UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): May 20, 2014
Pentair Ltd.
(Exact name of Registrant as specified in its charter)
Switzerland | 001-11625 | 98-1050812 | ||
(State or other jurisdiction of incorporation or organization) |
Commission file number |
(I.R.S. Employer Identification number) |
Freier Platz 10, 8200 Schaffhausen, Switzerland
(Address of principal executive offices, including Zip Code)
Registrants telephone number, including area code: 41-52-630-48-00
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
ITEM 1.01 | Entry Into a Material Definitive Agreement. |
Credit Agreement
In anticipation of the change of jurisdiction of organization of Pentair Ltd. (the Company) from Switzerland to Ireland pursuant to a merger (the Merger) of the Company with and into Pentair plc, an Irish public limited company and subsidiary of the Company (Pentair-Ireland), on May 20, 2014, Pentair-Ireland and Pentair Investments Switzerland GmbH, a Swiss company that will be a subsidiary of Pentair-Ireland and the parent of PFSA (as defined below) after the Merger (SwissCo), entered into an Assumption and Accession Agreement, dated as of May 20, 2014 (the Accession Agreement), to acknowledge that, effective upon the Merger, Pentair-Ireland will assume all of the Companys obligations as a guarantor, and SwissCo will become an additional guarantor, under the Credit Agreement, dated as of September 21, 2012, among Pentair Finance S.A., a Luxembourg public limited liability company and subsidiary of the Company (PFSA), the Company, various affiliates of the Company and the financial institutions party thereto, as amended.
The foregoing is only a summary of the terms of the Accession Agreement and is qualified in its entirety by reference to the Accession Agreement, which is filed as Exhibit 4.1 to this Current Report on Form 8-K and is incorporated by reference herein.
Supplemental Indentures
In anticipation of the change of jurisdiction of organization of the Company from Switzerland to Ireland pursuant to the Merger, on May 20, 2014:
| Pentair, Inc., a Minnesota corporation and subsidiary of the Company (Pentair, Inc.), the Company, SwissCo, Pentair-Ireland and Wells Fargo Bank, National Association, as trustee (Trustee), entered into a Fifth Supplemental Indenture (the Fifth Supplemental Indenture) to the Senior Indenture, dated as of May 2, 2011, between Pentair, Inc. and Trustee, providing that, effective upon the Merger, Pentair-Ireland will assume the Companys obligations as a guarantor, and SwissCo will be added as an additional guarantor, under the $127 million aggregate principal amount of outstanding Pentair, Inc. senior notes. |
| On May 20, 2014, PFSA, the Company, SwissCo, Pentair-Ireland and Trustee entered into the Sixth Supplemental Indenture, dated as of May 20, 2014 (the Sixth Supplemental Indenture) to that certain Senior Indenture, dated as of September 24, 2012, between PFSA and Trustee providing that, effective upon the Merger, Pentair-Ireland will assume the Companys obligations as a guarantor, and SwissCo will be added as an additional guarantor, under the $1,873 million aggregate principal amount of outstanding PFSA senior notes. |
The foregoing is only a summary of the terms of the Fifth Supplemental Indenture and the Sixth Supplemental Indenture and is qualified in its entirety by reference to such Supplemental Indentures which are filed as Exhibits 4.2 and 4.3, respectively, to this Current Report on Form 8-K and are incorporated by reference herein.
ITEM 2.03 | Creation of a Direct Financial Obligation or an Obligation Under an Off-Balance Sheet Arrangement of a Registrant. |
The information included in Item 1.01 above is incorporated by reference herein.
ITEM 5.07 | Submission of Matters to a Vote of Security Holders. |
Results of the Annual General Meeting
The Company held its 2014 annual general meeting of shareholders on May 20, 2014. There were 193,576,105 common shares issued and outstanding at the close of business on April 30, 2014 and entitled to vote at the annual general meeting. A total of 159,799,776 common shares (83%) were represented at the annual general meeting.
The items voted upon at the annual general meeting and the results of the vote on each proposal were as follows:
Proposal 1. Re-Election of Nine Directors and Election of One Director
To re-elect nine directors and elect one director for one-year terms expiring at the 2015 annual general meeting of shareholders. Each nominee for director was re-elected or elected, as applicable, by a vote of the shareholders as follows:
Nominees |
Votes For | Votes Against | Abstentions | Broker Non-Votes | ||||||||||||
Glynis A. Bryan |
145,418,042 | 2,134,147 | 684,585 | 11,563,002 | ||||||||||||
Jerry W. Burris |
147,271,597 | 269,846 | 695,311 | 11,563,002 | ||||||||||||
Carol Anthony (John) Davidson |
146,389,508 | 1,050,387 | 796,879 | 11,563,002 | ||||||||||||
T. Michael Glenn |
146,725,609 | 817,076 | 694,089 | 11,563,002 | ||||||||||||
David H. Y. Ho |
147,030,519 | 436,687 | 769,568 | 11,563,002 | ||||||||||||
Randall J. Hogan |
145,401,373 | 2,011,301 | 824,100 | 11,563,002 | ||||||||||||
David A. Jones |
145,728,858 | 1,740,841 | 767,075 | 11,563,002 | ||||||||||||
Ronald L. Merriman |
146,842,023 | 719,163 | 675,588 | 11,563,002 | ||||||||||||
William T. Monahan |
145,818,711 | 1,741,306 | 676,757 | 11,563,002 | ||||||||||||
Billie Ida Williamson |
147,182,810 | 288,073 | 765,891 | 11,563,002 |
Proposal 2. Election of the Chairman of the Board of Directors
To elect Randall J. Hogan as Chairman of the board of directors to hold office until the 2015 annual general meeting of shareholders. Mr. Hogan was elected Chairman of the board of directors by a vote of the shareholders as follows:
Nominee |
Votes For | Votes Against | Abstentions | Broker Non-Votes | ||||||||||||
Randall J. Hogan |
111,403,968 | 36,026,119 | 806,687 | 11,563,002 |
Proposal 3. Election of the Members of the Compensation Committee
To elect four incumbent directors as members of the compensation committee of the board of directors to hold office until the 2015 annual general meeting of shareholders. Each nominee to the compensation committee of the board of directors was elected by a vote of the shareholders as follows:
Nominees |
Votes For | Votes Against | Abstentions | Broker Non-Votes | ||||||||||||
David A. Jones |
145,962,623 | 1,489,585 | 784,566 | 11,563,002 | ||||||||||||
Glynis A. Bryan |
146,111,848 | 1,387,381 | 737,545 | 11,563,002 | ||||||||||||
T. Michael Glenn |
146,735,498 | 784,783 | 716,943 | 11,563,002 | ||||||||||||
William T. Monahan |
145,977,096 | 1,545,508 | 714,170 | 11,563,002 |
Proposal 4. Election of the Independent Proxy
To elect Proxy Voting Services GmbH as the independent proxy at the 2015 annual general meeting of shareholders and also at any shareholder meeting that may be held prior to the 2015 annual general meeting of shareholders. Proxy Voting Services GmbH was elected as the independent proxy by a vote of the shareholders as follows:
Votes For | Votes Against | Abstentions | Broker Non-Votes | |||||||||||
158,373,658 | 357,913 | 1,068,205 | 0 |
Proposal 5. Approval of the Annual Report and Financial Statements
To approve the 2013 annual report of the Company, the statutory financial statements of the Company for the year ended December 31, 2013 and the consolidated financial statements of the Company for the year ended December 31, 2013. The proposal was approved by a vote of the shareholders as follows:
Votes For | Votes Against | Abstentions | Broker Non-Votes | |||||||||||
157,796,913 | 302,205 | 1,700,658 | 0 |
Proposal 6. Discharge of the Board of Directors and Executive Officers of the Company from Liability for the Year Ended December 31, 2013
To discharge the board of directors and executive officers of the Company from liability for their activities during the year ended December 31, 2013. The proposal was approved by a vote of the shareholders as follows:
Votes For | Votes Against | Abstentions | Broker Non-Votes | |||||||||||
153,041,223 | 3,955,294 | 1,858,791 | 0 |
Proposal 7(a). Re-Election of Statutory Auditors
To re-elect Deloitte AG as the Companys statutory auditors until the next annual general meeting. The proposal was approved by a vote of the shareholders as follows:
Votes For | Votes Against | Abstentions | Broker Non-Votes | |||||||||||
158,434,600 | 557,290 | 807,886 | 0 |
Proposal 7(b). Ratification of Appointment of Independent Registered Public Accounting Firm
To ratify the appointment of Deloitte & Touche LLP as the Companys independent registered public accounting firm for the year ending December 31, 2014. The proposal was approved by a vote of the shareholders as follows:
Votes For | Votes Against | Abstentions | Broker Non-Votes | |||||||||||
157,888,292 | 1,114,895 | 796,589 | 0 |
Proposal 7(c). Election of Special Auditors
To elect PricewaterhouseCoopers AG as the Companys special auditors until the next annual general meeting. The proposal was approved by a vote of the shareholders as follows:
Votes For | Votes Against | Abstentions | Broker Non-Votes | |||||||||||
158,619,841 | 531,300 | 648,635 | 0 |
Proposal 8(a). Appropriation of Results for the Year Ended December 31, 2013
To approve the appropriation of results for the year ended December 31, 2013. The proposal was approved by a vote of the shareholders as follows:
Votes For | Votes Against | Abstentions | Broker Non-Votes | |||||||||||
158,343,622 | 359,809 | 1,096,345 | 0 |
Proposal 8(b). Conversion and Appropriation of Reserves from Capital Contributions to Distribute an Ordinary Cash Dividend
To approve the conversion of reserves from capital contributions into free reserves in a total amount of $ 256 million and to appropriate them to distribute an ordinary cash dividend in the amount of $1.20 per share. Payment of the dividend will be made in four equal quarterly installments of $0.30 in each of the third and fourth quarters of 2014 and the first and second quarters of 2015 at such times and with such record dates as shall be determined by the board of directors of the Company. The proposal was approved by a vote of the shareholders as follows:
Votes For | Votes Against | Abstentions | Broker Non-Votes | |||||||||||
158,333,640 | 361,722 | 1,104,414 | 0 |
Proposal 9. Advisory Vote to Approve the Compensation of the Named Executive Officers
To approve by advisory vote, the compensation of the Companys named executive officers. The compensation of the Companys named executive officers was approved by advisory vote by shareholders as follows:
Votes For | Votes Against | Abstentions | Broker Non-Votes | |||||||||||
142,949,958 | 4,440,099 | 846,717 | 11,563,002 |
Results of the Extraordinary General Meeting
The Company held an extraordinary general meeting of shareholders on May 20, 2014 to consider certain matters in connection with the Merger Agreement, dated as of December 10, 2013 (the Merger Agreement), between the Company and Pentair-Ireland, pursuant to which the Company effect the Merger, thereby changing the jurisdiction of organization of the Company from Switzerland to Ireland.
There were 193,576,105 common shares issued and outstanding at the close of business on April 30, 2014 and entitled to vote at the extraordinary general meeting. A total of 147,972,664 common shares (76%) were represented at the extraordinary general meeting.
The items voted upon at the extraordinary general meeting and the results of the vote on each proposal were as follows:
Proposal 1. Approval of the Merger Agreement
To approve the Merger Agreement. The Merger Agreement was approved by a vote of the shareholders as follows:
Votes For | Votes Against | Abstentions | Broker Non-Votes | |||||||||||
145,915,869 | 1,277,126 | 779,669 | 0 |
Proposal 2. Approval of the Elimination of the 20% Voting Cap in Pentair-Irelands Articles of Association
To approve the removal of the restriction on voting shares in excess of 20% less one share of the share capital of Pentair-Ireland contained in Pentair-Irelands articles of association to be adopted in connection with the Merger. The proposal was approved by a vote of the shareholders as follows:
Votes For | Votes Against | Abstentions | Broker Non-Votes | |||||||||||
146,203,977 | 833,400 | 935,287 | 0 |
Proposal 3. Approval of the Creation of Distributable Reserves of Pentair-Ireland
To approve the reduction of the share premium of Pentair-Ireland to allow the creation of distributable reserves of Pentair-Ireland. The proposal was approved by a vote of the shareholders as follows:
Votes For | Votes Against | Abstentions | Broker Non-Votes | |||||||||||
146,632,318 | 422,027 | 918,319 | 0 |
ITEM 9.01 | Financial Statements and Exhibits. |
(a) | Not applicable. |
(b) | Not applicable. |
(c) | Not applicable. |
(d) | Exhibits. The following exhibits are being filed herewith: |
Exhibit |
Description |
|
4.1 | Assumption and Accession Agreement, dated as of May 20, 2014, by Pentair Investments Switzerland GmbH and Pentair plc. | |
4.2 | Fifth Supplemental Indenture, dated as of May 20, 2014, among Pentair, Inc., Pentair Ltd., Pentair Investments Switzerland GmbH, Pentair plc and Wells Fargo Bank, National Association, as trustee. | |
4.3 | Sixth Supplemental Indenture, dated as of May 20, 2014, among Pentair Finance S.A., Pentair Ltd., Pentair Investments Switzerland GmbH, Pentair plc and Wells Fargo Bank, National Association, as trustee. |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, hereunto duly authorized, on May 20, 2014.
PENTAIR LTD. | ||
Registrant | ||
By: |
/s/ Angela D. Lageson |
|
Angela D. Lageson | ||
Senior Vice President, General Counsel and Secretary |
PENTAIR LTD.
Exhibit Index to Current Report on Form 8-K
Dated May 20, 2014
Exhibit Number |
Description |
|
4.1 | Assumption and Accession Agreement, dated as of May 20, 2014, by Pentair Investments Switzerland GmbH and Pentair plc. | |
4.2 | Fifth Supplemental Indenture, dated as of May 20, 2014, among Pentair, Inc., Pentair Ltd., Pentair Investments Switzerland GmbH, Pentair plc and Wells Fargo Bank, National Association, as trustee. | |
4.3 | Sixth Supplemental Indenture, dated as of May 20, 2014, among Pentair Finance S.A., Pentair Ltd., Pentair Investments Switzerland GmbH, Pentair plc and Wells Fargo Bank, National Association, as trustee. |
Exhibit 4.1
EXECUTION VERSION
ASSUMPTION AND ACCESSION AGREEMENT
Date: May 20, 2014
To: | Bank of America, N.A., as Administrative Agent under the Credit Agreement dated as of September 21, 2012 (as previously amended, the Credit Agreement ) among Pentair Finance S.A., various affiliates thereof, various financial institutions and Bank of America, N.A., as Administrative Agent. |
Ladies/Gentlemen:
As contemplated by the First Amendment and Consent, dated as of April 22, 2014 to the Credit Agreement, upon the Merger, each of Pentair plc and the Swiss Parent are to be parties to the Credit Agreement. Accordingly, each of Pentair plc and the Swiss Parent acknowledges and agrees as follows:
1. Pentair plc acknowledges that, effective upon the Merger, it will become a party to the Credit Agreement. In furtherance of the foregoing, Pentair plc agrees that, effective upon the Merger, (a) it will have assumed all obligations of Pentair Ltd. under the Credit Agreement and (b) it will perform all of the obligations of the Parent under the Credit Agreement. Without limiting the foregoing, Pentair plc confirms that, upon the effectiveness of the Merger, its guaranty of the obligations of each Borrower set forth in Article X of the Credit Agreement will be effective.
2. Effective upon the Merger, the Swiss Parent will become a party to the Credit Agreement. In furtherance of the foregoing, the Swiss Parent agrees that, effective upon the Merger, (a) it will be bound by the Credit Agreement in all respects as if it had been an original party thereto and (b) it will perform all of the obligations of a Guarantor under the Credit Agreement.
[Signatures begin on the following page]
PENTAIR plc | PENTAIR INVESTMENTS SWITZERLAND GmbH | |||||||
By: | /s/ Angela D. Lageson | By: | /s/ Mark C. Borin | |||||
Name: Angela D. Lageson | Name: Mark C. Borin | |||||||
Title: Director | Title: Managing Director | |||||||
By: | /s/ Julien Lugon-Moulin | |||||||
Name: Julien Lugon-Moulin | ||||||||
Title: Managing Director |
Assumption and Accession Agreement
Exhibit 4.2
EXECUTION VERSION
FIFTH SUPPLEMENTAL INDENTURE
FIFTH SUPPLEMENTAL INDENTURE (this Fifth Supplemental Indenture ) dated as of the 20th day of May, 2014, among Pentair, Inc., a Minnesota corporation (the Company ), Pentair Ltd., a corporation limited by shares ( Aktiengesellschaft ) organized under the laws of Switzerland (the Initial Parent Guarantor ), Pentair Investments Switzerland GmbH, a Swiss Gesellschaft mit beschränkter Haftung ( SwissCo ), Pentair plc, an Irish public limited company (the Successor Parent Guarantor ), and Wells Fargo Bank, National Association, a national banking association, as trustee (the Trustee ), under the Indenture referred to below.
W I T N E S S E T H
WHEREAS, the Company and the Trustee have heretofore executed and delivered a senior indenture (the Base Indenture ), dated as of May 2, 2011, providing for the issuance by the Company from time to time of its debt securities to be issued in one or more series, supplemented by the (i) first supplemental indenture (the First Supplemental Indenture ), dated as of May 9, 2011, among the Company, the guarantors listed on the signature pages thereto and the Trustee, providing for the issuance of an aggregate principal amount of up to $500,000,000 of 5.000% Senior Notes due 2021 (the Notes ), (ii) second supplemental indenture (the Second Supplemental Indenture ), dated as of October 31, 2011, among the Company, the guaranteeing subsidiaries listed on the signature pages thereto and the Trustee, providing for the guarantee of certain of the Companys Obligations under the Notes and the Indenture by the guaranteeing subsidiaries, (iii) third supplemental indenture (the Third Supplemental Indenture ), dated as of October 1, 2012, among the Company, the Initial Parent Guarantor and the Trustee, providing for the guarantee of certain of the Companys Obligations under the Notes and the Indenture by the Initial Parent Guarantor and (iv) fourth supplemental indenture (the Fourth Supplemental Indenture and, collectively with the Base Indenture, the First Supplemental Indenture, the Second Supplemental Indenture, the Third Supplemental Indenture and the Fifth Supplemental Indenture, the Indenture ), dated as of December 17, 2012, among the Company, the Initial Parent Guarantor and the Trustee, providing for the deletion of certain provisions in the Base Indenture and First Supplemental Indenture;
WHEREAS, the Initial Parent Guarantor and its subsidiaries intend to effectuate the following series of substantially simultaneous transactions in connection with a corporate restructuring: (i) the Company would become an indirect wholly-owned subsidiary of SwissCo; (ii) the Initial Parent Guarantor would merge with and into the Successor Parent Guarantor with the Successor Parent Guarantor being the surviving entity; (iii) as a result of such merger, SwissCo would become a wholly-owned subsidiary of the Successor Parent Guarantor, and the Successor Parent Guarantor would assume the Initial Parent Guarantors obligations under the Indenture and (iv) SwissCo would become a guarantor under the Indenture;
WHEREAS, Section 10.6 of the Base Indenture provides, in part, that the Initial Parent Guarantor may merge with and into another Person provided that such Person shall unconditionally assume all the obligations of the Initial Parent Guarantor and the due and punctual performance of all of the covenants and conditions of the Indenture to be performed by the Initial Parent Guarantor;
WHEREAS, Section 9.1(4) of the Base Indenture provides that the Successor Parent Guarantor may execute and deliver to the Trustee a supplemental indenture pursuant to which the Successor Parent Guarantor shall assume the Initial Parent Guarantors obligations under the Notes and the Indenture on the terms and conditions set forth herein;
WHEREAS, Section 9.1(11) of the Base Indenture provides that the Company may add a guarantor by executing and delivering to the Trustee a supplemental indenture pursuant to which such new guarantor shall unconditionally guarantee certain of the Companys Obligations under the Notes and the Indenture on the terms and conditions set forth herein (the Guarantee ); and
WHEREAS, pursuant to Section 9.1 of the Base Indenture, the Trustee, the Company and the Initial Parent Guarantor are authorized to execute and deliver this Fifth Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Company, the Initial Parent Guarantor, the Successor Parent Guarantor, SwissCo and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:
1. Capitalized Terms . Capitalized definitional terms used herein without definition shall have the meanings assigned to them in the Indenture.
2. Assumption of Obligations . Pursuant to, and in compliance and accordance with, Section 10.6 of the Base Indenture, by this Fifth Supplemental Indenture, from and after the consummation of the merger of the Initial Parent Guarantor with and into the Successor Parent Guarantor, the Successor Parent Guarantor unconditionally assumes all the obligations of the Initial Parent Guarantor and the due and punctual performance of all of the covenants and conditions of the Indenture to be performed by the Initial Parent Guarantor.
3. Substitution . Pursuant to Section 10.6 of the Base Indenture, from and after the consummation of the merger of the Initial Parent Guarantor with and into the Successor Parent Guarantor, the Successor Parent Guarantor shall succeed to, and be substituted for, the Initial Parent Guarantor under the Indenture with the same effect as if the Successor Parent Guarantor had been named as the Initial Parent Guarantor under the Indenture.
4. Agreement to Guarantee . From and after the consummation of the merger of the Initial Parent Guarantor with and into the Successor Parent Guarantor, SwissCo hereby agrees, jointly and severally, to unconditionally guarantee the Companys (i) full and punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the principal of, premium, if any, interest and Additional Amounts, if any, on the Notes and all other monetary Obligations of the Company under the Indenture and (ii) payment to the Trustee of all amounts owed to the Trustee under the Indenture (the obligations set forth in clauses (i) and (ii) of this Section 4 are collectively referred to herein as the Guarantor Obligations ), in each case in accordance with and subject to the terms and conditions set forth in Article 10 of the Base Indenture (subject to the provisos below) and to be bound by all other applicable provisions of the Indenture and the Notes and to perform all of the obligations and agreements of a Guarantor
2
under the Indenture; provided that Article 10 of the Base Indenture, including, without limitation, the release provisions thereunder, shall apply to SwissCo mutatis mutandis ; provided further , that for the avoidance of doubt, and notwithstanding the foregoing, SwissCo shall only guarantee (i) the Companys Obligations and (ii) the Companys Obligations only to the extent that such Obligations constitute Guarantor Obligations under the Indenture and the Notes.
5. Notice of Merger . Promptly after the consummation of the merger of the Initial Parent Guarantor with and into the Successor Parent Guarantor, the Company shall notify the Trustee in writing thereof.
6. No Recourse Against Others . No past, present or future director, manager, officer, employee, incorporator, member, partner, stockholder, agent or other owner of Capital Stock of the Company, the Initial Parent Guarantor, the Successor Parent Guarantor or SwissCo as such, shall have any liability for any obligations of the Company, the Initial Parent Guarantor, the Successor Parent Guarantor or SwissCo under the Notes, the Guarantee, the Indenture or this Fifth Supplemental Indenture, or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of the Notes by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes.
7. Ratification of Indenture; Fifth Supplemental Indenture Part of Indenture . Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Fifth Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered shall be bound hereby.
8. New York Law to Govern . THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS FIFTH SUPPLEMENTAL INDENTURE WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
9. Counterparts . The parties may sign any number of copies of this Fifth Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. The exchange of copies of this Fifth Supplemental Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Fifth Supplemental Indenture as to the parties hereto and may be used in lieu of the original Fifth Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.
10. Effect of Headings . The Section headings herein are for convenience only and shall not affect the construction hereof.
11. The Trustee . The Trustee shall not be responsible in any manner whatsoever for or in respect of (i) the validity or sufficiency of this Fifth Supplemental Indenture, (ii) the recitals contained herein, all of which recitals are made solely by the Company, the Initial Parent Guarantor, the Successor Parent Guarantor and SwissCo, (iii) the due execution hereof by the Company, the Initial Parent Guarantor, the Successor Parent Guarantor and SwissCo or (iv) the consequences of any amendment herein provided for, and the Trustee makes no representation with respect to any such matters.
3
12. Enforceability . Each of the Company, the Initial Parent Guarantor, the Successor Parent Guarantor and SwissCo hereby represents and warrants that this Fifth Supplemental Indenture is the legal, valid and binding obligation of each of them, enforceable against each of them in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors rights and to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law).
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Fifth Supplemental Indenture to be duly executed and attested, all as of the date first above written.
COMPANY: | ||
Pentair, Inc. | ||
By: | /s/ Angela D. Lageson | |
Name: Angela D. Lageson | ||
Title: Senior Vice President, General | ||
Counsel and Secretary | ||
INITIAL PARENT GUARANTOR: | ||
Pentair Ltd. | ||
By: | /s/ Michael G. Meyer | |
Name: Michael G. Meyer | ||
Title: Vice President, Treasurer | ||
By: | /s/ Angela D. Lageson | |
Name: Angela D. Lageson | ||
Title: Senior Vice President, General | ||
Counsel and Secretary | ||
SUCCESSOR PARENT GUARANTOR: | ||
Pentair plc | ||
By: | /s/ Angela D. Lageson | |
Name: Angela D. Lageson | ||
Title: Director |
Fifth Supplemental Indenture
(Pentair, Inc.)
S-1
GUARANTOR: | ||
Pentair Investments Switzerland GmbH | ||
By: | /s/ Mark C. Borin | |
Name: Mark C. Borin | ||
Title: Managing Director | ||
By: | /s/ Julien Lugon-Moulin | |
Name: Julien Lugon-Moulin | ||
Title: Managing Director |
Fifth Supplemental Indenture
(Pentair, Inc.)
S-2
TRUSTEE: | ||
Wells Fargo Bank, National Association, as Trustee | ||
By: | /s/ Stefan Victory | |
Name: Stefan Victory | ||
Title: Vice President |
Fifth Supplemental Indenture
(Pentair, Inc.)
S-3
Exhibit 4.3
EXECUTION VERSION
SIXTH SUPPLEMENTAL INDENTURE
SIXTH SUPPLEMENTAL INDENTURE (this Sixth Supplemental Indenture ) dated as of the 20 th day of May, 2014, among Pentair Finance S.A., a Luxembourg public limited liability company ( société anonyme ) with registered office at 26, boulevard Royal, L-2449 Luxembourg and registered with the Luxembourg Trade and Companies Register under number B 166305 (the Company ), Pentair Ltd., a corporation limited by shares ( Aktiengesellschaft ) organized under the laws of Switzerland (the Initial Parent Guarantor ), Pentair Investments Switzerland GmbH, a Swiss Gesellschaft mit beschränkter Haftung ( SwissCo ), Pentair plc, an Irish public limited company (the Successor Parent Guarantor ), and Wells Fargo Bank, National Association, a national banking association, as trustee (the Trustee ), under the Indenture referred to below.
W I T N E S S E T H
WHEREAS, the Company, the Initial Parent Guarantor and the Trustee have heretofore executed and delivered an indenture (the Base Indenture ), dated as of September 24, 2012, providing for the issuance by the Company from time to time of its debt securities to be issued in one or more series, supplemented by the (i) first supplemental indenture (the First Supplemental Indenture ), dated as of September 24, 2012, among the Company, the Initial Parent Guarantor, Pentair, Inc., a Minnesota corporation ( Pentair ), and the Trustee, providing for the issuance of an aggregate principal amount of up to $350,000,000 of 1.875% Notes due 2017 (the 2017 Notes ), (ii) second supplemental indenture (the Second Supplemental Indenture ), dated as of September 24, 2012, among the Company, the Initial Parent Guarantor, Pentair and the Trustee, providing for the issuance of an aggregate principal amount of up to $550,000,000 of 3.150% Notes due 2022 (the 2022 Notes ), (iii) third supplemental indenture (the Third Supplemental Indenture ), dated as of November 26, 2012, among the Company, the Initial Parent Guarantor and the Trustee, providing for the issuance of an aggregate principal amount of up to $350,000,000 of 1.350% Senior Notes due 2015 (the 2015 Notes ), (iv) fourth supplemental indenture (the Fourth Supplemental Indenture ), dated as of November 26, 2012, among the Company, the Initial Parent Guarantor and the Trustee, providing for the issuance of an aggregate principal amount of up to $250,000,000 of 2.650% Senior Notes due 2019 (the 2019 Notes ) and (v) fifth supplemental indenture (the Fifth Supplemental Indenture and, collectively with the Base Indenture, the First Supplemental Indenture, the Second Supplemental Indenture, the Third Supplemental Indenture, the Fourth Supplemental Indenture and the Sixth Supplemental Indenture, the Indenture ), dated as of December 18, 2012, among the Company, the Initial Parent Guarantor and the Trustee, providing for the issuance of an aggregate principal amount of up to $373,026,000 of 5.000% Senior Notes due 2021 (the 2021 Notes and, collectively with the 2017 Notes, the 2022 Notes, the 2015 Notes and the 2019 Notes, the Notes ) pursuant to an exchange offer for the 5.000% Senior Notes due 2021 of the Companys subsidiary Pentair;
WHEREAS, the Initial Parent Guarantor and its subsidiaries intend to effectuate the following series of substantially simultaneous transactions in connection with a corporate restructuring: (i) the Company would become a wholly-owned subsidiary of SwissCo; (ii) the Initial Parent Guarantor would merge with and into the Successor Parent Guarantor with the Successor Parent Guarantor being the surviving entity; (iii) as a result of such merger, SwissCo would become a wholly-owned subsidiary of the Successor Parent Guarantor, and the Successor Parent Guarantor would assume the Initial Parent Guarantors obligations under the Guarantees (as defined in the Base Indenture) and (iv) SwissCo would become a guarantor under the Indenture;
WHEREAS, Section 10.01 of the Base Indenture provides, in part, that the Initial Parent Guarantor may merge with another Person provided that such Person shall expressly assume the obligations under the Guarantees (as defined in the Base Indenture) according to their tenor, and the due and punctual performance and observance of all of the covenants and agreements of the Indenture to be performed or observed by the Initial Parent Guarantor;
WHEREAS, Section 9.01(b) of the Base Indenture provides that the Successor Parent Guarantor may execute and deliver to the Trustee a supplemental indenture pursuant to which the Successor Parent Guarantor shall assume the Initial Parent Guarantors obligations under the Notes and the Indenture on the terms and conditions set forth herein;
WHEREAS, Section 9.01(b) of the Base Indenture provides that the Company may add a guarantor by executing and delivering to the Trustee a supplemental indenture pursuant to which such new guarantor shall unconditionally guarantee certain of the Companys obligations under the Notes and the Indenture on the terms and conditions set forth herein (the Guarantee );
WHEREAS, in connection with the corporate restructuring, certain conforming changes need to be made to the Base Indenture to reflect the name, address and jurisdiction of organization of the Successor Parent Guarantor;
WHEREAS, Section 9.01(h) of the Base Indenture provides that the Company may make changes to the Base Indenture that do not adversely affect the rights of any Holder of the Notes in any material respect, such as the conforming technical changes described above; and
WHEREAS, pursuant to Section 9.01 of the Base Indenture, the Trustee, the Company and the Initial Parent Guarantor are authorized to execute and deliver this Sixth Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Company, the Initial Parent Guarantor, the Successor Parent Guarantor, SwissCo and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:
1. Capitalized Terms . Capitalized definitional terms used herein without definition shall have the meanings assigned to them in the Indenture.
2. Assumption of Obligations . Pursuant to, and in compliance and accordance with, Section 10.01 of the Base Indenture, by this Sixth Supplemental Indenture, from and after the consummation of the merger of the Initial Parent Guarantor with and into the Successor Parent Guarantor, the Successor Parent Guarantor expressly assumes the obligations under the Guarantees (as defined in the Base Indenture) according to their tenor, and the due and punctual performance and observance of all of the covenants and agreements of the Indenture to be performed or observed by the Initial Parent Guarantor.
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3. Substitution . Pursuant to Section 10.02 of the Base Indenture, from and after the consummation of the merger of the Initial Parent Guarantor with and into the Successor Parent Guarantor, the Successor Parent Guarantor shall succeed to, and be substituted for, the Initial Parent Guarantor, and may exercise every right and power of, the Initial Parent Guarantor under the Indenture with the same effect as if the Successor Parent Guarantor had been named as the Initial Parent Guarantor under the Indenture.
4. Agreement to Guarantee . From and after the consummation of the merger of the Initial Parent Guarantor with and into the Successor Parent Guarantor, SwissCo hereby agrees, jointly and severally, to unconditionally guarantee the Companys (i) due and punctual payment of the principal of, premium, if any, and interest on the Notes when and as the same shall become due and payable, whether at the stated maturity, by acceleration, call for redemption or otherwise, and (ii) payment to the Trustee of all amounts owed to the Trustee under the Indenture (the obligations set forth in clauses (i) and (ii) of this Section 4 are collectively referred to herein as the Guarantor Obligations ), in each case in accordance with and subject to the terms and conditions set forth in Article 15 of the Base Indenture (subject to the provisos below) and to be bound by all other applicable provisions of the Indenture and the Notes and to perform all of the obligations and agreements of a guarantor under the Indenture; provided that Article 15 of the Base Indenture, including, without limitation, the release provisions thereunder, shall apply to SwissCo mutatis mutandis ; provided further , that for the avoidance of doubt, and notwithstanding the foregoing, SwissCo shall only guarantee (i) the Companys obligations and (ii) the Companys obligations only to the extent that such obligations constitute Guarantor Obligations under the Indenture and the Notes.
5. Merger . From and after the consummation of the merger of the Initial Parent Guarantor with and into the Successor Parent Guarantor, the following definition is hereby added to Section 1.01 of the Base Indenture in the appropriate alphabetical order:
Merger means the merger of Pentair Ltd. with and into Pentair plc with Pentair plc being the surviving entity.
6. Parent . From and after the consummation of the merger of the Initial Parent Guarantor with and into the Successor Parent Guarantor, the definition of Parent in Section 1.01 of the Base Indenture is hereby amended and restated in its entirety as follows:
Parent means Pentair plc until a successor entity shall have become such pursuant to Article X , and thereafter Parent shall mean such successor entity, except that any reference made to the Parent as of a specific date prior to consummation of the Merger shall refer to Pentair Ltd.
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7. Notices . From and after the consummation of the merger of the Initial Parent Guarantor with and into the Successor Parent Guarantor, Section 13.03 of the Base Indenture is hereby amended to replace the name and address of Pentair Ltd. immediately after the phrase If to Parent: with the following name and address:
Pentair plc
P.O. Box 471
Sharp Street
Walkden
Manchester
M28 8BU
United Kingdom
8. Taxing Jurisdiction . From and after the consummation of the merger of the Initial Parent Guarantor with and into the Successor Parent Guarantor, Section 14.01 of the Base Indenture is hereby amended to add the phrase , Ireland immediately after the phrase Luxembourg, Switzerland appearing therein.
9. Notice of Merger . Promptly after the consummation of the merger of the Initial Parent Guarantor with and into the Successor Parent Guarantor, the Company shall notify the Trustee in writing thereof.
10. No Recourse Against Others . No recourse under or upon any obligation, covenant or agreement of the Guarantee, the Indenture or this Sixth Supplemental Indenture, or of any Note, or for any claim based thereon or otherwise in respect hereof or thereof, shall be had against any incorporator, stockholder, officer or director, past, present or future as such, of the Company, the Initial Parent Guarantor, the Successor Parent Guarantor or SwissCo or of any predecessor or successor Person, either directly or through the Company, the Initial Parent Guarantor, the Successor Parent Guarantor or SwissCo or any such predecessor or successor Person, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood that the Guarantee, the Indenture and this Sixth Supplemental Indenture and the obligations issued hereunder and thereunder are solely corporate obligations, and that no such personal liability whatever shall attach to, or is or shall be incurred by, the incorporators, organizers, shareholders, partners, members, officers, directors, managers or agents as such, of the Company, the Initial Parent Guarantor, the Successor Parent Guarantor or SwissCo or of any predecessor or successor Person, or any of them, because of the creation of the indebtedness authorized by the Indenture, or under or by reason of the obligations, covenants or agreements contained in the Guarantee, the Indenture, this Sixth Supplemental Indenture or in the Notes or implied therefrom; and that any and all such personal liability of every name and nature, either at common law or in equity or by constitution or statute, of, and any and all such rights and claims against, every such incorporator, organizer, shareholder, partner, member, officer, director, manager or agent as such, because of the creation of the indebtedness authorized by the Indenture, or under or by reason of the obligations, covenants or agreements contained in the Guarantee, the Indenture, this Sixth Supplemental Indenture or in the Notes or implied therefrom, are hereby expressly waived and released as a condition of, and as a consideration for, the acceptance of the Notes.
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11. Ratification of Indenture; Sixth Supplemental Indenture Part of Indenture . Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Sixth Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered shall be bound hereby.
12. New York Law to Govern . THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SIXTH SUPPLEMENTAL INDENTURE WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
13. Counterparts . The parties may sign any number of copies of this Sixth Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. The exchange of copies of this Sixth Supplemental Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Sixth Supplemental Indenture as to the parties hereto and may be used in lieu of the original Sixth Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.
14. Effect of Headings . The Section headings herein are for convenience only and shall not affect the construction hereof.
15. The Trustee . The Trustee shall not be responsible in any manner whatsoever for or in respect of (i) the validity or sufficiency of this Sixth Supplemental Indenture, (ii) the recitals contained herein, all of which recitals are made solely by the Company, the Initial Parent Guarantor, the Successor Parent Guarantor and SwissCo, (iii) the due execution hereof by the Company, the Initial Parent Guarantor, the Successor Parent Guarantor and SwissCo or (iv) the consequences of any amendment herein provided for, and the Trustee makes no representation with respect to any such matters.
16. Enforceability . Each of the Company, the Initial Parent Guarantor, the Successor Parent Guarantor and SwissCo hereby represents and warrants that this Sixth Supplemental Indenture is the legal, valid and binding obligation of each of them, enforceable against each of them in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors rights and to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law).
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IN WITNESS WHEREOF, the parties hereto have caused this Sixth Supplemental Indenture to be duly executed and attested, all as of the date first above written.
COMPANY: | ||||
Pentair Finance S.A. | ||||
By: |
/s/ Michael G. Meyer |
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Name: | Michael G. Meyer | |||
Title: | Director | |||
INITIAL PARENT GUARANTOR: | ||||
Pentair Ltd. | ||||
By: |
/s/ Michael G. Meyer |
|||
Name: | Michael G. Meyer | |||
Title: | Vice President, Treasurer | |||
By: |
/s/ Angela D. Lageson |
|||
Name: | Angela D. Lageson | |||
Title: | Senior Vice President, General | |||
Counsel and Secretary | ||||
SUCCESSOR PARENT GUARANTOR: | ||||
Pentair plc | ||||
By: |
/s/ Angela D. Lageson |
|||
Name: | Angela D. Lageson | |||
Title: | Director |
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GUARANTOR: | ||||
Pentair Investments Switzerland GmbH | ||||
By: |
/s/ Mark C. Borin |
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Name: | Mark C. Borin | |||
Title: | Managing Director | |||
By: |
/s/ Julien Lugon-Moulin |
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Name: | Julien Lugon-Moulin | |||
Title: | Managing Director |
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TRUSTEE: | ||
Wells Fargo Bank, National Association, as Trustee | ||
By: |
/s/ Stefan Victory |
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Name: Stefan Victory | ||
Title: Vice President |
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