As filed with the Securities and Exchange Commission on August 26, 2013
Registration No.
333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form
S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SCHLUMBERGER
N.V.
(SCHLUMBERGER LIMITED)
SCHLUMBERGER INVESTMENT SA
(Exact name of registrant as specified in its
charter)
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Schlumberger Limited
Curaçao
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Schlumberger Investment SA
Luxembourg
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(State or other jurisdiction of
incorporation or organization)
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(State or other jurisdiction of
incorporation or organization)
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1389
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1389
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(Primary Standard Industrial
Classification Code Number)
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(Primary Standard Industrial
Classification Code Number)
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52-0684746
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00-0000000
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(I.R.S. Employer
Identification Number)
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(I.R.S. Employer
Identification Number)
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Schlumberger Limited
42, rue Saint-Dominique
Paris, France 75007
33-1-4062-1000
5599 San Felipe, 17th Floor
Houston, Texas 77056
(713) 375-3400
Parkstraat 83, The Hague
The Netherlands, 2514 JG
31-70-310-5400
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Schlumberger Investment SA
5 Avenue Gaston Diderich
Luxembourg
L-1420
Luxembourg
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(Address, including zip code, and
telephone number, including area code,
of registrant’s principal executive offices)
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(Address, including zip code, and
telephone number, including area code,
of registrant’s principal executive offices)
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Saul R. Laureles
Deputy General Counsel,
Governance and Securities
Schlumberger Limited
5599 San Felipe, 17th Floor
Houston, Texas 77056
(713) 375-3400
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Copy to:
J. David Kirkland
M. Breen Haire
Baker Botts L.L.P.
910 Louisiana Street
Houston, Texas 77002-4995
(713) 229-1234
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(Name, address, including zip code, and telephone
number, including area code, of agent for service)
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Approximate date of commencement of proposed sale of the securities to the public:
From time to time after the effective date of
this Registration Statement, as determined by the Registrant.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following
box.
¨
If any of the securities being registered on this Form are
to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box.
x
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same
offering.
¨
If this Form is a post-effective amendment filed
pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same
offering.
¨
If this Form is a registration statement pursuant to
General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following
box.
x
If this Form is a post-effective amendment to a
registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box.
¨
Indicate by
check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and
“smaller reporting company” in Rule 12b-2 of the Exchange Act (Check one):
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Large accelerated filer
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x
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Accelerated filer
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¨
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Non-accelerated filer
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(Do not check if smaller reporting company)
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Smaller reporting company
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CALCULATION OF REGISTRATION FEE
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Title of Each Class of
Securities to be Registered
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Amount
to be
Registered
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Proposed
Maximum
Offering Price
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Amount of
Registration Fee
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Senior Debt Securities of Schlumberger Investment SA
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(1)
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(1)
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(2)
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Guarantees of Senior Debt Securities of Schlumberger Investment SA by Schlumberger Limited
(3)
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(1)
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(1)
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(2)
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(1)
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Omitted pursuant to General Instructions II.E of Form S-3. An indeterminate amount of securities of each identified class is being registered as may from time to time
be issued at indeterminate prices.
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(2)
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In accordance with Rules 456(b) and 457(r), the Registrant is deferring payment of all of the registration fee.
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(3)
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Pursuant to Rule 457(n), no separate fee is payable with respect to the guarantee.
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PROSPECTUS
Schlumberger Investment SA
Senior Debt Securities
Fully and Unconditionally Guaranteed by
Schlumberger Limited
Schlumberger Investment SA (the “Company”) may, from time to time, offer to sell senior debt securities. Such senior debt
securities will be fully and unconditionally guaranteed by Schlumberger Limited (the “Guarantor”), the ultimate parent company of the Company. Each time we sell securities pursuant to this prospectus, we will provide a supplement to this
prospectus that contains specific information about the offering and the specific terms of the securities offered. You should read this prospectus and the applicable prospectus supplement carefully before you invest in our securities.
Investing in the securities involves risks.
You should consider carefully the risk factors identified in Part I, Item 1A
“Risk Factors” of our most recent Annual Report on Form 10-K, as well as any risk factors we may describe in any subsequent periodic reports or information we file with the SEC, or in any prospectus supplement, before making an investment
in the offered securities.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities
or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this
prospectus is August 26, 2013
Table of contents
You should rely only on the information contained or incorporated by reference in this prospectus and in any accompanying prospectus supplement or in any
related free writing prospectus. Neither the Company nor the Guarantor have authorized any other person to provide you with different information. This document may only be used where it is legal to sell these securities. You should assume that the
information appearing in this prospectus or in any prospectus supplement is accurate as of the date on the front cover of those documents only. The business, properties, assets, results of operations or financial position of the Company and the
Guarantor may have changed since that date. Neither the delivery of this prospectus nor of any prospectus supplement, nor any sale made thereunder, shall under any circumstances imply that the information herein is correct as of any date subsequent
to the date on the cover of those documents. Neither the Company nor the Guarantor is making an offer of these securities in any jurisdiction where the offer is not permitted.
As used in this prospectus, unless otherwise stated or the context otherwise requires:
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the “Company” refers to Schlumberger Investment SA;
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“Guarantor” or “Schlumberger” refers to Schlumberger Limited, the ultimate parent of the Company;
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the “Schlumberger Group” refers to Schlumberger Limited and its consolidated subsidiaries, including the Company; and
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“we,” “us” and “our” and similar expressions refer to Schlumberger Limited and its consolidated subsidiaries, including
the Company, except when used in connection with “securities,” in which case these terms refer to the Company.
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About this Prospectus
This prospectus is part of an automatic shelf registration statement that we have filed with the SEC as a “well-known seasoned issuer” as
defined in Rule 405 under the Securities Act of 1933, as amended.
By using an automatic shelf registration statement, we may, at any time and
from time to time, offer securities under this prospectus in one or more offerings in an unlimited amount. As allowed by the SEC’s rules and regulations, this prospectus does not contain all of the information included in the registration
statement. For further information, we refer you to the registration statement, including its exhibits. Statements contained in this prospectus about the provisions or contents of any agreement or other document are not necessarily complete. If the
SEC’s rules and regulations require that an agreement or document be filed as an exhibit to the registration statement, please see that agreement or document for a complete description of these matters.
This prospectus provides you with a general description of the securities we may offer. Each time we use this prospectus to offer securities, we will
provide you with a prospectus supplement and, if applicable, a pricing supplement that will describe the specific amounts, prices and terms of the securities being offered. The prospectus supplement and any pricing supplement may also add, update or
change information contained in this prospectus. Therefore, if there is any inconsistency between the information in this prospectus, the prospectus supplement and any pricing supplement, you should rely on the information in the prospectus
supplement and any pricing supplement. You should not assume that the information in this prospectus, any prospectus supplement or any pricing supplement is accurate as of any date other than the date of such document.
To understand the terms of the securities, you should carefully read this document, the applicable prospectus supplement and any applicable pricing
supplement. Together, they give the specific terms of the securities we are offering. You should also read the documents we have referred you to under “Where You Can Find More Information” below for information about the Schlumberger Group
and Schlumberger’s financial statements. You can read the registration statement and exhibits on the SEC’s website or at the SEC as described under “Where You Can Find More Information.”
About the Guarantor
The Guarantor, together with its subsidiaries, is the world’s leading supplier of technology, integrated project management and information solutions to the international oil and gas exploration and
production industry, and provides the industry’s widest range of products and services from exploration through production.
The
Guarantor was founded in 1926 and incorporated under the then applicable laws of the Netherlands Antilles as a public limited company on November 6, 1956 for an unlimited duration. The Netherlands Antilles dissolved on October 10, 2010
and, pursuant to such dissolution, the Guarantor is now governed by the applicable laws of Curaçao. It is entered in the Curaçao Commercial Register with company number 1674. The Guarantor is the ultimate parent of the Company.
The Guarantor has principal executive offices in Paris, Houston and The Hague. The principal United States market for Schlumberger’s
common stock is the NYSE, where it is traded under the symbol “SLB.”
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About the Company
Legal and organizational status
Schlumberger Investment SA is a Société Anonyme incorporated on August 18, 2011 under the laws of the Grand Duchy of Luxembourg and
registered with the Luxembourg Register of Commerce and Companies under number B 163.122. Schlumberger Investment SA’s registered office is at 5 Avenue Gaston Diderich,
L-1420
Luxembourg and its telephone
number is +352 2744 8402.
The Company is part of the Schlumberger Group and all of the shares of the Company are owned indirectly by the
Guarantor.
Activities
The
Company has no subsidiaries, and its principal activities are debt issuance and intercompany group financing.
Where You Can Find More Information
The Guarantor files annual, quarterly and other reports and other information with the SEC. You
may read and download its filings over the Internet from several commercial document retrieval services, as well as at the SEC’s website at www.sec.gov. You may also read and copy its SEC filings at the SEC’s public reference room located
at 100 F Street N.E., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information concerning the public reference room and any applicable copy charges. You may also inspect its SEC reports and other information at the New
York Stock Exchange, 20 Broad Street, New York, New York 10005.
In addition, the Guarantor’s SEC filings are available on its website at
www.slb.com at no cost as soon as reasonably practicable after its electronic filing or furnishing thereof with the SEC. Please note that any internet addresses provided in this prospectus are for informational purposes only and are not intended to
be hyperlinks. Accordingly, no information found or provided at such internet addresses is intended or deemed to be incorporated by reference herein.
Incorporation of Documents by Reference
The SEC allows us to
incorporate information into this prospectus “by reference,” which means that we can disclose important information to you by referring you to another document that the Guarantor has filed separately with the SEC. The information
incorporated by reference is deemed to be part of this prospectus, except for any information superseded by information contained directly in this prospectus. These documents contain important information about the Schlumberger Group and its
financial condition, business and results.
We are incorporating by reference into this prospectus the following documents listed below and
any other filings made by the Guarantor under Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this prospectus and prior to the termination of any offering; except that we are not incorporating by reference any
information furnished (but not filed) under Item 2.02 or Item 7.01 of any Current Report on Form 8-K, unless specifically noted below or in a prospectus supplement or pricing supplement:
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the Annual Report on Form 10-K of Schlumberger Limited for the fiscal year ended December 31, 2012, as filed with the SEC on January 31,
2013;
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the Quarterly Reports on Form 10-Q of Schlumberger Limited for the quarter ended March 31, 2013, as filed with the SEC on April 24, 2013, and
for the quarter ended June 30, 2013, as filed with the SEC on July 24, 2013; and
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the Current Reports on Form 8-K of Schlumberger Limited as filed with the SEC on February 11, 2013; April 11, 2013; May 15, 2013; and June
17, 2013.
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Any statement contained in this prospectus and any accompanying prospectus or in a document incorporated or
deemed to be incorporated by reference in this prospectus and any accompanying prospectus shall be deemed to be modified or superseded for purposes of this prospectus to the extent that a statement contained in this prospectus and any accompanying
prospectus or in any other document subsequently filed with the SEC that is or is deemed to be incorporated by reference in this prospectus and any accompanying prospectus modifies or supersedes such statement. No such statement so modified or
superseded shall be deemed, except as so modified or superseded, to constitute a part of this prospectus and any accompanying prospectus.
If
information in any of these incorporated documents conflicts with information in this prospectus you should rely on the most recent information. If information in an incorporated document conflicts with information in another incorporated document,
you should rely on the information in the most recent incorporated document.
You may request a copy of any document that we incorporate by
reference at no cost, excluding all exhibits to such incorporated documents unless we have specifically incorporated by reference such exhibits either in this prospectus or in the incorporated document, by making such a request in writing or by
telephone to the following address:
Schlumberger Limited 5599 San Felipe Street, 17th Floor Houston, Texas 77056 (713)
375-3400 Attention: Investor Relations
Except as provided above, no other information (including information on our website) is incorporated
by reference into this prospectus.
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Cautionary Statement Regarding Forward-Looking Statements
This prospectus and the documents incorporated by reference herein include “forward-looking statements” within the meaning of
the U.S. Private Securities Litigation Reform Act of 1995. The opinions, forecasts, projections, or other statements other than statements of historical fact, are forward-looking statements. Similarly, statements that describe future plans,
objectives or goals or future revenues or other financial metrics are also forward-looking statements. Although we believe that the expectations reflected in such forward-looking statements are reasonable, we can give no assurances that such
expectations will prove to have been correct.
Statements that are predictive in nature, that depend upon or refer to future events or
conditions, or that include words such as “would,” “should,” “plans,” “likely,” “expects,” “anticipates,” “intends,” “believes,” “estimates,”
“thinks,” “may” and similar expressions, are forward-looking statements. The following important factors, in addition to those discussed under “Risk Factors” in the documents incorporated by reference herein, could
affect the future results of the energy industry in general, and the Company and the Guarantor in particular, and could cause those results to differ materially from those expressed in or implied by such forward-looking statements:
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the Schlumberger Group’s forecasts or expectations regarding business outlook;
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growth for the Schlumberger Group as a whole and for each of its segments (and for specified products or geographic areas within each segment);
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oil and natural gas demand and production growth;
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oil and natural gas prices;
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the Schlumberger Group’s effective tax rate;
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improvements in operating procedures and technology;
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capital expenditures by the Schlumberger Group and the oil and gas industry;
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the business strategies of the Schlumberger Group’s customers;
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future global economic conditions; and
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future results of operations.
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These statements are subject to risks and uncertainties, including, but not limited to:
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global economic conditions;
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changes in exploration and production spending by the Schlumberger Group’s customers and changes in the level of oil and natural gas exploration
and development;
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general economic, political and business conditions in key regions of the world;
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weather and seasonal factors;
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changes in government regulations and regulatory requirements, including those related to offshore oil and gas exploration, radioactive sources,
explosives, chemicals, hydraulic fracturing services and climate-related initiatives;
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the inability of technology to meet new challenges in exploration; and
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other risks and uncertainties detailed in the Guarantor’s filings with the SEC.
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All subsequent written and oral forward-looking statements attributable to the Company or the Guarantor or to persons acting on their behalf are
expressly qualified in their entirety by reference to these risks and uncertainties. You should not place undue reliance on forward-looking statements. Each forward-looking
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statement speaks only as of the date of the particular statement, and we undertake no obligation to publicly update or revise any forward-looking statements except as required by law.
Use of Proceeds
Unless we otherwise state in a prospectus supplement or pricing supplement, we will use the net proceeds from the sale of the offered securities for general corporate purposes of the Schlumberger Group.
General corporate purposes may include repayment of debt, additions to working capital, capital expenditures, investments in subsidiaries, possible acquisitions and the repurchase, redemption or retirement of securities, including the
Guarantor’s common stock. The net proceeds may be temporarily invested or applied to repay short-term or revolving debt prior to use.
Ratios of Earnings to Fixed Charges
The following table sets
forth the Guarantor’s and its consolidated subsidiaries’ historical ratios of earnings to fixed charges for the periods indicated. This information should be read in conjunction with the Guarantor’s and its consolidated
subsidiaries’ consolidated financial statements and the accompanying notes incorporated by reference in this prospectus.
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Six
Months
Ended
June 30,
2013
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Years Ended December 31,
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2012
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2011
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2010
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2009
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2008
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Ratios of earnings to fixed charges
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13.2x
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11.2x
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11.3x
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12.3x
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10.0x
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14.7x
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Earnings available for fixed charges represent earnings before income taxes, noncontrolling interests and fixed charges
excluding capitalized interest, net of amortization, reduced by undistributed earnings of the Guarantor’s less than 50% owned affiliates. Fixed charges represent interest expense, amortization of debt discount and expenses, capitalized
interest, plus that portion of rental expense deemed to be the equivalent of interest. Interest expense excludes interest related to uncertain tax positions, which has been included in the provision for income taxes.
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Description of Debt Securities
The following is a general description of the debt securities that the Company may issue from time to time. The particular terms of the debt securities
offered by any prospectus supplement and the extent, if any, to which the general provisions described below may apply to those securities will be described in the applicable prospectus supplement. As you read this section, please remember that the
specific terms of a debt security as described in the applicable prospectus supplement will supplement and may modify or replace the general terms described in this section. If there are any differences between the applicable prospectus supplement
and this prospectus, the applicable prospectus supplement will control. As a result, the statements we make in this section may not apply to the debt security you purchase.
As used in this “Description of Debt Securities,” the terms “we,” “us” and “our” and similar expressions refer to the Company and not to any of its consolidated
subsidiaries; and the terms “Guarantor” and “Schlumberger” refer to our parent company, Schlumberger Limited, and not to any of its subsidiaries, in each case unless otherwise stated or the context otherwise requires.
Certain defined terms used in this description but not defined below have the meanings assigned to them in the indenture.
General
The debt securities that we may
issue will be senior debt securities that will be issued under an indenture, which we refer to as the indenture, to be entered into among us, Schlumberger Limited, as guarantor, and The Bank of New York Mellon, as trustee. In addition, the indenture
may be supplemented or amended as necessary to set forth the terms of the debt securities issued under the indenture. The Guarantor will fully and unconditionally guarantee the debt securities under a guarantee contained in the indenture (the
“Guarantee”). You should read the indenture, including any amendments or supplements, carefully to fully understand the terms of the debt securities. The form of the indenture has been filed as an exhibit to the registration statement of
which this prospectus is a part. The indenture is subject to, and is governed by, the Trust Indenture Act of 1939, as amended.
Any debt
securities that we may issue will be our unsubordinated obligations. They will rank equally with each other and all of our other unsubordinated debt, unless otherwise indicated in the applicable prospectus supplement.
The indenture does not limit the amount of debt securities that can be issued thereunder and provides that the debt securities of any series may be
issued thereunder up to the aggregate principal amount that we may authorize from time to time. Unless otherwise provided in the applicable prospectus supplement, the indenture does not limit the amount of other indebtedness or securities that we
may issue. We may issue debt securities of the same series at more than one time and, unless prohibited by the terms of the series, we may reopen a series for issuances of additional debt securities without the consent of the holders of the
outstanding debt securities of that series. All debt securities issued as a series, including those issued pursuant to any reopening of a series, will vote together as a single class.
Reference is made to the prospectus supplement for the following and other possible terms of each series of the debt securities with respect to which this prospectus is being delivered:
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the title of the debt securities;
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the aggregate principal amount of the debt securities of the series to be issued;
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any limit upon the aggregate principal amount of the debt securities of that series that may be authenticated and delivered under the indenture, except
for debt securities authenticated and delivered upon registration of transfer of, or in exchange for or in lieu of, other debt securities of that series;
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the date or dates on which the principal and premium, if any, of the debt securities of the series is payable;
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the rate or rates, which may be fixed or variable, at which the debt securities of the series shall bear interest or the manner of calculation of such
rate or rates, if any, including any procedures to vary or reset such rate or rates, and the basis upon which interest will be calculated if other than that of a 360-day year of twelve 30-day months;
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the place or places where the principal of and interest, if any, on the debt securities of the series shall be payable, where the debt securities of
such series may be surrendered for registration of transfer or exchange and where notices and demands to or upon us with respect to the debt securities of such series and the indenture may be served, and the method of such payment, if by wire
transfer, mail or other means if other than as set forth in the indenture;
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the date or dates from which such interest shall accrue, the dates on which such interest will be payable or the manner of determination of such dates,
and the record date for the determination of holders to whom interest is payable on any such dates;
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any trustees, authenticating agents or paying agents with respect to such series, if different from those set forth in the indenture;
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the right, if any, to extend the interest payment periods or defer the payment of interest and the duration of such extension or deferral;
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the period or periods within which, the price or prices at which and the terms and conditions upon which, debt securities of the series may be redeemed
by the Company, in whole or in part, at our option;
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our obligation, if any, to redeem, purchase or repay debt securities of the series pursuant to any sinking fund or analogous provisions, including
payments made in cash in anticipation of future sinking fund obligations, or at the option of a holder thereof and the period or periods within which, the price or prices at which, and the terms and conditions upon which, debt securities of the
series shall be redeemed, purchased or repaid, in whole or in part, pursuant to such obligation;
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the form of the debt securities of the series including the form of the trustee’s certificate of authentication for such series;
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if other than denominations of $2,000 or integral multiples of $1,000 in excess thereof, the denominations in which the debt securities of the series
shall be issuable;
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the currency or currencies in which payment of the principal of, premium, if any, and interest on, debt securities of the series shall be payable;
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if other than the principal amount thereof, the portion of the principal amount of the debt securities of the series that shall be payable upon
declaration of acceleration of the maturity thereof;
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the terms of any repurchase or remarketing rights;
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if the debt securities of the series shall be issued in whole or in part in the form of a global security or securities, the type of global security to
be issued; the terms and conditions, if different from those contained in the indenture, upon which such global security or securities may be exchanged in whole or in part for other individual securities in definitive registered form; the depositary
for such global security or securities; and the form of any legend or legends to be borne by any such global security or securities in addition to or in lieu of the legends referred to in the indenture;
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any additional restrictive covenants or events of default that will apply to the debt securities of the series, or any changes to the restrictive
covenants or events of default set forth in the indenture that will apply to the debt securities of the series, which may consist of establishing different terms or provisions from those set forth in the indenture or eliminating any such restrictive
covenant or event of default with respect to the debt securities of the series;
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any provisions granting special rights to holders when a specified event occurs;
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if the amount of principal or any premium or interest on debt securities of a series may be determined with reference to an index or pursuant to a
formula, the manner in which such amounts will be determined;
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any special tax implications of the debt securities, including provisions for original issue discount securities, if offered;
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whether and upon what terms debt securities of a series may be defeased if different from the provisions set forth in the indenture;
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whether the debt securities of the series will be issued as unrestricted securities or restricted securities, and, if issued as restricted securities,
the rule or regulation promulgated under the Securities Act in reliance on which they will be sold;
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any guarantees on the debt securities of the series, if different from the provisions set forth in the indenture;
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•
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the provisions, if any, relating to any security provided for the debt securities of the series;
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•
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any depositaries, interest rate calculation agents, exchange rate calculation agents or other agents with respect to debt securities of such series if
other than those appointed in the indenture;
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•
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whether the debt securities of the series will be convertible into or exchangeable for other debt securities, common shares or other securities of any
kind of the Company or another obligor, and, if so, the terms and conditions upon which such debt securities will be so convertible or exchangeable, including the initial conversion or exchange price or rate or the method of calculation, how and
when the conversion price or exchange ratio may be adjusted, whether conversion or exchange is mandatory, at the option of the holder or at the Company’s option, the conversion or exchange period, and any other provision in addition to or in
lieu of those described herein;
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•
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any and all additional, eliminated or changed terms that shall apply to the debt securities of the series, including any terms that may be required by
or advisable under United States laws or regulations, including the Securities Act and the rules and regulations promulgated thereunder, or advisable in connection with the marketing of debt securities of that series; and
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•
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with regard to the debt securities of any series that do not bear interest, the dates for certain required reports to the trustee.
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We will comply with Section 14(e) under the Exchange Act, to the extent applicable, and any other tender offer rules
under the Exchange Act that may then be applicable, in connection with any obligation to purchase debt securities at the option of the holders thereof. Any such obligation applicable to a series of debt securities will be described in the prospectus
supplement relating thereto.
Unless otherwise described in a prospectus supplement relating to any debt securities, there are no covenants or
provisions contained in the indenture that may afford the holders of debt securities protection in the event that we enter into a highly leveraged transaction.
The statements made hereunder relating to the indenture and any debt securities that we may issue are summaries of certain provisions thereof and are qualified in their entirety by reference to all
provisions of the indenture and the debt securities and the descriptions thereof, if different, in the applicable prospectus supplement.
Guarantees
Schlumberger will fully and
unconditionally guarantee the due and punctual payment of the principal of, and any premium and interest on, the debt securities, and all other amounts payable under the indenture when and as they become due and payable, whether at maturity, upon
acceleration, by call for redemption, repayment or otherwise
8
in accordance with the terms of the indenture. The debt securities will not be guaranteed by any of the Guarantor’s subsidiaries.
Schlumberger will:
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•
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agree that, if an event of default occurs under any of the debt securities, its obligations under the guarantees will be absolute and unconditional and
will be enforceable irrespective of any invalidity, irregularity or unenforceability of the indenture or any supplement thereto; and
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•
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waive its right to require the trustee or the holders of any of the debt securities to pursue or exhaust their legal or equitable remedies against the
Company before exercising their rights under the guarantees.
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Ranking of the Debt Securities and the Guarantee
The debt securities of any series will be:
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•
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senior unsecured obligations of the Company and will rank equally and ratably with all of the Company’s other unsecured and unsubordinated
indebtedness; and
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•
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guaranteed on a senior unsecured basis by the Guarantor, which Guarantee will rank equally and ratably with all other unsecured and unsubordinated
indebtedness of the Guarantor.
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Additional Amounts
All payments made by the Company under or with respect to its debt securities, or by the Guarantor with respect to the Guarantee, will be made free and clear of and without withholding or deduction for,
or on account of, any present or future tax, duty, levy, assessment or other governmental charge, including any related interest, penalties or additions to tax (“Taxes”) unless the withholding or deduction of such Taxes is then required by
law or by interpretation or administration of law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on behalf of (1) any jurisdiction in which the Company (or a successor), or the Guarantor (or a
successor), is then incorporated, organized or resident for tax purposes or any political subdivision thereof or therein (each, a “Relevant Tax Jurisdiction”) or (2) any jurisdiction from or through which payment is made by or on
behalf of the Company, or the Guarantor (including the jurisdiction of any Paying Agent for the applicable debt securities) or any political subdivision thereof or therein (each, together with each Relevant Tax Jurisdiction, a “Tax
Jurisdiction”) will at any time be required to be made from any payments made or deemed made by or on behalf of the Company under or with respect to its debt securities, as applicable, or the Guarantor under or with respect to the Guarantee,
including payments of principal, redemption price, interest or premium, the Company or the Guarantor, as applicable, will pay such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received in
respect of such payments by each beneficial owner of the applicable debt securities after such withholding, deduction or imposition (including any such withholding, deduction or imposition from such Additional Amounts) will equal the respective
amounts that would have been received in respect of such payments in the absence of such withholding or deduction; provided, however, that no Additional Amounts will be payable with respect to:
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(1)
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any Taxes, to the extent such Taxes would not have been imposed but for the existence of any actual or deemed present or former connection between the holder or the
beneficial owner of such debt securities and the applicable Tax Jurisdiction (including, without limitation, being or having been a national, resident or citizen of, being or having been engaged in a trade or business in, being or having been
physically present in, or having or having had a permanent establishment in, such jurisdiction for Tax purposes), other than the holding of such debt securities, the enforcement of rights under such debt securities or under the Guarantee or the
receipt of any payments in respect of such debt securities or Guarantee;
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(2)
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any Taxes, to the extent such Taxes were imposed as a result of the presentation of such debt securities for payment (where presentation is required)
more than 30 days after the relevant payment is first made
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9
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available for payment to the holder (except to the extent that the holder would have been entitled to Additional Amounts had the applicable debt securities been presented on the last day of such
30 day period);
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(3)
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any estate, inheritance, gift, sales, transfer, personal property or similar Taxes;
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(4)
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any Tax imposed on or with respect to any payment by the Company or Guarantor to the holder if such holder is a fiduciary, partnership, limited liability company or
other person other than the sole beneficial owner of such payment to the extent that Taxes would not have been imposed on such payment had such holder been the sole beneficial owner of such debt securities;
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(5)
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any Taxes withheld, deducted or imposed on a payment to an individual that are required to be made pursuant to European Council Directive 2003/48/EC or any other
directive implementing the conclusions of the ECOFIN Council meeting of November 26 and 27, 2000 on the taxation of savings income, or any law implementing or complying with or introduced in order to conform to, such directive;
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(6)
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Taxes imposed on or with respect to a payment made to a holder of such debt securities who would have been able to avoid such withholding or deduction by presenting
such debt securities (where presentation is required) to another paying agent;
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(7)
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any Taxes payable other than by deduction or withholding from payments under, or with respect to, such debt securities or the Guarantee;
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(8)
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any Taxes to the extent such Taxes are imposed or withheld by reason of the failure of the holder or beneficial owner of such debt securities to comply with any written
request of the Company or the Guarantor addressed to the holder to satisfy any certification, identification, information or other reporting requirements, whether required by statute, treaty, regulation or administrative practice of the applicable
Tax Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the applicable Tax Jurisdiction (including, without limitation, a certification that the holder or beneficial owner is
not resident in such Tax Jurisdiction), but in each case, only to the extent the holder or beneficial owner is legally entitled to provide such certification or documentation; or
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(9)
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any combination of items (1) through (8) above.
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In addition to the foregoing, the Company and the Guarantor, as the case may be, will also pay and indemnify the holder for any present or future stamp, issue, registration, court or documentary Taxes, or
any other excise or property Taxes, charges or similar levies (including penalties, interest and any other reasonable expenses related thereto) which are levied by an applicable Tax Jurisdiction on the execution, delivery, issuance, or registration
of its debt securities, or the related indenture, Guarantee or any other document or instrument referred to therein.
If the Company or the
Guarantor, as the case may be, becomes aware that it will be obligated to pay Additional Amounts with respect to any payment under or with respect to its debt securities or the Guarantee, the Company or the Guarantor, as the case may be, will
deliver to the trustee on a date that is at least 30 days prior to the date of that payment (unless the obligation to pay Additional Amounts arises fewer than 45 days prior to that payment date, in which case the Company or Guarantor shall notify
the trustee promptly thereafter) an officer’s certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The officer’s certificate(s) must also set forth any other information reasonably
necessary to enable the paying agents to pay such Additional Amounts to holders on the relevant payment date. The trustee shall be entitled to rely solely on such officer’s certificate as conclusive proof that such payments are necessary.
The Company or the Guarantor, as the case may be, will make all withholdings and deductions required by law in respect of its debt
securities, and will remit the full amount deducted or withheld to the applicable Tax authority in accordance with applicable law. The Company or the Guarantor will use its reasonable efforts to obtain Tax receipts from each Tax authority evidencing
the payment of any Taxes so deducted or withheld. Upon reasonable
10
written request, the Company or the Guarantor will furnish to the trustee (or to a holder or beneficial owner upon written request), within a reasonable time after the date the payment of any
Taxes so deducted or withheld is made, certified copies of Tax receipts evidencing payment by the Company or Guarantor, as the case may be, or if, notwithstanding such entity’s efforts to obtain receipts, receipts are not obtained, other
evidence of payments (reasonably satisfactory to the trustee) by such entity.
Whenever in the indenture or in this “Description of Debt
Securities” there is mentioned, in any context, the payment of amounts based upon the principal amount of the debt securities or of principal, interest or of any other amount payable under, or with respect to, any of the debt securities or any
Guarantee, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
The above obligations will survive any termination, defeasance or discharge of the indenture, any transfer by a holder or beneficial owner of its debt
securities, and will apply, mutatis mutandis, to any jurisdiction in which any successor person to the Company or the Guarantor is incorporated, organized or resident for tax purposes or any jurisdiction from or through which payment is made by or
on behalf of such person on the applicable debt securities (or any Guarantee) and any political subdivision thereof or therein.
Optional
Redemption
If specified in the applicable prospectus supplement, the Company may redeem the debt securities of any series, as a whole or
in part, at its option on and after the dates and in accordance with the terms established for such series, if any, in the applicable prospectus supplement. If the Company redeems the debt securities of any series, the Company also must pay accrued
and unpaid interest, if any, to the date of redemption on such debt securities (subject to the right of holders of such debt securities on the relevant record date to receive interest due on the relevant interest payment date and Additional Amounts
(if any) in respect thereof).
Redemption Upon Changes in Tax Law
The Company or the Guarantor, as applicable, may redeem the debt securities (and the Guarantor may redeem any debt securities which it has guaranteed), in whole but not in part, at its discretion at any
time upon giving not less than 30 nor more than 60 days’ prior notice to the holders of such debt securities (which notice will be irrevocable), at a redemption price equal to 100% of the aggregate principal amount thereof, together with
accrued and unpaid interest, if any, to the date fixed by the Company or Guarantor, as applicable, for redemption (a “Tax Redemption Date”) and all Additional Amounts (if any) then due and which will become due on the Tax Redemption Date
as a result of the redemption or otherwise (subject to the right of holders of such debt securities on the relevant record date to receive interest due on the relevant interest payment date and Additional Amounts (if any) in respect thereof), if on
the next date on which any amount would be payable in respect of such debt securities, the Company or the Guarantor, as applicable, is or would be required to pay Additional Amounts, and the Company or Guarantor cannot avoid any such payment
obligation by taking reasonable measures available to it, and the requirement arises as a result of:
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(1)
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any amendment to, or change in, the laws (or any regulations or rulings promulgated thereunder) of a Relevant Tax Jurisdiction which change or amendment becomes
effective on or after the issue date (or, if the applicable Relevant Tax Jurisdiction became a Relevant Tax Jurisdiction on a date after the issue date of the relevant debt securities, such later date), or
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(2)
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any amendment to, or change in, an official interpretation or application of such laws, regulations or rulings (including by virtue of a holding, judgment, order by a
court of competent jurisdiction or a change in published administrative practice) which amendment or change becomes effective on or after the issue date (or, if the applicable Relevant Tax Jurisdiction became a Relevant Tax Jurisdiction on a date
after the issue date of the relevant debt securities, such later date).
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11
Neither the Company nor the Guarantor, as applicable, will give any such notice of redemption earlier than
90 days prior to the earliest date on which the Company or Guarantor, as applicable, would be obligated to make such payment or withholding if a payment in respect of the applicable debt securities was then due, and the obligation to pay Additional
Amounts must be in effect at the time such notice is given. Prior to giving any notice of redemption of the debt securities of such series pursuant to the foregoing, the Company or the Guarantor, as applicable, will deliver to the trustee an opinion
of independent tax counsel to the effect that there has been such amendment or change which would entitle the Company or the Guarantor to redeem such debt securities hereunder. In addition, before the Company or the Guarantor, as applicable, gives
notice of redemption of such debt securities as described above, it will deliver to the trustee an officer’s certificate to the effect that it cannot avoid its obligation to pay Additional Amounts by the Company or the Guarantor, as applicable,
taking reasonable measures available to it.
The trustee will accept and shall be entitled to rely on such officer’s certificate and
opinion of counsel as sufficient evidence of the existence and satisfaction of the conditions precedent as described above, in which event it will be conclusive and binding on the holders of the debt securities of such series.
The foregoing will also apply
to any jurisdiction in which any successor person to the Company or the Guarantor is incorporated or organized, or
any jurisdiction from or through which payment is made by or on behalf of such person on the debt securities of such series (or any Guarantee) and any political subdivision thereof or therein.
Selection and Notice
If fewer than all
of the debt securities of a series are to be redeemed at any time, the trustee will select the debt securities of such series for redemption on a pro rata basis (or, in the case of debt securities issued in global form as discussed under
“—Book-Entry, Delivery and Form,” based on a method that most nearly approximates a pro rata selection as the trustee deems fair and appropriate) unless otherwise required by law or applicable stock exchange or depository
requirements.
No debt securities in principal amount of less than the minimum authorized denomination can be redeemed in part. Notices of
redemption will be mailed by first class mail at least 30 but not more than 60 days before the redemption date to each holder of debt securities of such series to be redeemed at its registered address, except that redemption notices may be mailed
more than 60 days prior to a redemption date if the notice is issued in connection with a defeasance of the debt securities of such series or a satisfaction and discharge of the indenture or any supplement thereto.
If any debt security is to be redeemed in part only, the notice of redemption that relates to that debt security will state the portion of the principal
amount of that debt security that is to be redeemed. A new debt security in principal amount equal to the unredeemed portion of the original debt security will be issued in the name of the holder of the original debt security upon cancellation of
the original debt security. Debt securities called for redemption become due on the date fixed for redemption. On and after the redemption date, interest ceases to accrue on the debt securities or portions of the debt securities called for
redemption unless the Company or the Guarantor defaults in payment of the redemption price.
The trustee will not be liable for selections
made by it as contemplated in this section. For any debt securities which are represented by global securities held on behalf of the relevant Debt Depository, notices may be given by delivery of the relevant notices to the relevant Debt Depository
for communication to entitled account holders in substitution for the aforesaid mailing.
Reports
So long as any debt securities are outstanding, the Guarantor shall file with the trustee, within 15 days after the Guarantor files with the SEC, 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 SEC may from time to time by rules and regulations
12
prescribe) that the Guarantor may be required to file with the SEC pursuant to Section 13 or Section 15(d) of the Exchange Act. The Guarantor shall be deemed to have complied with the
previous sentence to the extent that such information, documents and reports are filed with the SEC via EDGAR, or any successor electronic delivery procedure. The trustee shall not have any obligation to determine if and when the Guarantor’s
information is available on the SEC’s (EDGAR) website. The Guarantor shall either (i) provide the trustee with prompt written notification at such time as the Guarantor becomes or ceases to be a reporting company or (ii) continue to
provide the trustee with the foregoing information. Delivery of such reports, information and documents to the trustee is for informational purposes only and the trustee’s receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained therein, including compliance by us or the Guarantor with any covenants under the indenture (as to which the trustee is entitled to rely exclusively on officer’s
certificates).
Certain Covenants
Other than the restrictions on liens described below, the indenture and the debt securities will not contain any covenants or other provisions designed to protect holders of the debt securities in the
event of a highly leveraged transaction. The indenture and the debt securities also do not contain provisions that give holders of the debt securities the right to require the Company or the Guarantor to repurchase any debt securities in the event
of a decline in credit rating resulting from a takeover, recapitalization or similar restructuring or otherwise. The indenture governing the debt securities will not obligate us to provide, and we do not intend to provide, holders of the debt
securities with financial statements of any of the Company that are separate from the Guarantor’s.
Limitation on Liens
The Guarantor will not, and will not permit any of its subsidiaries to, incur, issue, assume or guarantee any notes, bonds, debentures or
other similar evidences of indebtedness for money borrowed, secured by a mortgage on any restricted property, or on any shares of stock, ownership interests in, or indebtedness of a restricted subsidiary, without effectively providing concurrently
with the incurrence, issuance, assumption or guarantee of such secured indebtedness that the debt securities (together with, if the Company or the Guarantor shall so determine, any of its other indebtedness or the indebtedness of any such restricted
subsidiary then existing or thereafter created ranking on a parity with the debt securities or guarantees) shall be secured equally and ratably with (or prior to) such secured indebtedness, so long as such secured indebtedness shall be so secured,
unless, after giving effect thereto, the aggregate amount of all such secured indebtedness (excluding any indebtedness secured by mortgages of the types referred to in clauses (1) through (10) below) would not exceed 20% of consolidated
net worth as shown on the Guarantor’s most recent consolidated quarterly financial statements; provided, however, that these provisions shall not apply to:
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(1)
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mortgages existing on the date of original issuance of any debt securities;
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(2)
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mortgages on property or assets of, or on any shares of stock, ownership interests in or indebtedness of, any person existing at the time such person becomes a
subsidiary (including a restricted subsidiary) of the Company or the Guarantor;
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(3)
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mortgages on property or assets existing at the time of acquisition thereof (including acquisition through merger or consolidation) or to secure the payment of all or
any part of the purchase price or cost of construction, development, expansion or improvement thereof or to secure any indebtedness incurred prior to, at the time of, or within 12 months after, the acquisition or completion of construction,
development, expansion or improvement of such property or assets or its commencement of commercial operations for the purpose of financing all or any part of the purchase price or cost of construction, development, expansion or improvement thereof;
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(4)
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mortgages in favor of the Company, the Guarantor or any other subsidiary of the Guarantor;
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(5)
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the mortgage of any of the Guarantor’s property or assets or any property or assets of any of its restricted subsidiaries in favor of the United
States of America, the Grand Duchy of Luxembourg or
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any other sovereign entity, or any state, province or other political subdivision thereof, or any entity, department, agency, instrumentality or comparable authority thereof, to secure partial,
progress, advance or other payments pursuant to the provisions of any contract, statute, law, rule or regulation;
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(6)
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the mortgage of any property or assets to secure indebtedness of the pollution control, industrial revenue or other revenue bond type;
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(7)
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mortgages incurred or deposits made (including mortgages and deposits securing letters of credit or similar financial assurance) to secure the performance of or in
connection with bids, tenders, statutory, governmental or private contractual or other obligations, surety, performance, completion, appeal or similar bonds, leases, return-of-money bonds and other obligations similar to any of the foregoing, in
each case in the ordinary course of business;
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(8)
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mortgages arising by operation of law, including but not limited to mortgages for taxes, assessments or similar charges that are not yet due or the validity of which is
being contested in good faith by appropriate proceedings;
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(9)
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mortgages created in connection with the acquisition of property or assets, or a project financed with, non-recourse debt; and
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(10)
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any extension, renewal or replacement (or successive extensions, renewals or replacements), as a whole or in part, of any mortgage referred to in the foregoing clauses,
inclusive; provided, that such extension, renewal or replacement mortgage shall be limited to all or a part of the same property or assets that secured the mortgage extended, renewed or replaced, plus improvements on such property or assets.
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The foregoing covenant and certain other provisions of the indenture use the following defined terms.
“capital stock” means (a) in the case of a corporation, corporate stock; (b) in the case of an association or business entity, any
and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock; (c) in the case of a partnership or limited liability company, partnership interests (whether general or limited) or membership
interests; and (d) any other interest or participation that confers on a person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing person, but excluding from all of the foregoing any debt
securities convertible into capital stock, whether or not such debt securities include any right of participation with capital stock.
“consolidated net worth” means the amount of total stockholders’ equity shown in the Guarantor’s most recent quarterly consolidated
statement of financial position.
“mortgage” means and includes any mortgage, pledge, lien, security interest, conditional sale or
other title retention agreement or other similar encumbrance.
“non-recourse debt” means indebtedness as to which (a) neither
the Company, the Guarantor nor any of its other subsidiaries (x) provides credit support of any kind or (y) is directly or indirectly liable as a guarantor or otherwise and (b) as to which the lenders have been notified in writing
that they will not have any recourse to the stock or assets of the Company, the Guarantor or any of its other subsidiaries.
“person” means any individual, corporation, partnership, limited liability company, association, joint venture, trust, joint stock company or
any other entity or organization, including a government or political subdivision or an agency or instrumentality thereof.
“restricted
property” means any real property, manufacturing plant, warehouse, office building or other physical facility, or any item of marine, transportation or construction equipment or other like depreciable assets of the Guarantor or any of its
restricted subsidiaries, whether owned on or acquired after the original issue date of the debt securities, unless, in the opinion of the board of directors of the Guarantor, such plant or facility or other asset is not of material importance to the
total business conducted by the Guarantor and its restricted subsidiaries taken as a whole.
14
“restricted subsidiary” means any subsidiary of the Guarantor which owns a restricted property.
“subsidiary” means, with respect to any specified person, (a) any corporation, association or other business entity of which
more than 50% of the total voting power of shares of capital stock entitled (without regard to the occurrence of any contingency and after giving effect to any voting agreement or stockholders’ agreement that effectively transfers voting power)
to vote in the election of directors, managers or trustees of the corporation, association or other business entity is at the time owned or controlled, directly or indirectly, by that person or one or more of the other subsidiaries of that person
(or a combination thereof); and (b) any partnership or limited liability company of which (x) more than 50% of the capital accounts, distribution rights, total equity and voting interests or general and limited partnership interests, as
applicable, are owned or controlled, directly or indirectly, by such person or one or more of the other subsidiaries of that person or a combination thereof, whether in the form of membership, general, special or limited partnership interests or
otherwise, and (y) such person or any subsidiary of such person is a controlling general partner or otherwise controls such entity.
Consolidation, Merger and Sale of Assets
Neither the Company nor the Guarantor may consolidate with or merge into any other person or transfer or lease all or substantially all of its assets to
any person unless any successor or purchaser (if the Company or the Guarantor, as applicable, is not the surviving entity) expressly assumes its obligations under the debt securities by an indenture supplemental to the indenture to which the Company
or the Guarantor is a party to, and immediately after which, no event of default, and no event which, after notice or lapse of time, or both, would become an event of default, shall have happened and be continuing. An officer’s certificate and
an opinion of counsel will be delivered to the trustee, which will serve as conclusive evidence of compliance with these provisions.
Assumption by an Affiliate
Any
subsidiary of the Guarantor may, at its option, assume the obligations of the Company under the indenture and the debt securities, provided that:
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(a)
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such subsidiary shall expressly assume such obligations in an assumption agreement or supplemental indenture duly executed and delivered to the trustee, and
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(b)
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immediately after giving effect to such assumption, 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.
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Upon any such assumption, the person so assuming the Company’s obligations under
the indenture and the debt securities shall succeed to, and be substituted for, and may exercise any right and power of, the Company under such debt securities and the indenture with the same effect as if such person had been the issuer thereof, and
the Company shall be released from its liability as obligor under such debt securities. An officer’s certificate and an opinion of counsel will be delivered to the trustee, which will serve as conclusive evidence of compliance with these
provisions.
An assumption of the Company’s obligations as the issuer of the debt securities by a subsidiary of the Guarantor may be
treated for U.S. federal income tax purposes as a taxable exchange of the Company’s debt securities for new debt securities issued by such subsidiary of the Guarantor. In that event, beneficial owners of such debt securities may recognize
taxable gain for U.S. federal income tax purposes, as well as other possible adverse tax consequences. Beneficial owners of debt securities who are U.S. persons for U.S. federal income tax purposes should consult their tax advisors regarding the
U.S. federal, state and local income tax consequences of an assumption of the Company’s obligations as issuer of debt securities by a subsidiary of the Guarantor.
15
Events of Default
The following are “Events of Default” with respect to debt securities of a particular series, except to the extent provided in the officer’s certificate, supplemental indenture or
resolution of the board of directors pursuant to which a series of debt securities is issued:
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•
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the Company’s failure to pay any interest on any of the debt securities of such series within 30 days after such interest becomes due and payable;
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•
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the Company’s failure to pay principal on any of the debt securities of such series at maturity, or if applicable, the redemption price, when the
same become due and payable;
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•
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the Company’s failure to pay any sinking fund installment as and when the same shall become due and payable by the terms of the debt securities of
such series, and continuance of such default for a period of 30 days;
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•
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the Company’s failure to comply with any of its covenants or agreements in any of the debt securities of such series or the indenture (other than
an agreement or covenant that the Company has included in the indenture solely for the benefit of another series of debt securities that does not constitute part of the Company’s debt securities of such series) for 90 days after written notice
by the trustee or by the holders of at least 25% in principal amount of all outstanding debt securities of such series of debt securities;
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•
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except as permitted by the indenture, the Guarantee of such series of the Company’s debt securities is held in any judicial proceeding to be
unenforceable or invalid or ceases for any reason to be in full force and effect, or the Guarantor, or any authorized person acting on behalf of the Guarantor, denies or disaffirms the Guarantor’s obligations under its Guarantee; and
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•
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certain events involving bankruptcy, insolvency or reorganization of the Company or the Guarantor.
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A default under one series of debt securities issued under the indenture will not necessarily be a default under another series of debt securities under
the indenture. The trustee may withhold notice to the holders of the debt securities issued under the indenture of any default or event of default (except in any payment on the debt securities of such series) if the trustee considers it in the
interest of the holders of the debt securities of that series to do so.
If an event of default for a series of the Company’s debt
securities occurs and is continuing, the trustee or the holders of at least 25% in principal amount of the outstanding debt securities of that series may require the Company to pay immediately the principal amount plus accrued and unpaid interest on
such debt securities of that series. If an event of default relating to certain events of bankruptcy, insolvency or reorganization occurs with respect to the Company (or with respect to the Guarantor), the principal amount plus accrued and unpaid
interest on the Company’s debt securities of that series (or in the case of the Guarantor, all debt securities) will become immediately due and payable without any action on the part of the trustee or any holder. The holders of a majority in
principal amount of such outstanding debt securities of such series may in some cases rescind this accelerated payment requirement.
A holder
of debt securities of any series may pursue any remedy under the indenture applicable to the debt securities of that series only if:
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the holder gives the trustee written notice of a continuing event of default for such debt securities;
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the holders of at least 25% in principal amount of the debt securities of such series then outstanding make a written request to the trustee to pursue
the remedy;
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the holder furnishes to the trustee indemnity reasonably satisfactory to the trustee;
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the trustee fails to act for a period of 60 days after receipt of notice and furnishing of indemnity; and
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during that 60-day period, the holders of a majority in principal amount of the outstanding debt securities of that series do not give the trustee a
direction inconsistent with the request.
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16
This provision does not, however, affect the right of any holder to sue for enforcement of any overdue
payment with respect to the debt securities of such series.
In most cases, holders of a majority in principal amount of the outstanding debt
securities of any series issued by the Company (or of all outstanding debt securities affected, voting as one class) may direct the time, method and place of:
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conducting any proceeding for any remedy available to the trustee with respect to the debt securities of such series; and
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exercising any trust or power conferred on the trustee not relating to or arising under an event of default with respect to the debt securities of such
series.
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The indenture requires the Company to file with the trustee each year a written statement as to its compliance with
the covenants contained in the indenture.
Modification and Waiver
Except as provided in the next two succeeding paragraphs, the indenture or the debt securities of any series or Guarantee may be amended or supplemented, and waivers may be obtained, with the consent of
the holders of at least a majority in aggregate principal amount of the outstanding debt securities of such series (including, without limitation, additional debt securities of such series, if any) voting as a single class (including, without
limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, debt securities of such series), and any existing default or Event of Default (other than a default or Event of Default in the payment of the
principal of, premium on, if any, interest or Additional Amounts, if any, on, debt securities of such series, except a payment default resulting from an acceleration that has been rescinded) or compliance with any provision of the indenture or the
debt securities of such series or Guarantee may be waived with the consent of the holders of a majority in aggregate principal amount of the outstanding debt securities of such series (including, without limitation, additional debt securities of
such series, if any) voting as a single class (including, without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of debt securities of, such series).
Without the consent of each holder of outstanding debt securities of any series, an amendment, supplement or waiver may not (with respect to any debt
securities held by a non-consenting holder):
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reduce the amount of debt securities of such series whose holders must consent to an amendment, supplement or waiver;
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reduce the rate of or change the time for payment of interest on the debt securities of such series;
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reduce the principal or change the stated maturity of any debt securities of such series;
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reduce any premium payable on the redemption of any debt security of such series or change the time at which any debt security of such series may or
must be redeemed;
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change any obligation to pay Additional Amounts on the debt securities of such series;
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make payments on any debt security of such series payable in currency other than as originally stated in such debt security;
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impair the holder’s right to institute suit for the enforcement of any payment on any debt security of such series;
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make any change in the percentage of principal amount of the debt securities of such series necessary to waive compliance with certain provisions of
the indenture the debt securities of such series were issued under or to make any change in this provision for modification; or
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waive a continuing default or Event of Default regarding any payment on the debt securities.
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17
Notwithstanding the preceding, without the consent of any holder of debt securities of any series, the
Company, the Guarantor and the trustee may amend or supplement the indenture, the applicable debt securities of any series or the Guarantee in certain circumstances, including:
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to cure any ambiguity, omission, defect or inconsistency;
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to provide for the assumption of the Company’s or the Guarantor’s obligations under the indenture, and such series of debt securities or the
Guarantee, as applicable, by a successor upon any merger, consolidation or asset transfer in accordance with the requirements under “—Consolidation, Merger and Sale of Assets” or to provide for the assumption of the Company’s
obligations under the indenture by a subsidiary of the Guarantor in accordance with the requirements under “—Assumption by an Affiliate” above;
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to provide for uncertificated debt securities of any series in addition to or in place of certificated debt securities;
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to provide any security for or guarantees of the debt securities or for the addition of an additional obligor on the debt securities;
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to comply with any requirement to effect or maintain the qualification of the indenture under the Trust Indenture Act of 1939, as amended, if
applicable;
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to add covenants that would benefit the holders of any outstanding series of debt securities or to surrender any rights the Company has under the
indenture;
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to change or eliminate any of the provisions of the indenture, provided that any such change or elimination shall not become effective with respect to
any outstanding debt security of any series created prior to the execution of such supplemental indenture which is entitled to the benefit of such provision;
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to provide for the issuance of and establish forms and terms and conditions of a new series of debt securities;
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to permit or facilitate the defeasance and discharge of the debt securities;
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to issue additional debt securities of any series; provided that such additional debt securities have the same terms as, and be deemed part of the same
series as, the applicable series of debt securities to the extent required under the indenture;
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to evidence and provide for the acceptance of appointment by a successor trustee with respect to the debt securities of one or more series and to add
to or change any of the provisions of the indenture as shall be necessary to provide for or facilitate the administration of the trust by more than one trustee;
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to add additional Events of Default with respect to any series of debt securities; and
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to make any change that does not adversely affect any of its outstanding debt securities of such series in any material respect.
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No Personal Liability of Directors, Officers, Employees, Stockholders and Certain Others
No director, officer, employee, incorporator or similar founder, stockholder or member of the Company or the Guarantor, as such, will have any liability
for any obligations of the Company or the Guarantor under the applicable debt securities, indenture or Guarantee or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each holder of debt securities by
accepting a debt security waives and releases all such liability. The waiver and release are part of the consideration for issuance of the debt securities. The waiver may not be effective to waive liabilities under the federal securities laws.
18
Defeasance
The term defeasance means the discharge of the Company from some or all of its obligations under the indenture to which it is a party. If the Company deposits with the trustee funds or government
obligations (as defined in the indenture) sufficient to make payments on any particular series of debt securities on the dates those payments are due and payable, then, at the Company’s option, either of the following will occur:
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it will be discharged from its obligations with respect to the debt securities of such series, except as described in the paragraph immediately below
(“legal defeasance”); or
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it will no longer have any obligation to comply with the restrictive covenants under the indenture with respect to the debt securities of such series,
and the related Events of Default will no longer apply to the Company (“covenant defeasance”).
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We may exercise
our legal defeasance option notwithstanding our prior exercise of our covenant defeasance option. If we defease any series of debt securities, the holders of the defeased debt securities will not be entitled to the benefits of the indenture under
which such debt securities were issued, except for the Company’s obligations to register the transfer or exchange of debt securities of such series, replace stolen, lost or mutilated debt securities, maintain paying agencies, hold moneys for
payment in trust and to compensate and indemnify the trustee. In the case of covenant defeasance, the Company’s obligation to pay principal, premium and interest on the debt securities of such series will also survive.
In addition to the other requirements, we will be required to deliver to the trustee an opinion of counsel that the deposit and related defeasance would
not cause the beneficial owners of the debt securities of such series to recognize income, gain or loss for U.S. federal income tax purposes. If the Company elects legal defeasance, that opinion of counsel must be based upon a ruling from the United
States Internal Revenue Service addressed to the Company or trustee or a change in law to that effect.
Concerning the Trustee
The Bank of New York Mellon is trustee under the indenture. The trustee performs services for the Guarantor and its subsidiaries in the
ordinary course of business.
If an Event of Default occurs and is continuing, the trustee will be required to use the degree of care and
skill of a prudent man in the conduct of his own affairs. The trustee will become obligated to exercise any of its powers under the indenture at the request of any of the holders of any debt securities issued under the indenture only after those
holders have furnished the trustee indemnity reasonably satisfactory to it.
If the trustee becomes a creditor of the Company, it will be
subject to limitations in the indenture to which the Company is a party on its rights to obtain payment of claims or to realize on certain property received for any such claim, as security or otherwise. The trustee is permitted to engage in other
transactions with us. If, however, it acquires any conflicting interest, it must eliminate such conflict, resign or obtain an order from the Securities and Exchange Commission permitting it to remain as trustee.
Paying Agent and Registrar for the Debt Securities
The Company will maintain one or more paying agents (each, a “Paying Agent”) for any debt securities we issue in the Borough of Manhattan, City of New York. The Company will undertake to
maintain a Paying Agent in a member state of the European Union that is not obligated to withhold or deduct tax pursuant to the European Union Directive 2003/48/EC or any other directive implementing the conclusions of the ECOFIN Council meeting of
26 and 27 November 2000 on the taxation of savings income, or any law implementing, or complying with or introduced in order to conform to, such directive. The Company, upon written notice to the trustee accompanied by an officer’s
certificate, may appoint one or more paying agents, other than the trustee, for all or
19
any series of such debt securities. If we fail to appoint or maintain another entity as paying agent, the trustee shall act as such. The Company, the Guarantor or any of the Guarantor’s
subsidiaries, upon notice to the trustee, may act as paying agent.
The Company will also maintain one or more registrars (each, a
“Registrar”) with an office in the Borough of Manhattan, City of New York. The Company, upon written notice to the trustee accompanied by an officer’s certificate, may appoint one or more registrars, other than the trustee, for all or
any series of debt securities. If we fail to appoint or maintain another entity as registrar, the trustee shall act as such. The Company, the Guarantor or any of the Guarantor’s subsidiaries, upon notice to the trustee, may act as registrar.
The Company will also maintain a transfer agent with an office in the Borough of Manhattan, City of New York. Each transfer agent shall
perform the functions of a transfer agent. The Company, upon written notice to the trustee accompanied by an officer’s certificate, may appoint one or more transfer agents, other than the trustee, for all or any series of debt securities. If we
fail to appoint or maintain another entity as transfer agent, the trustee shall act as such. The Company, the Guarantor or any of the Guarantor’s subsidiaries, upon notice to the trustee, may act as transfer agent.
The Registrar will maintain a register reflecting ownership of debt securities outstanding from time to time and the Paying Agent will make payments on
and facilitate transfer of debt securities on the behalf of the Company.
The Company may change any Paying Agents, Registrars or transfer
agents without prior notice to the holders of debt securities.
Book-Entry, Delivery and Form
The debt securities of a series may be issued in whole or in part in the form of one or more global securities that will be deposited with, or on behalf
of, a depository (a “Debt Depository”) identified in the applicable prospectus supplement. Global securities may be issued in either registered or bearer form and in either temporary or permanent form. Unless otherwise provided in such
prospectus supplement, debt securities that are represented by a global security will be issued in authorized denominations and will be issued in registered form only, without coupons.
We anticipate that the Debt Depository for the debt securities shall be, and any global securities will be deposited with, or on behalf of, The Depository Trust Company (“DTC”), and that such
global securities will be registered in the name of Cede & Co., DTC’s nominee. We further anticipate that the following provisions will apply to the depository arrangements with respect to any such global securities. Any additional or
differing terms of the depository arrangements will be described in the prospectus supplement relating to a particular series of debt securities issued in the form of global securities.
Beneficial interests in the global securities will be represented through book-entry accounts of financial institutions acting on behalf of beneficial owners as direct or indirect participants in DTC.
Investors may elect to hold their interests in the global securities in DTC (in the United States) through its direct and indirect
participants, including Clearstream or Euroclear. Investors may hold their interests in the global securities directly if they are participants of such systems, or indirectly through organizations that are participants in these systems. Clearstream
and Euroclear will hold interests on behalf of their participants through customers’ securities accounts in Clearstream’s and Euroclear’s names on the books of their respective U.S. depositaries, which in turn will hold these
interests in customers’ securities accounts in the depositaries’ names on the books of DTC. Beneficial interests in the global securities will be held in authorized denominations. Except as set forth below, the global securities may be
transferred, in whole and not in part, only to another nominee of DTC or to a successor of DTC or its nominee.
20
Debt securities represented by a global security can be exchanged for definitive securities in registered
form only if:
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DTC notifies us that it is unwilling or unable to continue as Debt Depository for that global security and we do not appoint a successor Debt
Depository within 90 days after receiving that notice;
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at any time DTC ceases to be a clearing agency registered or in good standing under the Securities Exchange Act of 1934, as amended, or other
applicable statute or regulation and we do not appoint a successor depositary within 90 days after becoming aware that DTC has ceased to be registered as a clearing agency; or
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we determine that that global security will be exchangeable for definitive securities in registered form and notify the trustee of such decision in
writing.
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A global security that can be exchanged as described in the preceding sentence will be exchanged for definitive
securities issued in authorized denominations in registered form for the same aggregate amount. The definitive securities will be registered in the names of the owners of the beneficial interests in the global security as directed by DTC.
We will make principal and interest payments on all debt securities represented by a global security to a Paying Agent which in turn will
make payment to DTC or its nominee, as the case may be, as the sole registered owner and the sole holder of the debt securities represented by a global security for all purposes under the indenture. Accordingly, we, the Guarantor, the trustee, any
Paying Agent, Registrar or transfer agent will have no responsibility or liability for:
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any aspect of DTC’s records relating to, or payments made on account of, beneficial ownership interests in a debt security represented by a global
security; or
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any other aspect of the relationship between DTC and its participants or the relationship between those participants and the owners of beneficial
interests in a global security held through those participants; or the maintenance, supervision or review of any of DTC’s records relating to those beneficial ownership interests.
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DTC has advised us that its current practice is to credit participants’ accounts on each payment date with payments in amounts proportionate to
their respective beneficial interests in the principal amount of such global security as shown on DTC’s records, upon DTC’s receipt of funds and corresponding detail information. The underwriters or agents for the debt securities
represented by a global security will initially designate the accounts to be credited. Payments by participants to owners of beneficial interests in a global security will be governed by standing instructions and customary practices, as is the case
with securities held for customer accounts registered in “street name,” and will be the sole responsibility of those participants. Book-entry notes may be more difficult to pledge because of the lack of a physical note.
DTC
So long as DTC or its
nominee is the registered owner of a global security, DTC or its nominee, as the case may be, will be considered the sole owner and holder of the debt securities represented by that global security for all purposes of the debt securities. Except as
set forth above, owners of beneficial interests in the debt securities will not be entitled to have debt securities registered in their names, will not receive or be entitled to receive physical delivery of the debt securities in definitive form and
will not be considered owners or holders of debt securities under the indenture. Accordingly, each person owning a beneficial interest in a global security must rely on the procedures of DTC and, if that person is not a DTC participant, on the
procedures of the participant through which that person owns its interest, to exercise any rights of a holder of debt securities. The laws of some jurisdictions require that certain purchasers of securities take physical delivery of the securities
in certificated form. These laws may impair the ability to transfer beneficial interests in a global security. Beneficial owners
21
may experience delays in receiving distributions on their debt securities since distributions will initially be made to DTC and must then be transferred through the chain of intermediaries to the
beneficial owner’s account.
We understand that, under existing industry practices, if we request holders to take any action, or if an
owner of a beneficial interest in a global security desires to take any action which a holder is entitled to take under the indenture, then DTC would authorize the participants holding the relevant beneficial interests to take that action and those
participants would authorize the beneficial owners owning through such participants to take that action or would otherwise act upon the instructions of beneficial owners owning through them.
Beneficial interests in a global security will be shown on, and transfers of those ownership interests will be effected only through, records maintained by DTC and its participants for that global
security. The conveyance of notices and other communications by DTC to its participants and by its participants to owners of beneficial interests in the debt securities will be governed by arrangements among them, subject to any statutory or
regulatory requirements in effect.
DTC has advised us that it is a limited-purpose trust company organized under the New York Banking Law, a
“banking organization” within the meaning of the New York Banking Law, a member of the Federal Reserve System, a “clearing corporation” within the meaning of the New York Uniform Commercial Code and a “clearing agency”
registered pursuant to Section 17A of the Exchange Act.
DTC holds the securities of its participants and facilitates the clearance and
settlement of securities transactions among its participants in such securities through electronic book-entry changes in accounts of its participants. The electronic book-entry system eliminates the need for physical certificates. DTC’s
participants include both U.S. and non-U.S. securities brokers and dealers, including underwriters, banks, trust companies, clearing corporations and certain other organizations. DTC is a wholly-owned subsidiary of The Depository Trust &
Clearing Corporation (“DTCC”). DTCC is the holding company for DTC, National Securities Clearing Corporation and Fixed Income Clearing Corporation, all of which are registered clearing agencies. DTCC is owned by the users of its regulated
subsidiaries. Access to the DTC system is also available to others such as both U.S. and non-U.S. securities brokers and dealers, banks, trust companies and clearing corporations that clear through or maintain a custodial relationship with a
participant, either directly or indirectly. The rules applicable to DTC and its participants are on file with the SEC.
The information in
this section concerning DTC and DTC’s book-entry system has been obtained from sources that we believe to be reliable, but we take no responsibility for the accuracy thereof.
Clearstream
Clearstream has advised us that it is incorporated under the laws of
Luxembourg as a professional depositary. Clearstream holds securities for its participating organizations, or Clearstream Participants, and facilitates the clearance and settlement of securities transactions between Clearstream Participants through
electronic book-entry changes in accounts of Clearstream Participants, thereby eliminating the need for physical movement of certificates. Clearstream provides to Clearstream Participants, among other things, services for safekeeping,
administration, clearance and settlement of internationally traded securities and securities lending and borrowing. Clearstream interfaces with domestic securities markets in several countries. As a registered bank in Luxembourg, Clearstream is
subject to regulation by the Luxembourg Commission for the Supervision of the Financial Sector (Commission de Surveillance du Secteur Financier). Clearstream Participants are recognized financial institutions around the world, including
underwriters, securities brokers and dealers, banks, trust companies and clearing corporations. In the U.S., Clearstream Participants are limited to securities brokers and dealers and banks. Indirect access to Clearstream is also available to
others, such as banks, brokers, dealers and trust companies that clear through or maintain a custodial relationship with a Clearstream Participant either directly or indirectly. Clearstream is an indirect participant in DTC.
22
Distributions with respect to debt securities held beneficially through Clearstream will be credited to cash
accounts of Clearstream Participants in accordance with its rules and procedures, to the extent received by the U.S. Depositary for Clearstream.
Euroclear
Euroclear has advised us that it was created in 1968 to hold securities
for participants of Euroclear, or Euroclear Participants, and to clear and settle transactions between Euroclear Participants through simultaneous electronic book-entry delivery against payment, thereby eliminating the need for physical movement of
certificates and any risk from lack of simultaneous transfers of securities and cash. Euroclear performs various other services, including securities lending and borrowing and interacts with domestic markets in several countries. The Euroclear
System is owned by Euroclear Clearance System Public Limited Company (ECSplc) and operated through Euroclear Bank S.A/N.V., or the Euroclear Operator, a bank incorporated under the laws of the Kingdom of Belgium, under contract with Euroclear
Clearance Systems S.C., a Belgian cooperative corporation, or the Cooperative. All operations are conducted by the Euroclear Operator, and all Euroclear securities clearance accounts and Euroclear cash accounts are accounts with the Euroclear
Operator, not the Cooperative. The Cooperative establishes policy for Euroclear on behalf of Euroclear Participants. Euroclear Participants include banks, including central banks, securities brokers and dealers and other professional financial
intermediaries. Indirect access to Euroclear is also available to other firms that clear through or maintain a custodial relationship with a Euroclear Participant, either directly or indirectly.
The Euroclear Operator advises us that it is regulated and examined by the Belgian banking and Finance Commission and the National Bank of Belgium.
Securities clearance accounts and cash accounts with the Euroclear Operator are governed by the Terms and Conditions Governing Use of
Euroclear and the related Operating Procedures of the Euroclear System, and applicable Belgian law, herein the Terms and Conditions. The Terms and Conditions govern transfers of securities and cash within Euroclear, withdrawals of securities and
cash from Euroclear, and receipts of payments with respect to securities in Euroclear. All securities in Euroclear are held on a fungible basis without attribution of specific certificates to specific securities clearance accounts. The Euroclear
Operator acts under the Terms and Conditions only on behalf of Euroclear Participants, and has no record of or relationship with persons holding through Euroclear Participants.
Distributions with respect to debt securities held beneficially through Euroclear will be credited to the cash accounts of Euroclear Participants in accordance with the Terms and Conditions, to the extent
received by the U.S. Depositary for Euroclear.
Euroclear has further advised us that investors that acquire, hold and transfer interests in
the debt securities by book-entry through accounts with the Euroclear Operator or any other securities intermediary are subject to the laws and contractual provisions governing their relationship with their intermediary, as well as the laws and
contractual provisions governing the relationship between such an intermediary and each other intermediary, if any, standing between themselves and the global securities.
Global Clearance and Settlement Procedures
Initial settlement for the debt securities will
be made in immediately available funds. Secondary market trading between DTC participants will occur in the ordinary way in accordance with DTC rules and will be settled in immediately available funds using DTC’s Same-Day Funds Settlement
System. Secondary market trading between Clearstream Participants and/or Euroclear Participants will occur in the ordinary way in accordance with the applicable rules and operating procedures of Clearstream and Euroclear and will be settled using
the procedures applicable to conventional eurobonds in immediately available funds.
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Cross-market transfers between persons holding directly or indirectly through DTC, on the one hand, and
directly or indirectly through Clearstream Participants or Euroclear Participants, on the other, will be effected through DTC in accordance with DTC rules on behalf of the relevant European international clearing system by its U.S. Depositary;
however, such cross-market transactions will require delivery of instructions to the relevant European international clearing system by the counterparty in such system in accordance with its rules and procedures and within its established deadlines
(European time). The relevant European international clearing system will, if the transaction meets its settlement requirements, deliver instructions to its U.S. Depositary to take action to effect final settlement on its behalf by delivering or
receiving debt securities through DTC, and making or receiving payment in accordance with normal procedures for same-day funds settlement applicable to DTC. Clearstream Participants and Euroclear Participants may not deliver instructions directly to
their respective U.S. Depositaries.
Because of time-zone differences, credits of debt securities received through Clearstream or Euroclear as
a result of a transaction with a DTC participant will be made during subsequent securities settlement processing and dated the business day following the DTC settlement date. Such credits or any transactions in such debt securities settled during
such processing will be reported to the relevant Euroclear Participants or Clearstream Participants on such business day. Cash received in Clearstream or Euroclear as a result of sales of debt securities by or through a Clearstream Participant or a
Euroclear Participant to a DTC participant will be received with value on the DTC settlement date but will be available in the relevant Clearstream or Euroclear cash account only as of the business day following settlement in DTC.
If the debt securities are cleared only through Euroclear and Clearstream (and not DTC), you will be able to make and receive through Euroclear and
Clearstream payments, deliveries, transfers, exchanges, notices, and other transactions involving any securities held through those systems only on days when those systems are open for business. Those systems may not be open for business on days
when banks, brokers, and other institutions are open for business in the United States. In addition, because of time-zone differences, U.S. investors who hold their interests in the securities through these systems and wish to transfer their
interests, or to receive or make a payment or delivery or exercise any other right with respect to their interests, on a particular day may find that the transaction will not be effected until the next business day in Luxembourg or Brussels, as
applicable. Thus, U.S. investors who wish to exercise rights that expire on a particular day may need to act before the expiration date.
Although DTC, Clearstream and Euroclear have agreed to the foregoing procedures in order to facilitate transfers of debt securities among participants of
DTC, Clearstream and Euroclear, they are under no obligation to perform or continue to perform such procedures and such procedures may be modified or discontinued at any time. None of the Company, the trustee, the Registrar, any Paying Agent or any
transfer agent will have any responsibility for the performance by DTC, Euroclear or Clearstream or their respective direct or indirect participants of their obligations under the rules and procedures governing their operations.
Plan of Distribution
We may sell the securities offered pursuant to this prospectus in any of the following ways:
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directly to one or more purchasers;
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through underwriters, brokers or dealers; or
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through a combination of any of these methods of sale.
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We will identify the specific plan of distribution, including any underwriters, brokers, dealers, agents or direct purchasers and their compensation in a prospectus supplement.
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Validity of the Securities
The validity of the debt securities offered hereby will be passed upon for us by Baker Botts L.L.P., Houston, Texas.
Experts
The financial statements and management’s assessment of the effectiveness of internal control over financial reporting (which is included in Management’s Report on Internal Control over
Financial Reporting) incorporated in this prospectus by reference to the Guarantor’s Annual Report on Form 10-K for the year ended December 31, 2012 have been so incorporated in reliance on the report of PricewaterhouseCoopers LLP, an
independent registered public accounting firm, given on the authority of that firm as experts in auditing and accounting.
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PART II — INFORMATION NOT REQUIRED IN PROSPECTUS
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Item 14.
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Other Expenses of Issuance and Distribution
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The following table sets forth the estimated expenses, other than underwriting discounts and commissions, to be paid by us in connection with the offering of the securities registered hereby. The assumed
amount has been used to demonstrate the expenses of an offering and does not represent an estimate of the amount of securities that may be registered or distributed because such amount is unknown at this time. All amounts shown are estimates, except
the registration fee.
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Item
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Amount
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SEC registration fee
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(1
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Printing expenses
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(2
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Legal fees and expenses
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(2
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Accounting fees and expenses
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(2
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Trustee fees and expenses
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(2
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Miscellaneous expenses
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(2
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Total
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(2
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(1)
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In accordance with Rules 456(b) and 457(r) of the Securities Act of 1933, we are deferring payment of all of the registration fee for the securities offered by this
registration statement.
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(2)
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An estimate of the aggregate amount of these expenses will be reflected in the applicable prospectus supplement.
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Item 15.
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Indemnification of Directors and Officers
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Schlumberger
Article 10 of Schlumberger’s Articles of Incorporation and
Article V of Schlumberger’s Amended and Restated By-laws contain provisions providing for indemnification of Schlumberger’s directors, officers, employees and agents. Article 10 of the Articles of Incorporation permits (but does not
require) Schlumberger to indemnify directors, officers, employees and agents, except that indemnification is mandatory with respect to a current or former officer or director in the event of a “Change of Control” (as defined below) or if
such current or former officer or director has been successful on the merits or otherwise in the defense of any action, suit or proceeding. Article V of Schlumberger’s Amended and Restated By-laws contains mandatory indemnification for current
and former directors and officers as described below.
To the fullest extent permitted by applicable law, Schlumberger will indemnify any
person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of Schlumberger)
by reason of the fact that he or she is or was a director, officer, employee or agent of Schlumberger, or is or was serving at the request of Schlumberger as a director, officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise or entity, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding if such person
acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of Schlumberger, and, with respect to any criminal action or proceeding, had no reasonable cause to believe that such person’s
conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, does not, of itself, create a presumption that the person did not act in good
faith and in a manner which such person reasonably believed to be in or not opposed to the best interests of Schlumberger, and, with respect to any criminal action or proceeding, had reasonable cause to believe that such person’s conduct was
unlawful.
II-1
Schlumberger is required to indemnify any current or former officer or director of
Schlumberger to the fullest extent allowed by the preceding paragraphs in the event of a “Change of Control.” “Change of Control” means a change in control of Schlumberger, which will be deemed to have occurred if at any time:
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•
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any entity, person or organization is or becomes the legal or beneficial owner, directly or indirectly, of securities of Schlumberger representing 30%
or more of the combined voting power of Schlumberger’s then outstanding shares without the prior approval of at least two-thirds of the members of our board of directors in office immediately prior to such entity, person or organization
attaining such percentage interest;
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•
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Schlumberger is a party to a merger, consolidation, share exchange, sale of assets or other reorganization, or a proxy contest, as a consequence of
which members of our board of directors in office immediately prior to such transaction or event constitute less than a majority of our board of directors thereafter; or
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•
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during any 15-month period, individuals who at the beginning of such period constituted our board of directors (including for this purpose any new
director whose election or nomination for election by Schlumberger’s stockholders was approved by a vote of at least two-thirds of the directors then still in office who were directors at the beginning of such period) cease for any reason to
constitute at least a majority of our board of directors.
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To the fullest extent permitted by applicable law, Schlumberger
shall indemnify any current or former director or officer who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of Schlumberger to procure a judgment in
Schlumberger’s favor by reason of the fact that such person is or was a director, officer, employee or agent of Schlumberger, or is or was serving at the request of Schlumberger as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise or entity against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with the defense or
settlement of such action or suit if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of Schlumberger and except that no indemnification may be made with respect to any
claim, issue or matter as to which such person has been finally adjudged to be liable to Schlumberger for improper conduct unless and only to the extent that the court in which that action or suit was brought or any other court having appropriate
jurisdiction determines upon application that, despite the adjudication of liability, but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for those expenses, judgments, fines and amounts paid
in settlement which the court in which the action or suit was brought or such other court having appropriate jurisdiction deems proper. Schlumberger is required to indemnify any present or former officer or director to the fullest extent allowed by
this paragraph in the event of a Change of Control (as defined above).
Any indemnification under the preceding three paragraphs (unless
ordered by a court) may be extended to current or former employees or agents of Schlumberger only as authorized by the Chief Executive Officer or by contract approved, or by-laws, resolution or other action adopted or taken, by Schlumberger’s
board of directors or by Schlumberger’s stockholders.
Expenses (including attorneys’ fees) incurred by a current or former director
or a current officer in defending any civil or criminal, administrative or investigative action, suit or proceeding will be paid by Schlumberger in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by
or on behalf of such person to repay such amount if it is ultimately determined that such person is not entitled to be indemnified by Schlumberger.
Schlumberger may pay such expenses (including attorneys’ fees) incurred by former officers or other employees and agents upon such terms and conditions, if any, it deems appropriate.
II-2
The indemnification and advancement of expenses described above are not exclusive of any other rights to
which those seeking indemnification or advancement of expenses may be entitled under any law, by-law, agreement, vote of stockholders or disinterested directors, or otherwise, both as to action in such person’s official capacity and as to
action in another capacity while holding such office, and, unless otherwise provided when authorized or ratified, continues as to a person who has ceased to be a director, officer, employee or agent and inures to the benefit of the heirs, executors
and administrators of that person.
Schlumberger has the power to purchase and maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of Schlumberger, or is or was serving at the request of Schlumberger in such a capacity for another corporation, partnership, joint venture, trust or other enterprise or entity against any liability asserted
against that person and incurred by that person in any of those capacities or arising out of such person’s status as such, whether or not Schlumberger would have the power to indemnify such person against such liability.
References to Schlumberger include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent)
absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, and employees or agents, so that any person who is or was a director, officer, employee or
agent of such constituent, or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise or entity, stands in the same
position with respect to the resulting or surviving corporation as such person would have had with respect to such constituent corporation if its separate existence had continued.
References to “other enterprises” includes employee benefit plans; references to “fines” includes any excise taxes assessed on a person with respect to any employee benefit plan; and
references to “serving at the request of Schlumberger” includes any service as a director, officer, employee or agent of Schlumberger which imposes duties on, or involves services by, such director, officer, employee or agent with respect
to an employee benefit plan, its participants or beneficiaries; and a person who acted in good faith and in a manner such person reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be
deemed to have acted in a manner “not opposed to the best interests of Schlumberger.”
A member of our board of directors, or a
member of any committee designated by our board of directors, will, in the performance of such member’s duties, be fully protected in relying in good faith upon the records of Schlumberger and upon such information, opinions, reports or
statements presented to Schlumberger by any of Schlumberger’s officers or employees, or committees of our board of directors, or by any other person as to matters the member reasonably believes are within such other person’s professional
or expert competence and who has been selected with reasonable care by or on behalf of Schlumberger.
In addition, Schlumberger maintains
directors’ and officers’ liability insurance that insures against certain liabilities that the officers and directors of Schlumberger may incur in such capacities.
Schlumberger Investment SA
The Articles of Association of Schlumberger Investment
SA provide that directors may not be held personally liable by reason of their mandate for any commitment they have validly made in the Company’s name, provided those commitments comply with the Articles of Association and Luxembourg law. Under
Luxembourg law, the Company may not indemnify its directors against any matter arising from a director’s fraud, dishonesty, gross negligence or willful misconduct or any criminal actions.
Under Luxembourg law, the duties of directors of the Company are generally owed to the Company only. Third parties of the Company generally do not have
rights to take action against directors of the Company, except in limited circumstances. Directors of the Company must, in exercising their powers and performing their duties,
II-3
act in good faith and in the interests of the Company as a whole and must exercise due care, skill and diligence. Directors have a duty not to put themselves in a position in which their duties
to the Company and their personal interests may conflict and also are under a duty to disclose any personal interest in any contract or arrangement with the Company or any of its subsidiaries. If a director of the Company is found to have breached
his or her duties to the Company, he or she may be held personally liable to the Company with respect to that breach of duty. A director may be jointly and severally liable with other directors implicated in the same breach of duty.
See the
Exhibit Index, which is incorporated herein by reference.
(a)
The undersigned registrants hereby undertake:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) to include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the
“Calculation of Registration Fee” table in the effective registration statement; and
(iii) to
include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
provided, however
, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) above do not apply if the information required to be
included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the SEC by a Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the
termination of the offering.
(4) That, for the purpose of determining liability under the Securities Act of 1933 to any
purchaser:
(A) Each prospectus filed by a Registrant pursuant to Rule 424(b)(3) shall be deemed to be part of
the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(B) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule
415(a)(1)(i),
II-4
(vii) or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration
statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes
of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the
offering of such securities at that time shall be deemed to be the initial
bona fide
offering thereof.
Provided,
however
, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is
part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration
statement or made in any such document immediately prior to such effective date.
(5) That, for the purpose of determining
liability of a Registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, each undersigned Registrant undertakes that in a primary offering of securities of an undersigned Registrant pursuant to this
registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, each undersigned Registrant will be
a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(A) Any
preliminary prospectus or prospectus of an undersigned Registrant relating to the offering required to be filed pursuant to Rule 424;
(B) Any free writing prospectus relating to the offering prepared by or on behalf of an undersigned Registrant or used or referred to by an undersigned Registrant;
(C) The portion of any other free writing prospectus relating to the offering containing material information about an
undersigned Registrant or its securities provided by or on behalf of an undersigned Registrant; and
(D) Any
other communication that is an offer in the offering made by an undersigned Registrant to the purchaser.
(b) The undersigned Registrants
hereby undertake that, for purposes of determining any liability under the Securities Act of 1933, each filing of Schlumberger’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and,
where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial
bona fide
offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrants pursuant to the foregoing
provisions, or otherwise, the Registrants have been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by a Registrant of expenses incurred or paid by a director, officer or controlling person of a Registrant in the successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the securities being registered, the Registrants will, unless in the opinion of their counsel the matter has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue.
(d) The undersigned Registrants hereby undertake to file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of section 310 of the Trust Indenture
Act (“Act”) in accordance with the rules and regulations prescribed by the Commission under section 305(b)(2) of the Act.
II-5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly
caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Houston, State of Texas, on the 26th day of August, 2013.
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SCHLUMBERGER N.V.
(Schlumberger Limited)
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By:
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/s/ Howard Guild
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Howard Guild
Chief Accounting Officer
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Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been
signed by the following persons in the capacities and on the dates indicated.
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Signature
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Title
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Date
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*
(Paal Kibsgaard)
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Chief Executive Officer and Director
(Principal Executive Officer)
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August 26, 2013
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*
(Simon Ayat)
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Executive Vice President and Chief Financial Officer
(Principal Financial Officer)
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August 26, 2013
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/s/ Howard Guild
(Howard Guild)
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Chief Accounting Officer
(Principal Accounting Officer)
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August 26, 2013
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*
(Peter L.S. Currie)
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Director
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August 26, 2013
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*
(Tony Isaac)
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Chairman
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August 26, 2013
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*
(K. Vaman Kamath)
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Director
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August 26, 2013
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*
(Nikolay Kudryavtsev)
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Director
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August 26, 2013
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*
(Adrian Lajous)
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Director
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August 26, 2013
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*
(Michael E. Marks)
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Director
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August 26, 2013
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*
(Lubna S. Olayan)
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Director
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August 26, 2013
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*
(Leo Rafael Reif)
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Director
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August 26, 2013
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II-6
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*
(Tore I. Sandvold)
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Director
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August 26, 2013
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(Henri Seydoux)
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Director
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August 26, 2013
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*By:
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/s/ Howard Guild
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Howard Guild
Attorney-in-Fact
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II-7
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly
caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Hamilton, Bermuda, on the
26th day of August, 2013.
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SCHLUMBERGER INVESTMENT SA
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By:
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/s/ Philippe Petre
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Philippe Petre
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Class B Director
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Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been
signed by the following persons in the capacities and on the dates indicated.
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Signature
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Title
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Date
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*
(Philippe Petre)
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Class B Director
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August 26, 2013
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*
(Sinan Sar)
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Class A Director
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August 26, 2013
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*
(Gerard Matheis)
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Class A Director
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August 26, 2013
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*By:
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/s/ Philippe Petre
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Philippe Petre
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Attorney-in-Fact
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II-8
EXHIBIT INDEX
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Exhibit
Number
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Description
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1.1
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Form of Underwriting Agreement.*
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3.1
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Articles of Incorporation of Schlumberger Limited (Schlumberger N.V.), as last amended on April 6, 2011 (incorporated by reference to Exhibit 3.1 to Schlumberger’s Current
Report on Form 8-K filed on April 7, 2011).
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3.2
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Amended and Restated By-laws of Schlumberger N.V. (Schlumberger Limited), as last amended on July 19, 2012 (incorporated by reference to Exhibit 3.1 to Schlumberger’s
Current Report on
Form 8-K
filed on July 19, 2012).
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3.3
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Consolidated Text of the Articles of Association of Schlumberger Investment SA.
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4.1
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Form of Indenture.
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4.2
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Form of Debt Securities.*
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5.1
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Opinion of Baker Botts L.L.P.
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5.2
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Opinion of STvB Advocaten.
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5.3
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Opinion of Loyens Loeff.
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12.1
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Computation of Ratio of Earnings to Fixed Charges.
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23.1
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Consent of PricewaterhouseCoopers LLP.
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23.2
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Consent of Baker Botts L.L.P. (set forth in Exhibit 5.1).
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24
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Power of attorney.
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25
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Statement of Eligibility and Qualification under the Trust Indenture Act of 1939 of The Bank of New York Mellon, as trustee
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*
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To be filed by amendment or via Form 8-K.
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Schlumberger Investment S.A.
Société anonyme
Siège social: 5, avenue Gaston Diderich
L-1420 Luxembourg
R.C.S. Luxembourg : B 163.122
Les statuts coordonnés de la société ont été déposés au Registre de Commerce et des Sociétés de Luxembourg.
Luxembourg, le
Pour mention, aux fins de publication au Mémorial C, Recueil des Sociétés et Associations.
Luxembourg, le 8 septembre 2011
Page 1
Schlumberger Investment S.A.
Société anonyme
Siège social: 5, avenue Gaston Diderich
L-1420 Luxembourg
R.C.S. Luxembourg : B 163.122
STATUTS COORDONNES
au 2 septembre 2011
tels qu’ils résultent des actes suivants reçus par:
Maître Martine SCHAEFFER, notaire de résidence à Luxembourg:
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1)
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le 18 août 2011 (constitution), non encore publié au Mémorial C.
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2)
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le 2 septembre 2011, non encore publié au Mémorial C.
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I. NAME – REGISTERED OFFICE
– OBJECT – DURATION
The name of the
company is “
Schlumberger Investment SA
” (the
Company
). The Company is a public company limited by shares (
société anonyme
) governed by the laws of the Grand Duchy of Luxembourg, in particular the law of
August 10th, 1915, on commercial companies, as amended (the
Law
), and these articles of incorporation (the
Articles
).
2.1.
The Company’s registered office is established in Luxembourg, Grand Duchy of Luxembourg. It may be transferred within that municipality by a resolution of the board of directors (the
Board
). It may be transferred to any other location in
the Grand Duchy of Luxembourg by a resolution of the general meeting of shareholders (the
General Meeting
), acting in accordance with the conditions prescribed for the amendment of the Articles.
2.2. Branches, subsidiaries or other offices may be established in the Grand Duchy of Luxembourg or abroad by a resolution of the Board.
If the Board determines that extraordinary political or military developments or events have occurred or are imminent, and that those developments or events may interfere with the normal activities of the Company at its registered office, or with
ease of communication between that office and persons abroad, the registered office may be temporarily transferred abroad until the developments or events in question have completely ceased. Any such temporary measures do not affect the nationality
of the Company, which, notwithstanding the temporary transfer of its registered office, will remain a Luxembourg incorporated company.
- 1 -
3.1.
The Company’s object is the acquisition of participations, in Luxembourg or abroad, in any company or enterprise in any form whatsoever, and the management of those participations. The Company may in particular acquire, by subscription,
purchase and exchange or in any other manner, any stock, shares and other participation securities, bonds, debentures, certificates of deposit and other debt instruments and, more generally, any securities and financial instruments issued by any
public or private entity. It may participate in the creation, development, management and control of any company or enterprise. Further, it may invest in the acquisition and management of a portfolio of patents or other intellectual property rights
of any nature or origin.
3.2. The Company may borrow in any form. It may issue notes, bonds and any kind of debt and equity
securities. It may lend funds, including, without limitation, the proceeds of any borrowings, to its subsidiaries, affiliated companies and any other companies. It may also give guarantees and pledge, transfer, encumber or otherwise create and grant
security over some or all of its assets to guarantee its own obligations and those of any other company, and, generally, for its own benefit and that of any other company or person.
3.3. The Company may provide advisory and management services with respect to, amongst others, investments, investment portfolios,
hedging activities and/or currency management of related entities and their employee funds.
3.4. The Company may use any
techniques, legal means and instruments to manage its investments efficiently and protect itself against credit risks, currency exchange exposure, interest rate risks and other risks.
3.5. The Company may carry out any commercial, financial or industrial operation and any transaction with respect to real estate or
movable property, which directly or indirectly, favours or relates to its corporate object.
4.1. The
Company is formed for an unlimited period.
4.2. The Company is not to be dissolved by reason of the death, suspension of
civil rights, incapacity, insolvency, bankruptcy or any similar event affecting one or more shareholders.
II. CAPITAL
– SHARES
5.1. The share
capital is set at one hundred thousand US Dollars (USD 100,000), represented by one thousand (1000) shares in registered form, having a nominal value of one hundred US Dollars nominal (USD 100) each.
- 2 -
5.2. The share capital may be increased or reduced once or more by a resolution of the
General Meeting acting in accordance with the conditions prescribed for the amendment of the Articles.
5.3. The Board is
authorised, for a period of five (5) years from the date of the publication of the deed of incorporation, to:
(i)
increase the current share capital once or more up to three million US Dollars (USD 3,000,000), by the issue of twenty-nine thousand five hundred fifty (29,550) new shares, having a nominal value of one hundred US Dollars nominal (USD 100) each
and having the same rights as the existing shares;
(ii) limit or withdraw the shareholders’ preferential subscription
rights to the new shares and determine the persons who are authorised to subscribe to the new shares; and
(iii) record each
share capital increase by way of a notarial deed and amend the share register accordingly.
6.1. The shares
are and will remain in registered form (
actions nominatives
).
6.2. A register of shares is kept at the registered
office and may be examined by any shareholder on request.
6.3. A share transfer is carried out by the entry in the register
of shares of a declaration of transfer, duly signed and dated by both the transferor and the transferee or their authorised representatives, following a notification to or acceptance by the Company, in accordance with Article 1690 of the Civil Code.
The Company may also accept other documents recording the agreement between the transferor and the transferee as evidence of a share transfer.
6.4. The shares are indivisible and the Company recognises only one (1) owner per share.
6.5. The Company may redeem its own shares within the limits set forth by the Law.
III. MANAGEMENT – REPRESENTATION
|
|
Art.7.
|
Board of directors
|
7.1.
Composition of the board of directors
(i) The Company is managed by the Board, which is composed of at least three
(3) members or less if article 8 hereof applies. The directors need not be shareholders. The Board may be composed of different classes of directors.
(ii) The General Meeting appoints the directors, and determines their number and remuneration and the term of their mandate. Directors cannot be appointed for more than six (6) years and are
re-eligible.
(iii) Directors may be removed at any time (with or without cause), by a resolution of the General Meeting.
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(iv) If a legal entity is appointed as director, it must appoint a permanent representative
to perform its duties. The permanent representative is subject to the same rules and incurs the same liabilities as if he had exercised his functions in his own name and on his own behalf, without prejudice to the joint and several liability of the
legal entity which it represents.
(v) Should the permanent representative be unable to perform its duties, the legal entity
must immediately appoint another permanent representative.
(vi) If the office of a director becomes vacant, the other
directors, acting by a simple majority, may fill the vacancy on a provisional basis until a new director is appointed by the next General Meeting.
7.2.
Powers of the board of directors
(i) All powers not expressly
reserved to the shareholder(s) by the Law or the Articles fall within the competence of the Board, which has full power to carry out and approve all acts and operations consistent with the Company’s corporate object.
(ii) The Board may delegate special and limited powers to one or more agents for specific matters.
(iii) The Board is authorised to delegate the day-to-day management, and the power to represent the Company in this respect, to one or
more directors, officers, managers or other agents, whether shareholders or not, acting either individually or jointly. If the day-to-day management is delegated to one or more directors, the Board must report to the annual General Meeting any
salary, fee and/or any other advantage granted to those director(s) during the relevant financial year.
7.3.
Procedure
(i) The Board must appoint a chairperson from among its members, and may choose a secretary who need not be a director and
who will be responsible for keeping the minutes of the meetings of the Board and of General Meetings.
(ii) The Board meets at
the request of the chairperson or any director, at the place indicated in the notice, which in principle is in Luxembourg.
(iii) Written notice of any Board meeting is given to all directors at least twenty-four (24) hours in advance, except in the case of an
emergency whose nature and circumstances are set forth in the notice.
(iv) No notice is required if all members of the Board
are present or represented and state that they know the agenda for the meeting. A director may also waive notice of a meeting, either before or after the meeting. Separate written notices are not required for meetings which are held at times and
places indicated in a schedule previously adopted by the Board.
(v) A director may grant another director a power of attorney
in order to be represented at any Board meeting.
- 4 -
(vi) When composed only by one (1) single class of directors only, the Board may only
validly deliberate and act if a majority of its members are present or represented. Board Resolutions are validly adopted by a majority of the votes by the directors present or represented. The chairman has a casting vote in the event of a tie vote.
Board resolutions are recorded in minutes signed by the chairperson, by all directors present or represented at the meeting, or by the secretary (if any).
(vii) When composed by different classes of directors, the Board may only validly deliberate and act if a majority of its members are present or represented and at least one (1) director of each
class is present or represented. Board Resolutions are validly adopted by a majority of the votes by the directors present or represented provided that any resolution shall not validly be passed unless it is approved by at least one
(1) director of each class. The chairman has a casting vote in the event of a tie vote. Board resolutions are recorded in minutes signed by the chairperson, by all directors present or represented at the meeting, or by the secretary (if any).
(viii) Any director may participate in any meeting of the Board by telephone or video conference, or by any other means of
communication which allows all those taking part in the meeting to identify, hear and speak to each other. Participation by such means is deemed equivalent to participation in person at a duly convened and held meeting.
(ix) Circular resolutions signed by all the directors (the
Directors’ Circular Resolutions
) are valid and binding as if
passed at a duly convened and held Board meeting, and bear the date of the last signature.
(x) A director who has an interest
in a transaction carried out other than in the ordinary course of business which conflicts with the interests of the Company must advise the Board accordingly and have the statement recorded in the minutes of the meeting. The director concerned may
not take part in the deliberations concerning that transaction. A special report on the relevant transaction is submitted to the shareholders at the next General Meeting, before any vote on the matter.
7.4.
Representation
(i) When the Board is composed by one (1) single class of directors, the Company is bound towards third parties in all matters by the single signature of a director.
(ii) When the Board is composed by different classes of directors, the Company is bound towards third parties in all matters by the the
joint signatures of one (1) director of each class.
(iii) The Company is also bound towards third parties by the joint
or single signature of any person to whom special signatory powers have been delegated.
8.1. Where
the number of shareholders is reduced to one (1), the Company may be managed by one or several director(s) until the ordinary General Meeting following the introduction of an additional shareholder. In this case, any reference in the Articles to the
Board or the directors should be read as a reference to that sole director, as appropriate.
- 5 -
8.2. Transactions entered into by the Company which conflict with the interest of its sole
director must be recorded in minutes. This does not apply to transactions carried out under normal circumstances in the ordinary course of business.
8.3. The Company is bound towards third parties by the signature of the sole director or by the joint or single signature of any person to whom the sole director has delegated special signatory powers.
|
|
Art.9.
|
Liability of the directors
|
9.1. The directors may not be held personally liable by reason of their mandate for any commitment they have validly made in the name of
the Company’s name, provided those commitments comply with the Articles and the Law.
IV. SHAREHOLDER(S)
|
|
Art.10.
|
General meetings of shareholders
|
10.1.
Powers and voting rights
(i) Resolutions of the shareholders are
adopted at a general meeting of shareholders (the
General Meeting
). The General Meeting has full powers to adopt and ratify all acts and operations which are consistent with the company’s corporate object.
(ii) Each share gives entitlement to one (1) vote.
10.2.
Notices, quorum, majority and voting proceedings
(i) General
Meetings are held at the time and place specified in the notices.
(ii) If all the shareholders are present or represented and
consider themselves duly convened and informed of the agenda, the General Meeting may be held without prior notice.
(iii) A
shareholder may grant written power of attorney to another person (shareholder or otherwise), in order to be represented at any General Meeting.
(iv) Any shareholder may participate in any General Meeting by telephone or video conference, or by any other means of communication which allows all those taking part in the meeting to identify, hear and
speak to each other. Participation by such means is deemed equivalent to participation in person at the meeting.
(v) Any
shareholder may vote by using the forms provided to that effect by the Company. Voting forms contain the date, place and agenda of the meeting and the text of the proposed resolutions. For each resolution, the form must contain three boxes allowing
for a vote for or against that resolution or an abstention. Shareholders must return the voting forms to the registered office. Only voting forms received prior to the General Meeting are taken into account for calculation of the quorum. Forms which
indicate neither a voting intention nor an abstention are void.
- 6 -
(vi) Resolutions of the General Meeting are passed by a simple majority vote, regardless of
the proportion of share capital represented.
(vii) An Extraordinary General Meeting may only amend the Articles if at least
onehalf of the share capital is represented and the agenda indicates the proposed amendments to the Articles, including the text of any proposed amendment to the Company’s object or form. If this quorum is not reached, a second General Meeting
may be convened by means of notices published twice in the
Mémorial
and two Luxembourg newspapers, at an interval of at fifteen (15) days and fifteen (15) days before the meeting. These notices state the date and agenda of
the General Meeting and the results of the previous General Meeting. The second General Meeting deliberates validly regardless of the proportion of capital represented. At both General Meetings, resolutions must be adopted by at least two-thirds of
the votes cast.
(viii) Any change in the nationality of the Company and any increase in a shareholder’s commitment in
the Company require the unanimous consent of the shareholders and bondholders (if any).
11.1.
When the number of shareholders is reduced to one (1), the sole shareholder exercises all powers granted by the Law to the General Meeting.
11.2. Any reference to the General Meeting in the Articles is to be read as a reference to the sole shareholder, as appropriate.
11.3. The resolutions of the sole shareholder are recorded in minutes.
V.
ANNUAL ACCOUNTS – ALLOCATION OF PROFITS – SUPERVISION
|
|
Art.12.
|
Financial year and approval of annual accounts
|
12.1. The financial year begins on 1 January and ends on 31 December of each year.
12.2. The Board prepares the balance sheet and profit and loss account annually, together with as an inventory stating the value of the Company’s assets and liabilities, with an annex summarising its
commitments and the debts owed by its officers, directors and statutory auditors to the Company.
12.3. One month before the
Annual General Meeting, the Board provides the statutory auditors with a report on and documentary evidence of the Company’s operations. The statutory auditors then prepare a report stating their findings and proposals.
12.4. The annual General Meeting is held at the registered office or in any other place within the municipality of the registered office,
as specified in the notice, on the second Monday of May of each year at 10.00 a.m. If such day is a legal or a bank holiday in Luxembourg, the annual general meeting shall be held on the next following business day in Luxembourg.
- 7 -
12.5. The annual General Meeting may be held abroad if, in the Board’s, absolute and
final judgement, exceptional circumstances so require.
|
|
Art.13.
|
Auditors / External auditors (
réviseurs d’entreprises
)
|
13.1. The Company’s operations are supervised by one or more statutory auditors (
commissaires
).
13.2. When so required by law, the Company’s operations are supervised by one or more approved external auditors
(
réviseurs d’entreprises agréés
).
13.3. The General Meeting appoints the statutory auditors
(
commissaires
) / approved external auditors (
réviseurs d’entreprises agréés
), and determines their number and remuneration and the term of their mandate, which may not exceed six (6) years but may be
renewed.
|
|
Art.14.
|
Allocation of profits
|
14.1. Five per cent (5%) of the Company’s annual net profits are allocated to the reserve required by law. This requirement
ceases when the legal reserve reaches an amount equal to ten per cent (10%) of the share capital.
14.2. The General
Meeting determines the allocation of the balance of the annual net profits. They may decide on the payment of a dividend, to transfer the balance to a reserve account, or to carry it forward in accordance with the applicable legal provisions.
14.3. Interim dividends may be distributed at any time, under the following conditions:
(i) the Board draws up interim accounts;
(ii) the interim accounts show that sufficient profits and other reserves (including share premiums) are available for distribution; it being understood that the amount to be distributed may not exceed
the profits made since the end of the last financial year for which the annual accounts have been approved, if any, increased by profits carried forward and distributable reserves, and reduced by losses carried forward and sums to be allocated to
the legal or a statutory reserve;
(iii) the decision to distribute interim dividends is made by the Board within two
(2) months from the date of the interim accounts.
In their report to the Board, the statutory auditors
(
commissaires
) or the approved external auditors (
réviseurs d’entreprises agréés
), as applicable, must verify whether the above conditions have been satisfied.
VI. DISSOLUTION – LIQUIDATION
15.1. The Company may be dissolved at any time by a resolution of the General Meeting, acting in accordance with the conditions prescribed for the amendment of the Articles. The General Meeting appoints
one or more liquidators, who need not be shareholders, to carry out the liquidation, and determines their number, powers and remuneration. Unless otherwise decided by the General Meeting, the liquidators have full powers to realise the
Company’s assets and pay its liabilities.
- 8 -
15.2. The surplus after realisation of the assets and payment of the liabilities is
distributed to the shareholders in proportion to the shares held by each of them.
VII. GENERAL PROVISION
16.1. Notices and communications may be made or waived and circular resolutions may be evidenced in writing, fax, email or any other
means of electronic communication.
16.2. Powers of attorney are granted by any of the means described above. Powers of
attorney in connection with Board meetings may also be granted by a director, in accordance with such conditions as may be accepted by the Board.
16.3. Signatures may be in handwritten or electronic form, provided they fulfil all legal requirements for being deemed equivalent to handwritten signatures. Signatures of circular resolutions or
resolutions adopted by telephone or video conference are affixed to one original or several counterparts of the same document, all of which taken together constitute one and the same document.
16.4. All matters not expressly governed by these Articles shall be determined in accordance with the applicable law and, subject to any
non-waivable provisions of the law, with any agreement entered into by the shareholders from time to time.
SUIT LA
TRADUCTION FRANCAISE DU TEXTE QUI PRECEDE:
I. DENOMINATION – SIEGE SOCIAL – OBJET – DUREE
Le
nom de la société est “
Schlumberger Investment SA
” (la
Société
). La Société est une société anonyme régie par les lois du Grand-Duché de Luxembourg, et en
particulier par la loi du 10 août 1915 sur les sociétés commerciales, telle que modifiée (la
Loi
), ainsi que par les présents statuts (les
Statuts
).
2.1.
Le siège social de la Société est établi à Luxembourg, Grand-Duché de Luxembourg. Il peut être transféré dans cette même commune par décision du conseil d’administration
(le
Conseil
). Le siège social peut être transféré en tout autre endroit du Grand-Duché de Luxembourg par une résolution de l’assemblée générale des actionnaires
(l’
Assemblée Générale
), selon les modalités requises pour la modification des Statuts.
2.2. Il peut être créé des succursales, filiales ou autres bureaux tant au Grand-Duché de Luxembourg
qu’à l’étranger par décision du Conseil. Lorsque le Conseil estime que des développements ou événements extraordinaires d’ordre politique ou militaire se sont
- 9 -
produits ou sont imminents, et que ces développements ou évènements sont de nature à compromettre les activités normales de la Société à
son siège social, ou la communication aisée entre le siège social et l’étranger, le siège social peut être transféré provisoirement à l’étranger, jusqu’à
cessation complète de ces circonstances. Ces mesures provisoires n’ont aucun effet sur la nationalité de la Société qui, nonobstant le transfert provisoire de son siège social, reste une société
luxembourgeoise.
3.1.
L’objet de la Société est la prise de participations, tant au Luxembourg qu’à l’étranger, dans toutes sociétés ou entreprises sous quelque forme que ce soit, et la gestion de ces
participations. La Société peut notamment acquérir par souscription, achat et échange ou de toute autre manière tous titres, actions et autres valeurs de participation, obligations, créances, certificats de
dépôt et autres instruments de dette, et plus généralement, toutes valeurs et instruments financiers émis par toute entité publique ou privée. Elle peut participer à la création, au
développement, à la gestion et au contrôle de toute société ou entreprise. Elle peut en outre investir dans l’acquisition et la gestion d’un portefeuille de brevets ou d’autres droits de
propriété intellectuelle de quelque nature ou origine que ce soit.
3.2. La Société peut emprunter
sous quelque forme que ce soit. Elle peut procéder à l’émission de billets à ordre, d’obligations et de titres et instruments de toute autre nature. La Société peut prêter des fonds, y
compris notamment, les revenus de tous emprunts, à ses filiales, sociétés affiliées ainsi qu’à toutes autres sociétés. La Société peut également consentir des garanties et
nantir, céder, grever de charges ou autrement créer et accorder des sûretés sur toute ou partie de ses actifs afin de garantir ses propres obligations et celles de toute autre société et, de manière
générale, en sa faveur et en faveur de toute autre société ou personne.
3.3. La
Société peut fournir des services de conseil et de gestion sur, entre autres, des investissements, des portefeuilles d’investissements, les activités de couvertures et/ou de gestion des devises au profit
d’entités apparantées et de leurs fonds d’épargne salariale.
3.4. La Société
peut employer toutes les techniques et instruments nécessaires à une gestion efficace de ses investissements et à sa protection contre les risques de crédit, les fluctuations monétaires, les fluctuations de taux
d’intérêt et autres risques.
3.5. La Société peut effectuer toutes les opérations
commerciales, financières ou industrielles et toutes les transactions concernant des biens immobiliers ou mobiliers qui, directement ou indirectement, favorisent ou se rapportent à son objet social.
4.1. La
Société est constituée pour une durée indéterminée.
- 10 -
4.2. La Société n’est pas dissoute en raison de la mort, de la suspension
des droits civils, de l’incapacité, de l’insolvabilité, de la faillite ou de tout autre évènement similaire affectant un ou plusieurs actionnaires.
II. CAPITAL – ACTIONS
5.1. Le capital
social est fixé à cent mille US Dollars (USD 100.000), représenté par cent mille (1000) actions sous forme nominative, ayant une valeur nominale de cent US Dollars (USD 100.-) chacune.
5.2. Le capital social peut être augmenté ou réduit à une ou plusieurs reprises par une résolution de
l’Assemblée Générale, adoptée selon les modalités requises pour la modification des Statuts.
5.3. Le Conseil est autorisé, pendant une période de cinq (5) ans à compter de la date de publication de l’acte constitutif, à:
(i) augmenter le capital social existant en une ou plusieurs fois, à hauteur de trois millions de US Dollars (USD 3.000.000.-),
par l’émission de vingt-neuf mille cinq cent cinquante (29.550) nouvelles actions, ayant une valeur nominale de cent US Dollars (USD 100.-), ayant les mêmes droits que les actions existantes;
(ii) limiter ou supprimer les droits de souscription préférentiels des actionnaires aux nouvelles actions et
déterminer les personnes autorisées à souscrire aux nouvelles actions; et
(iii) faire constater chaque
augmentation de capital social par acte notarié et modifier le registre des actions en conséquence.
6.1. Les actions
sont et resteront sous forme nominative.
6.2. Un registre des actions est tenu au siège social et peut être
consulté à la demande de chaque actionnaire.
6.3. Une cession d’action(s) s’opère par la
mention sur le registre des actions, d’une déclaration de transfert, valablement datée et signée par le cédant et le cessionnaire ou par leurs mandataires et suivant une notification à, ou une acceptation par,
la Société, conformément à l’article 1690 du Code Civil. La Société peut également accepter comme preuve du transfert d’actions, d’autres documents établissant l’accord du
cédant et du cessionnaire.
6.4. Les actions sont indivisibles et la Société ne reconnaît
qu’un (1) seul propriétaire par action.
6.5. La Société peut racheter ses propres actions dans
les limites prévues par la Loi.
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III. GESTION – REPRESENTATION
|
|
Art.7.
|
Conseil d’administration
|
7.1.
Composition du conseil d’administration
(i) La
Société est gérée par un conseil d’administration (le
Conseil
) composé d’au moins trois (3) membres ou moins si le présent article 8 trouve à s’appliquer, qui ne doivent pas
nécessairement être actionnaires. Le Conseil peut être composé d’administrateurs de différentes classes.
(ii) L’Assemblée Générale nomme le(s) administrateur(s) et fixe leur nombre, leur rémunération ainsi que la durée de leur mandat. Les administrateurs ne
peuvent être nommés pour plus de six (6) ans et sont rééligibles.
(iii) Les administrateurs
sont révocables à tout moment (avec ou sans raison) par une décision de l’Assemblée Générale.
(iv) Lorsqu’une personne morale est nommée administrateur, celle-ci est tenue de désigner un représentant permanent qui représente ladite personne morale dans sa mission
d’administrateur. Ce représentant permanent est soumis aux mêmes règles et encourt les mêmes responsabilités que s’il avait exercé ses fonctions en son nom et pour son propre compte, sans
préjudice de la responsabilité solidaire de la personne morale qu’il représente.
(v) Si le
représentant permanent se trouve dans l’incapacité d’exercer sa mission, la personne morale doit nommer immédiatement un autre représentant permanent.
(vi) En cas de vacance d’un poste d’administrateur, la majorité des administrateurs restants peut y pourvoir
provisoirement jusqu’à la nomination définitive, qui a lieu lors de la prochaine Assemblée Générale.
7.2.
Pouvoirs du conseil d’administration
(i) Tous les pouvoirs non
expressément réservés par la Loi ou les Statuts à ou aux actionnaires sont de la compétence du Conseil, qui a tous les pouvoirs pour effectuer et approuver tous les actes et opérations conformes à
l’objet social.
(ii) Des pouvoirs spéciaux et limités peuvent être délégués par
le Conseil à un ou plusieurs agents pour des tâches spécifiques.
(iii) Le Conseil peut
déléguer la gestion journalière et le pouvoir de représenter la Société en ce qui concerne cette gestion, à un ou plusieurs administrateurs, directeurs, gérants ou autres agents, actionnaires
ou non, agissant seuls ou conjointement. Si la gestion journalière est déléguée à un ou plusieurs administrateurs, le Conseil doit rendre compte à l’Assemblée Générale annuelle, de
tous traitements, émoluments et/ou avantages quelconques, alloués à ce(s) administrateur(s) pendant l’exercice social en cause.
7.3.
Procédure
(i) Le Conseil doit élire en son sein un
président et peut désigner un secrétaire, qui n’a pas besoin d’être administrateur, et qui est responsable de la tenue des procèsverbaux de réunions du Conseil et de l’Assemblée
Générale.
- 12 -
(ii) Le Conseil se réunit sur convocation du président ou de n’importe
quel administrateur au lieu indiqué dans l’avis de convocation, qui en principe, est au Luxembourg.
(iii) Il est
donné à tous les administrateurs une convocation écrite de toute réunion du Conseil au moins vingt-quatre (24) heures à l’avance, sauf en cas d’urgence, auquel cas la nature et les circonstances de
cette urgence sont mentionnées dans la convocation à la réunion.
(iv) Aucune convocation n’est
requise si tous les membres du Conseil sont présents ou représentés et s’ils déclarent avoir parfaitement eu connaissance de l’ordre du jour de la réunion. Un administrateur peut également renoncer
à la convocation à une réunion, que ce soit avant ou après ladite réunion. Des convocations écrites séparées ne sont pas exigées pour des réunions se tenant à des heures et
dans des lieux fixés dans un calendrier préalablement adopté par le Conseil.
(v) Un administrateur peut
donner une procuration à tout autre administrateur afin de le représenter à toute réunion du Conseil.
(vi) Lorsqu’il est composé d’une (1) classe unique d’administrateurs, le Conseil ne peut délibérer et agir valablement que si la majorité de ses membres
sont présents ou représentés. Les décisions du Conseil sont valablement adoptées à la majorité des voix des administrateurs présents ou représentés. La voix du président
est prépondérante en cas de partage des voix. Les décisions du Conseil sont consignées dans des procèsverbaux signés par le président ou par tous les administrateurs présents ou
représentés à la réunion ou par le secrétaire (s’il en existe un).
(vii)
Lorsqu’il est composé de différentes classes d’administeurs, le Conseil ne peut délibérer et agir valablement que si la majorité de ses membres sont présents ou représentés et
qu’au moins un (1) administrateur de chaque classe est présent ou représenté. Les décisions du Conseil ne sont valablement adoptées que si la majorité des voix des administrateurs présents
ou représentés, et qu’au moins un (1) administrateur de chaque classe est présent ou représenté. La voix du président est prépondérante en cas de partage des voix. Les
décisions du Conseil sont consignées dans des procès-verbaux signés par le président ou par tous les administrateurs présents ou représentés à la réunion ou par le
secrétaire (s’il en existe un).
(viii) Tout administrateur peut participer à toute réunion du
Conseil par téléphone ou visioconférence ou par tout autre moyen de communication permettant à l’ensemble des personnes participant à la réunion de s’identifier, de s’entendre et de se parler.
La participation par un de ces moyens équivaut à une participation en personne à une réunion valablement convoquée et tenue.
(ix) Des résolutions circulaires signées par tous les administrateurs (les
Résolutions Circulaires des administrateurs
) sont valables et engagent la Société comme
si elles avaient été adoptées lors d’une réunion du Conseil valablement convoquée et tenue et portent la date de la dernière signature.
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(x) Tout administrateur qui a un intérêt opposé à celui de la
Société dans une transaction qui ne concerne pas des opérations courantes conclues dans des conditions normales, est tenu d’en prévenir le Conseil et de faire mentionner cette déclaration au
procès-verbal de la réunion. L’administrateur en cause ne peut prendre part à ces délibérations. Un rapport spécial relatif à ou aux transactions concernées est soumis aux actionnaires
avant tout vote, lors de la prochaine Assemblée Générale.
7.4.
Représentation
(i) Lorsque le Conseil est composé d’une (1) classe unique d’administrateurs, la Société est
engagée vis-à-vis des tiers, en toutes circonstances, par la signature d’un seul administrateur.
(ii)
Lorsque le Conseil est composé de différentes classes d’administrateurs, la Société est engagée vis-à-vis des tiers, en toutes circonstances, par les signatures conjointes d’un
(1) administrateur de chaque classe.
(iii) La Société est également engagée vis-à-vis
des tiers par la signature conjointe ou unique de toutes personnes à qui des pouvoirs de signature spéciaux ont été délégués.
|
|
Art.8.
|
Administrateur unique
|
8.1. Dans le cas où le nombre des actionnaires est réduit à un (1), la Société peut être
gérée par un ou plusieurs administrateur(s) jusqu’à l’Assemblée Générale ordinaire suivant l’introduction d’un actionnaire supplémentaire. Dans ce cas, toute
référence dans les Statuts au Conseil ou aux administrateurs doit être considérée, le cas échéant, comme une référence à cet administrateur unique.
8.2. Les transactions conclues par la Société peuvent être mentionnées dans des procès-verbaux et, sauf
si elles concernent des opérations courantes conclues dans des conditions normales, doivent être ainsi mentionnées si elles sont intervenues avec son administrateur unique ayant un intérêt opposé.
8.3. La Société est engagée vis-à-vis des tiers par la signature de l’administrateur unique ou par la
signature conjointe ou unique de toutes personnes à qui des pouvoirs de signature spéciaux ont été délégués, par l’administrateur unique.
|
|
Art.9.
|
Responsabilité des administrateurs
|
9.1. Les administrateurs ne contractent, à raison de leur fonction, aucune obligation personnelle concernant les engagements régulièrement pris par eux au nom de la
Société, dans la mesure où ces engagements sont conformes aux Statuts et à la Loi.
- 14 -
IV. ACTIONNAIRE(S)
|
|
Art.10.
|
Assemblée générale des actionnaires
|
10.1.
Pouvoirs et droits de vote
(i) Les résolutions des
actionnaires sont adoptées lors des assemblées générales des actionnaires (l’
Assemblée Générale
). L’Assemblée Générale a les pouvoirs les plus étendus pour
adopter et ratifier tous les actes et opérations conformes à l’objet social.
(ii) Chaque action donne
droit à un (1) vote.
10.2.
Convocations, quorum, majorité et procédure de vote
(i) Les Assemblées Générales se tiennent au lieu et heure précisés dans les convocations.
(ii) Si tous les actionnaires sont présents ou représentés et se considèrent comme ayant été
valablement convoqués et informés de l’ordre du jour de l’assemblée, l’Assemblée Générale peut se tenir sans convocation préalable.
(iii) Un actionnaire peut donner une procuration écrite à toute autre personne (qui ne doit pas être un actionnaire)
afin de le représenter à toute Assemblée Générale.
(iv) Tout actionnaire peut participer
à toute Assemblée Générale par téléphone ou visioconférence ou par tout autre moyen de communication similaire permettant à l’ensemble des personnes participant à la réunion
de s’identifier, de s’entendre et de se parler. La participation à la réunion par un de ces moyens équivaut à une participation en personne à une telle réunion.
(v) Tout actionnaire peut voter au moyen de formulaires de vote fournis par la Société. Les formulaires de vote indiquent
la date, le lieu et l’ordre du jour de la réunion, le texte des résolutions proposées ainsi que, pour chaque résolution, trois cases permettant de voter en faveur, de voter contre ou de s’abstenir. Les
formulaires de vote doivent être renvoyés par les actionnaires au siège social. Pour le calcul du quorum, il n’est tenu compte que des formulaires de vote reçus par la Société avant la réunion de
l’Assemblée Générale. Les formulaires de vote dans lesquels ne sont mentionnés ni un vote (en faveur ou contre les résolutions proposées) ni une abstention, sont nuls.
(vi) Les décisions de l’Assemblée Générale sont adoptées à la majorité simple des
voix exprimées, quelle que soit la proportion du capital social représenté.
(vii)
L’Assemblée Générale extraordinaire ne peut modifier les Statuts que si la moitié au moins du capital social est représenté et que l’ordre du jour indique les modifications statutaires
proposées ainsi que le texte de celles qui modifient l’objet social ou la forme de la Société. Si ce quorum n’est pas atteint, une deuxième Assemblée Générale peut être
convoquée par annonces insérées deux fois, à quinze (15) jours d’intervalle au moins et quinze (15) jours avant l’Assemblée, dans le Mémorial et dans deux journaux de Luxembourg. Ces
convocations reproduisent l’ordre du jour de la réunion et indiquent
- 15 -
la date et les résultats de la précédente réunion. La seconde Assemblée Générale délibère valablement quelle que soit la proportion
du capital représenté. Dans les deux Assemblées Générales, les résolutions doivent être adoptées par au moins les deux tiers des voix exprimées.
(viii) Tout changement de nationalité de la Société ainsi que toute augmentation de l’engagement d’un
actionnaire dans la Société exige le consentement unanime des actionnaires et des obligataires (s’il y a lieu).
|
|
Art.11.
|
Actionnaire unique
|
11.1.
Lorsque le nombre des actionnaires est réduit à un (1), l’actionnaire unique exerce tous les pouvoirs conférés par la Loi à l’Assemblée Générale.
11.2. Toute référence dans les Statuts à l’Assemblée Générale doit être doit
être considérée, le cas échéant, comme une référence à cet actionnaire unique.
11.3. Les résolutions de l’actionnaire unique sont consignées dans des procèsverbaux.
V. COMPTES ANNUELS – AFFECTATION DES BENEFICES – CONTRÔLE
|
|
Art.12.
|
Exercice social et approbation des comptes annuels
|
12.1. L’exercice social commence le premier (1) janvier et se termine le trente-et-un (31) décembre de chaque année.
12.2. Chaque année, le Conseil dresse le bilan et le compte de profits et pertes ainsi qu’un inventaire indiquant la valeur
des actifs et passifs de la Société, avec une annexe résumant les engagements de la Société ainsi que les dettes des directeurs, administrateurs et commissaire(s) envers la Société.
12.3. Un mois avant l’Assemblée Générale annuelle, le Conseil remet les pièces, avec un rapport sur les
opérations de la Société aux commissaires, qui doivent ensuite faire un rapport contenant leurs propositions.
12.4. L’Assemblée Générale annuelle se tient à l’adresse du siège social ou en tout autre lieu dans la municipalité du siège social, comme
indiqué dans la convocation, le deuxième lundi du mois de mai de chaque année à 10.00 heures. Si ce jour est un jour férié, légal ou bancaire à Luxembourg, l’assemblée
générale se réunira le premier jour ouvrable suivant.
12.5. L’Assemblée
Générale annuelle peut se tenir à l’étranger si, selon l’avis absolu et définitif du Conseil, des circonstances exceptionnelles le requièrent.
|
|
Art.13.
|
Commissaires / Réviseurs d’entreprises
|
13.1. Les opérations de la Société sont contrôlées par un ou plusieurs commissaires.
13.2. Les opérations de la Société sont contrôlées par un ou plusieurs réviseurs d’entreprises agréés, quand cela est requis par la loi.
13.3. L’Assemblée Générale nomme les commissaires/réviseurs d’entreprises
agréés et détermine leur nombre, leur rémunération et la durée de leur mandat, lequel ne peut dépasser six (6) ans. Les commissaires/réviseurs d’entreprises agréés
peuvent être réélus.
- 16 -
|
|
Art.14.
|
Affectation des bénéfices
|
14.1. Cinq pour cent (5 %) des bénéfices nets annuels de la Société sont affectés à la réserve requise par la Loi. Cette affectation cesse
d’être exigée quand la réserve légale atteint dix pour cent (10 %) du capital social.
14.2.
L’Assemblée Générale décide de l’affectation du solde des bénéfices nets annuels. Elle peut allouer ce bénéfice au paiement d’un dividende, l’affecter à un compte de
réserve ou le reporter en respectant les dispositions légales applicables.
14.3. Des dividendes
intérimaires peuvent être distribués à tout moment, aux conditions suivantes:
(i) des comptes
intérimaires sont établis par le Conseil;
(ii) ces comptes intérimaires montrent que des
bénéfices et autres réserves (en ce compris la prime d’émission) suffisants sont disponibles pour une distribution; étant entendu que le montant à distribuer ne peut excéder le montant des
bénéfices réalisés depuis la fin du dernier exercice social dont les comptes annuels ont été approuvés, le cas échéant, augmenté des bénéfices reportés et des
réserves distribuables, et réduit par les pertes reportées et les sommes à affecter à la réserve légale ou statutaire;
(iii) la décision de distribuer des dividendes intérimaires est adoptée par le Conseil dans les deux (2) mois suivant la date des comptes intérimaires.
Dans leur rapport au Conseil, selon le cas, les commissaires ou les réviseurs d’entreprises agréés doivent
vérifier si les conditions prévues ci-dessous ont été remplies.
VI. DISSOLUTION –
LIQUIDATION
15.1. La Société peut être dissoute à tout moment, par une résolution de
l’Assemblée Générale, adoptée selon les modalités requises pour la modification des Statuts. L’Assemblée Générale nomme un ou plusieurs liquidateurs, qui n’ont pas besoin
d’être actionnaires, pour réaliser la liquidation et détermine leur nombre, pouvoirs et rémunération. Sauf décision contraire de l’Assemblée Générale, les liquidateurs sont
investis des pouvoirs les plus étendus pour réaliser les actifs et payer les dettes de la Société.
15.2. Le boni de liquidation résultant de la réalisation des actifs et du paiement des dettes est distribué aux
actionnaires proportionnellement aux actions détenues par chacun d’entre eux.
VII. DISPOSITIONS GENERALES
16.1. Les convocations et communications, respectivement les renonciations à celles-ci, sont faites, et les
résolutions circulaires sont établies par écrit, télégramme, téléfax, e-mail ou tout autre moyen de communication électronique.
- 17 -
16.2. Les procurations sont données par tout moyen mentionné ci-dessus. Les
procurations relatives aux réunions du Conseil peuvent également être données par un administrateur conformément aux conditions acceptées par le Conseil.
16.3. Les signatures peuvent être sous forme manuscrite ou électronique, à condition que les signatures
électroniques remplissent l’ensemble des conditions légales requises pour pouvoir être assimilées à des signatures manuscrites. Les signatures des résolutions circulaires ou des résolutions
adoptées par téléphone ou visioconférence peuvent être apposées sur un original ou sur plusieurs copies du même document, qui ensemble, constituent un seul et unique document.
16.4. Pour tous les points non expressément prévus par les Statuts, il est fait référence à la loi et,
sous réserve des dispositions légale d’ordre public, à tout accord présent ou futur conclu entre les actionnaires.
Pour statuts coordonnés
Le notaire
- 18 -
Exhibit 4.1
Schlumberger Investment SA
Schlumberger Limited
INDENTURE
Dated as of [ ]
The Bank of New York Mellon
as Trustee, Registrar, Paying Agent
and Transfer Agent
SCHLUMBERGER INVESTMENT SA
SCHLUMBERGER LIMITED
Reconciliation and tie between Trust Indenture Act of 1939
and
Indenture, dated as of [ ]
|
|
|
|
|
|
|
Section of
Trust Indenture
Act of 1939
|
|
Section(s) of
Indenture
|
|
§310
|
|
(a)(1)
|
|
7.10
|
|
|
|
(a)(2)
|
|
7.10
|
|
|
|
(a)(3)
|
|
Not Applicable
|
|
|
|
(a)(4)
|
|
Not Applicable
|
|
|
|
(a)(5)
|
|
7.10
|
|
|
|
(b)
|
|
7.8, 7.10
|
|
§311
|
|
(a)
|
|
7.11
|
|
|
|
(b)
|
|
7.11
|
|
|
|
(c)
|
|
Not Applicable
|
|
§312
|
|
(a)
|
|
2.6
|
|
|
|
(b)
|
|
10.2
|
|
§313
|
|
(a)
|
|
7.6
|
|
|
|
(b)
|
|
7.6
|
|
|
|
(c)
|
|
7.6
|
|
|
|
(d)
|
|
7.6
|
|
§314
|
|
(a)
|
|
4.2, 4.7
|
|
|
|
(b)
|
|
Not Applicable
|
|
|
|
(c)(1)
|
|
10.3
|
|
|
|
(c)(2)
|
|
10.3
|
|
|
|
(c)(3)
|
|
Not Applicable
|
|
|
|
(d)
|
|
Not Applicable
|
|
|
|
(e)
|
|
10.4
|
|
§315
|
|
(a)
|
|
7.1(b)
|
|
|
|
(b)
|
|
7.5
|
|
|
|
(c)
|
|
7.1(a)
|
|
|
|
(d)
|
|
7.1(c)
|
|
|
|
(d)(1)
|
|
7.1(c)(1)
|
|
|
|
(d)(2)
|
|
7.1(c)(2)
|
|
|
|
(d)(3)
|
|
7.1(c)(3)
|
|
|
|
(e)
|
|
6.14
|
|
§316
|
|
(a)(1)(A)
|
|
6.12
|
|
|
|
(a)(1)(B)
|
|
6.13
|
|
|
|
(a)(2)
|
|
Not Applicable
|
|
|
|
(a)(last sentence)
|
|
2.10
|
|
|
|
(b)
|
|
6.8
|
|
§317
|
|
(a)(1)
|
|
6.3
|
|
|
|
(a)(2)
|
|
6.4
|
|
|
|
(b)
|
|
2.5
|
|
§318
|
|
(a)
|
|
10.19
|
|
|
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a part of the Indenture.
|
TABLE OF CONTENTS
|
|
|
|
|
|
|
|
|
|
|
|
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Page
|
|
|
ARTICLE I. DEFINITIONS AND INCORPORATION BY REFERENCE
|
|
|
1
|
|
|
Section 1.1.
|
|
Definitions
|
|
|
1
|
|
|
Section 1.2.
|
|
Other Definitions
|
|
|
5
|
|
|
Section 1.3.
|
|
Rules of Construction
|
|
|
5
|
|
|
ARTICLE II. THE SECURITIES
|
|
|
5
|
|
|
Section 2.1.
|
|
Issuable in Series
|
|
|
5
|
|
|
Section 2.2.
|
|
Establishment of Terms of Series of Securities
|
|
|
5
|
|
|
Section 2.3.
|
|
Execution and Authentication
|
|
|
7
|
|
|
Section 2.4.
|
|
Paying Agent, Registrar and Transfer Agent
|
|
|
8
|
|
|
Section 2.5.
|
|
Paying Agent to Hold Money in Trust
|
|
|
9
|
|
|
Section 2.6.
|
|
Securityholder Lists
|
|
|
9
|
|
|
Section 2.7.
|
|
Transfer and Exchange
|
|
|
9
|
|
|
Section 2.8.
|
|
Mutilated, Destroyed, Lost and Stolen Securities
|
|
|
9
|
|
|
Section 2.9.
|
|
Outstanding Securities
|
|
|
10
|
|
|
Section 2.10.
|
|
Treasury Securities
|
|
|
10
|
|
|
Section 2.11.
|
|
Temporary Securities
|
|
|
11
|
|
|
Section 2.12.
|
|
Cancellation
|
|
|
11
|
|
|
Section 2.13.
|
|
Defaulted Interest
|
|
|
11
|
|
|
Section 2.14.
|
|
Global Securities
|
|
|
11
|
|
|
Section 2.15.
|
|
CUSIP Numbers
|
|
|
13
|
|
|
ARTICLE III. REDEMPTION
|
|
|
13
|
|
|
Section 3.1.
|
|
Notice to Trustee; No Liability for Calculations
|
|
|
13
|
|
|
Section 3.2.
|
|
Selection of Securities to be Redeemed
|
|
|
13
|
|
|
Section 3.3.
|
|
Notice of Redemption
|
|
|
13
|
|
|
Section 3.4.
|
|
Effect of Notice of Redemption
|
|
|
14
|
|
|
Section 3.5.
|
|
Deposit of Redemption Price
|
|
|
14
|
|
|
Section 3.6.
|
|
Securities Redeemed in Part
|
|
|
14
|
|
|
Section 3.7.
|
|
Sinking Fund
|
|
|
15
|
|
|
Section 3.8.
|
|
Satisfaction of Sinking Fund Payments with Securities
|
|
|
15
|
|
|
Section 3.9.
|
|
Redemption of Securities for Sinking Fund
|
|
|
15
|
|
|
Section 3.10.
|
|
Redemption Upon Changes in Tax Law
|
|
|
15
|
|
|
ARTICLE IV. COVENANTS
|
|
|
16
|
|
|
Section 4.1.
|
|
Payment of Principal, Premium and Interest
|
|
|
16
|
|
|
Section 4.2.
|
|
Compliance Certificate
|
|
|
16
|
|
|
Section 4.3.
|
|
Stay, Extension and Usury Laws
|
|
|
17
|
|
|
Section 4.4.
|
|
Corporate Existence
|
|
|
17
|
|
|
Section 4.5.
|
|
Limitation on Liens
|
|
|
17
|
|
|
Section 4.6.
|
|
Additional Amounts
|
|
|
18
|
|
|
Section 4.7.
|
|
Reports
|
|
|
20
|
|
|
ARTICLE V. SUCCESSORS
|
|
|
20
|
|
|
Section 5.1.
|
|
Consolidation, Merger and Sale of Assets
|
|
|
20
|
|
|
Section 5.2.
|
|
Assumption by a Subsidiary
|
|
|
21
|
|
|
ARTICLE VI. DEFAULTS AND REMEDIES
|
|
|
21
|
|
|
Section 6.1.
|
|
Events of Default
|
|
|
21
|
|
|
Section 6.2.
|
|
Acceleration of Maturity; Rescission and Annulment
|
|
|
22
|
|
|
Section 6.3.
|
|
Collection of Indebtedness and Suits for Enforcement by Trustee
|
|
|
22
|
|
|
Section 6.4.
|
|
Trustee May File Proofs of Claim
|
|
|
23
|
|
|
Section 6.5.
|
|
Trustee May Enforce Claims Without Possession of Securities
|
|
|
23
|
|
|
Section 6.6.
|
|
Application of Money Collected
|
|
|
24
|
|
|
Section 6.7.
|
|
Limitation on Suits
|
|
|
24
|
|
i
|
|
|
|
|
|
|
|
|
|
|
|
|
Page
|
|
|
Section 6.8.
|
|
Unconditional Right of Holders to Receive Principal and Interest
|
|
|
24
|
|
|
Section 6.9.
|
|
Restoration of Rights and Remedies
|
|
|
25
|
|
|
Section 6.10.
|
|
Rights and Remedies Cumulative
|
|
|
25
|
|
|
Section 6.11.
|
|
Delay or Omission Not Waiver
|
|
|
25
|
|
|
Section 6.12.
|
|
Control by Holders
|
|
|
25
|
|
|
Section 6.13.
|
|
Waiver of Past Defaults
|
|
|
25
|
|
|
Section 6.14.
|
|
Undertaking for Costs
|
|
|
26
|
|
|
ARTICLE VII. TRUSTEE
|
|
|
26
|
|
|
Section 7.1.
|
|
Duties of Trustee
|
|
|
26
|
|
|
Section 7.2.
|
|
Rights of Trustee
|
|
|
27
|
|
|
Section 7.3.
|
|
May Hold Securities
|
|
|
28
|
|
|
Section 7.4.
|
|
Trustee’s Disclaimer
|
|
|
28
|
|
|
Section 7.5.
|
|
Notice of Defaults
|
|
|
28
|
|
|
Section 7.6.
|
|
Reports by Trustee to Holders
|
|
|
28
|
|
|
Section 7.7.
|
|
Compensation and Indemnity
|
|
|
28
|
|
|
Section 7.8.
|
|
Replacement of Trustee
|
|
|
29
|
|
|
Section 7.9.
|
|
Successor Trustee by Merger, etc
|
|
|
30
|
|
|
Section 7.10.
|
|
Eligibility; Disqualification
|
|
|
31
|
|
|
Section 7.11.
|
|
Preferential Collection of Claims Against Company
|
|
|
31
|
|
|
ARTICLE VIII. DISCHARGE OF INDENTURE
|
|
|
31
|
|
|
Section 8.1.
|
|
Termination of Company’s Obligations
|
|
|
31
|
|
|
Section 8.2.
|
|
Application of Trust Money
|
|
|
34
|
|
|
Section 8.3.
|
|
Repayment to Company
|
|
|
34
|
|
|
Section 8.4.
|
|
Reinstatement
|
|
|
34
|
|
|
ARTICLE IX. AMENDMENTS AND WAIVERS
|
|
|
34
|
|
|
Section 9.1.
|
|
Without Consent of Holders
|
|
|
34
|
|
|
Section 9.2.
|
|
With Consent of Holders
|
|
|
35
|
|
|
Section 9.3.
|
|
Limitations
|
|
|
35
|
|
|
Section 9.4.
|
|
Form of Amendments
|
|
|
36
|
|
|
Section 9.5.
|
|
Revocation and Effect of Consents
|
|
|
36
|
|
|
Section 9.6.
|
|
Notation on or Exchange of Securities
|
|
|
36
|
|
|
Section 9.7.
|
|
Trustee Protected
|
|
|
37
|
|
|
ARTICLE X. MISCELLANEOUS
|
|
|
37
|
|
|
Section 10.1.
|
|
Notices
|
|
|
37
|
|
|
Section 10.2.
|
|
Communication by Holders with Other Holders
|
|
|
38
|
|
|
Section 10.3.
|
|
Certificate and Opinion as to Conditions Precedent
|
|
|
38
|
|
|
Section 10.4.
|
|
Statements Required in Certificate or Opinion
|
|
|
38
|
|
|
Section 10.5.
|
|
Rules by Trustee and Agents
|
|
|
39
|
|
|
Section 10.6.
|
|
Legal Holidays
|
|
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39
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Section 10.7.
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No Personal Liability of Directors, Officers, Employees and Certain Others
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39
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Section 10.8.
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Counterparts
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39
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Section 10.9.
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Governing Laws
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39
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Section 10.10.
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No Adverse Interpretation of Other Agreements
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39
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Section 10.11.
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Successors
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39
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Section 10.12.
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Severability
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40
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Section 10.13.
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Table of Contents, Headings, Etc
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40
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Section 10.14.
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Judgment Currency
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40
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Section 10.15.
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English Language
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40
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Section 10.16.
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Submission to Jurisdiction; Appointment of Agent
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40
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Section 10.17.
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Waiver of Immunity
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41
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Section 10.18.
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Waiver of Jury Trial
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41
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Section 10.19.
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Trust Indenture Act Controls
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41
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ii
Indenture dated as of
[ ] by and among Schlumberger Investment SA, a public limited liability company (
société anonyme
) organized under the laws of the Grand Duchy of Luxembourg
having its registered address at 5 Avenue Gaston Diderich, L-1420 Luxembourg and registered with the Luxembourg Register of Commerce and Companies under number B 163.122 (the “
Company
”), Schlumberger Limited, a company organized
under the laws of Curaçao (the “
Guarantor
”), and The Bank of New York Mellon, as trustee (the “
Trustee
”), registrar, paying agent and transfer agent.
Each party agrees as follows for the benefit of the other parties and for the equal and ratable benefit of the Holders (as defined below)
of the Securities (as defined below) issued under this Indenture.
ARTICLE I.
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1.
Definitions
.
“
Affiliate
” of any specified
Person means any other Person directly or indirectly controlling or controlled by or under common control with such specified Person. For the purposes of this definition, “control” (including, with correlative meanings, the terms
“controlled by” and “under common control with”), as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person,
whether through the ownership of voting securities or by agreement or otherwise.
“
Agent
” means any
Registrar, Paying Agent or Transfer Agent or any other agent appointed pursuant to this Indenture.
“
Board of
Directors
” means the Board of Directors of the Company, or the Guarantor, or any duly authorized committee thereof.
“
Board Resolution
” means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company or
the Guarantor, as applicable, to have been adopted by its Board of Directors or pursuant to authorization by its Board of Directors and to be in full force and effect on the date of the certification and delivered to the Trustee.
“
Business Day
” means, unless otherwise provided by Board Resolution, Officer’s Certificate or supplemental
indenture for a particular Series, any day except a Legal Holiday.
“
Capital Stock
” means (1) in the
case of a corporation, corporate stock; (2) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock; (3) in the case of a
partnership or limited liability company, partnership interests (whether general or limited) or membership interests; and (4) any other interest or participation that confers on a Person the right to receive a share of the profits and losses
of, or distributions of assets of, the issuing Person, but excluding from all of the foregoing any debt securities convertible into Capital Stock, whether or not such debt securities include any right of participation with Capital Stock.
“
Certificated Securities
” means definitive Securities in registered non-global certificated form.
“
Company
” means Schlumberger Investment SA until a successor replaces it and thereafter means the successor.
“
Company Order
” or “
Company Request
” means a written order signed in the name of the Company by one of
the Company’s Officers.
“
Consolidated Net Worth
” means the amount of total stockholders’ equity
shown in the Guarantor’s most recent quarterly consolidated statement of financial position.
“
Corporate Trust Office
” means the office of the Trustee at which at any
particular time its corporate trust business shall be principally administered, which, as of the date hereof is the address set forth in Section 10.1.
“
Default
” means any event which is, or after notice or passage of time or both would be, an Event of Default.
“
Depositary
” means, with respect to the Securities of any Series issuable or issued in whole or in part in the form of one or more Global Securities, the Person designated as Depositary
for such Series by the Company which Depositary shall be a clearing agency registered under the Exchange Act; and if at any time there is more than one such Person, “
Depositary
” as used with respect to the Securities of any Series
shall mean the Depositary with respect to the Securities of such Series.
“
Discount Security
” means any
Security that provides for an amount less than the stated principal amount thereof to be due and payable upon declaration of acceleration of the Maturity thereof pursuant to Section 6.2.
“
Dollars
” or “
$
” means the currency of The United States of America.
“
Exchange Act
” means the Securities Exchange Act of 1934, as amended.
“GAAP”
means accounting principles generally accepted in the United States of America set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as have been
approved by a significant segment of the accounting profession, which are in effect from time to time.
“
Global
Security
” or “
Global Securities
” means a Security or Securities, as the case may be, in the form established pursuant to Section 2.2 evidencing all or part of a Series of Securities, issued to the Depositary for such
Series or its nominee, and registered in the name of such Depositary or nominee.
“
Government Obligations
”
means securities which are (i) direct obligations of The United States of America for the payment of which its full faith and credit is pledged or (ii) obligations of a Person controlled or supervised by and acting as an agency or
instrumentality of The United States of America the payment of which is unconditionally guaranteed as a full faith and credit obligation by The United States of America, and which in the case of (i) and (ii) are not callable or redeemable
at the option of the issuer thereof, and shall also include a depository receipt issued by a bank or trust company as custodian with respect to any such Government Obligation or a specific payment of interest on or principal of any such Government
Obligation held by such custodian for the account of the holder of a depository receipt,
provided
that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of the Government Obligation evidenced by such depository receipt.
“
Guarantee
” means a guarantee by the Guarantor of the Company’s obligations under this Indenture and any Securities
and as provided in the applicable Board Resolution, Officer’s Certificate or supplemental indenture establishing the terms of such Series of Securities.
“
Holder
” or “
Securityholder
” means a Person in whose name a Security is registered in the register maintained by the Registrar.
“
Indenture
” means this Indenture as amended or supplemented from time to time and shall include the form and terms of
particular Series of Securities established as contemplated hereunder.
2
“
indenture securities
” means the Securities.
“
Issue Date
” means, with respect to any Security, the date of original issuance of such Security.
“Legal Holiday
” means a Saturday, a Sunday or a day on which banking institutions in any of The City of New York, New
York or a place of payment are authorized or obligated by law, regulation or executive order to remain closed.
“
Maturity
,” when used with respect to any Security, means the date on which the principal of such Security becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.
“
Mortgage
” means and includes any mortgage, pledge, lien, security interest, conditional sale or other title retention agreement or other similar encumbrance.
“
Non-recourse Debt
” means indebtedness as to which (a) neither the Company, the Guarantor nor any of its other
Subsidiaries (x) provides credit support of any kind or (y) is directly or indirectly liable as a guarantor or otherwise and (b) as to which the lenders have been notified in writing that they will not have any recourse to the stock
or assets of the Company, the Guarantor or any of its other Subsidiaries.
“
obligor
” on the indenture
securities means the Company issuing the Securities and any successor to such obligor upon the Securities, and the Guarantor, and its successor.
“
Officer
” means the Chief Executive Officer, Chief Operating Officer, Chief Financial Officer, President, any Vice-President, the Treasurer, a Director, the Chairman, the Secretary, any
Assistant Treasurer or any Assistant Secretary of the Company or the Guarantor, as applicable.
“
Officer’s
Certificate
” means a certificate signed by an Officer of the Company or the Guarantor, as applicable.
“
Opinion of Counsel
” means a written opinion of legal counsel who is acceptable to the Trustee. The counsel may be a
direct or indirect employee of or counsel to the Company or the Guarantor.
“
Person
” means any individual,
corporation, partnership, limited liability company, association, joint venture, trust, joint stock company or any other entity or organization, including a government or political subdivision or an agency or instrumentality thereof.
“
principal
” of a Security means the principal of the Security plus, when appropriate, the premium, if any, on, and any
Additional Amounts in respect of, the Security.
“
Responsible Officer
” means any officer of the Trustee in
its Corporate Trust Office responsible for the administration of this Indenture and also means, with respect to a particular corporate trust matter, any other officer to whom any corporate trust matter is referred because of his or her knowledge of
and familiarity with a particular subject.
“
Restricted Property
” means any real property, manufacturing
plant, warehouse, office building or other physical facility, or any item of marine, transportation or construction equipment or other like depreciable assets of the Guarantor or any of its Restricted Subsidiaries, whether owned on or acquired after
the Issue Date of the Securities of any Series, unless, in the opinion of the Board of Directors of the Guarantor, such plant or facility or other asset is not of material importance to the total business conducted by the Guarantor and its
Restricted Subsidiaries taken as a whole.
3
“
Restricted Security
”, with respect to any Series of Securities, means a
Security of such Series, unless or until it has been (i) effectively registered under the Securities Act and disposed of in accordance with a registration statement with respect to such Series or (ii) distributed to the public pursuant to
Rule 144 under the Securities Act or any similar provision then in force.
“
Restricted Subsidiary
” means any
Subsidiary of the Guarantor which owns a Restricted Property.
“
SEC
” means the Securities and Exchange
Commission.
“
Securities
” means any debentures, notes or other debt instruments of the Company of any Series
authenticated and delivered under this Indenture.
“
Securities Act
” means the Securities Act of 1933, as
amended.
“
Series
” or “
Series of Securities
” means each series of Securities of the Company
created pursuant to Sections 2.1 and 2.2 hereof.
“
Stated Maturity
” when used with respect to any Security,
means the date specified in such Security as the fixed date on which the principal of such Security or interest is due and payable.
“
Subsidiary
” means, with respect to any specified Person, (a) any corporation, association or other business entity of which more than 50% of the total voting power of shares of
Capital Stock entitled (without regard to the occurrence of any contingency and after giving effect to any voting agreement or stockholders’ agreement that effectively transfers voting power) to vote in the election of directors, managers or
trustees of the corporation, association or other business entity is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other subsidiaries of that Person (or a combination thereof); and (b) any
partnership or limited liability company of which (x) more than 50% of the capital accounts, distribution rights, total equity and voting interests or general and limited partnership interests, as applicable, are owned or controlled, directly
or indirectly, by such Person or one or more of the other subsidiaries of that Person or a combination thereof, whether in the form of membership, general, special or limited partnership interests or otherwise, and (y) such Person or any
subsidiary of such Person is a controlling general partner or otherwise controls such entity.
“
TIA
” means
the Trust Indenture Act of 1939, as amended, as in effect on the date hereof.
“
Trustee
” means the Person
named as the “
Trustee
” in the first paragraph of this instrument until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “
Trustee
” shall mean or
include each Person who is then a Trustee hereunder, and if at any time there is more than one such Person, “
Trustee
” as used with respect to the Securities of any Series shall mean the Trustee with respect to Securities of that
Series.
“
Unrestricted Securities
”, with respect to any Series of Securities, means a Security
(i) effectively registered under the Securities Act and disposed of in accordance with a registration statement with respect to such Series or (ii) distributed to the public pursuant to Rule 144 under the Securities Act or any similar
provision then in force.
4
Section 1.2.
Other Definitions
.
|
|
|
|
|
|
|
TERM
|
|
DEFINED IN
SECTION
|
|
|
“
Additional Amounts
”
|
|
|
4.6
|
(a)
|
|
“
Bankruptcy Law”
|
|
|
6.1
|
|
|
“
covenant defeasance
”
|
|
|
8.1
|
(b)
|
|
“
Custodian
”
|
|
|
6.1
|
|
|
“
Events of Default
”
|
|
|
6.1
|
|
|
“
Judgment Currency
”
|
|
|
10.14
|
|
|
“
legal defeasance
”
|
|
|
8.1
|
(c)
|
|
“
New York Banking Day
”
|
|
|
10.14
|
|
|
“
Paying Agent
”
|
|
|
2.4
|
|
|
“
Process Agent
”
|
|
|
10.16
|
|
|
“
Registrar
”
|
|
|
2.4
|
|
|
“
Related Proceeding
”
|
|
|
10.16
|
|
|
“
Relevant Tax Jurisdiction
”
|
|
|
4.6
|
(a)
|
|
“
Required Currency
”
|
|
|
10.14
|
|
|
“
Taxes
”
|
|
|
4.6
|
(a)
|
|
“
Tax Redemption Date
”
|
|
|
3.10
|
|
|
“
Tax Jurisdiction
”
|
|
|
4.6
|
(a)
|
|
“
Transfer Agent
”
|
|
|
2.4
|
|
Section 1.3.
Rules of Construction
.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term
not otherwise defined has the meaning assigned to it in accordance with GAAP;
(c) “
or
” is not
exclusive;
(d) words in the singular include the plural, and in the plural include the singular; and
(e) provisions apply to successive events and transactions.
ARTICLE II.
THE
SECURITIES
Section 2.1.
Issuable in Series
.
The aggregate principal amount of Securities that may be authenticated and delivered under this Indenture is unlimited. The Securities may be issued in one or more Series. All Securities of a Series shall
be identical except as may be set forth in, or pursuant to a Board Resolution, Officer’s Certificate or supplemental indenture establishing the terms of such Series of Securities.
Section 2.2.
Establishment of Terms of Series of Securities
.
At or prior to the issuance of any Securities within a Series, the following shall be established (as to the Series generally, in the case
of Subsection 2.2.1 and either as to such Securities within the Series or as to the Series generally in the case of Subsections 2.2.2 through 2.2.29) by or pursuant to a Board Resolution, Officer’s Certificate or supplemental indenture:
2.2.1. the title of the Series (which shall distinguish the Securities of that particular Series from the Securities of any
other Series);
5
2.2.2. the aggregate principal amount of the Securities of the Series to be issued;
2.2.3. any limit upon the aggregate principal amount of the Securities of the Series which may be authenticated and delivered
under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the Series pursuant to Section 2.7, 2.8, 2.11, 3.6 or 9.6);
2.2.4. the date or dates on which the principal and premium, if any, of the Securities of the Series is payable;
2.2.5. the rate or rates, which may be fixed or variable, at which the Securities of the Series shall bear interest or the manner of
calculation of such rate or rates, if any, including any procedures to vary or reset such rate or rates, and the basis upon which interest will be calculated if other than that of a 360-day year of twelve 30-day months;
2.2.6. the place or places where the principal of and interest, if any, on the Securities of the Series shall be payable, where the
Securities of such Series may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company with respect to the Securities of such Series and this Indenture may be served, and the method of such
payment, if by wire transfer, mail or other means if other than as set forth in this Indenture;
2.2.7. the date or dates from
which such interest shall accrue, the dates on which such interest will be payable or the manner of determination of such dates, and the record date for the determination of Holders to whom interest is payable on any such dates;
2.2.8. the right, if any, to extend the interest payment periods or defer the payment of interest and the duration of such extension or
deferral;
2.2.9. if applicable, the period or periods within which, the price or prices at which and the terms and conditions
upon which the Securities of the Series may be redeemed, in whole or in part, at the option of the Company if other than as set forth in this Indenture;
2.2.10. the obligation, if any, of the Company to redeem or purchase, if other than as set forth herein, the Securities of the Series pursuant to any sinking fund or analogous provisions, including
payments made in cash in anticipation of future sinking fund obligations, or at the option of a Holder thereof and the period or periods within which, the price or prices at which and the terms and conditions upon which Securities of the Series
shall be redeemed or purchased, in whole or in part, pursuant to such obligation;
2.2.11. the terms of any repurchase or
remarketing rights;
2.2.12. if other than denominations of $2,000 or integral multiples of $1,000 in excess thereof, the
denominations in which the Securities of the Series shall be issuable;
2.2.13. the forms of the Securities of the Series
including the form of the Trustee’s certificate of authentication for such Series;
2.2.14. any trustees, authenticating
agents or Agents with respect to the Securities of the Series, if different from those set forth in this Indenture;
2.2.15. if
the Securities of the Series shall be issued in whole or in part in the form of a Global Security or Securities, the type of Global Security to be issued; the terms and conditions, if different from those contained in this Indenture, upon which such
Global Security or Securities may be exchanged in whole or in part for other individual Securities in definitive registered form; the Depositary for such Global Security or Securities; and the form of any legend or legends to be borne by any such
Global Security or Securities in addition to or in lieu of the legend referred to in Section 2.14.3;
2.2.16. any
provisions granting special rights to Holders when a specified event occurs;
2.2.17. if the amount of principal or any premium
or interest on Securities of any Series may be determined with reference to an index or pursuant to a formula, the manner in which such amounts will be determined;
6
2.2.18. any special tax implications of the Securities, including provisions for original
issue discount securities, if offered;
2.2.19. whether and upon what terms Securities of the Series may be defeased if
different from the provisions set forth in this Indenture;
2.2.20. with regard to the Securities of any Series that do not
bear interest, the dates for certain required reports to the Trustee;
2.2.21. whether the Securities of any Series will be
issued as Unrestricted Securities or Restricted Securities, and, if issued as Restricted Securities, the rule or regulation promulgated under the Securities Act in reliance on which they will be sold;
2.2.22. any guarantees on the Securities of the Series, if different from, or in addition to, the Guarantee provided pursuant to this
Indenture;
2.2.23. the currency or currencies in which payment of the principal of, premium, if any, and interest on, the
Securities of the Series shall be payable;
2.2.24. if other than the principal amount thereof, the portion of the principal
amount of the Securities of the Series that shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 6.2;
2.2.25. the provisions, if any, relating to any security provided for the Securities of the Series;
2.2.26. any additional covenants or Events of Default that will apply to the Securities of the Series, or any changes to the covenants set forth in Article IV or the Events of Default set forth in
Section 6.1 that will apply to the Securities of the Series, which may consist of establishing different terms or provisions from those set forth in Article IV or Section 6.1 or eliminating any such covenant or Event of Default with
respect to the Securities of the Series;
2.2.27. any Depositaries, interest rate calculation agents, exchange rate calculation
agents or other agents with respect to Securities of such Series if other than those appointed herein;
2.2.28. whether the
Securities of the Series will be convertible into or exchangeable for other Securities, common shares or other securities of any kind of the Company or another obligor, and, if so, the terms and conditions upon which such Securities will be so
convertible or exchangeable, including the initial conversion or exchange price or rate or the method of calculation, how and when the conversion price or exchange ratio may be adjusted, whether conversion or exchange is mandatory, at the option of
the Holder or at the Company’s option, the conversion or exchange period, and any other provision in addition to or in lieu of those described herein; and
2.2.29. any and all additional, eliminated or changed terms that shall apply to the Securities of the Series, including any terms that may be required by or advisable under United States laws or
regulations, including the Securities Act and the rules and regulations promulgated thereunder, or advisable in connection with the marketing of Securities of that Series.
All Securities of any one Series need not be issued at the same time and may be issued from time to time, consistent with the terms of this Indenture, if so provided by or pursuant to the Board
Resolution, Officer’s Certificate or supplemental indenture referred to above.
Section 2.3.
Execution and
Authentication
.
An Officer of the Company shall sign the Securities for the Company by manual or facsimile signature.
If an Officer whose signature is on a Security no longer holds that office at the time the Security is authenticated, the
Security shall nevertheless be valid.
7
A Security shall not be valid until authenticated by the manual signature of the Trustee or
an authenticating agent. The signature shall be conclusive evidence that the Security has been authenticated under this Indenture.
The Trustee shall at any time, and from time to time, authenticate Securities for original issue in the principal amount provided in the Board Resolution, Officer’s Certificate or supplemental
indenture, upon receipt by the Trustee of a Company Order. Each Security shall be dated the date of its authentication unless otherwise provided by the relevant Board Resolution, Officer’s Certificate or supplemental indenture.
The aggregate principal amount of Securities of any Series outstanding at any time may not exceed any limit upon the maximum principal
amount for such Series set forth in the Board Resolution, Officer’s Certificate or supplemental indenture delivered pursuant to Section 2.2.
Prior to the issuance of Securities of any Series, the Trustee shall have received and (subject to Section 7.2) shall be fully protected in relying on: (a) the Board Resolution, Officer’s
Certificate or supplemental indenture establishing the form of the Securities of that Series or of Securities within that Series and the terms of the Securities of that Series or of Securities within that Series, (b) an Officer’s
Certificate complying with Section 10.4, and (c) an Opinion of Counsel complying with Section 10.4.
The
Trustee shall have the right to decline to authenticate and deliver any Securities of such Series: (a) if the Trustee, being advised by counsel, determines that such action may not be taken lawfully; or (b) if the Trustee in good faith by
its board of directors or trustees, executive committee or a committee of Responsible Officers shall determine that such action would expose the Trustee to personal liability.
The Trustee may appoint an authenticating agent to authenticate Securities. An authenticating agent may authenticate Securities whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An authenticating agent has the same rights as an Agent to deal with the Company or an Affiliate of the Company.
Section 2.4.
Paying Agent, Registrar and Transfer Agent
.
The Company will maintain one or more paying agents (each, a “
Paying Agent
”) for the Securities in the Borough of Manhattan, City of New York. The Company will undertake to maintain a
Paying Agent in a member state of the European Union that is not obligated to withhold or deduct Tax pursuant to the European Union Directive 2003/48/EC or any other directive implementing the conclusions of the ECOFIN Council meeting of 26 and
27 November 2000 on the taxation of savings income, or any law implementing, or complying with or introduced in order to conform to, such directive. The initial Paying Agent will be The Bank of New York Mellon in
[ ] and thereafter “
Paying Agent
” shall mean or include each Person who is then a Paying Agent hereunder, and if at any time there is more than one such Person,
“
Paying Agent
” as used with respect to the Securities of any Series shall mean the Paying Agent with respect to Securities of that Series.
The Company will also maintain one or more registrars (each, a “
Registrar
”) with an office in the Borough of Manhattan, City of New York. The Company will also maintain a transfer agent
(each a “
Transfer Agent
”) in the Borough of Manhattan, City of New York. The initial Registrar will be The Bank of New York Mellon in [ ] and thereafter
“
Registrar
” shall mean or include each Person who is then a Registrar hereunder, and if at any time there is more than one such Person, “
Registrar
” as used with respect to the Securities of any Series shall mean the
Registrar with respect to Securities of that Series. The initial Transfer Agent will be The Bank of New York Mellon in [ ] and thereafter “
Transfer Agent
” shall
mean or include each Person who is then a Transfer Agent hereunder, and if at any time there is more than one such Person, “
Transfer Agent
” as used with respect to the Securities of any Series shall mean the Transfer Agent with
respect to Securities of that Series. The Registrar will maintain a register reflecting ownership of Securities outstanding from time to time and the Paying Agent will make payments on, and the Transfer Agents will facilitate transfer
8
of Securities, on the behalf of the Company. The Company shall maintain an up-to-date copy of such register of its Securities at its registered office, and the Registrar shall provide upon
written request by the Company an up-to-date copy thereof. Each Transfer Agent shall perform the functions of a transfer agent.
The Company may change any Paying Agent, Registrar or Transfer Agent for its Securities without prior notice to the Holders.
Section 2.5.
Paying Agent to Hold Money in Trust
.
The Company shall require each Paying Agent appointed by it other than the Trustee to agree in writing that the Paying Agent will hold in trust, for the benefit of Securityholders of any Series of
Securities, or the Trustee, all money held by the Paying Agent for the payment of principal of or interest on the Series of Securities, and will notify the Trustee of any default by the Company in making any such payment. While any such default
continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee. The Company at any time may require a Paying Agent to pay all money held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other
than the Company or a Subsidiary of the Company) shall have no further liability for the money. If the Company or a Subsidiary of the Company acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of
Securityholders of any Series of Securities all money held by it as Paying Agent.
Section 2.6.
Securityholder Lists
.
The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the
names and addresses of Securityholders of each Series of Securities and shall otherwise comply with TIA § 312(a). If the Trustee is not the Registrar, the Company shall furnish to the Trustee at least ten days before each interest payment date
and at such other times as the Trustee may request in writing a list, in such form and as of such date as the Trustee may reasonably require, of the names and addresses of Securityholders of each Series of Securities, and the Company shall otherwise
comply with TIA § 312(a).
Section 2.7.
Transfer and Exchange
.
Where Securities of a Series are presented to the Registrar or a co-registrar with a request to register a transfer or to exchange them
for an equal principal amount of Securities of the same Series, the Registrar shall register the transfer or make the exchange if the requirements for such transactions set forth in this Indenture are met. To permit registrations of transfers and
exchanges, the Trustee shall authenticate Securities at the Registrar’s request upon the Trustee’s receipt of a Company Order from the Company. No service charge shall be made for any registration of transfer or exchange (except as
otherwise expressly permitted herein), but the Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith (other than any such transfer tax or similar governmental charge
payable upon exchanges pursuant to Sections 2.11, 3.6 or 9.6).
Neither the Company nor the Registrar shall be required
(a) to issue, register the transfer of, or exchange Securities of any Series for the period beginning at the opening of business fifteen days immediately preceding the delivery of a notice of redemption of Securities of that Series selected for
redemption and ending at the close of business on the day of such delivery, or (b) to register the transfer of or exchange Securities of any Series selected, called or being called for redemption as a whole or the portion being redeemed of any
such Securities selected, called or being called for redemption in part.
Section 2.8.
Mutilated, Destroyed, Lost and
Stolen Securities
.
If any mutilated Security is surrendered to the Trustee, the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor a new Security of the same Series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
9
If there shall be delivered to the Company and the Trustee (i) evidence to their
satisfaction of the destruction, loss or theft of any Security and (ii) such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Company or the
Trustee that such Security has been acquired by a protected purchaser, the Company shall execute and upon receipt of a Company Order, the Trustee shall authenticate and make available for delivery, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same Series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section 2.8, the Company may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any Series issued pursuant to this Section 2.8 in lieu of any destroyed, lost or stolen Security shall constitute an original additional contractual obligation of the Company
whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of that Series duly issued
hereunder.
The provisions of this Section 2.8 are exclusive and shall preclude (to the extent lawful) all other rights
and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities.
Section 2.9.
Outstanding Securities
.
The Securities outstanding at any time are all the Securities authenticated by the Trustee
except for those canceled by it, those delivered to it for cancellation, those reductions in the interest on a Security, if applicable, effected by the Trustee in accordance with the provisions hereof and those described in this Section 2.9 as
not outstanding.
If a Security is replaced pursuant to Section 2.8, it ceases to be outstanding until the Trustee
receives proof satisfactory to it that the replaced Security is held by a protected purchaser.
If the Paying Agent (other
than the Company, a Subsidiary of the Company or an Affiliate of the Company) holds on the Maturity of Securities of a Series money sufficient to pay such Securities payable on that date, then on and after that date such Securities of the Series
cease to be outstanding and interest on them ceases to accrue.
The Company may purchase or otherwise acquire the Securities,
whether by open market purchases, negotiated transactions or otherwise. A Security does not cease to be outstanding because the Company or an Affiliate of the Company holds the Security.
In determining whether the Holders of the requisite principal amount of outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, the principal amount of a Discount Security that shall be deemed to be outstanding for such purposes shall be the amount of the principal thereof that would be due and payable as of the
date of such determination upon a declaration of acceleration of the Maturity thereof pursuant to Section 6.2.
Section
2.10.
Treasury Securities
.
In determining whether the Holders of the required principal amount of Securities of a
Series have concurred in any request, demand, authorization, direction, notice, consent or waiver, Securities of a Series
10
owned by the Company or any Affiliate of the Company shall be disregarded, except that for the purposes of determining whether the Trustee shall be protected in relying on any such request,
demand, authorization, direction, notice, consent or waiver only Securities of a Series that a Responsible Officer of the Trustee knows are so owned shall be so disregarded.
Section 2.11.
Temporary Securities
.
Until definitive Securities are ready
for delivery, the Company may prepare and the Trustee shall authenticate temporary Securities upon a Company Order. Temporary Securities shall be substantially in the form of definitive Securities but may have variations that the Company considers
appropriate for temporary Securities. Without unreasonable delay, the Company shall prepare and the Trustee upon request shall authenticate definitive Securities of the same Series and date of Maturity in exchange for temporary Securities. Until so
exchanged, temporary Securities shall have the same rights under this Indenture as the definitive Securities.
Section 2.12.
Cancellation
.
The Company at any time may deliver Securities to the Trustee for cancellation. The Agents shall forward
to the Trustee any Securities surrendered to them for registration of transfer, exchange or payment. The Trustee shall cancel all Securities surrendered for transfer, exchange, payment, replacement or cancellation and shall destroy such canceled
Securities (subject to the record retention requirement of the Exchange Act) and deliver a certificate of such destruction to the Company unless the Company otherwise directs the Trustee in writing. The Company may not issue new Securities to
replace Securities that it has paid or delivered to the Trustee for cancellation.
Section 2.13.
Defaulted Interest
.
If the Company defaults in a payment of interest on a Series of Securities, it shall pay the defaulted interest, plus, to the
extent permitted by law, any interest payable on the defaulted interest, to the Persons who are Securityholders of the Series on a subsequent special record date. The Company shall fix the record date and payment date. At least 10 days before the
record date, the Company shall deliver to the Trustee and to each Securityholder of the Series a notice that states the record date, the payment date and the amount of interest to be paid. The Company may pay defaulted interest in any other lawful
manner.
Section 2.14.
Global Securities
.
2.14.1.
Terms of Securities
. A Board Resolution, an Officer’s Certificate or, a supplemental indenture shall establish whether the Securities of a Series shall be issued in whole or in part in
the form of one or more Global Securities and the Depositary for such Global Security or Securities.
2.14.2.
Transfer and
Exchange
. Notwithstanding any provisions to the contrary contained in Section 2.7 of this Indenture and in addition thereto, any Global Security shall be exchangeable pursuant to Section 2.7 of this Indenture for Certificated
Securities registered in the names of Holders other than the Depositary for such Security or its nominee only if (i) such Depositary notifies the Company that it is unwilling or unable to continue as Depositary for such Global Security or if at
any time such Depositary ceases to be a clearing agency registered under the Exchange Act, and, in either case, the Company fails to appoint a successor Depositary registered as a clearing agency under the Exchange Act within 90 days of such event
or (ii) the Company executes and delivers to the Trustee an Officer’s Certificate to the effect that such Global Security shall be so exchangeable. Any Global Security that is exchangeable pursuant to the preceding sentence shall be
exchangeable for Certificated Securities registered in such names as the Depositary shall direct in writing in an aggregate principal amount equal to the principal amount of the Global Security with like tenor and terms.
11
Except as provided in this Section 2.14.2, a Global Security may not be transferred
except as a whole by the Depositary with respect to such Global Security to a nominee of such Depositary, by a nominee of such Depositary to such Depositary or another nominee of such Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such a successor Depositary.
Neither the Trustee nor any Agent shall have any obligation
or duty to monitor, determine or inquire as to compliance with any tax or securities laws with respect to any restrictions on transfer imposed under this Indenture or under applicable law (including any transfers between or among Depositary
participants, members or beneficial owners in any Global Security) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by, the terms of
this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.
2.14.3.
Legend
. Any Global Security issued hereunder shall bear a legend in substantially the following form:
“THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE
DEPOSITARY OR A NOMINEE OF THE DEPOSITARY. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF
SUCH A SUCCESSOR DEPOSITARY.”
2.14.4.
Acts of Holders
. The Depositary, as a Holder, may appoint agents and
otherwise authorize participants to give or take any request, demand, authorization, direction, notice, consent, waiver or other action which a Holder is entitled to give or take under this Indenture.
2.14.5.
Payments
. Notwithstanding the other provisions of this Indenture, unless otherwise specified as contemplated by
Section 2.2, payment of the principal of and interest, if any, on any Global Security shall be made to the Holder thereof, which in the case of a Depositary therefor will be made in accordance with its applicable procedures.
2.14.6.
Holders
. The Company, the Trustee and each Agent shall treat the Person in whose name any Security is registered in the
register maintained by the Registrar as the Holder for all purposes including for purposes of obtaining any consents, declarations, waivers or directions permitted or required to be given by the Holders pursuant to this Indenture.
2.14.7. None of the Trustee or any Agent shall have any responsibility or obligation to any beneficial owner of an interest in a Global
Security, a member of, or a participant in, the Depositary or other Person with respect to the accuracy of the records of the Depositary or its nominee or of any participant or member thereof, with respect to any ownership interest in the Securities
or with respect to the delivery to any participant, member, beneficial owner or other Person (other than the Depositary) of any notice (including any notice of redemption) or the payment of any amount or delivery of any Securities (or other security
or property) under or with respect to such Securities. All notices and communications to be given to the Holders and all payments to be made to Holders in respect of the Securities shall be given or made only to or upon the order of the registered
Holders (which shall be the Depositary or its nominee in the case of a Global Security). The rights of beneficial owners in any Global Security shall be exercised only through the Depositary subject to the applicable rules and procedures of the
Depositary. The Trustee and each Agent may rely and shall be fully protected in relying upon information furnished by the Depositary with respect to its members, participants and any beneficial owners.
12
Section 2.15.
CUSIP Numbers
.
The Company in issuing the Securities may use “CUSIP,” “ISIN” and or “Common Code” numbers (if then
generally in use), and, if so, the Trustee shall use “CUSIP,” “ISIN” and or “Common Code” numbers in notices of redemption as a convenience to Holders;
provided
that any such notice may state that no
representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of a redemption and that reliance may be placed only on the other elements of identification printed on the Securities,
and any such redemption shall not be affected by any defect in or omission of such numbers.
ARTICLE III.
REDEMPTION
Section 3.1.
Notice to Trustee; No Liability for Calculations
.
The Company may, with respect to any Series of Securities, reserve the right to redeem and pay such Series of Securities or may covenant
to redeem and pay such Series of Securities or any part thereof prior to the Stated Maturity thereof at such time and on such terms as provided for in Sections 3.7, 3.8, 3.9 and 3.10 hereof and, as applicable, in the Board Resolution, Officer’s
Certificate or supplemental indenture relating to such Series. If a Series of Securities is redeemable and the Company wants or is obligated to redeem prior to the Stated Maturity thereof all or part of the Series of Securities pursuant to the terms
of such Securities, it shall notify the Trustee in writing of the redemption date and the principal amount of Series of Securities to be redeemed at least 40 days before a redemption date (or such shorter notice as may be acceptable to the Trustee).
The Trustee shall have no liability with respect to or obligation to calculate the redemption price of any Securities to be redeemed pursuant to this Indenture.
Section 3.2.
Selection of Securities to be Redeemed
.
Unless otherwise
indicated for a particular Series by a Board Resolution, Officer’s Certificate or a supplemental indenture, if fewer than all of the Securities of a Series are to be redeemed at any time, the Trustee will select the Securities of a Series to be
redeemed on a
pro rata
basis (or, in the case of Securities issued in global form, based on a method that most nearly approximates a
pro rata
selection as the Trustee deems fair and appropriate) unless otherwise required by law or
applicable stock exchange or Depositary requirements. The Trustee will not be liable for selections made by it as contemplated in this section.
No Securities of a Series in principal amount of less than the minimum authorized denomination can be redeemed in part.
Notices of purchase or redemption will be given to each Holder pursuant to Section 3.3 and Section 10.1.
Section 3.3.
Notice of Redemption
.
Unless otherwise indicated for a
particular Series by Board Resolution, Officer’s Certificate or supplemental indenture, at least 30 days but not more than 60 days before a redemption date, the Company will deliver a notice of redemption to each Holder whose Securities are to
be redeemed in accordance with Section 10.1, except that redemption notices may be given more than 60 days prior to a redemption date if the notice is issued in connection with a defeasance of the Securities or a satisfaction and discharge of
this Indenture pursuant to Article VIII hereof.
The notice shall identify the Securities to be redeemed and corresponding
CUSIP, ISIN or Common Code numbers, as applicable, and will state:
(a) the redemption date;
13
(b) the redemption price and the amount of accrued interest, if any, and
Additional Amounts, if any, to be paid;
(c) if any Global Security is being redeemed in part, the portion of
the principal amount of such Global Security to be redeemed and that, after the redemption date upon surrender of such Global Security, the principal amount thereof will be decreased by the portion thereof redeemed pursuant thereto;
(d) if any Certificated Security is being redeemed in part, the portion of the principal amount of such Security to be
redeemed, and that, after the redemption date, upon surrender of such Security, a new Certificated Security or Certificated Securities in principal amount equal to the unredeemed portion thereof will be issued in the name of the Holder thereof upon
cancellation of the original Certificated Security;
(e) the name and address of the Paying Agent(s) to which
the Securities are to be surrendered for redemption;
(f) that Securities called for redemption must be
surrendered to the relevant Paying Agent to collect the redemption price, plus accrued and unpaid interest, if any, and Additional Amounts, if any;
(g) that, unless the Company defaults in making such redemption payment, interest and Additional Amounts, if any, on Securities called for redemption cease to accrue on and after the redemption date;
(h) that Securities of the Series called for redemption must be surrendered to the Paying Agent to collect the
redemption price;
(i) the paragraph of the Securities and/or Section of this Indenture pursuant to which the
Securities called for redemption are being redeemed; and
(j) that no representation is made as to the
correctness or accuracy of the CUSIP, ISIN or Common Code numbers, if any, listed in such notice or printed on the Securities.
At the Company’s written request, the Trustee shall give the notice of redemption in the Company’s name and at its expense;
provided
,
however
, that the Company has delivered to the Trustee, at least 40 days prior to the redemption date, an Officer’s Certificate requesting that the Trustee give such notice and setting forth the information to be stated
in such notice as provided in the preceding paragraph.
Section 3.4.
Effect of Notice of Redemption
.
Once notice of redemption is given as provided in Section 3.3, Securities of a Series called for redemption become due and payable
on the redemption date and at the redemption price. Unless otherwise indicated for a particular Series by Board Resolution, Officer’s Certificate or supplemental indenture, a notice of redemption may not be conditional. Upon surrender to the
Paying Agent, such Securities shall be paid at the redemption price plus accrued interest to the redemption date.
On or after
any purchase or redemption date, unless the Company or the Guarantor defaults in payment of the purchase or redemption price, interest shall cease to accrue on Securities or portions thereof tendered for purchase or called for redemption.
Section 3.5.
Deposit of Redemption Price
.
On or before 10:00 a.m., New York City time, on the redemption date, the Company shall deposit with the Paying Agent money in immediately available funds sufficient to pay the redemption price of and
accrued interest, if any, on all Securities to be redeemed on that date.
Section 3.6.
Securities Redeemed in Part
.
Upon surrender of a Certificated Security that is redeemed in part, the Trustee shall authenticate for the Holder a new
Certificated Security of the same Series and the same Maturity equal in principal amount to the unredeemed portion of the Security surrendered.
14
Section 3.7.
Sinking Fund
.
Unless otherwise indicated for a particular Series by Board Resolution, Officer’s Certificate or supplemental indenture, the
provisions of Sections 3.8 and 3.9 shall be applicable to any sinking fund for the retirement of Securities of a Series.
Section 3.8.
Satisfaction of Sinking Fund Payments with Securities
.
The Company (i) may deliver outstanding Securities of a Series other than any Securities previously called for redemption and
(ii) may apply as a credit Securities of a Series that have been redeemed either at the election of the Company pursuant to the terms of such Securities or through the application of permitted optional sinking fund payments pursuant to the
terms of such Securities, in each case in satisfaction of all or any part of any sinking fund payment with respect to the Securities of such Series required to be made pursuant to the terms of such Securities, provided that such Securities have not
been previously so credited. Such Securities shall be received and credited for such purpose by the Trustee at the redemption price specified in such Securities for redemption through operation of the sinking fund and the amount of such sinking fund
payment shall be reduced accordingly.
Section 3.9.
Redemption of Securities for Sinking Fund
.
Not less than 40 days prior to each sinking fund payment date for any Series of Securities, the Company will deliver to the Trustee an
Officer’s Certificate specifying the amount of the next ensuing sinking fund payment for that Series pursuant to the terms of the Series, the portion thereof, if any, that is to be satisfied by payment of cash in the currency in which the
Securities of such Series are denominated (except as provided pursuant to Section 2.2), the portion thereof, if any, that is to be satisfied by delivering and crediting Securities of that Series pursuant to Section 3.8 and the basis for
such credit. Together with such Officer’s Certificate, the Company will deliver to the Trustee any Securities to be so delivered. Not less than 30 days before each such sinking fund payment date the Trustee shall select the Securities to be
redeemed upon such sinking fund payment date in the manner specified in Section 3.2 and cause notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided in Section 3.3.
Section 3.10.
Redemption Upon Changes in Tax Law
.
The Company or the Guarantor, as applicable, may redeem its Securities (and the Guarantor may redeem any Securities which it has guaranteed), in whole but not in part, at its discretion at any time upon
giving notice to the Holders of such Securities in accordance with Section 3.3 (which notice will be irrevocable), at a redemption price equal to 100% of the aggregate principal amount thereof, together with accrued and unpaid interest, if any,
to the date fixed by the Company or the Guarantor, as applicable, for redemption (a “
Tax Redemption Date
”) and all Additional Amounts (if any) then due and which will become due on the Tax Redemption Date as a result of the
redemption or otherwise (subject to the right of Holders of such Securities on the relevant record date to receive interest due on the relevant interest payment date and Additional Amounts (if any) in respect thereof), if on the next date on which
any amount would be payable in respect of such Securities, the Company or the Guarantor, as applicable, is or would be required to pay Additional Amounts, and the Company or Guarantor cannot avoid any such payment obligation by taking reasonable
measures available to it, and the requirement arises as a result of:
(a) any amendment to, or change in, the
laws (or any regulations or rulings promulgated thereunder) of a Relevant Tax Jurisdiction which change or amendment becomes effective on or after the Issue Date (or, if the applicable Relevant Tax Jurisdiction became a Relevant Tax Jurisdiction on
a date after the Issue Date, such later date), or
(b) any amendment to, or change in, an official
interpretation or application of such laws, regulations or rulings (including by virtue of a holding, judgment, order by a court of competent jurisdiction or a change
15
in published administrative practice) which amendment or change becomes effective on or after the Issue Date (or, if the applicable Relevant Tax Jurisdiction became a Relevant Tax Jurisdiction on
a date after the Issue Date, such later date).
Neither the Company nor the Guarantor, as applicable, will give any such
notice of redemption earlier than 90 days prior to the earliest date on which the Company or the Guarantor, as applicable, would be obligated to make such payment or withholding if a payment in respect of the applicable Securities was then due, and
the obligation to pay Additional Amounts must be in effect at the time such notice is given. Prior to the giving of any notice of redemption of the Securities pursuant to the foregoing, the Company or the Guarantor, as applicable, will deliver to
the Trustee an opinion of independent tax counsel to the effect that there has been such amendment or change which would entitle the Company or the Guarantor to redeem such Securities hereunder. In addition, before the Company or the Guarantor, as
applicable, gives notice of redemption of such Securities as described above, it will deliver to the Trustee an Officer’s Certificate to the effect that it cannot avoid its obligation to pay Additional Amounts by the Company or the Guarantor,
as applicable, taking reasonable measures available to it.
The Trustee will accept and shall be entitled to rely on such
Officer’s Certificate and Opinion of Counsel as sufficient evidence of the existence and satisfaction of the conditions precedent as described above, in which event it will be conclusive and binding on the Holders of the Securities.
The foregoing will apply
mutatis mutandis
to any jurisdiction in which any successor Person to the Company or the Guarantor is
incorporated or organized, or any jurisdiction from or through which payment is made by or on behalf of such Person on the Securities (or any Guarantee) and any political subdivision thereof or therein.
ARTICLE IV.
COVENANTS
Section 4.1.
Payment of Principal, Premium and Interest
.
The Company covenants and agrees for the benefit of the Holders of each Series of Securities that it will duly and punctually pay the principal of, premium, if any, and interest on the Securities of that
Series in accordance with the terms of such Securities and this Indenture. Unless otherwise provided by Board Resolution, Officer’s Certificate or supplemental indenture for a particular Series, on or before 10:00 a.m., New York City time, on
the applicable payment date, the Company shall deposit with the Paying Agent money sufficient to pay the principal of, premium, if any, and interest, if any, on the Securities of each such Series in accordance with the terms of such Securities and
this Indenture.
Section 4.2.
Compliance Certificate
.
The Company shall deliver to the Trustee, within 120 days after the end of its fiscal year (which as of the date of this Indenture is
December 31, or if the fiscal year with respect to the Company is changed so that it ends on a date other than December 31, such other fiscal year end date as the Company shall notify to the Trustee in writing) of the Company, an
Officer’s Certificate complying with TIA § 314(a)(4) and stating that a review of the activities of the Company and its Subsidiaries during the preceding fiscal year has been made under the supervision of the signing Officer with a view to
determining whether the Company has kept, observed, performed and fulfilled its obligations under this Indenture, and further stating, as to each such Officer signing such certificate, that to the best of his/her knowledge the Company has kept,
observed, performed and fulfilled each and every covenant contained in this Indenture and is not in default in the performance or observance of any of the terms, provisions and conditions hereof (or, if a Default or Event of Default shall have
occurred, describing all such Defaults or Events of Default of which he may have knowledge and what action the Company is taking or proposes to take with respect thereto).
16
The Company will, so long as any of the Securities are outstanding, deliver to the Trustee,
promptly upon becoming aware of any Default or Event of Default, an Officer’s Certificate specifying such Default or Event of Default and what action the Company is taking or proposes to take with respect thereto.
Section 4.3.
Stay, Extension and Usury Laws
.
The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension
or usury law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture or the Securities; and the Company (to the extent it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law and covenants that it will not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law
has been enacted.
Section 4.4.
Corporate Existence
.
Subject to Article V, the Company will do or cause to be done all things necessary to preserve and keep in full force and effect its
corporate existence and rights (charter and statutory);
provided
,
however
, that the Company shall not be required to preserve any such right if its Board of Directors shall determine that the preservation thereof is no longer desirable
in the conduct of its business and its Subsidiaries taken as a whole and that the loss thereof is not adverse in any material respect to the Holders of the Securities.
Section 4.5.
Limitation on Liens
.
The Guarantor will not, and will not
permit any of its respective Subsidiaries to, incur, issue, assume or guarantee any notes, bonds, debentures or other similar evidences of indebtedness for money borrowed, secured by a Mortgage on any Restricted Property, or on any shares of stock,
ownership interests in, or indebtedness of a Restricted Subsidiary, without effectively providing concurrently with the incurrence, issuance, assumption or guarantee of such secured indebtedness that the Securities (together with, if the Company or
the Guarantor shall so determine, any of its other indebtedness or the indebtedness of any such Restricted Subsidiary then existing or thereafter created ranking on a parity with the Securities or Guarantees) shall be secured equally and ratably
with (or prior to) such secured indebtedness, so long as such secured indebtedness shall be so secured, unless, after giving effect thereto, the aggregate amount of all such secured indebtedness (excluding any indebtedness secured by Mortgages of
the types referred to in clauses (1) through (10) below) would not exceed 20% of Consolidated Net Worth as shown on the Guarantor’s most recent consolidated quarterly financial statements;
provided
,
however
, that these
provisions shall not apply to:
(a) Mortgages existing on the date of original issuance of the Securities;
(b) Mortgages on property or assets of, or on any shares of stock, ownership interests in or indebtedness of,
any Person existing at the time such Person becomes a Subsidiary (including a Restricted Subsidiary) of the Company or the Guarantor;
(c) Mortgages on property or assets existing at the time of acquisition thereof (including acquisition through merger or consolidation) or to secure the payment of all or any part of the purchase price or
cost of construction, development, expansion or improvement thereof or to secure any indebtedness incurred prior to, at the time of, or within 12 months after, the acquisition or completion of construction, development, expansion or improvement of
such property or assets or its commencement of commercial operations for the purpose of financing all or any part of the purchase price or cost of construction, development, expansion or improvement thereof;
(d) Mortgages in favor of the Company, the Guarantor or any other Subsidiary of the Guarantor;
(e) the Mortgage of any of the Guarantor’s property or assets or any property or assets of any of its Restricted
Subsidiaries in favor of the United States of America, the Grand Duchy of Luxembourg or any
17
other sovereign entity, or any state, province or other political subdivision thereof, or any entity, department, agency, instrumentality or comparable authority thereof, to secure partial,
progress, advance or other payments pursuant to the provisions of any contract, statute, law, rule or regulation;
(f) the Mortgage of any property or assets to secure indebtedness of the pollution control, industrial revenue or other revenue bond type;
(g) Mortgages incurred or deposits made (including Mortgages and deposits securing letters of credit or similar financial
assurance) to secure the performance of or in connection with bids, tenders, statutory, governmental or private contractual or other obligations, surety, performance, completion, appeal or similar bonds, leases, return-of-money bonds and other
obligations similar to any of the foregoing, in each case in the ordinary course of business;
(h) Mortgages
arising by operation of law, including but not limited to Mortgages for taxes, assessments or similar charges that are not yet due or the validity of which is being contested in good faith by appropriate proceedings;
(i) Mortgages created in connection with the acquisition of property or assets, or a project financed with, Non-recourse
Debt; and
(j) any extension, renewal or replacement (or successive extensions, renewals or replacements), as a
whole or in part, of any Mortgage referred to in the foregoing clauses, inclusive; provided, that such extension, renewal or replacement Mortgage shall be limited to all or a part of the same property or assets that secured the Mortgage extended,
renewed or replaced, plus improvements on such property or assets.
Section 4.6.
Additional Amounts
.
(a) All payments made by the Company under or with respect to the Securities, or by the Guarantor with respect to an
applicable Guarantee, will be made free and clear of and without withholding or deduction for, or on account of, any present or future tax, duty, levy, assessment or other governmental charge, including any related interest, penalties or additions
to tax (“
Taxes
”) unless the withholding or deduction of such Taxes is then required by law or by interpretation or administration of law. If any deduction or withholding for, or on account of, any Taxes imposed or levied by or on
behalf of (1) any jurisdiction in which the Company (or a successor), or the Guarantor (or a successor), is then incorporated, organized or resident for tax purposes or any political subdivision thereof or therein (each, a “
Relevant Tax
Jurisdiction
”) or (2) any jurisdiction from or through which payment is made by or on behalf of the Company, or the Guarantor (including the jurisdiction of any Paying Agent for the applicable Securities) or any political subdivision
thereof or therein (each, together with each Relevant Tax Jurisdiction, a “
Tax Jurisdiction
”) will at any time be required to be made from any payments made or deemed made by or on behalf of the Company under or with respect to the
Securities, or the Guarantor under or with respect to the applicable Guarantee, including payments of principal, redemption price, interest or premium, the Company or the Guarantor, as applicable, will pay such additional amounts (the
“
Additional Amounts
”) as may be necessary in order that the net amounts received in respect of such payments by each beneficial owner of the applicable Securities after such withholding, deduction or imposition (including any such
withholding, deduction or imposition from such Additional Amounts) will equal the respective amounts that would have been received in respect of such payments in the absence of such withholding or deduction;
provided
,
however
, that no
Additional Amounts will be payable with respect to:
(1) any Taxes, to the extent such Taxes would not have
been imposed but for the existence of any actual or deemed present or former connection between the Holder or the beneficial owner of such Securities and the applicable Tax Jurisdiction (including, without limitation, being or having been a
national, resident or citizen of, being or having been engaged in a trade or business in, being or having been physically present in, or having or having had a permanent establishment in, such jurisdiction for Tax purposes), other than the holding
of such Security, the enforcement of rights under such Security or under the Guarantee or the receipt of any payments in respect of such Security or Guarantee;
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(2) any Taxes, to the extent such Taxes were imposed as a result of the
presentation of such Security for payment (where presentation is required) more than 30 days after the relevant payment is first made available for payment to the Holder (except to the extent that the Holder would have been entitled to Additional
Amounts had the applicable Security been presented on the last day of such 30 day period);
(3) any
estate, inheritance, gift, sales, transfer, personal property or similar Taxes;
(4) any Tax imposed on or with
respect to any payment by the Company or Guarantor to the Holder if such Holder is a fiduciary, partnership, limited liability company or other Person other than the sole beneficial owner of such payment to the extent that Taxes would not have been
imposed on such payment had such Holder been the sole beneficial owner of such Security;
(5) any Taxes
withheld, deducted or imposed on a payment to an individual that are required to be made pursuant to European Council Directive 2003/48/EC or any other directive implementing the conclusions of the ECOFIN Council meeting of November 26 and 27,
2000 on the taxation of savings income, or any law implementing or complying with or introduced in order to conform to, such directive;
(6) Taxes imposed on or with respect to a payment made to a Holder of such Security who would have been able to avoid such withholding or deduction by presenting such Security (where presentation is
required) to another Paying Agent;
(7) any Taxes payable other than by deduction or withholding from payments
under, or with respect to, such Securities or the Guarantee;
(8) any Taxes to the extent such Taxes are
imposed or withheld by reason of the failure of the Holder or beneficial owner of such Security, to comply with any written request of the Company or the Guarantor addressed to the Holder to satisfy any certification, identification, information or
other reporting requirements, whether required by statute, treaty, regulation or administrative practice of the applicable Tax Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed
by the applicable Tax Jurisdiction (including, without limitation, a certification that the Holder or beneficial owner is not resident in such Tax Jurisdiction), but in each case, only to the extent the Holder or beneficial owner is legally entitled
to provide such certification or documentation; or
(9) any combination of items (1) through (8) of
this Section 4.6(a).
(b) In addition to the foregoing, the Company and the Guarantor, as the case may be,
will also pay and indemnify the Holders for any present or future stamp, issue, registration, court or documentary Taxes, or any other excise or property Taxes, charges or similar levies (including penalties, interest and any other reasonable
expenses related thereto) which are levied by an applicable Tax Jurisdiction on the execution, delivery, issuance, or registration of its Securities, or this Indenture or the related supplement, Guarantee or any other document or instrument referred
to therein in connection with a transfer of such Securities at the time of the initial resale by the initial purchasers.
(c) If the Company or the Guarantor, as the case may be, becomes aware that it will be obligated to pay Additional Amounts with respect to any payment under or with respect to its Securities, or the
Guarantee, the Company or the Guarantor, as the case may be, will deliver to the Trustee on a date that is at least 30 days prior to the date of that payment (unless the obligation to pay Additional Amounts arises fewer than 45 days prior
to that payment date, in which case the Company or Guarantor shall notify the Trustee promptly thereafter but no later than the Business Day prior to the relevant payment date) an Officer’s Certificate stating the fact that Additional Amounts
will be payable and the amount estimated to be so payable. The Officer’s Certificate(s) must also set forth any other information reasonably necessary to enable the Paying Agents to pay such Additional Amounts to Holders on the relevant payment
date. The Trustee shall be entitled to rely solely on such Officer’s Certificate as conclusive proof that such payments are necessary.
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(d) The Company or the Guarantor, as the case may be, will make all
withholdings and deductions required by law in respect of its Securities, and will remit the full amount deducted or withheld to the applicable Tax authority in accordance with applicable law. The Company or the Guarantor will use its reasonable
efforts to obtain Tax receipts from each Tax authority evidencing the payment of any Taxes so deducted or withheld. Upon reasonable written request, the Company or the Guarantor will furnish to the Trustee (or to a Holder or beneficial owner upon
written request), within a reasonable time after the date the payment of any Taxes so deducted or withheld is made, certified copies of Tax receipts evidencing payment by the Company or Guarantor, as the case may be, or if, notwithstanding such
entity’s efforts to obtain receipts, receipts are not obtained, other evidence of payments (reasonably satisfactory to the Trustee) by such entity.
(e) Whenever in this Indenture there is mentioned, in any context, the payment of amounts based upon the principal amount of the Securities or of principal, interest or of any other amount payable under,
or with respect to, any of the Securities or any Guarantee, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect
thereof.
The obligations in this Section 4.6 will survive any termination, defeasance or discharge of this Indenture, any transfer by a
Holder or beneficial owner of its Securities, and will apply,
mutatis mutandis
, to any jurisdiction in which any successor Person to the Company or the Guarantor is incorporated, organized or resident for tax purposes or any jurisdiction from
or through which payment is made by or on behalf of such Person on the applicable Securities (or any Guarantee) and any political subdivision thereof or therein.
Section 4.7.
Reports
.
(a) So long as any Securities are
outstanding, the Guarantor shall file with the Trustee, within 15 days after the Guarantor files with the SEC, 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 SEC may from time to time by rules and regulations prescribe) that the Guarantor may be required to file with the SEC pursuant to Section 13 or Section 15(d) of the Exchange Act. The Guarantor shall be deemed to have complied with the
previous sentence to the extent that such information, documents and reports are filed with the SEC via EDGAR (or any successor electronic delivery procedure). The Company shall also comply with the provisions of TIA § 314(a).
(b) The Trustee shall not have any obligation to determine if and when the Guarantor’s information is available on
the SEC’s (EDGAR) website. The Guarantor shall either (i) provide the Trustee with prompt written notification of such time as the Guarantor becomes or ceases to be a reporting company or (ii) continue to provide the Trustee with the
foregoing information.
(c) Delivery of such reports, information and documents to the Trustee is for
informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s or the Guarantor’s
compliance with any of their respective covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates).
ARTICLE V.
SUCCESSORS
Section 5.1.
Consolidation, Merger and Sale of Assets
.
Neither the Company nor the Guarantor may consolidate with or merge into any other Person or transfer or lease all or substantially all of its assets to any Person unless any successor or purchaser
expressly assumes its obligations under this Indenture and the Securities or its Guarantees, as applicable, by an indenture supplemental to this Indenture to which the Company or the Guarantor is a party, and immediately after which, no Default or
Event of Default, shall have happened and be continuing. An Officer’s Certificate and an Opinion of Counsel will be delivered to the Trustee, which will serve as conclusive evidence of compliance with this Section 5.1.
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Section 5.2.
Assumption by a Subsidiary
.
Any Subsidiary of the Guarantor may, at its option, assume the obligations of the Company as the issuer of the Company’s Securities,
provided that:
(a) such Subsidiary shall expressly assume such obligations in an assumption agreement or
supplemental indenture duly executed and delivered to the Trustee, and
(b) immediately after giving effect to
such assumption, no Default or Event of Default, shall have occurred and be continuing.
Upon any such assumption, the Person
so assuming the Company’s obligations as issuer of the Securities shall succeed to, and be substituted for, and may exercise any right and power of, the Company under such securities and this Indenture with the same effect as if such Person had
been the issuer thereof and party hereto, and the Company shall be released from its liability as obligor under its Securities. An Officer’s Certificate and an Opinion of Counsel will be delivered to the Trustee, which will serve as conclusive
evidence of compliance with this Section 5.2.
ARTICLE VI.
DEFAULTS AND REMEDIES
Section 6.1.
Events of Default
.
The following are “
Events of
Default
” with respect to the Company’s Securities of any Series, unless in the establishing Board Resolution, Officer’s Certificate or supplemental indenture, it is provided that such Series shall not have the benefit of said
Event of Default:
(a) the Company’s failure to pay any interest on the Securities within 30 days after
such interest becomes due and payable;
(b) the Company’s failure to pay principal of the Securities at
Maturity, or if applicable, the redemption price, when the same become due and payable;
(c) the Company’s
failure to pay any sinking fund installment as and when the same shall become due and payable by the terms of the Securities, and continuance of such default for a period of 30 days;
(d) the Company’s failure to comply with any of the covenants or agreements in the Securities or this Indenture
(other than an agreement or covenant that the Company has included in this Indenture solely for the benefit of another Series of Securities) for 90 days after written notice by the Trustee or by the Holders of at least 25% in principal amount of all
outstanding Securities of such Series affected by that failure;
(e) except as permitted by this Indenture, the
Guarantee of the Company’s Securities is held in any judicial proceeding to be unenforceable or invalid or ceases for any reason to be in full force and effect, or the Guarantor, or any authorized Person acting on behalf of the Guarantor,
denies or disaffirms the Guarantor’s obligations of the Company’s Securities under the Guarantee;
(f) the Company or the Guarantor pursuant to or within the meaning of any Bankruptcy Law:
(1) commences a voluntary case,
(2) consents to the entry of an order for relief against it in an involuntary case,
(3) consents to the appointment of a Custodian of it or for all or substantially all of its property,
(4) makes a general assignment for the benefit of its creditors, or
(5) generally is unable to pay its debts as the same become due;
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(g) a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that:
(1) is for relief against the Company or the Guarantor, as applicable, in an involuntary
case,
(2) appoints a Custodian of the Company or the Guarantor, as applicable, or for all or substantially all
of its property, or
(3) orders the liquidation of the Company or the Guarantor, as applicable,
and the order or decree remains unstayed and in effect for 60 days; and
(h) any other Event of Default provided in the Officer’s Certificate, supplemental indenture or Board Resolution under which such Series of Securities is issued.
The term “
Bankruptcy Law
” means title 11, U.S. Code or any similar Federal or State law for the relief of debtors. The
term “
Custodian
” means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.
A Default under one Series of Securities issued under this Indenture will not necessarily be a default under another Series of Securities under this Indenture.
Section 6.2.
Acceleration of Maturity; Rescission and Annulment
.
If an Event of Default for a Series of Securities occurs and is continuing (other than an Event of Default referred to in
Section 6.1(f) or (g)), the Trustee or the Holders of at least 25% in principal amount of such Series of outstanding Securities may require the Company to pay immediately the principal amount plus accrued and unpaid interest on such Securities.
If an Event of Default relating to certain events of bankruptcy, insolvency or reorganization referred to in Section 6.1(f) or (g) occurs with respect to the Company (or with respect to the Guarantor), the principal amount plus accrued and
unpaid interest on the Company’s Securities of that Series (or in the case of the Guarantor, all Securities) will become immediately due and payable without any action on the part of the Trustee or any Holder.
At any time after such a declaration of acceleration with respect to any Series has been made and before a judgment or decree for payment
of the money due has been obtained by the Trustee as hereinafter in this Article VI provided, the Holders of a majority in principal amount of the outstanding Securities of that Series, by written notice to the Company and the Trustee, may rescind
and annul such declaration and its consequences if all Events of Default with respect to Securities of that Series, other than the non-payment of the principal and interest, if any, of Securities of that Series which have become due solely by such
declaration of acceleration, have been cured or waived as provided in Section 6.13.
No such rescission shall affect any
subsequent Default or impair any right consequent thereon.
Section 6.3.
Collection of Indebtedness and Suits for
Enforcement by Trustee
.
The Company covenants that if
(a) default is made in the payment of any interest on any Security when such interest becomes due and payable and such
default continues for a period of 30 days, or
(b) default is made in the payment of principal of any Security
at the Maturity thereof, or
(c) default is made in the deposit of any sinking fund payment when and as due by
the terms of a Security,
then,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders of such
Securities, the whole amount then due and payable on such Securities for principal, premium, if any, and interest and, to the
22
extent that payment of such interest shall be legally enforceable, interest on any overdue principal and any overdue interest at the rate or rates prescribed therefor in such Securities, and, in
addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same against the Company or any other obligor upon such Securities and collect the moneys
adjudged or deemed to be payable in the manner provided by law out of the property of the Company, or any other obligor upon such Securities, wherever situated.
If an Event of Default with respect to any Securities of any Series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of
Securities of such Series by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
Section 6.4.
Trustee May File Proofs of
Claim
.
In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement,
adjustment, composition or other judicial proceeding relative to the Company or any other obligor upon the Securities or the property of the Company or of such other obligor or their creditors, the Trustee (irrespective of whether the principal of
the Securities shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Company for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole
amount of principal and interest owing and unpaid in respect of the Securities and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and of the Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same,
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee
and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel, and any other amounts due the Trustee under Section 7.7.
Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
Section 6.5.
Trustee May Enforce Claims Without Possession of
Securities
.
All rights of action and claims under this Indenture or the Securities may be prosecuted and enforced by the
Trustee without the possession of any of the Securities or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an
23
express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be
for the ratable benefit of the Holders of the Securities in respect of which such judgment has been recovered.
Section 6.6.
Application of Money Collected
.
Any money collected by the Trustee pursuant to this Article VI shall be applied in the
following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on account of principal or interest, upon presentation of the Securities and the notation thereon of the payment if only partially paid and
upon surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee under Section 7.7; and
Second: To the payment of the amounts then due and unpaid for principal of, premium, if any, and interest on the Securities
in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities for principal and interest, respectively; and
Third: To the Company.
Section 6.7.
Limitation on Suits
.
A Holder of Securities of any Series
may pursue any remedy under this Indenture applicable to such Securities only if:
(a) the Holder gives the
Trustee written notice of a continuing Event of Default for such Series of Securities;
(b) the Holders of at
least 25% in principal amount of such outstanding Series of Securities make a written request to the Trustee to pursue the remedy;
(c) the Holders furnish to the Trustee indemnity reasonably satisfactory to the Trustee against the costs, expenses and liabilities which might be incurred by it in compliance with such request;
(d) the Trustee fails to act for a period of 60 days after receipt of notice and furnishing of indemnity; and
(e) during that 60-day period, the Holders of a majority in principal amount of the outstanding Securities of
such Series do not give the Trustee a direction inconsistent with the request.
This provision does not, however, affect the
right of a Holder of Securities to sue for enforcement of any overdue payment with respect to such Securities.
Section 6.8.
Unconditional Right of Holders to Receive Principal and Interest
.
Notwithstanding any other provision in this
Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment of the principal of and interest, if any, on such Security on the Stated Maturity or Stated Maturities expressed in such Security
(or, in the case of redemption, on the redemption date) and to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder.
24
Section 6.9.
Restoration of Rights and Remedies
.
If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has
been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Company, the Trustee and the Holders shall be
restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.
Section 6.10.
Rights and Remedies Cumulative
.
Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in Section 2.8, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not, to the extent permitted by law, prevent the concurrent assertion or employment of any other appropriate right or
remedy.
Section 6.11.
Delay or Omission Not Waiver
.
No delay or omission of the Trustee or of any Holder of any Securities to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article VI or by law to the Trustee or to the Holders may be exercised from time to time, and
as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
Section 6.12.
Control by
Holders
.
The Holders of a majority in principal amount of the outstanding Securities of any Series shall have the right
to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the Securities of such Series, provided that
(a) such direction shall not be in conflict with any rule of law or with this Indenture,
(b) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction, and
(c) the Trustee shall have the right to decline to follow any such direction if the Trustee in good faith
shall, by a Responsible Officer of the Trustee, determine that the proceeding so directed would involve the Trustee in personal liability or that it will not be adequately indemnified against the costs, expenses and liabilities which might be
incurred by it in complying with such direction.
Section 6.13.
Waiver of Past Defaults
.
The Holders of not less than a majority in principal amount of the outstanding Securities of any Series may on behalf of the Holders of
all the Securities of such Series waive any past Default hereunder with respect to such Series and its consequences, except a Default in the payment of the principal of or interest on any Security of such Series (
provided
,
however
,
that the Holders of a majority in principal amount of the outstanding Securities of any Series may rescind an acceleration and its consequences, including any related payment default that resulted from such acceleration). Upon any such waiver, such
Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other Default or impair any right consequent
thereon.
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Section 6.14.
Undertaking for Costs
.
All parties to this Indenture agree, and each Holder of any Security by his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in such suit, having due regard to the merits and good
faith of the claims or defenses made by such party litigant; but the provisions of this Section shall not apply to any suit instituted by the Company, to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders,
holding in the aggregate more than 10% in principal amount of the outstanding Securities of any Series, or to any suit instituted by any Holder for the enforcement of the payment of the principal of or interest on any Security on or after the Stated
Maturity or Stated Maturities expressed in such Security (or, in the case of redemption, on the redemption date).
ARTICLE VII.
TRUSTEE
Section 7.1.
Duties of Trustee
.
(a) If an Event of Default
has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in such exercise, as a prudent man would exercise or use under the circumstances in
the conduct of his own affairs.
(b) Except during the continuance of an Event of Default with respect to the
Securities of any Series:
(1) the Trustee need perform only those duties that are specifically set forth in
this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of this Indenture. However, the Trustee shall examine such certificates and opinions to determine whether, on their face, they appear to conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liabilities for its own negligent action, its own negligent failure
to act or its own willful misconduct, except that:
(1) this paragraph does not limit the effect of paragraph
(b) of this Section 7.1;
(2) the Trustee shall not be liable for any error of judgment made in good
faith by a Responsible Officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.12.
(d) Whether or not therein expressly so provided, every provision of this Indenture that in any way relates to the Trustee
is subject to the provisions of this Article VII.
(e) No provision of this Indenture shall require the
Trustee to expend or risk its own funds or incur any liability. The Trustee may refuse to perform any duty or exercise any right or power unless it receives indemnity reasonably satisfactory to it against any loss, liability or expense.
(f) The Trustee shall not be liable for interest on or investment of any money received by it except as the Trustee may
agree in writing with the Company. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law. All money received by the Trustee shall,
26
until applied as herein provided, be held in trust for the payment of the principal of, premium (if any) and interest on and Additional Amounts with respect to the Securities.
Section 7.2.
Rights of Trustee
.
(a) The Trustee may conclusively rely and shall be fully protected in acting or refraining from acting, upon any resolution, certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, note, debenture or other paper or document believed by it to be genuine and to have been signed or presented by the proper Person. The Trustee need not investigate any fact or matter stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent, order, bond, security or other paper or document.
(b) Before the Trustee acts or refrains from acting, it may require instruction, an Officer’s Certificate or an Opinion of Counsel or both to be provided. The Trustee shall not be liable for any
action it takes or omits to take in good faith in reliance on such instruction, Officer’s Certificate or Opinion of Counsel. The Trustee may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.
(c) The Trustee may act through agents, attorneys, custodians or nominees and shall not be responsible for the misconduct or negligence of any agent, attorney, custodian or nominee appointed with due
care.
(d) The Trustee shall not be liable for any action it takes or omits to take in good faith which it
believes to be authorized or within its rights or powers conferred upon it by this Indenture or with respect to any action it takes or omits to take in good faith in accordance with a direction received by it from the Holders of a majority in
aggregate principal amount of the relevant Series of Securities outstanding.
(e) Unless otherwise specifically
provided in this Indenture, any demand, request, direction or notice from the Company or the Guarantor, as applicable, shall be sufficient if signed by an Officer of the Company or the Guarantor, as applicable.
(f) Anything in this Indenture to the contrary notwithstanding, in no event shall the Trustee be liable under or in
connection with this Indenture for indirect, special, incidental, punitive or consequential losses or damages of any kind whatsoever, including but not limited to lost profits, whether or not foreseeable, even if the Trustee has been advised of the
possibility thereof and regardless of the form of action in which such damages are sought.
(g) The Trustee
shall be under no obligation to exercise any of the trusts or powers vested in it by this Indenture at the request, order or direction of any of the Holders of Securities pursuant to the provisions of this Indenture, unless such Holders of
Securities shall have offered to the Trustee, security or indemnity reasonably satisfactory to the Trustee against the costs, expenses and liabilities which might be incurred therein or thereby.
(h) The Trustee shall not be deemed to have notice of any Event of Default with respect to the Securities unless a
Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Securities
and this Indenture.
(i) The Trustee may at any time request, and the Company and the Guarantor shall each
deliver an Officer’s Certificate setting forth the specimen signatures and the names of individuals and/or titles of Officers authorized at such time to take specified actions pursuant to this Indenture, which Officer’s Certificate may be
signed by any Person authorized to sign an Officer’s Certificate, including any Person specified as so authorized in any such certificate previously delivered and not superseded.
(j) Notwithstanding any provision herein to the contrary, in no event shall the Trustee be liable for any failure or delay
in the performance of its obligations under this Indenture because of circumstances beyond its control, including, but not limited to, acts of God, flood, war (whether declared or undeclared), terrorism,
27
fire, riot, strikes or work stoppages for any reason, embargo, government action, including any laws, ordinances, regulations or the like which restrict or prohibit the providing of the services
contemplated by this Indenture, inability to obtain material, equipment, or communications or computer facilities, or the failure of equipment or interruption of communications or computer facilities, and other causes beyond its control whether or
not of the same class or kind as specifically named above.
(k) The rights, privileges, protections, immunities
and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, each Agent, and each other agent, custodian and other
Person employed to act hereunder.
Section 7.3.
May Hold Securities
.
The Trustee in its individual or any other capacity may become the owner or pledgee of Securities and may otherwise deal with the Company
or any of its Affiliates with the same rights it would have if it were not Trustee. Any Agent may do the same with like rights and duties. However, the Trustee is subject to Sections 7.10 and 7.11.
Section 7.4.
Trustee’s Disclaimer
.
The Trustee makes no representation as to the validity, sufficiency or adequacy of any offering materials, this Indenture, the Securities or the Guarantees, it shall not be accountable for the
Company’s use of the proceeds from the Securities or any money paid to the Company or upon the Company’s direction under any provision hereof, and it shall not be responsible for any statement or recital herein or any statement in any
offering materials or the Securities other than its certificate of authentication.
Section 7.5.
Notice of Defaults
.
If a Default or Event of Default with respect to the Securities of any Series occurs and is continuing and it is actually
known to the Trustee, the Trustee shall give to Holders of Securities of such Series a notice of the Default or Event of Default within 90 days after the Trustee has knowledge of such Default or Event of Default in accordance with
Section 7.2(h). Except in the case of a Default or Event of Default in payment of principal of, premium (if any) and interest on and Additional Amounts or any sinking fund installment with respect to the Securities of such Series, the Trustee
may withhold the notice if and so long as a Responsible Officer in good faith determines that withholding the notice is in the interests of Holders of Securities of such Series to do so.
Section 7.6.
Reports by Trustee to Holders
.
Within 60 days after May 15 of each year after the execution of this Indenture, the Trustee shall give to Holders of each Series of Securities and the Company a brief report dated as of such
reporting date that complies with TIA § 313(a);
provided, however
, that if no event described in TIA § 313(a) has occurred within the twelve months preceding the reporting date with respect to any Series of Securities, no report
need be transmitted to Holders of such Series or the Company. The Trustee also shall comply with TIA § 313(b). The Trustee shall also transmit by mail all reports if and as required by TIA §§ 313(c) and 313(d).
A copy of each report at the time of its transmittal to Holders of a Series of Securities shall be filed by the Company with the SEC and
each securities exchange, if any, on which the Securities of such Series are listed. The Company shall notify the Trustee if and when any Series of Securities is listed on or delisted from any securities exchange.
Section 7.7.
Compensation and Indemnity
.
The Company and the Guarantor, jointly and severally, agree to pay to the Trustee for its acceptance of this Indenture and services hereunder such compensation as the Company or the Guarantor and the
Trustee shall
28
from time to time agree in writing. The Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express trust. The Company and the Guarantor agrees to
reimburse the Trustee upon request for all reasonable disbursements, advances and expenses incurred by it. Such expenses shall include the reasonable compensation, disbursements and expenses of the Trustee’s agents and counsel.
The Company and the Guarantor, jointly and severally, hereby indemnify the Trustee from, and agree to hold it harmless for, from and
against any damage, cost, claim, loss, liability or expense (including, without limitation, the reasonable fees and expenses of the Trustee’s agents and counsel) incurred by it arising out of or in connection with its acceptance and
administration of the trusts set forth under this Indenture, the performance of its obligations and/or the exercise of its rights hereunder, including, without limitation, the reasonable costs and expenses of defending itself against any claim,
except as set forth in the next following paragraph. The Trustee shall notify the Company promptly of any claim for which it may seek indemnity. The Company and the Guarantor, as applicable, shall defend the claim, with counsel reasonably acceptable
to the Trustee, and the Trustee shall cooperate in the defense, unless, the Trustee, in its reasonable discretion, determines that any actual or potential conflict of interest may exist, in which case the Trustee may have separate counsel,
reasonably acceptable to the Company and the Guarantor, as applicable, and the Company and the Guarantor shall pay the reasonable fees and expenses of such counsel. The Company need not pay for any settlement made without its consent.
The Company shall not be obligated to reimburse any expense or indemnify against any loss or liability incurred by the Trustee through
the Trustee’s own negligence or bad faith.
To secure the payment obligations of the Company and the Guarantor in this
Section 7.7, the Trustee shall have a lien prior to the Securities on all money or property held or collected by the Trustee, except that held in trust to pay principal of, premium (if any) and interest on and any Additional Amounts with
respect to Securities of any Series. Such lien and the obligations of the Company and the Guarantor under this Section 7.7 shall survive the satisfaction and discharge of this Indenture, the payment of the Securities and/or the resignation or
removal of the Trustee.
When the Trustee incurs expenses or renders services in connection with an Event of Default, the
expenses (including the reasonable charges and expenses of its counsel) and the compensation for the services are intended to constitute expenses of administration under any applicable Federal or State bankruptcy, insolvency or other similar law.
Section 7.8.
Replacement of Trustee
.
A resignation or removal of the Trustee and appointment of a successor Trustee shall become effective only upon the successor Trustee’s acceptance of appointment as provided in this Section 7.8.
The Trustee may resign and be discharged at any time with respect to the Securities of one or more Series by so notifying the
Company. The Holders of a majority in principal amount of the then outstanding Securities of any Series may remove the Trustee with respect to the Securities of such Series by so notifying the Trustee and the Company. The Company may remove the
Trustee for any or all Series of the Securities if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to the
Trustee under any Bankruptcy Law;
(c) a Custodian or public officer takes charge of the Trustee or its
property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any reason, with respect to the Securities of
one or more Series, the Company shall promptly appoint a successor Trustee or
29
Trustees with respect to the Securities of that or those Series (it being understood that any such successor Trustee may be appointed with respect to the Securities of one or more or all of such
Series). Within one year after the successor Trustee with respect to the Securities of any Series takes office, the Holders of a majority in principal amount of the Securities of such Series then outstanding may appoint a successor Trustee to
replace the successor Trustee appointed by the Company.
If a successor Trustee with respect to the Securities of any Series
does not take office within 30 days after the retiring Trustee resigns or is removed, the retiring Trustee, the Company or the Holders of at least 10% in principal amount of the then outstanding Securities of such Series may petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such Series.
If the
Trustee with respect to the Securities of a Series fails to comply with Section 7.10, any Holder of Securities of such Series may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee with respect to the Securities of such Series.
In case of the appointment of a successor Trustee with respect to all
Securities, each such successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Company. Thereupon the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee
shall have all the rights, powers and duties of the retiring Trustee under this Indenture. The successor Trustee shall give a notice of its succession to Holders in accordance with Section 10.1. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee, subject to the lien provided for in Section 7.7.
In case of the
appointment of a successor Trustee with respect to the Securities of one or more Series, the Company, 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 in which each successor Trustee shall accept such appointment and that (1) shall confer to each successor Trustee all the rights, powers 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 confirm that all the rights, powers 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. Nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust, and 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. 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 shall have all the rights, powers 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. On
request of the Company, or any successor Trustee, such retiring Trustee shall transfer to such successor Trustee all property held by such retiring Trustee as Trustee with respect to the Securities of that or those Series to which the appointment of
such successor Trustee relates. Such retiring Trustee shall, however, have the right to deduct its unpaid fees and expenses, including attorneys’ fees.
Notwithstanding replacement of the Trustee or Trustees pursuant to this Section 7.8, the obligations of the Company or the Guarantor under Section 7.7 shall continue for the benefit of the
retiring Trustee or Trustees.
Section 7.9.
Successor Trustee by Merger, etc
.
Subject to Section 7.10, if the Trustee consolidates, merges or converts into, or transfers all or substantially all of its
corporate trust business (including this transaction) to, another corporation, the successor corporation without any further act shall be the successor Trustee.
30
In case any Securities shall have been authenticated, but not delivered, by the Trustee then
in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated; and in case at that time any of the Securities shall not have been
authenticated, any successor to the Trustee may authenticate such Securities either in the name of any predecessor hereunder or in the name of the successor to the Trustee; and in all such cases such certificates shall have the full force which it
is anywhere in the Securities or in this Indenture provided that the certificate of the Trustee shall have.
Section 7.10.
Eligibility; Disqualification
.
There shall at all times be a Trustee hereunder which shall be a corporation or banking
association organized and doing business under the laws of the United States, any State thereof or the District of Columbia and authorized under such laws to exercise corporate trust power, shall be subject to supervision or examination by Federal
or State (or the District of Columbia) authority and shall have, or be a subsidiary of a bank or bank holding company having, a combined capital and surplus of at least $50 million as set forth in its most recent published annual report of
condition.
The Indenture shall always have a Trustee who satisfies the requirements of TIA §§ 310(a)(1), 310(a)(2)
and 310(a)(5). The Trustee is subject to and shall comply with the provisions of TIA § 310(b) during the period of time required by this Indenture. Nothing in this Indenture shall prevent the Trustee from filing with the SEC the application
referred to in the penultimate paragraph of TIA § 310(b).
Section 7.11.
Preferential Collection of Claims Against
Company
.
The Trustee is subject to and shall comply with the provisions of TIA § 311(a), as if such section applied
hereto, excluding any creditor relationship listed in TIA § 311(b). A Trustee who has resigned or been removed shall be subject to TIA § 311(a), as if such section applied hereto, to the extent indicated therein.
ARTICLE VIII.
DISCHARGE OF INDENTURE
Section 8.1.
Termination of Company’s Obligations
.
(a) This
Indenture shall cease to be of further effect with respect to the Securities of a Series (except that all obligations of the Company and the Guarantor under Section 7.7, the Trustee’s and Paying Agent’s obligations under
Section 8.3 and the rights, powers, protections and privileges accorded the Trustee under Article VII shall survive), and the Trustee, on written demand of the Company shall execute instruments acknowledging the satisfaction and discharge of
this Indenture with respect to the Securities of such Series, when:
(1) either
(A) all outstanding Securities of such Series theretofore authenticated and issued (other than destroyed, lost or stolen
Securities that have been replaced or paid) have been delivered to the Trustee for cancellation; or
(B) all
outstanding Securities of such Series not theretofore delivered to the Trustee for cancellation:
(i) have
become due and payable, or
(ii) will become due and payable at their Stated Maturity within one year, or
(iii) are to be called for redemption within one year under arrangements satisfactory to the Trustee for the
giving of notice of redemption by the Trustee in the name, and at the expense, of the Company,
31
and, in the case of clause (i), (ii) or (iii) above, the Company has irrevocably
deposited or caused to be deposited with the Trustee as funds (immediately available to the Holders in the case of clause (i)) in trust for such purpose (x) cash in an amount, or (y) Government Obligations, maturing as to principal and
interest at such times and in such amounts as will ensure the availability of cash in an amount or (z) a combination thereof which will be sufficient, in the opinion (in case of (y) or (z)) of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge the entire indebtedness on the Securities of such Series for principal and interest to the date of such deposit (in the case of Securities
which have become due and payable) or for principal, premium, if any, and interest to the Stated Maturity or redemption date, as the case may be; or
(C) the Company has properly fulfilled such other means of satisfaction and discharge, as contemplated by Section 2.2 to be applicable to the Securities of such Series,
(2) the Company has paid or caused to be paid all other sums payable by it hereunder with respect to the Securities of
such Series; and
(3) the Company has delivered to the Trustee an Officer’s Certificate stating that all
conditions precedent to satisfaction and discharge of this Indenture with respect to the Securities of such Series have been complied with, together with an Opinion of Counsel to the same effect.
(b) Unless this Section 8.1(b) is specified as not being applicable to Securities of a Series as contemplated by Section 2.2,
the Company may be discharged from certain of its obligations under this Indenture (“
covenant defeasance
”) with respect to the Securities of a Series if:
(1) the Company has irrevocably deposited or caused to be irrevocably deposited with the Trustee as trust funds in trust
for the purpose of making the following payments, specifically pledged as security for and dedicated solely to the benefit of the Holders of Securities of such Series, (i) money, or (ii) Government Obligations with respect to such Series,
maturing as to principal and interest at such times and in such amounts as will ensure the availability of money in the currency in which payment of the Securities of such Series is to be made in an amount or (iii) a combination thereof, that
is sufficient, in the opinion (in the case of (ii) and (iii)) of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay the principal of and premium (if any)
and interest on all Securities of such Series on each date that such principal, premium (if any) or interest is due and payable and (at the Stated Maturity thereof or upon redemption as provided in Section 8.1(e)) to pay all other sums payable
by it hereunder; provided that the Trustee shall have been irrevocably instructed to apply such money and/or the proceeds of such Government Obligations to the payment of said principal, premium (if any) and interest with respect to the Securities
of such Series as the same shall become due;
(2) the Company has delivered to the Trustee an Officer’s
Certificate stating that all conditions precedent to covenant defeasance with respect to the Securities of such Series have been complied with, and an Opinion of Counsel to the same effect;
(3) no Default or Event of Default with respect to the Securities of such Series shall have occurred and be continuing on
the date of such deposit;
(4) the Company shall have delivered to the Trustee an Opinion of Counsel from a
nationally recognized counsel acceptable to the Trustee or a tax ruling to the effect that the beneficial owners of the Securities of such Series will not recognize income, gain or loss for Federal income tax purposes as a result of the
Company’s exercise of its option under this Section 8.1(b) and will be subject to Federal income tax on the same amount and in the same manner and at the same times as would have been the case if such option had not been exercised;
(5) the Company has complied with any additional conditions specified pursuant to Section 2.2 to be
applicable to covenant defeasance in respect of the Securities of such Series pursuant to this Section 8.1; and
(6) such deposit and covenant defeasance shall not cause the Trustee to have a conflicting interest as defined in TIA § 310(b).
32
In such event, this Indenture shall cease to be of further effect except that the
Company’s and the Guarantor’s obligations in Sections 2.4, 2.5, 2.6, 2.7, 2.8, 4.1, 4.6, 5.1, 7.7 and 7.8, the Trustee’s and Paying Agent’s obligations in Section 8.3 and the rights, powers, protections and privileges
accorded the Trustee under Article VII shall survive until all Securities of such Series are no longer outstanding. Thereafter, only the obligations of the Company and the Guarantor in Section 7.7 and the Trustee’s and Paying Agent’s
obligations in Section 8.3 shall survive with respect to Securities of such Series.
In order to have money available on
a payment date to pay principal of or premium (if any) or interest on the Securities, the Government Obligations shall be payable as to principal or interest on or before such payment date in such amounts as will provide the necessary money.
Government Obligations shall not be callable at the issuer’s option.
(c) If the Company has previously complied or is
concurrently complying with Section 8.1(b) (other than any additional conditions specified pursuant to Section 2.2 that are expressly applicable only to covenant defeasance) with respect to Securities of a Series, then unless this
Section 8.1(c) is specified as not being applicable to Securities of such Series as contemplated by Section 2.2, the Company may elect to be discharged (“
legal defeasance
”) from its obligations to make payments with
respect to Securities of such Series, if:
(1) no Default or Event of Default under clauses (f) and
(g) of Section 6.1 hereof shall have occurred at any time during the period ending on the 91st day after the date of deposit contemplated by Section 8.1(b) (it being understood that this condition shall not be deemed satisfied until
the expiration of such period);
(2) unless otherwise specified with respect to Securities of such Series as
contemplated by Section 2.2, the Company has delivered to the Trustee an Opinion of Counsel from a nationally recognized counsel acceptable to the Trustee to the effect referred to in Section 8.1(b)(4) with respect to such legal
defeasance, which opinion is based on (i) a private ruling of the Internal Revenue Service addressed to the Company or the Trustee, (ii) a published ruling of the Internal Revenue Service or (iii) a change in the applicable Federal
income tax law (including regulations) after the date of this Indenture; the Company has complied with any other conditions specified pursuant to Section 2.2 to be applicable to the legal defeasance of Securities of such Series pursuant to this
Section 8.1(c); and
(3) the Company has delivered to the Trustee a Company Request requesting such legal
defeasance of the Securities of such Series and an Officer’s Certificate stating that all conditions precedent with respect to such legal defeasance of the Securities of such Series have been complied with, together with an Opinion of Counsel
to the same effect.
In such event, the Company will be discharged from its obligations under this Indenture and the
Securities of such Series to pay principal of, premium (if any) and interest on, and any Additional Amounts with respect to, Securities of such Series, the Company’s obligations under Sections 4.1 and 4.6 shall terminate with respect to such
Securities, and the entire indebtedness of the Company evidenced by such Securities shall be deemed paid and discharged.
(d)
If and to the extent additional or alternative means of satisfaction, discharge or defeasance of Securities of a Series are specified to be applicable to such Series as contemplated by Section 2.2, the Company may terminate any or all of its
obligations under this Indenture with respect to its Securities of a Series and any or all of its obligations under the Securities of such Series if it fulfills such other means of satisfaction and discharge as may be so specified, as contemplated
by Section 2.2, to be applicable to the Securities of such Series.
(e) If Securities of any Series subject to
subsections (a), (b), (c) or (d) of this Section 8.1 are to be redeemed prior to their Stated Maturity, whether pursuant to any optional redemption provisions or in accordance with any mandatory or optional sinking fund provisions,
the terms of the applicable trust arrangement shall provide for such redemption, and the Company shall make such arrangements as are reasonably satisfactory to the Trustee for the giving of notice of redemption in the name, and at the expense, of
the Company.
33
Section 8.2.
Application of Trust Money
.
The Trustee or a trustee satisfactory to the Trustee and the Company shall hold in trust money or Government Obligations deposited with
it pursuant to Section 8.1 hereof. It shall apply the deposited money and the money from Government Obligations through the Paying Agent and in accordance with this Indenture to the payment of principal of premium (if any) and interest on and
any Additional Amounts with respect to the Securities of the Series with respect to which the deposit was made.
Section 8.3.
Repayment to Company
.
The Trustee and the Paying Agent shall promptly pay to the Company upon written request any
excess money or Government Obligations (or proceeds therefrom) held by them at any time upon the written request of the Company.
Subject to the requirements of any applicable abandoned property laws, the Trustee and the Paying Agent shall pay to the Company upon written request any money held by them for the payment of principal,
premium (if any), interest or any Additional Amounts that remains unclaimed for two years after the date upon which such payment shall have become due. After payment to the Company, Holders entitled to the money must look to the Company for payment
as general creditors unless an applicable abandoned property law designates another Person, and all liability of the Trustee and the Paying Agent with respect to such money shall cease.
Section 8.4.
Reinstatement
.
If the Trustee or the Paying Agent is unable to apply any money or Government Obligations deposited with respect to Securities of any Series in accordance with Section 8.1 by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the obligations of the Company under this Indenture with respect to the Securities of such
Series and under the Securities of such Series shall be revived and reinstated as though no deposit had occurred pursuant to Section 8.1 until such time as the Trustee or the Paying Agent is permitted to apply all such money or Government
Obligations in accordance with Section 8.1;
provided
,
however
, that if the Company has made any payment of principal of, premium (if any) or interest on or any Additional Amounts with respect to any Securities because of the
reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Securities to receive such payment from the money or Government Obligations held by the Trustee or the Paying Agent.
ARTICLE IX.
AMENDMENTS AND WAIVERS
Section 9.1.
Without Consent of Holders
.
Without the consent of any
Holder of Securities of a Series, the Company, the Guarantor and the Trustee may amend or supplement this Indenture, such Series of Securities or the Guarantee in the following circumstances:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to provide for the assumption of the Company’s obligations under this Indenture or the Guarantor’s
obligations under the Guarantee by a successor upon any merger, consolidation or asset transfer in accordance with Section 5.1 or to provide for the assumption of the Company’s obligations under this Indenture by a subsidiary of the
Guarantor in accordance with Section 5.2;
(3) to provide for uncertificated Securities in addition to or
in place of Certificated Securities;
(4) to provide any security for or guarantees of the Company’s
Securities or for the addition of an additional obligor on the Company’s Securities;
34
(5) to comply with any requirement to effect or maintain the qualification
of this Indenture under the TIA, if applicable;
(6) to add covenants that would benefit the Holders of the
Company’s Securities or to surrender any rights the Company has under this Indenture;
(7) to change or
eliminate any of the provisions of this Indenture,
provided
that any such change or elimination shall not become effective with respect to any outstanding Securities of any Series created prior to the execution of such supplemental indenture
which is entitled to the benefit of such provision;
(8) to provide for the issuance of and establish forms and
terms and conditions of a new series of Securities;
(9) to permit or facilitate the defeasance and discharge
of the Securities;
(10) to issue additional Securities of any Series, provided that such additional Securities
have substantially the same terms (other than the issue date, date from which interest accrues, first interest payment date and restrictions on transfer) as, and be deemed part of the same Series as, the applicable Series of Securities to the extent
required under this Indenture;
(11) to evidence and provide for the acceptance of and appointment by a
successor trustee with respect to the Securities of one or more Series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trust by more than one trustee
(12) to add additional Events of Default with respect to the Company’s Securities; and
(13) to make any change that does not adversely affect any of its outstanding Securities in any material respect.
Section 9.2.
With Consent of Holders
.
This Indenture or the Securities of a Series or the Guarantee may be amended or supplemented, and waivers may be obtained, with the consent of the Holders of at least a majority in aggregate principal
amount of the then outstanding Securities of such Series voting as a single class (including, without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, such Securities of a Series), and any
existing Default or Event of Default (other than a Default or Event of Default in the payment of the principal of, premium on, if any, interest or Additional Amounts, if any, on, such Securities of a Series, except a payment Default resulting from
an acceleration that has been rescinded) or compliance with any provision of this Indenture or the Securities of such Series or applicable Guarantee may be waived with the consent of the Holders of a majority in aggregate principal amount of the
then outstanding Securities of such Series voting as a single class (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, such Securities of a Series).
The Holders of a majority in principal amount of the outstanding Securities of a Series issued by the Company may waive any existing or
past Default or Event of Default with respect to those Securities. Those Holders may not, however, waive any Default or Event of Default in any payment on any Security.
For the avoidance of doubt, any amendment, supplement or waiver to any Series of Securities made with the consent of Holders of such Series of Securities, shall be made with respect to that Series of
Securities only, and not any other Series of Securities.
Section 9.3.
Limitations
.
Without the consent of each Holder of outstanding Securities of a Series, an amendment, supplement or waiver may not (with respect to any
Securities of such Series held by a non-consenting Holder):
(1) reduce the amount of the Securities of such
Series whose Holders must consent to an amendment, supplement or waiver;
35
(2) reduce the rate of or change the time for payment of interest on the
Securities of such Series;
(3) reduce the principal of the Securities of such Series or change the Stated
Maturity of the Securities of such Series;
(4) reduce any premium payable on the redemption of the Securities
of such Series or change the time at which the Securities of such Series may or must be redeemed;
(5) change
any obligation to pay Additional Amounts on the Securities of such Series;
(6) make payments on the Securities
of such Series payable in currency other than as originally stated in such Securities;
(7) impair the
Holder’s right to institute suit for the enforcement of any payment on the Securities of such Series;
(8)
make any change in the percentage of principal amount of the Securities of such Series necessary to waive compliance with Sections 6.8 and 6.13 of this Indenture or to make any change in this Section 9.3(8); or
(9) waive a continuing Default or Event of Default regarding any payment on Securities of such Series.
In the event that consent is obtained from some of the Holders but not from all of the Holders with respect to any amendments or waivers
pursuant to clauses (1) through (9) of this Section 9.3, new Securities of such Series with such amendments or waivers will be issued to those consenting Holders. Such new Securities shall have separate CUSIP numbers and ISINs from
those Securities of such Series held by non-consenting Holders.
Section 9.4.
Form of Amendments
.
Every amendment to this Indenture or the Securities of one or more Series shall be set forth in a supplemental indenture.
Section 9.5.
Revocation and Effect of Consents
.
Until an amendment is set forth in a supplemental indenture or a waiver becomes effective, a consent to it by a Holder of a Security is a continuing consent by the Holder and every subsequent Holder of a
Security or portion of a Security that evidences the same debt as the consenting Holder’s Security, even if notation of the consent is not made on any Security. However, any such Holder or subsequent Holder may revoke the consent as to his
Security or portion of a Security if the Trustee receives the written notice of revocation before the date of the supplemental indenture or the date the waiver becomes effective.
Any amendment or waiver once effective shall bind every Securityholder of each Series affected by such amendment or waiver unless it is
of the type described in any of clauses (1) through (9) of Section 9.3. In that case, the amendment or waiver shall bind each Holder of a Security who has consented to it and every subsequent Holder of a Security or portion of a
Security that evidences the same debt as the consenting Holder’s Security.
Section 9.6.
Notation on or Exchange of
Securities
.
The Trustee may place an appropriate notation about an amendment or waiver on any Security of any Series
thereafter authenticated. The Company in exchange for its Securities of that Series may issue and the Trustee shall authenticate upon request new Securities of that Series that reflect the amendment or waiver.
36
Section 9.7.
Trustee Protected.
In executing, or accepting the additional trusts created by, any supplemental indenture, amendment or waiver permitted by this Article or
the modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and (subject to Section 7.1) shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. The Trustee may, but shall not be obligated to, enter into any supplemental indentures which affect the Trustee’s own rights, duties, immunities, or indemnities under this
Indenture, the Securities or otherwise.
ARTICLE X.
MISCELLANEOUS
Section 10.1.
Notices.
Any request, direction, instruction, demand, document, notice or communication by the Company, the Guarantor or the Trustee to the other,
or by a Holder to the Company or the Trustee, shall be in English and in writing and delivered in person, mailed by
first-class
mail, delivered via facsimile or delivered by overnight courier as follows:
if to the Company:
Schlumberger Investment SA
5 Avenue Gaston Diderich,
L-1420 Luxembourg
Luxembourg
Fax: +352 2744 8101
Attention: Sinan Sar
And also to:
Schlumberger Limited
5599 San Felipe Street, 17th Floor
Houston, Texas 77056
Fax: (713) 513-2006
Attention: Vice President Treasurer
if to the Guarantor:
Schlumberger Limited
5599 San Felipe Street, 17th Floor
Houston, Texas 77056
Fax: (713) 513-2006
Attention: Vice President Treasurer
if to the Trustee:
The Bank of New York Mellon
101 Barclay Street, Floor 4 East
New York, New York 10286
Fax: (212) 815-5704
Attention: Corporate Trust
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Notices shall be effective upon the recipient’s actual receipt thereof. Any party by
notice to the other parties may designate additional or different addresses for subsequent notices or communications.
Any
notice or communication to (i) a Securityholder of a Certificated Security shall be mailed by first-class mail to his address shown on the register kept by the Registrar and (ii) a Securityholder of a Global Security shall be delivered to
the Depositary in accordance with its applicable procedures. Failure to give a notice or communication to a Securityholder of any Series or any defect in it shall not affect its sufficiency with respect to other Securityholders of that or any other
Series.
If a notice or communication to any Securityholder is given in the manner provided above, within the time prescribed,
it is duly given, whether or not the Securityholder receives it.
If the Company mails a notice or communication to
Securityholders, it shall mail a copy to the Trustee and each Agent at the same time.
In respect of this Indenture, the
Trustee shall not have any duty or obligation to verify or confirm that the Person sending instructions, directions, reports, notices or other communications or information by electronic transmission is, in fact, a Person authorized to give such
instructions, directions, reports, notices or other communications or information on behalf of the party purporting to send such electronic transmission; and the Trustee shall not have any liability for any losses, liabilities, costs or expenses
incurred or sustained by any party as a result of such reliance upon or compliance with such instructions, directions, reports, notices or other communications or information. Each other party agrees to assume all risks arising out of the use of
electronic methods to submit instructions, directions, reports, notices or other communications or information to the Trustee, including without limitation the risk of the Trustee acting on unauthorized instructions, notices, reports or other
communications or information, and the risk of interception and misuse by third parties.
Section 10.2.
Communication by
Holders with Other Holders
.
Securityholders of a Series may communicate pursuant to TIA § 312(b), as if such section
applied hereto, with other Securityholders of such Series with respect to their rights under this Indenture or the Securities. The Company, the Trustee, the Agents and anyone else shall have the protection of TIA § 312(c).
Section 10.3.
Certificate and Opinion as to Conditions Precedent
.
Upon any request or application by the Company or the Guarantor to the Trustee to take any action under this Indenture, the Company or
the Guarantor, as applicable, shall furnish to the Trustee:
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an Officer’s Certificate (which shall include the statements set forth in Section 10.4) stating that, in the opinion of the signer, all conditions precedent,
if any, provided for in this Indenture relating to the proposed action have been complied with; and
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2.
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an Opinion of Counsel (which shall include the statements set forth in Section 10.4 hereof) stating that, in the opinion of such counsel, all such conditions
precedent have been complied with.
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Section 10.4.
Statements Required in Certificate or Opinion
.
Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (other
than a certificate provided pursuant to Section 4.2 in accordance with TIA § 314(a)(4)) shall comply with the provisions of TIA § 314(e) and shall include substantially:
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a statement that the Person making such certificate or opinion has read such covenant or condition;
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2.
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a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are
based;
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3.
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a statement that, in the opinion of such Person, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to
whether or not such covenant or condition has been complied with; and
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4.
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a statement as to whether or not, in the opinion of such Person, such condition or covenant has been complied with.
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Section 10.5.
Rules by Trustee and Agents
.
The Trustee may make reasonable rules for action by or a meeting of Securityholders of one or more Series. Any Agent may make reasonable rules and set reasonable requirements for its functions.
Section 10.6.
Legal Holidays
.
If a payment date is a Legal Holiday at a place of payment, payment may be made at that place on the next succeeding day that is not a Legal Holiday, and no interest shall accrue for the intervening
period.
Section 10.7.
No Personal Liability of Directors, Officers, Employees and Certain Others
.
No director, officer, employee, incorporator or similar founder, stockholder or member of the Company or the Guarantor, as such, will have
any liability for or any obligations of the Company or the Guarantor under this Indenture or the Securities, or Guarantee or for any claim based on, in respect of or by reason of, such obligations or their creation. Each Holder of Securities by
accepting a Security waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Securities. The waiver may not be effective to waive liabilities under the federal securities laws.
Section 10.8.
Counterparts
.
This Indenture may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
Section 10.9.
Governing Laws
.
THIS INDENTURE, THE SECURITIES AND THE GUARANTEE, INCLUDING ANY CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING TO THIS INDENTURE, THE
SECURITIES OR THE GUARANTEE, SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE LAW OF THE STATE OF NEW YORK.
THE APPLICATION OF THE PROVISIONS OF THE ARTICLES 86 TO 94-8 AND THE ARTICLES 96 AND 97 OF THE LUXEMBOURG LAW OF 10 AUGUST 1915
ON COMMERCIAL COMPANIES, AS AMENDED, IS HEREBY EXPRESSLY EXCLUDED.
Section 10.10.
No Adverse Interpretation of Other
Agreements
.
This Indenture may not be used to interpret another indenture, loan or debt agreement of the Company or any
Subsidiary of the Company. Any such indenture, loan or debt agreement may not be used to interpret this Indenture.
Section
10.11.
Successors
.
All agreements of the Company and the Guarantor in this Indenture and the Securities shall bind
their respective successors. All agreements of the Trustee in this Indenture shall bind its successor.
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Section 10.12.
Severability
.
In case any provision in this Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 10.13.
Table of
Contents, Headings, Etc
.
The Table of Contents, Cross Reference Table, and headings of the Articles and Sections of this
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 10.14.
Judgment Currency
.
Each of the Company and the Guarantor agrees, to the fullest extent that it may effectively do so under applicable law, that (a) if for the purpose of obtaining judgment in any court it is necessary
to convert the sum due in respect of the principal of or interest or other amount on the Securities of any Series (the “
Required Currency
”) into a currency in which a judgment will be rendered (the “
Judgment
Currency
”), the rate of exchange used shall be the rate at which in accordance with normal banking procedures the recipient could purchase in The City of New York the Required Currency with the Judgment Currency on the day on which final
unappealable judgment is entered, unless such day is not a New York Banking Day, then the rate of exchange used shall be the rate at which in accordance with normal banking procedures the recipient could purchase in The City of New York the Required
Currency with the Judgment Currency on the New York Banking Day preceding the day on which final unappealable judgment is entered and (b) its obligations under this Indenture to make payments in the Required Currency (i) shall not be
discharged or satisfied by any tender, or any recovery pursuant to any judgment (whether or not entered in accordance with subsection (a)), in any currency other than the Required Currency, except to the extent that such tender or recovery shall
result in the actual receipt, by the payee, of the full amount of the Required Currency expressed to be payable in respect of such payments, (ii) shall be enforceable as an alternative or additional cause of action for the purpose of recovering
in the Required Currency the amount, if any, by which such actual receipt shall fall short of the full amount of the Required Currency so expressed to be payable, and (iii) shall not be affected by judgment being obtained for any other sum due
under this Indenture. For purposes of the foregoing, “
New York Banking Day
” means any day except a Legal Holiday in The City of New York on which banking institutions are authorized or required by law, regulation or executive order
to close.
Section 10.15.
English Language
.
This Indenture has been negotiated and executed in the English language. All certificates, reports, notices and other documents and communications delivered or delivered pursuant to this Indenture
(including any modifications or supplements hereto), shall be in the English language, or accompanied by a certified English translation thereof. In the case of any document originally issued in a language other than English, the English language
version of any such document shall for purposes of this Indenture, and absent manifest error, control the meaning of the matters set out therein.
Section 10.16.
Submission to Jurisdiction; Appointment of Agent
.
Any
suit, action or proceeding against the Company or the Guarantor or its respective properties, assets or revenues with respect to this Indenture, the Securities or the Guarantee (a “
Related Proceeding
”) may be brought in any state or
Federal court in the Borough of Manhattan in The City of New York, New York, as the Person bringing such Related Proceeding may elect in its sole discretion. The Company and the Guarantor hereby consent to the non-exclusive jurisdiction of each such
court for the purpose of any Related Proceeding and have irrevocably waived any objection to the laying of venue of any Related Proceeding brought in any such court and
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to the fullest extent they may effectively do so and the defense of an inconvenient forum to the maintenance of any Related Proceeding or any such suit, action or proceeding in any such court.
The Company and the Guarantor hereby agree that service of all writs, claims, process and summonses in any Related Proceeding brought against them in the State of New York may be made upon Schlumberger Limited, 5599 San Felipe Street, 17
th
Floor, Houston, Texas 77057 Attention: Vice President Treasurer (the
“
Process Agent
”). The Company has irrevocably appointed the Process Agent as its agent and true and lawful attorney in fact in its name, place and stead to accept such service of any and all such writs, claims, process and
summonses, and hereby agrees that the failure of the Process Agent to give any notice to it of any such service of process shall not impair or affect the validity of such service or of any judgment based thereon. The Company and the Guarantor hereby
agree to have an office or to maintain at all times an agent with offices in the United States of America to act as Process Agent. Nothing in this Indenture shall in any way be deemed to limit the ability to serve any such writs, process or
summonses in any other manner permitted by applicable law.
Section 10.17.
Waiver of Immunity
.
To the extent that the Company or the Guarantor 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 or execution, on the ground of sovereignty or otherwise) with respect to itself or its property, it hereby irrevocably waives, to the
fullest extent permitted by applicable law, such immunity in respect of its obligations under this Indenture, Securities and/or the Guarantees.
Section 10.18.
Waiver of Jury Trial
.
EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS
INDENTURE, THE SECURITIES, THE GUARANTEES OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
Section 10.19.
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.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of
the day and year first above written.
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Schlumberger Investment SA
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By:
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Name:
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Its:
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Schlumberger Limited
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By:
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Name:
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Its:
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The Bank of New York Mellon
as Trustee, Registrar, Paying Agent and
Transfer Agent
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By:
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Name:
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Title:
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Base Indenture
