings have been brought in an
inconvenient forum.
15.9 All payments made by the Company to Indemnitee hereunder shall be deemed to have been
made in the ordinary course of business of the Company, and shall not be deemed to be extraordinary
payments.
(Remainder of page intentionally left blank)
IN WITNESS WHEREOF, the undersigned, intending to be bound hereby, have duly executed this
Agreement as of the date first written above.
SIGNED by and on behalf of:
THE COMPANY
SIGNED by:
INDEMNITEE
[Signature page to Indemnification Agreement]