Exhibit 1.1
Weatherford International Ltd.
$1,100,000,000
5.875%
Exchangeable Senior Notes due 2021
Underwriting Agreement
New York, New York
June 1,
2016
To the Representatives
named
in Schedule I
hereto of the several
Underwriters named in
Schedule II hereto
Ladies and
Gentlemen:
Weatherford International Ltd., a Bermuda exempted company (the “Company”), proposes to sell to the several
underwriters named in Schedule II hereto (the “Underwriters”), for whom you (the “Representatives”) are acting as representatives, the principal amount of its exchangeable senior notes identified in Schedule I hereto
(the “Underwritten Notes”). The Company also proposes to grant to the Underwriters an option to purchase up to an additional principal amount of notes set forth in Schedule I hereto to cover over-allotments (the “Option Notes”;
the Option Notes, together with the Underwritten Notes, hereinafter called the “Notes”). As used herein, the term “Underwritten Securities” collectively refers to the Underwritten Notes and Guarantees (defined below), the term
“Option Securities” collectively refers to the Option Notes and Guarantees, and the term “Securities” collectively refers to the Underwritten Securities and Option Securities. The Securities are to be issued under an Indenture,
dated October 1, 2003 (the “Base Indenture”), as amended and supplemented by a ninth supplemental indenture (the “Supplemental Indenture” and, together with the Base Indenture, the “Indenture”), to be dated as of
the Closing Date (as defined below), between the Issuer, the Parent Guarantor (defined below) and Deutsche Bank Trust Company Americas, as trustee (the “Trustee”), and will be fully and unconditionally guaranteed on a senior basis (the
“Guarantees”) by the Parent Guarantor and Weatherford International LLC, a Delaware limited liability company and indirect, wholly owned subsidiary of the Parent Guarantor (“Subsidiary Guarantor” and, together with the Parent
Guarantor, the “Guarantors”) as set forth in the Indenture.
The Securities are exchangeable into ordinary shares, par value
$0.001 USD per share (the “Ordinary Shares”), of Weatherford International public limited company, an Irish public limited company (the “Parent Guarantor”), at the applicable exchange rate set forth in the Final Prospectus (as
defined herein).
To the extent there are no additional Underwriters listed on Schedule I other than you, the term Representatives as
used herein shall mean you, as Underwriters, and the terms Representatives and Underwriters shall mean either the singular or plural as the context requires. Any reference herein to the Registration Statement, the Base Prospectus, any Preliminary
Prospectus or the Final Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 which were filed under the
Exchange Act on or before the Effective Date of the Registration Statement or the issue date of the Base Prospectus, any Preliminary Prospectus or the Final Prospectus, as the case may be; and any reference herein to the terms “amend,”
“amendment” or “supplement” with respect to the Registration Statement, the Base Prospectus, any Preliminary Prospectus or the Final Prospectus shall be deemed to refer to and include the filing of any document under the Exchange
Act after the Effective Date of the Registration Statement or the issue date of the Base Prospectus, any Preliminary Prospectus or the Final Prospectus, as the case may be, deemed to be incorporated therein by reference. Certain terms used herein
are defined in Section 20 hereof.
1.
Representations and Warranties
. The Company and the Guarantors jointly and severally
represent and warrant to, and agree with, each Underwriter as set forth below in this Section 1.
(a) The Company and
the Guarantors meet the requirements for use of Form S-3 under the Act and have prepared and filed with the Commission an automatic shelf registration statement, as defined in Rule 405 (the file number of which is set forth in Schedule I
hereto) on Form S-3, including a related Base Prospectus, for registration under the Act of the offering and sale of the Securities. Such Registration Statement, including any amendments thereto filed prior to the Execution Time, became
effective upon filing. The Company and the Guarantors may have filed with the Commission, as part of an amendment to the Registration Statement or pursuant to Rule 424(b), one or more Preliminary Prospectuses relating to the Securities, each of
which has previously been furnished to you. The Company and the Guarantors will file with the Commission a Final Prospectus relating to the Securities in accordance with Rule 424(b). As filed, such Final Prospectus shall contain all information
required by the Act and the rules thereunder, and, except to the extent the Representatives shall agree in writing to a modification, shall be in all substantive respects in the form furnished to you prior to the Execution Time or, to the extent not
completed at the Execution Time, shall contain only such specific additional information and other changes (beyond that contained in the Base Prospectus and any Preliminary Prospectus) as the Company has advised you, prior to the Execution Time,
will be included or made therein. The Registration Statement, at the Execution Time, meets the requirements set forth in Rule 415(a)(1)(x). The initial Effective Date of the Registration Statement was not earlier than the date three years
before the Execution Time.
(b) On each Effective Date, the Registration Statement did, and when the Final Prospectus is
first filed in accordance with Rule 424(b) and on the Closing Date and on any date on which Option Securities are purchased, if such date is not the Closing Date (a “settlement date”), the Final Prospectus (and any supplement thereto)
will, comply in all material respects with the applicable requirements of the Act, the Exchange Act and the Trust Indenture Act and the respective rules thereunder; on each Effective Date, at the Execution Time and on the Closing Date, the
Registration Statement did not and will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading; on the Effective Date
and on the Closing Date the Indenture did or will
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comply in all material respects with the applicable requirements of the Trust Indenture Act and the rules thereunder; and on the date of any filing pursuant to Rule 424(b) and on the Closing
Date and any settlement date, the Final Prospectus (together with any supplement thereto) will not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
provided
,
however
, that the Company and the Guarantors make no representations or warranties as to (i) that part of the Registration Statement which shall constitute
the Statement of Eligibility and Qualification (Form T-1) under the Trust Indenture Act of the Trustee or (ii) the information contained in or omitted from the Registration Statement or the Final Prospectus (or any supplement thereto) in
reliance upon and in conformity with information furnished in writing to the Company or the Guarantors by or on behalf of any Underwriter through the Representatives specifically for inclusion in the Registration Statement or the Final Prospectus
(or any supplement thereto), it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 8 hereof.
(c) (i) The Disclosure Package and (ii) each electronic road show, when taken together as a whole with the Disclosure
Package, does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding
sentence does not apply to statements in or omissions from the Disclosure Package based upon and in conformity with written information furnished to the Company or the Guarantors by any Underwriter through the Representatives specifically for use
therein, it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 8 hereof.
(d) (i) At the time of filing the Registration Statement, (ii) at the time of the most recent amendment thereto for
the purposes of complying with Section 10(a)(3) of the Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Sections 13 or 15(d) of the Exchange Act or form of prospectus), (iii) at the time
the Company, or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c)), made any offer relating to the Securities in reliance on the exemption in Rule 163, and (iv) at the Execution Time (with such date being
used as the determination date for purposes of this clause (iv)), the Parent Guarantor was or is (as the case may be) a “well-known seasoned issuer” as defined in Rule 405. The Company agrees to pay the fees required by the Commission
relating to the Securities within the time required by Rule 456(b)(1) without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r).
(e) (i) At the earliest time after the filing of the Registration Statement that the Company or another offering participant
made a
bona fide
offer (within the meaning of Rule 164(h)(2)) of the Securities and (ii) as of the Execution Time (with such date being used as the determination date for purposes of this clause (ii)), neither the Company nor either
Guarantor was or is an Ineligible Issuer (as defined in Rule 405), without taking account of any determination by the Commission pursuant to Rule 405 that it is not necessary that the Company or either of the Guarantors be considered an Ineligible
Issuer.
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(f) Each Issuer Free Writing Prospectus and the final term sheet prepared and
filed pursuant to Section 5(b) hereto does not include any information that conflicts with the information contained in the Registration Statement, including any document incorporated by reference therein and any prospectus supplement deemed to
be a part thereof that has not been superseded or modified. The foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information furnished to the Company or
either Guarantor by any Underwriter through the Representatives specifically for use therein, it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in
Section 8 hereof.
(g) The interactive data in the eXtensible Business Reporting Language (“XBRL”) included
as an exhibit to the Registration Statement and the documents incorporated by reference therein fairly presents the information called for in all material respects and has been prepared in accordance with the Commission’s rules and guidelines
applicable thereto.
(h) The Company and the Guarantors have not distributed and will not distribute, prior to the later of
the Closing Date and the completion of the Underwriters’ distribution of the Securities, any offering material in connection with the offering and sale of the Securities other than the Preliminary Prospectus, the Final Prospectus, any Issuer
Free Writing Prospectus included in Schedule III hereto, the final term sheet prepared and filed pursuant to Section 5(b) hereof, any Permitted Free Writing Prospectus or the Registration Statement.
(i) The documents incorporated or deemed to be incorporated by reference in the Registration Statement, the Final Prospectus
and the Disclosure Package (collectively, the “Incorporated Documents”) at the time they were or hereafter are filed with the Commission, complied and will comply in all material respects with the requirements of the Exchange Act, and,
when read together with the other information in such Registration Statement, Final Prospectus or Disclosure Package, as the case may be, at the time the Registration Statement became effective, at the time the Final Prospectus was issued, at the
Execution Time and at the Closing Date, did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading.
(j) The accountants who certified the financial statements and supporting schedules included in the Registration Statement, the
Disclosure Package and the Final Prospectus are an independent registered public accounting firm as required by the Act.
(k) The consolidated financial statements included in the Registration Statement, the Final Prospectus and the Disclosure
Package present fairly in all material respects the financial position of the Parent Guarantor and its consolidated subsidiaries at the dates indicated and the statement of operations, shareholders’ equity and cash flows
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of the Parent Guarantor and its consolidated subsidiaries for the periods specified all prepared in conformity with generally accepted accounting principles (“GAAP”) (subject, in the
case of interim statements, to normal year-end audit adjustments); the consolidated financial statements and the related financial statement schedules included in the Registration Statement comply as to form in all material respects with the
applicable accounting requirements of the Act and the Exchange Act and the related rules and regulations adopted by the Commission; and neither the Company nor either Guarantor has any material contingent obligation that is not disclosed in such
financial statements or in the Registration Statement, Final Prospectus or Disclosure Package. The supporting schedules, if any, included in the Registration Statement present fairly in accordance with GAAP the information required to be stated
therein. The capitalization table and the ratio of earnings to fixed charges included in the Final Prospectus and the Disclosure Package present fairly the information shown therein and have been compiled on a basis consistent with that of the
audited financial statements included in the Registration Statement.
(l) Since the respective dates as of which
information is given in the Registration Statement, the Final Prospectus and the Disclosure Package, except as otherwise stated therein, (A) there has been no material adverse change in the consolidated financial position, shareholders’
equity, prospects, results of operations or business of the Company, the Parent Guarantor and their respective subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business (a “Material Adverse
Effect”), (B) there have been no transactions entered into by the Company, either of the Guarantors or any of their respective subsidiaries, other than those in the ordinary course of business, which are material with respect to the
Company, the Parent Guarantor and their respective subsidiaries considered as one enterprise, and (C) there has been no dividend or distribution of any kind declared, paid or made by each of the Company (other than to the Parent Guarantor or
its wholly owned subsidiaries) or the Parent Guarantor on any class of its share capital.
(m) The Company has been duly
organized and is validly existing as an exempted company in good standing under the laws of Bermuda and has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Final Prospectus and
the Disclosure Package and to enter into and perform its obligations under this Agreement, the Indenture and the Notes; the Parent Guarantor has been duly organized and is validly existing as a public limited company in good standing (to the extent
applicable) under the laws of Ireland and has company power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus and the Disclosure Package and to enter into and perform its obligations
under this Agreement, the Indenture and the Parent Guarantee, including the issuance of the Ordinary Shares upon the exchange of the Notes; the Subsidiary Guarantor has been duly organized and is validly existing as a limited liability company in
good standing under the laws of the State of Delaware and has limited liability company power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus and the Disclosure Package and to enter
into and perform its obligations under this Agreement, the Indenture and the Subsidiary Guarantee; the Company is duly qualified as a foreign corporation to transact business
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and is in good standing (to the extent applicable) in each other jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of
business, except where the failure so to qualify or to be in good standing (to the extent applicable) would not result in a Material Adverse Effect; the Parent Guarantor is duly qualified as a foreign corporation to transact business and is in good
standing in each other jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, expect where the failure to so qualify or to be in good standing would not result in a
Material Adverse Effect; the Subsidiary Guarantor is duly qualified as a foreign corporation to transact business and is in good standing in each other jurisdiction in which such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, expect where the failure to so qualify or to be in good standing would not result in a Material Adverse Effect.
(n) All of the subsidiaries (as defined in Rule 405 of the Act) of the Company and the Parent Guarantor have been duly
incorporated or formed and are validly existing as corporations, limited liability companies, limited partnerships or other forms of entities, as the case may be, in good standing under the laws of their respective jurisdictions of incorporation or
formation (to the extent applicable), have the requisite power and authority to own their respective properties and conduct their respective businesses, are duly qualified to do business and are in good standing as foreign corporations, limited
liability companies, limited partnerships or other forms of entities in each jurisdiction in which their respective ownership or lease of property or the conduct of their respective businesses requires such qualification, except to the extent that
the failure to be so qualified or be in good standing would not have a Material Adverse Effect.
(o) The Parent
Guarantor’s authorized equity capitalization is as set forth in the Disclosure Package and the Final Prospectus, and all of the issued shares of the Parent Guarantor conform to the description thereof contained in the Disclosure Package and the
Final Prospectus; the issued Ordinary Shares have been duly and validly authorized and issued, are fully paid and non-assessable and conform to the description thereof contained in the Disclosure Package and the Final Prospectus; the Ordinary Shares
initially issuable upon exchange of the Notes have been duly authorized and, when issued upon exchange of the Notes, will be validly issued, fully paid and nonassessable; the Board of Directors of the Parent Guarantor has duly and validly adopted
resolutions reserving such Ordinary Shares for issuance upon exchange of the Notes; and the holders of outstanding shares of each of the Company and the Parent Guarantor are not entitled to preemptive or other rights to subscribe for the Securities
or Ordinary Shares issuable upon exchange thereof; and, except as set forth in the Disclosure Package and the Final Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any
obligations into or exchange any securities for, shares of capital stock of or ownership interest in the Company or the Parent Guarantor are outstanding; the Company is an indirect, wholly owned subsidiary of the Parent Guarantor.
(p) All the outstanding shares of capital stock of each subsidiary of each of the Company and the Parent Guarantor have been
duly and validly authorized and issued
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and are fully paid and non-assessable and, except as otherwise set forth in the Disclosure Package and the Prospectus and other than the equity interests in joint ventures that are held by third
parties, all outstanding shares of capital stock of each subsidiary of each of the Company and the Parent Guarantor are owned by the Company or the Parent Guarantor, as the case may be, free and clear of all liens, encumbrances, equities or claims
except for liens, encumbrances, equities or claims permitted or arising under or in connection with that certain Term Loan Agreement, dated May 4, 2016, by and among the Company, as borrower, the Parent Guarantor, as guarantor, the lenders
party thereto and J.P. Morgan Chase Bank, N.A., as administrative agent and lender; and the Ordinary Shares are duly listed, and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distribution on
the New York Stock Exchange.
(q) This Agreement has been duly authorized, executed and delivered by the Company and the
Guarantors.
(r) The Indenture has been duly authorized by the Company and the Guarantors, duly qualified under the 1939
Act and duly executed and delivered by the Company and the Guarantors. The Indenture constitutes a valid and binding agreement of the Company and the Guarantors, enforceable against the Company and the Guarantors in accordance with its terms, except
as the enforcement thereof may be limited by bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization, moratorium or similar laws affecting enforcement of creditors’ rights generally and
except as enforcement thereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law).
(s) The Securities have been duly authorized and, at the applicable Closing Date, will have been duly executed by the Company
and each of the Guarantors, as the case may be, for issuance and sale pursuant to this Agreement. The Securities, when authenticated, issued and delivered in the manner provided for in the Indenture and delivered against payment of the purchase
price therefor as provided in this Agreement, will have been duly executed, authenticated, issued and delivered and will constitute valid and binding obligations of the Company and the Guarantors, enforceable against the Company and each Guarantor,
as the case may be, in accordance with their terms, except as the enforcement thereof may be limited by bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization, moratorium or similar laws
affecting enforcement of creditors’ rights generally and except as enforcement thereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law), and will be in the form
contemplated by, and entitled to the benefits of, the Indenture.
(t) The Securities and the Indenture will conform in all
material respects to the respective statements relating thereto contained in the Final Prospectus and the Disclosure Package and will be in substantially the respective forms filed or incorporated by reference, as the case may be, as exhibits to the
Registration Statement.
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(u) Neither the Company, either of the Guarantors nor any of their respective
subsidiaries is (i) in violation of its charter, constitution, memorandum and articles of association or bye-laws or similar governing document, as applicable, (ii) in default, and no event has occurred which, with notice or lapse of time
or both, would constitute such a default, in the due performance or observance of any term, obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, lease or other
agreement or instrument to which it is a party or by which it is bound or which any of its properties or assets may be subject (collectively, “Agreements and Instruments”) or (iii) in violation of any law, ordinance, governmental
rule, regulation or court decree to which it or its property or assets may be subject, except with respect to (ii) or (iii), for any such violations or defaults that would not be reasonably likely, singly or in the aggregate, to have a Material
Adverse Effect; and the execution, delivery and performance of this Agreement, the Indenture and the Securities and the consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the
Securities and the use of the proceeds from the sale of the Securities as described in the Disclosure Package and the Final Prospectus under the caption “Use of Proceeds”) and compliance by the Company and the Guarantors with their
respective obligations hereunder and under the Indenture, and the fulfillment of the terms hereof or thereof, including the issuance of the Ordinary Shares upon the exchange of the Notes, have been duly authorized by all necessary corporate action
and do not and will not, whether with or without the giving of notice or passage of time or both, (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default or Repayment Event (as defined
below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or either of the Guarantors or any of their respective subsidiaries pursuant to, the Agreements and Instruments,
(ii) result in any violation of the provisions of the charter, articles or memorandum of association, organizational regulations or bye-laws (or similar governing document) of the Company or either Guarantor or any of their respective
subsidiaries or (iii) result in any violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or
the Guarantors or any of their respective subsidiaries or any of their assets, properties or operations; except for such conflict, breach, violation or default which would, for purposes of clauses (i) and (iii) above, either individually
or in the aggregate, not have a Material Adverse Effect or materially and adversely affect the consummation of the transactions contemplated in this Agreement or the performance by the Company and each Guarantor of their respective obligations
hereunder. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the
repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or either Guarantor or any of their respective subsidiaries.
(v) With respect to the ordinary share options (the “Ordinary Share Options”) granted pursuant to the ordinary
share-based compensation plans of the Parent Guarantor and its subsidiaries (the “Parent Ordinary Share Plans”), (i) each grant of an Ordinary Share Option was duly authorized no later than the date on which the grant of such
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Ordinary Share Option was by its terms to be effective by all necessary corporate action, including, as applicable, approval by the board of directors of the Parent Guarantor (or a duly
constituted and authorized committee thereof) and any required shareholder approval by the necessary number of votes or written consents, and the award agreement governing such grant (if any) was duly executed and delivered by each party thereto,
and (ii) each such grant was made in accordance with the terms of the Parent Ordinary Share Plans, the Act, the Exchange Act and all other applicable laws and regulatory rules or requirements. The Parent Guarantor has not knowingly granted, and
there is no and has been no policy or practice of the Parent Guarantor of granting, Ordinary Share Options prior to, or otherwise coordinating the grant of Ordinary Share Options with, the release or other public announcement of material information
regarding the Parent Guarantor or its subsidiaries or their results of operations or prospects.
(w) No labor dispute with
the employees of the Company, either Guarantor or any of their respective subsidiaries exists or, to the knowledge of the Company or either Guarantor, is imminent, which would reasonably be expected to have a Material Adverse Effect; and there are
no significant unfair labor practice complaints pending against the Company, either Guarantor or any of their respective subsidiaries or, to the knowledge of the Company or either Guarantor, threatened against any of them.
(x) Except as described in the Registration Statement, the Final Prospectus and the Disclosure Package, there is no action,
suit, proceeding, inquiry or investigation before or brought by any court or governmental agency or body, domestic or foreign, now pending, or, to the knowledge of the Company or either Guarantor, threatened, against or affecting the Company, either
Guarantor or any of their respective subsidiaries, which is required to be disclosed in the Registration Statement or the Prospectus, or which would reasonably be expected to result in a Material Adverse Effect, or which would reasonably be expected
to materially and adversely affect the consummation of the transactions contemplated in this Agreement or the performance by the Company and the Guarantors of their respective obligations hereunder, including the issuance of the Ordinary Shares upon
the exchange of the Notes; the aggregate of all pending legal or governmental proceedings to which the Company, the Guarantors or any of their respective subsidiaries is a party or of which any of their respective property or assets is the subject
which are not described in the Registration Statement, the Final Prospectus or the Disclosure Package, including ordinary routine litigation incidental to the business, would not reasonably be expected to result in a Material Adverse Effect.
(y) There are no contracts or documents which are required to be described in the Registration Statement, the Final Prospectus
or the documents incorporated by reference therein or to be filed as exhibits thereto which have not been so described and filed as required.
(z) The Company, the Guarantors and their respective subsidiaries own or possess adequate rights to use all material patents,
patent applications, trademarks, service marks, trade names, trademark registrations, service mark registrations, copyrights and licenses necessary for the conduct of their respective businesses and have no reason to believe that the conduct of
their respective businesses will conflict with, and
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have not received any notice of any claim of conflict with, any such rights of others, except where such conflict could not reasonably be expected to have a Material Adverse Effect.
(aa) None of the Company, the Guarantors or any of their affiliates has taken, nor will the Company, the Guarantors or any of
their affiliates take, directly or indirectly, any action which is designed to or which has constituted or which would be expected to cause or result in stabilization or manipulation of the price of any security of the Company or either Guarantor to
facilitate the sale or resale of the Securities.
(bb) No filing with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Company and the Guarantors of their respective obligations hereunder, in connection with the offering,
issuance or sale of the Securities hereunder or the consummation of the transactions contemplated by this Agreement, including the issuance of the Ordinary Shares upon the exchange of the Notes, or for the due execution, delivery or performance of
the Indenture by the Company and each Guarantor, except (A) as may be required under the Act or state or securities laws and the Companies Act 1981 of Bermuda and except for the qualification of the Indenture under the 1939 Act, (B) the
listing of the Ordinary Shares on the New York Stock Exchange or (C) as have already been made, obtained or rendered, as applicable, and except where the failure to so make, obtain or render, singly or in the aggregate, would not reasonably be
expected to result in a Material Adverse Effect.
(cc) The Company, the Guarantors and their respective subsidiaries
possess such permits, licenses, approvals, consents and other authorizations (collectively, “Governmental Licenses”) issued by the appropriate federal, state, local or foreign regulatory agencies or bodies necessary to conduct the business
now operated by them, except where the failure so to possess would not, singly or in the aggregate, reasonably be expected to result in a Material Adverse Effect; the Company, the Guarantors and their respective subsidiaries are in compliance with
the terms and conditions of all such Governmental Licenses, except where the failure so to comply would not, singly or in the aggregate, reasonably be expected to result in a Material Adverse Effect; all of the Governmental Licenses are valid and in
full force and effect, except when the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not, singly or in the aggregate, reasonably be expected to result in a Material Adverse
Effect; and neither the Company, the Guarantors nor any of their respective subsidiaries has received any notice of proceedings relating to the revocation or modification of any such Governmental Licenses which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would result in a Material Adverse Effect.
(dd) The Company, the
Guarantors and their respective subsidiaries have good and indefeasible title in fee simple to all real property owned by the Company, the Guarantors or their respective subsidiaries, as applicable, and good and valid title to all other properties
owned by them, in each case, free and clear of all mortgages, pledges, liens, security interests, claims, restrictions or encumbrances of any kind except such as
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(a) are described in the Disclosure Package and the Final Prospectus or (b) would not, singly or in the aggregate, reasonably be expected to result in a Material Adverse Effect; and all of
the leases and subleases material to the business of the Company, the Guarantors and their respective subsidiaries, and under which the Company, the Guarantors or any of their respective subsidiaries holds properties described in the Disclosure
Package and the Final Prospectus, are in full force and effect, and neither the Company, the Guarantors nor any of their respective subsidiaries has any notice of any claim of any sort that has been asserted by anyone adverse to the rights of the
Company, the Guarantors or any of their respective subsidiaries under any of the leases or subleases mentioned above, or affecting or questioning the rights of the Company, the Guarantors or any such subsidiary to the continued possession of the
leased or subleased premises under any such lease or sublease except such as (a) are described in the Disclosure Package and the Final Prospectus or (b) would not, singly or in the aggregate, reasonably be expected to result in a Material
Adverse Effect.
(ee) Reserved.
(ff) Neither the Company nor either Guarantor is, and upon the issuance and sale of the Securities as herein contemplated and
the application of the net proceeds therefrom as described in the Disclosure Package and the Final Prospectus, will be, an “investment company” or an entity “controlled” by an “investment company,” as such terms are
defined in the U.S. Investment Company Act of 1940, as amended (the “1940 Act”).
(gg) Except as described in the
Registration Statement, the Final Prospectus and the Disclosure Package and except as would not, singly or in the aggregate, result in a Material Adverse Effect, (A) neither the Company, the Guarantors nor any of their respective subsidiaries
is in violation of any federal, state, local or foreign statute, law, rule, regulation, ordinance, code, policy or rule of common law or any judicial or administrative interpretation thereof, including any judicial or administrative order, consent,
decree or judgment, relating to pollution or protection of human health, the environment (including, without limitation, ambient air, surface water, groundwater, land surface or subsurface strata) or wildlife, including, without limitation, laws and
regulations relating to the release or threatened release of chemicals, pollutants, contaminants, wastes, toxic substances, hazardous substances, petroleum or petroleum products, asbestos-containing materials or mold (collectively, “Hazardous
Materials”) or to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials (collectively, “Environmental Laws”), (B) the Company, the Guarantors and their
respective subsidiaries have all permits, authorizations and approvals required under any applicable Environmental Laws and are each in compliance with their requirements, (C) there are no pending or, to the knowledge of the Company or the
Guarantors, threatened administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens, notices of noncompliance or violation, investigation or proceedings relating to any Environmental Law against the Company, the
Guarantors or any of their respective subsidiaries and (D) there are no events or circumstances that would reasonably be expected to form the basis of an order for clean-up or remediation, or an action, suit or proceeding by any private party
or
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governmental body or agency, against or affecting the Company, the Guarantors or any of their respective subsidiaries relating to Hazardous Materials or any Environmental Laws.
(hh) All material tax returns required to be filed by the Company or the Guarantors have been timely filed or are in the
process of being filed, and all material taxes and other assessments of a similar nature (whether imposed directly or through withholding) including any interest, additions to tax or penalties applicable thereto due or claimed to be due from the
Company or the Guarantors have been timely paid, other than such tax returns, taxes or other assessments (i) being contested in good faith or (ii) for which adequate reserves have been provided.
(ii) Neither the Company, the Guarantors nor any of their respective subsidiaries has sustained, since the date of the latest
audited financial statements included in the Registration Statement, the Final Prospectus and the Disclosure Package, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Registration Statement, the Final Prospectus or the Disclosure Package; and, since such date, there has not
been any material change in the share capital or long-term debt of the Company, the Guarantors or any of their respective subsidiaries, or any material adverse change or any development involving a prospective material adverse change in the
condition, financial or otherwise, or in the earnings or business of the Company, the Guarantors or their respective subsidiaries, otherwise than as set forth or contemplated in the Registration Statement, the Prospectus or the Disclosure Package.
(jj) The Company, the Guarantors and each of their respective subsidiaries carry, or are covered by, insurance in such
amounts and covering such risks as they reasonably deem sufficient for the conduct of their respective businesses and the value of their respective properties, and neither the Company, the Guarantors nor any of their respective subsidiaries has
received notice of cancellation or non-renewal of such insurance.
(kk) Each of the Company, the Guarantors and their
respective subsidiaries (i) makes and keeps books and records, which accurately reflect transactions and dispositions of its assets, and (ii) maintains internal accounting controls which provide reasonable assurance that
(A) transactions are executed in accordance with management’s general and specific authorization, (B) transactions are recorded as necessary to permit preparation of its financial statements and to maintain accountability for its
assets, (C) access to its assets is permitted only in accordance with management’s general and specific authorization and (D) the recorded accountability for its assets is compared with existing assets at reasonable intervals.
(ll) No holders of securities of the Company or the Guarantors have rights to the registration of such securities under the
Registration Statement.
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(mm) Neither the Company, the Guarantors nor any of their respective subsidiaries
nor, to the knowledge of the Company or the Guarantors, any director, officer, agent, employee, affiliate or other person acting on behalf of the Company, the Guarantors or any of their respective subsidiaries is aware of or has taken any action,
directly or indirectly, that could result in a violation or a sanction for violation by such persons of the Foreign Corrupt Practices Act of 1977 or the U.K. Bribery Act 2010, each as may be amended, or similar law of any other relevant
jurisdiction, or the rules or regulations thereunder; and the Company, the Guarantors and their respective subsidiaries and, to the knowledge of the Company and the Guarantors, their respective affiliates, have conducted their business in compliance
with the FCPA and have instituted and maintain policies and procedures to ensure compliance therewith. No part of the proceeds of the offering will be used, directly or indirectly, in violation of the Foreign Corrupt Practices Act of 1977 or the
U.K. Bribery Act 2010, each as may be amended, or similar law of any other relevant jurisdiction, or the rules or regulations thereunder.
(nn) The operations of the Company, the Guarantors and their respective subsidiaries are and have been conducted at all times
in compliance with applicable financial recordkeeping and reporting requirements and the money laundering statutes of all applicable jurisdictions and the rules and regulations thereunder and any related or similar rules, regulations or guidelines,
issued, administered or enforced by any governmental agency (collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the
Company, the Guarantors or any of their respective subsidiaries with respect to the Money Laundering Laws is pending or, to the best knowledge of the Company or the Guarantors, threatened.
(oo) Neither the Company, the Guarantors nor any of their respective subsidiaries nor, to the knowledge of the Company or the
Guarantors, any director, officer, agent, employee or affiliate of the Company, the Guarantors or any of their respective subsidiaries (i) is, or is controlled or 50% or more owned in the aggregate by or is acting on behalf of, one or more
individuals or entities that are currently the subject of any sanctions administered or enforced by the United States (including any administered or enforced by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S.
Department of State or the Bureau of Industry and Security of the U.S. Department of Commerce), the United Nations Security Council, the European Union, a member state of the European Union (including sanctions administered or enforced by Her
Majesty’s Treasury of the United Kingdom) or other relevant sanctions authority (collectively, “Sanctions” and such persons, “Sanctioned Persons” and each such person, a “Sanctioned Person”), (ii) is located,
organized or resident in a country or territory that is, or whose government is, the subject of Sanctions that broadly prohibit dealings with that country or territory (collectively, “Sanctioned Countries” and each, a “Sanctioned
Country”) or (iii) will, directly or indirectly, use the proceeds of this offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other individual or entity in any manner that
would result in a violation of any Sanctions by, or could result in the imposition of Sanctions against, any individual or entity (including any individual or entity participating in the offering, whether as underwriter, advisor, investor or
otherwise).
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(pp) Neither the Company, the Guarantors nor any of their respective subsidiaries
has engaged in any dealings or transactions with or for the benefit of a Sanctioned Person, or with or in a Sanctioned Country, in the preceding three years, nor does the Company, the Guarantors or any of their respective subsidiaries have any plans
to engage in dealings or transactions with or for the benefit of a Sanctioned Person, or with or in a Sanctioned Country.
(qq) Neither the Company, the Guarantors nor any of their respective subsidiaries has taken, or will take, any action that
might cause this Agreement or the issuance or sale of the Securities to violate Regulation T (12 C.F.R. Part 220), Regulation U (12 C.F.R. Part 221) or Regulation X (12 C.F.R. Part 224) of the Board of Governors of the Federal Reserve System.
(rr) (i) The Company and each Guarantor has established and maintains disclosure controls and procedures (as such term is
defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act); (ii) such disclosure controls and procedures are designed to ensure that information required to be disclosed by the Company or the Guarantors, as applicable, in the reports it
files or submits under the Exchange Act is accumulated and communicated to its management, including its principal executive officer and its principal financial officer, as appropriate, to allow timely decisions regarding required disclosure; and
(iii) such disclosure controls and procedures are effective in all material respects to perform the functions for which they were established. Since the date of the most recent evaluation of such disclosure controls and procedures, there have
been no significant changes in internal controls or in other factors that could significantly affect internal controls, including any corrective actions with regard to significant deficiencies and material weaknesses.
(ss) Since the date of the latest audited financial statements included or incorporated by reference in the Final Prospectus,
there has not been (i) any significant deficiency in the design or operation of internal controls which could adversely affect the ability of the Parent Guarantor to record, process, summarize and report financial data nor any material
weaknesses in internal controls; or (ii) any fraud, whether or not material, that involves management or other employees who have a significant role in the internal controls of the Parent Guarantor. Since the date of the latest audited
financial statements included or incorporated by reference in the Final Prospectus, there have been no significant changes in internal controls or in other factors that could significantly affect internal controls, including any corrective actions
with regard to significant deficiencies and material weaknesses. The Parent Guarantor has designed and maintains internal control over financial reporting (as such term is defined in Rules 13a-15(f) and Rules 15d-15(f) under the Exchange Act,
referred to herein as “Reporting Controls”), and the Reporting Controls are (i) designed to, and sufficient to, provide reasonable assurance (A) that transactions are executed in accordance with management’s general or
specific authorizations; (B) that transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability; (C) that access to assets is permitted only in accordance
with management’s general or specific authorization; (D) that the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to
14
any differences; and (E) regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP and include, without
limitation, those processes specifically referred to in Rule 13a-15(f) and Rule 15d-15(f) and (ii) to the knowledge of the Company or the Parent Guarantor, effective to perform the functions for which they are maintained.
(tt) Under the current laws and regulations of Ireland and any political subdivision thereof or therein having the power to
tax, payments on the Notes shall be paid free and clear, and without any deduction or withholding for or on account of, any current or future taxes, levies, imposts, duties, charges or other deductions or withholdings levied in Ireland or any
political subdivision thereof or therein having the power to tax and without the necessity of obtaining any governmental authorization in Ireland or any political subdivision thereof or therein having the power to tax.
Any certificate signed by any officer of the Company or the Parent Guarantor and delivered to the Representatives or counsel for the
Underwriters in connection with the offering of the Securities shall be deemed a representation and warranty by the Company or the Parent Guarantor, as the case may be, as to matters covered thereby, to each Underwriter.
2.
Purchase and Sale
. (a) Subject to the terms and conditions and in reliance upon the representations and warranties herein set
forth, the Company and the Guarantors agree to sell to each Underwriter, and each Underwriter agrees, severally and not jointly, to purchase from the Company and the Guarantors, at the purchase price set forth in Schedule I hereto the principal
amount of the Securities set forth opposite such Underwriter’s name in Schedule II hereto.
(b) Subject to the terms and
conditions and in reliance upon the representations and warranties herein set forth, the Company and the Guarantors hereby grant an option to the several Underwriters to purchase, severally and not jointly, up to the principal amount of Option
Securities set forth in Schedule I hereto at the same purchase price set forth in Schedule I hereto (plus accrued interest, if any) for the Underwritten Securities. Said option may be exercised only to cover over-allotments in the sale of the
Underwritten Securities by the Underwriters. Said option may be exercised in whole or in part at any time on or before the 30th day after the date of the Prospectus upon written or electronic notice by the Representatives to the Company and the
Guarantors setting forth the aggregate principal amount of the Option Securities as to which the several Underwriters are exercising the option and the settlement date. The aggregate principal amount of Option Securities to be purchased by each
Underwriter shall be the same percentage of the total aggregate principal amount of the Option Securities to be purchased by the several Underwriters as such Underwriter is purchasing of the Underwritten Securities, subject to such adjustments as
you in your absolute discretion shall make to ensure that the Option Securities are not issued in minimum denominations of less than $1,000 and integral multiples of $1,000 in excess thereof.
3.
Delivery and Payment
. Delivery of and payment for the Underwritten Securities and the Option Securities (if the option provided for
in Section 2(b) hereof shall have been exercised on or before the third Business Day immediately preceding the Closing Date) shall be made on the date and at the time specified in Schedule I hereto or at such time on such
15
later date not more than three Business Days after the foregoing date as the Representatives shall designate, which date and time may be postponed by agreement between the Representatives and the
Company or as provided in Section 9 hereof (such date and time of delivery and payment for the Securities being herein called the “Closing Date”). Delivery of the Securities shall be made to the Representatives for the respective
accounts of the several Underwriters against payment by the several Underwriters through the Representatives of the purchase price thereof to or upon the order of the Company by wire transfer payable in same-day funds to an account specified by the
Company. Delivery of the Underwritten Securities and the Option Securities shall be made through the facilities of The Depository Trust Company unless the Representatives shall otherwise instruct.
If the option provided for in Section 2(b) hereof is exercised after the third Business Day immediately preceding the Closing Date, the
Company will deliver the Option Securities (at the expense of the Company) to the Representatives, at Three World Financial Center, 200 Vesey Street, New York, New York 10281, attention of Equity Syndicate Desk, on the date specified by the
Representatives (which shall be within three Business Days after exercise of said option) for the respective accounts of the several Underwriters, against payment by the several Underwriters through the Representatives of the purchase price thereof
to or upon the order of the Company by wire transfer payable in same-day funds to an account specified by the Company. If settlement for the Option Securities occurs after the Closing Date, the Company will deliver to the Representatives on the
settlement date for the Option Securities, and the obligation of the Underwriters to purchase the Option Securities shall be conditioned upon receipt of, supplemental opinions, certificates and letters confirming as of such date the opinions,
certificates and letters delivered on the Closing Date pursuant to Section 6 hereof.
4.
Offering by Underwriters
. It is
understood that the several Underwriters propose to offer the Securities for sale to the public as set forth in the Final Prospectus.
5.
Agreements
. The Company and the Guarantors jointly and severally agree with the several Underwriters that:
(a)
Prior to the termination of the offering of the Securities, the Company and the Guarantors will not file any amendment of the Registration Statement or supplement (including the Final Prospectus or any Preliminary Prospectus) to the Base Prospectus
unless the Company has furnished you a copy for your review prior to filing and will not file any such proposed amendment or supplement to which you reasonably object. The Company and the Guarantors will cause the Final Prospectus, properly
completed, and any supplement thereto to be filed in a form approved by the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the
Representatives of such timely filing. The Company and the Guarantors will promptly advise the Representatives (i) when the Final Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission pursuant to
Rule 424(b), (ii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (iii) of any request by the Commission or its staff for any
amendment of the Registration Statement, or for any supplement to the Final Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop
16
order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (v) of the
receipt by the Company or the Guarantors of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company and the
Guarantors will use their reasonable best efforts to prevent the issuance of any such stop order or the occurrence of any such suspension or objection to the use of the Registration Statement and, upon such issuance, occurrence or notice of
objection, to obtain as soon as reasonably possible the withdrawal of such stop order or relief from such occurrence or objection, including, if necessary, by filing an amendment to the Registration Statement or a new registration statement and
using their reasonable best efforts to have such amendment or new registration statement declared effective as soon as practicable.
(b) To prepare a final term sheet, containing solely the final terms of the Securities and the offering thereof, in the form
approved by you and attached as Schedule IV hereto and to file such term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule 424(b), any event occurs as a result of which
the Disclosure Package would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein in the light of the circumstances under which they were made or the circumstances then
prevailing not misleading, the Company and the Guarantors will (i) notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented, (ii) amend or supplement the Disclosure Package
to correct such statement or omission and (iii) supply any amendment or supplement to you in such quantities as you may reasonably request.
(d) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in
circumstances where such requirement may be satisfied pursuant to Rule 172), any event occurs as a result of which the Final Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein in the light of the circumstances under which they were made at such time not misleading, or if it shall be necessary to amend the Registration Statement, file a new registration statement or
supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, including in connection with use or delivery of the Final Prospectus, the Company and the Guarantors promptly will (i) notify the
Representatives of any such event, (ii) prepare and file with the Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment or supplement or new registration statement which will correct such
statement or omission or effect such compliance, (iii) use their reasonable best efforts to have any amendment to the Registration Statement or new registration statement declared effective as soon as practicable in order to avoid any
disruption in use of the Final Prospectus and (iv) supply any supplemented Final Prospectus to you in such quantities as you may reasonably request.
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(e) As soon as practicable, the Parent Guarantor will make generally available to
its security holders and to the Representatives an earnings statement or statements of the Parent Guarantor and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(f) The Company and the Guarantors will use the net proceeds received by them from the sale of the Securities in the manner
specified in the Final Prospectus under “Use of Proceeds.”
(g) The Company and the Guarantors will furnish to
the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a copy of the Registration Statement (without exhibits thereto) and, so long
as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of each Preliminary Prospectus, the Final Prospectus and
each Issuer Free Writing Prospectus and any supplement thereto as the Representatives may reasonably request.
(h) The
Company and the Guarantors will arrange, if necessary, for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives may reasonably request and will maintain such qualifications in effect so long as
required for the distribution of the Securities; provided that in no event shall the Company and the Guarantors be obligated to (i) qualify to do business in any jurisdiction where they are not now so qualified, (ii) to take any action
that would subject them to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where they are not now so subject or (iii) take any action that could subject them to taxation
in any such jurisdiction if they are not otherwise so subject.
(i) Each of the Company and the Guarantors agrees that,
unless it has or shall have obtained the prior written consent of the Representatives, and each Underwriter, severally and not jointly, agrees with the Company and the Guarantors that, unless it has or shall have obtained, as the case may be, the
prior written consent of the Company and the Guarantors, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing
prospectus” (as defined in Rule 405) required to be filed by the Company or the Guarantors with the Commission or retained by the Company under Rule 433, other than the free writing prospectus containing the information contained in the final
term sheet prepared and filed pursuant to Section 5(b) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto and any
electronic road show. Any such free writing prospectus consented to by the Representatives or the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat,
as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing
Prospectus, including in respect of timely filing with the Commission, legending and record keeping.
18
(j) The Company and the Guarantors will not, without the prior written consent of
RBC Capital Markets, LLC, offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective
economic disposition due to cash settlement or otherwise) by the Company, the Guarantors or any affiliate of the Company or the Guarantors or any person in privity with the Company or the Guarantors or any affiliate of the Company or the
Guarantors), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent
position within the meaning of Section 16 of the Exchange Act, any Ordinary Shares or any securities convertible into, or exercisable, or exchangeable for, Ordinary Shares; or publicly announce an intention to effect any such transaction, until
the Business Day set forth on Schedule I hereto,
provided
,
however
, that (i) the Parent Guarantor may issue and sell Ordinary Shares pursuant to any employee stock option plan, stock ownership plan or dividend reinvestment
plan of the Parent Guarantor in effect at the Execution Time; (ii) the Parent Guarantor may issue Ordinary Shares issuable upon the conversion of securities or the exercise of warrants outstanding at the Execution Time; and (iii) in
connection with any exchange of the Notes.
(k) The Company and the Guarantors will not take, directly or indirectly, any
action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company, the Guarantors or their
respective subsidiaries to facilitate the sale or resale of the Securities.
(l) The Parent Guarantor will reserve and keep
available at all times, free of preemptive rights, the full number of Ordinary Shares issuable upon exchange of the Notes. The Parent Guarantor will use all reasonable best efforts to maintain the listing of the Ordinary Shares issuable upon
exchange of the Notes on the New York Stock Exchange for so long as any Notes are outstanding.
(m) Between the date hereof
and the Closing Date, the Company and the Parent Guarantor will not do or authorize any act or thing that would result in an adjustment of the exchange rate set forth in the Final Prospectus.
(n) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation, printing or
reproduction and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus, and each amendment or
supplement to any of them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, each Preliminary Prospectus, the Final
Prospectus and each Issuer Free Writing Prospectus, and all amendments or supplements to any of them, as may, in each case, be reasonably
19
requested for use in connection with the offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Securities,
including any stamp or transfer taxes in connection with the original issuance and sale of the Securities to the Underwriters; (iv) the printing (or reproduction) and delivery of this Agreement, any blue sky memorandum and all other agreements
or documents printed (or reproduced) and delivered in connection with the offering of the Securities; (v) the registration of the Securities under the Exchange Act and the listing of the Ordinary Shares on the New York Stock Exchange;
(vi) any registration or qualification of the Securities for offer and sale under the securities or blue sky laws of the several states (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such
registration and qualification); (vii) any filings required to be made with the Financial Industry Regulatory Authority, Inc. (“FINRA”) (including filing fees and the reasonable fees and expenses of counsel for the Underwriters
relating to such filings); (viii) the transportation and other expenses incurred by or on behalf of representatives of the Company or the Guarantors in connection with presentations to prospective purchasers of the Securities; (ix) the
fees and expenses of the Parent Guarantor’s accountants and the fees and expenses of counsel (including local and special counsel) for the Company and the Guarantors; (x) the fees and expenses of the Trustee, including the fees and
disbursements of counsel for the Trustee in connection with the Indenture and the Securities; (xi) any fees payable in connection with the rating of the Securities, and (xii) all other costs and expenses incident to the performance by the
Company and the Guarantors of their obligations hereunder; provided that the Underwriters shall pay their own costs and expenses, including the costs and expenses of counsel, any transfer taxes on the Securities that they may sell and the expenses
of advertising any offering of the Securities made by the Underwriters.
(o) The Company and the Guarantors will cooperate
with the Representatives and use commercially reasonable efforts to permit the Securities to be eligible for clearance and settlement through the facilities of DTC.
6.
Conditions to the Obligations of the Underwriters
. The obligations of the Underwriters to purchase the Underwritten Securities and
the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to
Section 3 hereof, to the accuracy of the statements of the Company and the Guarantors made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Guarantors of their respective obligations hereunder and
to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the
manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 5(b) hereto and any other material required to be filed by the Company or the Guarantors pursuant to Rule 433(d) under the Act shall
have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued
and no proceedings for that purpose shall have been instituted or threatened.
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(b) The Company and the Guarantors shall have requested and caused
Latham & Watkins LLP, counsel for the Company and the Guarantors, to have furnished to the Representatives their opinion and negative assurance letters, each dated the Closing Date, and, if applicable, any settlement date pursuant to
Section 3 hereof, and addressed to the Representatives, to the effect set forth in Annex A-1 and Annex A-2, respectively.
(c) The Company and the Guarantors shall have requested and caused the Executive Vice President, General Counsel &
Corporate Secretary of the Company and the Guarantors, to have furnished to the Representatives her opinion, dated the Closing Date, and, if applicable, any settlement date pursuant to Section 3 hereof, and addressed to the Representatives, to
the effect set forth in Annex B.
(d) The Company and the Guarantors shall have requested and caused Conyers
Dill & Pearman Limited, special Bermuda counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date, and, if applicable, any settlement date pursuant to Section 3 hereof, and addressed to the
Representatives, to the effect set forth in Annex C.
(e) The Company and the Guarantors shall have requested and caused
Matheson, special Ireland counsel for the Parent Guarantor, to have furnished to the Representatives their opinion, dated the Closing Date, and, if applicable, any settlement date pursuant to Section 3 hereof, and addressed to the
Representatives, to the effect set forth in Annex D.
(f) The Company and the Guarantors shall have requested and caused
PwC Switzerland, special advisor for the Parent Guarantor to have furnished to the Representatives their opinion, dated the Closing Date, and, if applicable, any settlement date pursuant to Section 3 hereof, and addressed to the
Representatives, to the effect set forth in Annex E.
(g) The Representatives shall have received from Vinson &
Elkins L.L.P., counsel for the Underwriters, such opinion or opinions, dated the Closing Date, and, if applicable, any settlement date pursuant to Section 3 hereof, and addressed to the Representatives, with respect to the issuance and sale of
the Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the
Guarantors shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(h) The Representatives shall have received from Appleby (Bermuda) Limited, special Bermuda counsel for the Underwriters, such
opinion or opinions, dated the Closing Date, and, if applicable, any settlement date pursuant to Section 3 hereof, and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration
Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Guarantors shall have furnished to such counsel such
documents as they request for the purpose of enabling them to pass upon such matters.
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(i) The Representatives shall have received from A&L Goodbody, special
Ireland counsel for the Underwriters, such opinion or opinions, dated the Closing Date, and, if applicable, any settlement date pursuant to Section 3 hereof, and addressed to the Representatives, with respect to the issuance and sale of the
Securities, the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company and the Guarantors
shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(j) The Company and the Guarantors shall have furnished to the Representatives a certificate of the Company and the Guarantors,
signed by the Chairman of the Board or the President and the principal financial or accounting officer of the Company and the Guarantors, dated the Closing Date, and, if applicable, any settlement date pursuant to Section 3 hereof, to the
effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, as well as each electronic road show used in connection with the
offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company and the
Guarantors in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and that the Company and each Guarantor has materially complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the
effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Company or the Guarantors, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus
(exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company, the Guarantors and their respective subsidiaries, taken as a
whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(k) Immediately following the Execution Time, the Representatives shall receive from KPMG LLP a letter, dated as of the date of
this Agreement, in form and substance satisfactory to the Representatives, together with signed or reproduced copies of such letter for each of the other Underwriters containing statements and information of the type ordinarily included in
accountants’ “comfort letters” to underwriters with respect
22
to the financial statements and certain financial information relating to the Parent Guarantor and its subsidiaries contained in the Registration Statement and the Preliminary Prospectus.
(l) On the Closing Date, the Representatives shall have received from KPMG LLP a letter, dated as of Closing Date, and, if
applicable, any settlement date pursuant to Section 3 hereof, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (j) of this Section, except that the cut-off date for certain procedures
performed by them shall be a date not more than two business days prior to the Closing Date or settlement date, and providing information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect
to the financial statements and certain financial information relating to the Parent Guarantor and its subsidiaries contained in the Final Prospectus.
(m) The Company shall have received and provided to the Representatives an assurance from the Minister of Finance under the
Exempted Undertakings Tax Protection Act, 1966 that, in the event of there being enacted in Bermuda any legislation imposing tax computed on profits or income or computed on any capital asset, gain or appreciation, or any tax in the nature of estate
duty or inheritance tax, then the imposition of any such tax shall not until 31 March 2035 be applicable to the Company or any of its operations or its shares, debentures or other obligations, except insofar as such tax applies to persons
ordinarily resident in Bermuda or to tax payable in accordance with the provisions of the Land Tax Act 1967 or otherwise payable in relation to any land leased to the Company.
(n) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement
(exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (j) of this
Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company, the Guarantors and their respective subsidiaries
taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of
which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as
contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(o) The Ordinary Shares issuable upon exchange of the Securities shall have been approved for listing on the New York Stock
Exchange, subject to official notice of issuance, and satisfactory evidence of such actions shall have been provided to the Representatives.
23
(p) At the Execution Time, the Company and the Guarantors shall have furnished to
the Representatives a letter substantially in the form of Exhibit A hereto from each person listed in Exhibit B hereto and addressed to the Representatives.
(q) For the purpose of effecting delivery of the Securities in book-entry form, the Company agrees to issue, in the name of
Cede & Co., such Securities being issued to the Underwriters and to instruct Cede & Co. to deliver the book-entry interest in such Securities to broker accounts as directed by the Representatives on behalf of the Underwriters.
(r) Prior to the Closing Date, the Company and the Guarantors shall have furnished to the Representatives such further
information, certificates and documents as the Representatives may reasonably request.
If any of the conditions specified in this
Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the
Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to
the Company and the Guarantors in writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by
this Section 6 shall be delivered at the office of Latham & Watkins LLP, special counsel to the Company and the Guarantors, at 811 Main Street, Suite 3700, Houston, Texas 77002, on the Closing Date.
7.
Reimbursement of Underwriters’ Expenses
. If the sale of the Securities provided for herein is not consummated because any
condition to the obligations of the Underwriters set forth in Section 6 hereof is not satisfied, because of any termination pursuant to Section 10 hereof (other than Sections 10(i)(B), (ii), (iii) or (iv)) or because of any refusal,
inability or failure on the part of the Company or the Guarantors to perform any agreement herein or comply with any provision hereof other than by reason of a default by any of the Underwriters, the Company and Guarantors will reimburse the
Underwriters severally through RBC Capital Markets LLC on demand for all reasonable documented out-of-pocket expenses (including reasonable fees and disbursements of counsel) that shall have been incurred by them in connection with the proposed
purchase and sale of the Securities.
8.
Indemnification and Contribution
. (a) Each of the Company and the
Guarantors agrees to indemnify and hold harmless each Underwriter, its affiliates, directors, officers and employees, and agents who have or who are alleged to have participated in the distribution of the Securities as Underwriters (the
“Selling Agents”) and each person who controls any Underwriter within the meaning of either the Act or the Exchange Act against any and all losses, claims, damages or liabilities, joint or several, to which they or any of them may become
subject under the Act, the Exchange Act or other Federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of a material
24
fact contained in the Registration Statement as originally filed or in any amendment thereof, or in the Base Prospectus, any Preliminary Prospectus, the Final Prospectus, any Issuer Free Writing
Prospectus, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not
misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action;
provided
,
however
, that each of the Company and the Guarantors will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the Company and the Guarantors by or on behalf of any Underwriter through the Representatives specifically for inclusion
therein. This indemnity agreement will be in addition to any liability which the Company or the Guarantors may otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify and hold harmless the Company and the Guarantors, each of
their respective directors or members, each of their respective officers who signs the Registration Statement, and each person who controls the Company or the Guarantors within the meaning of either the Act or the Exchange Act, to the same extent as
the foregoing indemnity from the Company and the Guarantors to each Underwriter, but only with reference to written information relating to such Underwriter furnished to the Company and the Guarantors by or on behalf of such Underwriter through the
Representatives specifically for inclusion in the documents referred to in the foregoing indemnity. This indemnity agreement will be in addition to any liability which any Underwriter may otherwise have. Each of the Company and the Guarantors
acknowledges that the statements set forth (i) in the last paragraph of the cover page regarding delivery of the Securities and, under the heading “Underwriting” or “Plan of Distribution”, (ii) the sentences related to
concessions and reallowances and (iii) the paragraph related to stabilization, syndicate covering transactions and penalty bids in any Preliminary Prospectus and the Final Prospectus constitute the only information furnished in writing by or on
behalf of the several Underwriters for inclusion in any Preliminary Prospectus, the Final Prospectus or any Issuer Free Writing Prospectus.
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 8, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party
(i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent it did not otherwise learn of such action and such failure results in the forfeiture by the indemnifying party of substantial rights and
defenses and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall
be entitled to appoint counsel of the indemnifying party’s choice at the indemnifying party’s expense to represent the indemnified party in any action for which indemnification is sought (in which case the
25
indemnifying party shall not thereafter be responsible for the fees and expenses of any separate counsel retained by the indemnified party or parties except as set forth below);
provided
,
however
, that such counsel shall be reasonably satisfactory to the indemnified party. Notwithstanding the indemnifying party’s election to appoint counsel to represent the indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel), and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by the indemnifying party to represent the
indemnified party would present such counsel with a conflict of interest, (ii) the actual or potential defendants in, or targets of, any such action include both the indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party, (iii) the indemnifying party shall not have
employed counsel reasonably satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such action or (iv) the indemnifying party shall authorize the indemnified party to
employ separate counsel at the expense of the indemnifying party; provided, however, that an indemnifying party shall not be liable for the fees and expenses of more than one such separate counsel (in addition to local counsel) in connection with
any proceeding or related proceeding in the same jurisdiction. An indemnifying party shall not be liable for any settlement of any proceeding effected without its consent (which consent shall not be unreasonably withheld). Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by Section 8(a) or (b) hereof, the indemnifying party
agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement at least 30 days before such settlement is entered into and (iii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such
request or disputed in good faith the indemnified party’s entitlement to such reimbursement prior to the date of such settlement. An indemnifying party will not, without the prior written consent (which consent shall not be unreasonably
withheld) of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent: (i) includes an unconditional release of each indemnified party from all liability arising
out of such claim, action, suit or proceeding and (ii) does not include an admission of fault by or on behalf of any indemnified party.
(d) In the event that the indemnity provided in paragraph (a), (b) or (c) of this Section 8 is unavailable
to or insufficient to hold harmless an indemnified party for any reason, the Company, the Guarantors and the Underwriters severally agree to contribute to the aggregate losses, claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or defending the same) (collectively “Losses”) to which the Company, the Guarantors and one or more of the Underwriters
26
may be subject in such proportion as is appropriate to reflect the relative benefits received by the Company and the Guarantors, on the one hand, and by the Underwriters, on the other, from the
offering of the Securities. If the allocation provided by the immediately preceding sentence is unavailable for any reason, the Company, the Guarantors and the Underwriters severally shall contribute in such proportion as is appropriate to reflect
not only such relative benefits but also the relative fault of the Company and the Guarantors, on the one hand, and of the Underwriters, on the other, in connection with the statements or omissions which resulted in such Losses as well as any other
relevant equitable considerations. Benefits received by the Company and the Guarantors shall be deemed to be equal to the total net proceeds from the offering (before deducting expenses) received by them, and benefits received by the Underwriters
shall be deemed to be equal to the total underwriting discounts and commissions, in each case as set forth on the cover page of the Final Prospectus. Relative fault shall be determined by reference to, among other things, whether any untrue or any
alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information provided by the Company or the Guarantors, on the one hand, or the Underwriters, on the other, the intent of the parties
and their relative knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company, the Guarantors and the Underwriters agree that it would not be just and equitable if contribution were
determined by pro rata allocation or any other method of allocation which does not take account of the equitable considerations referred to above. Notwithstanding the provisions of this paragraph (d), in no event shall an Underwriter be required to
contribute any amount in excess of the amount by which the total underwriting discounts and commissions received by such Underwriter with respect to the offering of the Securities exceeds the amount of any damages that such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. Notwithstanding the provisions of this paragraph (d), no person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 8, each person who controls an Underwriter within the meaning of either the
Act or the Exchange Act and each director, officer, employee, affiliate and agent of an Underwriter shall have the same rights to contribution as such Underwriter, and each person who controls the Company or the Guarantors within the meaning of
either the Act or the Exchange Act, each officer of the Company or the Guarantors who shall have signed the Registration Statement and each director or member of the Company or the Guarantors shall have the same rights to contribution as the Company
and the Guarantors, subject in each case to the applicable terms and conditions of this paragraph (d).
9.
Default by an
Underwriter
. If any one or more Underwriters shall fail to purchase and pay for any of the Securities agreed to be purchased by such Underwriter or Underwriters hereunder and such failure to purchase shall constitute a default in the performance
of its or their obligations under this Agreement, the remaining Underwriters shall be obligated severally to take up and pay for (in the respective proportions which the principal amount of Securities set forth opposite their names in
Schedule II hereto bears to the aggregate principal amount of Securities set forth opposite the names of all the remaining Underwriters) the Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase;
27
provided
,
however
, that in the event that the aggregate principal amount of Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase shall exceed
10% of the aggregate principal amount of Securities set forth in Schedule II hereto, the remaining Underwriters shall have the right to purchase all, but shall not be under any obligation to purchase any, of the Securities, and if such
nondefaulting Underwriters do not purchase all the Securities, this Agreement will terminate without liability to any nondefaulting Underwriter or the Company. In the event of a default by any Underwriter as set forth in this Section 9, the
Closing Date shall be postponed for such period, not exceeding five Business Days, as the Representatives shall determine in order that the required changes in the Registration Statement and the Final Prospectus or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall relieve any defaulting Underwriter of its liability, if any, to the Company and the Guarantors and any nondefaulting Underwriter for damages occasioned by its default hereunder.
10.
Termination
. This Agreement shall be subject to termination in the absolute discretion of the Representatives, by notice given
to the Company prior to delivery of and payment for the Securities, if at any time prior to such delivery and payment (i) (A) trading in the Parent Guarantor’s Ordinary Shares or any securities of the Parent Guarantor shall have been
suspended or limited by the Commission or the New York Stock Exchange or (B) trading in securities generally on the New York Stock Exchange or in The NASDAQ Stock Market shall have been suspended or limited or minimum prices shall have been
established on either of such exchanges, (ii) a banking moratorium shall have been declared either by Federal, Bermuda, Ireland or New York State authorities, (iii) there shall have occurred a material disruption in commercial banking or
securities settlement or clearance services or (iv) there shall have occurred any outbreak or escalation of hostilities, declaration by the United States of a national emergency or war, or other calamity or crisis the effect of which on
financial markets is such as to make it, in the sole judgment of the Representatives, impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by any Preliminary Prospectus or the Final Prospectus
(exclusive of any amendment or supplement thereto).
11.
Representations and Indemnities to Survive
. The respective agreements,
representations, warranties, indemnities and other statements of the Company, the Guarantors or their respective officers and of the Underwriters set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company, the Guarantors or any of the officers, directors, employees, affiliates, Selling Agents or controlling persons referred to in Section 8 hereof, and will survive delivery of
and payment for the Securities. The provisions of Sections 7 and 8 hereof shall survive the termination or cancellation of this Agreement.
12.
Notices
. All communications hereunder will be in writing and effective only on receipt, and, if sent to the Representatives, will
be mailed, delivered or telefaxed to RBC Capital Markets, Three World Financial Center, 200 Vesey Street, New York, New York 10281, attention of Equity Syndicate Desk; or, if sent to the Company or the Guarantors, will be mailed or delivered to
Bahnhofstrasse 1, Baar, 6340, Switzerland, and confirmed to it at c/o Weatherford International, LLC, 2000 St. James Place, Houston, Texas 77056, U.S.A., attention of General Counsel.
28
13.
Successors
. This Agreement will inure to the benefit of and be binding upon the
parties hereto and their respective successors and the officers, directors, employees, agents and controlling persons referred to in Section 8 hereof, and no other person will have any right or obligation hereunder.
14.
No fiduciary duty
. Each of the Company and the Guarantors hereby acknowledges that (a) the purchase and sale of the Securities
pursuant to this Agreement is an arm’s-length commercial transaction between the Company and the Guarantors, on the one hand, and the Underwriters and any affiliate through which it may be acting, on the other, (b) each Underwriter is
acting as principal and not as an agent or fiduciary of either the Company or the Guarantors and (c) the Company’s engagement of the Underwriters in connection with the offering and the process leading up to the offering is as independent
contractors and not in any other capacity. Furthermore, each of the Company and the Guarantors agrees that it is solely responsible for making its own judgments in connection with the offering (irrespective of whether any of the Underwriters has
advised or is currently advising the Company or the Guarantors on related or other matters). Each of the Company and the Guarantors agrees that it will not claim that the Underwriters have rendered advisory services of any nature or respect, or owe
an agency, fiduciary or similar duty to either the Company or the Guarantors, in connection with such transaction or the process leading thereto.
15.
Integration
. This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Company, the
Guarantors and the Underwriters, or any of them, with respect to the subject matter hereof.
16.
Applicable Law
. This Agreement
will be governed by and construed in accordance with the laws of the State of New York applicable to contracts made and to be performed within the State of New York.
17.
Submission to Jurisdiction and Waiver
. By the execution and delivery of this Agreement, the Company and the Guarantors submit to
the non-exclusive jurisdiction of any federal or New York State court located in the City of New York in any suit or proceeding arising out of or relating to the Securities or this Agreement. Each of the parties hereto hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement in any New
York State or federal court in the City of New York, or any appellate court with respect to any of the foregoing. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to
the maintenance of such action or proceeding in any such court. To the extent that the Company or Parent Guarantor has or hereafter may acquire any immunity from jurisdiction of any court (including, without limitation, any court in the United
States, the State of New York, Ireland, Bermuda, Switzerland or any political subdivision thereof) or from any legal process (whether through service of notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise)
with respect to itself or its property or assets, this Agreement, or any other actions to enforce judgments in respect of any thereof, the Company and the Parent Guarantor hereby irrevocably waive such immunity, and any defense based on such
immunity, in respect of their respective obligations under the above-referenced documents and the transactions contemplated thereby, to the fullest extent permitted by law.
29
In addition to the foregoing, each of the Company and the Guarantors agrees to irrevocably
appoint CT Corporation Systems as its authorized agent on which any and all legal process may be served in any such action, suit or proceeding brought in the courts specified in the preceding paragraph. Each of the Company and the Guarantors agrees
that service of process in respect of it upon such agent shall be deemed to be effective service of process upon it in any such action, suit or proceeding. Each of the Company and the Guarantors agrees that the failure of such agent to give notice
to it of any such service shall not impair or affect the validity of such service or any judgment rendered in any such action, suit or proceeding based thereon. If for any reason such agent shall cease to be available to act as such, each of the
Company and the Guarantors agrees to irrevocably appoint another such agent in New York City as its authorized agent for service of process, on the terms and for the purposes of this Section 17. Nothing herein shall in any way be deemed to
limit the ability of the Underwriters, the Trustee or any other person to serve any such legal process in any other manner permitted by applicable law or to obtain jurisdiction over the Company or the Guarantors or bring actions, suits or
proceedings against them in such other jurisdiction, and in such matter, as may be permitted by applicable law.
18.
Waiver of Jury
Trial
. Each of the Company and the Guarantors hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
19.
Counterparts
. This Agreement may be signed in one or more counterparts, each of which shall
constitute an original and all of which together shall constitute one and the same agreement.
20.
Headings
. The section headings
used herein are for convenience only and shall not affect the construction hereof.
21.
Definitions
. The terms that follow, when
used in this Agreement, shall have the meanings indicated.
“Act” shall mean the Securities Act of 1933, as
amended, and the rules and regulations of the Commission promulgated thereunder.
“Base Prospectus” shall mean
the base prospectus referred to in paragraph 1(a) above contained in the Registration Statement at the Execution Time.
“Business Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or a day on which banking
institutions or trust companies are authorized or obligated by law to close in New York City.
“Commission” shall
mean the Securities and Exchange Commission.
“Disclosure Package” shall mean (i) the Base Prospectus,
(ii) the Preliminary Prospectus used most recently prior to the Execution Time, (iii) the Issuer Free Writing Prospectuses, if any, identified in Schedule III hereto, (iv) the final term sheet prepared
30
and filed pursuant to Section 5(b) hereto, and (v) any other Free Writing Prospectus that the parties hereto shall hereafter expressly agree in writing to treat as part of the
Disclosure Package.
“Effective Date” shall mean each date and time that the Registration Statement and any
post-effective amendment or amendments thereto became or becomes effective.
“Exchange Act” shall mean the
Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder.
“Execution Time” shall mean the date and time that this Agreement is executed and delivered by the parties hereto.
“Final Prospectus” shall mean the prospectus supplement relating to the Securities that was first filed pursuant
to Rule 424(b) after the Execution Time, together with the Base Prospectus.
“Free Writing Prospectus” shall
mean a free writing prospectus, as defined in Rule 405.
“Issuer Free Writing Prospectus” shall mean an issuer
free writing prospectus, as defined in Rule 433.
“Preliminary Prospectus” shall mean any preliminary prospectus
supplement to the Base Prospectus referred to in paragraph 1(a) above which is used prior to the filing of the Final Prospectus, together with the Base Prospectus.
“Registration Statement” shall mean the registration statement referred to in paragraph 1(a) above, including
exhibits and financial statements and any prospectus supplement relating to the Securities that is filed with the Commission pursuant to Rule 424(b) and deemed part of such registration statement pursuant to Rule 430B, as amended on each Effective
Date and, in the event any post-effective amendment thereto becomes effective prior to the Closing Date, shall also mean such registration statement as so amended.
“Rule 158”, “Rule 163”, “Rule 164”, “Rule 172”, “Rule 405”,
“Rule 415”, “Rule 424”, “Rule 430B” and “Rule 433” refer to such rules under the Act.
“Trust Indenture Act” shall mean the Trust Indenture Act of 1939, as amended, and the rules and regulations of the
Commission promulgated thereunder.
“Well-Known Seasoned Issuer” shall mean a well-known seasoned issuer, as
defined in Rule 405.
31
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement among the Company, the Parent Guarantor and the several Underwriters.
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Very truly yours,
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W
EATHERFORD
I
NTERNATIONAL
PUBLIC
LIMITED
COMPANY
,
an Irish public limited company
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By:
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/s/ Jennifer Presnall
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Name: Jennifer Presnall
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Title: Vice President
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W
EATHERFORD
I
NTERNATIONAL
L
TD
.,
a Bermuda exempted company
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By:
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/s/ Yazid Tamimi
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Name: Yazid Tamimi
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Title: Vice President
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W
EATHERFORD
I
NTERNATIONAL
LLC
a Delaware limited liability company
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By:
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/s/ Mark Rothleitner
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Name: Mark Rothleitner
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Title: Vice President & Treasurer
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32
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
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RBC CAPITAL MARKETS, LLC
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By:
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RBC Capital Markets, LLC
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By:
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/s/ Shauvik Kundagrami
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Name: Shauvik Kundagrami
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Title: Managing Director
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CITIGROUP GLOBAL MARKETS INC.
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By:
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Citigroup Global Markets Inc.
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By:
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/s/ Jason Howard
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Name: Jason Howard
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Title: Director
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For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
33
SCHEDULE I
Underwriting Agreement dated June 1, 2016
Registration
Statement No. 333-194431
Representatives: RBC Capital Markets, LLC and Citigroup Global Markets Inc.
Title, Purchase Price and Description of Securities:
Title: 5.875% Exchangeable Senior Notes due 2021
Principal amount of Underwritten Securities: $1,100,000,000
Purchase price (include accrued interest or amortization, if any) to the underwriters: 97.5%
Sinking fund provisions: None
Redemption provisions: The Notes may not be redeemed at the Issuer’s option, except in limited circumstances described in the Preliminary
Prospectus Supplement in connection with a change in tax law. Notice of such a redemption would be deemed to constituted a “make-whole fundamental change,” which will in certain circumstances result in a temporarily increased exchange
rate. See “Description of Notes—Exchange of the Notes—Increase in Exchange Rate in Connection with a Make-Whole Fundamental Change” in the Preliminary Prospectus Supplement.
Principal Amount of Option Securities: $165,000,000
Closing Date, Time and Location: June 7, 2016 at 10:00 a.m. EST at Latham & Watkins LLP, special counsel for the Company and the Parent
Guarantor, at 811 Main Street, Suite 3700, Houston, Texas 77002
Type of Offering: Non-Delayed
Date referred to in Section 5(i) after which the Company may offer or sell securities issued by the Company without the consent of the Representative(s):
60 days after pricing hereof
Modification of items to be covered by the letter KPMG LLP delivered pursuant to Section 6(e) at the Execution Time:
None
SCHEDULE II
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Underwriters
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Principal Amount of
Underwritten Securities to
be Purchased
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RBC Capital Markets, LLC
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$
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275,000,000
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Citigroup Global Markets Inc.
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$
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176,000,000
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Deutsche Bank Securities Inc.
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$
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86,900,000
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J.P. Morgan Securities LLC
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$
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86,900,000
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Mitsubishi UFJ Securities (USA), Inc.
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$
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86,900,000
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Morgan Stanley & Co. LLC
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$
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86,900,000
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Wells Fargo Securities, LLC
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$
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86,900,000
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Barclays Capital Inc.
|
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$
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49,500,000
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Skandinaviska Enskilda Banken AB
|
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$
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49,500,000
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TD Securities (USA) LLC
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$
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49,500,000
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UniCredit Capital Markets LLC
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$
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49,500,000
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BBVA Securities Inc.
|
|
$
|
16,500,000
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
1,100,000,000
|
|
|
|
|
|
|
|
SCHEDULE III
Schedule of Free Writing Prospectuses included in the Disclosure Package
Free Writing Prospectus filed with the SEC on June 1, 2016
2
SCHEDULE IV
Weatherford International Ltd.
$1,100,000,000
5.875%
Exchangeable Senior Notes due 2021
The information in this pricing term sheet (the “Pricing Term Sheet”) supplements Weatherford
International Ltd.’s preliminary prospectus supplement, dated June 1, 2016 (the “Preliminary Prospectus Supplement”), and supersedes the information in the Preliminary Prospectus Supplement only to the extent inconsistent with
the information in the Preliminary Prospectus Supplement. In all other respects, the Pricing Term Sheet is qualified in its entirety by reference to the Preliminary Prospectus Supplement, including all documents incorporated by reference therein.
Terms used herein but not defined herein shall have the respective meanings as set forth in the Preliminary Prospectus Supplement. All references to dollar amounts are references to U.S. dollars.
|
|
|
|
|
Issuer:
|
|
Weatherford International Ltd., a Bermuda exempted company.
|
|
|
|
|
Guarantors:
|
|
Weatherford International plc, an Irish public limited company (the “Parent”), and Weatherford International, LLC, a Delaware limited liability company.
|
|
|
|
|
Securities Offered:
|
|
5.875% Exchangeable Senior Notes due 2021 (the “Notes”). Unless the context requires otherwise, as used in this Pricing Term Sheet, each Note refers to a Note having a principal amount of $1,000.
|
|
|
|
|
Ticker / Exchange for Ordinary Shares of the Parent (the “Ordinary Shares”):
|
|
WFT / NYSE.
|
|
|
|
|
Aggregate Principal Amount Offered:
|
|
$1,100,000,000 aggregate principal amount of Notes.
|
|
|
|
|
Public Offering Price, Underwriting Discount and Proceeds to the Issuer, Before Expenses:
|
|
The following table shows the public offering price, underwriting discount and proceeds to the Issuer, before expenses.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Per Note
|
|
|
Total
|
|
|
Public Offering Price (1)
|
|
$
|
1,000
|
|
|
$
|
1,100,000,000
|
|
|
Underwriting Discount
|
|
$
|
25
|
|
|
$
|
27,500,000
|
|
|
Proceeds to the Issuer (before expenses)
|
|
$
|
975
|
|
|
$
|
1,072,500,000
|
|
|
(1)
|
Plus accrued interest from June 7, 2016, if settlement occurs after that date.
|
|
|
|
|
|
Underwriters’ Over-Allotment Option:
|
|
$165,000,000 aggregate principal amount of Notes.
|
|
|
|
|
Trade Date:
|
|
June 2, 2016.
|
|
|
|
|
Expected Settlement Date:
|
|
June 7, 2016 (T+3).
|
|
|
|
|
Issue Price:
|
|
The Notes will be issued at a price of 100% of their principal amount.
|
|
|
|
|
Maturity:
|
|
The Notes will mature on July 1, 2021, unless earlier exchanged, redeemed or repurchased.
|
|
|
|
|
|
Interest Rate:
|
|
5.875% per year, accruing from the Expected Settlement Date.
|
|
|
|
|
Interest Payment Dates:
|
|
Interest will accrue from the Expected Settlement Date and will be payable semi-annually in arrears on July 1 and January 1 of each year, beginning on January 1, 2017.
|
|
|
|
|
NYSE Last Reported Sale Price on June 1, 2016:
|
|
$5.53 per Ordinary Share.
|
|
|
|
|
Exchange Premium:
|
|
Approximately 40.0% above the NYSE Last Reported Sale Price on June 1, 2016.
|
|
|
|
|
Initial Exchange Price:
|
|
Approximately $7.74 per Ordinary Share.
|
|
|
|
|
Initial Exchange Rate:
|
|
129.1656 Ordinary Shares per $1,000 principal amount of Notes.
|
|
|
|
|
Redemption at the Issuer’s Option:
|
|
The Notes may not be redeemed at the Issuer’s option, except in limited circumstances described in the Preliminary Prospectus Supplement in connection with a change in tax law. Notice of such a redemption would be deemed to
constitute a “make-whole fundamental change,” which will in certain circumstances result in a temporarily increased exchange rate. See “Description of Notes—Exchange of the Notes—Increase in Exchange Rate in Connection with
a Make-Whole Fundamental Change” in the Preliminary Prospectus Supplement.
|
|
|
|
|
Joint Book-Running Managers:
|
|
RBC Capital Markets, LLC
Citigroup Global
Markets Inc.
Deutsche Bank Securities Inc.
J.P. Morgan
Securities LLC
Mitsubishi UFJ Securities (USA), Inc.
Morgan
Stanley & Co. LLC
Wells Fargo Securities, LLC
|
|
|
|
|
Co-Managers:
|
|
Barclays Capital Inc.
Skandinaviska Enskilda
Banken AB
TD Securities (USA) LLC
UniCredit Capital Markets
LLC
BBVA Securities Inc.
|
|
|
|
|
CUSIP Number:
|
|
947075 AH0
|
|
|
|
|
ISIN:
|
|
US947075AH03
|
|
|
|
|
Tender Offers:
|
|
The Maximum Purchase Amount will be increased from $1.0 billion to $1.1
billion.
|
2
|
|
|
|
|
Increase in Exchange Rate in Connection with a Make-Whole Fundamental Change:
|
|
The following table sets forth, for each stock price and make-whole fundamental change effective date set forth below, the number of additional shares by which the exchange rate will be increased in connection with a make-whole
fundamental change per $1,000 principal amount of Notes exchanged with an exchange date that occurs during the related make-whole fundamental change exchange period:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Make-Whole
Fundamental Change
Effective Date
|
|
Stock Price
|
|
|
|
$5.53
|
|
|
$6.00
|
|
|
$6.50
|
|
|
$7.00
|
|
|
$7.74
|
|
|
$10.00
|
|
|
$12.50
|
|
|
$15.00
|
|
|
$25.00
|
|
|
$35.00
|
|
|
$45.00
|
|
|
$55.00
|
|
|
June 7, 2016
|
|
|
51.6662
|
|
|
|
50.3265
|
|
|
|
46.4092
|
|
|
|
40.8214
|
|
|
|
34.3243
|
|
|
|
22.2250
|
|
|
|
15.3920
|
|
|
|
11.4480
|
|
|
|
4.6788
|
|
|
|
2.0823
|
|
|
|
0.7331
|
|
|
|
0.0000
|
|
|
July 1, 2017
|
|
|
51.6662
|
|
|
|
49.3012
|
|
|
|
43.4477
|
|
|
|
37.7300
|
|
|
|
31.1770
|
|
|
|
19.4150
|
|
|
|
13.1584
|
|
|
|
9.7113
|
|
|
|
4.0192
|
|
|
|
1.8334
|
|
|
|
0.6627
|
|
|
|
0.0000
|
|
|
July 1, 2018
|
|
|
51.6662
|
|
|
|
47.9617
|
|
|
|
40.3815
|
|
|
|
34.3829
|
|
|
|
27.6395
|
|
|
|
16.1430
|
|
|
|
10.5672
|
|
|
|
7.7167
|
|
|
|
3.2508
|
|
|
|
1.5414
|
|
|
|
0.6024
|
|
|
|
0.0000
|
|
|
July 1, 2019
|
|
|
51.6662
|
|
|
|
45.5983
|
|
|
|
37.1985
|
|
|
|
30.6414
|
|
|
|
23.4548
|
|
|
|
12.1490
|
|
|
|
7.4968
|
|
|
|
5.4093
|
|
|
|
2.3416
|
|
|
|
1.1549
|
|
|
|
0.4989
|
|
|
|
0.0000
|
|
|
July 1, 2020
|
|
|
51.6662
|
|
|
|
44.1850
|
|
|
|
34.1508
|
|
|
|
26.3571
|
|
|
|
18.0711
|
|
|
|
6.9490
|
|
|
|
3.8664
|
|
|
|
2.8040
|
|
|
|
1.2712
|
|
|
|
0.6500
|
|
|
|
0.3053
|
|
|
|
0.0000
|
|
|
July 1, 2021
|
|
|
51.6662
|
|
|
|
42.9510
|
|
|
|
31.2575
|
|
|
|
23.3786
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
If such make-whole fundamental change effective date or stock price are not set forth in the table above, then:
|
|
•
|
|
if such stock price is between two stock prices in the table above or the make-whole fundamental change effective date is between two make-whole fundamental change effective dates in the table above, then the number of
additional shares will be determined by a straight-line interpolation between the numbers of additional shares set forth for the higher and lower stock prices in the table and the earlier and later make-whole fundamental change effective dates in
the table above, as applicable, based on a 365- or 366-day year, as applicable;
|
|
|
•
|
|
if the stock price is greater than $55.00 per share (subject to adjustment in the same manner as the stock prices set forth in the column headings of the table above are adjusted, as described in the Preliminary
Prospectus Supplement under the caption “Description of Notes—Exchange of the Notes—Increase in Exchange Rate in Connection with a Make-Whole Fundamental Change—Adjustment of Stock Prices and Number of Additional Shares”),
then no additional shares will be added to the exchange rate; and
|
|
|
•
|
|
if the stock price is less than $5.53 per share (subject to adjustment in the same manner as the stock prices set forth in the column headings of the table above are adjusted, as described in the Preliminary Prospectus
Supplement under the caption “Description of Notes—Exchange of the Notes—Increase in Exchange Rate in Connection with a Make-Whole Fundamental Change—Adjustment of Stock Prices and Number of Additional Shares”), then no
additional shares will be added to the exchange rate.
|
Notwithstanding anything to the contrary, in no event will the exchange rate be
increased to an amount that exceeds 180.8318 ordinary shares per $1,000 principal amount of Notes, which amount is subject to adjustment in the same manner as, and at the same time and for the same events for which, the exchange rate is required to
be adjusted pursuant to the provisions described in clauses (1) through (5) in the Preliminary Prospectus Supplement under the caption “Description of Notes—Exchange of the Notes—Exchange Rate Adjustments.”
The Issuer has filed a registration statement (including a prospectus) and a preliminary prospectus supplement with the SEC for the offering to which this
communication relates. Before you invest, you should read the prospectus in that registration statement, the preliminary prospectus supplement and the other documents the Issuer has filed with the SEC for more complete information about the Issuer
and the Notes offering. You may get these documents for free by visiting EDGAR on the SEC Web site at www.sec.gov. Alternatively, the Issuer, any underwriter or any dealer participating in the offering will arrange to send you the prospectus and the
preliminary prospectus supplement if you request it by contacting RBC Capital Markets at RBC Capital Markets, 3 World Financial Center, 200 Vesey Street, 8th Floor, New York, New York 10281, Attention: Equity Syndicate, or by telephone at
(877) 822-4089, or by email at equityprospectus@rbccm.com; or Citigroup at Citigroup Global Markets Inc., c/o Broadridge Financial Solutions, 1155 Long Island Avenue, Edgewood, NY 11717, or by telephone at (800) 831-9146.
3
EXHIBIT A
[Letterhead of officer or director of
Weatherford International public limited company]
Weatherford International public limited company
Public Offering of Exchangeable Securities
June 1, 2016
RBC Capital Markets, LLC
Citigroup Global Markets Inc.
As Representatives of the several
Underwriters,
c/o RBC Capital Markets, LLC
Three World
Financial Center
200 Vesey Street
New York, New York 10281
Ladies and Gentlemen:
This letter is
being delivered to you in connection with the proposed Underwriting Agreement (the “Underwriting Agreement”) by and among Weatherford International Ltd., a Bermuda exempted company (the “Company”), Weatherford International
public limited company, an Irish public limited company (the “Parent Guarantor”), Weatherford International LLC, a Delaware limited liability company (the “Subsidiary Guarantor”), and each of you as representatives of a group of
Underwriters named therein, relating to an underwritten public offering of $1,100,000,000 5.875% Exchangeable Senior Notes due 2021 (the “Exchangeable Notes”) of the Company. The Exchangeable Notes will be exchangeable into ordinary
shares, par value $0.001 USD per share (the “Ordinary Shares”), of the Parent Guarantor.
In order to induce you and the other
Underwriters to enter into the Underwriting Agreement, the undersigned will not, without the prior written consent of RBC Capital Markets, LLC, offer, sell, contract to sell, pledge or otherwise dispose of, (or enter into any transaction which is
designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the undersigned or any affiliate of the undersigned or any person in
privity with the undersigned or any affiliate of the undersigned), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Securities and Exchange Commission in respect of, or establish or
increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and regulations of the
Securities and Exchange Commission promulgated thereunder with respect to, any Ordinary Shares of the Parent Guarantor or any securities convertible into or exercisable or exchangeable for such capital stock, or publicly announce an intention to
effect any such transaction, for a period of 60 days after the date of the Underwriting Agreement, other than (i) Ordinary Shares disposed of as bona fide gifts approved by RBC Capital Markets, LLC. or (ii) sold by the Chief Accounting
Officer of the Parent Guarantor pursuant to a trading plan under Rule 10b5-1 of the Exchange Act, in existence on the date hereof.
If for any reason the Underwriting Agreement shall be terminated prior to the Closing Date (as defined in the
Underwriting Agreement), the agreement set forth above shall likewise be terminated.
|
|
|
Yours very truly,
|
|
|
|
[Signature of officer or director]
|
2
EXHIBIT B
List of lock-up parties:
(1) Mohamed A. Awad
(2) David J. Butters
(3) Dr. Bernard J. Duroc-Danner
(4) John D. Gass
(5) Sir Emyr Jones Parry
(6) Francis S. Kalman
(7) William E. Macaulay
(8) Robert K. Moses, Jr.
(9) Dr. Guillermo Ortiz
(10) Robert A. Rayne
(11) Krishna Shivram
(12) Douglas M. Mills
(13) Antony J. Branch
(14) Lance Marklinger
(15) Christina Ibrahim
ANNEX A-1
FORM OF OPINION OF COMPANY’S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 6(b)
1. The Subsidiary
Guarantor is a limited liability company under the Delaware Limited Liability Company Act (the “DLLCA”) with limited liability company power and authority to own its properties and to conduct its business as described in the Registration
Statement, the Preliminary Prospectus and the Final Prospectus. With your consent, based solely on certificates from public officials, we confirm that the Subsidiary Guarantor is validly existing and in good standing under the laws of the State of
Delaware.
2. Assuming the Indenture has been duly authorized, executed and delivered by the Company, the Indenture is the legally valid
and binding agreement of the Company, enforceable against the Company in accordance with its terms.
2. Assuming the Indenture has been
duly authorized, executed and delivered by the Parent Guarantor, the Indenture, including the Parent Guarantee contained therein, is the legally valid and binding agreement of the Parent Guarantor, enforceable against the Parent Guarantor in
accordance with its terms.
3. The execution, delivery and performance of the Indenture have been duly authorized by all necessary limited
liability company action of the Subsidiary Guarantor, and the Indenture, including the Subsidiary Guarantee contained therein, has been duly executed and delivered by the Subsidiary Guarantor and is the legally valid and binding agreement of the
Subsidiary Guarantor, enforceable against the Subsidiary Guarantor in accordance with its terms.
4. Assuming the Notes have been duly
authorized, when executed, issued and authenticated in accordance with the terms of the Indenture and delivered and paid for in accordance with the terms of the Underwriting Agreement, will be legally valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms.
5. The Indenture has been qualified under the Trust Indenture Act of
1939, as amended.
6. The execution and delivery of the Underwriting Agreement and the Indenture, and the issuance and sale of the
Securities by the Company to you and the other Underwriters pursuant to the Underwriting Agreement do not on the date hereof:
(i) violate any federal, New York or Texas statute, rule or regulation applicable to the Company or violate the DLLCA;
(ii) result in the breach of or a default under any of the Specified Agreements
1
; or
(iii) require any consents, approvals, or authorizations to be
obtained by the Company from, or any registrations, declarations or filings to be made by the Company with, any governmental authority under any federal, New York or Texas statute, rule or regulation applicable to the Company or the DLLCA on or
prior to the date hereof that have not been obtained or made.
7. The Registration Statement has become effective under the Act. With your
consent, based solely on a review of a list of stop orders on the Commission’s website at http://www.sec.gov/litigation/stoporders.shtml, we confirm that no stop order suspending the effectiveness of the Registration Statement has been issued
under the Act and no proceedings therefor have been initiated by the Commission. The Preliminary Prospectus has been filed in accordance with Rule 424(b) under the Act, the Prospectus has been filed in accordance with Rule 424(b) and 430B under the
Act, and the specified Issuer Free Writing Prospectus has been filed in accordance with Rule 433(d) under the Act.
8. The Registration
Statement at [ ● ], including the information deemed to be a part thereof pursuant to Rule 430B under the Act, and the Prospectus, as of its date, each appeared on their face to be appropriately responsive in all material respects to the
applicable form requirements for registration statements on Form S-3 under the Act and the rules and regulations thereunder; it being understood, however, that we express no view with respect to Regulation
S-T
or the financial statements, schedules, or other financial data, included in, incorporated by reference in, or omitted from, the Registration Statement or the Prospectus. For purposes of this paragraph, we have assumed that the statements made in
the Registration Statement and the Prospectus are correct and complete.
9 (A) The statements in the Prospectus under the caption
“Description of Notes,” insofar as they purport to describe or summarize certain provisions of the documents referred to therein, are accurate descriptions or summaries in all material respects and (B) the statements under the caption
“Material United States Federal Income Tax Considerations” in the Disclosure Package and the Registration Statement, insofar as such statements purport to constitute summaries of United States federal income tax law and regulations or
legal conclusions with respect thereto, constitute accurate summaries of the matters described therein in all material respects.
10. Each
of the Company and Parent Guarantor is not, and immediately after giving effect to the sale of the Securities in accordance with the Underwriting Agreement and the application of the proceeds as described in the Prospectus under the caption
“Use of Proceeds,” will not be required to be, registered as an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
|
1
|
NTD: List will include debt documents filed as exhibits to the Exchange Act filings.
|
2
ANNEX A-2
FORM OF NEGATIVE ASSURANCE LETTER OF COMPANY’S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 6(b)
The primary purpose
of our professional engagement was not to establish or confirm factual matters or financial or quantitative information. Therefore, we are not passing upon and do not assume any responsibility for the accuracy, completeness or fairness of the
statements contained in, or incorporated by reference in, the Registration Statement, the Preliminary Prospectus, any Specified IFWP, the Final Prospectus or the Incorporated Documents
2
(except to
the extent expressly set forth in the numbered paragraph 8 of our letter to the Underwriters of even date), and have not made an independent check or verification thereof (except as aforesaid). However, in the course of acting as special counsel to
the Company and the Guarantors in connection with the preparation by the Company and the Guarantors of the Registration Statement, the Preliminary Prospectus, each Specified IFWP, and the Final Prospectus, we reviewed the Registration Statement, the
Preliminary Prospectus, the Specified IFWP, the Final Prospectus and the Incorporated Documents, and participated in conferences and telephone conversations with officers and other representatives of the Company and the Guarantors, the independent
public accountants for the Company and the Guarantors, representatives of the Underwriters, and the Underwriters’ counsel, during which conferences and conversations the contents of the Registration Statement, the Preliminary Prospectus, the
Specified IFWP and the Final Prospectus and related matters were discussed. Such counsel also reviewed and relied upon certain corporate records and documents, letters from counsel and accountants, and oral and written statements of officers and
other representatives of the Company and the Guarantors and others as to the existence and consequence of certain factual and other matters.
Based on our participation, review and reliance as described above, we advise you that no facts came to our attention that caused us to
believe that:
|
|
•
|
|
the Registration Statement, as of the most recent effective date, including the information deemed to be a part of the Registration Statement pursuant to Rule 430B under the Act (together with the Incorporated Documents
at that time), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading;
|
|
|
•
|
|
the Preliminary Prospectus, as of June 1, 2016 (together with the Incorporated Documents at that date and the Specified IFWP), when taken together with the Pricing Information Annex, contained an untrue statement
of a material fact or omitted to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
|
|
2
|
Incorporated Documents” means “the reports filed by the Parent Guarantor with the SEC and, in each case giving effect to Rule 412 under the Act, incorporated in the Registration Statement, the Preliminary
Prospectus, or the Final Prospectus by reference”
|
|
|
•
|
|
the Final Prospectus, as of its date or as of the date hereto, (together with the Incorporated Documents at that those dates), contained or contains an untrue statement of a material fact or omitted or omits to state a
material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
|
it
being understood that we express no belief with respect to the financial statements, schedules, or other financial data included or incorporated by reference in, or omitted from, the Registration Statement, the Preliminary Prospectus, the Specified
IFWPs, the Pricing Information Annex, the Final Prospectus, the Incorporated Documents, or the Form T-1.
2
ANNEX B
FORM OF OPINION OF COMPANY’S AND PARENT GUARANTOR’S IN-HOUSE COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 6(c)
(i)
To my knowledge, there is no action, suit or proceeding before or by any government, governmental instrumentality or court, domestic or foreign, now pending or threatened against or affecting the Company, the Guarantors or any of their respective
subsidiaries, or to which any of their respective properties are subject, that are of a character required to be described in the Registration Statement, the Disclosure Package or the Final Prospectus that are not so described.
(ii) The (i) execution and delivery of, and the performance by each of the Company and the Guarantors of its respective
obligations under, the Underwriting Agreement, the Indenture and the Securities (collectively, the “Transaction Agreements”), (ii) consummation of the transactions contemplated in the Underwriting Agreement (including the use of the
proceeds from the sale of the Securities as described in the Final Prospectus under the caption “Use of Proceeds”), and (iii) compliance by each of the Company and the Guarantors with its respective obligations under the Transaction
Agreements, and the fulfillment of the terms under the Transaction Agreements, including the issuance of the Ordinary Shares upon the exchange of the Securities, do not and will not, whether with or without the giving of notice or lapse of time or
both, constitute a breach of, or default or Repayment Event (as defined in Section 1(a)(t) of the Underwriting Agreement) under any indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreement or instrument,
known to me, to which the Company, the Guarantors or any of their respective subsidiaries is a party or by which any of them may be bound (excluding the Specified Agreements covered by the opinion of Latham & Watkins LLP), or to which any
of the property or assets of the Company, the Guarantors or any of their respective subsidiaries is subject (except for such breaches, defaults or Repayment Events that would not reasonably be expected to have a Material Adverse Effect, or in the
case of the Guarantors, a Parent Guarantor Material Adverse Effect), nor will such action result in any violation of the provisions of the charter or by-laws or other governing documents of the Company, the Guarantors or any of the Scheduled
Subsidiaries or any applicable law, judgment, order, writ or decree known to me of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company, the Guarantors or any of their respective subsidiaries
or any of their respective properties, assets or operations.
(iii) All descriptions in the Registration Statement of
contracts and other documents to which the Company, the Guarantors or any of their respective subsidiaries is a party are fair summaries in all material respects; and to my knowledge, there are no franchises, contracts, indentures, mortgages, loan
agreements, notes, leases or other instruments required to be described or referred to in the Registration Statement or to be filed as exhibits to the Registration Statement, other than those described or referred to therein or filed or incorporated
by reference as exhibits thereto.
The opinions expressed above are limited to matters governed by the federal laws of the United
States of America, the laws of the State of Texas and the General Corporation Law of the State of Delaware. In addition, this opinion is subject to customary exceptions and qualifications.
2
ANNEX C
FORM OF OPINION OF COMPANY COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 6(d)
(i)
The Company is duly incorporated and existing under the laws of Bermuda in good standing (meaning solely that it has not failed to make any filing with any Bermuda governmental authority, or to pay any Bermuda government fee or tax, which would make
it liable to be struck off the Register of Companies and thereby cease to exist under the laws of Bermuda).
(ii) The
Company has the necessary corporate power and authority to enter into and perform its obligations under the Underwriting Agreement, the Indenture and the Notes (collectively, the “Documents”) and the necessary corporate power to conduct
its business as described under the captions “About Us” in the Base Prospectus and “Prospectus Supplement Summary –Overview” in the Preliminary Prospectus and the Final Prospectus. The execution and delivery of the Documents
by the Company and the performance by the Company of its obligations thereunder will not violate the memorandum of association or bye-laws of the Company nor any applicable law, regulation, order or decree in Bermuda.
(iii) The Company has taken all corporate action required to authorise its execution, delivery and performance of the
Documents. The Documents have been duly executed and delivered by or on behalf of the Company and constitute the valid, binding and enforceable obligations of the Company, enforceable against the Company in accordance with the terms thereof.
(iv) No order, consent, approval, licence, authorisation or validation of, filing with or exemption by any government or public
body or authority of Bermuda or any sub-division thereof is required to authorise or is required in connection with the execution, delivery, performance and enforcement of the Documents, except such as have been duly obtained in accordance with
Bermuda law.
(v) It is not necessary or desirable to ensure the enforceability in Bermuda of the Documents that they be
registered in any register kept by, or filed with, any governmental authority or regulatory body in Bermuda. However, to the extent that any of the Documents creates a charge over assets of the Company, it may be desirable to ensure the priority in
Bermuda of the charge that it be registered in the Register of Charges in accordance with Section 55 of the Companies Act 1981. On registration, to the extent that Bermuda law governs the priority of a charge, such charge will have priority in
Bermuda over any unregistered charges, and over any subsequently registered charges, in respect of the assets which are the subject of the charge. A registration fee of $603 will be payable in respect of the registration.
While there is no exhaustive definition of a charge under Bermuda law, a charge includes any
interest created in property by way of security (including any mortgage, assignment, pledge, lien or hypothecation). As the Documents are governed by the laws of the State of New York (the “Foreign Laws”), the question of whether they
create such an interest in property would be determined under the Foreign Laws.
(vi) The Documents will not be subject to
ad valorem stamp duty in Bermuda and no registration, documentary, recording, transfer or other similar tax, fee or charge is payable in Bermuda in connection with the execution, delivery, filing, registration or performance of the Documents other
than as stated in paragraph 5 hereof.
(vii) Based solely upon a review of the register of members of the Company dated
[ ● ], 2016, the issued share capital of the Company consists of [ ● ] common shares, par value US$1.00, each of which is validly issued, fully paid and non-assessable (which term when used herein means that no
further sums are required to be paid by the holders thereof in connection with the issue thereof). The issued shares of the Company are not subject to any statutory pre-emptive or similar statutory rights.
(viii) The statements contained in the Preliminary Prospectus and the Final Prospectus under the caption “Certain Bermuda
Tax Considerations” and in the Base Prospectus under the caption “Item 15—Indemnification of Directors and Officers” of the Registration Statement, to the extent that they constitute statements of Bermuda law, are accurate in all
material respects.
(ix) Based solely on a search of the public records in respect of the Company maintained at the offices
of the Registrar of Companies at [ ● ] on [ ● ], 2016 (which would not reveal details of matters which have not been lodged for registration or have been lodged for registration but not actually registered at the time
of our search) and a search of the Cause Book of the Supreme Court of Bermuda conducted at [ ● ] on [ ● ], 2016 (which would not reveal details of proceedings which have been filed but not actually entered in the
Cause Book at the time of our search), no details have been registered of any steps taken in Bermuda for the appointment of a receiver or liquidator to, or for the winding-up, dissolution, reconstruction or reorganisation of, the Company, though it
should be noted that the public files maintained by the Registrar of Companies do not reveal whether a winding up petition or application to the Court for the appointment of a receiver has been presented and entries in the Cause Book may not specify
the nature of the relevant proceedings.
(x) The choice of the Foreign Laws as the governing law of the Documents is a
valid choice of law and would be recognised and given effect to in any action brought before a court of competent jurisdiction in Bermuda, except for those laws (i) which such court considers to be procedural in nature, (ii) which are
revenue or penal laws or (iii) the application of which would be inconsistent
2
with public policy, as such term is interpreted under the laws of Bermuda. The submission in the Underwriting Agreement and the Indenture to the non-exclusive jurisdiction of the courts specified
therein (the “Foreign Courts”), and the appointment of CT Corporation Systems by the Company as its agent for service of legal process in connection with proceedings in the Foreign Courts pursuant to the Underwriting Agreement, is valid
and binding upon the Company.
(xi) The courts of Bermuda would recognise as a valid judgment, a final and conclusive
judgment in personam obtained in the Foreign Courts against the Company based upon the Documents under which a sum of money is payable (other than a sum of money payable in respect of multiple damages, taxes or other charges of a like nature or in
respect of a fine or other penalty) and would give a judgment based thereon provided that (a) such courts had proper jurisdiction over the parties subject to such judgment, (b) such courts did not contravene the rules of natural justice of
Bermuda, (c) such judgment was not obtained by fraud, (d) the enforcement of the judgment would not be contrary to the public policy of Bermuda, (e) no new admissible evidence relevant to the action is submitted prior to the rendering
of the judgment by the courts of Bermuda and (f) there is due compliance with the correct procedures under the laws of Bermuda.
(xii) There is no income or other tax of Bermuda imposed by withholding or otherwise on any payment to be made by the Company
or either of the Guarantors to the holders of the Notes.
(xiii) The Company has been designated as non-resident of Bermuda
for the purposes of the Exchange Control Act, 1972 and, as such, is free to acquire, hold, transfer and sell foreign currency (including the payment of dividends or other distributions) and securities without restriction.
(xiv) The Company is not entitled to any immunity under the laws of Bermuda, whether characterised as sovereign immunity or
otherwise, from any legal proceedings to enforce the Documents in respect of itself or its property.
(xv) The obligations
of the Company under the Notes will rank at least pari passu in priority of payment with all other unsecured senior indebtedness of the Company, other than indebtedness which is preferred by virtue of any provision of the laws of Bermuda of general
application.
3
ANNEX D
FORM OF OPINION OF PARENT GUARANTOR’S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 6(e)
(a) the Parent
Guarantor is a public company duly incorporated with limited liability under the laws of Ireland. The Parent Guarantor is incorporated for an indefinite period as a separate legal entity and is subject to suit in its own name. Based upon the
Searches, no steps have been taken under the laws of Ireland to appoint a receiver, liquidator or examiner to or to wind up the Parent Guarantor;
(b) the Parent Guarantor has full power to enter into the Documents and to exercise its rights and perform its obligations thereunder and all
corporate action required to authorise the execution and delivery of the Documents and its performance of its obligations thereunder has been taken;
(c) the execution and delivery by the Parent Guarantor of the Documents and its exercise of its rights and performance of its obligations
thereunder (including the issue of Ordinary Shares) will not violate (i) any existing law or regulation of Ireland applicable to companies generally or (ii) any provision of its Constitution;
(d) the Documents have been duly executed by the Parent Guarantor and the Documents and the obligations undertaken thereunder by the Parent
Guarantor constitute legal, valid, binding and enforceable obligations of the Parent Guarantor;
(e) the Parent’s Guarantor’s
authorized share capital is as out in the Prospectus Supplement; the rights of the Ordinary Shares conform to the description thereof contained in the Prospectus Supplement under the caption “
Description of Weatherford
Ireland’s
Ordinary Shares”
; the Ordinary Shares initially issuable on the exchange of the Securities in accordance with the terms of the Documents have been duly authorized and, when paid to at least their nominal value in accordance with the
Documents and issued, will be validly issued, fully paid and non-assessable (“
non-assessable
” is a phrase which has no meaning under Irish law, but, for the purposes of this Opinion, shall mean the registered holders of such shares
are not liable under Irish law, solely by virtue of their shareholding, for the payment of any further amounts of capital on such shares); the board of directors of the Parent Guarantor has duly and validly adopted resolutions reserving such
Ordinary Shares for issuance upon such exchange of the Securities; and the holders of the issued shares of the Parent Guarantor are not entitled to pre-emptive or other rights to subscribe for such Ordinary Shares issuable upon exchange thereof;
(f) it is not necessary under the laws of Ireland in order to ensure the legality, validity, enforceability or admissibility in evidence
of the Documents in Ireland or to permit the Parent Guarantor to perform its obligations under the Documents that any approval, consent, licence, authorisation or exemption be obtained from any court or governmental or regulatory authority in
Ireland or that the Documents or any particulars of them be filed, registered, recorded, enrolled or notarised with, in or by any such court or authority;
(g) the Documents will not be subject to stamp duty in Ireland and no registration, documentary,
recording, transfer or other similar tax, fee or charge is payable in Ireland in connection with the execution, delivery, filing, registration or performance of the Documents or in connection with the admissibility in evidence thereof (other than
ordinary court filing fees);
(h) the statements contained in the Prospectus Supplement under the caption “Certain Irish Tax
Considerations” and
“Description of Weatherford’s Ordinary Shares”
, to the extent that they constitute statements of Irish law or summaries of any provisions of the Constitution or certain rights of the Ordinary Shares,
are accurate in all material respects;
(i) in any proceedings taken in Ireland for the enforcement of the obligations of the Parent
Guarantor under the Documents, the courts of Ireland would recognise the choice of the law of the State of New York applicable to contracts made and to be performed within the State of New York as the governing law of the contractual rights and
obligations of the parties under the Documents in each case in accordance with and subject to the provisions of Council Regulations (EC) No 593/2008 on the Law Applicable to Contractual Obligations;
(j) the submission in the Documents by the Parent Guarantor to the non-exclusive jurisdiction of any federal or New York State court located
in the City of New York is valid and binding on the Parent Guarantor;
(k) any judgment obtained against the Parent Guarantor in any
federal or New York State court located in the City of New York (a “
Non EU / EFTA Judgment
”) relating to any of the Documents should be recognised and enforced by the courts of Ireland subject to first obtaining by way of a new
action an order from the Irish courts which would be granted on proper proof of the Non EU / EFTA Judgment without any retrial or examination of the merits of the case provided that:
(1) the Non EU / EFTA Judgment is for a definite sum of money and is final and conclusive;
(2) the state or federal court located in the City of New York had competent jurisdiction;
(3) the Non EU / EFTA Judgment has not been obtained or alleged to have been obtained by fraud;
(4) procedural rules of the court giving the Non EU / EFTA Judgment have been observed;
(5) the Non EU / EFTA Judgment is not contrary to public policy or natural or constitutional justice;
(6) the Non EU / EFTA Judgment is not inconsistent with a judgment of the court of Ireland in relation to the same matter;
(7) the Irish courts have jurisdiction over the matter; and
2
(8) enforcement proceedings are instituted in Ireland by way of the new action
within six years of the date of the Non EU / EFTA Judgment;
(l) there is no income or other tax of Ireland imposed by withholding or
otherwise on any payment to be made by the Company or Parent Guarantor to the holders of the Notes;
(m) the Parent Guarantor is not
entitled to any form of immunity from legal proceedings, jurisdiction or execution of judgments;
(n) any indebtedness of the Parent
Guarantor under the Ireland Guarantee will rank at least
pari passu
in point of priority with the claims of its other unsecured creditors, subject to any statutory priorities or contractual subordination of its other creditors and subject to
limitations imposed by bankruptcy, reorganisation, insolvency or other similar laws of general application relating to or affecting the enforcement of creditors’ rights;
(o) on the basis of certain assumptions to which you have agreed, the offer of the Underwritten Notes in accordance with the terms of the
Documents does not require the publication of a prospectus pursuant to the Directive 2003/71/EC (as amended) and the relevant implementing measures in Ireland; and
(p) the Representatives will not be deemed to be resident, domiciled or carrying on business in Ireland for Irish tax purposes by reason only
of the execution, performance and / or enforcement of the Documents by the Representatives.
The opinions expressed above are limited to
matters governed by the laws of Ireland. In addition, this opinion is subject to certain assumptions, exceptions and qualifications to which you have agreed.
3
ANNEX E
FORM OF OPINION OF PARENT GUARANTOR’S SPECIAL ADVISOR
TO BE DELIVERED PURSUANT TO
SECTION 6(f)
Subject to certain
assumptions, qualifications and limitations, with such assumptions, qualifications and limitations to be reasonably acceptable to the underwriters, counsel shall deliver to the underwriters the following opinions.
(i) The Documents will not be subject to ad valorem stamp duty in Switzerland and no registration, documentary, recording,
transfer or other similar tax, fee or charge is payable in Switzerland in connection with the execution, delivery, filing, registration or performance of the Documents or in connection with the admissibility in evidence thereof (other than ordinary
court filing fees). For the avoidance of doubt, the issuance of new Ordinary Shares upon a possible exchange of the Exchangeable Senior Notes is subject to Swiss issuance stamp duty of 1%. This duty will be borne by Weatherford International plc.
(ii) The statements contained in the Prospectus Supplement under the caption “Material Swiss Tax Considerations”
are accurate in all material respects.
(iii) There is no Swiss income or Swiss Federal withholding tax on any payment
relating to the Notes to be made by the Issuer or Weatherford International plc to a Non-Swiss holder, provided any such payment is not attributable to a permanent establishment, a fixed place of business or another taxable presence in Switzerland.
Exhibit 4.1
EXECUTION VERSION
WEATHERFORD INTERNATIONAL LTD.,
as the Company
WEATHERFORD INTERNATIONAL PLC and WEATHERFORD INTERNATIONAL, LLC,
as Guarantors
NINTH SUPPLEMENTAL INDENTURE
Dated as of June 7, 2016
to
INDENTURE
Dated as
of October 1, 2003
Related to 5.875% Exchangeable Senior Notes due 2021
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Trustee
TABLE OF CONTENTS
ARTICLE 1
DEFINITIONS
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Section 1.01.
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Definitions
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1
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Section 1.02.
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References to Interest
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11
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ARTICLE 2
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ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF NOTES
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Section 2.01.
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Scope of Supplemental Indenture
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11
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Section 2.02.
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Designation and Amount
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11
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Section 2.03.
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Form of Notes
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11
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Section 2.04.
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The Depositary
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11
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Section 2.05.
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Date and Denomination of Notes; Payments of Interest
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11
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Section 2.06.
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Cancellation of Notes Exchanged
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12
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Section 2.07.
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Additional Notes; Repurchases
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12
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Section 2.08.
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Outstanding Notes
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12
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ARTICLE 3
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SATISFACTION AND DISCHARGE
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Section 3.01.
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Satisfaction and Discharge
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13
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Section 3.02.
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No Defeasance
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14
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ARTICLE 4
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PARTICULAR COVENANTS OF THE COMPANY
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Section 4.01.
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Reports
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14
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Section 4.02.
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Compliance Certificate; Statements as to Defaults
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14
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Section 4.03.
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Additional Amounts
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15
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Section 4.04.
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Applicability of Section 10.5 and Section 10.6 of the Base Indenture
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18
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ARTICLE 5
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DEFAULTS AND REMEDIES
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Section 5.01.
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Applicability of Article Five of the Base Indenture
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18
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Section 5.02.
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Events of Default
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18
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Section 5.03.
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Acceleration; Rescission and Annulment
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19
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Section 5.04.
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Trustee Enforcement Action for Payments of Notes
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20
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- i -
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Section 5.05.
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Interest on Defaulted Amounts
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22
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Section 5.06.
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Application of Monies Collected by Trustee
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22
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Section 5.07.
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Proceedings by Holders
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22
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Section 5.08.
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Proceedings by Trustee
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23
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Section 5.09.
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Remedies Cumulative and Continuing
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24
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Section 5.10.
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Direction of Proceedings and Waiver of Defaults by Majority of Holders
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24
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Section 5.11.
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Notice of Defaults
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24
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Section 5.12.
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Undertaking to Pay Costs
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25
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Section 5.13.
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Sole Remedy for a Failure to Report
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25
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ARTICLE 6
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SUPPLEMENTAL INDENTURES
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Section 6.01.
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Supplemental Indentures Without Consent of Holders
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26
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Section 6.02.
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Supplemental Indentures with Consent of Holders
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28
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ARTICLE 7
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CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
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Section 7.01.
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Applicability of Article Eight of the Base Indenture
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29
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Section 7.02.
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Company May Consolidate, Etc. on Certain Terms
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29
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Section 7.03.
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Successor Corporation to Be Substituted
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30
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Section 7.04.
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Opinion of Counsel to Be Given to Trustee
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30
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ARTICLE 8
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EXCHANGE OF NOTES
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Section 8.01.
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Exchange Privilege
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30
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Section 8.02.
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Exchange Procedure; Settlement Upon Exchange
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33
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Section 8.03.
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Increased Exchange Rate Applicable to Certain Notes Surrendered in Connection with Make-Whole Fundamental Changes
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37
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Section 8.04.
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Adjustment of Exchange Rate
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38
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Section 8.05.
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Adjustments of Prices
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46
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Section 8.06.
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Effect of Recapitalizations, Reclassifications and Changes of the Ordinary Shares
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46
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Section 8.07.
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Certain Covenants
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47
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Section 8.08.
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Responsibility of Trustee
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48
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Section 8.09.
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Stockholder Rights Plans
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48
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- ii -
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ARTICLE 9
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REPURCHASE OF NOTES AT OPTION OF HOLDERS
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Section 9.01.
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Repurchase at Option of Holders Upon a Fundamental Change
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49
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Section 9.02.
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Deposit of Fundamental Change Repurchase Price
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52
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Section 9.03.
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Covenant to Comply with Applicable Laws Upon Repurchase of Notes
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52
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ARTICLE 10
REDEMPTION UPON A CHANGE IN TAX LAW
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Section 10.01.
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Applicability of Article Eleven of the Base Indenture
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53
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Section 10.02.
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Redemption Upon a Change in Tax Law
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53
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Section 10.03.
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Notice of Redemption; Selection of Notes
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53
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Section 10.04.
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Payment of Notes Called for Redemption
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54
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Section 10.05.
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Restrictions on Redemption
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54
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ARTICLE 11
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GUARANTEES
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Section 11.01.
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Applicability of Article Fourteen of the Base Indenture
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55
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Section 11.02.
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Guarantees
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55
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Section 11.03.
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Limitation on Guarantor Liability
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56
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Section 11.04.
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Execution and Delivery of Guarantee
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56
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ARTICLE 12
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MISCELLANEOUS PROVISIONS
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Section 12.01.
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Certificated Notes
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57
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Section 12.02.
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Provisions Binding on Successors
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57
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Section 12.03.
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Governing Law; Jurisdiction
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57
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Section 12.04.
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Legal Holidays
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57
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Section 12.05.
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No Security Interest Created
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57
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Section 12.06.
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Table of Contents, Headings, Etc.
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58
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Section 12.07.
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Execution in Counterparts
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58
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Section 12.08.
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Severability
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58
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Section 12.09.
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Force Majeure
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58
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Section 12.10.
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Calculations
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58
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Section 12.11.
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USA PATRIOT Act
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58
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Section 12.12.
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The Trustee
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59
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Section 12.13.
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No Personal Liability of Directors, Officers, Employees, Shareholders and Stockholders.
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59
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- iii -
EXHIBIT
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Exhibit A
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Form of Note
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A-1
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- iv -
Ninth Supplemental Indenture dated as of June 7, 2016 (this
“
Supplemental Indenture
”) among WEATHERFORD INTERNATIONAL LTD., a Bermuda exempted company (the “
Company
,” as more fully set forth in Section 1.01), WEATHERFORD INTERNATIONAL PLC, an Irish public
limited company (the “
Parent
”), and WEATHERFORD INTERNATIONAL, LLC, a Delaware limited liability company (together with the Parent, the “
Guarantors
”) and DEUTSCHE BANK TRUST COMPANY AMERICAS, a
national banking association, as trustee (the “
Trustee
,” as more fully set forth in Section 1.01) supplementing the Base Indenture (as defined below).
W I T N E S S E T H:
WHEREAS,
the Company, Weatherford International, Inc. and the Trustee executed and delivered an Indenture, dated as of October 1, 2003 (the “
Base Indenture
,” and, as heretofore supplemented and as further supplemented or amended
with respect to the Notes (as defined herein), including as supplemented or amended hereby, the “
Indenture
”), to provide for the issuance by the Company from time to time of Securities; and
WHEREAS, Section 2.1, Section 3.1 and Section 9.1(8) of the Base Indenture provide that the Company and the Trustee, at any
time and from time to time, may enter into one or more indentures supplemental to the Base Indenture, without the consent of any Holders (as defined in the Base Indenture), to, among other things, establish the form and terms and conditions of, and
issue, Securities of any series as permitted by the Base Indenture; and
WHEREAS, the Company has duly authorized the issuance of its
5.875% Exchangeable Senior Notes due 2021 (the “
Notes
”), initially in an aggregate principal amount not to exceed one billion two hundred sixty five million dollars ($1,265,000,000), and, in order to provide the terms and
conditions upon which the Notes are to be authenticated, issued and delivered, the Company has duly authorized the execution and delivery of this Supplemental Indenture.
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which the Notes are, and are to be, authenticated, issued and delivered, and in
consideration of the premises and of the purchase and acceptance of the Notes by the Holders thereof, the Company and the Guarantors covenant and agree with the Trustee for the equal and proportionate benefit of the respective Holders from time to
time of the Notes (except as otherwise provided below), as follows:
ARTICLE 1
DEFINITIONS
Section 1.01.
Definitions
. For all purposes of the Indenture, except as otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Section 1.01 shall have the respective meanings assigned to them in this Section 1.01 and include the
plural as well as the singular and, to the extent applicable, supersede the definitions thereof in the Base Indenture;
- 1 -
(b) all words, terms and phrases defined in the Base Indenture (but not otherwise defined herein)
shall have the same meanings as in the Base Indenture; and
(c) the words “herein,” “hereof” and “hereunder”
and other words of similar import (i) when used with regard to any specified Article, Section or subdivision, refer to such Article, Section or subdivision of this Supplemental Indenture and (ii) otherwise, refer to this Supplemental
Indenture as a whole and not to any particular Article, Section or subdivision.
“
Additional
Amounts
” shall have the meaning specified in Section 4.03.
“
Additional Shares
” shall have the
meaning specified in Section 8.03(a).
“
Agent
” means any Security Registrar, Paying Agent, Notice Agent, Exchange
Agent or Bid Solicitation Agent.
“
Applicable Law
” shall have the meaning specified in Section 12.11.
“
Applicable Taxes
” shall have the meaning specified in Section 4.03.
“
Authorized Denomination
” means, with respect to a Note, a principal amount thereof equal to $1,000 or any integral
multiple of $1,000 in excess thereof.
“
Averaging Period
” shall have the meaning specified in Section 8.04(e).
“
Bankruptcy Law
” means Title 11, United States Code, or any similar U.S. federal or state or non-U.S. law for the
relief of debtors.
“
Base Indenture
” shall have the meaning specified in the first paragraph of the recitals of
this Supplemental Indenture.
“
Bid Solicitation Agent
” means the Person appointed by the Company to solicit bids
for the Trading Price of the Notes in accordance with Section 8.01(b)(ii). The Company shall act as the initial Bid Solicitation Agent but may appoint any other Person to act as Bid Solicitation Agent without prior notice.
“
Business Day
” means any day other than a Saturday, a Sunday or a day on which the Federal Reserve Bank of New York
is, or banks in a place of payment are, authorized or required by law or executive order to close or be closed.
“
Cash
Settlement
” shall have the meaning specified in Section 8.02(a).
“
Close of Business
” means 5:00 p.m.
(New York City time).
“
Code
” means the U.S. Internal Revenue Code of 1986, as amended.
“
Combination Settlement
” shall have the meaning specified in Section 8.02(a).
“
Common Equity
” of any Person means Capital Stock of such Person that is generally entitled (a) to vote in the
election of directors of such Person or (b) if such Person is not a corporation, to vote or otherwise participate in the selection of the governing body, partners, managers or others that will control the management or policies of such Person.
- 2 -
“
Company
” shall have the meaning specified in the first
paragraph of this Supplemental Indenture, and subject to Article 7, shall include its successors and assigns.
“
Corporate Trust Office
” means, with respect to the Notes, the office of the Trustee at which at any
time its corporate trust business shall be administered, which office at the date hereof is located at 60 Wall Street, MS NYC60-1630, New York, New York 10005, Attn: Corporates Team - Weatherford International or such other address as the Trustee
may designate from time to time by notice to the Holders and the Company, or the principal corporate trust office of any successor Trustee (or such other address as such successor Trustee may designate from time to time by notice to the Holders and
the Company).
“
Daily Exchange Value
” means, with respect to any VWAP Trading Day, one-fortieth
(1/40th) of the product of (1) the Exchange Rate on such VWAP Trading Day and (2) the Daily VWAP per Ordinary Share on such VWAP Trading Day.
“
Daily Maximum Cash Amount
” means, with respect to any Exchange of Notes. the quotient obtained by dividing
(a) the applicable Specified Dollar Amount (if any), by (b) forty (40).
“
Daily Settlement Amount
,”
means, with respect to any VWAP Trading Day:
(a) cash in an amount equal to the lesser of (i) the Daily Maximum Cash
Amount and (ii) the Daily Exchange Value on such VWAP Trading Day; and
(b) if such Daily Exchange Value exceeds such
Daily Maximum Cash Amount, a number of Ordinary Shares equal to the quotient obtained by dividing (i) the excess of such Daily Exchange Value over such Daily Maximum Cash Amount by (ii) the Daily VWAP for such VWAP Trading Day.
“
Daily VWAP
” means, for any VWAP Trading Day, the per share volume-weighted average price of the Ordinary Shares as
displayed under the heading “Bloomberg VWAP” on Bloomberg page “WFT <equity> AQR” (or its equivalent successor if such page is not available) in respect of the period from the scheduled open of trading until the scheduled
close of trading of the primary trading session on such VWAP Trading Day (or if such volume-weighted average price is unavailable, the market value of one (1) share of the Company’s Ordinary Shares on such VWAP Trading Day determined,
using a volume-weighted average method, by a nationally recognized independent investment banking firm retained for this purpose by the Company, which may include any of the underwriters). The “Daily VWAP” shall be determined without
regard to after-hours trading or any other trading outside of the regular trading session trading hours.
“
Default
” means any event that is (or, after notice, passage of time or both, would be) an Event of
Default.
- 3 -
“
Default Settlement Method
” means Combination Settlement
with a Specified Dollar Amount of $1,000 per $1,000 principal amount of Notes;
provided
,
however
, that the Company may, from time to time, change the Default Settlement Method by
sending notice of the new Default Settlement Method to the Holders, the Trustee and the Exchange Agent.
“
Depositary Procedures
” means, with respect to any exchange, transfer, exchange or transaction involving
a Global Note or any beneficial interest therein, the rules and procedures of the Depositary applicable to such transfer, exchange or transaction.
“
Distributed Property
” shall have the meaning specified in Section 8.04(c).
“
Effective Date
” means the first date on which Ordinary Shares trade on the applicable exchange or in
the applicable market, regular way, reflecting the relevant share subdivision or share consolidation, as applicable.
“
Exchange Act
” means the Securities Exchange Act of 1935, as amended, and the rules and regulations
promulgated thereunder.
“
Event of Default
” shall have the meaning specified in
Section 5.02.
“
Exchange Agent
” means the office or agency maintained by the Company
where the Notes may be surrendered for exchange. The Trustee shall act as the initial Exchange Agent.
“
Exchange Consideration
” has the meaning specified in Section 8.02(b).
“
Exchange Date
” shall have the meaning specified in Section 8.02(d).
“
Exchange Obligation
” shall have the meaning specified in Section 8.01(a).
“
Exchange Price
” means as of any time, $1,000,
divided by
the
Exchange Rate as of such time.
“
Exchange Rate
” shall have the meaning specified in
Section 8.01(a).
“
Exchange Settlement Date
” means the date the Company is required to
deliver the Exchange Consideration due upon the exchange of a Note.
“
Ex-Dividend
Date
” means the first date on which Ordinary Shares trade on the applicable exchange or in the applicable market, regular way, without the right to receive the issuance, dividend or distribution in question, from the Parent or, if
applicable, from the seller of Ordinary Shares on such exchange or market (in the form of due bills or otherwise) as determined by such exchange or market.
“
Expiration Date
” shall have the meaning specified in Section 8.04(e).
“
Expiration Time
” shall have the meaning specified in Section 8.04(e).
“
Fundamental Change
” shall be deemed to have occurred at the time after the Notes are originally issued
if any of the following occurs:
- 4 -
(a) the Ordinary Shares or other common equity securities into which the Notes
are exchangeable cease to be listed for trading on any of The New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or any of their respective successors);
(b) a “person” or “group” within the meaning of Section 13(d) of the Exchange Act, other than the
Parent, the Company or their respective Wholly Owned Subsidiaries, files a Schedule TO or any schedule, form or report under the Exchange Act disclosing that such person or group has become the direct or indirect “beneficial owner,” as
defined in Rule 13d-3 under the Exchange Act, of the Parent’s Common Equity representing more than fifty percent (50%) of the voting power of the Parent’s Common Equity;
(c) the consummation of (i) any sale, lease or other transfer of the consolidated assets of the Parent’s and the
Parent’s subsidiaries, substantially as an entirety, to any Person (other than the Company); or (ii) any transaction or series of related transactions in connection with which (whether by means of a liquidation, share exchange, tender
offer, consolidation, recapitalization, reclassification, amalgamation or merger of the Parent or otherwise) all or substantially all of the Ordinary Shares are exchanged for, converted into or constitute solely the right to receive cash, other
securities or other property, except that a transaction or event described in this clause (ii) pursuant to which the Persons that directly or indirectly “beneficially owned” (as defined above) all classes of the Parent’s Common
Equity immediately before such transaction directly or indirectly “beneficially own” (as defined above), immediately after such transaction or event, more than 50% of all classes of Common Equity of the surviving, continuing or acquiring
company or other transferee (or the parent thereof) in substantially the same proportions vis-à-vis each other as immediately before such transaction or event will be deemed not to be a fundamental change pursuant to this clause (c); or
(d) the stockholders of the Parent approve any plan or proposal for the liquidation or dissolution of the Parent;
provided
,
however
, that a transaction or transactions described in clause (a) or (b) above shall not constitute a Fundamental Change, if at
least ninety percent (90%) of the consideration received or to be received by the holders of Ordinary Shares (excluding cash payments for fractional shares or pursuant to dissenter’s rights) in connection with such transaction or
transactions consists of shares of common equity listed (or depositary receipts representing shares of common equity, which depositary receipts are listed) on any of The New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global
Market (or any of their respective successors) or will be so listed or when issued or exchanged in connection with such transaction or transactions, and such transaction or event constitutes an Ordinary Share Change Event whose Reference Property
consists of such consideration.
“
Fundamental Change Repurchase Date
” means the date fixed for the
repurchase of any Notes by the Company pursuant to a Repurchase Upon Fundamental Change.
- 5 -
“
Fundamental Change Repurchase Notice
” shall have the
meaning specified in Section 9.01(d).
“
Fundamental Change Repurchase Price
” means the
cash price payable by the Company to repurchase any Note upon its Repurchase Upon Fundamental Change, calculated pursuant to Section 9.01(b).
“
Fundamental Change Repurchase Right
” shall have the meaning specified in Section 9.01(a).
“
Global Note
” means any Note that is a Global Security.
“
Guarantee
” means the guarantee by each Guarantor of the Company’s obligations under the Indenture
and the Notes pursuant to Article 11.
“
Guaranteed Obligations
” shall have the meaning
specified in Section 11.02(a).
“
Guarantor
” means the Persons named as such in the
first paragraph of this Supplemental Indenture and, subject to Article 7, successors and assigns of such Persons. For the avoidance of doubt, the Guarantors (as defined herein) will, subject to Article 7, be the sole “Guarantors” (as
defined in the Base Indenture) for purposes of the Notes.
“
Holder
,” as used in this
Supplemental Indenture, means any Person in whose name at the time a particular Note is registered in the books of the Registrar.
“
Indenture
” shall have the meaning specified in the first paragraph of the recitals of this Supplemental
Indenture.
“
Interest Payment Date
” means each July 1 and January 1 of each
year, beginning on January 1, 2017.
“
Last Reported Sale Price
” of the Ordinary Shares on any
Trading Day means the closing sale price per share (or if no closing sale price is reported, the average of the last bid and last ask prices or, if more than one in either case, the average of the average last bid and the average last ask prices) on
that Trading Day as reported in composite transactions for the principal U.S. national or regional securities exchange on which the Ordinary Shares are traded. If the Ordinary Shares are not listed for trading on a U.S. national or regional
securities exchange on the relevant Trading Day, the “Last Reported Sale Price” will be the last quoted bid price for the Ordinary Shares in the over-the-counter market on such Trading Day as reported by OTC Markets Group Inc. or a similar
organization. If the Ordinary Shares are not so quoted, the “Last Reported Sale Price” will be the average of the mid-point of the last bid and last ask prices for the Ordinary Shares on such Trading Day from a nationally recognized
independent investment banking firm selected by the Company for this purpose, which may include one of the underwriters. Any such determination will be conclusive absent manifest error.
“
Make-Whole Fundamental Change
” means (x) a Fundamental Change (determined after giving effect to
the proviso immediately after clause (d) of the definition thereof, but without regard to the exclusion in clause (c) of the definition thereof) or (y) the Company providing a Redemption Notice pursuant to Section 10.03.
- 6 -
“
Make-Whole Fundamental Change Effective Date
” means (a) with
respect to a Make-Whole Fundamental Change pursuant to clause (x) of the definition thereof, the date on which such Make-Whole Fundamental Change occurs or becomes effective; and (b) with respect to a Make-Whole Fundamental Change pursuant
to clause (y) of the definition thereof, the applicable Redemption Notice Date.
“
Make-Whole Fundamental Change Exchange
Period
” means:
(a) in the case of a Make-Whole Fundamental Change pursuant to clause (x) of the
definition thereof, the period from, and including, the Make-Whole Fundamental Change Effective Date of such Make-Whole Fundamental Change to, and including, the thirty fifth (35th) Trading Day after such Make-Whole Fundamental Change Effective
Date (or, if such Make-Whole Fundamental Change also constitutes a Fundamental Change, to, but excluding, the related Fundamental Change Repurchase Date); and
(b) in the case of a Make-Whole Fundamental Change pursuant to clause y) of the definition thereof, the period from, and
including, the Redemption Notice Date for the related Redemption to, and including, the Business Day immediately before the related Redemption Date.
“
Market Disruption Event
” means, if the Ordinary Shares are listed for trading on the New York Stock Exchange, or
listed on another U.S. national or regional securities exchange, the occurrence or existence during the one-half hour period ending on the scheduled close of trading on any Trading Day of any material suspension or limitation imposed on trading (by
reason of movements in price exceeding limits permitted by the stock exchange or otherwise) in the Ordinary Shares or in any options, contracts or futures contracts relating to the Ordinary Shares.
“
Maturity Date
” means July 1, 2021.
“
Measurement Period
” shall have the meaning specified in Section 8.01(b)(ii).
“
Notes
” shall have the meaning specified in the third paragraph of the recitals of this Supplemental
Indenture.
“
Notice of Exchange
” shall have the meaning specified in Section
8.02(c).
“
Observation Period
” with respect to any Note surrendered for exchange
means: (a) subject to clause (b) below, if the Exchange Date for such Note occurs prior to January 1, 2021, the forty (40) consecutive VWAP Trading Days beginning on, and including, the second (2nd) VWAP Trading Day
immediately succeeding such Exchange Date; (b) if the relevant Exchange Date occurs on or after the date of the Company’s issuance of a Redemption Notice with respect to the Notes pursuant to Section 10.03 and prior to the relevant
Redemption Date, the forty (40) consecutive VWAP Trading Days beginning on, and including, the forty-second (42nd) Scheduled Trading Day immediately preceding such Redemption Date; and (c) subject to clause
- 7 -
(b) above, if the relevant Exchange Date occurs on or after January 1, 2021, the forty (40) consecutive VWAP Trading Days beginning on, and including, the forty-second
(42nd) Scheduled Trading Day immediately preceding the Maturity Date.
“
Open of Business
” means
9:00 a.m. (New York City time).
“
Ordinary Share Change Event
” shall have the meaning specified in
Section 8.06(a).
“
Ordinary Shares
” means the ordinary shares of the Parent, par value $0.001
per share, subject to Section 8.06.
“
Parent
” shall have the meaning specified in the
first paragraph of this Supplemental Indenture, and subject to Article 7, shall include its successors and assigns.
“
Physical Note
” means any Note that is not a Global Note.
“
Physical Settlement
” shall have the meaning specified in Section 8.02(a).
“
Redemption
” shall have the meaning specified in Section 10.02.
“
Redemption Date
” shall have the meaning specified in Section 10.03.
“
Redemption Notice
” shall have the meaning specified in Section 10.03.
“
Redemption Price
” means, for any Note to be redeemed pursuant to Section 10.01, one hundred percent
(100%) of the principal amount of such Note,
plus
accrued and unpaid interest on such Note, to, but excluding, the Redemption Date (unless the Redemption Date falls after a Regular Record Date but on or prior to the immediately
succeeding Interest Payment Date, in which case (a) the Holder of such Note at the Close of Business on such Regular Record Date will be entitled, notwithstanding such Redemption, to receive, on such Redemption Date, the unpaid interest that
would have accrued on such Note to, but excluding, such Interest Payment Date and (b) the Redemption Price will not include accrued and unpaid interest on such Note to, but excluding, such Redemption Date).
“
Reference Property
” shall have the meaning specified in Section 8.06(a).
“
Reference Property Unit
” shall have the meaning specified in Section 8.06(a).
“
Regular Record Date
” means (a) with respect to an Interest Payment Date falling on July 1,
the immediately preceding June 15; and (b) with respect to an Interest Payment Date falling on January 1, the immediately preceding December 15.
“
Relevant Taxing Jurisdiction
” shall have the meaning specified in Section 4.03.
“
Reporting Event of Default
” shall have the meaning specified in Section 5.13(a).
“
Scheduled Trading Day
” means a day that is scheduled to be a Trading Day on the principal U.S. national or regional
securities exchange on which the Ordinary Shares are listed or admitted for trading. If the Ordinary Shares are not so listed or admitted for trading, “Scheduled Trading Day” means a Business Day.
- 8 -
“
Settlement Method
” means, with respect to any exchange of
Notes, Physical Settlement, Cash Settlement or Combination Settlement.
“
Significant
Subsidiary
” means a Subsidiary that meets the definition of “significant subsidiary” in Article 1, Rule 1-02 of Regulation S-X under the Exchange Act;
provided
,
however
, that, in the case of a Subsidiary that meets the criteria of clause (3) of the definition thereof but not clause (1) or (2) thereof, such Subsidiary shall not be deemed to be a Significant
Subsidiary unless the Subsidiary’s income (or loss) from continuing operations before income taxes, extraordinary items and cumulative effect of a change in accounting principles exclusively of amounts attributable to any non-controlling
interest for the last completed fiscal year prior to the date of such determination exceeds one hundred million dollars ($100,000,000).
“
Special Interest
” means any interest that accrues on any Note pursuant to Section 5.13.
“
Specified Dollar Amount
” means, with respect to the exchange of any Note to which
Combination Settlement applies, the maximum cash amount per $1,000 principal amount of Notes (excluding cash, if any, to be paid in lieu of any fractional shares) to be deliverable upon such exchange, as specified by the Company in its notice of the
Settlement Method applicable to such exchange or as otherwise deemed to apply to such exchange as described above.
“
Spin-Off
” shall have the meaning specified in Section 8.04(c).
“
Stock Price
” means, for any Make-Whole Fundamental Change: (a) if the holders of Ordinary Shares
receive only cash in consideration for their Ordinary Shares in such Make-Whole Fundamental Change and such Make-Whole Fundamental Change is pursuant to clause (c) of the definition of “Fundamental Change,” then the Stock Price is the
amount of cash paid per Ordinary Share in such Make-Whole Fundamental Change; and (b) in all other cases, the Stock Price is the average of the Last Reported Sale Prices per Ordinary Share for the five (5) consecutive Trading Days ending
on, and including, the Trading Day immediately before the Make-Whole Fundamental Change Effective Date of such Make-Whole Fundamental Change.
“
Successor Company
” shall have the meaning specified in Section 7.02(a).
“
Supplemental Indenture
” shall have the meaning specified in the first paragraph of this Supplemental
Indenture.
“
Swiss Financial Institution
” shall have the meaning specified in Section
4.03(c).
“
Tender/Exchange Offer Valuation Period
” shall have the meaning specified in
Section 8.04(e).
“
Trading Day
” means a day on which (a) trading in the Ordinary Shares (or
other security for which a Last Reported Sale Price must be determined) generally occurs on The New York Stock Exchange or, if the Ordinary Shares (or such other security) are not then listed on The New York Stock Exchange, on the principal other
U.S. national or regional securities
- 9 -
exchange on which the Ordinary Shares (or such other security) are then listed or, if the Ordinary Shares (or such other security) are not then listed on a U.S. national or regional securities
exchange, on the principal other market on which the Ordinary Shares (or such other security) are then traded; and (b) there is no Market Disruption Event,
provided
,
however
, that if the Ordinary Shares (or such other security)
are not so listed or traded, “Trading Day” means a Business Day.
“
Trading Price
” of the Notes on any
Trading Day means the average of the secondary market bid quotations, expressed as a cash amount per $1,000 principal amount of Notes, obtained by the Bid Solicitation Agent for one million dollars ($1,000,000) in principal amount of Notes at
approximately 3:30 p.m., New York City time, on such Trading Day from three (3) nationally recognized independent securities dealers selected by the Company, which may include any of the underwriters;
provided
,
however
, that, if
three (3) such bids cannot reasonably be obtained by the Bid Solicitation Agent but two (2) such bids are obtained, then the average of the two (2) bids will be used, and if only one (1) such bid can reasonably be obtained by the
Bid Solicitation Agent, then that one (1) bid will be used. If, on any Trading Day, (a) the Bid Solicitation Agent cannot reasonably obtain at least one (1) bid for one million dollars ($1,000,000) in principal amount of Notes from a
nationally recognized independent securities dealer; (b) the Company is not acting as the Bid Solicitation Agent and the Company fails to instruct the Bid Solicitation Agent to obtain bids when required; or (c) the Bid Solicitation Agent
fails to solicit bids when required, then, in each case, the Trading Price per $1,000 principal amount of Notes on such Trading Day will be deemed to be less than ninety eight percent (98%) of the product of the Last Reported Sale Price per
Ordinary Share on such Trading Day and the Exchange Rate on such Trading Day.
“
Trading Price
Condition
” shall have the meaning specified in Section 8.01(b)(ii).
“
Transfer
Taxes
” shall have the meaning specified in Section 4.03(d).
“
Valuation
Period
” shall have the meaning specified in Section 8.04(c).
“
VWAP Market Disruption
Event
” means, with respect to any date, (a) the failure by the principal U.S. national or regional securities exchange on which the Ordinary Shares are then listed, or, if the Ordinary Shares are not then listed on a U.S. national
or regional securities exchange, the principal other market on which the Ordinary Shares are then traded, to open for trading during its regular trading session on such date; or (b) the occurrence or existence, for more than one half hour
period in the aggregate, of any suspension or limitation imposed on trading (by reason of movements in price exceeding limits permitted by the relevant exchange or otherwise) in the Ordinary Shares or in any options, contracts or future contracts
relating to the Ordinary Shares, and such suspension or limitation occurs or exists at any time before 1:00 p.m., New York City time, on such date.
“
VWAP Trading Day
” means a day on which (a) there is no VWAP Market Disruption Event; and (b) trading in the
Ordinary Shares generally occurs on the New York Stock Exchange or, if the Ordinary Shares are not then listed on the New York Stock Exchange, or the principal other U.S., national or regional securities exchange on which the Ordinary Shares are
then listed or, if the Ordinary Shares are not then listed on a U.S. national or regional securities exchange, on the principal other market on which the Ordinary Shares are then traded. If the Ordinary Shares are not so listed or traded, then
“VWAP Trading Day” means a Business Day.
- 10 -
Section 1.02.
References to Interest
. Unless the context otherwise requires, any
reference to interest on, or in respect of, any Note in the Indenture shall be deemed to include Special Interest if, in such context, Special Interest is, was or would be payable pursuant to Section 5.13. Unless the context otherwise requires,
any express mention of Special Interest in any provision hereof shall not be construed as excluding Special Interest in those provisions hereof where such express mention is not made.
ARTICLE 2
ISSUE, DESCRIPTION,
EXECUTION, REGISTRATION AND EXCHANGE OF NOTES
Section 2.01.
Scope of Supplemental Indenture
. This Supplemental Indenture
amends and supplements the provisions of the Base Indenture, to which provisions reference is hereby made. The changes, modifications and supplements to the Base Indenture effected by this Supplemental Indenture shall be applicable only with respect
to, and shall only govern the terms of, the Notes, which may be issued from time to time in accordance herewith, and shall not apply to any other Securities that may be issued under the Base Indenture unless a supplemental indenture with respect to
such other Securities specifically incorporates such changes, modifications and supplements. With respect to the Notes, the provisions of this Supplemental Indenture shall supersede any conflicting provisions in the Base Indenture.
Section 2.02.
Designation and Amount
. The Notes shall be designated as the “5.875% Exchangeable Senior Notes due 2021.”
The aggregate principal amount of Notes that may be authenticated and delivered under the Indenture is initially limited to one billion two hundred sixty five million dollars ($1,265,000,000), subject to Section 2.07 and except for Notes
authenticated and delivered upon registration or transfer of, or in exchange for, or in lieu of other Notes pursuant to Section 3.4, Section 3.5 or Section 3.6 of the Base Indenture or pursuant to any provision of the Indenture that
provides for the issuance and authentication of any Notes representing any un-exchanged, un-repurchased or un-redeemed portion of any Note to be exchanged pursuant to Article 8, repurchased pursuant to Article 9 or redeemed pursuant to Article 10.
Section 2.03.
Form of Notes
.
The Notes and the Trustee’s certificate of authentication to be borne by such Notes
shall be substantially in the respective forms set forth in
Exhibit A
, the terms and provisions of which shall constitute, and are hereby expressly incorporated in and made a part of the Indenture. To the extent applicable, the Company and
the Trustee, by their execution and delivery of the Indenture, expressly agree to such terms and provisions and to be bound thereby.
Section 2.04.
The Depositary
. The Depository Trust Company shall be the initial Depositary of the Notes.
Section 2.05.
Date and Denomination of Notes
;
Payments of Interest
. (a) The Notes shall be issuable in registered form
without coupons only in Authorized Denominations. Each Note shall be dated the date of its authentication and shall bear interest from the date specified on
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the face of such Note. Accrued interest on the Notes shall be computed on the basis of a 360-day year composed of twelve 30-day months and, for partial months, on the basis of actual days elapsed
over a 30-day month.
(b) The person in whose name any Note is registered on the books of the Registrar at the Close of Business on any
Regular Record Date with respect to any Interest Payment Date shall be entitled to receive the interest payable on such Interest Payment Date. Interest shall be payable at the office or agency of the Company maintained by the Company for such
purposes, which shall initially be the Corporate Trust Office. The Company shall maintain a Paying Agent and Registrar, which may be changed by the Company without prior notice to the Holders, in a jurisdiction that is not obliged 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 shall pay, or cause to be paid interest (i) on any Physical Note by check mailed to the Holder of Such Physical Note and (ii) on any Note that is a Global Note by wire
transfer of immediately available funds to the account of the Depositary or its nominee.
Section 2.06.
Cancellation of Notes
Exchanged
. For purposes of the Notes, “, exchange” shall be deemed to be inserted after the term “redemption” in Section 3.9 of the Base Indenture.
Section 2.07.
Additional Notes; Repurchases
. Notwithstanding anything in the Indenture or the Notes to the contrary, the Company
may, without the consent of the Holders, issue Additional Notes hereunder with the same terms and with the same CUSIP as the Notes initially issued hereunder (other than differences in the issue price and the date from which interest will accrue) in
an unlimited aggregate principal amount;
provided
,
however
, that if any such additional Notes are not fungible with the Notes initially issued hereunder for U.S. federal income tax purposes, such additional Notes shall have a separate
CUSIP number. Prior to the issuance of any such additional Notes, the Company shall deliver to the Trustee a Company Order, an Officer’s Certificate and an Opinion of Counsel, as the Trustee shall reasonably request. In addition, the Company
and any Guarantor may, to the extent permitted by law, and directly or indirectly (regardless of whether such Notes are surrendered to the Company), repurchase Notes in the open market or otherwise, whether by the Company or its Subsidiaries or
through a private repurchase or exchange or a public tender or exchange offer or through counterparties to private agreements, including by cash-settled swaps or other derivatives. The Company or such Guarantor, as applicable, shall cause any Notes
so repurchased (other than Notes repurchased pursuant to cash-settled swaps or other derivatives) to be surrendered to the Trustee for cancellation in accordance with Section 3.9 of the Base Indenture.
Section 2.08.
Outstanding Notes
.
(a)
Generally
. For purposes of the Notes, a Note is Outstanding only to the extent provided in this Section 2.08. The Notes that
are outstanding at any time will be deemed to be those Notes that, at such time, have been duly executed and authenticated, excluding those Notes (or portions thereof) that have theretofore been (i) cancelled by the Trustee or delivered to the
Trustee for cancellation; (ii) assigned a principal amount of zero by notation on the “Schedule of Exchanges of Notes” forming part of any a Global Note representing such Note; (iii) paid in full in accordance with the Indenture;
or (iv) deemed to cease to be outstanding to the extent provided in, and subject to, clause (b), (c) or (d) of this Section 2.08.
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(b)
Replaced Notes
. If a Note is replaced pursuant to Section 3.6 of the Base
Indenture, then such Note will cease to be outstanding at the time of its replacement, unless the Trustee and the Company receive proof reasonably satisfactory to them that such Note is held by a “
bona fide
purchaser” under
applicable law.
(c)
Maturing Notes and Notes Called for Redemption or Subject to Repurchase
. If, on a Redemption
Date, a Fundamental Change Repurchase Date or the Maturity Date, the Trustee or the Paying Agent holds money sufficient to pay the aggregate Redemption Price, Fundamental Change Repurchase Price or principal amount, respectively, together, in each
case, with the aggregate interest, in each case due on such date, then (unless there occurs a Default in the payment of any such amount) (i) the Notes (or portions thereof) to be redeemed or repurchased, or that mature, on such date will be
deemed, as of such date, to cease to be outstanding, except to the extent provided in the proviso to Section 9.01(b), in the proviso to the definition of Redemption Price or in Section 8.02(i); and (ii) the rights of the Holders of
such Notes (or such portions thereof), as such, will terminate with respect to such Notes (or such portions thereof), other than the right to receive the Redemption Price, Fundamental Change Repurchase Price or principal amount, as applicable, of,
and accrued and unpaid interest on, such Notes (or such portions thereof), in each case as provided in the Indenture.
(d)
Notes to Be Converted
. At the Close of Business on the Exchange Date for any Note (or any portion thereof) to be exchanged, such Note (or such portion) will (unless there occurs a Default in the delivery of the Exchange Consideration or
interest due, pursuant to Section 8.02(b) or Section 8.02(i), upon such exchange) be deemed to cease to be outstanding, except to the extent provided in Section 8.02(i).
(e)
Cessation of Accrual of Interest
. Except as provided in the proviso to Section 9.01(b), in the proviso to the definition of
Redemption Price or in Section 8.02(i), interest will cease to accrue on each Note from, and including, the date that such Note is deemed, pursuant to this Section 2.08, to cease to be outstanding, unless there occurs a default in the
payment or delivery of any cash or other property due on such Note.
ARTICLE 3
SATISFACTION AND DISCHARGE
Section 3.01.
Satisfaction and Discharge
. For purposes of the Notes, this Section 3.01 shall replace in its entirety Article
Four of the Base Indenture, and all references in the Base Indenture to Article Four thereof and the provisions therein, as the case may be, shall, with respect to the Notes, be deemed to be references to this Section 3.01 and the applicable
provisions set forth in this Section 3.01, respectively. The Indenture shall, upon request of the Company contained in an Officer’s Certificate, cease to be of further effect with respect to the Notes, and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and discharge of the Indenture with respect to the Notes, when (a) (i) all Notes theretofore authenticated and delivered (other than (x) Notes which have been
destroyed, lost or stolen and which have been replaced or paid as provided in Section 3.6 of the
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Base Indenture and (y) Notes for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged
from such trust) have been delivered to the Trustee for cancellation; or (ii) the Company has deposited with the Trustee or delivered to Holders, as applicable, after the Notes have become due and payable, whether on the Maturity Date, any
Redemption Date, any Fundamental Change Repurchase Date, upon exchange or otherwise, cash (or, with respect to Notes to be exchanged, the Exchange Consideration due upon such exchange) sufficient to pay all of the outstanding Notes and all other
sums due and payable, with respect to the Notes (including, without limitation sums due to the Trustee with respect to the Notes), under the Indenture by the Company; and (b) the Company has delivered to the Trustee an Officer’s
Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of the Indenture have been complied with. Notwithstanding the satisfaction and discharge of the
Indenture, the obligations of the Company to the Trustee under Section 6.7 of the Base Indenture shall survive.
Section 3.02.
No Defeasance
. Article Thirteen of the Base Indenture shall not apply to the Notes.
ARTICLE 4
PARTICULAR COVENANTS OF THE COMPANY
Section 4.01.
Reports
. (a) For purposes of the Notes, this Section 4.01 shall replace in its entirety Section 7.4
of the Base Indenture, and all references in the Base Indenture to Section 7.4 thereof and the provisions therein, as the case may be, shall, with respect to the Notes, be deemed to be references to this Section 4.01 and the applicable
provisions set forth in this Section 4.01. The Company shall provide to Holders, within fifteen (15) days after the same are required to be filed with the Commission, copies of any documents or reports that the Parent is required to file
with the Commission pursuant to Section 13(a) or 15(d) of the Exchange Act (after giving effect to any grace period provided by Rule 12b-25 under the Exchange Act or any successor thereto). Any such document or report that the Parent files with
the Commission via the Commission’s EDGAR system (or any successor thereto) shall be deemed to be sent to the Holders for purposes of this Section 4.01 at the time such documents are filed via the EDGAR system. Notwithstanding anything to
the contrary, the Company shall in no event be required to provide to any Holder any information for which the Parent is seeking in good faith and has not been denied, or has received, confidential treatment from the Commission.
(b) Delivery of the reports and documents described in subsection Section 4.01 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 compliance with any of its covenants hereunder (as to which
the Trustee is entitled to conclusively rely on an Officer’s Certificate). The Trustee shall have no duty or responsibility to monitor the filing by the Company of any reports via the Commission’s EDGAR system (or any successor thereto) or
to determine whether such filings have been made.
Section 4.02.
Compliance Certificate
;
Statements as to Defaults
.
Section 10.7 of the Base Indenture shall not apply to the Notes. The Company shall be required to deliver to the
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Trustee, within one hundred and twenty (120) days after the end of each of its fiscal years, an Officer’s Certificate indicating whether the signers thereof know of any Default with
respect to the Notes that occurred during such fiscal year.
Section 4.03.
Additional Amounts
. For purposes of the Notes, this
Section 4.03 shall replace in its entirety Section 10.9 of the Base Indenture, and all references in the Base Indenture to Section 10.9 thereof and the provisions therein, as the case may be, shall, with respect to the Notes, be
deemed to be references to this Section 4.03 and the applicable provisions set forth in this Section 4.03, respectively. All payments and deliveries made by or on behalf of the Company or any Guarantor, or any successor to the Company or
any Guarantor, under or with respect to the Notes, including, but not limited to, payments of principal and interest and deliveries of Ordinary Shares (together with payments of cash for any fractional Ordinary Shares) upon exchange and any payments
under the Guarantees will be made without withholding or deduction for, or on account of, any present or future taxes, duties, imposts, assessments or governmental charges of whatever nature imposed or levied (including any penalties and interest
related thereto) (“
Applicable Taxes
”) by or within (x) Ireland (meaning Ireland exclusive of Northern Ireland) or Bermuda (or any political subdivision or taxing authority thereof or therein); (y) any jurisdiction
in which the Company, any Guarantor or any of their respective successors is, for tax purposes, incorporated, organized or resident, or, as a result of activities carried on by the Company, any Guarantor or any successor has otherwise created a
taxable presence (or any political subdivision or taxing authority thereof or therein); or (z) any jurisdiction (or any political subdivision or taxing authority thereof or therein) from or through which payment is made by or on behalf of the
Company or any Guarantor (including the jurisdiction of any Paying Agent) (each jurisdiction described in clause (x), (y) or (z), as applicable, a “
Relevant Taxing Jurisdiction
”), unless such withholding or deduction is
required by law or by the interpretation or administration thereof. In the event that any such withholding or deduction is so required, the Company or the Guarantors, as applicable, will pay such additional amounts (the “
Additional
Amounts
”) as may be necessary to ensure that the net amount received by the beneficial owners of the Notes after such withholding or deduction (and after deducting any Applicable Taxes on the Additional Amounts) will equal the amounts
that would have been received by such holder had no such withholding or deduction been required;
provided
that no Additional Amounts will be payable:
(a) for or on account of:
(i) any Applicable Taxes that would not have been imposed but for:
(A) the existence of any present or former connection between the relevant Holder (or a fiduciary, settlor, beneficiary,
member, partner or shareholder of, or possessor of power over, the relevant Holder, if the relevant Holder is an estate, nominee, trust, partnership, limited liability company or corporation) or beneficial owner of such Note and the Relevant Taxing
Jurisdiction (other than merely acquiring or holding such Note or the receipt of payments or the exercise or enforcement of rights under the Notes or the Guarantees) including, without limitation, such Holder or beneficial owner being or having been
a national, domiciliary or resident of, or incorporated in, such Relevant Taxing Jurisdiction or treated as a resident thereof or being or having been physically present or engaged in a trade or business therein or having or having had a permanent
establishment therein;
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(B) the presentation of such Note (in cases in which presentation is required)
more than thirty (30) days after the later of the date on which the payment on, or deliveries of Ordinary Shares upon exchange of, such Note became due and payable pursuant to the terms thereof or was made or duly provided for (except to the
extent that the Holder or beneficial owner would have been entitled to Additional Amounts had the note been presented on the last day of such thirty (30) day period); or
(C) the failure of the Holder or beneficial owner to provide a declaration of non-residence or other similar claim or
certification concerning nationality, residency or identity or other similar form for exemption or to present any applicable form or certificate that is required or imposed by statute, treaty, regulation or administrative practice, in each case,
within a reasonable period of time following a timely and reasonable written request from the Company;
provided
,
however
, that the Holder or beneficial owner is legally entitled to provide such declaration, claim form or certificate
and that upon the making of such declaration or claim or presentation of such form or certificate, the Holder or beneficial owner would have been able to avoid such deduction or withholding;
(ii) any estate, inheritance, gift, sale, transfer, personal property or similar Applicable Taxes;
(iii) any Applicable Taxes that are payable otherwise than by withholding or deduction from payments under or with respect to
the notes or the guarantees;
(iv) any tax imposed on a payment to an individual and required to be made pursuant to
European Council Directive 2003/48/EC on the taxation of savings income or any law implementing or complying with, or introduced in order to conform to, such directive;
(v) any taxes payable by or on behalf of a Holder who would have been able to avoid such withholding or deduction by presenting
the Notes or request for payment under the Guarantees to another Paying Agent designated by the Company pursuant to the Indenture; and
(vi) any combination of Applicable Taxes referred to in the preceding clauses (i), (ii), (iii), (iv) and (v);
(b) if the Holder is a fiduciary, partnership or person other than the sole beneficial owner of that payment, to the extent that the relevant
payment would be required under the laws of the Relevant Taxing Jurisdiction to be included for tax purposes in the income of a beneficiary or settlor with respect to the fiduciary, a member of that partnership or a beneficial owner who would not
have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner been the holder thereof;
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(c) any final withholding tax withheld by a Swiss bank or similar Swiss financial
institution (a “
Swiss Financial Institution
”) that is imposed with respect to a Holder of a Note through an account with a Swiss Financial Institution, to the extent that such withholding tax would not have been imposed, if
such Holder had not voluntarily opted for imposition of such withholding tax in lieu of certain disclosure that would otherwise be required under a bilateral tax cooperation agreement between Switzerland and the country in which the Holder is tax
resident; and
(d) any taxes imposed pursuant to Sections 1471 through 1474 of the Code and any amended or successor version
that is substantively comparable and not materially more onerous to comply with, any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code, or any law or
regulation implementing an intergovernmental agreement between a non-U.S. jurisdiction and the United States with respect to the foregoing.
In addition to the foregoing, the Company shall also pay and indemnify the Holder for any present or future stamp, issue, registration, value
added, court or documentary taxes, or any other excise or property taxes, charges or similar levies or taxes (including penalties, interest and any other reasonable expenses related thereto) which are levied by any Relevant Taxing Jurisdiction
(“
Transfer Taxes
”) on the execution, delivery, registration or enforcement of any of the Notes, the Indenture or any other document or instrument (other than the ordinary shares) referred to therein or the receipt of payments
with respect thereto (subject to the exclusions described above, other than the exclusion described in clause (a)(iii) above). For the avoidance of doubt, the indemnification provided in this paragraph shall not include any Transfer Taxes or stamp
duty arising from the transfer of Notes between Holders or in the ordinary course after the issue date (other than a transfer of Notes in exchange for Ordinary Shares in accordance with Article 8).
If, after the date of this Supplemental Indenture, the Company or any Guarantor becomes obligated to pay Additional Amounts with respect to
any payment under or with respect to the Notes, the Company shall deliver to the Trustee on a date that is at least thirty (30) days prior to the date of that payment (unless the obligation to pay Additional Amounts arises after the thirtieth
(30th) day prior to that payment date, in which case the Company 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 must also set forth any other information reasonably necessary to enable the Paying Agent or the Exchange Agent, as the case may be, to pay 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 will provide the Trustee with satisfactory documentation evidencing the payment of Additional Amounts.
The Company or the Guarantors, as appropriate, will make all withholdings and deductions required by law and will remit the full amount
deducted or withheld to the Relevant Tax Authority in accordance with applicable law. Upon request, the Company will provide to the Trustee an official receipt or, if official receipts are not obtainable, other satisfactory documentation evidencing
the payment of any Applicable Taxes so deducted or withheld. Upon written request, copies of those receipts or other documentation, as the case may be, will be made available by the trustee to the Holders of the Notes.
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Whenever there is mentioned in any context the delivery of Ordinary Shares (together with
payments of cash for any fractional Ordinary Shares) upon exchange of the Notes or the payment of interest on any Note or any other amount payable with respect to such Note, such mention shall be deemed to include payment of Additional Amounts
provided for in the Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
Section 4.04.
Applicability of Section 10.5 and Section 10.6 of the Base Indenture
. For purposes of the Notes,
Section 10.5 and Section 10.6 of the Base Indenture shall not apply.
ARTICLE 5
DEFAULTS AND REMEDIES
Section 5.01.
Applicability of Article Five of the Base Indenture
. For purposes of the Notes, this Article 5 shall replace in its
entirety Article Five of the Base Indenture, and all references in the Base Indenture to Article Five thereof and the provisions therein, as the case may be, shall, with respect to the Notes, be deemed to be references to this Article 5 and the
applicable provisions set forth in this Article 5, respectively;
provided
,
however
, that Section 5.15 of the Base Indenture will apply to the Notes.
Section 5.02.
Events of Default
. Each of the following events shall be an “
Event of Default
” with respect to the
Notes.
(a) the Company fails to pay or cause to be paid when due (whether at maturity, upon Redemption, Repurchase Upon Fundamental
Change or otherwise) the principal of, or the Redemption Price or Fundamental Change Repurchase Price for, any Note;
(b) the Company
fails to pay or cause to be paid an installment of interest, if any, on any of the Note when due and payable, which failure continues for a period of thirty (30) days after the date when due;
(c) the Company or the Guarantors, as applicable, fail to deliver when due the consideration deliverable upon exchange of the Notes and such
failure continues for ten (10) Business Days;
(d) failure by the Company or the Guarantors to comply with their respective
obligations under Article 7;
(e) failure by the Company to issue a Fundamental Change Company Notice in accordance with
Section 9.01(d), , or failure by the Company to issue notice of a Make-Whole Fundamental Change in accordance with Section 8.01(b)(iv) when due, and such failure is not cured within five (5) days after its occurrence;
(f) the Company or the Guarantors fail to perform or observe (or obtain a waiver with respect to) any term, covenant or agreement contained in
the Notes or the Indenture and not
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otherwise explicitly provided for in this Section 5.02 for a period of sixty (60) days after receipt by the Company of notice of such failure from the Trustee or by the Company and the
Trustee from the Holders of at least twenty five percent (25%) of the aggregate principal amount of the then outstanding Notes;
(g)
the Guarantee of any Guarantor ceases to be in full force and effect (except as contemplated by the terms of the Indenture) or is declared null and void in a judicial proceeding.
(h) the Company, any Guarantor, or any of their respective Significant Subsidiaries, pursuant to or within the meaning of any Bankruptcy Law,
either:
(i) commences a voluntary case or proceeding;
(ii) consents to the entry of an order for relief against it in an involuntary case or proceeding;
(iii) consents to the appointment of a custodian of it or for any substantial part of its property;
(iv) makes a general assignment for the benefit of its creditors;
(v) takes any comparable action under any foreign Bankruptcy Law; or
(vi) generally is not paying its debts as they become due; or
(i) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that either:
(i) is for relief against Company, any Guarantor, or any of their respective Significant Subsidiaries in an involuntary case or
proceeding;
(ii) appoints a custodian of the Company, any Guarantor, or any of their respective Significant Subsidiaries,
or for any substantial part of the property of the Company, any Guarantor, or any of their respective Significant Subsidiaries;
(iii) orders the winding up or liquidation of the Company, any Guarantor, or any of their respective Significant Subsidiaries;
or
(iv) grants any similar relief under any foreign Bankruptcy law,
and, in each case under this Section 5.02(i), such order or decree remains unstayed and in effect for at least sixty (60) days.
For the avoidance of doubt, the above definition of Event of Default shall, for purposes of the Notes, replace the definition of Event of
Default in the Base Indenture.
Section 5.03.
Acceleration; Rescission and Annulment
. Except as provided under
Section 5.13, if one or more Events of Default shall have occurred and be continuing (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be
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effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body), then, and in each and every
such case (other than an Event of Default pursuant to clause (h) or (i) of this Section 5.02 with respect to the Company or any Guarantor, in which case no declaration of acceleration or notice shall be required), unless the principal
of all of the Notes shall have already become due and payable, either the Trustee or the Holders of at least twenty five percent (25%) in aggregate principal amount of the Notes then outstanding, by notice in writing to the Company (and to the
Trustee if given by Holders), may declare (and the Trustee at the request of such Holders shall declare) the principal of, and all accrued and unpaid interest on, all of the Notes then outstanding to be due and payable immediately, and, upon any
such declaration of acceleration, or upon the occurrence of any Event of Default arising under clause (h) or (i) of this Section 5.02 with respect to the Company or any Guarantor, the same shall become and shall automatically be
immediately due and payable, anything contained in the Indenture or in the Notes to the contrary notwithstanding.
The immediately
preceding paragraph, however, is subject to the conditions that if, at any time after the principal of the Notes shall have been so declared due and payable, and before any judgment or decree for the payment of the monies due shall have been
obtained or entered as hereinafter provided, the Company shall pay or shall deposit with the Trustee a sum sufficient to pay installments of accrued and unpaid interest upon all Notes and the principal of any and all Notes that shall have become due
otherwise than by acceleration (with interest on overdue installments of accrued and unpaid interest to the extent that payment of such interest is enforceable under applicable law, and on such principal at the rate borne by the Notes at such time)
and amounts due to the Trustee pursuant to Section 6.7 of the Base Indenture, and if (a) rescission would not conflict with any judgment or decree of a court of competent jurisdiction and (b) any and all existing Events of Default
under the Indenture shall have been cured or waived, then and in every such case (except as provided in the immediately succeeding sentence) the Holders of a majority in aggregate principal amount of the Notes then outstanding, by written notice to
the Company and to the Trustee, rescind such acceleration and its consequences, and such acceleration shall be deemed to have been cured for every purpose of the Indenture and the Notes; but no such waiver or rescission and annulment shall extend to
or shall affect any subsequent Default or Event of Default, or shall impair any right consequent thereon. Notwithstanding anything to the contrary in the Indenture or the Notes, no such waiver or rescission shall extend to or shall affect any
Default or Event of Default resulting from (x) the non-payment of the principal (including the Redemption Price and the Fundamental Change Repurchase Price, if applicable) of, or accrued and unpaid interest on, any Notes when due; or (y) a
failure to pay or deliver, as the case may be, the Exchange Consideration due upon exchange of the Notes.
Section 5.04.
Trustee
Enforcement Action for Payments of Notes
. In the event there shall be pending proceedings for the bankruptcy or for the reorganization of the Company or any other obligor on the Notes under Title 11 of the United States Code, or any other
applicable law, or in case a receiver, assignee or trustee in bankruptcy or reorganization, liquidator, sequestrator or similar official shall have been appointed for or taken possession of the Company or such other obligor, the property of the
Company or such other obligor, or in the event of any other judicial proceedings relative to the Company or such other obligor upon the Notes, or to the creditors or property of the Company or such other obligor, the Trustee, irrespective of whether
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the principal of the Notes 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 pursuant to the
provisions of this Section 5.04, shall be entitled and empowered, by intervention in such proceedings or otherwise, to file and prove a claim or claims for the whole amount of principal and accrued and unpaid interest, if any, in respect of the
Notes, and, in case of any judicial proceedings, to file such proofs of claim and other papers or documents and to take such other actions as it may deem necessary or advisable in order to have the claims of the Trustee (including any claim for the
reasonable compensation and the actual expenses, disbursements and advances of the Trustee, its agents and counsel) and of the Holders allowed in such judicial proceedings relative to the Company or any other obligor on the Notes, its or their
creditors, or its or their property, and to collect and receive any monies or other property payable or deliverable on any such claims, and to distribute the same after the deduction of any amounts due to the Trustee under Section 6.7 of the
Base Indenture; and any receiver, assignee or trustee in bankruptcy or reorganization, liquidator, custodian or similar official is hereby authorized by each of the Holders to make such payments to the Trustee, as administrative expenses, 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 reasonable compensation, expenses, advances and disbursements, including agents and counsel fees, and
including any other amounts due to the Trustee under Section 6.7 of the Base Indenture, incurred by it up to the date of such distribution. To the extent that such payment of reasonable compensation, expenses, advances and disbursements out of
the estate in any such proceedings shall be denied for any reason, payment of the same shall be secured by a lien on, and shall be paid out of, any and all distributions, dividends, monies, securities and other property that the Holders of the Notes
may be entitled to receive in such proceedings, whether in liquidation or under any plan of reorganization or arrangement or otherwise.
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 such Holder 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.
All rights of action and of asserting claims under the Indenture, or under any of the Notes, may be enforced by the Trustee without the
possession of any of the Notes, or the production thereof at any trial or other proceeding relative thereto, and any such suit or proceeding instituted by the Trustee shall be brought in its own name as trustee of an 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 Notes.
In any proceedings brought by the Trustee (and in any proceedings involving the interpretation of any provision of the Indenture to which the
Trustee shall be a party) the Trustee shall be held to represent all the Holders of the Notes, and it shall not be necessary to make any Holders of the Notes parties to any such proceedings.
In case the Trustee shall have proceeded to enforce any right under the Indenture and such proceedings shall have been discontinued or
abandoned because of any waiver pursuant to Section 5.10 or any rescission and annulment pursuant to Section 5.03 or for any other reason or
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shall have been determined adversely to the Trustee, then and in every such case the Company, the Holders and the Trustee shall, subject to any determination in such proceeding, be restored
respectively to their several positions and rights hereunder, and all rights, remedies and powers of the Company, the Holders and the Trustee shall continue as though no such proceeding had been instituted.
Section 5.05.
Interest on Defaulted Amounts
. Payments of principal or interest that are not made when due will accrue interest per
annum at the then-applicable interest rate borne on the Notes from the required payment date, to the extent permitted by law.
Section 5.06.
Application of Monies Collected by Trustee
. Any monies collected by the Trustee pursuant to this Article 5 with
respect to the Notes shall be applied in the following order, at the date or dates fixed by the Trustee for the distribution of such monies:
First
, to the payment of all amounts due the Trustee (including, without limitation, in its capacity as an Agent) under
Section 6.7 of the Base Indenture;
Second
, in case the principal of the outstanding Notes shall not have
become due and be unpaid, to the payment of interest on, and any cash due upon exchange of, the Notes in default in the order of the due date of the payments of such interest and cash due upon exchange, as the case may be, with interest (to the
extent that such interest has been collected by the Trustee) upon such overdue payments at the rate borne by the Notes at such time, such payments to be made ratably to the persons entitled thereto;
Third
, in case the principal of the outstanding Notes shall have become due, by declaration or otherwise, and be unpaid
to the payment of the whole amount (including, if applicable, the payment of the Redemption Price and the Fundamental Change Repurchase Price and any cash due upon exchange) then owing and unpaid upon the Notes for principal and interest, if any,
with interest on the overdue principal and, to the extent that such interest has been collected by the Trustee, upon overdue installments of interest at the rate borne by the Notes at such time, and in case such monies shall be insufficient to pay
in full the whole amounts so due and unpaid upon the Notes, then to the payment of such principal (including, if applicable, the Redemption Price and the Fundamental Change Repurchase Price and the cash due upon exchange) and interest without
preference or priority of principal over interest, or of interest over principal or of any installment of interest over any other installment of interest, or of any Note over any other Note, ratably to the aggregate of such principal (including, if
applicable, the Redemption Price and the Fundamental Change Repurchase Price and any cash due upon exchange) and accrued and unpaid interest; and
Fourth
, to the payment of the remainder, if any, to the Company.
Section 5.07.
Proceedings by Holders
. Except to enforce the right to receive payment of principal (including, if applicable, the
Redemption Price and the Fundamental Change Repurchase Price) or interest when due, or the right to receive payment or delivery of the consideration due upon exchange of a Note, no Holder of any Note shall have any right by virtue of or by availing
of any provision of the Indenture or the Notes to institute any suit, action or
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proceeding in equity or at law upon or under or with respect to the Indenture, or for the appointment of a receiver, trustee, liquidator, custodian or other similar official, or for any other
remedy hereunder, unless:
(a) such Holder previously shall have given to the Trustee written notice of an Event of Default and of the
continuance thereof, as herein provided;
(b) Holders of at least twenty five percent (25%) in aggregate principal amount of the
Notes then outstanding shall have made written request upon the Trustee to institute such action, suit or proceeding in its own name as Trustee hereunder;
(c) such Holders shall have offered and provided to the Trustee such security or indemnity satisfactory to it against any loss, liability or
expense to be incurred therein or thereby;
(d) the Trustee for sixty (60) days after its receipt of such notice, request and offer
of indemnity, shall have neglected or refused to institute any such action, suit or proceeding; and
(e) no direction that, in the opinion
of the Trustee, is inconsistent with such written request shall have been given to the Trustee by the Holders of a majority of the aggregate principal amount of the Notes then outstanding within such sixty (60) day period pursuant to
Section 5.10,
it being understood and intended, and being expressly covenanted by the taker and Holder of every Note with every other taker and
Holder and the Trustee that no one or more Holders shall have any right in any manner whatever by virtue of or by availing of any provision of the Indenture or the Notes to affect, disturb or prejudice the rights of any other Holder, or to obtain or
seek to obtain priority over or preference to any other such Holder, or to enforce any right under the Indenture or the Notes, except in the manner herein provided and for the equal, ratable and common benefit of all Holders (except as otherwise
provided herein). For the protection and enforcement of this Section 5.07, each and every Holder and the Trustee shall be entitled to such relief as can be given either at law or in equity.
Notwithstanding any other provision of the Indenture and any provision of any Note, the right of any Holder to receive payment or delivery, as
the case may be, of (x) the principal (including the Redemption Price and the Fundamental Change Repurchase Price, if applicable) of, (y) accrued and unpaid interest, if any, on, and (z) the Exchange Consideration due upon exchange
of, such Note, on or after the respective due dates expressed or provided for in the Indenture or such Note, or to institute suit for the enforcement of any such payment or delivery, as the case may be, and such right to receive such payment or
delivery, as the case may be, on or after such respective dates against the Company shall not be impaired or affected without the consent of such Holder.
Section 5.08.
Proceedings by Trustee
. In case of an Event of Default, the Trustee may in its discretion (and subject to Article 6
of the Base Indenture) proceed to protect and enforce the rights vested in it by the Indenture by such appropriate judicial proceedings as are necessary to protect and enforce any of such rights, either by suit in equity or by action at law or by
proceeding in bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement contained in the Indenture or in aid of the exercise of any power granted in the Indenture, or to enforce any other legal or equitable right
vested in the Trustee by the Indenture or by law.
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Section 5.09.
Remedies Cumulative and Continuing
. All powers and remedies given by
this Article 5 to the Trustee or to the Holders shall, to the extent permitted by law, be deemed cumulative and not exclusive of any thereof or of any other powers and remedies available to the Trustee or the Holders of the Notes, by judicial
proceedings or otherwise, to enforce the performance or observance of the covenants and agreements contained in the Indenture, and no delay or omission of the Trustee or of any Holder of any of the Notes to exercise any right or power accruing upon
any Default or Event of Default shall impair any such right or power, or shall be construed to be a waiver of any such Default or Event of Default or any acquiescence therein; and, subject to the provisions of Section 5.07, every power and
remedy given by this Article 5 or by law to the Trustee or to the Holders may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee or by the Holders.
Section 5.10.
Direction of Proceedings and Waiver of Defaults by Majority of Holders
. The Holders of a majority of the aggregate
principal amount of the Notes at the time outstanding 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 Notes;
provided
,
howeve
r
, that (a) such direction shall not be in conflict with any rule of law or with the Indenture, (b) the Trustee may take any other action deemed proper by the Trustee that is not
inconsistent with such direction, and (c) the Trustee may demand security or indemnity satisfactory to it in its sole discretion in accordance with Sections 6.1 and 6.3 of the Base Indenture. The Trustee may refuse to follow any direction that
conflicts with law or the Indenture or that it determines is unduly prejudicial to the rights of any other Holder or that would involve the Trustee in personal liability. The Holders of a majority in aggregate principal amount of the Notes at the
time outstanding may on behalf of the Holders of all of the Notes waive any past Default or Event of Default hereunder and its consequences except (i) a default in the payment of accrued and unpaid interest, if any, on, or the principal
(including any Redemption Price and any Fundamental Change Repurchase Price) of, the Notes when due or (ii) a failure by the Company to pay or deliver, as the case may be, the consideration due upon exchange of the Notes. Upon any such waiver
the Company, the Trustee and the Holders of the Notes shall be restored to their former positions and rights hereunder; but no such waiver shall extend to any subsequent or other Default or Event of Default or impair any right consequent thereon.
Whenever any Default or Event of Default hereunder shall have been waived as permitted by this Section 5.10, said Default or Event of Default shall for all purposes of the Notes and the Indenture be deemed to have been cured and to be not
continuing; but no such waiver shall extend to any subsequent or other Default or Event of Default or impair any right consequent thereon.
Section 5.11.
Notice of Defaults
. The Trustee shall, within ninety (90) days after the occurrence and continuance of a
Default of which a Responsible Officer has actual knowledge, send to all Holders notice of all Defaults known to a Responsible Officer, unless such Defaults shall have been cured or waived before the giving of such notice;
provided
,
however
, that, except in the case of a Default in the payment of the principal of (including the Redemption Price and the Fundamental Change Repurchase Price, if applicable), or accrued and unpaid interest on, any such Notes or a Default in
the delivery of the Exchange Consideration due upon exchange, the
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Trustee shall be protected in withholding notice if and so long as the Trustee in good faith determines that the withholding of such notice is in the interests of the Holders. The Trustee shall
not be deemed to have notice of any Default or Event of Default (other than a payment Default) 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 a Responsible Officer of the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Notes and the Indenture.
Section 5.12.
Undertaking to Pay Costs
. All parties to the Indenture agree, and each Holder of any Note by its 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 the Indenture, or in any suit against the Trustee for any action taken 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 and expenses, 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;
provided
that the provisions of this Section 5.12 (to the extent permitted by law) shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than ten percent (10%) in principal amount of the Notes at the time outstanding, or to any suit instituted by any Holder for the enforcement of
the payment of the principal of or accrued and unpaid interest, if any, on any Note (including, but not limited to, the Redemption Price and the Fundamental Change Repurchase Price, if applicable) on or after the due date expressed or provided for
in such Note or to any suit for the enforcement of the right to exchange any Note in accordance with the provisions of Article 8.
Section 5.13.
Sole Remedy for a Failure to Report
.
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(a) Notwithstanding anything to the contrary in the Indenture or the Notes, the
Company may elect that the sole remedy for any Event of Default (a “
Reporting Event of Default
”) pursuant to Section 5.02(f) arising from the Company’s failure to comply with Section 4.01 or the Company’s
obligations under Section 314(a)(1) of the Trust Indenture Act with respect to the Notes will, for each of the first one hundred and eighty (180) calendar days on which a Reporting Event of Default has occurred and is continuing, consist
exclusively of the accrual of Special Interest on the Notes. If the Company has made such an election, then (i) the Notes will be subject to acceleration pursuant to Section 5.03 on account of the relevant Reporting Event of Default from,
and including, the one hundred and eighty first (181st) calendar day on which a Reporting Event of Default has occurred and is continuing or if the Company fails to pay any accrued and unpaid Special Interest when due; and (ii) Special
Interest will cease to accrue on any Notes from, and including, such one hundred and eighty first (181st) calendar day.
(b) Any Special Interest that accrues on a Note pursuant to Section 5.13(a) will be payable on the same dates and in the same manner as
the stated interest on such Note and will accrue at a rate per annum equal to one quarter of one percent (0.25%) of the principal amount thereof. For the avoidance of doubt, any Special Interest that accrues on a Note will be in addition to the
stated interest that accrues on such Note.
(c) To make the election set forth in Section 5.13(a), the Company must send to the
Holders, the Trustee and the Paying Agent, before the date on which each Reporting Event of Default first occurs, a written notice that (i) briefly describes of the report(s) that the Company failed to file with the Commission; (ii) states
that the Company is electing that the sole remedy for such Reporting Event of Default consist of the accrual of Special Interest; and (iii) briefly describes the periods during which and rate at which Special Interest will accrue and the
circumstances under which the Notes will be subject to acceleration on account of such Reporting Event of Default.
(d) If Special
Interest accrues on any Note, then, no later than five (5) Business Days before each date on which such Special Interest is to be paid, the Company will deliver an Officer’s Certificate to the Trustee and the Paying Agent stating
(i) that the Company is obligated to pay Special Interest on such Note on such date of payment; and (ii) the amount of such Special Interest that is payable on such date of payment. The Trustee will have no duty to determine whether any
Special Interest is payable or the amount thereof.
(e) No election pursuant to this Section 5.13 with respect to a Reporting Event
of Default will affect the rights of any Holder with respect to any other Event of Default, including with respect to any other Reporting Event of Default.
ARTICLE 6
SUPPLEMENTAL INDENTURES
Section 6.01.
Supplemental Indentures Without Consent of Holders
. For purposes of the Notes, this Section 6.01 shall
replace in its entirety Section 9.1 of the Base Indenture, and all references in the Base Indenture to Section 9.1 thereof and the provisions therein, as the case may be, shall, with respect to the Notes, be deemed to be references to this
Section 6.01 and the applicable provisions set forth in this Section 6.01, respectively.
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Without the consent of any Holder, the Company, the Guarantors and the Trustee, at any time and
from time to time, may, with respect to the Notes, amend the Indenture or the Notes for any of the following purposes:
(a) to evidence a
successor to the Company or any Guarantor and to provide for the assumption by such successor of the Company’s or such Guarantor’s respective obligations under the Indenture and the Notes;
(b) to provide for the exchange of Notes into Reference Property and effect any other changes to the terms of the Notes required under the
Indenture in connection therewith;
(c) to irrevocably elect a Settlement Method or a Specified Dollar Amount;
(d) to add to the Company’s covenants for the benefit of the Holders or surrender any right or power conferred upon the Company by the
Indenture;
(e) to secure the Company’s obligations in respect of the Notes;
(f) to evidence and provide for the acceptance of the appointment of a successor Trustee in accordance with the Indenture;
(g) to cure any ambiguity, omission, or inconsistency or correct or supplement any defective provisions contained in the Indenture;
(h) to add additional Guarantees with respect to the Notes;
(i) to comply with the applicable Depositary Procedures;
(j) to comply with the requirements of the Commission in order to effect or maintain the qualification of the Indenture under the Trust
Indenture Act;
(k) to permit for the issuance of additional Notes in accordance with the Indenture;
(l) to make any other changes to the Indenture that would not reasonably be expected to adversely affect the interests of the Holders (other
than those of a Holder that has consented to such change); or
(m) to conform the provisions of the Indenture to the “Description of
Notes” section in the preliminary prospectus supplement dated June 1, 2016 relating to the offering and sale of the Notes, as supplemented by the related pricing term sheet, to the extent that the Trustee has received an Officer’s
Certificate stating that any text to be so conformed constitutes an unintended conflict with the corresponding provision in the “Description of Notes” section.
Upon the written request of the Company, the Trustee is hereby authorized to, and shall, join with the Company in the execution of any such
amendment of the Indenture and to make
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any further appropriate agreements and stipulations that may be therein contained, but the Trustee shall not be obligated to, but may in its discretion, enter into any such amendment that affects
the Trustee’s own rights, duties or immunities under the Indenture or otherwise.
Any supplemental indenture authorized by the
provisions of this Section 6.01 may be executed by the Company and the Trustee without the consent of the Holders of any of the Notes at the time outstanding, notwithstanding any of the provisions of Section 6.02.
Section 6.02.
Supplemental Indentures with Consent of Holders
. For purposes of the Notes, this Section 6.02 shall replace in
its entirety Section 9.2 of the Base Indenture, and all references in the Base Indenture to Section 9.2 thereof and the provisions therein, as the case may be, shall, with respect to the Notes, be deemed to be references to this
Section 6.02 and the applicable provisions set forth in this Section 6.02, respectively. Subject to Section 6.01, Section 5.10 and the final paragraph of Section 5.07, the Company, the Guarantors and the Trustee may, with
the consent of the Holders of a majority in aggregate principal amount of the Notes then outstanding (including, without limitation, consents obtained in connection with a repurchase of, or tender offer or exchange offer for, notes), amend or
supplement the Indenture (with respect to the Notes) or the Notes or waive compliance with any provision of this Indenture or the Notes;
provided
,
however
, that, without the consent of each Holder of an outstanding Note affected, no
such amendment shall:
(a) alter the manner of calculation or rate of accrual of interest on any Note or change the time of payment of any
installment of interest on any such Note;
(b) make any of the Notes payable in money or securities other than that stated in the
Indenture;
(c) change the stated Maturity Date of any Note;
(d) reduce the principal amount Fundamental Change Repurchase Price or Redemption Price with respect to any Note or change the times at which,
or the circumstances under which, the Notes may or will be redeemed or repurchased by the Company;
(e) impair the right of any Holder of
Notes to institute suit for the enforcement of any payment on or with respect to any Note or with respect to the exchange of any Note;
(f) adversely affect the exchange rights of the Notes, including by modifying any of the notice provisions;
(g) change the percentage in aggregate principal amount of the then outstanding Notes necessary to modify or amend the Indenture or to waive
any existing or past Default or Event of Default;
(h) change the ranking of the Notes or any Guarantee;
(i) change the Company’s obligation to pay Additional Amounts in respect of any Note;
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(j) reduce the amount of Notes whose Holders must consent to an amendment or make any other
change to the provisions of this Article 6 that requires each Holder’s consent or in the waiver provisions in Section 5.10; or
(k) release any Guarantor from its obligations under its Guarantee or the Indenture.
Upon the written request of the Company, and upon the filing with the Trustee of evidence of the consent of Holders as aforesaid, the Trustee
is hereby authorized to, and shall, join with the Company in the execution of any such amendment to the Indenture and to make any further appropriate agreements and stipulations that may be therein contained, but the Trustee shall not be obligated
to, but may in its discretion, enter into any such amendment that affects the Trustee’s own rights, duties or immunities under the Indenture or otherwise.
Holders do not need under this Section 6.02 to approve the particular form of any proposed supplemental indenture. It shall be sufficient
if such Holders approve the substance thereof. After any such supplemental indenture becomes effective, the Company shall send to the Holders a notice briefly describing such supplemental indenture. However, the failure to give such notice to all
the Holders, or any defect in the notice, will not impair or affect the validity of the supplemental indenture.
ARTICLE 7
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
Section 7.01.
Applicability of Article Eight of the Base Indenture
. For purposes of the Notes, this Article 7 shall replace in its
entirety Article Eight of the Base Indenture, and all references in the Base Indenture to Article Eight thereof and the provisions therein, as the case may be, shall, with respect to the Notes, be deemed to be references to this Article 7 and the
applicable provisions set forth in this Article 7, respectively.
Section 7.02.
Company May Consolidate, Etc. on Certain
Terms
. Subject to Section 7.03, neither the Company nor any guarantor shall consolidate with or merge or amalgamate into any Person or enter into a scheme of arrangement or sell, lease or otherwise transfer its consolidated properties and
assets, substantially as an entirety, to another Person (other than for any Guarantor to sell, lease or otherwise transfer such assets or properties to one or more of its direct or indirect wholly owned subsidiaries), unless:
(a) the Person (the “
Successor Company
”) (if other than the Company or such Guarantor, as applicable) formed by such
consolidation or into which the Company or such Guarantor is, as applicable, merged, amalgamated or of which the Company or such Guarantor becomes pursuant to a scheme of arrangement or the Person which acquires by sale, lease or other transfer the
consolidated properties and assets of the Company or such Guarantor, substantially as an entirety, shall (i) be organized and validly existing as a corporation, limited liability company, partnership, trust or other entity and
(ii) expressly assume, by supplemental indenture, executed and delivered to the Trustee, in form satisfactory to the Trustee, the obligations of the Company or such Guarantor, as the case may be, under the Notes and the Indenture (including,
for the avoidance of doubt, the obligation to pay additional amounts pursuant to Section 4.03); and
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(b) after giving effect to such transaction, no Default or Event of Default shall have occurred
and be continuing under the Indenture.
Section 7.03.
Successor Corporation to Be Substituted
. In case of any such
consolidation, merger, amalgamation, scheme of arrangement, sale, lease or transfer and upon the assumption by the Successor Company, by supplemental indenture, executed and delivered to the Trustee and satisfactory in form to the Trustee, of the
due and punctual payment of the principal of and accrued and unpaid interest on all of the Notes, the due and punctual delivery or payment, as the case may be, of any Exchange Consideration due upon exchange of the Notes and the due and punctual
performance of all of the covenants and conditions of the Indenture to be performed by the Company or the applicable Guarantor, as applicable, with respect to the Notes or the Guarantee of such Guarantor, as applicable, such Successor Company (if
not the Company or such Guarantor, as applicable) shall succeed to and, except in the case of any such lease, shall be substituted for the Company or such Guarantor, as applicable, with the same effect as if it had been named herein as the party of
the first part, and the Company or such Guarantor, as applicable, shall, except in the case of any such lease, be discharged from the obligations under the Notes or such Guarantee, as applicable, and the Indenture.
In case of any such consolidation, merger, amalgamation, scheme of arrangement, sale, lease or transfer, such changes in phraseology and form
(but not in substance) may be made in the Notes thereafter to be issued as may be appropriate.
Section 7.04.
Opinion of Counsel
to Be Given to Trustee
. No such consolidation, merger, amalgamation, sale, conveyance, transfer or lease shall be effective unless the Trustee shall receive an Officer’s Certificate and an Opinion of Counsel, with respect to which the
Trustee shall be entitled to rely on as conclusive evidence, that such consolidation, merger, amalgamation, scheme of arrangement, sale, lease or transfer and such assumption and, if a supplemental indenture is required in connection with such
transaction, such supplemental indenture, are permitted or authorized by the Indenture and comply with the provisions of this Article 7.
ARTICLE 8
EXCHANGE OF NOTES
Section 8.01.
Exchange Privilege
. (a) Subject to and upon compliance with the provisions of this Article 8, each Holder of a
Note shall have the right, at such Holder’s option, to exchange all or any portion (if the portion to be exchanged is in an Authorized Denomination) of such Note into cash, Ordinary Shares or a combination of cash and Ordinary Shares (together
with cash in lieu of , in each case, based on an initial exchange rate of 129.1656 Ordinary Shares (subject to adjustment as provided in this Article 8, the “
Exchange Rate
”) per $1,000 principal amount of Notes (subject to,
and in accordance with, the settlement provisions of Section 8.02, the “
Exchange Obligation
”).
(b) Notes may
be exchanged only in the following circumstances and during the following times (except that, notwithstanding anything to the contrary in the Indenture or the Notes, in no event may any Note be exchanged after the Close of Business on the second
(2nd) Scheduled Trading Day immediately before the Maturity Date):
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(i) A Holder of Notes may surrender all or any portion of its Notes for exchange
at any time during any calendar quarter commencing after the calendar quarter ending on September 30, 2016 (and only during such calendar quarter), if the Last Reported Sale Price of the Ordinary Shares for each of at least twenty
(20) Trading Days (whether or not consecutive) during the period of thirty (30) consecutive Trading Days ending on, and including, the last Trading Day of the immediately preceding calendar quarter is greater than or equal to one hundred
and thirty percent (130%) of the Exchange Price for the Notes on such Trading Day.
(ii) A Holder may surrender all or
any portion of its Notes for exchange at any time during the five (5) Business Day period immediately after any ten (10) consecutive Trading Day period (the “
Measurement Period
”) in which the Trading Price per
$1,000 principal amount of Notes, as determined following a request by a Holder of Notes in accordance with this clause (ii), for each Trading Day of the Measurement Period was less than ninety eight percent (98%) of the product of the Last
Reported Sale Price of the Ordinary Shares and the Exchange Rate on such Trading Day (the condition set forth in this sentence, the “
Trading Price Condition
”). The Trading Prices shall be determined by the Bid Solicitation
Agent pursuant to this clause (ii) and the definition of Trading Price. The Bid Solicitation Agent (if not the Company) will have no obligation to determine the Trading Price of the Notes unless the Company has requested such determination in
writing, and the Company will have no obligation to make such request (or seek bids itself) unless a Holder provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of Notes would be less than ninety eight
percent (98%) of the product of the Last Reported Sale Price per Ordinary Share and the Exchange Rate. If a Holder provides such evidence, then the Company will (if acting as Bid Solicitation Agent), or will instruct the Bid Solicitation Agent
to, determine the Trading Price of the Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes is greater than or equal to ninety eight percent (98%) of the product
of the Last Reported Sale Price per Ordinary Share on such Trading Day and the Exchange Rate on such Trading Day. If the Trading Price Condition has been met after determination as set forth above, then the Company will provide the Holders, the
Trustee and the Exchange Agent with notice of the same. If, on any Trading Day after the Trading Price Condition has been met after determination as set forth above, the Trading Price per $1,000 principal amount of Notes is greater than or equal to
ninety eight percent (98%) of the product of the Last Reported Sale Price per Ordinary Share on such Trading Day and the Exchange Rate on such Trading Day, then the Company will provide the Holders, the Trustee and the Exchange Agent with
notice of the same.
(iii) If the Parent elects to:
(A) issue, to all or substantially all holders of Ordinary Shares, any rights, options or warrants (other than rights issued
pursuant to a stockholder rights plan, so long as such rights have not separated from the Ordinary Shares and are not exercisable until the occurrence of a triggering event, except that such rights will be deemed to be issued under this clause
(A) upon their separation from the Ordinary Shares or upon the occurrence of such triggering event)
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entitling them, for a period of not more than sixty (60) calendar days after the record date of such issuance, to subscribe for or purchase Ordinary Shares at a price per share that is less
than the average of the Last Reported Sale Prices per Ordinary Share for the ten (10) consecutive Trading Days ending on, and including, the Trading Day immediately before the date such issuance is announced; or
(B) distribute, to all or substantially all holders of Ordinary Shares, the assets or debt securities of the Company or rights
to subscribe for or purchase the Company’s securities (other than rights issued pursuant to a stockholder rights plan, so long as such rights have not separated from the Ordinary Shares and are not exercisable until the occurrence of a
triggering event, except that such rights will be deemed to be issued under this clause (B) upon their separation from the Ordinary Shares or upon the occurrence of such triggering event), which distribution per Ordinary Share has a value, as
reasonably determined by the Company, exceeding fifteen percent (15%) of the Last Reported Sale Price per Ordinary Share on the Trading Day immediately before the date such distribution is announced,
then, in either case, (x) the Company will provide notice of such issuance or distribution, and of the related right to exchange Notes, to
Holders, the Trustee and the Exchange Agent at least forty-two (42) Scheduled Trading Days before the Ex-Dividend Date for such issuance or distribution; and (y) once the Company has given such notice, Holders may exchange their Notes at
any time until the earlier of the Close of Business on the Business Day immediately before such Ex-Dividend Date and the Company’s announcement that such issuance or distribution will not take place;
provided
,
however
, that the
Notes will not become exchangeable pursuant to clause (y) above (but the Company will be required to provide notice of such issuance or distribution pursuant to clause (x) above) on account of such issuance or distribution if each Holder
participates, at the same time and on the same terms as holders of Ordinary Shares, and solely by virtue of being a Holder, in such issuance or distribution without having to exchange such Holder’s Notes and as if such Holder held a number of
Ordinary Shares equal to the product of (I) the Exchange Rate in effect on the record date for such issuance or distribution; and (II) the aggregate principal amount (expressed in thousands) of Notes held by such Holder on such date.
(iv) If a Fundamental Change, Make-Whole Fundamental Change or Ordinary Share Change Event occurs (other than a merger or other
business combination transaction that is effected solely to change the Company’s or the Parent’s jurisdiction of incorporation and that does not constitute a Fundamental Change or a Make-Whole Fundamental Change), then, in each case,
Holders may exchange their Notes at any time from, and including, the effective date of such transaction or event to, and including, the thirty fifth (35th) Trading Day after such effective date (or, if such transaction or event also
constitutes a Fundamental Change, to, but excluding, the related Fundamental Change Repurchase Date). No later than such effective date, the Company will provide notice to the Holders, the Trustee and the Exchange Agent of such transaction or event,
such effective date and the related right to exchange Notes.
- 32 -
(v) If the Company calls any Note for Redemption, then the Holder of such Note
may exchange such Note at any time before the Close of Business on the Business Day immediately before the related Redemption Date (or, if the Company fails to pay the Redemption Price due on such Redemption Date in full, at any time until such time
as the Company pays such Redemption Price in full).
(vi) A Holder may exchange its Notes at any time from, and including,
January 1, 2021 until the Close of Business on the second (2nd) Scheduled Trading Day immediately before the Maturity Date.
Section 8.02.
Exchange Procedure; Settlement Upon Exchange
.
(a) Upon the exchange of any Note, the Company will settle such exchange by paying or delivering, as applicable and as provided
in this Article 8, either (x) Ordinary Shares, together, if applicable, with cash in lieu of fractional shares as provided in Section 8.02(b)(i) (a “
Physical Settlement
”); (y) solely cash as provided in
Section 8.02(b)(ii) (a “
Cash Settlement
”); or (z) a combination of cash and Ordinary Shares, together, if applicable, with cash in lieu of fractional shares as provided in Section 8.02(b)(iii) (a
“
Combination Settlement
”).
The Company will have the right to elect the Settlement Method applicable to any
exchange of a Note;
provided
,
however
, that:
(i) subject to clause (iii) below, all exchanges of Notes with
an Exchange Date that occurs on or after January 1, 2021 will be settled using the same Settlement Method, and the Company will provide notice of such Settlement Method to Holders and the Trustee no later than the Close of Business on
January 1, 2021;
(ii) subject to clause (iii) below, if the Company elects a Settlement Method with respect to the
exchange of any Note whose Exchange Date occurs before January 1, 2021, then the Company will provide notice of such Settlement Method to the Holder of such Note and the Trustee no later than the Close of Business on the second
(2nd) Business Day immediately after such Exchange Date;
(iii) if any Notes are called for Redemption, then the
Company will specify in the related Redemption Notice the Settlement Method that will apply to all exchanges of Notes with an Exchange Date that occurs on or after the related Redemption Notice Date and before the related Redemption Date;
(iv) the Company will use the same Settlement Method for all exchanges of Notes with an Exchange Date that occurs on the same
day (and, for the avoidance of doubt, the Company will not be obligated to use the same Settlement Method with respect to exchanges of Notes whose Exchange Dates occur on different days, except as provided in clause (i) or (iii) above);
(v) if the Company does not timely elect a Settlement Method with respect to the exchange of a Note, then the Company will be
deemed to have elected the Default Settlement Method (and, for the avoidance of doubt, the failure to timely make such election will not constitute a Default or Event of Default);
- 33 -
(vi) if the Company timely elects Combination Settlement with respect to the
exchange of a Note but does not timely notify the Holder of such Note of the applicable Specified Dollar Amount, then the Specified Dollar Amount for such exchange will be deemed to be $1,000 per $1,000 principal amount of Notes (and, for the
avoidance of doubt, the failure to timely make such notification will not constitute a Default or Event of Default); and
(vii) the Settlement Method will be subject to Section 8.06.
(b) The type and amount of consideration (the “
Exchange Consideration
”) due in respect of each $1,000
principal amount of a Note to be exchanged will be as follows:
(i) If Physical Settlement applies to such
exchange, subject to Section 8.02(b)(ii), a number of Ordinary Shares equal to the Exchange Rate in effect on the Exchange Date for such exchange.
(ii) If Cash Settlement applies to such exchange, cash in an amount equal to the sum of the Daily Exchange Values for each VWAP
Trading Day in the Observation Period for such exchange.
(iii) If Combination Settlement applies to such exchange,
consideration consisting of the Daily Settlement Amount for each VWAP Trading Day in such Observation Period.
(iv) If
Physical Settlement or Combination Settlement applies to the exchange of any Note and the number of Ordinary Shares deliverable pursuant Section 8.02(b)(i) or Section 8.02(b)(iii), as applicable, upon such exchange is not a whole number,
then such number will be rounded down to the nearest whole number and the Company will deliver, in addition to the other consideration due upon such exchange, cash in lieu of the related fractional share in an amount equal to the product of
(1) such fraction and (2) (x) the Daily VWAP on the Exchange Date for such exchange (or, if such Exchange Date is not a VWAP Trading Day, the immediately preceding VWAP Trading Day), in the case of Physical Settlement; or (y) the
Daily VWAP on the last VWAP Trading Day of the Observation Period for such exchange, in the case of Combination Settlement.
(v) If a Holder exchanges more than one (1) Note on a single Exchange Date, then the Exchange Consideration due in respect
of such exchange will (in the case of any Global Note, to the extent permitted by, and practicable under, the Depositary Procedures) be computed based on the total principal amount of Notes exchanged on such Exchange Date by such Holder.
(c) To convert a Note, the Holder thereof shall (i) if such Note is a Global Note, comply with the Depositary Procedures for exchanging
such beneficial interest; (ii) if such Note is a Physical Note; (ii) if such Note is a Physical Note, (1) complete and manually sign the Notice of Exchange attached to such Physical Note, or a facsimile of the Notice of Exchange;
(2) deliver the completed exchange notice, which is irrevocable, and the Physical Note to the Exchange Agent; and (3) if required, furnish any appropriate endorsements and transfer documents; (iii) if required, pay any amounts due
pursuant to Section 8.02(i); and (iv) if required, pay all taxes or duties, if any.
- 34 -
The Trustee (and, if different, the Exchange Agent) shall notify the Company of any communication
from the Depositary regarding an exchange (in the case of clause (i) above) or receipt of any exchange-related document (in the case of clause (ii) above), in each case promptly and, in any event, no later than the Business Day immediately
following the date the Trustee or Exchange Agent, as the case may be, receives the same. If a Holder has validly delivered a Fundamental Change Repurchase Notice with respect to a Note, then such Note may not be exchanged, except to the extent
(x) such Note is not subject to such notice; (y) such notice is withdrawn in accordance with Section 9.01(e)(iii) or (z) the Company fails to pay the related Fundamental Change Repurchase Price for such Note.
(d) A Note shall be deemed to have been exchanged immediately prior to the Close of Business on the date (the
“
Exchange Date
”) that the Holder has complied with the requirements set forth in subsection (c) above. Except as provided in Section 8.03 and Section 8.06, the Company will pay or deliver, as applicable, the
Exchange Consideration due upon the exchange of any Note to the Holder as follows: (i) if Cash Settlement or Combination Settlement applies to such exchange, on or before the third (3rd) Business Day immediately after the last VWAP Trading
Day of the Observation Period for such exchange; and (ii) if Physical Settlement applies to such exchange, on or before the third (3rd) Business Day immediately after the Exchange Date for such exchange;
provided
,
however
, that the Company will pay or deliver, as applicable, the Exchange Consideration due upon the exchange of any Note with an Exchange Date after the Regular Record
Date immediately before the Maturity no later than the Maturity Date.
The Company shall cause the Parent to issue and
deliver any Ordinary Shares due upon settlement of the exchange of any Note. The Company shall pay-up the Ordinary Shares, or procure that the Ordinary Shares are paid-up by another non-Irish subsidiary of the Parent, in full in cash, including, if
applicable, any additional paid in capital (so as to be validly issued for the purposes of the requirements of the Irish Companies Act 2014). If, for any reason the Company is legally prohibited from paying-up the Ordinary Shares in full to at least
their nominal value (for example, upon certain events of bankruptcy, insolvency or examinership), exchanging Holders shall be entitled to pay the nominal value per share ($0.001) in cash, and, in such circumstances, subject to receipt of such
payment, the Parent shall issue the Ordinary Shares fully paid to that amount and exchanging Holders shall receive validly issued ordinary Shares.
If any Ordinary Shares are due to exchanging Holders, the Company shall issue or cause to be issued by its stock transfer agent, and deliver
to the Exchange Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Depositary for the full number of Ordinary Shares to which such Holder shall be entitled in satisfaction of the
Company’s Exchange Obligation. Prior to the issuance of Ordinary Shares, the Company shall give the Exchange Agent notice of the number of Ordinary Shares being so issued and the method by which the issuance shall take place. Any required funds
due to an exchanging Holder in connection with a Cash Settlement or Combination Settlement shall be delivered to the Paying Agent. For the avoidance of doubt, neither the Exchange Agent nor the Trustee shall have any responsibility for the issuance
by the Company of Ordinary Shares.
- 35 -
(e) If any Physical Note is surrendered for partial exchange, the Company shall execute and the
Trustee shall authenticate and deliver to or upon the written order of the Holder of such Note so surrendered a new Note or Notes in Authorized Denominations in an aggregate principal amount equal to the un-exchanged portion of such Note, without
payment of any service charge by the exchanging Holder but, if required by the Company, with payment by the exchanging Holder of a sum sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge
required by law or that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such exchange being different from the name of the Holder of the old Notes surrendered for such exchange.
(f) If a Holder submits a Note for exchange, the Company, but not the Parent (and, to such extent, the Guarantee of the Parent shall not
apply), shall pay any documentary, stamp or similar issue or transfer tax or similar governmental charge due on the issue of any Ordinary Shares upon exchange, unless the tax is due because the Holder requests such shares to be issued in a name
other than the Holder’s name, in which case the Holder shall pay that tax. The Company (or, if the stock certificates are delivered by the Company to the Exchange Agent for further delivery to the exchanging Holder, the Exchange Agent) may
refuse to deliver the certificates representing (or cause the book-entry transfer of) the Ordinary Shares being issued in a name other than the Holder’s name until the Company receives a sum sufficient to pay any tax that is due by such Holder
in accordance with the immediately preceding sentence.
(g) Except as provided in Section 8.04, no adjustment shall be made for
dividends on any Ordinary Shares issued upon the exchange of any Note.
(h) Upon the exchange of an interest in a Note that is a Global
Note, the Trustee shall make a notation on such Note as to the reduction in the principal amount represented thereby. The Company shall notify the Trustee in writing of any exchange of Notes effected through any Exchange Agent other than the
Trustee.
(i) Notwithstanding the foregoing, if the Exchange Date of a Note is after a Regular Record Date and before the next
Interest Payment Date, then (i) the Holder of such Note at the Close of Business on such Regular Record Date will be entitled, notwithstanding such exchange (and, for the avoidance of doubt, notwithstanding anything set forth in the proviso to
this sentence), to receive, on the earlier of such Interest Payment Date and the date the Company delivers the Exchange Consideration due in respect of such exchange, the unpaid interest that would have accrued on such Note to, but excluding, such
Interest Payment Date (assuming, solely for these purposes, that such Note remained outstanding through such Interest Payment Date); and (ii) such Note, when surrendered for exchange, must be accompanied with an amount of cash equal to the
amount of such interest referred to in clause (i) above;
provided
,
however
, that such Holder need not deliver such cash (w) if the Company has specified a Redemption Date that is after such Regular Record Date and on or
before the Business Day immediately after such Interest Payment Date; (x) if such Exchange Date occurs after the Regular Record Date immediately before the Maturity Date; (y) if the Company has specified a Fundamental Change Repurchase
Date that is after such Regular Record Date and on or before such Interest Payment Date or (z) to the extent of any overdue interest or interest that has accrued on any overdue interest. For the avoidance of doubt, as a result of, and without
limiting the generality of, the
- 36 -
foregoing, if a Note is exchanged with an Exchange Date that is after the Regular Record Date immediately before the Maturity Date, then the Company will pay, as provided above, the interest that
would have accrued on such Note to, but excluding, the Maturity Date.
(j) The person in whose name any Ordinary Shares issuable upon
exchange of any Note will be deemed to become the holder of record of such shares as of the Close of Business on (i) the applicable Exchange Date, in the case of Physical Settlement; or (ii) the last VWAP Trading Day of the Observation
Period for such exchange, in the case of Combination Settlement. Prior to the Close of Business on such Exchange Date or last VWAP Trading Day, as applicable, the Ordinary Shares, if any, issuable upon exchange of such Notes will not be deemed to be
outstanding for any purpose and such Holder shall have no rights with respect to such Ordinary Shares by virtue of holding the Notes, including voting rights in the Parent, rights to respond to tender offers and rights to receive any dividends or
other distributions on the Ordinary Shares.
(k) If a Holder exchanges a Note, then the Company will not adjust the Exchange Rate to
account for any accrued and unpaid interest on such Note, and, except as provided in Section 8.02(i), the Company’s delivery of the Exchange Consideration due in respect of such exchange will be deemed to fully satisfy and discharge the
Company’s obligation to pay the principal of, and accrued and unpaid interest, if any, on, such Note to, but excluding the Exchange Date. As a result, except as provided in Section 8.02(i), any accrued and unpaid interest on an exchanged
Note will be deemed to be paid in full rather than cancelled, extinguished or forfeited. In addition, subject to Section 8.02(i), if the Exchange Consideration for a Note consists of both cash and Ordinary Shares, then accrued and unpaid
interest that is deemed to be paid therewith will be deemed to be paid first out of such cash.
(l) Notwithstanding anything to the
contrary in the Indenture or the Notes, Notes may be exchanged only in Authorized Denomination.
Section 8.03.
Increased Exchange
Rate Applicable to Certain Notes Surrendered in Connection with Make-Whole Fundamental Changes
. (a) If Make-Whole Fundamental Change occurs and the Exchange Date for the exchange of a Note occurs during the related Make-Whole Fundamental
Change Exchange Period, then, subject to this Section 8.03, the Exchange Rate applicable to such exchange will be increased by a number of shares (the “
Additional Shares
”) set forth in the table below corresponding
(after interpolation as provided in, and subject to, the provisions below) to the Make-Whole Fundamental Change Effective Date and the Stock Price of such Make-Whole Fundamental Change:
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Stock Price
|
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Make-Whole
Fundamental Change
Effective Date
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$5.53
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$6.00
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$6.50
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$7.00
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$7.74
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$10.00
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$12.50
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$15.00
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$25.00
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$35.00
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$45.00
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$55.00
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June 7, 2016
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51.6662
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50.3265
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46.4092
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40.8214
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34.3243
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22.2250
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15.3920
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11.4480
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4.6788
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2.0823
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0.7331
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0.0000
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July 1, 2017
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51.6662
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49.3012
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43.4477
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37.7300
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31.1770
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19.4150
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13.1584
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9.7113
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4.0192
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1.8334
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0.6627
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0.0000
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July 1, 2018
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51.6662
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47.9617
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40.3815
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34.3829
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27.6395
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16.1430
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10.5672
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7.7167
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3.2508
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1.5414
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0.6024
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0.0000
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July 1, 2019
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51.6662
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45.5983
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37.1985
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30.6414
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23.4548
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12.1490
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7.4968
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5.4093
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2.3416
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1.1549
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0.4989
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0.0000
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July 1, 2020
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51.6662
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44.1850
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34.1508
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26.3571
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18.0711
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6.9490
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3.8664
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2.8040
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1.2712
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0.6500
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0.3053
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0.0000
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July 1, 2021
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51.6662
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42.9510
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31.2575
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23.3786
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0.0000
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0.0000
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0.0000
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0.0000
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0.0000
|
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0.0000
|
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0.0000
|
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0.0000
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If such Make-Whole Fundamental Change Effective Date or Stock Price are not set forth in the table above,
then:
- 37 -
(i) if such Stock Price is between two Stock Prices in the table above or the
Make-Whole Fundamental Change Effective Date is between two Make-Whole Fundamental Change Effective Dates in the table above, then the number of Additional Shares will be determined by a straight-line interpolation between the numbers of Additional
Shares set forth for the higher and lower Stock Prices in the table and the earlier and later Make-Whole Fundamental Change Effective Dates in the table above, as applicable, based on a 365- or 366-day year, as applicable;
(ii) if the Stock Price is greater than $55.00 per share (subject to adjustment in the same manner as the Stock Prices set
forth in the column headings of the table above are adjusted pursuant to Section 8.03(b)), then no Additional Shares will be added to the Exchange Rate; and
(iii) if the Stock Price is less than $5.53 per share (subject to adjustment in the same manner as the Stock Prices set forth
in the column headings of the table above are adjusted pursuant to Section 8.03(b)), then no Additional Shares will be added to the Exchange Rate.
Notwithstanding anything to the contrary in the Indenture or the Notes, in no event will the Exchange Rate be increased to an amount that
exceeds 180.8318 Ordinary Shares per $1,000 principal amount of Notes, which amount is subject to adjustment in the same manner as, and at the same time and for the same events for which, the Exchange Rate is required to be adjusted pursuant to
Section 8.04.
(b) The Stock Prices in the first row (
i.e.
, the column headers) of the table set forth in Section 8.03(a)
will be adjusted in the same manner as, and at the same time and for the same events for which, the Exchange Price is adjusted as a result of the operation of Section 8.04. The numbers of Additional Shares in the table set forth in
Section 8.03(a) will be adjusted in the same manner as, and at the same time and for the same events for which, the Exchange Rate is adjusted pursuant to Section 8.04.
(c) The Company shall provide notice to Holders of each Make-Whole Fundamental Changes in accordance with Section 8.01(b)(iv).
Section 8.04.
Adjustment of
Exchange Rate
. The Exchange Rate shall be adjusted from time to time by the Company if
any of the following events occurs, except that the Company shall not make any adjustments to the Exchange Rate for any transactions described below (other than in the case of (x) a share subdivision or share consolidation or (y) a tender
or exchange offer), if each Holder of the Notes participates in such transaction at the same time and upon the same terms as holders of the Ordinary Shares and solely as a result of holding the Notes, without having to exchange its Notes and as if
it held a number of Ordinary Shares equal to the Exchange Rate,
multiplied by
the principal amount (expressed in thousands) of Notes held by such Holder.
(a) If the Parent exclusively issues Ordinary Shares as a dividend or distribution on all or substantially all of its Ordinary Shares, or if
the Parent effects a share subdivision or share consolidation, the Exchange Rate shall be adjusted based on the following formula:
- 38 -
where,
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ER
0
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=
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the Exchange Rate in effect immediately prior to the Open of Business on the Ex-Dividend Date of such dividend or distribution, or immediately prior to the Open of Business on the Effective Date of such share subdivision or share
consolidation, as applicable;
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ER
1
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=
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the Exchange Rate in effect immediately after the Open of Business on such Ex-Dividend Date or Effective Date, as applicable;
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OS
0
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=
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the number of Ordinary Shares outstanding immediately prior to the Open of Business on such Ex-Dividend Date or Effective Date, as applicable; and
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OS
1
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=
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the number of Ordinary Shares outstanding immediately after giving effect to such dividend, distribution, share subdivision or share consolidation, as applicable.
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Any adjustment made under this Section 8.04(a) shall become effective immediately after the Open of
Business on the Ex-Dividend Date for such dividend or distribution, or immediately after the Open of Business on the Effective Date for such share subdivision or share consolidation. If any dividend or distribution of the type described in this
Section 8.04(a) is declared but not so paid or made, the Exchange Rate shall be immediately readjusted, effective as of the date the Parent determines not to pay such dividend or distribution, to the Exchange Rate that would then be in effect
if such dividend or distribution had not been declared.
(b) If the Parent issues to all or substantially all holders of Ordinary Shares
any rights, options or warrants (other than pursuant to a shareholder rights plan) entitling them, for a period of not more than forty five (45) calendar days after the date of such issuance, to subscribe for or purchase Ordinary Shares at a
price per share less than the average of the Last Reported Sale Prices per Ordinary Share over the ten (10) consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement for such
issuance, the Exchange Rate will be increased based on the following formula:
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ER
1
=
ER
0
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x
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OS
0
+
X
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OS
0
+
Y
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where,
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ER
0
|
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=
|
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the Exchange Rate in effect immediately prior to the Open of Business on the Ex-Dividend Date for such issuance;
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ER
1
|
|
=
|
|
the Exchange Rate in effect immediately after the Open of Business on such Ex-Dividend Date;
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- 39 -
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OS
0
|
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=
|
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the number of Ordinary Shares outstanding immediately prior to the Open of Business on such Ex-Dividend Date;
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X
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=
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the total number of Ordinary Shares issuable pursuant to such rights, options or warrants; and
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Y
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=
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the number of Ordinary Shares equal to the aggregate price payable to exercise such rights, options or warrants,
divided by
the average of the Last Reported Sale Prices per Ordinary Share over the ten (10) consecutive Trading
Day period ending on, and including, the Trading Day immediately preceding the date of announcement for such issuance.
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Any increase made under this Section 8.04(b) shall be made successively whenever any such rights, options
or warrants are issued and shall become effective immediately after the Open of Business on the Ex-Dividend Date for such issuance. To the extent that Ordinary Shares are not delivered after the expiration of such rights, options or warrants, the
Exchange Rate shall be readjusted to the Exchange Rate that would then be in effect had the increase with respect to the issuance of such rights, options or warrants been made on the basis of delivery of only the number of Ordinary Shares actually
delivered. If such rights, options or warrants are not so issued, or if no such rights, options or warrants are exercised prior to their expiration, the Exchange Rate shall be readjusted to be the Exchange Rate that would then be in effect if such
Ex-Dividend Date for such issuance had not occurred.
For purposes of this Section 8.04(b) and for the purpose of
Section 8.01(b)(iii)(B), in determining whether any rights, options or warrants entitle the holders to subscribe for or purchase Ordinary Shares at a price per Ordinary Share less than such average of the Last Reported Sale Prices per Ordinary
Share over the ten (10) consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the declaration date for such issuance, and in determining the aggregate offering price of such Ordinary Shares, there shall
be taken into account any consideration received by the Parent for such rights, options or warrants and any amount payable on exercise or exchange thereof, the value of such consideration, if other than cash, to be determined by the Parent in good
faith.
(c) If the Parent distributes any shares of its Capital Stock, evidences of its indebtedness, other assets or property of the
Parent or rights, options or warrants to acquire its Capital Stock or other securities, to all or substantially all holders of the Ordinary Shares, excluding (i) dividends, distributions, rights, options or warrants described in
Section 8.04(a) or Section 8.04(b), (ii) dividends or distributions paid exclusively in cash described in Section 8.04(d), (iii) any dividends and distributions in connection with an Ordinary Share Change Event,
(iv) except as otherwise set forth in this Section 8.04, rights issued pursuant to a shareholder rights plan adopted by the Parent and (v) Spin-Offs as to which the provisions set forth below in this Section 8.04(c) shall apply
(any of such shares of Capital Stock, evidences of indebtedness, other assets, property, rights, options or warrants, the “
Distributed Property
”), then the Exchange Rate shall be increased based on the following formula:
|
|
|
|
|
|
|
|
|
|
|
|
|
ER
1
=
ER
0
|
|
x
|
|
S
P
0
|
|
|
|
|
|
|
|
|
|
S
P
0
- FMV
|
|
|
- 40 -
where,
|
|
|
|
|
|
|
|
|
ER
0
|
|
|
=
|
|
|
the Exchange Rate in effect immediately prior to the Open of Business on the Ex-Dividend Date for such distribution;
|
|
|
|
|
|
ER
1
|
|
|
=
|
|
|
the Exchange Rate in effect immediately after the Open of Business on such Ex-Dividend Date;
|
|
|
|
|
|
SP
0
|
|
|
=
|
|
|
the average of the Last Reported Sale Prices per Ordinary Share over the ten (10) consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution;
and
|
|
|
|
|
|
FMV
|
|
|
=
|
|
|
the fair market value (as determined by the Parent in good faith) of the share capital, evidences of indebtedness, other assets or property of the Parent or rights, options or warrants to acquire the Parent’s share capital or
other securities distributed with respect to each Ordinary Share outstanding on the Ex-Dividend Date for such distribution.
|
Any increase made under the portion of this Section 8.04(c) shall become effective immediately after the
Open of Business on the Ex-Dividend Date for such distribution. If such distribution is not so paid or made, the Exchange Rate shall be readjusted to the Exchange Rate that would then be in effect if such distribution had not been declared. If
“FMV” (as defined above) is equal to or greater than the “SP
0
” (as defined above), in lieu of the foregoing increase, provision will be made such that each Holder of a Note
shall receive, in respect of each $1,000 principal amount of Notes it holds, upon exchange, the amount and kind of Distributed Property that such Holder would have received if such Holder owned a number of Ordinary Shares equal to the Exchange Rate
in effect on the Ex-Dividend Date for the distribution.
With respect to an adjustment pursuant to this Section 8.04(c) where there
has been a payment of a dividend or other distribution on the Ordinary Shares of shares or share capital of any class or series, or similar equity interest, of or relating to a Subsidiary or other business unit of the Parent, and such shares, share
capital or similar equity interest is listed or quoted (or will be listed or quoted upon the consummation of such dividend or other distribution) on a U.S. national securities exchange or a reasonably comparable non-U.S. equivalent (a
“
Spin-Off
”), the Exchange Rate shall be increased based on the following formula:
|
|
|
|
|
|
|
|
|
|
|
|
|
ER
1
=
ER
0
|
|
x
|
|
FMV
0
+
M
P
0
|
|
|
|
|
|
|
|
|
|
MP
0
|
|
|
where,
|
|
|
|
|
|
|
|
|
ER
0
|
|
|
=
|
|
|
the Exchange Rate in effect immediately prior to the Open of Business on the Ex-Dividend Date for such Spin-Off;
|
|
|
|
|
|
ER
1
|
|
|
=
|
|
|
the Exchange Rate in effect immediately after the Open of Business on the Ex-Dividend Date for such Spin-Off;
|
- 41 -
|
|
|
|
|
|
|
|
|
|
|
|
|
FMV
0
|
|
|
=
|
|
|
the average of the Last Reported Sale Prices of the shares, share capital or similar equity interest distributed to holders of the Ordinary Shares applicable to one (1) Ordinary Share (determined by reference to the definition of
Last Reported Sale Price as set forth in Section 1.01 as if references therein to Ordinary Shares were to such shares, share capital or similar equity interest) over the first ten (10) consecutive Trading Day period after, and including, the
Ex-Dividend Date of the Spin-Off (the “
Valuation Period
”); and
|
|
|
|
|
|
MP
0
|
|
|
=
|
|
|
the average of the Last Reported Sale Prices per Ordinary Share over the Valuation Period.
|
The adjustment to the Exchange Rate under the preceding paragraph will be determined on the last Trading Day
of the Valuation Period, but given effect as of the Ex-Dividend Date for the Spin-Off;
provided
,
however
, that (i) if the Exchange Settlement Date for a Note whose exchange is to be settled pursuant to Cash Settlement or
Combination Settlement occurs on or before the last Trading Day in the such Valuation Period and any VWAP Trading Day in the Observation Period for such exchange occurs on any Trading Day within such Valuation Period, then, solely for purposes of
determining the Exchange Consideration for such exchange, such Valuation Period will be deemed to be the period from, and including, the Ex-Dividend Date for such Spin-Off to, and including, the last VWAP Trading Day in such Observation Period (or,
if such VWAP Trading Day is not a Trading Day, the immediately preceding Trading Day); and (ii) if the Exchange Settlement Date for a Note whose exchange is to be settled pursuant to Physical Settlement occurs on or before the last Trading Day
in such Valuation Period and the Exchange Date for such exchange occurs on any Trading Day within such Valuation Period, then, solely for purposes of determining the Exchange Consideration for such exchange, such Valuation Period will be deemed to
be the period from, and including, the Ex-Dividend Date for such Spin-Off to, and including, such Exchange Date (or, if such Exchange Date is not a Trading Day, the immediately preceding Trading Day).
If any dividend or distribution that constitutes a Spin-Off is not so paid, the Exchange Rate shall be readjusted, effective as of the date
the Parent determines not to pay such dividend or distribution, to the Exchange Rate that would then be in effect if such dividend or distribution had not been declared.
(d) If any cash dividend or distribution is made to all or substantially all holders of the Ordinary Shares, the Exchange Rate will be
adjusted based on the following formula:
|
|
|
|
|
|
|
|
|
|
|
|
|
ER
1
=
ER
0
|
|
x
|
|
SP
0
|
|
|
|
|
|
|
|
|
|
SP
0
-
C
|
|
|
|
|
|
|
|
|
|
|
|
where,
|
|
|
|
|
|
|
|
|
|
|
|
ER
0
|
|
|
=
|
|
|
the Exchange Rate in effect immediately prior to the Open of Business on the Ex-Dividend Date for such dividend or distribution;
|
|
|
|
|
|
ER
1
|
|
|
=
|
|
|
the Exchange Rate in effect immediately after the Open of Business on the Ex-Dividend Date for such dividend or distribution;
|
- 42 -
|
|
|
|
|
|
|
|
|
|
|
|
|
SP
0
|
|
|
=
|
|
|
the Last Reported Sale Price per Ordinary Share on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and
|
|
|
|
|
|
C
|
|
|
=
|
|
|
the amount in cash per Ordinary Share that the Parent distributes to all or substantially all holders of the Ordinary Shares.
|
Any increase pursuant to this Section 8.04(d) shall become effective immediately after the Open of
Business on the Ex-Dividend Date for such dividend or distribution. If such dividend or distribution is not so paid, the Exchange Rate shall be decreased to be the Exchange Rate that would then be in effect if such dividend or distribution had not
been declared. If “C” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the foregoing increase, provision will be made such that. each Holder of a Note shall receive, for each $1,000 principal
amount of Notes it holds, upon exchange, the amount of cash that such Holder would have received if such Holder owned a number of Ordinary Shares equal to the Exchange Rate on the Ex-Dividend Date for such cash dividend or distribution.
(e) If the Parent or any of its Subsidiaries makes a payment in respect of a tender offer or exchange offer for Ordinary Shares, other than
odd lot tender offers, to the extent that the cash and value of any other consideration included in the payment per Ordinary Share exceeds the average of the Last Reported Sale Prices per Ordinary Share over the ten (10) consecutive Trading Day
period (the “
Tender/Exchange Offer Valuation Period
”) commencing on, and including, the Trading Day next succeeding the last date (the “
Expiration Date
”) on which tenders or exchanges may be made
pursuant to such tender or exchange offer, the Exchange Rate shall be increased based on the following formula:
|
|
|
|
|
|
|
|
|
|
|
|
|
ER
1
=
ER
0
|
|
x
|
|
AC
+ (
SP
1
x
OS
1
)
|
|
|
|
|
|
|
|
|
|
OS
0
x
SP
1
|
|
|
where,
|
|
|
|
|
|
|
|
|
ER
0
|
|
|
=
|
|
|
the Exchange Rate in effect immediately prior to the Close of Business on the tenth (10th) Trading Day immediately following, and including, the Trading Day next succeeding the Expiration Date;
|
|
|
|
|
|
ER
1
|
|
|
=
|
|
|
the Exchange Rate in effect immediately after the Close of Business on the tenth (10th) Trading Day immediately following, and including, the Trading Day next succeeding the Expiration Date;
|
|
|
|
|
|
AC
|
|
|
=
|
|
|
the aggregate value, on the Expiration Date, of all cash and any other consideration (as determined by the Parent) paid or payable for Ordinary Shares purchased in such tender or exchange offer;
|
|
|
|
|
|
OS
0
|
|
|
=
|
|
|
the number of Ordinary Shares outstanding immediately prior to the Close of Business on the on the Expiration Date (prior to giving effect to the purchase of all Ordinary Shares accepted for purchase or exchange in such tender or
exchange offer);
|
- 43 -
|
|
|
|
|
|
|
|
|
|
|
|
|
OS
1
|
|
|
=
|
|
|
the number of Ordinary Shares outstanding immediately after the Close of Business on the Expiration Date (after giving effect to the purchase of all Ordinary Shares accepted for purchase or exchange in such tender or exchange
offer); and
|
|
|
|
|
|
SP
1
|
|
|
=
|
|
|
the average of the Last Reported Sale Prices per Ordinary Share over the Tender/Exchange Offer Valuation Period.
|
The adjustment to the Exchange pursuant to this Section 8.04(e) will occur immediately after the Close of
Business on the tenth (10th) Trading Day immediately following, and including, the Trading Day next succeeding the Expiration Date;
provided
,
however
, that (i) if the Exchange Settlement Date for a Note whose exchange is to
be settled pursuant to Cash Settlement or Combination Settlement occurs on or before the last Trading Day in such Tender/Exchange Offer Valuation Period and any VWAP Trading Day in the Observation Period for such exchange occurs on any Trading Day
within such Tender/Exchange Offer Valuation Period, then, solely for purposes of determining the Exchange Consideration for such exchange, such Tender/Exchange Offer Valuation Period will be deemed to be the period from, and including, the Trading
Day immediately after the Expiration Date for such tender or exchange offer to, and including, the last VWAP Trading Day in such Observation Period (or, if such VWAP Trading Day is not a Trading Day, the immediately preceding Trading Day); and
(ii) if the Exchange Settlement Date for a Note whose exchange is to be settled pursuant to Physical Settlement occurs on or before the last Trading Day in such Tender/Exchange Offer Valuation Period and the Exchange Date for such exchange
occurs on any Trading Day within such Tender/Exchange Offer Valuation Period, then, solely for purposes of determining the Exchange Consideration for such exchange, such Tender/Exchange Offer Valuation Period will be deemed to be the period from,
and including, the Trading Day immediately after the Expiration Date to, and including, such Exchange Date (or, if such Exchange Date is not a Trading Day, the immediately preceding Trading Day. If the Parent or one of its subsidiaries is obligated
to purchase Ordinary Shares pursuant to any such tender or exchange offer described in this Section 8.04(e) but is permanently prevented by applicable law from effecting any such purchase or all such purchases are rescinded, the Exchange Rate
will be readjusted to be the Exchange Rate that would then be in effect if such tender or exchange offer had not been made or had been made only in respect of the purchases that have been effected.
(f) Notwithstanding this Section 8.04 or any other provision of the Indenture or the Notes, if (i) an Exchange Rate adjustment
becomes effective on any Ex-Dividend Date as described above; (ii) a Note is exchanged and Physical Settlement or Combination Settlement applies to such exchange; (iii) the Exchange Date for such exchange (in the case of Physical
Settlement) or any VWAP Trading Day in the Observation Period for such exchange (in the case of Combination Settlement) occurs on or after such Ex-Dividend Date and on or before the related record date; (iv) the Exchange Consideration due upon
such exchange (in the case of Physical Settlement) or due with respect to such VWAP Trading Day (in the case of Combination Settlement) includes any whole Ordinary Shares and (v) the Holder of such Note would be treated as the record holder of
such Ordinary Shares as of the related record date as provided in Section 8.02(j) based on an adjusted Exchange Rate for such Ex-Dividend Date, then, notwithstanding the Exchange Rate adjustment provisions in this Section 8.04, the
Exchange Rate adjustment relating to such Ex-Dividend Date shall not be made for such exchanging Holder. Instead, such Holder shall be treated as if such Holder were the record owner of the Ordinary Shares on an unadjusted basis and participate in
the related dividend, distribution or other event giving rise to such adjustment.
- 44 -
(g) Except as stated in this Indenture, the Company shall not adjust the Exchange Rate for the
issuance of Ordinary Shares or any securities convertible into or exchangeable for Ordinary Shares or the right to purchase Ordinary Shares or such convertible or exchangeable securities.
(h) In addition to those adjustments required by clauses (a), (b), (c), (d) and (e) of this Section 8.04, and to the extent
permitted by applicable law and subject to the applicable stock exchange rules, the Company from time to time may increase the Exchange Rate by any amount for a period of at least twenty (20) Business Days if the Company determines that such
increase would be in its best interest. In addition, the Company may (but is not required to) increase the Exchange Rate to avoid or diminish any income tax to holders of Ordinary Shares or rights to purchase Ordinary Shares in connection with a
dividend or distribution of Ordinary Shares (or rights to acquire Ordinary Shares) or similar event.
(i) Without limiting the foregoing,
the Exchange Rate shall not be required to be adjusted:
(i) upon the issuance of any Ordinary Shares pursuant to any
present or future plan providing for the reinvestment of dividends or interest payable on the Parent’s securities and the investment of additional optional amounts in Ordinary Shares under any plan;
(ii) upon the issuance of any Ordinary Shares or options or rights to purchase those Ordinary Shares pursuant to any present or
future employee, director or consultant benefit plan or program of or assumed by the Parent or any of the Parent’s Subsidiaries;
(iii) upon the issuance of any Ordinary Shares pursuant to any option, warrant, right or exercisable or exchangeable security
not described in clause (ii) of this subsection and outstanding as of the date the Notes were first issued;
(iv)
solely for a change in the par value of the Ordinary Shares;
(v) for accrued and unpaid interest, if any;
(vi) for an event otherwise requiring an adjustment, as described herein if such event is not consummated; or
(vii) for a third-party tender offer other than as described under Section 8.04(e).l
(j) Adjustments to the Exchange Rate will be calculated to the nearest 1/10,000th of an Ordinary Share. Prior to any Exchange Date, no
adjustment in the Exchange Rate will be required unless the adjustment would require an increase or decrease of at least one percent (1%) in the Exchange Rate. If any adjustment is not required to be made because it would not change the
Exchange Rate by at least one percent (1%), then the adjustment will be carried forward and
- 45 -
taken into account in any subsequent adjustment regardless of whether such subsequent increase or decrease would change the Exchange Rate by at least one percent (1%). On the earlier of
January 1, 2021, any Redemption Date, any Exchange Date, any Fundamental Change Repurchase Date or the effective date of a Make-Whole Fundamental Change, adjustments to the Exchange Rate will be made with respect to any such adjustment carried
forward and which has not been taken into account before such date. For the avoidance of doubt, adjustments made to this Section 8.04(j) will be made, solely to the extent the Company determines in its good faith judgment that any such
adjustment is necessary, without duplication of any adjustment made pursuant to the provision set forth above.
(k) Whenever the Exchange
Rate is adjusted as herein provided, the Company shall provide the Trustee (and the Exchange Agent, if not the Trustee) an Officer’s Certificate setting forth the Exchange Rate after such adjustment and setting forth a brief statement of the
facts requiring such adjustment. Unless and until a Responsible Officer of the Trustee (and Exchange Agent) shall have received such Officer’s Certificate, the Trustee (and Exchange Agent) shall not be deemed to have knowledge of any adjustment
of the Exchange Rate and may assume without inquiry that the last Exchange Rate of which it has knowledge is still in effect. As soon as reasonably practicable after delivery of such certificate, the Company shall prepare a notice of such adjustment
of the Exchange Rate setting forth the adjusted Exchange Rate and the date on which each adjustment becomes effective and shall send such notice of such adjustment of the Exchange Rate to each Holder. Failure to deliver such notice shall not affect
the legality or validity of any such adjustment.
(l) For purposes of this Section 8.04, the number of Ordinary Shares at any time
outstanding shall not include Ordinary Shares held in the treasury of the Company so long as the Company does not pay any dividend or make any distribution on Ordinary Shares held in the treasury of the Company, but shall include Ordinary Shares
issuable in respect of scrip certificates issued in lieu of fractions of Ordinary Shares.
Section 8.05.
Adjustments of
Prices
. Whenever any provision of the Indenture requires the Company to calculate the Last Reported Sale Prices or the Daily VWAPs, or any function thereof, over a span of multiple days (including during an Observation Period or to calculate the
Stock Price or an adjustment to the Exchange Rate), the Company will make appropriate adjustments to account for any adjustment to the Exchange Rate that becomes effective, or any transaction or other event requiring an adjustment to the Exchange
Rate where the Ex-Dividend Date, effective date or Expiration Date, as applicable, of such transaction or event occurs, at any time during the period when such Last Reported Sale Prices, Daily VWAPs or function thereof are to be calculated.
Section 8.06.
Effect of Recapitalizations, Reclassifications and Changes of the Ordinary Shares
.
(a) If there occurs any:
(i) recapitalization, reclassification or change of the Ordinary Shares (other than changes resulting from a subdivision or
consolidation or change in par value);
- 46 -
(ii) consolidation, merger, amalgamation, scheme of arrangement or offer or
combination involving the Parent;
(iii) sale, lease or other transfer to a third party of the consolidated assets of the
Parent and its Subsidiaries, substantially as an entirety; or
(iv) any statutory share exchange,
in each case, as a result of which, the Ordinary Shares would be exchanged into, or is exchanged for, stock, other securities, other property or assets
(including cash or any combination thereof) (the “
Reference Property
,” and the amount and kind of Reference Property that a holder of one (1) Ordinary Share would have received in such transaction, without giving effect
to any arrangement to deliver cash in lieu of any fractional unit of any security or other property, a “
Reference Property Unit
”), (such a transaction, an “
Ordinary Share Change Event
”), then, at and
after the effective time of such Ordinary Share Change Event, the Exchange Consideration due upon exchange of any note, and the conditions to the exchangeability thereof set forth in Section 8.01(b), will be determined as if each reference in
Article 8 to any number of Ordinary Shares were instead a reference to the same number of Reference Property Units.
(b) If the Ordinary
Share Change event causes the Ordinary Shares to be exchanged into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), the composition of the Reference
Property Unit will be deemed to be (x) the weighted average, per Ordinary Share, of the types and amounts of consideration received by the holders of Ordinary Shares that affirmatively make such an election; or (y) if no holders of
Ordinary Shares affirmatively make such an election, the types and amounts of consideration actually by the holders of Ordinary Shares. The Company will notify Holders and the Trustee of the weighted average as soon as practicable after such
determination is made. In addition, following any such Ordinary Share Change Event, (x) the Last Reported Sale Price of any Reference Property Unit or portion thereof that does not consist of a class of securities will be the fair value of such
Reference Property Unit or portion thereof, as applicable, determined in good faith by the Company (or, in the case of cash denominated in U.S. dollars, the face amount thereof); (y) for purposes of the definition of “Fundamental
Change” and “Make-Whole Fundamental Change,” the term “Ordinary Shares” will be deemed to mean the common equity, if any, forming part of such Reference Property and (z) if such Reference Property Unit consists entirely
of cash, then the Company will be deemed to elect Cash Settlement in respect of all exchanges whose Exchange Date occurs on or after the effective date of such Ordinary Share Change Event and will pay the cash due upon such exchanges no later than
the third (3rd) Business Day after the relevant Exchange Date.
(c) As soon as practicable after learning the anticipated or actual
effective date of any Ordinary Share Change Event, the Company will provide written notice to the Holders and the Trustee of such Ordinary Share Change Event, including a brief description of such Ordinary Share Change Event, its anticipated
effective date and a brief description of the anticipated change in the exchange right of the Notes.
Section 8.07.
Certain
Covenants
. (a) The Company covenants that all Ordinary Shares issued upon exchange of Notes will be fully paid up and non-assessable by the Parent and free from all taxes, liens and charges (other than those created by the Holder) with
respect to the issue thereof.
- 47 -
(b) The Company further covenants that if at any time the Ordinary Shares shall be listed on any
national securities exchange or automated quotation system the Company will use its reasonable efforts to list and keep listed, so long as the Ordinary Shares shall be so listed on such exchange or automated quotation system, any Ordinary Shares
issuable upon exchange of the Notes.
Section 8.08.
Responsibility of Trustee
. The Trustee and any other Exchange Agent shall
not at any time be under any duty or responsibility to any Holder to determine the Exchange Rate (or any adjustment thereto) or whether any facts exist that may require any adjustment (including any increase) of the Exchange Rate, or with respect to
the nature or extent or calculation of any such adjustment when made, or with respect to the method employed, or herein or in any supplemental indenture provided to be employed, in making the same. The Trustee and any other Exchange Agent shall not
be accountable with respect to the validity or value (or the kind or amount) of any Ordinary Shares, or of any securities, property or cash that may at any time be issued or delivered upon the exchange of any Note; and the Trustee and any other
Exchange Agent make no representations with respect thereto. Neither the Trustee nor any Exchange Agent shall be responsible for any failure of the Company to issue, transfer or deliver any Ordinary Shares or stock certificates or other securities
or property or cash upon the surrender of any Note for the purpose of exchange or to comply with any of the duties, responsibilities or covenants of the Company contained in this Article. Without limiting the generality of the foregoing, neither the
Trustee nor any Exchange Agent shall be under any responsibility to determine the correctness of any provisions contained in any supplemental indenture entered into pursuant to Section 8.06 relating either to the kind or amount of shares of
stock or securities or property (including cash) receivable by Holders upon the exchange of their Notes after any event referred to in such Section 8.06 or to any adjustment to be made with respect thereto, but, subject to the provisions of
Section 6.3 of the Base Indenture, may accept (without any independent investigation) as conclusive evidence of the correctness of any such provisions, and shall be protected in relying upon, the Officer’s Certificate (which the Company
shall be obligated to file with the Trustee prior to the execution of any such supplemental indenture) with respect thereto. Neither the Trustee nor the Exchange Agent shall be responsible for determining whether any event contemplated by
Section 9.01(b) has occurred that makes the Notes eligible for exchange or no longer eligible therefor until the Company has delivered to the Trustee and the Exchange Agent the notices referred to in Section 9.01(b) with respect to the
commencement or termination of such exchange rights, on which notices the Trustee and the Exchange Agent may conclusively rely, and the Company agrees to deliver such notices to the Trustee and the Exchange Agent as soon as reasonably practicable
after the occurrence of any such event or at such other times as shall be provided for in Section 9.01(b).
Section 8.09.
Stockholder Rights Plans
. To the extent the Parent has a stockholder rights plan applicable to Ordinary Shares in effect upon the exchange of a Note, the exchanging Holder will receive, in addition to any Ordinary Shares received in
connection with such exchange, the rights under such stockholder rights plan. However, if prior to any exchange of Notes, the rights have separated from the Ordinary Shares in accordance with the provisions of such plan, the Exchange Rate shall be
adjusted at the time of separation as if the Parent
- 48 -
distributed to all or substantially all holders of the Ordinary Shares, share capital of the Parent, evidences of indebtedness, other assets or property of the Parent or rights, options or
warrants to acquire the Parent’s share capital or other securities as provided in Section 8.04(c), subject to readjustment in the event of the expiration, termination or redemption of such rights.
ARTICLE 9
REPURCHASE OF NOTES AT
OPTION OF HOLDERS
Section 9.01.
Repurchase at Option of Holders Upon a Fundamental Change
. (a) Subject to the other
terms of this Section 9.01, if a Fundamental Change occurs, then each Holder will have the right (the “
Fundamental Change Repurchase Right
”) to require the Company to repurchase such Holder’s Notes (or any portion
thereof of a Note in an Authorized Denomination) on the Fundamental Change Repurchase Date for such Fundamental Change for a cash purchase price equal to the Fundamental Change Repurchase Price. The Fundamental Change Repurchase Date for any
Fundamental Change will be a Business Day of the Company’s choosing that is no more than thirty five (35), nor less than twenty (20), Business Days after the date the Company sends the related Fundamental Change Repurchase Notice pursuant to
Section 9.01(d).
(b) The Fundamental Change Repurchase Price for any Note to be repurchased following a Fundamental Change is an
amount in cash equal to the principal amount of such Note plus accrued and unpaid interest on such Note to, but excluding, the Fundamental Change Repurchase Date for such Fundamental Change;
provided
,
however
, that if such Fundamental
Change Repurchase Date is after a Regular Record Date and on or before the next Interest Payment Date, then (i) the Holder of such Note at the Close of Business on such Regular Record Date will be entitled, notwithstanding such repurchase, to
receive, on such Fundamental Change Repurchase Date, the unpaid interest that would have accrued on such Note to, but excluding, such Fundamental Change Repurchase Date (assuming, solely for these purposes, that such Note remained outstanding
through such Fundamental Change Repurchase Date, if such Fundamental Change Repurchase Date is before such Interest Payment Date); and (ii) the Fundamental Change Repurchase Price will not include accrued and unpaid interest on such Note to,
but excluding, such Fundamental Change Repurchase Date.
(c) Notwithstanding anything to the contrary above, if the principal amount of
the Notes has been accelerated (other than as a result of the Company’s failure to pay the Fundamental Change Repurchase Price and any related interest described above on the Fundamental Change Repurchase Date) and such acceleration has not
been rescinded on or before the Fundamental Change Repurchase Date for a Repurchase upon Fundamental Change , then (i) the Company shall not repurchase any Notes pursuant to this Section 9.01; and (ii) the Company will cause any Notes
theretofore surrendered for such Repurchase upon Fundamental Change to be returned to the Holders thereof (or, if applicable with respect to Global Notes, cancel any instructions for book-entry transfer to the Company, the Trustee or the Paying
Agent of the applicable beneficial interest in such Notes in accordance with the Depositary Procedures).
(d) On or before the twentieth
(20th) calendar day after the occurrence of a Fundamental Change, the Company will provide to each Holder (and to any beneficial owner of a Global Note, if required by applicable law), the Trustee and the Paying Agent a written notice of such
Fundamental Change (a “
Fundamental Change Repurchase Notice
”).
- 49 -
Such Fundamental Change Repurchase Notice must state:
(i) briefly, the events causing such Fundamental Change;
(ii) the effective date of such Fundamental Change;
(iii) the procedures that a Holder must follow to require the Company to repurchase its Notes pursuant to this
Section 9.01, including the deadline for exercising the Fundamental Change Repurchase Right and the procedures for submitting and withdrawing a Fundamental Change Repurchase Notice;
(iv) the Fundamental Change Repurchase Date for such Fundamental Change;
(v) the Fundamental Change Repurchase Price per $1,000 principal amount of Notes for such Fundamental Change (and, if such
Fundamental Change Repurchase Date is after a Regular Record Date and on or before the next Interest Payment Date, the amount, manner and timing of the interest payment payable pursuant to the proviso to Section 9.01(b));
(vi) the name and address of the Paying Agent and the Exchange Agent;
(vii) the Exchange Rate in effect on the date of such Fundamental Change Repurchase Notice and a description and quantification
of any adjustments to the Exchange Rate that may result from such Fundamental Change (including pursuant to Section 8.03);
(viii) that Notes for which a Fundamental Change Repurchase Notice has been duly tendered and not duly withdrawn must be
delivered to the Paying Agent for the Holder thereof to be entitled to receive the Fundamental Change Repurchase Price;
(ix) that Notes (or any portion thereof) that are subject to a Fundamental Change Repurchase Notice that has been duly tendered
may be exchanged only if such Fundamental Change Repurchase Notice is withdrawn in accordance with the Indenture; and
(x)
the CUSIP and ISIN numbers, if any, of the Notes.
Neither the failure to deliver a Fundamental Change Repurchase Notice nor any defect in
a Fundamental Change Repurchase Notice will limit the Fundamental Change Repurchase Right of any Holder or otherwise affect the validity of any proceedings relating to any Repurchase Upon Fundamental Change.
(e)
Procedures to Exercise the Fundamental Change Repurchase Right
.
(i) To exercise its Fundamental Change Repurchase Right for a Note following a Fundamental Change, the Holder thereof must
deliver to the Paying Agent:
- 50 -
(A) before the Close of Business on the Business Day immediately before the
related Fundamental Change Repurchase Date (or such later time as may be required by law), a duly completed, written Fundamental Change Repurchase Notice with respect to such Note; and
(B) such Note, duly endorsed for transfer (if such Note is a Physical Note) or by book-entry transfer (if such Note is a Global
Note).
The Paying Agent will promptly deliver to the Company a copy of each Fundamental Change Repurchase Notice that it receives.
(ii) Each Fundamental Change Repurchase Notice with respect to a Note must state:
(A) if such Note is a Physical Note, the certificate number of such Note;
(B) the principal amount of such Note to be repurchased, which must be an Authorized Denomination; and
(C) that such Holder is exercising its Fundamental Change Repurchase Right with respect to such principal amount of such Note;
provided
,
however
, that if such Note is a Global Note, then such Fundamental Change Repurchase Notice must comply with the
Depositary Procedures (and any such Fundamental Change Repurchase Notice delivered in compliance with the Depositary Procedures will be deemed to satisfy the requirements of this Section 9.01(e)).
(iii)
Withdrawal of Fundamental Change Repurchase Notice.
A Holder that has delivered a Fundamental Change Repurchase
Notice with respect to Note may withdraw such Fundamental Change Repurchase Notice by delivering a written notice of withdrawal to the Paying Agent at any time before the Close of Business on the Business Day immediately before the related
Fundamental Change Repurchase Date. Such withdrawal notice must state:
(A) if such Note is a Physical Note, the
certificate number of such Note;
(B) the principal amount of such Note to be withdrawn, which must be an Authorized
Denomination; and
(C) the principal amount of such Note, if any, that remains subject to such Fundamental Change
Repurchase Notice, which must be an Authorized Denomination;
provided
,
however
, that if such Note is a Global Note, then
such withdrawal notice must comply with the Depositary Procedures (and any such withdrawal notice delivered in compliance with the Depositary Procedures will be deemed to satisfy the requirements of this Section 9.01(e)).
- 51 -
Upon receipt of any such withdrawal notice with respect to a Note (or any portion thereof), the
Paying Agent will promptly deliver a copy of such withdrawal notice to the Company.
(f) Notwithstanding anything to the contrary in this
Section 9.01, the Company will be deemed to satisfy its obligations under this Section 9.01 if one or more third parties conduct any Repurchase Upon Fundamental Change and related offer to repurchase Notes otherwise required by this
Section 9.01 in a manner that would have satisfied the requirements of this Section 9.01 if conducted directly by the Company.
(g) Notwithstanding anything to the contrary in this Section 9.01, the Company will not be required to send a Fundamental Change
Repurchase Notice pursuant to Section 9.01(d), or offer to repurchase or repurchase any Notes pursuant to this Section 9.01, in connection with a Fundamental Change occurring pursuant to clause (c) (or a Fundamental Change occurring
pursuant to clause (c) that also results in a Fundamental Change occurring pursuant to clause (b)) of the definition thereof, if (i) such Fundamental Change constitutes an Ordinary Share Change Event whose Reference Property consists
solely of cash in U.S. dollars; (ii) immediately after such Fundamental Change, the Notes become exchangeable, pursuant to Section 8.06 and, if applicable, Section 8.03, into solely such cash in an amount per Note that equals or
exceeds the Fundamental Change Repurchase Price per Note (calculated assuming that the same includes accrued interest to, but excluding, the latest possible Fundamental Change Repurchase Date for such Fundamental Change); and (iii) the Company
timely sends the notice relating to such Fundamental Change required pursuant to Section 8.01(b)(iv).
Section 9.02.
Deposit
of Fundamental Change Repurchase Price.
The Company will cause the Fundamental Change Repurchase Price for a Note (or portion thereof) to be repurchased pursuant to a Repurchase Upon Fundamental Change to be paid to the Holder thereof on or
before the later of (a) the applicable Fundamental Change Repurchase Date; and (b) the date (i) such Note is delivered to the Paying Agent (in the case of a Physical Note) or (ii) the Depositary Procedures relating to the
repurchase, and the delivery to the Paying Agent, of such Holder’s beneficial interest in such Note to be redeemed are complied with (in the case of a Global Note). For the avoidance of doubt, interest payable pursuant to the proviso to
Section 9.01(b) on any Note to be repurchased pursuant to a Repurchase Upon Fundamental Change must be paid pursuant to such proviso regardless of whether such Note is delivered or such Depositary Procedures are complied with pursuant to the
first sentence of this Section 9.02.
Section 9.03.
Covenant to Comply with Applicable Laws Upon Repurchase of Notes
. To
the extent applicable, the Company will comply with all federal and state securities laws in connection with a Repurchase Upon Fundamental Change (including complying with Rules 13e-4 and 14e-1 under the Exchange Act and filing any required Schedule
TO, to the extent applicable) so as to permit effecting such Repurchase Upon Fundamental Change in the manner set forth in the Indenture.
- 52 -
ARTICLE 10
REDEMPTION UPON A CHANGE IN TAX LAW
Section 10.01.
Applicability of Article Eleven of the Base Indenture.
For purposes of the Notes, this Article 10 shall replace in
its entirety Article Eleven of the Base Indenture, and all references in the Base Indenture to Article Eleven thereof and the provisions therein, as the case may be, shall, with respect to the Notes, be deemed to be references to this Article 10 and
the applicable provisions set forth in this Article 10, respectively.
Section 10.02.
Redemption Upon a Change in Tax Law.
No
sinking fund shall be required for the Notes. The Notes shall not be redeemable by the Company prior to the Maturity Date except to the extent set forth in this Article 10. Prior to the Maturity Date, if the Company has, or on the next Interest
Payment Date would, become obligated to pay to the Holder of any Note Additional Amounts as a result of any change or amendment on or after the date of this Supplemental Indenture in the laws or any rules or regulations of a Relevant Taxing
Jurisdiction or any change on or after the date of this Supplemental Indenture in an interpretation, administration or application of such laws, rules or regulations by any legislative body, court, governmental agency, taxing authority or regulatory
or administrative authority of such Relevant Taxing Jurisdiction (including the enactment of any legislation and the formal announcement or publication of any judicial decision or regulatory or administrative interpretation or determination), then
the Company may, at its option, redeem all (a “
Redemption
”), but not less than all, of the Notes, for cash at the Redemption Price.
Section 10.03.
Notice of Redemption; Selection of Notes.
(a) If the Company exercises its right to redeem all of the Notes
pursuant to Section 10.02, it shall fix a date for redemption (each, a “
Redemption Date
”) and it shall send a notice of such Redemption (a “
Redemption Notice
”) not less than thirty
(30) Scheduled Trading Days nor more than sixty (60) calendar days prior to the Redemption Date to each Holder of Notes so to be redeemed;
provided
,
however
, that, if the Company shall give such notice, it shall also give
written notice of the Redemption Date to the Trustee at least five (5) Business Days prior to the date sent to Holders. The Redemption Date must be a Business Day.
(b) The Redemption Notice, if sent in the manner provided in the Indenture, shall be conclusively presumed to have been duly given, whether or
not the Holder receives such notice. In any case, failure to give such Redemption Notice by mail, electronic delivery or otherwise or any defect in the Redemption Notice to the Holder of any Note designated for redemption shall not affect the
validity of the proceedings for the redemption of any other Note.
(c) Each Redemption Notice shall specify:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) that on the Redemption Date, the Redemption Price will become due and payable upon each Note to be redeemed, and that
interest thereon, if any, shall cease to accrue on and after the Redemption Date (except as provided in the definition of Redemption Price with respect to a Redemption Date that falls after a Regular Record Date but on or prior to the immediately
succeeding Interest Payment Date);
- 53 -
(iv) the place or places where such Notes are to be surrendered for payment of
the Redemption Price;
(v) that Holders may surrender their Notes for exchange at any time prior to the Close of Business
on the Scheduled Trading Day immediately preceding the Redemption Date;
(vi) the procedures an exchanging Holder must
follow to exchange its Notes and the Settlement Method and Specified Dollar Amount, if applicable;
(vii) the Exchange Rate
and, if applicable, the number of Additional Shares added to the Exchange Rate in accordance with Section 8.03; and
(viii) the CUSIP, ISIN or other similar numbers, if any, assigned to such Notes.
A Redemption Notice shall be irrevocable and will not be subject to conditions, and outstanding Notes will become due and payable at the
Redemption Price on the Redemption Date.
(d) If fewer than all of the outstanding Notes are to be redeemed, the Trustee shall select the
Notes or portions thereof to be redeemed (in Authorized Denominations) by lot, on a
pro rata
basis or by another method the Trustee considers to be fair and appropriate and in each case subject to requirements of applicable law and of the
applicable Depositary. If any Note selected for redemption is submitted for exchange after such selection, the portion of the Note submitted for exchange shall be deemed (so far as may be possible) to be the portion selected for redemption.
Section 10.04.
Payment of Notes Called for Redemption.
(a) If any Redemption Notice has been given in respect of the Notes in
accordance with Section 10.03, the Notes shall become due and payable on the Redemption Date at the place or places stated in the Redemption Notice and at the applicable Redemption Price, except as provided in the definition of Redemption Price
with respect to a Redemption Date that falls after a Regular Record Date but on or prior to the immediately succeeding Interest Payment Date. On presentation and surrender of the Notes at the place or places stated in the Redemption Notice, the
Notes shall be paid and redeemed by the Company at the applicable Redemption Price.
Section 10.05.
Restrictions on
Redemption.
Notwithstanding anything to the contrary in the Indenture or the Notes, the Company may not redeem any Notes if the principal amount of the Notes has been accelerated (other than as a result of failure to pay the Redemption Price and
any related interest as provided in this Article 10) and such acceleration has not been rescinded on or before the related Redemption Date.
- 54 -
ARTICLE 11
GUARANTEES
Section 11.01.
Applicability of Article Fourteen of the Base Indenture.
For purposes of the Notes, this Article 11 shall replace in its entirety Article Fourteen of the Base Indenture, and all references in the Base Indenture to Article Fourteen thereof and
the provisions therein, as the case may be, shall, with respect to the Notes, be deemed to be references to this Article 11 and the applicable provisions set forth in this Article 11, respectively.
Section 11.02.
Guarantees.
(a) By its execution of this Supplemental Indenture (or any amended or supplemental indenture pursuant to Section 6.01), each Guarantor
acknowledges and agrees that it receives substantial benefits from the Company and that such Guarantor is providing its Guarantee for good and valuable consideration, including such substantial benefits. Subject to this Article 11, each of the
Guarantors hereby, jointly and severally, fully and unconditionally guarantees, to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, regardless of the validity or enforceability of
the Indenture, the Notes or the obligations of the Company under the Indenture or the Notes, that:
(i) the principal of,
any interest on, and any Exchange Consideration for, the Notes will be promptly paid in full when due, whether at maturity, by acceleration, on a Fundamental Change Repurchase Date, upon Redemption or otherwise, and interest on the overdue principal
of, any interest on, or any Exchange Consideration for, the Notes, if lawful, and all other obligations of the Company to the Holders or the Trustee under the Indenture or the Notes, will be promptly paid or delivered in full or performed, as
applicable, in each case in accordance with the Indenture and the Notes; and
(ii) in case of any extension of time of
payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration, on a
Fundamental Change Repurchase Date , upon Redemption or otherwise,
(collectively, the “
Guaranteed Obligations
”), in each case
subject to Section 11.03.
Upon the failure of any payment when due of any amount so guaranteed, and upon the failure of any
performance so guaranteed, for whatever reason, the Guarantors will be jointly and severally obligated to pay or perform, as applicable, the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of
collection.
(b) Each Guarantor agrees that its Guarantee of the Guaranteed Obligations is unconditional, regardless of the validity or
enforceability of the Indenture, the Notes or the obligations of the Company under the Indenture or the Notes, the absence of any action to enforce the same, any waiver or consent by any Holder with respect to any provisions of the Indenture or the
Notes, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance that might otherwise constitute a legal or equitable discharge
- 55 -
or defense of a guarantor. Each Guarantor waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to
require a proceeding first against the Company, protest, notice and all demands whatsoever, and covenants that this Guarantee will not be discharged except by complete performance of the obligations contained in the Indenture and the Notes.
(c) If any Holder or the Trustee is required by any court or otherwise to return, to the Company, the Guarantors or any custodian, trustee,
liquidator or other similar official acting in relation to the Company or the Guarantors, any amount paid by the Company or the Guarantors to such Holder or the Trustee, then each Guarantee, to the extent theretofore discharged, will be reinstated
in full force and effect.
(d) Each Guarantor agrees that it will not be entitled to any right of subrogation in relation to the Holders
in respect of any obligations guaranteed by it under a Guarantee until payment in full of all Guaranteed Obligations. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand,
(i) the maturity of the Guaranteed Obligations may be accelerated as provided in Article 5, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guaranteed Obligations; and (ii) if any
Guaranteed Obligations are accelerated pursuant to Article 5, then such Guaranteed Obligations will, whether or not due and payable, immediately become due and payable by the Guarantors. Each Guarantor will have the right to seek contribution from
any non-paying Guarantor, but only if the exercise of such right does not impair the rights of the Holders under any Guarantee.
Section 11.03.
Limitation on Guarantor Liability
.
Each Guarantor, and, by its acceptance of any Note, each Holder, confirms that each Guarantor
and the Holders intend that the Guarantee of each Guarantor not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state
law to the extent applicable to any Guarantee. Each of the Trustee, the Holders and each Guarantor irrevocably agrees that the obligations of each Guarantor under its Guarantee will be limited to the maximum amount that will, after giving effect to
such maximum amount and all other contingent and fixed liabilities of such Guarantor that are relevant under such laws, and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any
other Guarantor in respect of the obligations of such other Guarantor under its Guarantee, result in the obligations of such Guarantor under its Guarantee not constituting a fraudulent transfer or conveyance. Notwithstanding anything to the contrary
in this Article 11, the Guarantee of the Parent will not cover the Company’s obligation to pay-up or procure the payment-up of the Ordinary Shares to at least their nominal value upon exchange of any Note.
Section 11.04.
Execution and Delivery of Guarantee
.
The execution by each Guarantor of this Supplemental Indenture (or an amended or supplemental indenture pursuant to Section 6.01)
evidences the Guarantee of such Guarantor, and the delivery of any Note by the Trustee after its authentication constitutes due delivery of each Guarantee on behalf of each Guarantor. A Guarantee’s validity will not be affected by the
- 56 -
failure of any officer of a Guarantor executing the Indenture or any such amended or supplemental indenture on such Guarantor’s behalf to hold, at the time any Note is authenticated, the
same or any other office at such Guarantor, and each Guarantee will be valid and enforceable even if no notation, certificate or other instrument is set upon or attached to, or otherwise executed and delivered to the Holder of, any Note.
ARTICLE 12
MISCELLANEOUS
PROVISIONS
Section 12.01.
Certificated Notes
. For purposes of the Notes, the ninth paragraph of Section 3.5 of the Base
Indenture shall be deemed to be replaced in its entirety with the following: “Unless the Company agrees otherwise, Physical Notes will be issued and delivered to, and registered in the name of, each person that the Depositary identifies as a
beneficial owner of the related Notes only if (a) the Depositary notifies the Company at any time that it is unwilling or unable to continue as Depositary for the Global Notes and a successor Depositary is not appointed within ninety
(90) days; (b) the Depositary ceases to be registered as a clearing agency under the Exchange Act and a successor Depositary is not appointed within ninety (90) days; or (c) an Event of Default with respect to the Notes has
occurred and is continuing and the Depositary requests that the Notes be issued in physical, certificated form. Any Global Note that is exchangeable pursuant to the preceding sentence shall be exchangeable for Physical Notes registered in such names
as the Depositary shall direct in writing in an aggregate principal amount equal to the principal amount of the Global Note with like tenor and terms.”
Section 12.02.
Provisions Binding on Successors
. All the covenants, stipulations, promises and agreements of the Company or any
Guarantor contained in the Indenture shall bind its successors and assigns whether so expressed or not.
Section 12.03.
Governing
Law; Jurisdiction
. THIS SUPPLEMENTAL INDENTURE, THE NOTES AND THE GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE COMPANY AND THE
GUARANTORS HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY FEDERAL OR STATE COURT LOCATED IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK, NEW YORK IN ANY SUIT, ACTION OR PROCEEDING BASED ON OR ARISING OUT OF OR RELATING TO THIS
SUPPLEMENTAL INDENTURE OR ANY NOTES AND IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH SUIT OR PROCEEDING MAY BE DETERMINED IN ANY SUCH COURT.
Section 12.04.
Legal Holidays
. If the Maturity Date or any Interest Payment Date falls on a day that is not a Business Day, the
required payment will be made on the next succeeding Business Day and no interest on such payment will accrue in respect of the delay. For purposes of the Notes, this Section 12.04 shall replace in its entirety Section 1.14 of the Base
Indenture, and any reference in the Base Indenture to Section 1.14 thereof shall be deemed to refer instead to this Section 12.04.
Section 12.05.
No Security Interest Created
. Nothing in the Indenture or in the Notes, expressed or implied, shall be construed to
constitute a security interest under the Uniform Commercial Code or similar legislation, as now or hereafter enacted and in effect, in any jurisdiction.
- 57 -
Section 12.06.
Table of Contents, Headings, Etc
. The table of contents and the titles
and headings of the articles and sections of this Supplemental Indenture have been inserted for convenience of reference only, are not to be considered a part hereof and shall in no way modify or restrict any of the terms or provisions hereof.
Section 12.07.
Execution in Counterparts
. This Supplemental Indenture may be executed in any number of counterparts, each of which
shall be an original, but such counterparts shall together constitute but one and the same instrument. The exchange of copies of this Supplemental Indenture and of signature pages by facsimile transmission or PDF format shall constitute effective
execution and delivery of this Supplemental Indenture as to the parties hereto and may be used in lieu of the original Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or in PDF format shall be
deemed to be their original signatures for all purposes.
Section 12.08.
Severability
. In the event any provision of this
Supplemental Indenture or in the Notes shall be invalid, illegal or unenforceable, then (to the extent permitted by law) the validity, legality or enforceability of the remaining provisions shall not in any way be affected or impaired.
Section 12.09.
Force Majeure
. In no event shall the Trustee be responsible or liable for any failure or delay in the performance
of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or
natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts that are consistent with
accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.
Section 12.10.
Calculations
. Except as otherwise provided herein, the Company shall be responsible for making all calculations called for under the Notes. These calculations include, but are not limited to, accrued interest payable on the Notes and the
Exchange Rate of the Notes. The Company shall make all these calculations in good faith and, absent manifest error, the Company’s calculations shall be final and binding on Holders of Notes. The Company shall provide a schedule of its
calculations to each of the Trustee and the Exchange Agent, and each of the Trustee and Exchange Agent is entitled to rely conclusively upon the accuracy of the Company’s calculations without independent verification. The Trustee will forward
the Company’s calculations to any Holder of Notes upon the written request of that Holder at the sole cost and expense of the Company.
Section 12.11.
USA PATRIOT Act
. In order to comply with the laws, rules, regulations and executive orders in effect from time to
time applicable to banking institutions, including, without limitation, those relating to the funding of terrorist activities and money laundering, including Section 326 of the USA PATRIOT Act of the United States (“
Applicable
Law
”), the Trustee is required to obtain, verify, record and update certain information relating to individuals and entities which maintain a business relationship with the Trustee. Accordingly, each of the parties agrees to provide to
the Trustee, upon its request from time to time, such identifying information and documentation as may be available for such party in order to enable the Trustee to comply with Applicable Law.
- 58 -
Section 12.12.
The Trustee
. In entering into and performing in accordance with this
Supplemental Indenture, the Trustee (in each of its representative capacities, including as Exchange Agent) shall have all of the rights, benefits, protections and immunities afforded to it under the Base Indenture, in addition to the rights,
benefits, protections and immunities afforded to it hereunder.
Section 12.13.
No Personal Liability of Directors, Officers,
Employees, Shareholders and Stockholders
.
None of the Company’s or any Guarantor’s past, present or future directors,
officers, employees, shareholders or stockholders, as such, will have any liability for any of the Company’s or any Guarantor’s obligations under the Indenture, the Notes or the Guarantees or for any claim based on, or in respect or by
reason of, such obligations or their creation. By accepting a Note, each Holder waives and releases all such liability. This waiver and release is part of the consideration for the issue of the Notes.
[
Remainder of Page Intentionally Left Blank
;
Signature Page Follows
]
- 59 -
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly
executed as of the date first written above.
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W
EATHERFORD
I
NTERNATIONAL
L
TD
., as Issuer
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By:
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/s/ Mark M. Rothleitner
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Name: Mark M. Rothleitner
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Title: Vice President & Treasurer
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W
EATHERFORD
I
NTERNATIONAL
PLC
, as Guarantor
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By:
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/s/ Mark M. Rothleitner
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Name: Mark M. Rothleitner
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Title: Vice President & Treasurer
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W
EATHERFORD
I
NTERNATIONAL
, LLC, as Guarantor
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By:
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/s/ Mark M. Rothleitner
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Name: Mark M. Rothleitner
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Title: Vice President & Treasurer
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[Signature Page to Ninth Supplemental Indenture]
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D
EUTSCHE
B
ANK
T
RUST
C
OMPANY
A
MERICAS
,
as Trustee
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By:
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Deutsche Bank National Trust Company
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By:
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/s/ Irina Golovashchuk
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Name: Irina Golovashchuk
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Title: Vice President
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By:
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/s/ Jeffrey Schoenfeld
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Name: Jeffrey Schoenfeld
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Title: Vice President
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[Signature Page to Ninth Supplemental Indenture]
EXHIBIT A
[FORM OF FACE OF NOTE]
[INCLUDE
FOLLOWING LEGEND IF A GLOBAL NOTE]
THIS IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE
DEPOSITARY OR A NOMINEE OF THE DEPOSITARY, WHICH MAY BE TREATED BY THE COMPANY, THE TRUSTEE AND ANY AGENT THEREOF AS THE OWNER AND HOLDER OF THIS NOTE FOR ALL PURPOSES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (“DTC”) TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE WILL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC, OR
TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE, AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE WILL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE HEREINAFTER REFERRED TO.
A-1
Weatherford International Ltd.
5.875% Exchangeable Senior Note due 2021
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No. [ ]
CUSIP No. [ ]
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[Initially]
1
$[ ]
ISIN No.
[ ]
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Weatherford International Ltd., a Bermuda exempted company (the “
Company
,” which term
includes any successor corporation or other entity under the Indenture referred to on the reverse hereof), for value received hereby promises to pay to [CEDE & CO.]
2
[ ]
3
, or registered assigns, the principal sum [as set forth in the “Schedule of Exchanges of Notes” attached
hereto]
4
[of $[ ]]
5
, in accordance with the rules and procedures of the
Depositary, on July 1, 2021, and interest thereon as set forth below.
This Note shall bear interest at the rate of 5.875% per
year from [ ], or from the most recent date to which interest had been paid or provided for to, but excluding, the next scheduled Interest Payment Date until July 1, 2021. Interest is payable semi-annually in arrears on
each July 1 and January 1, commencing on January 1, 2017, to Holders of record at the Close of Business on the preceding June 15 and December 15 (whether or not such day is a Business Day), respectively. Special Interest
will be payable as set forth in the within-mentioned Supplemental Indenture, and any reference to interest on, or in respect of, any Note therein shall be deemed to include Special Interest if, in such context, Special Interest is, was or would be
payable pursuant to the Indenture, and any express mention of the payment of Special Interest in any provision therein shall not be construed as excluding Special Interest in those provisions thereof where such express mention is not made.
Reference is made to the further provisions of this Note set forth on the reverse hereof. Such further provisions shall for all purposes have
the same effect as though fully set forth herein.
This Note, and any claim, controversy or dispute arising under or related to this
Note, shall be construed in accordance with and governed by the laws of the State of New York.
In the case of any conflict between
this Note and the Indenture, the provisions of the Indenture shall control and govern.
This Note shall not be valid or become obligatory
for any purpose until the certificate of authentication hereon shall have been signed manually or by facsimile by the Trustee or a duly authorized authenticating agent under the Indenture.
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1
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Include if a global note.
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2
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Include if a Global Note.
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3
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Include if a Physical Note.
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4
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Include if a Global Note.
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5
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Include if a Physical Note.
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A-2
IN WITNESS WHEREOF, the Company has caused this Note to be duly executed.
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W
EATHERFORD
I
NTERNATIONAL
L
TD
.
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By:
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Name:
Title:
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Dated: [ ]
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A-3
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
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D
EUTSCHE
B
ANK
T
RUST
C
OMPANY
A
MERICAS
,
as Trustee,
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hereby certifies that this is one of the Notes
described in the within-named Indenture.
A-4
[FORM OF REVERSE OF NOTE]
Weatherford International Ltd.
5.875% Exchangeable Senior Note due 2021
This Note is one of a duly authorized issue of Notes of the Company, designated as its 5.875% Exchangeable Senior Notes due 2021
(the “
Notes
”), issued under and pursuant to an Indenture (the “
Base Indenture
”), dated as of October 1, 2003, among the Company, Weatherford International, Inc. and Deutsche Bank Trust Company
Americas, a national banking association, as trustee (the “
Trustee
”), as heretofore amended and supplemented, including by that certain Ninth Supplemental Indenture, dated as of June 7, 2016, among the Company, the
Guarantors named therein and the Trustee (the “
Supplemental Indenture
”; the Base Indenture, as so amended and supplemented, and as it may be further amended or supplemented from time to time with respect to the Notes, the
“
Indenture
”), to which Indenture reference is hereby made for a description of the rights, limitations of rights, obligations, duties and immunities thereunder of the Trustee, the Company and the Holders of the Notes.
Additional Notes may be issued in an unlimited aggregate principal amount, subject to certain conditions specified in the Indenture. Capitalized terms used in this Note and not defined in this Note shall have the respective meanings set forth in the
Indenture.
The Company’s obligations under the Indenture and the Notes are fully and unconditionally guaranteed by the
Guarantors as provided in Article 11 of the Supplemental Indenture.
If a Fundamental Change occurs, then each Holder will have the right
to require the Company to repurchase such Holder’s Notes (or any portion thereof in an Authorized Denomination) for cash in the manner, and subject to the terms, set forth in Article 9 of the Supplemental Indenture.
The Company will have the right to redeem the Notes for cash in the manner, and subject to the terms, set forth in Article 10 of the
Supplemental Indenture.
The Holder of this Note may exchange this Note into Exchange Consideration in the manner, and subject to the
terms, set forth in Article 8 of the Supplemental Indenture.
If an Event of Default occurs, then the principal amount of, and all accrued
and unpaid interest on, all of the Notes then outstanding may (and, in certain circumstances, will automatically) become due and payable in the manner, and subject to the terms, set forth in Article 5 of the Supplemental Indenture.
The Company, the Guarantors and the Trustee may amend or supplement the Indenture or the Notes or waive compliance with any provision of the
Indenture or the Notes in the manner, and subject to the terms, set forth in Article 6 of the Supplemental Indenture.
No Note will be
valid until it is authenticated by the Trustee. A Note will be deemed to be duly authenticated only when an authorized signatory of the Trustee (or a duly appointed authenticating agent) manually signs the certificate of authentication of such Note.
A-5
None of the Company’s or any Guarantor’s past, present or future directors, officers,
employees, shareholders or stockholders, as such, will have any liability for any of the Company’s or any Guarantor’s obligations under the Indenture, the Notes or the Guarantees or for any claim based on, or in respect or by reason of,
such obligations or their creation. By accepting a Note, each Holder waives and releases all such liability. This waiver and release is part of the consideration for the issue of the Notes.
A-6
ABBREVIATIONS
The following abbreviations, when used in the inscription of the face of this Note, shall be construed as though they were written out in full
according to applicable laws or regulations:
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TEN COM
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=
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as tenants in common
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UNIF GIFT MIN ACT
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=
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Uniform Gifts to Minors Act
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CUST
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=
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Custodian
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TEN ENT
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=
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as tenants by the entireties
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JT TEN
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=
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joint tenants with right of survivorship and not as tenants in common
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Additional abbreviations may also be used though not in the above list.
A-7
SCHEDULE A
6
SCHEDULE OF EXCHANGES OF NOTES
Weatherford International Ltd.
5.875% Exchangeable Senior Notes due 2021
The initial principal amount of this Global Note is [ ] Dollars ($[ ]).
The following increases or decreases in this Global Note have been made:
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Date of
Exchange
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Amount of
decrease in
principal amount
of this Global
Note
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Amount of
increase in
principal amount
of this Global
Note
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Principal amount
of this Global
Note following
such decrease or
increase
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Signature of
authorized
Signatory of
Trustee
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6
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Include if a Global Note.
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A-8
ATTACHMENT 1
[FORM OF NOTICE OF EXCHANGE]
To: Weatherford
International Ltd.
The undersigned registered owner of this Note hereby exercises the option to exchange this Note, or the portion hereof
(that is in an Authorized Denomination) below designated, into the consideration due thereupon in accordance with the terms of the Indenture referred to in this Note, and directs that such consideration, and any Notes representing any un-exchanged
principal amount hereof, be issued or delivered, as the case may be, to the registered Holder hereof unless a different name has been indicated below. If any Ordinary Shares or any portion of this Note not exchanged are to be issued in the name of a
person other than the undersigned, the undersigned will pay all documentary, stamp or similar issue or transfer taxes, if any in accordance with Section 8.02(e) and Section 8.02(f) of the Supplemental Indenture. Any amount required to be
paid to the undersigned on account of interest accompanies this Note. Capitalized terms used herein but not defined shall have the meanings ascribed to such terms in the Indenture.
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Dated:
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Signature(s)
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Signature Guarantee
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Signature(s) must be guaranteed by an eligible Guarantor Institution (banks, stock brokers, savings and loan associations and credit unions) with membership in an approved signature guarantee medallion program pursuant to Securities
and Exchange Commission Rule 17Ad-15 if Ordinary Shares are to be issued, or Notes are to be delivered, other than to and in the name of the registered holder.
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A-9
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Fill in for registration of shares if to be issued, and Notes if to be delivered, other than to and in the name of the registered holder:
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(Name)
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(Street Address)
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(City, State and Zip Code)
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Please print name and address
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Principal amount to be exchanged (if less than all): $ ,000
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NOTICE: The above signature(s) of the Holder(s) hereof must correspond with the name as written upon the face of the Note in every particular without alteration or enlargement or any change whatever.
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Social Security or Other Taxpayer
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Identification Number
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A-10
ATTACHMENT 2
[FORM OF FUNDAMENTAL CHANGE REPURCHASE NOTICE]
To: Weatherford International Ltd.
The undersigned registered owner of this Note hereby acknowledges receipt of a notice from Weatherford International Ltd. (the
“
Company
”) as to the occurrence of a Fundamental Change with respect to the Company and specifying the Fundamental Change Repurchase Date, in accordance with the Indenture referred to in this Note, and hereby requests and
instructs the Company to pay the Fundamental Change Repurchase Price to the registered holder hereof in accordance with Section 9.01 of the Supplemental Indenture referred to in this Note. Capitalized terms used herein but not defined shall
have the meanings ascribed to such terms in the Indenture.
In the case of Physical Notes, the certificate numbers of the
Notes to be repurchased are as set forth below:
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Dated:
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Signature(s)
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Social Security or Other Taxpayer Identification Number
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Principal amount to be repaid (if less than all): $ ,000
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NOTICE: The above signature(s) of the Holder(s) hereof must correspond with the name as written upon the face of the Note in every particular without alteration or enlargement or any change whatever.
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A-11
