As filed with the Securities and Exchange Commission on February 3, 2017
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
S-3
REGISTRATION STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
MEDTRONIC PUBLIC LIMITED COMPANY
(Exact name of registrant as specified in its charter)
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Ireland
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98-1183488
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification Number)
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20 Lower Hatch Street
Dublin 2, Ireland
+353 1
438-1700
(Address, including zip code, and telephone number, including area code, of
Registrant’s principal executive offices)
MEDTRONIC
GLOBAL HOLDINGS S.C.A.
(Exact name of registrant as specified in its charter)
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Grand Duchy of Luxembourg
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98-1202865
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification Number)
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3b, boulevard Prince Henri
L-1724
Luxembourg
+352 266 379 40
(Address,
including zip code, and telephone number, including area code, of Registrant’s principal executive offices)
MEDTRONIC,
INC.
(Exact name of registrant as specified in its charter)
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Minnesota
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41-0793183
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification Number)
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710 Medtronic Parkway
Minneapolis, MN 55432
(763)
514-4000
(Address, including zip code, and telephone number, including area code, of Registrant’s principal executive offices)
Martha Ha, Esq.
Assistant
Secretary
Medtronic plc
c/o Medtronic, Inc.
710
Medtronic Parkway
Minneapolis, Minnesota 55432
(763)
514-4000
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copy to:
Erika L.
Robinson
Jeffrey A. Stein
Wilmer Cutler Pickering Hale and Dorr LLP
7 World Trade Center, 250 Greenwich Street
New York, NY 10009
(212)
230-8800
(212)
230-8888
Approximate date of commencement of proposed sale to the public
: From time to time after this registration statement becomes effective.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check
the following box. ☐
If any of the securities being registered on this Form are to be offered on a delayed or continuous
basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If
this Form is a registration statement pursuant to General Instruction I.D or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following
box. ☒
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D
filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a
non-accelerated
filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule
12b-2
of the Exchange Act. (Check one):
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Large accelerated filer
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☒
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Accelerated filer
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☐
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Non-accelerated filer
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☐ (Do not check if a smaller reporting company)
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Smaller reporting company
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☐
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CALCULATION OF REGISTRATION FEE
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Title of Each Class of
Securities to be Registered
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Amount
to be
Registered
(1)
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Proposed
Maximum
Offering Price
Per Unit
(1)
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Maximum
Aggregate
Offering Price
(1)
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Amount of
Registration Fee
(1)
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Debt Securities of Medtronic Global Holdings S.C.A.
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Debt Securities of Medtronic, Inc.
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Guarantees of the Debt Securities of Medtronic Global Holdings
S.C.A.
(2)
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Guarantees of the Debt Securities of Medtronic, Inc.
(2)
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Total
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(1)
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Pursuant to Form
S-3
General Instructions II.E information is not required to be included. An indeterminate amount of the securities of each identified class is being registered
as may from time to time be offered hereunder at indeterminate prices. In accordance with Rules 456(b) and 457(r) under the Securities Act, the registrant is deferring payment of all registration fees and will pay the registration fees subsequently
in advance or on a
“pay-as-you-go”
basis.
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(2)
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Medtronic plc and Medtronic, Inc. will fully and unconditionally guarantee the debt securities issued by Medtronic Global Holdings S.C.A. Medtronic plc and Medtronic Global Holdings S.C.A. will fully and unconditionally
guarantee the debt securities issued by Medtronic, Inc. No separate consideration will be received for the guarantees of debt securities. Pursuant to Rule 457(n) of the Securities Act, no separate fee is payable with respect to the registration of
guarantees of the debt securities.
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PROSPECTUS
MEDTRONIC GLOBAL HOLDINGS S.C.A.
Debt Securities
Fully
and unconditionally guaranteed by
Medtronic Public Limited Company
Medtronic, Inc.
MEDTRONIC, INC.
Debt
Securities
Fully and unconditionally guaranteed by
Medtronic Public Limited Company
Medtronic Global Holdings S.C.A.
Medtronic
Global Holdings S.C.A. (“Medtronic Luxco”) and Medtronic, Inc. may offer and sell debt securities from time to time in one or more offerings. Debt securities issued by Medtronic Luxco will be fully and unconditionally guaranteed by
Medtronic Public Limited Company (“Medtronic plc”) and Medtronic, Inc. Debt securities issued by Medtronic, Inc. will be fully and unconditionally guaranteed by Medtronic plc and Medtronic Luxco.
This prospectus describes the general terms of these debt securities and the general manner in which these securities will be offered. We will
provide the specific terms of these debt securities in supplements to this prospectus. The prospectus supplements will also describe the specific manner in which these debt securities will be offered and may also supplement, update or amend
information contained in this document. You should read this prospectus and any applicable prospectus supplement before you invest.
We
may offer these debt securities in amounts, at prices and on terms determined at the time of offering. The debt securities may be sold directly to you, through agents or through underwriters and dealers. If agents, underwriters or dealers are used
to sell the debt securities, we will name them and describe their compensation in a prospectus supplement.
Investing in
these securities involves certain risks. See “Risk Factors” included in any accompanying prospectus supplement and in our annual report on Form
10-K
for the fiscal year ended April 29, 2016 and
the other documents incorporated by reference in this prospectus for a discussion of the factors you should carefully consider before deciding to purchase these debt securities.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these debt securities or
passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
This prospectus
has not been approved by the Central Bank of Ireland or the Commission de surveillance du secteur financier of Luxembourg as a prospectus for the purpose of Directive 2003/71/EC, as amended (including Directive 2010/73/EU).
The date of this prospectus is February 3, 2017
TABLE OF CONTENTS
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ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the Securities and Exchange Commission, which we refer to as the
“SEC,” utilizing a “shelf” registration process. Under this shelf registration process, we may from time to time sell any combination of the debt securities described in this prospectus in one or more offerings.
This prospectus provides you with a general description of the debt securities we may offer. Each time we sell debt securities, we will
provide one or more prospectus supplements that will contain specific information about the terms of the offering. The prospectus supplement may also add, update or change information contained in this prospectus. You should read both this
prospectus and the accompanying prospectus supplement together with the additional information described under the heading “Where You Can Find More Information” beginning on page 3 of this prospectus.
You should rely only on the information contained in or incorporated by reference in this prospectus, any accompanying prospectus supplement
or in any related free writing prospectus filed by us with the SEC. We have not authorized anyone to provide you with different information. This prospectus and any accompanying prospectus supplement do not constitute an offer to sell or the
solicitation of an offer to buy any securities other than the debt securities described in this prospectus or such accompanying prospectus supplement or an offer to sell or the solicitation of an offer to buy such debt securities in any
circumstances in which such offer or solicitation is unlawful. You should assume that the information appearing in this prospectus, any prospectus supplement, the documents incorporated by reference and any related free writing prospectus is
accurate only as of their respective dates. Our business, financial condition, results of operations and prospects may have changed materially since those dates.
Unless the context otherwise indicates, references in this prospectus to “we,” “our,” “Medtronic” and
“us” refer, collectively, to Medtronic Public Limited Company, a company organized under the laws of Ireland (also referred to as “Medtronic plc”), and its consolidated subsidiaries. The term “Medtronic Luxco” refers to
Medtronic Global Holdings S.C.A., an entity organized under the laws of Luxembourg, and the term “Medtronic, Inc.” refers to Medtronic, Inc., a Minnesota corporation.
This document does not constitute a prospectus within the meaning of Part 23 of the Irish Companies Act, 2014 or an offer to sell or an
invitation to purchase or the solicitation of an offer to purchase securities. No offer of any securities of Medtronic plc, Medtronic Luxco or Medtronic, Inc. to the public is being made that requires the publication of a prospectus pursuant to
Irish prospectus law (within the meaning of Part 23 of the Irish Companies Act, 2014) in general or in particular pursuant to the Prospectus (Directive 2003/71/EC) Regulations 2005 of Ireland (as amended). This document has not been approved or
reviewed by or registered with the Central Bank of Ireland.
This document does not constitute investment advice or the provision of
investment services within the meaning of the European Communities (Markets in Financial Instruments) Regulations 2007 (Nos. 1 to 3) of Ireland (as amended) (the “MiFID Regulations”) or otherwise. Medtronic plc is not an authorized
investment firm within the meaning of the MiFID Regulations, and the recipients of this document should seek independent legal and financial advice in determining their actions in respect of or pursuant to this document.
This prospectus does not constitute an offer to sell or the solicitation of an offer to buy the debt securities in any jurisdiction to any
person to whom it is unlawful to make the offer or solicitation in such jurisdiction.
This prospectus has not been approved by and will
not be submitted for approval to the Commission de surveillance du secteur financier of Luxembourg (the “CSSF”) for purposes of public offering or sale in Luxembourg or for the purposes of admission to trading on the Luxembourg stock
exchange and listing on the official list of the Luxembourg stock exchange or on any other regulated or alternative market in Luxembourg.
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Accordingly, no offer or sale to the public of the debt securities in Luxembourg are made in this prospectus, directly or indirectly, and neither this prospectus, nor any other circular,
prospectus, form of application, advertisement or other material related to the debt securities may be distributed, or otherwise be made available in or from, or published in, Luxembourg, except if a prospectus has been duly approved by the CSSF in
accordance with the Luxembourg act of July 10, 2005 on prospectuses for securities, as amended from time to time (the “Prospectus Law”), or the offer benefits from an exemption to, or constitutes a transaction otherwise not subject to
the requirement to publish a prospectus for the purpose of, the Prospectus Law.
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WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and other information with the SEC. Our SEC filings are available to the
public over the Internet at the SEC’s website at http://www.sec.gov. Copies of certain information filed by us with the SEC are also available on our website (www.medtronic.com under the “About Medtronic—Investors” caption and
“Financial Information—SEC Filings” subcaption). Our website is not a part of this prospectus and is not incorporated by reference in this prospectus. You may also read and copy any document we file at the SEC’s Public Reference
Room, 100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at
1-800-SEC-0330
for further information on the operation
of the Public Reference Room.
Pursuant to Rule
3-10(d)
of Regulation
S-X
(“Rule
3-10”),
this prospectus does not contain separate financial statements for Medtronic Luxco or Medtronic, Inc. since Medtronic Luxco and Medtronic, Inc.
are wholly-owned indirect subsidiaries of Medtronic plc and Medtronic plc files consolidating financial information under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Debt securities issued by Medtronic Luxco will
be fully and unconditionally guaranteed on a joint and several basis by Medtronic plc and Medtronic, Inc. Debt securities issued by Medtronic, Inc. will be fully and unconditionally guaranteed on a joint and several basis by Medtronic plc and
Medtronic Luxco. The guarantor structure contemplated in this prospectus is substantially consistent with our previously reported financial information of guarantors in the documents we have incorporated by reference. Any changes to such reported
financial information of guarantors after the registration statement becomes effective would be to re-title existing columns of the issuer and subsidiary guarantor in our consolidating financial statements, which we do not believe would be a
material change.
This prospectus is part of a registration statement we filed with the SEC. This prospectus omits some information
contained in the registration statement in accordance with SEC rules and regulations. You should review the information and exhibits in the registration statement for further information about us and our consolidated subsidiaries and the debt
securities we are offering. Statements in this prospectus concerning any document we filed as an exhibit to the registration statement or that we otherwise filed with the SEC are not intended to be comprehensive and are qualified by reference to
these filings. You should review the complete document to evaluate these statements.
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INCORPORATION BY REFERENCE
The SEC allows us to incorporate by reference much of the information we file with the SEC, which means that we can disclose important
information to you by referring you to those publicly available documents. The information that we incorporate by reference in this prospectus is considered to be part of this prospectus. Because we are incorporating by reference future filings with
the SEC, this prospectus is continually updated and those future filings may modify or supersede some of the information included or incorporated in this prospectus. This means that you must look at all of the SEC filings that we incorporate by
reference to determine if any of the statements in this prospectus or in any document previously incorporated by reference have been modified or superseded. This prospectus incorporates by reference the documents listed below (File
No. 001-36820)
and any future filings we make with the SEC under Section 13(a), 13(c), 14 or 15(d) of the Exchange Act (in each case, other than those documents or the portions of those documents not deemed to
be filed) until the offering of the debt securities under the registration statement is terminated or completed:
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Annual Report on Form
10-K
for the fiscal year ended April 29, 2016, including the information specifically incorporated by reference into the Annual Report on Form
10-K
from our definitive proxy statement for the 2016 Annual Meeting of Stockholders;
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Quarterly Reports on Form
10-Q
for the fiscal quarters ended July 29, 2016 and October 28, 2016; and
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Current Reports on Form
8-K
filed May 4, 2016, May 31, 2016 (Item 8.01 report only), July 1, 2016, December 2, 2016 and December 14, 2016.
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You may request a copy of these filings, at no cost, by writing or telephoning us at the following address or telephone
number:
710 Medtronic Parkway
Minneapolis, MN 55432 USA
Attn:
Medtronic Investor Relations Department
(763)
514-4000
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FORWARD-LOOKING STATEMENTS
This prospectus and the information incorporated by reference in this prospectus include “forward-looking” statements.
Forward-looking statements broadly include our current expectations or forecasts of future results. Our forward-looking statements generally relate to our growth and growth strategies, developments in the markets for our products, financial results,
product development launches and effectiveness, research and development strategy, regulatory approvals, competitive strengths, restructuring and cost-saving initiatives, intellectual property rights, litigation and tax matters, government
investigations, mergers and acquisitions, market acceptance of our products, accounting estimates, financing activities, ongoing contractual obligations, working capital adequacy, value of our investments, our effective tax rate, our expected
returns to shareholders, and sales efforts. Such statements can be identified by the use of terminology such as “anticipate,” “believe,” “could,” “estimate,” “expect,” “forecast,”
“intend,” “looking ahead,” “may,” “plan,” “possible,” “potential,” “project,” “should,” “will,” and similar words or expressions. Forward-looking statements in
this prospectus and the information incorporated by reference in this prospectus include, but are not limited to, statements regarding our ability to drive long-term shareholder value, development and future launches of products and continued or
future acceptance of products and therapies in our operating segments; market positioning and performance of our products, including stabilization of certain product markets; anticipated timing for U.S. FDA and
non-U.S.
regulatory approval of new products; increased presence in new markets, including markets outside the U.S.; changes in the market and our market share; acquisitions and investment initiatives, as well
as integration of acquired companies into our operations; the resolution of tax matters; the effectiveness of our development activities in reducing patient care costs and hospital stay lengths; our approach towards cost containment; our
expectations regarding health care costs, including potential changes to reimbursement policies and pricing pressures; our expectations regarding changes to patient standards of care; our ability to identify and maintain successful business
partnerships; the elimination of certain positions or costs related to restructuring initiatives; outcomes in our litigation matters and government investigations; general economic conditions; the adequacy of available working capital and our
working capital needs; our payment of dividends and redemption of shares; the continued strength of our balance sheet and liquidity; our accounts receivable exposure; and the potential impact of our compliance with governmental regulations and
accounting guidance. One must carefully consider forward-looking statements and understand that such statements may be affected by inaccurate assumptions and may involve a variety of risks and uncertainties, known and unknown, including, among
others, risks related to competition in the medical device industry, reduction or interruption in our supply, quality problems, liquidity shortfalls, decreasing prices and pricing pressure, fluctuations in currency exchange rates, changes in
applicable tax rates, positions taken by taxing authorities, adverse regulatory action, delays in regulatory approvals, litigation results, self-insurance, commercial insurance, health care policy changes, international operations, failure to
complete or achieve the intended benefits of acquisitions or disruption of our current plans and operations, as well as those discussed in the sections entitled “Risk Factors” and “Government Regulation and Other Considerations”
in our Annual Report on Form
10-K
for the fiscal year ended April 29, 2016. Consequently, no forward-looking statement can be guaranteed and actual results may vary materially. We intend to take advantage
of the Safe Harbor provisions of the Private Securities Litigation Reform Act of 1995 regarding our forward-looking statements, and are including this sentence for the express purpose of enabling us to use the protections of the safe harbor with
respect to all forward-looking statements.
We undertake no obligation to update any statement we make, but investors are advised to
consult all other disclosures by us in our filings with the SEC, especially on Forms
10-K,
10-Q,
and
8-K,
in which we discuss in
more detail various important factors that could cause actual results to differ from expected or historical results. In addition, actual results may differ materially from those anticipated due to a number of factors, including, among others, those
discussed in the section entitled “Risk Factors” in our Annual Report on Form
10-K
for the fiscal year ended April 29, 2016. It is not possible to foresee or identify all such factors. As such,
investors should not consider any list of such factors to be an exhaustive statement of all risks, uncertainties, or potentially inaccurate assumptions.
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SUMMARY
Medtronic plc
Medtronic is among the
world’s largest medical technology, services and solutions companies – alleviating pain, restoring health, and extending life for millions of people around the world. Medtronic was founded in 1949 and today serves hospitals, physicians,
clinicians, and patients in approximately 160 countries worldwide. We remain committed to a mission written by our founder 56 years ago that directs us “to contribute to human welfare by the application of biomedical engineering in the
research, design, manufacture, and sale of products to alleviate pain, restore health, and extend life.”
With innovation and market
leadership, we have pioneered advances in medical technology in all of our businesses. Our commitment to enhance our offerings by developing and acquiring new products, wrap-around programs, and solutions to meet the needs of a broader set of
stakeholders is driven by the following primary strategies:
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Therapy Innovation: Delivering a strong launch cadence of meaningful therapies and procedures.
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Globalization: Addressing the inequity in health care access globally, primarily in emerging markets.
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Economic Value: Becoming a leader in value-based health care by offering new services and solutions to improve outcomes and efficiencies, lower costs by reducing hospitalizations, improve remote clinical management, and
increase patient engagement.
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Our primary customers include hospitals, clinics, third-party health care providers,
distributors, and other institutions, including governmental health care programs and group purchasing organizations (GPOs).
Our
principal executive offices (and registered office for the purposes of Irish law) are located at 20 Lower Hatch Street Dublin 2, Ireland, our telephone number is +353 1
438-1700
and our website is at
www.medtronic.com. Our website is not a part of this prospectus and is not incorporated by reference in this prospectus. Medtronic plc, formerly known as Medtronic Holdings Limited, is a public limited company organized under the laws of Ireland,
and
re-registered
as a public limited company under the laws of Ireland on January 26, 2015. On January 27, 2015, its shares became publicly traded on the New York Stock Exchange under the ticker symbol
MDT.
Medtronic Luxco
Medtronic
Global Holdings S.C.A., a wholly-owned indirect subsidiary of Medtronic plc, is a corporate partnership limited by shares organized under the laws of Luxembourg, incorporated on October 7, 2014, having its registered office at 3b, boulevard
Prince Henri
L-1724
Luxembourg and registered with the Luxembourg Trade and Companies Register under number B191129. Medtronic Luxco’s telephone number is +352 266 379 40.
On January 26, 2015, Medtronic completed the acquisition of Covidien plc, a public limited company organized under the laws of Ireland
(“Covidien”), which was a global leader in the development, manufacture and sale of healthcare products for use in clinical and home setting. In connection with the acquisition, Medtronic, Inc. and Covidien plc were combined under and
became Medtronic plc. Medtronic Luxco is the intermediate holding company that holds the entirety of the interests of the Medtronic operating companies, including Medtronic, Inc. and the legacy Covidien business.
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Medtronic, Inc.
Medtronic, Inc., a wholly-owned indirect subsidiary of Medtronic Luxco, is a Minnesota corporation with its principal executive offices at 710
Medtronic Parkway, Minneapolis, MN 55432. Medtronic, Inc. was founded in 1949 and was incorporated in Minnesota in 1957. Medtronic, Inc.’s telephone number is (763)
514-4000.
Medtronic, Inc. was the primary operating company of Medtronic prior to the acquisition of Covidien, and today continues to be the primary
operating company for Medtronic.
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USE OF PROCEEDS
We intend to use the net proceeds from the sale of any debt securities offered under this prospectus for general corporate purposes unless
otherwise indicated in the applicable prospectus supplement. General corporate purposes may include, among others, the acquisition of companies or businesses, repayment and refinancing of debt, working capital and capital expenditures. We have not
determined the amount of net proceeds to be used specifically for such purposes. As a result, management will retain broad discretion over the allocation of net proceeds.
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DESCRIPTION OF DEBT SECURITIES OF MEDTRONIC GLOBAL HOLDINGS S.C.A.
This section describes the general terms and provisions of the unsecured general obligations that Medtronic Luxco may offer from time
to time in the form of one or more series of debt securities, which may be senior or subordinated. We refer to the senior debt securities and the subordinated debt securities collectively as debt securities. As used in this “Description of Debt
Securities of Medtronic Global Holdings S.C.A.,” references to “Medtronic Luxco,” “we,” “our” and “us” refer to Medtronic Global Holdings S.C.A., an entity organized under the laws of Luxembourg,
references to “Medtronic plc” refer to Medtronic Public Limited Company, a company organized under the laws of Ireland and references to “Medtronic, Inc.” refer to Medtronic, Inc., a Minnesota corporation, and in each case do
not, unless the context otherwise indicates, include such entity’s subsidiaries.
Senior debt securities will be issued under a
senior indenture to be entered into among Medtronic Luxco, as issuer, Medtronic plc and Medtronic, Inc., as guarantors, and Wells Fargo Bank, National Association, as trustee. We refer to this indenture as the senior indenture. Subordinated debt
securities will be issued under a subordinated indenture to be entered into among Medtronic Luxco, as issuer, Medtronic plc and Medtronic, Inc., as guarantors, and a trustee to be named. This indenture is referred to as the subordinated indenture.
We refer to the senior indenture and the subordinated indenture together as the indentures and to the trustee under the senior indenture and the trustee under the subordinated indenture together as the trustees. The following summaries of certain
provisions of the indentures and the debt securities are not complete and are subject to the detailed provisions of the indentures. You should refer to the senior indenture and the form of subordinated indenture, each of which are filed as exhibits
to the registration statement of which this prospectus forms a part and incorporated by reference into this prospectus for more specific information. In addition, you should consult the applicable prospectus supplement and any free writing
prospectus that we authorize to be delivered for particular terms of the debt securities being offered.
The indentures do not limit the
amount of debt securities that may be issued by Medtronic Luxco or any of its affiliates. Each indenture will provide that debt securities may be issued from time to time in one or more series. When we offer to sell a particular series of debt
securities, we will describe the specific terms and conditions of the series in a prospectus supplement to this prospectus. We will also indicate in the applicable prospectus supplement if any of the general terms and conditions described below will
not apply to the series of debt securities.
General Terms
The debt securities will be unsecured obligations of Medtronic Luxco and will be fully and unconditionally guaranteed, on a joint and several
basis, by each of Medtronic plc and Medtronic, Inc. The senior debt securities will rank equally in right of payment with Medtronic Luxco’s other unsecured and unsubordinated obligations, and will be structurally subordinated to all of the
liabilities of the subsidiaries of Medtronic Luxco (other than Medtronic, Inc., as further described under the heading “Guarantees”). The subordinated debt securities will rank junior in right of payment to Medtronic Luxco’s Senior
Debt (defined below), including the senior debt securities, as described under the heading “Certain Terms of Subordinated Debt Securities.”
Medtronic Luxco may issue debt securities up to an aggregate principal amount as we may authorize from time to time. The prospectus supplement
will describe the terms of any debt securities being offered, including:
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the title of the debt securities;
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any limit on the aggregate principal amount of the debt securities;
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whether the debt securities are senior debt securities or subordinated debt securities;
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the date or dates on which the debt securities will mature;
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the price or prices at which we will sell the debt securities;
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the rate or rates, which may be fixed or variable, at which the debt securities will bear interest, if any, and the date or dates from which such interest will accrue;
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the dates on which such interest, if any, will be payable and the regular record dates for such interest payments;
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the place or places where principal of, premium, if any, and interest on the debt securities shall be payable;
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whether any index, formula or other method will be used to determine the amount of payments of principal of and premium, if any, and interest on the debt securities and the manner of determining the amount of such
payments;
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any mandatory or optional sinking fund or analogous provisions;
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if applicable, the price at which, the periods within which, and the terms and conditions upon which the debt securities may, pursuant to any optional or mandatory redemption provisions, be redeemed;
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any guarantee provisions in addition to or in lieu of those described in this prospectus;
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the portion of the principal amount of the debt securities, if other than the entire principal amount thereof, payable upon acceleration of maturity thereof;
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the currency of payment of principal of and premium, if any, and interest on the debt securities;
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whether we will issue the debt securities as original issue discount securities for federal income tax purposes;
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the currency of principal and interest payments if other than U.S. dollars, and the manner of determining the equivalent thereof in U.S. dollars for any purpose under the indenture;
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with respect to subordinated debt securities, whether the subordination provisions of the subordinated indenture or any different subordination provisions shall apply to the debt securities;
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any deletions from, changes in or additions to the events of default or the covenants specified in the indenture, or to the right of the trustee or the requisite holders of such securities to declare the principal
amount of such securities due and payable;
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any special tax implications of such series of debt securities; and
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any other terms of the debt securities.
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Debt securities may bear interest at fixed or
floating rates. We may issue debt securities at an original issue discount, bearing no interest or bearing interest at a rate that, at the time of issuance, is below market rate, to be sold at a substantial discount below their stated principal
amount. Generally speaking, if our debt securities are issued at an original issue discount and there is an event of default or acceleration of their maturity, holders will receive an amount less than the stated principal amount of the debt
securities. Tax and other special considerations applicable to any series of debt securities, including original issue discount securities, will be described in the prospectus supplement in which we offer those debt securities.
We will have the ability under the indentures to reopen a previously issued series of debt securities and issue additional debt securities of
that series or establish additional terms of the series. We are also permitted to issue debt securities with the same terms as previously issued debt securities.
Guarantees
Medtronic plc and Medtronic,
Inc. will fully and unconditionally guarantee, on a joint and several basis, to each holder of debt securities issued by Medtronic Luxco the due and punctual payment of principal of and premium, if any, and interest on those debt securities, when
and as the same become due and payable, whether at
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maturity, by declaration of acceleration, upon redemption, repurchase or otherwise. The guarantees will be unsecured and each guarantee of senior debt securities will rank equally with all other
unsecured and unsubordinated obligations of Medtronic plc and Medtronic, Inc., as applicable, and will be structurally subordinated to all of the liabilities of the subsidiaries of Medtronic plc (other than Medtronic Luxco and Medtronic, Inc.). Each
guarantee of subordinated debt securities will rank junior in right of payment to the Senior Debt of Medtronic plc and Medtronic, Inc., respectively, as described under the heading “Certain Terms of Subordinated Debt Securities.” Medtronic
plc and Medtronic, Inc. are sometimes referred to in this section as the “Guarantors.”
Notwithstanding the foregoing, each
Guarantor will be automatically and unconditionally released from all obligations under its guarantee, and such guarantees shall terminate and be discharged and be of no further force and effect, (i) upon the merger or consolidation of such
Guarantor with and into either us or any other Guarantor that is the surviving person in such merger or consolidation, or upon the liquidation of such Guarantor following the transfer of all or substantially all of its assets to either us or another
Guarantor, (ii) when such Guarantor is not then, or immediately thereafter will not be, a guarantor of any Guaranteed Bonds (defined below), provided that no Event of Default has occurred and is continuing or (iii) upon legal or covenant
defeasance of our obligations, or satisfaction and discharge of the indenture.
The guarantees of the debt securities may be subject to
review under United States federal or state fraudulent transfer law or similar laws in other applicable jurisdictions, which could limit their enforceability. The guarantees will provide that the obligations of each Guarantor will be limited as
necessary to prevent that guarantee from constituting a fraudulent conveyance or fraudulent transfer under applicable law.
Payment
Unless otherwise indicated in the applicable prospectus supplement, principal, interest and any premium on the debt securities will be paid at
the place or places that we will designate for such purposes. However, we may, at our option, make interest payments by check mailed to persons in whose names the debt securities are registered. Unless otherwise indicated in the applicable
prospectus supplement, payment of interest on a debt security which is payable and is punctually paid or duly provided for on any interest payment date will be made to the person in whose name that debt security is registered at the close of
business on the regular record date for that interest payment.
Redemption Upon Changes in Withholding Taxes
Unless otherwise provided in the applicable prospectus supplement, Medtronic Luxco may redeem all, but not less than all, of the debt
securities of any series under the following conditions:
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if there is an amendment to, or change in, the laws, regulations, rulings or treaties of Luxemburg, the United States or other jurisdiction in which Medtronic Luxco or any Guarantor or, in each case, any successor
thereof (including a continuing person formed by a consolidation with Medtronic or any Guarantor, into which Medtronic Luxco or such Guarantor is merged, or that acquires or leases all or substantially all of the property and assets of Medtronic
Luxco or such Guarantor) may be organized, as applicable, or any political subdivision thereof or therein having the power to tax (a “Taxing Jurisdiction”), or any change in the application or official interpretation of such laws,
regulations, rulings or treaties, including any action taken by, or a change in published administrative practice of, a taxing authority or a holding by a court of competent jurisdiction, regardless of whether such action, change or holding is with
respect to Medtronic Luxco or any Guarantor;
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as a result of such amendment or change, Medtronic Luxco or any Guarantor becomes, or there is a material probability that Medtronic Luxco or any Guarantor will become, obligated to pay Additional Amounts as defined
below in “Payment of Additional Amounts,” on the next payment date with respect to the debt securities of such series;
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the obligation to pay Additional Amounts cannot be avoided through Medtronic Luxco’s or such Guarantor’s commercially reasonable measures, not including substitution of the obligor of the debt securities;
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Medtronic Luxco delivers to the trustee:
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a certificate of Medtronic Luxco or the applicable Guarantor, as the case may be, stating that the obligation to pay Additional Amounts cannot be avoided by Medtronic Luxco or the applicable Guarantor, as the case may
be, taking commercially reasonable measures available to it;
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a written opinion of independent tax counsel to Medtronic Luxco or the applicable Guarantor, as the case may be, of recognized standing to the effect that Medtronic Luxco or the applicable Guarantor, as the case may be,
has, or there is a material probability that it will become obligated, to pay Additional Amounts as a result of a change, amendment, official interpretation or application described above and that Medtronic Luxco or the applicable Guarantor, as the
case may be, cannot avoid the payment of such Additional Amounts by taking commercially reasonable measures available to it; and
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following the delivery of the certificate and opinion described in the previous bullet point, Medtronic Luxco provides notice of redemption not less than 30 days, but not more than 60 days, prior to the date of
redemption. The notice of redemption cannot be given more than 60 days before the earliest date on which Medtronic Luxco or the applicable Guarantor would otherwise be, or there is a material probability that it would otherwise be, required to pay
Additional Amounts.
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Upon the occurrence of each event described above, Medtronic Luxco may redeem the debt securities of
such series at a redemption price equal to 100% of the principal amount thereof, together with accrued and unpaid interest, if any, to the redemption date.
Payment of Additional Amounts
Unless
otherwise required by law, neither Medtronic Luxco nor any Guarantor will deduct or withhold from payments made by Medtronic Luxco or such Guarantor under or with respect to the debt securities and the guarantees on account of any present or future
taxes, duties, levies, imposts, assessments or governmental charges of whatever nature imposed or levied by or on behalf of any Taxing Jurisdiction (“Taxes”). In the event that Medtronic Luxco or such Guarantor is required to withhold or
deduct any amount for or on account of any Taxes from any payment made under or with respect to any debt securities or guarantee, as the case may be, Medtronic Luxco or the applicable Guarantor, as the case may be, will pay such additional amounts
(“Additional Amounts”) so that the net amount received by each holder of debt securities (including Additional Amounts) after such withholding or deduction will equal the amount that such holder would have received if such Taxes had not
been required to be withheld or deducted.
Additional Amounts will not be payable with respect to a payment made to a holder of debt
securities or a holder of beneficial interests in global securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the debt securities or for
or on account of:
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any Taxes that are imposed or withheld solely because such holder (or the beneficial owner for whose benefit such holder holds such debt securities) or a fiduciary, settlor, beneficiary, member, shareholder or other
equity owner of, or possessor of a power over, such holder (or beneficial owner) if such holder (or beneficial owner) is an estate, trust, partnership, limited liability company, corporation or other entity that:
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is or was present or engaged in, or is or was treated as present or engaged in, a trade or business in the Taxing Jurisdiction or has or had a permanent establishment in the Taxing Jurisdiction (in each cash, other than
the mere fact of ownership of such securities, without another presence or business in such Taxing Jurisdiction);
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has or had any present or former connection (other than the mere fact of ownership of such debt securities) with the Taxing Jurisdiction imposing such Taxes, including being or having been a national citizen or resident
thereof, being treated as being or having been a resident thereof or being or having been physically present therein;
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with respect to any withholding Taxes imposed by the United States, is or was with respect to the United States a personal holding company, a passive foreign investment company, a controlled foreign corporation, a
foreign private foundation or other foreign tax exempt organization or corporation that has accumulated earnings to avoid United States federal income tax;
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actually or constructively owns or owned 10% or more of the total combined voting power of all classes of stock of Medtronic Luxco or a Guarantor;
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is or was a bank receiving payments on an extension of credit made pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of section 881(c)(3) of the United States
Internal Revenue Code of 1986, (the “Code”);
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any estate, inheritance, gift, sales, transfer, excise, personal property or similar Taxes imposed with respect to the debt securities, except as otherwise provided in the applicable indenture;
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any Taxes imposed solely as a result of the presentation of such debt securities (where presentation is required) for payment on a date more than 15 days after the date on which such payment became due and payable or
the date on which payment thereof is duly provided for, whichever is later, except to the extent that the beneficiary or holder thereof would have been entitled to the payment of Additional Amounts had the debt securities been presented for payment
on any date during such
15-day
period;
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any Taxes imposed or withheld solely as a result of the failure of such holder or any other person to comply with applicable certification, information, documentation or other reporting requirements concerning the
nationality, residence, identity or connection with the Taxing Jurisdiction of such holder, if such compliance is required by statute, regulation, ruling or administrative practice of the relevant Taxing Jurisdiction or by any applicable tax treaty
to which the relevant Taxing Jurisdiction is a party as a precondition to relief or exemption from such Taxes;
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with respect to withholding Taxes imposed by the United States, any such Taxes imposed by reason of the failure of such holder to fulfill the statement requirements of sections 871(h) or 881(c) of the Code;
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any Taxes that are payable by any method other than withholding or deduction by Medtronic Luxco or any Guarantor or any paying agent from payments in respect of such debt securities;
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any Taxes required to be withheld by any paying agent from any payment in respect of any debt securities if such payment can be made without such withholding by at least one other paying agent;
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any withholding or deduction for Taxes which would not have been imposed if the relevant debt securities had been presented to another paying agent in a member state of the European Union as of the date of the
applicable indenture;
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any withholding or deduction required pursuant to sections 1471 through 1474 of the Code, any regulations or agreements thereunder, official interpretations thereof, any intergovernmental agreement, or any law, rule,
guidance or administrative practice implementing an intergovernmental agreement entered into in connection with such sections of the Code; or
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any combination of the above conditions.
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Additional Amounts also will not be payable to any
holder of debt securities or the holder of a beneficial interest in a global security that is a fiduciary, partnership, limited liability company or other fiscally transparent entity, or to such holder that is not the sole holder of such security or
holder of such beneficial interests in such security, as the case may be. The exception, however, will apply only to the extent that a beneficiary or settlor with respect to the fiduciary, or a beneficial owner or member of the partnership, limited
liability company or
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other fiscally transparent entity, would not have been entitled to the payment of an Additional Amount had the beneficiary, settlor, beneficial owner or member received directly its beneficial or
distributive share of the payment.
Medtronic Luxco and each Guarantor, as applicable, also:
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will make such withholding or deduction of Taxes;
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will remit the full amount of Taxes so deducted or withheld to the relevant Taxing Jurisdiction in accordance with all applicable laws;
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will use its commercially reasonable efforts to obtain from each Taxing Jurisdiction imposing such Taxes certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld; and
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upon request, will make available to the holders of the debt securities, within 90 days after the date the payment of any Taxes deducted or withheld is due pursuant to applicable law, certified copies of tax receipts
evidencing such payment by Medtronic Luxco or the applicable Guarantor or if, notwithstanding Medtronic Luxco’s or such Guarantor’s efforts to obtain such receipts, the same are not obtainable, other evidence of such payments.
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At least 30 days prior to each date on which any payment under or with respect to the debt securities of a series or
guarantees is due and payable, if Medtronic Luxco or the applicable Guarantor will be obligated to pay Additional Amounts with respect to such payment, Medtronic Luxco or the applicable Guarantor will deliver to the trustee an officers’
certificate stating the fact that such Additional Amounts will be payable, the amounts so payable and such other information as is necessary to enable the trustee to pay such Additional Amounts to holders of such debt securities on the payment date.
In addition, Medtronic Luxco will pay any stamp, issue, registration, documentary or other similar taxes and duties, including interest,
penalties and Additional Amounts with respect thereto, payable in Luxemburg or the United States or any political subdivision or taxing authority of or in the foregoing in respect of the creation, issue, offering, enforcement, redemption or
retirement of the debt securities.
The foregoing provisions shall survive any termination or the discharge of each indenture and shall
apply to any jurisdiction in which Medtronic Luxco or any Guarantor or any successor to Medtronic Luxco or any Guarantor, as the case may be, is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority
or agency thereof or therein.
Whenever in an indenture or supplemental indenture, any debt securities, any guarantee or in this
“Description of Debt Securities of Medtronic Global Holdings S.C.A.” there is mentioned, in any context, the payment of principal, premium, if any, redemption price, interest or any other amount payable under or with respect to any debt
securities, such mention includes the payment of Additional Amounts to the extent payable in the particular context.
Events of Default
Except as may be provided otherwise in a prospectus supplement, any of the following events will constitute an event of default for any series
of debt securities under the applicable indenture:
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failure to pay any interest on the debt securities of that series when due and payable and such failure continues for 30 days;
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failure to pay principal of or any premium on the debt securities of that series at its maturity, acceleration, redemption or otherwise;
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failure to perform or the breach of any other covenant or warranty in the indenture applicable to such series and such failure continues for 60 days after written notice as provided in such indenture;
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failure to pay principal when due at maturity or a default that results in the acceleration of maturity of Medtronic plc’s or any Restricted Subsidiary’s (defined below) indebtedness for borrowed money in an
aggregate amount of $150 million or more;
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Medtronic plc’s or Medtronic, Inc.’s guarantee ceases to be in full force and effect or is declared to be null and void and unenforceable or such guarantee is found to be invalid or Medtronic plc or Medtronic,
Inc. denies its liability under its guarantee (other than by reason of release of a guarantor in accordance with the terms of the applicable indenture);
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certain events in bankruptcy, insolvency, examinership or reorganization, voluntary or involuntary, relating to Medtronic Luxco, Medtronic plc or Medtronic, Inc.; and
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any other event of default provided with respect to debt securities of such series.
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If an
event of default, other than an event of default specified in the sixth bullet point above, occurs with respect to debt securities of any series and is continuing, either the applicable trustee or the holders of at least 25% in principal amount of
the outstanding debt securities of that series may declare the principal amount of all debt securities of that series to be due and payable immediately;
provided
,
however
, that under certain circumstances the holders of a majority in
aggregate principal amount of outstanding debt securities of that series may rescind and annul such declaration and its consequences. If an event of default specified in the sixth bullet point above occurs and is continuing, the entire principal
amount of, and accrued interest, if any, on each series of debt securities then outstanding shall become immediately due and payable. Any payment on the subordinated debt securities following any such acceleration will be subject to the
subordination provisions described below under “Certain Terms of Subordinated Debt Securities.”
The applicable trustee, after
the occurrence of a default with respect to any series of debt securities, shall give to the holders of debt securities of that series notice of all uncured defaults known to it (the term default to mean the events specified above without grace
periods);
provided
, that, except in the case of default in the payment of principal of (or premium, if any) or interest, if any, on any debt security, the trustee shall be protected in withholding such notice if it in good faith determines
that the withholding of such notice is in the interest of the holders of the debt securities of such series.
The holders of a majority in
principal amount of the outstanding debt securities of any series affected will have the right, subject to certain limitations, 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 debt securities of such series, and to waive certain defaults.
In case an
event of default shall occur and be continuing, each trustee shall exercise such of its rights and powers under the applicable indenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs. Subject to such provisions, the trustees will be under no obligation to exercise any of their rights or powers under the indentures at the request or direction of any of the holders of debt securities
unless such holders shall have offered to the applicable trustee reasonable security or indemnity against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction.
The indentures will require us to deliver to the trustees annual statements as to the performance of our obligations under the indentures and
as to any events of default thereunder.
A default in the payment of any of our debt securities or under any related guarantee, or a
default with respect to our debt securities or any related guarantee that causes such debt securities to be accelerated, may give rise to a cross-default under our other indebtedness.
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Certain Terms of Subordinated Debt Securities
The following provisions will apply to each series of subordinated debt securities, unless otherwise stated in the prospectus supplement
relating to that series of subordinated debt securities. Additional or different subordination terms may be specified in the prospectus supplement applicable to a particular series.
The indebtedness evidenced by the subordinated debt securities and the guarantees is subordinate to the prior payment in full of all of our
Senior Debt. During the continuance beyond any applicable grace period of any default in the payment of principal of, premium (if any), interest or any other payment due on any of our Senior Debt, Medtronic Luxco and the Guarantors may not make any
payment of principal of, premium (if any) or interest on the subordinated debt securities.
In the event of any acceleration of the
subordinated debt securities of any series because of an event of default with respect to such subordinated debt securities of that series, holders of any Senior Debt would be entitled to payment in full in cash or other payment satisfactory to
holders of Senior Debt of all Senior Debt before the holders of subordinated debt securities would be entitled to receive any payment or distribution. In addition, upon any payment or distribution of our assets upon any dissolution,
winding-up,
liquidation or reorganization, the payment of the principal of, premium (if any) and interest on the subordinated debt securities will be subordinated to the extent provided in the subordinated indenture
in right of payment to the prior payment in full of all of our Senior Debt.
As a result of these subordination provisions, if we dissolve
or otherwise liquidate, holders of our subordinated debt securities may receive less, ratably, than holders of our Senior Debt. The subordination provisions will not prevent the occurrence of an event of default under the subordinated indenture.
If the trustee or any holder receives any payment that should not have been made to them in contravention of subordination provisions
before all Senior Debt is paid in full in cash or other payment satisfactory to holders of Senior Debt, then such payment will be held in trust for the holders of senior debt. Senior debt securities will constitute Senior Debt under the subordinated
indenture.
Certain Covenants
Limitations on Secured Debt.
The indentures provide that we will not, and will not permit any Restricted Subsidiary (defined below) to, incur, issue, assume or guarantee
any Debt (defined below) secured by a pledge of, or mortgage or other lien on, any Principal Property (defined below), now owned or hereafter owned by Medtronic plc or any Restricted Subsidiary, or any shares of stock or Debt of any Restricted
Subsidiary (herein called “liens”), without effectively providing that the debt securities (together with, if we shall so determine, any other Debt of Medtronic plc or such Restricted Subsidiary then existing or thereafter created which is
not subordinate to the debt securities of that series) shall be secured equally and ratably with (or prior to) such secured Debt so long as such secured Debt shall be so secured. The foregoing restrictions do not apply, however, to:
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liens on any Principal Property acquired (whether by merger, consolidation, purchase, lease or otherwise), constructed or improved by Medtronic plc or any Restricted Subsidiary after the date of the applicable indenture
which are created or assumed prior to, contemporaneously with, or within 360 days after, such acquisition, construction or improvement, to secure or provide for the payment of all or any part of the cost of such acquisition, construction or
improvement (including related expenditures capitalized for federal income tax purposes in connection therewith) incurred after the date of the applicable indenture;
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liens on any property, shares of capital stock or Debt existing at the time of acquisition thereof, whether by merger, consolidation, purchase, lease or otherwise (including liens on property, shares of capital stock or
indebtedness of a corporation existing at the time such corporation becomes a Restricted Subsidiary);
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liens in favor of, or which secure Debt owing to, Medtronic plc or any Restricted Subsidiary;
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liens in favor of the United States or any state thereof, or any department, agency, or instrumentality or political subdivision thereof, or political entity affiliated therewith, or in favor of any other country, or
any political subdivision thereof, to secure partial, progress, advance or other payments, or other obligations, pursuant to any contract or statute, or to secure any Debt incurred for the purpose of financing all or any part of the cost of
acquiring, constructing or improving the property subject to such liens (including liens incurred in connection with pollution control, industrial revenue or similar financings);
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liens imposed by law, such as mechanics’, workmen’s, repairmen’s, materialmen’s, carriers’, warehousemen’s, vendors’ or other similar liens arising in the ordinary course of business,
or governmental (federal, state or municipal) liens arising out of contracts for the sale of products or services by Medtronic plc or any Restricted Subsidiary, or deposits or pledges to obtain the release of any of the foregoing;
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pledges or deposits under workmen’s compensation, unemployment insurance, or similar legislation and liens of judgments thereunder which are not currently dischargeable, or good faith deposits in connection with
bids, tenders, contracts (other than for the payment of money) or leases to which Medtronic plc or any Restricted Subsidiary is a party, or deposits to secure public or statutory obligations of Medtronic plc or any Restricted Subsidiary, or deposits
in connection with obtaining or maintaining self-insurance or to obtain the benefits of any law, regulation or arrangement pertaining to workmen’s compensation, unemployment insurance, old age pensions, social security or similar matters, or
deposits of cash or obligations of the United States to secure surety, appeal or customs bonds to which Medtronic plc or any Restricted Subsidiary is a party, or deposits in litigation or other proceedings such as, but not limited to, interpleader
proceedings;
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liens created by or resulting from any litigation or other proceeding which is being contested in good faith by appropriate proceedings, including liens arising out of judgments or awards against Medtronic plc or any
Restricted Subsidiary with respect to which Medtronic plc or such Restricted Subsidiary is in good faith prosecuting an appeal or proceedings for review; or liens incurred by Medtronic plc or any Restricted Subsidiary for the purpose of obtaining a
stay or discharge in the course of any litigation or other proceeding to which Medtronic plc or such Restricted Subsidiary is a party;
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liens for taxes or assessments or governmental charges or levies not yet due or delinquent, or which can thereafter be paid without penalty, or which are being contested in good faith by appropriate proceedings;
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liens consisting of easements,
rights-of-way,
zoning restrictions, restrictions on the use of real property, and defects and irregularities
in the title thereto, landlords’ liens and other similar liens and encumbrances none of which interfere materially with the use of the property covered thereby in the ordinary course of Medtronic plc’s business or the business of such
Restricted Subsidiary and which do not, in Medtronic plc’s opinion, materially detract from the value of such properties;
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liens existing on the first date on which the debt securities of a series are authenticated;
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liens arising solely by virtue of any statutory or common law provision relating to banker’s liens, rights of setoff or similar rights and remedies as to deposit accounts or other funds maintained with a creditor
depository institution;
provided
that (i) such deposit account is not a dedicated cash collateral account and is not subject to restrictions against access by Medtronic plc or the applicable Restricted Subsidiary in excess of those set
forth by regulations promulgated by the Federal Reserve Board and (ii) such deposit account is not intended to provide collateral to the depository institution; or
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any extension, renewal or replacement (or successive extensions, removals or replacements) as a whole or in part, of any lien referred to in the eleven foregoing bullets, inclusive;
provided
that (i) such
extension, renewal or replacement lien shall be limited to all or a part of the same property, shares of stock or debt that secured the lien extended, renewed or replaced (plus improvements on such property) and (ii) the Debt secured by such
lien at such time is not increased.
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Notwithstanding the restrictions described above, Medtronic plc or any Restricted Subsidiary may
incur, issue, assume or guarantee Debt secured by liens without equally and ratably securing the debt securities;
provided
that at the time of such incurrence, issuance, assumption or guarantee, after giving effect thereto and to the
retirement of any Debt which is concurrently being retired, the aggregate amount of all outstanding Debt secured by liens which could not have been incurred, issued, assumed or guaranteed by Medtronic plc or a Restricted Subsidiary without equally
and ratably securing the debt securities of each series then outstanding under the applicable indenture except for the provisions of this paragraph, together with the aggregate amount of Attributable Debt (defined below) incurred pursuant to the
second paragraph under the caption “—Limitations on Sale and Leaseback Transactions” below, does not at such time exceed 20% of the Consolidated Net Tangible Assets (defined below) of Medtronic plc.
Limitations on Sale and Leaseback Transactions.
Sale and leaseback transactions by Medtronic plc or any Restricted Subsidiary involving a Principal Property are prohibited unless either:
(a) Medtronic plc or such Restricted Subsidiary would be entitled, without equally and ratably securing the debt securities, to incur Debt secured by a lien on such property, pursuant to the provisions described in the bullets above under
“—Limitations on Secured Debt”; or (b) Medtronic plc or a subsidiary thereof, within 360 days after such transaction, apply an amount not less than the net proceeds of the sale of the Principal Property leased pursuant to such
arrangement to (1) the retirement of Medtronic plc’s Funded Debt (defined below);
provided
that the amount to be applied to the retirement of Medtronic plc’s Funded Debt shall be reduced by (i) the principal amount of any
debt securities delivered within 360 days after such sale to the trustee for retirement and cancellation and (ii) the principal amount of Funded Debt, other than debt securities, voluntarily retired by Medtronic plc within 360 days after such
sale or (2) the purchase, construction or development of other property, facilities or equipment used or useful in Medtronic plc’s or its Restricted Subsidiaries’ business. Notwithstanding the foregoing, no retirement referred to in
clause (b) of this paragraph may be effected by payment at maturity or pursuant to any mandatory sinking fund payment or mandatory prepayment provision. This restriction will not apply to a sale and leaseback transaction between Medtronic plc
and a Restricted Subsidiary or between Restricted Subsidiaries or involving the taking back of a lease for a period of less than three years.
Notwithstanding the restrictions described above, Medtronic plc or any Restricted Subsidiary may enter into a sale and leaseback transaction;
provided
that at the time of such transaction, after giving effect thereto and to the retirement of any Funded Debt which is concurrently being retired, the aggregate amount of all Attributable Debt (defined below) in respect of sale and
leaseback transactions existing at such time (other than sale and leaseback transactions permitted as described in the preceding paragraph), together with the aggregate amount of all outstanding Debt incurred pursuant to the second paragraph under
the caption “—Limitations on Secured Debt” above, does not at such time exceed 20% of the Consolidated Net Tangible Assets of Medtronic plc.
Certain Other Covenants.
The indentures contain certain other covenants applicable to us and/or the Guarantors regarding, among other matters, corporate existence and
reports to holders of debt securities. Unless indicated otherwise in a prospectus supplement, the debt securities will not contain any additional financial or restrictive covenants, including covenants relating to total indebtedness, interest
coverage, stock repurchases, recapitalizations, dividends and distributions to shareholders or current ratios. The provisions of the indentures do not afford holders of debt securities issued thereunder protection in the event of a sudden or
significant decline in our or any Guarantor’s credit quality or in the event of a takeover, recapitalization or highly leveraged or similar transaction involving us, Medtronic plc, Medtronic, Inc. or any of our affiliates that may adversely
affect such holders.
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Consolidation, Merger, Conveyance, Transfer or Lease
We may not consolidate with or merge into any other person or sell, assign, convey, transfer, lease or otherwise dispose of all or
substantially all of our assets to any other person, unless:
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either: (i) we shall be the continuing person; or (ii) the person (if other than us), formed by such consolidation or into which we are merged, or the person that acquires, by sale, assignment, conveyance,
transfer, lease or other disposition, all or substantially all of our assets, shall (1) be a corporation, partnership, limited liability company, trust or similar entity organized and validly existing under the laws of the United States of
America, any state or political subdivision thereof, the District of Columbia, the United Kingdom or any member country of the European Union and (2) expressly assume, by a supplemental indenture, in form reasonably satisfactory to the trustee,
the due and punctual payment of the principal of (and premium, if any) and interest on all the debt securities and the performance or the observance of every covenant of the applicable indenture on our part to be performed or observed;
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immediately after giving effect to such transaction (including the incurrence of any Debt in connection with such transaction or series of transactions), no event of default, and no event which, after notice or lapse of
time or both, would become an event of default, shall have occurred and be continuing (
provided
, that, for the avoidance of doubt, Debt of a Restricted Subsidiary incurred prior to such transaction which is assumed by us, another Restricted
Subsidiary or the person assuming our obligations hereunder in connection with such transaction shall be deemed not to be a separate incurrence of Debt);
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if, as a result of any such consolidation or merger or such conveyance, transfer or lease, our properties or assets would become subject to a mortgage, pledge, lien, security interest or other encumbrance which would
not be permitted by the applicable indenture, we or such successor person, as the case may be, shall take such steps as shall be necessary effectively to secure the debt securities equally and ratably with (or prior to) all Debt secured thereby; and
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we shall have delivered to the trustee an officers’ certificate and an opinion of counsel, each stating that such consolidation, merger, sale, conveyance, assignment, transfer, lease or other disposition and such
supplemental indenture comply with the requirements of the applicable indenture.
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The foregoing restrictions on our ability
to consolidate with or merge into any other person or sell, assign, convey, transfer, lease or otherwise dispose of all or substantially all of our assets shall not apply to any consolidation, merger, sale, conveyance, assignment, transfer, lease or
other disposition of assets between or among us and Medtronic plc and/or any other Restricted Subsidiary.
In addition, no Guarantor may
consolidate with or merge into any other person or sell, assign, convey, transfer, lease or otherwise dispose of all or substantially all of the assets of such Guarantor to any other person, unless:
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(a) either: (i) such Guarantor shall be the continuing person; or (ii) the person (if other than such Guarantor), formed by such consolidation or into which such Guarantor is merged, or the person that
acquires, by sale, assignment, conveyance, transfer, lease or other disposition, all or substantially all of the assets of such Guarantor, shall (1) be a corporation, partnership, limited liability company, trust or similar entity organized and
validly existing under the laws of the United States of America, any state or political subdivision thereof, the District of Columbia, the United Kingdom or any member country of the European Union and (2) expressly assume, by a supplemental
indenture, in form reasonably satisfactory to the trustee, the due and punctual payment of the principal of (and premium, if any) and interest on all the debt securities and the performance or the observance of every covenant of the applicable
indenture on its part to be performed or observed;
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immediately after giving effect to such transaction (including the incurrence of any Debt in connection with such
transaction or series of transactions), no event of default, and no event which, after notice or
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lapse of time or both, would become an event of default, shall have occurred and be continuing (
provided
, that for the avoidance of doubt, Debt of Medtronic plc or any Restricted
Subsidiary incurred prior to such transaction which is assumed by Medtronic plc or any Restricted Subsidiary or the person assuming such Guarantor’s obligations hereunder in connection with such transaction shall be deemed not to be a separate
incurrence of Debt);
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if, as a result of any such consolidation or merger or such conveyance, transfer or lease, the properties or assets of such Guarantor would become subject to a mortgage, pledge, lien, security interest or other
encumbrance which would not be permitted by the applicable indenture, the Guarantor or such successor person, as the case may be, shall take such steps as shall be necessary effectively to secure the debt securities equally and ratably with (or
prior to) all Debt secured thereby; and
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such Guarantor shall have delivered to the trustee an officers’ certificate and an opinion of counsel, each stating that such consolidation, merger, sale, conveyance, assignment, transfer, lease or other
disposition and such supplemental indenture comply with the requirements of the applicable indenture.
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The foregoing
restrictions on the Guarantors’ ability to consolidate with or merge into any other person or sell, assign, convey, transfer, lease or otherwise dispose of all or substantially all of our assets shall not apply to any consolidation, merger,
sale, conveyance, assignment, transfer, lease or other disposition of assets between or among any Guarantor and Medtronic plc or any Restricted Subsidiary.
Defeasance and Satisfaction and Discharge
Full Defeasance.
If there
is a change in federal income tax law or ruling of the Internal Revenue Service, as described below, under the terms of the applicable indenture, we can legally release ourself from any payment or other obligations on the debt securities of any
series (this is called “full defeasance”) if, among other things:
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we irrevocably deposit or causes to be deposited with the trustee in trust for the benefit of all direct holders of the debt securities of such series, money in an amount, U.S. or certain foreign government notes or
bonds, or a combination thereof, in each case sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the trustee, to pay and discharge, the principal of
and any premium and interest on the debt securities of such series on their applicable maturity date and any mandatory sinking fund payments or analogous payments applicable to the debt securities of such series on the day on which such payments are
due and payable;
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there is a change in U.S. federal income tax law or an Internal Revenue Service ruling that permits us to make the above deposit without causing holders to be taxed on the debt securities of such series any differently
than if we did not make the deposit and simply repaid the debt securities of such series under the stated payment terms; and
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we deliver to the trustee an opinion of counsel confirming the tax law change or Internal Revenue Service ruling described above.
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If we accomplish full defeasance, a holder of debt securities would have to rely solely on the trust deposit for all payments on the debt
securities of such series. Holders could not look to us for payment in the event of any shortfall.
Covenant Defeasance.
Under current U.S. federal income tax law, if we make the type of trust deposit described above (though not legally releasing ourself from
payment obligations on the debt securities of the applicable series), we can be released from some of the restrictive covenants in the applicable indenture without causing you to be taxed on the
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debt securities of such series any differently than if we did not make the deposit. This is called “covenant defeasance.” In that event, you would lose the benefit of those restrictive
covenants but would gain the protection of having money and/or U.S. or certain foreign government notes or bonds set aside in trust to repay the debt securities of such series. In order to exercise our rights under the applicable indenture to
achieve covenant defeasance, we must, among other things:
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irrevocably deposit or cause to be deposited with the trustee in trust for the benefit of all direct holders of the debt securities of such series, money in an amount, U.S. or certain foreign government notes or bonds,
or a combination thereof, in each case sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the trustee, to pay and discharge, the principal of and any
premium and interest on the debt securities of such series on their applicable maturity date and any mandatory sinking fund payments or analogous payments applicable to the debt securities of such series on the day on which such payments are due and
payable; and
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deliver to the trustee an opinion of counsel confirming that under current U.S. federal income tax laws we may make the above deposit without causing holders to be taxed on the debt securities of such series any
differently than if we did not make the deposit and simply repaid the debt securities of such series.
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If we accomplish
covenant defeasance, the following provisions of the applicable indenture or indentures and the debt securities of the applicable series would no longer apply:
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certain of our and the Guarantors’ obligations regarding the conduct of our business described above under “Certain Covenants,” including the limitations on secured debt, limitations on sale and leaseback
transactions and the covenant with respect to existence;
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the conditions to engaging in a merger or similar transaction, as described above under “Consolidation, Merger, Conveyance, Transfer or Lease;” and
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the events of default relating to breaches of certain covenants, certain events in bankruptcy, insolvency or reorganization, and acceleration of the maturity of other debt, described above under “Events of
Default.”
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If we accomplish covenant defeasance, you can still look to us for repayment of the debt securities of the
applicable series in the event of a shortfall in the trust deposit. In fact, if one of the remaining events of default occurred (such as our bankruptcy) and the debt securities of such series become immediately due and payable, such a shortfall
could arise. Depending on the event causing the default, you may not be able to obtain payment of the shortfall.
Satisfaction and Discharge
The applicable indenture will cease to be of further effect with respect to any series of debt securities and the trustee, upon our demand and
at our expense, will execute appropriate instruments acknowledging the satisfaction and discharge of the applicable indenture with respect to such series, upon compliance with certain conditions, including:
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either: (i) our having delivered to the trustee for cancellation all of the debt securities of such series
theretofore authenticated and delivered; or (ii) all debt securities of such series outstanding under the indenture not theretofore delivered to the trustee for cancellation have become due and payable, will become due and payable at their
stated maturity within one year, or are to be called for redemption within one year under arrangements satisfactory to the trustee for the giving of notice of redemption by the trustee in our name and our expense, and in each such case, our having
deposited or caused to be deposited with the trustee as trust funds in trust for the purpose money in an amount sufficient to pay and discharge the entire indebtedness on such debt securities of the series not theretofore delivered to
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the trustee for cancellation, for principal and any premium and interest to the date of such deposit (in the case of debt securities which have become due and payable) or the stated maturity or
redemption date, as the case may be; and
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our having delivered to the trustee an officers’ certificate and an opinion of counsel, each stating that the conditions precedent provided for in the applicable indenture relating to the satisfaction and discharge
of such indenture with respect to such series of debt securities have been complied with.
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Modification of the Indentures
Modifications and amendments of the indentures may be made by us and the applicable trustee with the consent of the holders of not less than a
majority in aggregate principal amount of the outstanding debt securities of each series affected by the modification or waiver;
provided
,
however
, that no such modification or amendment may without the consent of the holder of each
debt security affected thereby, extend the stated maturity of the principal of, or any installment of principal of or interest on, any debt security, reduce the principal amount of, or premium or interest on, any debt security, change the place of
payment where coin or currency in which the principal of, or any premium or interest on, any debt security is payable, impair the right to institute suit for the enforcement of any payment on or with respect to any debt security, reduce the
percentage in principal amount of outstanding debt securities, the consent of the holders of which is required for modification or amendment of the applicable indenture or for waiver of compliance with certain provisions of such indenture or for
waiver of certain defaults or modify any of the above provisions.
The holders of not less than a majority in aggregate principal amount
of the outstanding debt securities of each series may, on behalf of the holders of all debt securities of that series, waive compliance by us with certain restrictive provisions of the applicable indenture that may be amended by such majority. The
holders of not less than a majority in aggregate principal amount of the outstanding debt securities of each series may, on behalf of the holders of all debt securities of such series, waive any past default under the applicable indenture, except a
default (1) in the payment of principal of, or any premium or interest on, any debt security or (2) in respect of a covenant or provision of the applicable indenture which cannot be modified or amended without the consent of the holder of
each debt security of the affected series.
Modifications and amendments of the indentures may be made by us and the trustee without the
consent of any holders of any series of debt securities for any of the following purposes:
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to evidence the succession of another person to us or any Guarantor and the assumption by any such successor of our or such Guarantor’s covenants under the indentures and in the debt securities;
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to add to our covenants or the covenants applicable to any Guarantor for the benefit of the holders or to surrender any right or power in the indentures conferred upon us or any Guarantor;
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to add any additional events of default for the benefit of the holders;
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to secure the debt securities or any related guarantee;
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to evidence and provide for the acceptance of appointment hereunder by a successor trustee;
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to cure any ambiguity, to correct or supplement any provision in an indenture or in any supplemental indenture which may be inconsistent with any other provision of such indenture or supplemental indenture, or to make
any other provisions with respect to matters or questions arising under the indenture;
provided
such action shall not adversely affect the interests of the holders in any material respect;
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to conform the indenture or any supplemental indenture to the description of the debt securities set forth in any prospectus or prospectus supplement related to such series of debt securities;
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to comply with the requirements of the SEC in order to effect or maintain the qualifications of the indenture under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”);
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to add to or change any of the provisions of the applicable indenture to such extent as shall be necessary to permit or facilitate the issuance of debt securities in bearer form or to facilitate the issuance of debt
securities in uncertificated form;
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to provide for the issuance and establish the forms or terms and conditions of debt securities of any series as permitted by the applicable indenture;
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to add or release a Guarantor as permitted by the applicable indenture; or
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to comply with the rules of any applicable securities depositary.
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Debt securities will not be
considered outstanding, and therefore will not be eligible to vote on any matter, if we have deposited or set aside in trust for you money for their payment or redemption. Debt securities will also not be eligible to vote if they have been fully
defeased as described above under “Defeasance and Satisfaction and Discharge.”
We will generally be entitled to set any day as
a record date for the purpose of determining the holders of outstanding debt securities that are entitled to vote or take other action under the indenture. In certain limited circumstances, the trustee will be entitled to set a record date for
action by holders. If we or the trustee set a record date for a vote or other action to be taken, that vote or action may be taken only by persons who are holders of outstanding debt securities on the record date and must be taken within 180 days
following the record date or a shorter period that we may specify (or as the trustee may specify, if it set the record date). We may shorten or lengthen (but not beyond 180 days) this period from time to time.
Regarding the Trustees
The senior
indenture trustee’s current address is Wells Fargo Bank, National Association, 600 South 4th Street, 6th Floor, Minneapolis, Minnesota 55415.
Each indenture provides that, except during the continuance of an event of default, the trustee will perform only such duties as are
specifically set forth in such indenture. During the existence of an event of default, the trustee will exercise such rights and powers vested in its exercise as a prudent person would exercise under the circumstances in the conduct of such
person’s own affairs.
The indentures and certain provisions of the Trust Indenture Act contain limitations on the rights of the
trustees, should a trustee become a creditor of us, Medtronic plc or Medtronic, Inc. to obtain payment of claims in certain cases or to realize on certain property received by it in respect of any such claim as security or otherwise. A trustee is
permitted to engage in other transactions with us or any affiliate of ours. If there arises any conflicting interest (as defined in the indenture or in the Trust Indenture Act), it must eliminate such conflict or resign.
We maintain ordinary banking relationships and credit facilities with Wells Fargo Bank, National Association. In addition, Wells Fargo Bank,
National Association is the trustee for certain of our affiliates’ other debt securities, is the transfer agent for Medtronic plc’s ordinary shares, and from time to time provides services relating to our investment management, stock
repurchase and foreign currency hedging programs.
Governing Law
The indentures and the debt securities will be governed by and construed in accordance with the laws of the State of New York and the United
States. For the avoidance of doubt, the applicability of Articles 86 to
94-8
of the Luxembourg law dated 10 August 1915 on commercial companies, as amended, shall be excluded.
Certain Definitions
“
Attributable Debt
” in respect of any lease means, at the time of determination, the present value (discounted at the rate of
interest implicit in the terms of the lease) of the obligation of the lessee for net rental
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payments during the remaining term of the lease (including any period for which such lease has been extended or may, at the option of the lessor, be extended). “
Net rental
payments
” under any lease for any period means the sum of the rental and other payments required to be paid in such period by the lessee thereunder, not including, however, any amounts required to be paid by such lessee (whether or not
designated as rental or additional rental payments) on account of maintenance and repairs, insurance, taxes, assessments or similar charges required to be paid by such lessee thereunder or any amounts required to be paid by such lessee thereunder
contingent upon the amount of sales, maintenance and repairs, insurance, taxes, assessments or similar charges.
“
Consolidated Net
Tangible Assets
” means, at the date of determination, the aggregate amount of total assets which would appear on the consolidated balance sheet of Medtronic plc (less applicable reserves and other properly deductible items) after deducting
therefrom (a) all current liabilities (excluding any indebtedness for money borrowed having a maturity of less than 12 months from the date of Medtronic plc’s then most recent publicly available consolidated balance sheet but which by its
terms is renewable or extendible beyond 12 months from such date at the option of the borrower) and (b) all goodwill, trade names, patents, unamortized debt discount and expense and any other like intangibles, all as set forth on Medtronic
plc’s then most recent publicly available consolidated balance sheet and computed in accordance with generally accepted accounting principles.
“
Debt
” means, with respect to any person, without duplication: (a) all indebtedness of such person for borrowed money;
and (b) all obligations of such person evidenced by bonds, debentures, notes or other similar instruments.
The amount of Debt of any
person will be deemed to be: (i) with respect to Debt secured by a lien, pledge, mortgage or similar encumbrance on an asset of such person but not otherwise the obligation, contingent or otherwise, of such person, the lesser of (1) the
fair market value of such asset on the date such lien, pledge, mortgage or similar encumbrance attached and (2) the amount of such Debt; (ii) with respect to any Debt issued with original issue discount, the face amount of such Debt less
the remaining unamortized portion of the original issue discount of such Debt; and (iii) otherwise, the outstanding principal amount thereof.
“
Funded Debt
” means Debt which by its terms matures at or is extendible or renewable at the option of the obligor to a date
more than 12 months after the date of the creation of such Debt.
“
Guaranteed Bonds
” means (a) any notes or
debentures issued by us, Medtronic plc or Medtronic, Inc. which are at the time of issuance or which become, whether in connection with an exchange of securities or otherwise, registered pursuant to the Securities Act of 1933, as amended (the
“Securities Act”), in each case whether outstanding as of the date hereof or issued in the future, and (b) any outstanding senior unsecured notes or debentures issued by Covidien International Finance S.A. prior to the date of the
applicable indenture.
“
Principal Property
” means any plant, office facility, warehouse, distribution center or equipment
located within the United States (other than its territories or possessions) and owned by Medtronic plc or any subsidiary, the gross book value (without deduction of any depreciation reserves) of which on the date as of which the determination is
being made exceeds 2% of the Consolidated Net Tangible Assets of Medtronic plc, except any such property which Medtronic plc’s board of directors, in its good faith opinion, determines is not of material importance to the business conducted by
Medtronic plc and its subsidiaries, taken as a whole, as evidenced by a certified copy of a board resolution.
“
Restricted
Subsidiary
” means (i) each of Medtronic Luxco and Medtronic, Inc. and (ii) any other subsidiary of Medtronic plc which owns or leases a Principal Property, except any subsidiary substantially all of the assets of which are
located, or substantially all of the business of which is carried on, outside the United States and its territories and possessions.
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“
Senior Debt
” of a person means the principal of, premium, if any, interest on,
and any other payment due pursuant to any of the following, whether outstanding at the date of the subordinated indenture or incurred or created thereafter:
(a) all Debt of that person;
(b) all obligations in respect of capital leases of that person;
(c) all obligations of the kind described in the preceding clause (a) above and all lease obligations of others of the kind described in
the preceding clause (b) above that the person, in any manner, assumes or guarantees or that the person in effect guarantees through an agreement to purchase, whether that agreement is contingent or otherwise; and
(d) all renewals, extensions or refundings of indebtedness of the kinds described in any of the preceding clauses (a) and (c) and all
renewals or extensions of leases of the kinds described in either of the preceding clauses (b) or (c) above;
unless
, in the case of any
particular indebtedness, lease, renewal, extension or refunding, the instrument or lease creating or evidencing it or the assumption or guarantee relating to it expressly provides that such indebtedness, lease, renewal, extension or refunding is not
superior in right of payment to the subordinated debt securities.
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DESCRIPTION OF DEBT SECURITIES OF MEDTRONIC, INC.
This section describes the general terms and provisions of the unsecured general obligations that Medtronic, Inc. may offer from time to time
in the form of one or more series of senior debt securities. We refer to such senior debt securities in this section as the debt securities. As used in this “Description of Debt Securities of Medtronic, Inc.,” references to
“Medtronic, Inc.,” “we,” “our” and “us” refer to Medtronic, Inc., a Minnesota corporation, references to “Medtronic plc” refer to Medtronic Public Limited Company, a company organized under the laws
of Ireland and references to “Medtronic Luxco” refers to Medtronic Global Holdings S.C.A., an entity organized under the laws of Luxembourg, and in each case do not, unless the context otherwise indicates, include such entity’s
subsidiaries.
Debt securities will be issued under an indenture, dated December 10, 2014 (the “base indenture”), between
Medtronic, Inc. and Wells Fargo Bank, National Association, as trustee, that has been filed as an exhibit to the registration statement of which this prospectus is a part and is incorporated by reference into this prospectus, subject to such
amendments or supplemental indentures as are adopted, from time to time, including the supplemental indentures dated as of December 10, 2014, January 25, 2015 and January 25, 2015 that have been filed as exhibits to the registration
statement of which this prospectus is a part. We refer to the base indenture as amended and supplemented to date as the indenture. The following summaries of certain provisions of the indenture and the senior debt securities are not complete and are
subject to the detailed provisions of the indenture. You should refer to the indenture for more specific information. In addition, you should consult the applicable prospectus supplement and any free writing prospectus that we authorize to be
delivered for particular terms of the debt securities being offered.
The indenture does not limit the amount of debt securities that may
be issued by Medtronic, Inc. or any of its affiliates. The indenture provides that debt securities may be issued from time to time in one or more series. When we offer to sell a particular series of debt securities, we will describe the specific
terms and conditions of the series in a prospectus supplement to this prospectus. We will also indicate in the applicable prospectus supplement if any of the general terms and conditions described below will not apply to the series of debt
securities.
General Terms
The debt
securities will be unsecured obligations of Medtronic, Inc. and will be fully and unconditionally guaranteed, on a joint and several basis, by each of Medtronic plc and Medtronic Luxco. The debt securities will rank equally in right of payment with
Medtronic, Inc.’s other unsecured and unsubordinated obligations, and will be structurally subordinated to all of the liabilities of the subsidiaries of Medtronic, Inc.
Medtronic, Inc. may issue debt securities up to an aggregate principal amount as we may authorize from time to time. The prospectus supplement
will describe the terms of any debt securities being offered, including:
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the title of the debt securities;
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any limit on the aggregate principal amount of the debt securities;
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the date or dates on which the debt securities will mature;
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the price or prices at which we will sell the debt securities;
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the rate or rates, which may be fixed or variable, at which the debt securities will bear interest, if any, and the date or dates from which such interest will accrue;
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the dates on which such interest, if any, will be payable and the regular record dates for such interest payments;
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the place or places where principal of, premium, if any, and interest on the debt securities shall be payable;
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whether any index, formula or other method will be used to determine the amount of payments of principal of and premium, if any, and interest on the debt securities and the manner of determining the amount of such
payments;
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any mandatory or optional sinking fund or analogous provisions;
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if applicable, the price at which, the periods within which, and the terms and conditions upon which the debt securities may, pursuant to any optional or mandatory redemption provisions, be redeemed;
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any guarantee provisions in addition to or in lieu of those described in this prospectus;
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the portion of the principal amount of the debt securities, if other than the entire principal amount thereof, payable upon acceleration of maturity thereof;
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the currency of payment of principal of and premium, if any, and interest on the debt securities;
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whether we will issue the debt securities as original issue discount securities for federal income tax purposes;
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the currency of principal and interest payments if other than U.S. dollars, and the manner of determining the equivalent thereof in U.S. dollars for any purpose under the indenture;
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any deletions from, changes in or additions to the events of default or the covenants specified in the indenture, or to the right of the trustee or the requisite holders of such securities to declare the principal
amount of such securities due and payable;
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any special tax implications of such series of debt securities; and
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any other terms of the debt securities.
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Debt securities may bear interest at fixed or
floating rates. We may issue debt securities at an original issue discount, bearing no interest or bearing interest at a rate that, at the time of issuance, is below market rate, to be sold at a substantial discount below their stated principal
amount. Generally speaking, if our debt securities are issued at an original issue discount and there is an event of default or acceleration of their maturity, holders will receive an amount less than the stated principal amount of the debt
securities. Tax and other special considerations applicable to any series of debt securities, including original issue discount securities, will be described in the prospectus supplement in which we offer those debt securities.
We will have the ability under the indenture to reopen a previously issued series of debt securities and issue additional debt securities of
that series or establish additional terms of the series. We are also permitted to issue debt securities with the same terms as previously issued debt securities.
Guarantees
Medtronic plc and Medtronic
Luxco will fully and unconditionally guarantee, on a joint and several basis, to each holder of debt securities issued by Medtronic, Inc., in each case in accordance with the indenture, (i) the due and punctual payment of principal of and
premium, if any, and interest on those debt securities, when and as the same become due and payable, whether at maturity, by declaration of acceleration, upon redemption, repurchase or otherwise, and (ii) that all other obligations of
Medtronic, Inc. to the holders or the trustee shall be promptly paid in full or performed. The guarantees will be unsecured and each guarantee of senior debt securities will rank equally with all other unsecured and unsubordinated obligations of
Medtronic plc and Medtronic Luxco, as applicable, and will be structurally subordinated to all of the liabilities of the subsidiaries of Medtronic plc (other than Medtronic Luxco and Medtronic, Inc.). Medtronic plc and Medtronic Luxco are sometimes
referred to in this section as the “Guarantors.”
Notwithstanding the foregoing, each Guarantor will be automatically and
unconditionally released from all obligations under its guarantee, and such guarantees shall terminate and be discharged and be of no further force
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and effect, (i) upon the merger or consolidation of such Guarantor with and into either us or any other Guarantor that is the surviving person in such merger or consolidation, or upon the
liquidation of such Guarantor following the transfer of all or substantially all of its assets to either us or another Guarantor or (ii) upon legal or covenant defeasance of our obligations, or satisfaction and discharge of the indenture.
The guarantees of the debt securities may be subject to review under United States federal or state fraudulent transfer law or similar laws in
other applicable jurisdictions, which could limit their enforceability. The guarantees will provide that the obligations of each Guarantor will be limited as necessary to prevent that guarantee from constituting a fraudulent conveyance or fraudulent
transfer under applicable law.
Payment
Unless otherwise indicated in the applicable prospectus supplement, principal, interest and any premium on the debt securities will be paid at
the place or places that we will designate for such purposes. However, we may, at our option, make interest payments by check mailed to persons in whose names the debt securities are registered. Unless otherwise indicated in the applicable
prospectus supplement, payment of interest on a debt security which is payable and is punctually paid or duly provided for on any interest payment date will be made to the person in whose name that debt security is registered at the close of
business on the regular record date for that interest payment.
Events of Default
Except as may be provided otherwise in a prospectus supplement, any of the following events will constitute an event of default for any series
of debt securities under the indenture:
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failure to pay any interest on the debt securities of that series when due and payable and such failure continues for 30 days;
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failure to pay principal of or any premium on the debt securities of that series at its maturity, acceleration, redemption or otherwise;
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failure to perform or the breach of any other covenant or warranty in the indenture applicable to such series and such failure continues for 60 days after written notice as provided in such indenture;
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failure to pay principal when due at maturity or a default that results in the acceleration of maturity of Medtronic, Inc.’s or any Restricted Subsidiary’s (defined below) indebtedness for borrowed money in an
aggregate amount of $100 million or more;
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Medtronic plc’s or Medtronic Luxco’s guarantee ceases to be in full force and effect or is declared to be null and void and unenforceable or such guarantee is found to be invalid or Medtronic plc or Medtronic
Luxco denies its liability under its guarantee (other than by reason of release of a guarantor in accordance with the terms of the indenture);
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certain events in bankruptcy, insolvency or reorganization, voluntary or involuntary, relating to Medtronic, Inc., Medtronic plc or Medtronic Luxco; and
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any other event of default provided with respect to debt securities of such series.
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If an
event of default, other than an event of default specified in the sixth bullet point above, occurs with respect to debt securities of any series and is continuing, either the trustee or the holders of at least 25% in principal amount of the
outstanding debt securities of that series may declare the principal amount of all debt securities of that series to be due and payable immediately;
provided
,
however
, that under certain circumstances the holders of a majority in
aggregate principal amount of outstanding debt securities of that series may rescind and annul such declaration and its consequences. If an event of default specified in the sixth bullet point above occurs and is continuing, the entire principal
amount of, and accrued interest, if any, on each series of debt securities then outstanding shall become immediately due and payable.
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The trustee, after the occurrence of a default with respect to any series of debt securities,
shall give to the holders of debt securities of that series notice of all uncured defaults known to it (the term default to mean the events specified above without grace periods);
provided
, that, except in the case of default in the payment
of principal of (or premium, if any) or interest, if any, on any debt security, the trustee shall be protected in withholding such notice if it in good faith determines that the withholding of such notice is in the interest of the holders of the
debt securities of such series.
The holders of a majority in principal amount of the outstanding debt securities of any series affected
will have the right, subject to certain limitations, 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 debt
securities of such series, and to waive certain defaults.
In case an event of default shall occur and be continuing, the trustee shall
exercise such of its rights and powers under the indenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of such person’s own affairs. Subject to such
provisions, the trustee will be under no obligation to exercise any of its rights or powers under the indenture at the request or direction of any of the holders of debt securities unless such holders shall have offered to the trustee reasonable
security or indemnity against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction.
The indenture will require us to deliver to the trustee an annual statement as to the performance of our obligations under the indenture and
as to any events of default thereunder.
A default in the payment of any of our debt securities or under any related guarantee, or a
default with respect to our debt securities or any related guarantee that causes such debt securities to be accelerated, may give rise to a cross-default under our other indebtedness.
Certain Covenants
Limitations on
Secured Debt.
The indenture provides that we will not, and will not permit any Restricted Subsidiary (defined below) to, incur, issue,
assume or guarantee any Debt (defined below) secured by a pledge of, or mortgage or other lien on, any Principal Property (defined below), now owned or hereafter owned by Medtronic, Inc. or any Restricted Subsidiary, or any shares of stock or Debt
of any Restricted Subsidiary (herein called “liens”), without effectively providing that the debt securities (together with, if we shall so determine, any other Debt of Medtronic, Inc. or such Restricted Subsidiary then existing or
thereafter created which is not subordinate to the debt securities of that series) shall be secured equally and ratably with (or prior to) such secured Debt so long as such secured Debt shall be so secured. The foregoing restrictions do not apply,
however, to:
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liens on any Principal Property acquired (whether by merger, consolidation, purchase, lease or otherwise), constructed or improved by Medtronic, Inc. or any Restricted Subsidiary after the date of the indenture which
are created or assumed prior to, contemporaneously with, or within 360 days after, such acquisition, construction or improvement, to secure or provide for the payment of all or any part of the cost of such acquisition, construction or improvement
(including related expenditures capitalized for federal income tax purposes in connection therewith) incurred after the date of the indenture;
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liens on any property, shares of capital stock or Debt existing at the time of acquisition thereof, whether by merger, consolidation, purchase, lease or otherwise (including liens on property, shares of capital stock or
indebtedness of a corporation existing at the time such corporation becomes a Restricted Subsidiary);
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liens in favor of, or which secure Debt owing to, Medtronic, Inc. or any Restricted Subsidiary;
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liens in favor of the United States or any state thereof, or any department, agency, or instrumentality or political subdivision thereof, or political entity affiliated therewith, or in favor of any other country, or
any political subdivision thereof, to secure partial, progress, advance or other payments, or other obligations, pursuant to any contract or statute, or to secure any Debt incurred for the purpose of financing all or any part of the cost of
acquiring, constructing or improving the property subject to such liens (including liens incurred in connection with pollution control, industrial revenue or similar financings);
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liens imposed by law, such as mechanics’, workmen’s, repairmen’s, materialmen’s, carriers’, warehousemen’s, vendors’ or other similar liens arising in the ordinary course of business,
or governmental (federal, state or municipal) liens arising out of contracts for the sale of products or services by Medtronic, Inc. or any Restricted Subsidiary, or deposits or pledges to obtain the release of any of the foregoing;
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pledges or deposits under workmen’s compensation, unemployment insurance, or similar legislation and liens of judgments thereunder which are not currently dischargeable, or good faith deposits in connection with
bids, tenders, contracts (other than for the payment of money) or leases to which Medtronic, Inc. or any Restricted Subsidiary is a party, or deposits to secure public or statutory obligations of Medtronic, Inc. or any Restricted Subsidiary, or
deposits in connection with obtaining or maintaining self-insurance or to obtain the benefits of any law, regulation or arrangement pertaining to workmen’s compensation, unemployment insurance, old age pensions, social security or similar
matters, or deposits of cash or obligations of the United States to secure surety, appeal or customs bonds to which Medtronic, Inc. or any Restricted Subsidiary is a party, or deposits in litigation or other proceedings such as, but not limited to,
interpleader proceedings;
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liens created by or resulting from any litigation or other proceeding which is being contested in good faith by appropriate proceedings, including liens arising out of judgments or awards against Medtronic, Inc. or any
Restricted Subsidiary with respect to which Medtronic, Inc. or such Restricted Subsidiary is in good faith prosecuting an appeal or proceedings for review; or liens incurred by Medtronic, Inc. or any Restricted Subsidiary for the purpose of
obtaining a stay or discharge in the course of any litigation or other proceeding to which Medtronic, Inc. or such Restricted Subsidiary is a party;
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liens for taxes or assessments or governmental charges or levies not yet due or delinquent, or which can thereafter be paid without penalty, or which are being contested in good faith by appropriate proceedings;
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liens consisting of easements,
rights-of-way,
zoning restrictions, restrictions on the use of real property, and defects and irregularities
in the title thereto, landlords’ liens and other similar liens and encumbrances none of which interfere materially with the use of the property covered thereby in the ordinary course of Medtronic, Inc.’s business or the business of such
Restricted Subsidiary and which do not, in Medtronic, Inc.’s opinion, materially detract from the value of such properties;
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liens existing on the first date on which the debt securities of a series are authenticated;
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liens arising solely by virtue of any statutory or common law provision relating to banker’s liens, rights of setoff or similar rights and remedies as to deposit accounts or other funds maintained with a creditor
depository institution;
provided
that (i) such deposit account is not a dedicated cash collateral account and is not subject to restrictions against access by Medtronic, Inc. in excess of those set forth by regulations promulgated by the
Federal Reserve Board and (ii) such deposit account is not intended to provide collateral to the depository institution; or
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any extension, renewal or replacement (or successive extensions, removals or replacements) as a whole or in part, of any lien referred to in the eleven foregoing bullets, inclusive;
provided
that (i) such
extension, renewal or replacement lien shall be limited to all or a part of the same property, shares of stock or debt that secured the lien extended, renewed or replaced (plus improvements on such property) and (ii) the Debt secured by such
lien at such time is not increased.
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Notwithstanding the restrictions described above, Medtronic, Inc. or any Restricted Subsidiary
may incur, issue, assume or guarantee Debt secured by liens without equally and ratably securing the debt securities;
provided
that at the time of such incurrence, issuance, assumption or guarantee, after giving effect thereto and to the
retirement of any Debt which is concurrently being retired, the aggregate amount of all outstanding Debt secured by liens which could not have been incurred, issued, assumed or guaranteed by Medtronic, Inc. or a Restricted Subsidiary without equally
and ratably securing the debt securities of each series then outstanding except for the provisions of this paragraph, together with the aggregate amount of Attributable Debt (defined below) incurred pursuant to the second paragraph under the caption
“—Limitations on Sale and Leaseback Transactions” below, does not at such time exceed 20% of the Consolidated Net Tangible Assets (defined below) of Medtronic, Inc.
Limitations on Sale and Leaseback Transactions.
Sale and leaseback transactions by Medtronic, Inc. or any Restricted Subsidiary involving a Principal Property are prohibited unless either:
(a) Medtronic, Inc. or such Restricted Subsidiary would be entitled, without equally and ratably securing the debt securities, to incur Debt secured by a lien on such property, pursuant to the provisions described in the twelve bullets above
under “—Limitations on Secured Debt”; or (b) Medtronic, Inc. or a subsidiary thereof, within 360 days after such transaction, apply an amount not less than the net proceeds of the sale of the Principal Property leased pursuant to
such arrangement to (x) the retirement of Medtronic, Inc.’s Funded Debt (defined below);
provided
that the amount to be applied to the retirement of Medtronic, Inc.’s Funded Debt shall be reduced by (i) the principal
amount of any debt securities delivered within 360 days after such sale to the trustee for retirement and cancellation, and (ii) the principal amount of Funded Debt, other than debt securities, voluntarily retired by Medtronic, Inc. within 360
days after such sale or (y) the purchase, construction or development of other property, facilities or equipment used or useful in Medtronic, Inc.’s or its Restricted Subsidiaries’ business. Notwithstanding the foregoing, no
retirement referred to in clause (b) of this paragraph may be effected by payment at maturity or pursuant to any mandatory sinking fund payment or mandatory prepayment provision. This restriction will not apply to a sale and leaseback
transaction between Medtronic, Inc. and a Restricted Subsidiary or between Restricted Subsidiaries or involving the taking back of a lease for a period of less than three years.
Notwithstanding the restrictions described above, Medtronic, Inc. or any Restricted Subsidiary may enter into a sale and leaseback
transaction;
provided
that at the time of such transaction, after giving effect thereto and to the retirement of any Funded Debt which is concurrently being retired, the aggregate amount of all Attributable Debt (defined below) in respect of
sale and leaseback transactions existing at such time (other than sale and leaseback transactions permitted as described in the preceding paragraph), together with the aggregate amount of all outstanding Debt incurred pursuant to the second
paragraph under the caption “—Limitations on Secured Debt” above, does not at such time exceed 20% of the Consolidated Net Tangible Assets of Medtronic, Inc.
Certain Other Covenants.
The indenture contains certain other covenants applicable to us regarding, among other matters, corporate existence and reports to holders of
debt securities. Unless indicated otherwise in a prospectus supplement, the debt securities will not contain any additional financial or restrictive covenants, including covenants relating to total indebtedness, interest coverage, stock repurchases,
recapitalizations, dividends and distributions to shareholders or current ratios. The provisions of the indenture do not afford holders of debt securities issued thereunder protection in the event of a sudden or significant decline in our or any
Guarantor’s credit quality or in the event of a takeover, recapitalization or highly leveraged or similar transaction involving us, Medtronic plc, Medtronic Luxco or any of our affiliates that may adversely affect such holders.
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Consolidation, Merger, Conveyance, Transfer or Lease
Medtronic, Inc. may not consolidate with or merge into any other person or convey, transfer or lease its properties and assets substantially as
an entirety, unless:
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the successor person is a corporation, partnership or trust organized and validly existing under the laws of the United States of America, any state thereof or the District of Columbia, and expressly assumes, by a
supplemental indenture, its obligations on the debt securities and under the indenture;
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after giving effect to such transaction, no event of default, and no event which, after notice or lapse of time or both, would become an event of default, shall have happened and be continuing;
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after giving effect to such transaction, neither Medtronic, Inc. nor the successor person, as the case may be, would have outstanding Debt secured by any mortgage or other encumbrance prohibited by the provisions of its
restrictive covenant relating to liens or, if so, shall have secured the debt securities equally and ratably with (or prior to) any Debt secured thereby; and
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we shall have delivered to the trustee an officers’ certificate and an opinion of counsel, each stating that such consolidation, merger, sale, conveyance, assignment, transfer, lease or other disposition and such
supplemental indenture comply with the requirements of the indenture.
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Defeasance and Satisfaction and Discharge
Full Defeasance.
If there
is a change in federal income tax law or ruling of the Internal Revenue Service, as described below, under the terms of the indenture, we can legally release ourself from any payment or other obligations on the debt securities of any series (this is
called “full defeasance”) if, among other things:
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we irrevocably deposit or causes to be deposited with the trustee in trust for the benefit of all direct holders of the debt securities of such series, money in an amount, U.S. government notes or bonds, or a
combination thereof, in each case sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the trustee, to pay and discharge, the principal of and any
premium and interest on the debt securities of such series on their applicable maturity date and any mandatory sinking fund payments or analogous payments applicable to the debt securities of such series on the day on which such payments are due and
payable;
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there is a change in U.S. federal income tax law or an Internal Revenue Service ruling that permits us to make the above deposit without causing holders to be taxed on the debt securities of such series any differently
than if we did not make the deposit and simply repaid the debt securities of such series under the stated payment terms; and
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we deliver to the trustee an opinion of counsel confirming the tax law change or Internal Revenue Service ruling described above.
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If we accomplish full defeasance, a holder of debt securities would have to rely solely on the trust deposit for all payments on the debt
securities of such series. Holders could not look to us for payment in the event of any shortfall.
Covenant Defeasance.
Under current U.S. federal income tax law, if we make the type of trust deposit described above (though not legally releasing ourself from
payment obligations on the debt securities of the applicable series), we can be released from some of the restrictive covenants in the indenture without causing you to be taxed on the debt securities of such series any differently than if we did not
make the deposit. This is called “covenant defeasance.” In that event, you would lose the benefit of those restrictive covenants but would gain the protection of having money and/or U.S. government notes or bonds set aside in trust to
repay the debt securities of such series. In order to exercise our rights under the indenture to achieve covenant defeasance, we must, among other things:
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irrevocably deposit or cause to be deposited with the trustee in trust for the benefit of all direct holders of
the debt securities of such series, money in an amount, U.S. or government notes or bonds, or a
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combination thereof, in each case sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the
trustee, to pay and discharge, the principal of and any premium and interest on the debt securities of such series on their applicable maturity date and any mandatory sinking fund payments or analogous payments applicable to the debt securities of
such series on the day on which such payments are due and payable; and
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deliver to the trustee an opinion of counsel confirming that under current U.S. federal income tax laws we may make the above deposit without causing holders to be taxed on the debt securities of such series any
differently than if we did not make the deposit and simply repaid the debt securities of such series.
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If we accomplish
covenant defeasance, the following provisions of the indenture and the debt securities of the applicable series would no longer apply:
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certain of our and the Guarantors’ obligations regarding the conduct of our business described above under “Certain Covenants,” including the limitations on secured debt, limitations on sale and leaseback
transactions and the covenant with respect to existence;
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the conditions to engaging in a merger or similar transaction, as described above under “Consolidation, Merger, Conveyance, Transfer or Lease;” and
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the events of default relating to breaches of certain covenants, certain events in bankruptcy, insolvency or reorganization, and acceleration of the maturity of other debt, described above under “Events of
Default.”
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If we accomplish covenant defeasance, you can still look to us for repayment of the debt securities of the
applicable series in the event of a shortfall in the trust deposit. In fact, if one of the remaining events of default occurred (such as our bankruptcy) and the debt securities of such series become immediately due and payable, such a shortfall
could arise. Depending on the event causing the default, you may not be able to obtain payment of the shortfall.
Satisfaction and Discharge
The indenture will cease to be of further effect with respect to any series of debt securities and the trustee, upon our demand and at our
expense, will execute appropriate instruments acknowledging the satisfaction and discharge of the indenture with respect to such series, upon compliance with certain conditions, including:
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either: (i) our having delivered to the trustee for cancellation all of the debt securities of such series theretofore authenticated and delivered; or (ii) all debt securities of such series outstanding under
the indenture not theretofore delivered to the trustee for cancellation have become due and payable, will become due and payable at their stated maturity within one year, or are to be called for redemption within one year under arrangements
satisfactory to the trustee for the giving of notice of redemption by the trustee in our name and our expense, and in each such case, our having deposited or caused to be deposited with the trustee as trust funds in trust for the purpose money in an
amount sufficient to pay and discharge the entire indebtedness on such debt securities of the series not theretofore delivered to the trustee for cancellation, for principal and any premium and interest to the date of such deposit (in the case of
debt securities which have become due and payable) or the stated maturity or redemption date, as the case may be; and
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our having delivered to the trustee an officers’ certificate and an opinion of counsel, each stating that the conditions precedent provided for in the indenture relating to the satisfaction and discharge of such
indenture with respect to such series of debt securities have been complied with.
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Modification of the Indenture
Modifications and amendments of the indenture may be made by us and the trustee with the consent of the holders of not less than a majority in
aggregate principal amount of the outstanding debt securities of each series affected by the modification or waiver;
provided
,
however
, that no such modification or amendment may without the consent of the holder of each debt security
affected thereby, change the stated maturity of the principal of, or any installment of principal of or interest on, any debt security, reduce the principal amount of, or premium or interest on, any debt security, change the place of payment where
coin or currency in which the principal of, or any premium or interest on, any debt security is payable, impair the right to institute suit for the enforcement of any payment on or with respect to any debt security, reduce the percentage in
principal amount of outstanding debt securities, the consent of the holders of which is required for modification or amendment of the indenture or for waiver of compliance with certain provisions of such indenture or for waiver of certain defaults
or modify any of the above provisions.
The holders of not less than a majority in aggregate principal amount of the outstanding debt
securities of each series may, on behalf of the holders of all debt securities of that series, waive compliance by us with certain restrictive provisions of the indenture that may be amended by such majority. The holders of not less than a majority
in aggregate principal amount of the outstanding debt securities of each series may, on behalf of the holders of all debt securities of such series, waive any past default under the indenture, except a default (1) in the payment of principal
of, or any premium or interest on, any debt security or (2) in respect of a covenant or provision of the indenture which cannot be modified or amended without the consent of the holder of each debt security of the affected series.
Modifications and amendments of the indenture may be made by us and the trustee without the consent of any holders of any series of debt
securities for any of the following purposes:
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to evidence the succession of another person to us and the assumption by any such successor of our covenants under the indenture and in the debt securities;
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to add to our covenants or the covenants applicable to any Guarantor for the benefit of the holders or to surrender any right or power in the indenture conferred upon us or any Guarantor;
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to add any additional events of default for the benefit of the holders;
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to secure the debt securities;
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to evidence and provide for the acceptance of appointment hereunder by a successor trustee;
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to cure any ambiguity, to correct or supplement any provision in an indenture which may be inconsistent with any other provision of such indenture, or to make any other provisions with respect to matters or questions
arising under the indenture;
provided
such action shall not adversely affect the interests of the holders;
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to comply with the requirements of the SEC in order to effect or maintain the qualifications of the indenture under the Trust Indenture Act;
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to add to or change any of the provisions of the indenture to such extent as shall be necessary to permit or facilitate the issuance of debt securities in bearer form or to facilitate the issuance of debt securities in
uncertificated form;
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to provide for the issuance and establish the forms or terms and conditions of debt securities of any series as permitted by the indenture;
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to add or release a Guarantor as permitted by the indenture; or
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to comply with the rules of any applicable securities depositary.
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Debt securities will not be considered outstanding, and therefore will not be eligible to vote on
any matter, if we have deposited or set aside in trust for you money for their payment or redemption. Debt securities will also not be eligible to vote if they have been fully defeased as described above under “Defeasance and Satisfaction and
Discharge.”
We will generally be entitled to set any day as a record date for the purpose of determining the holders of outstanding
debt securities that are entitled to vote or take other action under the indenture. In certain limited circumstances, the trustee will be entitled to set a record date for action by holders. If we or the trustee set a record date for a vote or other
action to be taken, that vote or action may be taken only by persons who are holders of outstanding debt securities on the record date and must be taken within 180 days following the record date or a shorter period that we may specify (or as the
trustee may specify, if it set the record date). We may shorten or lengthen (but not beyond 180 days) this period from time to time.
Regarding the
Trustee
The indenture trustee’s current address is Wells Fargo Bank, National Association, 600 South 4th Street, 6th Floor,
Minneapolis, Minnesota 55415.
The indenture provides that, except during the continuance of an event of default, the trustee will perform
only such duties as are specifically set forth in the indenture. During the existence of an event of default, the trustee will exercise such rights and powers vested in its exercise as a prudent person would exercise under the circumstances in the
conduct of such person’s own affairs.
The indenture and certain provisions of the Trust Indenture Act contain limitations on the
rights of the trustee, should a trustee become a creditor of us, Medtronic plc or Medtronic Luxco to obtain payment of claims in certain cases or to realize on certain property received by it in respect of any such claim as security or otherwise. A
trustee is permitted to engage in other transactions with us or any affiliate of ours. If there arises any conflicting interest (as defined in the indenture or in the Trust Indenture Act), it must eliminate such conflict or resign.
We maintain ordinary banking relationships and credit facilities with Wells Fargo Bank, National Association. In addition, Wells Fargo Bank,
National Association is the trustee for certain of our affiliates’ other debt securities, is the transfer agent for Medtronic plc’s ordinary shares, and from time to time provides services relating to our investment management, stock
repurchase and foreign currency hedging programs.
Governing Law
The indenture and the debt securities will be governed by and construed in accordance with the laws of the State of New York and the United
States.
Certain Definitions
“
Attributable Debt
” in respect of any lease means, at the time of determination, the present value (discounted at the rate of
interest implicit in the terms of the lease) of the obligation of the lessee for net rental payments during the remaining term of the lease (including any period for which such lease has been extended or may, at the option of the lessor, be
extended). “
Net rental payments
” under any lease for any period means the sum of the rental and other payments required to be paid in such period by the lessee thereunder, not including, however, any amounts required to be paid by
such lessee (whether or not designated as rental or additional rental payments) on account of maintenance and repairs, insurance, taxes, assessments or similar charges required to be paid by such lessee thereunder or any amounts required to be paid
by such lessee thereunder contingent upon the amount of sales, maintenance and repairs, insurance, taxes, assessments or similar charges.
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“
Consolidated Net Tangible Assets
” means, at the date of determination, the
aggregate amount of assets (less applicable reserves and other properly deductible items) after deducting therefrom (a) all current liabilities (excluding any indebtedness for money borrowed having a maturity of less than 12 months from the
date of Medtronic, Inc.’s then most recent consolidated quarterly balance sheet but which by its terms is renewable or extendible beyond 12 months from such date at the option of the borrower) and (b) all goodwill, trade names, patents,
unamortized debt discount and expense and any other like intangibles, all as set forth on Medtronic, Inc.’s then most recent consolidated balance sheet and computed in accordance with generally accepted accounting principles.
“
Debt
” means, with respect to any person, without duplication: (a) all indebtedness of such person for borrowed money;
and (b) all obligations of such person evidenced by bonds, debentures, notes or other similar instruments.
The amount of Debt of any
person will be deemed to be: (i) with respect to Debt secured by a lien, pledge, mortgage or similar encumbrance on an asset of such person but not otherwise the obligation, contingent or otherwise, of such person, the lesser of (1) the
fair market value of such asset on the date such lien, pledge, mortgage or similar encumbrance attached and (2) the amount of such Debt; (ii) with respect to any Debt issued with original issue discount, the face amount of such Debt less
the remaining unamortized portion of the original issue discount of such Debt; and (iii) otherwise, the outstanding principal amount thereof.
“
Funded Debt
” means Debt which by its terms matures at or is extendible or renewable at the option of the obligor to a date
more than 12 months after the date of the creation of such Debt.
“
Principal Property
” means any plant, office facility,
warehouse, distribution center or equipment located within the United States (other than its territories or possessions) and owned by Medtronic, Inc. or any subsidiary, the gross book value (without deduction of any depreciation reserves) of which
on the date as of which the determination is being made exceeds 1% of the Consolidated Net Tangible Assets of Medtronic, Inc., except any such property which Medtronic, Inc.’s board of directors, in its good faith opinion, determines is not of
material importance to the business conducted by Medtronic, Inc. and its subsidiaries, taken as a whole, as evidenced by a certified copy of a board resolution.
“
Restricted Subsidiary
” means any subsidiary of Medtronic, Inc. which owns or leases a Principal Property.
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FORMS OF DEBT SECURITIES
Unless the prospectus supplement otherwise provides, debt securities will be issued in the form of one or more global securities. This means
that we will not issue certificates to each holder. Rather, we will issue global securities in the total principal amount of the debt securities of that series.
Global Securities
In General.
Debt securities in global form will be deposited with or on behalf of a depositary. Global securities are represented by one or more certificates for the series registered in the name of the depositary or its nominee. Debt securities in global form
may not be transferred except as a whole among the depositary, a nominee of or a successor to the depositary, or any nominee of that successor. Unless otherwise identified in the prospectus supplement, the depositary will be The Depository Trust
Company (“DTC”).
If a depositary for a series of debt securities is unwilling or unable to continue as depositary, we will
issue that series of debt securities in registered form in exchange for the global security or securities of that series. We also may determine at any time in our discretion not to use global securities for any series. In that event, we will issue
debt securities in registered form.
Ownership of the Global Securities; Beneficial Ownership
. So long as the depositary or its
nominee is the registered owner of a global security, that entity will be the sole holder of the debt securities represented by that instrument. We and the trustee are only required to treat the depositary or its nominee as the legal owner of the
debt securities for all purposes under the indenture.
A purchaser of debt securities represented by a global security will not be
entitled to receive physical delivery of certificated securities, will not be considered the holder of those securities for any purpose under the indenture, and will not be able to transfer or exchange the global security, unless the prospectus
supplement provides to the contrary. As a result, each beneficial owner must rely on the procedures of the depositary to exercise any rights of a holder under the indenture. In addition, if the beneficial owner is not a direct or indirect
participant in the depositary, the beneficial owner must rely on the procedures of the participant through which it owns its beneficial interest in the global security. We understand that under existing industry practice, in the event we request any
action of holders of debt securities or an owner of a beneficial interest in the global securities desires to take any action that the depositary, as the holder of the global securities, is entitled to take, the depositary would authorize the
participants to take such action, and the participants would authorize beneficial owners owning through such participants to take such action or would otherwise act upon the instructions of beneficial owners owning through them.
The laws of some jurisdictions require that certain purchasers of securities take physical delivery of the securities in certificated form.
Those laws and the above conditions may impair the ability to transfer beneficial interests in the global securities.
Book-Entry System
Upon the issuance of the global securities, the depositary will credit, on its book-entry registration and transfer system, the respective
principal amounts of the debt securities represented by such global securities to the accounts of participants. The accounts to be credited shall be designated by the underwriters. Ownership of beneficial interests in the global securities will be
limited to participants or persons that may hold interests through participants. Ownership of interests in the global securities will be shown on, and the transfer of those ownership interests will be effected only through, records maintained by the
depositary (with respect to participants’ interests) and such participants (with respect to the owners of beneficial interests in the global securities through such participants).
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We expect that the depositary, upon receipt of any payment of principal or interest in respect of
the global securities, will credit immediately participants’ accounts with payment in amounts proportionate to their respective beneficial interests in the principal amount of the global securities as shown on the records of the depositary. We
also expect that payments by participants to owners of beneficial interests in the global securities held through such participants will be governed by standing instructions and customary practices, as is the case with securities held for the
accounts of customers in bearer form or registered in “street name,” and will be the responsibility of such participants. None of us, the trustee or any agent of us or the trustee will have any responsibility or liability for any aspect of
the records relating to, or payments made on account of, beneficial ownership interests in the global securities for any debt securities or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests or for
any other aspect of the relationship between the depositary and its participants or the relationship between such participants and the owners of beneficial interests in the global securities owned through such participants.
The debt securities represented by the global securities are exchangeable for certificated debt securities in definitive registered form of
like tenor as such securities in denominations of $1,000 and in any greater amount that is an integral multiple thereof if (i) the depositary notifies us that it is unwilling or unable to continue as depositary for the global securities or if
at any time the depositary ceases to be a clearing agency registered under the Exchange Act or (ii) we in our discretion at any time determine not to have all of the debt securities represented by the global securities and we notify the trustee
thereof. Any global securities that are exchangeable pursuant to the preceding sentence are exchangeable for certificated debt securities registered in such names as the depositary shall direct. Subject to the foregoing, the global securities are
not exchangeable, except for a global security or global securities of the same aggregate denominations to be registered in the name of the depositary or its nominee.
Unless and until they are exchanged in whole or in part for certificated debt securities in definitive form, the global securities may not be
transferred except as a whole among the depositary, a nominee of or a successor to the depositary, or any nominee of that successor.
The Depository
Trust Company
The following is based on information furnished by DTC and applies to the extent it is the depositary, unless otherwise
stated in the prospectus supplement:
Registered Owner
. The debt securities will be issued as fully registered securities in the
name of Cede & Co., which is DTC’s partnership nominee. No single global security will be issued in a principal amount of more than $500 million. The trustee will deposit the global securities with DTC. The deposit of the global
securities with DTC and their registration in the name of Cede & Co. will not change the beneficial ownership of the securities.
DTC Organization
. DTC is a limited-purpose trust company organized under the New York Banking Law, a “banking organization”
within the meaning of that law, a member of the Federal Reserve System, a “clearing corporation” within the meaning of the New York Uniform Commercial Code and a “clearing agency” registered under the provisions of Section 17A of
the Securities Exchange Act of 1934, as amended.
DTC is a wholly-owned subsidiary of The Depository Trust and Clearing Corporation
(“DTCC”). DTCC is the holding company for DTC, National Securities Clearing Corporation and Fixed Income Clearing Corporation, all of which are registered clearing agencies. DTCC is owned by the users of its regulated subsidiaries. Access
to the DTC system is also available to others such as both U.S. and
non-U.S.
securities brokers and dealers, banks, trust companies, and clearing corporations that clear through or maintain a custodial
relationship with DTC’s participants. The rules that apply to DTC and its participants are on file with the SEC.
DTC
Activities
. DTC holds securities that its participants deposit with it. DTC also facilitates the settlement among participants of securities transactions, such as transfers and pledges, in deposited securities through
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electronic computerized book-entry changes in participants’ accounts. This eliminates the need for physical movement of securities certificates.
Participants’ Records
. The debt securities must be purchased by or through direct participants, which will receive a credit for
the debt securities on DTC’s records. The beneficial owner’s ownership interest in the debt securities is in turn recorded on the direct or indirect participants’ records. Beneficial owners will not receive written confirmations from
DTC of their purchases, but they are expected to receive them, along with periodic statements of their holdings, from the direct or indirect participants through whom they purchased the debt securities. Transfers of ownership interests in the global
securities will be made on the books of the participants on behalf of the beneficial owners. Certificates representing the interests of the beneficial owners in the debt securities will not be issued unless the use of global securities is suspended,
as discussed above.
DTC has no knowledge of the actual beneficial owners of the global securities. Its records only reflect the identity
of the direct participants as owners of the debt securities. Those participants may or may not be the beneficial owners. Participants are responsible for keeping account of their holdings on behalf of their customers.
Notices Among DTC, Participants and Beneficial Owners
. Notices and other communications by DTC, its participants and the beneficial
owners will be governed by standing arrangements among them, subject to any legal requirements in effect.
Voting Procedures
.
Neither DTC nor Cede & Co. will give consents for or vote the global securities. DTC generally mails an omnibus proxy to us just after any applicable record date. That proxy assigns Cede & Co.’s consenting or voting rights to
the direct participants to whose accounts the securities are credited on the record date.
Payments
. Principal and interest
payments made by us will be delivered to Cede & Co. DTC’s practice is to credit direct participants’ accounts upon receipt of funds and corresponding detail information on the applicable payment date. Payments by participants to
beneficial owners will be governed by standing instructions and customary practices, as is the case with securities held for customers in bearer form or registered in “street name.” Those payments will be the responsibility of that
participant, and not DTC, the trustee or us, subject to any legal requirements in effect at that time. We are responsible for paying principal, interest and premium, if any, to the trustee, which is responsible for making those payments to
Cede & Co. DTC is responsible for disbursing those payments to direct participants. The participants are responsible for disbursing payments to the beneficial owners.
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PLAN OF DISTRIBUTION
We may sell debt securities:
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directly to purchasers; or
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through a combination of any of these methods of sale.
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This prospectus may be used in
connection with any offering of our debt securities through any of these methods or other methods described in the applicable prospectus supplement.
We may directly solicit offers to purchase debt securities, or agents may be designated to solicit such offers. We will, in the prospectus
supplement relating to such offering, name any agent that could be viewed as an underwriter under the Securities Act and describe any commissions that we must pay. Any such agent will be acting on a best efforts basis for the period of its
appointment or, if indicated in the applicable prospectus supplement, on a firm commitment basis.
The distribution of the debt securities
may be effected from time to time in one or more transactions:
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at a fixed price, or prices, which may be changed from time to time;
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at market prices prevailing at the time of sale;
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at prices related to such prevailing market prices; or
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Each prospectus supplement will describe the method of distribution of
the debt securities and any applicable restrictions.
The prospectus supplement with respect to the debt securities of a particular series
will describe the terms of the offering of the debt securities, including the following:
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the name of the agent or any underwriters;
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the public offering or purchase price and the proceeds we will receive from the sale of the debt securities;
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any discounts and commissions to be allowed or
re-allowed
or paid to the agent or underwriters;
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all other items constituting underwriting compensation;
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any discounts and commissions to be allowed or
re-allowed
or paid to dealers; and
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any exchanges on which the debt securities will be listed.
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If any underwriters or agents are
utilized in the sale of the debt securities in respect of which this prospectus is delivered, we will enter into an underwriting agreement or other agreement with them at the time of sale to them, and we will set forth in the prospectus supplement
relating to such offering the names of the underwriters or agents and the terms of the related agreement with them.
If a dealer is
utilized in the sale of the debt securities in respect of which this prospectus is delivered, we will sell such debt securities to the dealer, as principal. The dealer may then resell such debt securities to the public at varying prices to be
determined by such dealer at the time of resale.
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Remarketing firms, agents, underwriters, dealers and other persons may be entitled under
agreements which they may enter into with us to indemnification by us against certain civil liabilities, including liabilities under the Securities Act, and may be customers of, engage in transactions with or perform services for us in the ordinary
course of business.
If so indicated in the applicable prospectus supplement, we will authorize underwriters or other persons acting as
our agents to solicit offers by certain institutions to purchase debt securities from us pursuant to delayed delivery contracts providing for payment and delivery on the date stated in the prospectus supplement. Each contract will be for an amount
not less than, and the aggregate amount of debt securities sold pursuant to such contracts shall not be less nor more than, the respective amounts stated in the prospectus supplement. Institutions with whom the contracts, when authorized, may be
made include commercial and savings banks, insurance companies, pension funds, investment companies, educational and charitable institutions and other institutions, but shall in all cases be subject to our approval. Delayed delivery contracts will
not be subject to any conditions except that:
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the purchase by an institution of the debt securities covered under that contract shall not at the time of delivery be prohibited under the laws of the jurisdiction to which that institution is subject; and
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if the debt securities are also being sold to underwriters acting as principals for their own account, the underwriters shall have purchased such debt securities not sold for delayed delivery. The underwriters and other
persons acting as our agents will not have any responsibility in respect of the validity or performance of delayed delivery contracts.
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Certain agents, underwriters and dealers, and their associates and affiliates may be customers of, have borrowing relationships with, engage
in other transactions with, and/or perform services, including investment banking services, for us or one or more of our respective affiliates in the ordinary course of business.
In order to facilitate the offering of the debt securities, any underwriters may engage in transactions that stabilize, maintain or otherwise
affect the price of the debt securities or any other securities the prices of which may be used to determine payments on such debt securities. Specifically, any underwriters may overallot in connection with the offering, creating a short position
for their own accounts. In addition, to cover overallotments or to stabilize the price of the securities or of any such other debt securities, the underwriters may bid for, and purchase, the debt securities or any such other securities in the open
market. Finally, in any offering of the debt securities through a syndicate of underwriters, the underwriting syndicate may reclaim selling concessions allowed to an underwriter or a dealer for distributing the debt securities in the offering if the
syndicate repurchases previously distributed securities in transactions to cover syndicate short positions, in stabilization transactions or otherwise. Any of these activities may stabilize or maintain the market price of the debt securities above
independent market levels. Any such underwriters are not required to engage in these activities and may end any of these activities at any time.
Under Rule
15c6-1
of the Exchange Act, trades in the secondary market generally are required to settle
in three business days, unless the parties to any such trade expressly agree otherwise. The applicable prospectus supplement may provide that the original issue date for your debt securities may be more than three scheduled business days after the
trade date for your debt securities. Accordingly, in such a case, if you wish to trade debt securities on any date prior to the third business day before the original issue date for your debt securities, you will be required, by virtue of the fact
that your debt securities initially are expected to settle more than three scheduled business days after the trade date for your debt securities, to make alternative settlement arrangements to prevent a failed settlement.
The debt securities may be new issues of debt securities and may have no established trading market. The debt securities may or may not be
listed on a national securities exchange. We can make no assurance as to the liquidity of or the existence of trading markets for any of the debt securities.
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SERVICE OF PROCESS AND ENFORCEMENT OF LIABILITIES
Medtronic plc and Medtronic Luxco are organized and existing under the laws of countries other than the United States. In addition, certain of
the directors and officers of these entities may reside outside of the United States and a significant portion of their assets may be located outside of the United States. As a result, it may be difficult for investors to effect service of process
on Medtronic plc or Medtronic Luxco or to enforce in the United States judgments obtained in U.S. courts against Medtronic plc or Medtronic Luxco or those persons based on the civil liability provisions of the U.S. securities laws or other laws.
Uncertainty exists as to whether courts in Luxembourg and Ireland, as applicable, will enforce judgments obtained in other jurisdictions, including the United States, against the domestic companies or their directors or officers under the securities
or other laws of those jurisdictions or entertain actions in those jurisdictions against Medtronic plc or Medtronic Luxco or their directors or officers under the securities or other laws of those jurisdictions.
Ireland
Enforcement of Liabilities
We have been advised by counsel that the United States currently does not have a treaty with Ireland providing for the reciprocal
recognition and enforcement of judgments in civil and commercial matters. Therefore, a final judgment for the payment of money rendered by any U.S. federal or state court based on civil liability, whether or not based solely on U.S. federal or state
securities laws, would not automatically be enforceable in Ireland. A judgment of the U.S. courts will be enforced by the Irish courts if the following general requirements are met: (i) the procedural rules of the U.S. court must have been
observed and the U.S. court must have had jurisdiction in relation to the particular defendant according to Irish conflict of law rules (the submission to jurisdiction by the defendant would satisfy this rule); and (ii) the judgment must be
final and conclusive and the decree must be final and unalterable in the court which pronounces it. A judgment can be final and conclusive even if it is subject to appeal or even if an appeal is pending. Where however, the effect of lodging an
appeal under the applicable law is to stay execution of the judgment, it is possible that, in the meantime, the judgment should not be actionable in Ireland. It remains to be determined whether final judgment given in default of appearance is final
and conclusive. However, the Irish courts may refuse to enforce a judgment of the U.S. courts which meets the above requirements for one of the following reasons: (a) if the judgment is not for a definite sum of money; (b) if the judgment
was obtained by fraud; (c) if the enforcement of the judgment in Ireland would be contrary to natural or constitutional justice; (d) if the judgment is contrary to Irish public policy or involves certain United States laws which will not
be enforced in Ireland; or (e) if jurisdiction cannot be obtained by the Irish courts over the judgment debtors in the enforcement proceedings by personal service in Ireland or outside Ireland under Order 11 of the Superior Courts Rules.
In addition, in the event of any proceedings being brought in an Irish court in respect of a monetary obligation expressed to be payable in a
currency other than Euro, an Irish court would have power to give judgment expressed as an order to pay a currency other than Euro. However, enforcement of the judgment against any party in Ireland would be available only in Euro and for such
purposes all claims or debts would be converted into Euro.
Certain Insolvency Considerations
Liquidation
. As an Irish incorporated company, Medtronic plc may be wound up under Irish law. On a liquidation of an Irish company, certain categories
of preferential debts and the claims of secured creditors would be paid in priority to the claims of unsecured creditors. In particular:
(i) under Irish law, the claims of creditors holding fixed charges may rank behind other creditors (namely fees, costs and expenses of any
examiner appointed and certain capital gains tax liabilities) and, in the case of fixed charges over book debts, may rank behind claims of the Irish Revenue Commissioners for
“pay-as-you
earn”, pay related social insurance, local property tax and any tax imposed in conformity with
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the Council Directive of November 28, 2006 on the common system of value added tax (EC Directive 2006/112) and any other tax of a similar fiscal nature substituted for, or levied in addition
to such tax whether in the European Union, or elsewhere in any jurisdiction together with any interest and penalties thereon;
(ii) under
Irish law, for a charge to be characterized as a fixed charge, the charge holder is required to exercise the requisite level of control over the assets purported to be charged and the proceeds of such assets including any bank account into which
such proceeds are paid. There is a risk therefore that even a charge which purports to be taken as a fixed charge may take effect as a floating charge if a court deems that the requisite level of control was not exercised; and
(iii) under Irish law, the claims of certain other creditors (including the Irish Revenue Commissioners for certain unpaid taxes), as well as
those of creditors mentioned above, will rank in priority to claims of unsecured creditors and claims of creditors holding floating charges.
If Medtronic plc becomes subject to an insolvency proceeding and has obligations to creditors that are treated under Irish law as creditors
that are senior relative to the holders of the debt securities, the holders of the debt securities may suffer losses as a result of their subordinated status during such insolvency proceedings.
Under Irish insolvency law, a liquidator of Medtronic plc could apply to a court to have set aside certain transactions entered into by
Medtronic plc before the commencement of liquidation, including the granting of a guarantee and any the payment of any amounts thereunder. Section 604 of the Irish Companies Act, 2014 provides that any conveyance, mortgage, delivery of goods,
payment, execution or other act relating to property made or done by or against a company which is unable to pay its debts as they become due, in favor of any creditor or person on trust for a creditor and where such act was done to give such
creditor or any surety or guarantor for the debt due, to such creditor a preference over other creditors shall be deemed to be an unfair preference and will be invalid if (a) a winding up of the company commences within six months of doing the
act and (b) the company is at the time of the commencement of the winding up unable to pay its debts (taking into account the contingent and prospective liabilities). Where the conveyance, mortgage, delivery of goods, payment, execution or
other action is in favor of a connected person the six month period is extended to two years. In addition, any such act in favor of a connected person is deemed a preference over the other creditors and as such to be a fraudulent preference and
invalid accordingly.
Under section 608 of the Irish Companies Act, 2014, if it can be shown on the application of a liquidator, creditor
or contributory of a company which is being wound up to the satisfaction of the Irish High Court that any property of such company was disposed of and the effect of such a disposal was to “perpetrate a fraud” on the company, its creditors
or members, the Irish High Court may, if it deems it just and equitable, order any person who appears to have “use, control or possession” of such property or the proceeds of the sale or development thereof to deliver it or pay a sum in
respect of it to the liquidator on such terms as the Irish High Court sees fit. In deciding whether it is just and equitable to make an order under section 608, the Irish High Court must have regard to the rights of persons who have bona fide and
for value acquired an interest in the property the subject of the application.
Examinership
. Examinership is a legal mechanism in
Ireland for the temporary protection and potential rescue or reconstruction of an ailing but potentially viable Irish company. An Irish company, its directors, its shareholders holding, at the date of presentation of the petition, not less than
one-tenth
of its voting share capital, or a contingent, prospective or actual creditor, are each entitled to petition the Irish High Court for the appointment of an examiner.
While a company is in examinership, it may not be wound up, creditors may not enforce their claims or their security in respect of the company
or its assets, and proceedings cannot be issued or potentially continued against it without the leave of the Irish High Court. Further, a company in examinership cannot discharge any liability incurred by it before the presentation to the Irish
Court of the petition for examinership except in strictly defined
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circumstances. The examiner, once appointed, has the power to set aside contracts and arrangements entered into by the company after this appointment and, in certain circumstances, can avoid a
negative pledge given by the company prior to his appointment.
Where possible, an examiner will formulate proposals for a compromise or
scheme of arrangement in respect of a company in examinership (the “Proposals”) which he/she believes will ensure the survival of the company or the whole or any part of its undertaking as a going concern. The Proposals will detail, among
other things, how each class of creditor is to be treated in the context of the examinership and in particular the dividend, if any, they are to receive. A scheme of arrangement may be approved by the Irish High Court when at least one class of
creditors, whose interests are impaired under the proposals, has voted in favor of the proposals and the Irish High Court is satisfied that such proposals are fair and equitable in relation to any class of members or creditors who have not accepted
the proposals and whose interests would be impaired by the implementation of the scheme of arrangement and the proposals are not unfairly prejudicial to any interested party.
If, for any reason, an examiner was appointed to Medtronic plc while any amounts due under the debt securities were unpaid, the primary risks
to the holders of the debt securities are as follows:
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the trustee, on behalf of the holders of the debt securities, would not be able to take proceeding to enforce rights under the guarantee against Medtronic plc during the period of examinership;
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a scheme of arrangement may be approved involving the writing down of the debt due by Medtronic plc to the holders of the debt securities irrespective of their views;
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an examiner may seek to set aside any negative pledge given by Medtronic plc prohibiting the creation of security or the incurring of borrowings by Medtronic plc to enable the examiner to borrow to fund Medtronic plc
during the protection period; and
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in the event that a scheme of arrangement is not approved and Medtronic plc subsequently goes into liquidation, the examiner’s remuneration and expenses (including certain borrowings incurred by the examiner on
behalf of Medtronic plc and approved by the Irish High Court) and the claims of certain other creditors referred to above (including the Irish Revenue Commissioners for certain unpaid taxes) will take priority over the amounts due by Medtronic plc
to the holders of the debt securities.
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Furthermore, the Irish High Court may order that an examiner shall have any of the
powers of a liquidator appointed by the Irish High Court would have, which could include the power to apply to have transactions set aside under section 604 of the Irish Companies Act, 2014 or section 608 of the Irish Companies Act, 2014.
Luxembourg
Enforcement of
Liabilities
We have been advised by Allen & Overy,
société en commandite simple
(
inscrite au
barreau de Luxembourg
), our Luxembourg counsel, that, although there is no treaty between Luxembourg and the United States regarding the reciprocal enforcement of judgments, a valid final and conclusive judgment against an issuer with respect to
the debt securities obtained from a court of competent jurisdiction in the United States, which judgment remains in full force and effect after all appeals as may be taken in the relevant state or federal jurisdiction with respect thereto have been
taken, may be recognized and enforced through a court of competent jurisdiction of Luxembourg subject to compliance with the enforcement procedures set out in Articles 678 et seq. of the Luxembourg
Nouveau code de procédure civile
being, together with applicable Luxembourg case law:
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the foreign judgment must be enforceable in the country of origin;
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the court of origin must have had jurisdiction both according to its own laws and to the Luxembourg conflict of jurisdictions rules;
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the foreign proceedings must have been regular in light of the laws of the country of origin;
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the rights of defense must not have been violated;
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the foreign court must have applied the law which is designated by the Luxembourg conflict of laws rules, or, at least, the judgment must not contravene the principles underlying these rules;
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the considerations of the foreign judgment as well as the judgment as such must not contravene Luxembourg international public policy; and
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the foreign judgment must not have been rendered as a result of or in connection with an evasion of Luxembourg law (
fraude à la loi
).
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We have also been advised by Allen & Overy,
société en commandite simple
(
inscrite au barreau de
Luxembourg
) that if an original action is brought in Luxembourg, without prejudice to specific conflict of law rules, Luxembourg courts may refuse to apply the designated law if the choice of the foreign law was not made bona fide or if the
foreign law was not pleaded and proved or if pleaded and proved, the foreign law was contrary to Luxembourg mandatory provisions (
lois impératives
) or incompatible with Luxembourg public policy rules. In an action brought in Luxembourg
on the basis of U.S. federal or state securities laws, Luxembourg courts may not have the requisite power to grant the remedies sought.
Subject to the foregoing, purchasers of the debt securities may be able to enforce judgments in civil and commercial matters obtained from
U.S. federal or state courts in Luxembourg. We cannot, however, assure you that attempts to enforce judgments in Luxembourg will be successful.
Certain Insolvency Considerations
Insolvency proceedings with respect to Medtronic Luxco may proceed under, and be governed by, Luxembourg insolvency laws. The insolvency laws
of Luxembourg may not be as favorable to investors’ interests as those of other jurisdictions with which investors may be familiar and may limit the ability of noteholders to enforce the terms of the debt securities.
Medtronic Luxco is incorporated and has its center of main interests (
centre des intérêts principaux
), for the purposes of
the EU Insolvency Regulation, and its registered office and central administration (
administration centrale
) in Luxembourg. Accordingly, insolvency proceedings affecting Medtronic Luxco would be governed by Luxembourg insolvency laws. The
following is a brief description of the key features of Luxembourg insolvency proceedings and certain aspects of insolvency laws in Luxembourg.
Luxembourg Insolvency Proceedings
Under the insolvency laws of Luxembourg, the following types of Luxembourg insolvency proceedings may be opened against any issuer and/or
guarantor of debt securities (a “Luxembourg Obligor”) to the extent that such Luxembourg Obligor has its registered office or its center of main interests (
centre des intérêts principaux
) (for the purposes of the EU
Insolvency Regulation) in Luxembourg:
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bankruptcy proceedings (
faillite
);
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controlled management proceedings (
gestion contrôlée
); and
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composition proceedings (concordat préventif de la faillite).
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In addition to these
proceedings, your ability to receive payment with respect to debt securities issued by and the guarantees provided by a Luxembourg Obligor may be affected by a decision of the Commercial District Court (
Tribunal d’arrondissement
siégeant en matière commerciale
) (the “Commercial District Court”) granting suspension of payments (
sursis de paiements
) or putting the Luxembourg Obligor into judicial liquidation (
liquidation judiciaire
).
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Bankruptcy (faillite)
General administration of bankruptcy proceedings
The opening of bankruptcy proceedings may be requested by the Luxembourg Obligor or by any of its creditors. Following such a request, the
Commercial District Court having jurisdiction may open bankruptcy proceedings in the event that a Luxembourg Obligor (a) has ceased to make payments (
cessation de paiements
) (meaning that the Luxembourg Obligor does not pay its debts as
they fall due) and (b) has lost its commercial creditworthiness (
ébranlement de crédit
) (meaning that the Luxembourg Obligor no longer has the ability to obtain financing at normal commercial terms). If the Commercial
District Court considers that these conditions are met, it may also open bankruptcy proceedings on its own motion, absent a request made by the Luxembourg Obligor or a creditor.
If the Commercial District Court declares a Luxembourg Obligor bankrupt, it will appoint one or more bankruptcy receivers
(
curateur(s)
), depending on the complexity of the proceedings and a supervisory judge (
juge-commissaire
) to supervise the bankruptcy proceedings. The period within which creditors must file their proof of claims (
déclaration
de créance
) is specified in the judgment adjudicating the company bankrupt. Claims filed after such period may nevertheless be taken into account by the bankruptcy receiver subject to certain limitations as to distributable proceeds.
The bankruptcy receiver(s) take(s) over the management and control of such Luxembourg Obligor in place of the management body of such
Luxembourg Obligor. The bankruptcy receiver(s) will realize the Luxembourg Obligor’s assets and distribute the proceeds to the Luxembourg Obligor’s creditors in accordance with the statutory order of payment and, if there are any funds
left, to the bankrupt Luxembourg Obligor’s shareholders.
The bankruptcy receiver(s) represent(s) the Luxembourg Obligor as well as
the creditors collectively (
masse des créanciers
). The bankruptcy receiver will need to obtain of the Commercial District Court permission for certain acts, such as agreeing to a settlement of claims or deciding to pursue the business
of the Luxembourg Obligor during the bankruptcy proceedings.
Bankruptcy is governed by public policy and rules, which generally delay the
process and limit restructuring options of the bankrupt Luxembourg Obligor.
On closing of the bankruptcy proceedings, the Luxembourg
Obligor will be dissolved.
Effects of Bankruptcy Proceedings
The main effect of bankruptcy proceedings is the suspension of all measures of enforcement against the Luxembourg Obligor, except, subject to
certain limited exceptions, for secured creditors, and the payment of unsecured creditors in accordance with their rank upon the realization of the assets of the Luxembourg Obligor.
As from the judgment declaring the Luxembourg Obligor bankrupted, maturities of debts of the Luxembourg Obligor (which are not yet due) are
accelerated and the creditors of the Luxembourg Obligor can file their proof of claims with the Commercial District Court.
In principle,
contracts of the Luxembourg Obligor are not automatically terminated on commencement of bankruptcy proceedings, save for contracts for which the identity or solvency of the Luxembourg Obligor was crucial (
intuitu personae
agreements) for the
other party. However, certain contracts are terminated automatically by law, such as employment contracts, unless expressly confirmed by the receiver. Contractual provisions purporting to terminate a contract upon bankruptcy are generally held as
being valid. The receiver may choose to terminate contracts of the company subject to the obligations that the Luxembourg Obligor may have to perform first its obligations (rule of “
exceptio non adimpleti contractus
”) and the
creditors’ interest.
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Unsecured claims will, in the event of a liquidation of a Luxembourg Obligor, only rank after
(i) the cost of liquidation (including any debt incurred for the purpose of such liquidation) and (ii) the debts of the Luxembourg Obligor that are entitled to priority under Luxembourg law. Preferential debts under Luxembourg law include,
among others:
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certain amounts owed to the Luxembourg Revenue;
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value-added tax and other taxes and duties owed to the Luxembourg Customs and Excise;
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social security contributions; and
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remuneration owed to employees.
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Assets over which a security interest has been granted will
in principle not be available for distribution to unsecured creditors of the Luxembourg Obligor (except after enforcement and to the extent a surplus is realised and subject to application of the relevant priority rules, liens and privileges arising
mandatorily by law). During bankruptcy proceedings, all enforcement measures by unsecured creditors of the Luxembourg Obligor are suspended.
Luxembourg insolvency laws may also affect transactions entered into or payments made by the Luxembourg Obligor during the
pre-bankruptcy
hardening period (
période suspecte
) which is fixed by the Commercial District Court and dates back not more than six months as from the date on which the Commercial District Court
formally adjudicates a company bankrupt, and, as for specific payments and transactions, during an additional period of ten days before the commencement of such period, or without any time limit. In particular:
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pursuant to Article 445 of the Luxembourg Commercial Code, some transactions (in particular, the granting of a security interest for antecedent debts, save in respect of financial collateral arrangements within the
meaning of the Luxembourg law of 5 August 2005 on collateral arrangements, as amended (the “Luxembourg Collateral Act”); the payment of debts which have not fallen due, whether payment is made in cash or by way of assignment, sale,
set-off
or by any other means; the payment of debts which have fallen due by any means other than in cash or by bill of exchange (unless, arguably, that method of payment was agreed from inception), transactions
without consideration or with substantially inadequate consideration entered into during the suspect period (or the ten days preceding it) must be set aside, if so requested by the bankruptcy receiver;
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pursuant to Article 446 of the Luxembourg Commercial Code, payments made for matured debts as well as other transactions concluded for consideration during the suspect period are subject to setting aside by the
Commercial District Court upon proceedings initiated by the bankruptcy receiver, if they were concluded with the knowledge of the bankrupt’s cessation of payments; and
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pursuant to Article 448 of the Luxembourg Commercial Code and Article 1167 of the Luxembourg Civil Code (
action paulienne
), the bankruptcy receiver (acting on behalf of the creditors) has the right to challenge
any fraudulent payments and transactions, including the granting of security with an intent to defraud, made prior to the bankruptcy, without any time limit.
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Controlled Management Proceedings (gestion contrôlée)
General administration of controlled management proceedings
A Luxembourg Obligor, which has lost its commercial creditworthiness (
ébranlement de crédit
) or which is not in a position
to completely fulfil its obligations, can apply for the regime of controlled management in order either (i) to restructure its business or (ii) to realize its assets in good conditions. An application for controlled management can only be
made by the Luxembourg Obligor without any time limit.
The loss of commercial creditworthiness (
ébranlement de
crédit
) is identical to the credit test applied in bankruptcy proceedings. As to the second criteria (that is, the case where a company is not in a position to completely fulfil its obligations), a broad view of the total situation of the
Luxembourg Obligor is taken.
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According to information publicly available, controlled management proceedings are rarely used as
they are not always successful, therefore are not considered to permit a turnaround of the debtor and generally lead to bankruptcy proceedings. They are occasionally applied to companies, in particular holding or finance companies, which are part of
an international group and whose inability to meet obligations results from a default of group companies.
Preventive Composition
Proceedings (concordat préventif de la faillite)
General administration of preventive composition proceedings
A Luxembourg Obligor may enter into preventive composition proceedings (
concordat préventif de la faillite
) in order to resolve
its financial difficulties by entering into an agreement with its creditors, the purpose of which is to avoid bankruptcy. Preventive composition proceedings may only be applied for by a company which is in financial difficulty. Similar to controlled
management proceedings, the preventive composition proceedings are not available if the company has already been declared bankrupt by the Commercial District Court or if the Luxembourg Obligor is acting in bad faith. The application for the
preventive composition proceedings can only be made by the Luxembourg Obligor and must be supported by proposals of preventive composition.
The Commercial District Court will delegate to a delegated judge (
juge délégué
) the duty to verify, and to prepare
a report on, the situation of the Luxembourg Obligor. Based on such report, the Commercial District Court will decide whether or not to pursue the preventive composition proceedings. If the Commercial District Court considers that the procedure
should not be pursued, it will in the same judgment declare the bankruptcy of the company (which bankruptcy may also be declared during the preventive composition proceedings if the conditions for the composition proceedings are not met). If the
Commercial District Court considers that the procedure may be pursued, it will set the place, date and hour of a meeting (
assemblée concordataire
) at which the creditors will be convened. The delegated judge will make its report at the
meeting (
assemblée concordataire
).
The preventive composition may only be adopted if a majority of the creditors
representing, by their unchallenged claims, three quarters of the Luxembourg Obligor’s debt, has adhered to the proposal and if the preventive composition has been homologated by the Commercial District Court. Creditors benefiting from
mortgages (
hypothèques
), privileges (
privilèges
) or pledges (
gages
) only have a deliberating voice in the operations of the concordat, if they renounce the benefit of their mortgages, privileges or pledges. The
vote in favor of the concordat entails renunciation. The renunciation may be limited by the secured creditors to only a portion (but representing at least 50% in value) of their claims with corresponding voting rights.
The preventive composition has no effect on the claims secured by a mortgage, a privilege or a pledge and on claims by the tax authorities. If
the application results in a preventive composition arrangement sanctioned by the Commercial District Court, the preventive composition could still either be annulled (if it has not been executed) or terminated (in case of fraud or bad faith of the
company). In such scenarios, the Commercial District Court may adjudicate bankrupt the Luxembourg Obligor. The bankruptcy judgment can decide to set the date of cessation of payment to the date of the application for the preventive composition
proceedings. If that date is less than six months prior to the bankruptcy judgment, the court can of course set the cessation of payment date at six months prior to its judgment.
Preventive composition proceedings are rarely used in practice since they are not binding upon secured creditors.
Effects of Preventive Composition Proceedings
The Luxembourg Obligor’s business activities continue during the preventive composition proceedings. While the preventive composition is
being negotiated, the Luxembourg Obligor may not dispose of, or grant any
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security over, any assets without the approval of the delegated judge. Once the preventive composition has been agreed by the Commercial District Court, this restriction is lifted. However, the
Luxembourg Obligor’s business activities will still be supervised by the delegated judge.
Except as provided for in the Luxembourg
Collateral Act, while the preventive composition is being negotiated, unsecured creditors may not take action against the company to recover their claims. Secured creditors who do not participate in the preventive composition proceedings may take
action against the Luxembourg Obligor to recover their claims and to enforce their security. Fraudulent transactions which took place before the date on which the Commercial District Court commenced preventive composition proceedings may be set
aside (please see the bankruptcy proceedings section above).
Suspension of Payments Proceedings (sursis de paiements)
General administration of a suspension of payments proceedings
A suspension of payments (
sursis de paiements
) for commercial companies can only be applied to a commercial company which, as a result
of extraordinary and unforeseeable events, has to temporarily cease its payments but which has on the basis of its balance sheet sufficient assets to pay all amounts due to its creditors. The suspension of payments may also be granted if the
situation of the applicant, even though showing a loss, presents serious elements of reestablishment of the balance between its assets and its debts.
The purpose of the suspension of payments proceedings is to allow a business undertaking experiencing financial difficulties to suspend its
payments for a limited time after a complex proceeding involving both the Commercial District Court and the Luxembourg High Court of Justice (
Cour supérieure de justice
) and the approval by a majority of the creditors representing, by
their claims, three quarters of the company’s debts (excluding claims secured by privilege (
privilège
), mortgage (
hypothèque
) or pledge (
gage
)).
The suspension of payments only applies to those liabilities which have been assumed by the debtor prior to obtaining the suspension of
payment and has no effect as far as taxes and other public charges or secured claims (by right of privilege, a mortgage or a pledge) are concerned.
Effects of Suspension of Payments Proceedings
During the suspension of payments, ordinary creditors cannot open enforcement proceedings against the Luxembourg Obligor’s assets. This
stay on enforcement does not extend to preferred creditors, or to creditors which are secured by mortgages (
hypothèques
), pledges (
gages
) or financial collateral arrangements governed by the Luxembourg Collateral Act. The
Luxembourg Obligor continues to manage its own business under the supervision of a court-appointed administrator who must approve most of the transactions carried out by the Luxembourg Obligor.
When a suspension of payments ends, the stay on enforcement is terminated and the Luxembourg Obligor’s management body can run the
business again.
Judicial Liquidation
Judicial liquidation proceedings may be opened at the request of the Luxembourg public prosecutor against Luxembourg commercial companies
pursuing an activity violating criminal laws or that are in serious violation of the Luxembourg commercial code or of the Luxembourg law dated August 10, 1915 on commercial companies, as amended.
The management of such judicial liquidation proceedings will generally follow similar rules as those applicable to bankruptcy proceedings.
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In an insolvency proceeding, it is possible that creditors of Medtronic Luxco or appointed
insolvency administrator may challenge Medtronic Luxco’s guarantee of the debt securities, and intercompany obligations generally, as fraudulent or voidable transfers, preferences or conveyances or transactions at an undervalue or on other
grounds.
In certain situations the relevant bankruptcy court may act ex officio and declare the guarantee or other security interests as
ineffective, unenforceable or void. If so, such laws may permit the court, if it makes certain findings, to:
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void or invalidate all or a portion of a guarantor’s obligations under its guarantee or the security provided by such guarantor;
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direct that holders of the debt securities return any amounts paid under a guarantee or any security document to the relevant guarantor or to a fund for the benefit of the relevant guarantor’s creditors or
otherwise contribute to the assets of the relevant guarantor; or
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take other action that is detrimental to holders of the debt securities.
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Under Luxembourg
insolvency law, a liquidator/bankruptcy trustee of Medtronic Luxco could apply to the court to have set aside certain transactions entered into by Medtronic Luxco before the commencement of its liquidation/bankruptcy. Article 445 of the Luxembourg
Commercial Code sets out the conditions in which certain transactions made by Medtronic Luxco may be declared null and void. If the transactions were made after the cessation of payments, but before the declaratory judgment of bankruptcy, which is
the hardening period (période suspecte) and an additional period of ten days preceding this hardening period fixed by the court, those specified transactions must be set aside or declared null and void. Such transactions will include, for
example: the granting of a security interest for antecedent debts, the payment of debts which have not fallen due, whether such payment is made in cash or by way of assignment, sale,
set-off
or by any other
means, the payment of debts which have fallen due by any other means than in cash or by bill of exchange and the sale of assets without consideration or for materially inadequate consideration. Paragraph 4 of Article 445 of the Luxembourg Commercial
Code expressly states that any security which would have been granted by the debtor to a creditor, during the hardening period (and ten days before), for previously contracted debts is null and void.
Furthermore, the following may be declared null and void (Article 446 of the Luxembourg Commercial Code) if occurred during the hardening
period (and ten days before): payments (of any kind, including cash and
set-offs)
of
non-mature
debts, payments not consisting of cash or negotiable instruments
(
effets de commerce
) for mature debts.
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LEGAL MATTERS
Unless the applicable prospectus supplement indicates otherwise, the validity of the debt securities in respect of which this prospectus is
being delivered will be passed upon by Wilmer Cutler Pickering Hale and Dorr LLP. Particular matters with respect to Irish law will be passed upon by A&L Goodbody. Particular matters with respect to Luxembourg law will be passed upon by
Allen & Overy,
société en commandite simple
(
inscrite au barreau de Luxembourg
). Particular matters with respect to Minnesota law will be passed upon by Thomas L. Osteraas. Mr. Osteraas is an employee of
Medtronic, Inc. serving as Principal Legal Counsel, Corporate & Securities and owns or has rights to acquire an aggregate of less than 0.01% of the ordinary shares of Medtronic, plc.
EXPERTS
The financial statements and management’s assessment of the effectiveness of internal control over financial reporting (which is included
in Management’s Report on Internal Control over Financial Reporting) incorporated in this Prospectus by reference to the Annual Report on Form
10-K
for the year ended April 29, 2016 have been so
incorporated in reliance on the report of PricewaterhouseCoopers LLP, an independent registered public accounting firm, given on the authority of said firm as experts in auditing and accounting.
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MEDTRONIC GLOBAL HOLDINGS S.C.A.
Debt Securities
Fully
and unconditionally guaranteed by
Medtronic Public Limited Company
Medtronic, Inc.
MEDTRONIC, INC.
Debt
Securities
Fully and unconditionally guaranteed by
Medtronic Public Limited Company
Medtronic Global Holdings S.C.A.
PROSPECTUS
February 3, 2017
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
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Item 14.
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Other Expenses of Issuance and Distribution.
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The following table sets forth the fees
and expenses payable by us in connection with the sale of the offered debt securities being registered hereby, other than underwriting discounts and commissions.
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SEC registration fee
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$
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(1)
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Printing expenses
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Accounting services
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Legal fees of registrant’s counsel
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Rating agency fees and expenses
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Trustee’s fees and expenses
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Miscellaneous
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Total
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$
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(2)
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(1)
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Deferred in reliance upon Rules 456(b) and 457(r) under the Securities Act.
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(2)
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These fees and expenses are calculated based on the securities offered and the number of issuances and accordingly are not estimated at this time and will be reflected in the applicable prospectus supplement.
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Item 15.
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Indemnification of Directors and Officers.
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Medtronic plc
Pursuant to the Medtronic plc’s memorandum and articles of association, subject to the provisions of, and so far as may be permitted by
the Irish Companies Act, 2014, every director and secretary of Medtronic plc shall be indemnified out of the assets of Medtronic plc against all costs, losses, expenses and liabilities incurred by him or her in the execution and discharge of his or
her duties or in relation thereto including any liability incurred by him or her in defending civil or criminal proceedings which relate to anything done or omitted or alleged to have been done or omitted by him or her as an officer or employee of
Medtronic plc and in which judgment is given in his or her favor (or the proceedings are otherwise disposed of without any finding or admission of any material breach of duty on his or her part) or in which he or she is acquitted or in connection
with any application under any statute for relief from liability in respect of any such act or omission in which relief is granted to him or her by the court.
Pursuant to Medtronic plc’s memorandum and articles of association and so far as may be permitted by the Irish Companies Act, 2014, every
current or former executive or officer (other than any director) or any person who is serving or has served at the request of Medtronic plc as a director, executive, officer or trustee of another company shall be indemnified out of the assets of
Medtronic plc against expenses, including attorneys’ fees, judgments, fines, and amounts paid in settlement actually and reasonably incurred by him or her in connection with any threatened, pending, or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, other than an action by or in the right of the Medtronic plc, to which he or she was, is, or is threatened to be, made a party by reason of the fact that he or she is or was such a director,
executive, officer or trustee.
Effective January 26, 2015, Medtronic plc entered into deeds of indemnification (the “Deeds of
Indemnification”) with its directors and corporate secretary. The Deeds of Indemnification provide indemnification to such directors and the corporate secretary to the fullest extent permitted by the laws of Ireland, and in accordance with
Medtronic plc’s memorandum and articles of association, for all expenses and other amounts actually incurred in any action or proceeding in which the director or corporate secretary is or may be involved by reason of the fact that he or she is
or was a director or corporate secretary of Medtronic plc or otherwise serving the company or other entities at the company’s request, on the terms and conditions set forth in
II-1
the Deeds of Indemnification. Further, Medtronic plc agrees, to the fullest extent permitted by the laws of Ireland, to advance expenses incurred in defense of these proceedings, on the terms and
conditions set forth in the Deeds of Indemnification. The Deeds of Indemnification also provide procedures for requesting and obtaining indemnification and advancement of expenses.
Medtronic Luxco
Medtronic Luxco is
incorporated under the laws of Luxembourg. Article 102 of the Luxembourg Commercial Code of 10 August 1915 (as amended) (the “1915 Law”), provides that a société en commandite par actions, such as Medtronic Luxco,
“is a company established by contract, for a limited or unlimited period, between one or more shareholders who are indefinitely and jointly and severally liable for the obligations of the company and one or more shareholders who only contribute
a specific share of the capital.” (Translated into English.)
Article 107 of the 1915 law provides that “Management of the
company is carried out by one or more managers, who may but need not be unlimited members, designated in accordance with the articles. Managers who are not unlimited members shall be liable in accordance with Article 59.” (Translated into
English.)
The manager of Medtronic Luxco is Medtronic Global Holdings G.P. S.à r.l. (“Medtronic GP”), its unlimited
member. Medtronic GP is a Luxembourg private limited company (
société à responsabilité limitée
(“S.à r.l.”)) in turn managed by its managers. Managers do not contract any personal liability
deriving from the liabilities of the company (explicitly for
sociétés anonymes
(Public limited companies) per Article 58 of the 1915 Law). This is an application of the general rules pursuant to which a proxy does not bind
himself and the person represented by the proxy must execute the obligations undertaken in its name by the proxy.
Managers are however
responsible for damages caused by their fault. This responsibility may exist towards the company, towards shareholders and towards third parties, depending on the circumstances and the basis of action. Actions may notably be based on either of the
following provisions: (i) Article 59 para. 1 of the 1915 Law (
faute de gestion
, mismanagement), (ii) Article 59 para. 2 of the 1915 Law (violation of legal or statutory provisions), or (iii) Articles 1382, 1383 of the Luxembourg
Civil Code.
Article 59 of the 1915 Law reads as follows:
“The directors are responsible towards the company, in accordance with common law, for the execution of the mandate which has been
conferred upon them and for the faults committed in their management.
They shall be jointly and severally liable towards the company and
any third parties for damages resulting from the violation of this law or the articles of the company. They shall be discharged from such liability in the case of a violation to which they were not a party provided no misconduct is attributable to
them and they have reported such violation to the first general meeting after they had acquired knowledge thereof.” (Translated into English.)
Besides the three cases above, managers may incur liability under criminal law or, in certain circumstances, in case of bankruptcy.
Claims against individual managers on the basis of Articles 1382 and 1383 of the Luxembourg Civil Code are available to the company and to any
injured person, be it an individual shareholder or a third party creditor of the company, if it can be established that an unlawful act or negligence has been committed by the board of managers or a manager. Articles 1382 and 1383 read as follows:
“Any act of man resulting in damage incurred by someone else binds the person responsible for the damage to repair it.” (Article
1382) (Translated into English.)
“Everyone is liable for the damage caused not only by his act but also by his negligence or
imprudence.” (Article 1383) (Translated into English.)
II-2
Any injured person can resort to this individual responsibility of the managers for the following
reasons: (i) the actio mandati is not available to the company because the quitus has been granted to the managers; (ii) it is usual practice for managers to have their personal liability covered by insurance policies so that managers can
meet their obligations, and (iii) minority shareholders are not entitled to initiate the actio mandati on behalf of the company against its managers.
The claimant will have to demonstrate (a) the negligence of the managers in performing or not performing their obligations, (b) the
damage suffered, and (c) the causal link between the negligence and the damage.
Luxembourg laws and regulations do not explicitly
address the issue of indemnity and insurance coverage for S.à r.l. managers. It is generally considered that the articles of incorporation of the S.à r.l. may provide for indemnity, however limited to the extent the managers are not
acting in gross negligence or fraudulently.
Insurance coverage for directors’ and officers’ liability is also permissible under
Luxembourg law and may be considered as usual market practice for certain market segments and/or types of companies (including Medtronic Luxco). However, there are no statutes or other codified laws or legal provisions specifically dealing with
directors’ and officers’ insurance.
The coordinated articles of incorporation of Medtronic Luxco provide that:
“Art. 9. Liability. To the extent permissible under Luxembourg law, the GP Shareholder and other officers of the Company, as well as those
persons to whom such signatory powers have been validly delegated in accordance with Articles 8.3 and 8.4 of these Articles, shall be indemnified out of the assets of the Company against all costs, charges, losses, damages and expenses incurred or
sustained by them in connection with any actions, claims, suits or proceedings to which they may be made a party by reason of being or having been managers, officers or delegates of the Company, by reason of any transaction carried out by the
Company, any contract entered into or any action performed, concurred in, or omitted, in connection with the execution of their duties, save for liabilities and expenses arising from their gross negligence or willful default, in each case without
prejudice to any other rights to which such persons may be entitled.”
The Articles of Medtronic GP provide that:
“Art. 11. The managers do not contract in their functions any personal obligation concerning the commitments regularly taken by them in
the name of the Company; as representatives of the Company, the managers are only responsible for the execution of their mandates.”
Effective January 26, 2015, Medtronic Luxco entered into indemnification agreements (the “Indemnification Agreements”) with the
directors and corporate secretary of Medtronic plc. The Indemnification Agreements provide indemnification to such directors and the corporate secretary, provided such directors and the corporate secretary act in good faith and in a manner
reasonably believed to be in or not opposed to the best interests of Medtronic plc, to the fullest extent permitted by Delaware law, for all expenses and other amounts actually incurred in any action or proceeding in which the director or the
corporate secretary is or may be involved by reason of the fact that he or she is or was a director or corporate secretary of Medtronic plc or otherwise serving Medtronic plc or other entities at Medtronic plc’s request, on the terms and
conditions set forth in the Indemnification Agreements. Further, Medtronic Luxco agrees to advance expenses incurred in defense of these proceedings, on the terms and conditions set forth in the Indemnification Agreements. The Indemnification
Agreements also provide procedures for requesting and obtaining indemnification and advancement of expenses.
Medtronic, Inc.
Minnesota Statutes Section 302A.521, subdivision 2, requires Medtronic, Inc. to indemnify a person made or threatened to be made a party to a
proceeding by reason of the former or present official capacity of the person with respect to Medtronic, Inc., against judgments, penalties, fines, settlements, and reasonable expenses, including attorneys’ fees and disbursements, incurred by
the person in connection with the proceeding if certain
II-3
statutory standards are met. In addition, Section 302A.521, subdivision 3, requires payment by Medtronic, Inc., upon written request, of reasonable expenses in advance of final disposition of the
proceeding in certain circumstances. A decision as to required indemnification is made by a disinterested majority of Medtronic, Inc.’s board of directors present at a meeting at which a disinterested quorum is present, or by a designated
committee of Medtronic, Inc.’s board of directors, by special legal counsel, by Medtronic, Inc.’s shareholders, or by a court. Section 302A.521 contains detailed terms regarding such right of indemnification and reference is made thereto
for a complete statement of such indemnification rights.
Medtronic, Inc.’s bylaws provide for indemnification by Medtronic, Inc. to
the full extent permitted by Minnesota Statutes Section 302A.521, as now enacted or hereafter amended, against and with respect to threatened, pending, or completed actions, suits, or proceedings arising from, or alleged to arise from, a
party’s actions or omissions as a director, officer, employee, or agent of Medtronic, Inc. or any subsidiary of Medtronic, Inc. or of any other corporation, partnership, joint venture, trust, or other enterprise that has served in such capacity
at the request of Medtronic, Inc. if such acts or omissions occurred, or were or are alleged to have occurred, while such party was a director or officer of Medtronic, Inc. Generally, under Minnesota law, indemnification will be available only where
an officer or director can establish that he or she acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of Medtronic, Inc. As permitted by Minnesota Statutes Section 302A.521, Medtronic,
Inc.’s articles of incorporation provide that a director shall have no personal liability to Medtronic, Inc. or its shareholders for breach of his or her fiduciary duty as a director, to the fullest extent permitted by law.
The foregoing summaries are qualified in their entirety to the terms and provisions of such arrangements.
The exhibits to this registration statement are listed in the exhibit index,
which appears elsewhere herein and is incorporated herein by reference.
Each of undersigned registrants hereby undertakes:
|
|
(a)(1)
|
To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
|
|
|
(i)
|
to include any prospectus required by Section 10(a)(3) of the Securities Act of 1933, as amended (the “Securities Act”);
|
|
|
(ii)
|
to reflect in the prospectus any facts or events arising after the effective date of this registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in this registration statement. Notwithstanding the foregoing, any increase or decrease in volume of debt securities offered (if the total dollar value of debt securities offered would not exceed that
which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
|
|
|
(iii)
|
to include any material information with respect to the plan of distribution not previously disclosed in this registration statement or any material change to such information in this registration statement;
|
provided
,
however
, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) do not apply if the information required to be
included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to
II-4
the Commission by a registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), that are incorporated by reference
in this registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of this registration statement.
|
|
(2)
|
That, for the purposes of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the
offering of such securities at the time shall be deemed to be the initial
bona fide
offering thereof.
|
|
|
(3)
|
To remove from registration by means of a post-effective amendment any of the debt securities being registered which remain unsold at the termination of the offering.
|
|
|
(4)
|
That, for the purpose of determining liability under the Securities Act to any purchaser:
|
|
|
(i)
|
each prospectus filed by a registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration
statement; and
|
|
|
(ii)
|
each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or
(x) for the purpose of providing the information required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first
used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such
date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the
initial
bona fide
offering thereof;
provided, however
, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference
into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration
statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
|
|
|
(5)
|
That, for the purpose of determining liability of a registrant under the Securities Act to any purchaser in the initial distribution of the debt securities, each of the undersigned registrants undertakes that in a
primary offering of debt securities of such undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the debt securities to the purchaser, if the debt securities are offered or sold to such
purchaser by means of any of the following communications, such undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such debt securities to such purchaser:
|
|
|
(i)
|
any preliminary prospectus or prospectus of such undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
|
|
|
(ii)
|
any free writing prospectus relating to the offering prepared by or on behalf of such undersigned registrant or used or referred to by such undersigned registrant;
|
|
|
(iii)
|
the portion of any other free writing prospectus relating to the offering containing material information about such undersigned registrant or its debt securities provided by or on behalf of such undersigned registrant;
and
|
|
|
(iv)
|
any other communication that is an offer in the offering made by such undersigned registrant to the purchaser.
|
|
|
(b)
|
Each of the undersigned registrants hereby undertakes that, for purposes of determining any liability under the
Securities Act, each filing of the registrant’s annual report pursuant to Section 13(a) or 15(d)
|
II-5
|
|
of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in this
registration statement shall be deemed to be a new registration statement relating to the debt securities offered therein, and the offering of such debt securities at that time shall be deemed to be the initial
bona fide
offering thereof.
|
|
|
(c)
|
Each of the undersigned registrants hereby undertakes to file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act
in accordance with the rules and regulations prescribed by the Commission under Section 305(b)(2) of the Trust Indenture Act.
|
|
|
(d)
|
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of any registrant pursuant to the indemnification provisions described herein,
or otherwise, each registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by a registrant of expenses incurred or paid by a director, officer or controlling person of such registrant in the successful defense of any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities being registered, such registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
|
II-6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form
S-3
and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the city of
Minneapolis, State of Minnesota, on February 3, 2017.
|
|
|
|
|
MEDTRONIC PUBLIC LIMITED COMPANY
|
|
|
|
|
By:
|
|
/s/ Bradley E. Lerman
|
|
|
|
Name: Bradley E. Lerman
|
|
|
|
Title: Senior Vice President, General Counsel and Corporate Secretary
|
SIGNATURES AND POWER OF ATTORNEY
We, the undersigned officers and directors of Medtronic Public Limited Company hereby severally constitute and appoint Bradley E. Lerman and
Martha Ha, and each of them singly, our true and lawful attorneys with full power to any of them, and to each of them singly, to sign for us and in our names in the capacities indicated below the Registration Statement on Form
S-3
filed herewith and any and all amendments (including post-effective amendments) to said Registration Statement, and any registration statement filed pursuant to Rule 462 under the Securities Act of 1933, as
amended, in connection with said Registration Statement, and to file or cause to be filed the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, and generally to do all such
things in our name and on our behalf in our capacities as officers and directors to enable Medtronic Public Limited Company to comply with the provisions of the Securities Act of 1933, as amended, and all requirements of the Securities and Exchange
Commission, hereby ratifying and confirming all that said attorneys, and each of them, or their substitute or substitutes, shall do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons
in the capacities and on the dates indicated.
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
/s/ Omar Ishrak
Omar Ishrak
|
|
Chairman and Chief Executive Officer (principal executive officer)
|
|
February 3, 2017
|
|
|
|
|
|
/s/ Karen Parkhill
Karen L. Parkhill
|
|
Chief Financial Officer (principal financial and accounting officer)
|
|
February 3, 2017
|
|
|
|
|
|
/s/ Richard H. Anderson
Richard H. Anderson
|
|
Director
|
|
February 3, 2017
|
|
|
|
|
|
/s/ Craig Arnold
Craig Arnold
|
|
Director
|
|
February 3, 2017
|
|
|
|
|
|
/s/ Scott C. Donnelly
Scott C. Donnelly
|
|
Director
|
|
February 3, 2017
|
|
|
|
|
|
/s/ Randall J. Hogan, III
Randall J. Hogan, III
|
|
Director
|
|
February 3, 2017
|
II-7
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
/s/ Shirley Ann Jackson, PhD
Shirley Ann Jackson, PhD
|
|
Director
|
|
February 3, 2017
|
|
|
|
|
|
/s/ Michael O. Leavitt
Michael O. Leavitt
|
|
Director
|
|
February 3, 2017
|
|
|
|
|
|
/s/ James T. Lenehan
James T. Lenehan
|
|
Director
|
|
February 3, 2017
|
|
|
|
|
|
/s/ Elizabeth Nabel
Elizabeth Nabel
|
|
Director
|
|
February 3, 2017
|
|
|
|
|
|
/s/ Denise M. O’Leary
Denise M. O’Leary
|
|
Director
|
|
February 3, 2017
|
|
|
|
|
|
/s/ Kendall J. Powell
Kendall J. Powell
|
|
Director
|
|
February 3, 2017
|
|
|
|
|
|
/s/ Robert C. Pozen
Robert C. Pozen
|
|
Director
|
|
February 3, 2017
|
|
|
|
|
|
Authorized Representative in the United States:
|
|
|
|
|
By:
|
|
/s/ Martha Ha
|
|
|
|
Martha Ha
|
|
|
|
Assistant Secretary
|
II-8
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form
S-3
and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the city of City of
Luxembourg, Luxembourg, on February 3, 2017.
|
|
MEDTRONIC GLOBAL HOLDINGS S.C.A.,
a Luxembourg corporate partnership limited by shares (société en commandite par actions) represented by
|
|
Medtronic Global Holding GP S.à r.l.
|
|
Its General Partner, in turn acting by
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Erik De Gres
|
|
|
|
Name: Erik De Gres
|
|
|
|
Title: Managing Director
|
SIGNATURES AND POWER OF ATTORNEY
I, the undersigned, hereby constitute and appoint Bradley E. Lerman and Martha Ha, and each of them singly, my true and lawful attorneys with
full power to any of them, and to each of them singly, to sign for me and in my name in the capacities indicated below the Registration Statement on Form
S-3
filed herewith and any and all amendments
(including post-effective amendments) to said Registration Statement, and any registration statement filed pursuant to Rule 462 under the Securities Act of 1933, as amended, in connection with said Registration Statement, and to file or cause to be
filed the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, and generally to do all such things in my name and on my behalf in my capacities as an officer and director to enable
Medtronic Global Holdings S.C.A. to comply with the provisions of the Securities Act of 1933, as amended, and all requirements of the Securities and Exchange Commission, hereby ratifying and confirming all that said attorneys, and each of them, or
their substitute or substitutes, shall do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of
1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
/s/ Erik De Gres
Erik De Gres
|
|
Managing Director of Medtronic Global Holding GP
S.à r.l., general partner of Medtronic Global
Holdings
S.C.A.
|
|
February 3, 2017
|
|
|
|
|
|
Authorized Representative in the United States:
|
|
|
|
|
By:
|
|
/s/ Martha Ha
|
|
|
|
Martha Ha
|
|
|
|
Assistant Secretary of Medtronic plc
|
II-9
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form
S-3
and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the city of
Minneapolis, State of Minnesota, on February 3, 2017.
|
|
|
|
|
MEDTRONIC, INC.
|
|
|
|
|
By:
|
|
/s/ Bradley E. Lerman
|
|
|
|
Name: Bradley E. Lerman
|
|
|
|
Title: Senior Vice President, General Counsel and Corporate Secretary
|
SIGNATURES AND POWER OF ATTORNEY
We, the undersigned officers and directors of Medtronic, Inc., hereby severally constitute and appoint Bradley E. Lerman and Martha Ha, and
each of them singly, our true and lawful attorneys with full power to any of them, and to each of them singly, to sign for us and in our names in the capacities indicated below the Registration Statement on Form
S-3
filed herewith and any and all amendments (including post-effective amendments) to said Registration Statement, and any registration statement filed pursuant to Rule 462 under the Securities Act of 1933,
as amended, in connection with said Registration Statement, and to file or cause to be filed the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, and generally to do all such
things in our name and on our behalf in our capacities as officers and directors to enable Medtronic, Inc. to comply with the provisions of the Securities Act of 1933, as amended, and all requirements of the Securities and Exchange Commission,
hereby ratifying and confirming all that said attorneys, and each of them, or their substitute or substitutes, shall do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons
in the capacities and on the dates indicated.
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
/s/ Omar Ishrak
Omar Ishrak
|
|
Chief Executive Officer (principal executive officer)
|
|
February 3, 2017
|
|
|
|
|
|
/s/ Karen L. Parkhill
Karen L. Parkhill
|
|
Executive Vice President and Chief Financial Officer (principal financial and accounting officer)
|
|
February 3, 2017
|
|
|
|
|
|
/s/ Philip John Albert
Philip John Albert
|
|
Director
|
|
February 3, 2017
|
|
|
|
|
|
/s/ Martha Ha
Martha Ha
|
|
Director
|
|
February 3, 2017
|
|
|
|
|
|
/s/ Linda Harty
Linda Harty
|
|
Director
|
|
February 3, 2017
|
II-10
EXHIBIT INDEX
|
|
|
|
|
Exhibit
No.
|
|
Description
|
|
|
|
|
1*
|
|
Form of Underwriting Agreement
|
|
|
|
|
3.1
|
|
Certificate of Incorporation of Medtronic plc (incorporated by reference to Exhibit 3.1 to Medtronic plc’s Current Report on Form
8-K,
filed on January 27, 2015, File
No. 001-36820)
|
|
|
|
|
3.2
|
|
Memorandum and Articles of Association of Medtronic plc, as amended by Special Resolution on 9 December 2016
|
|
|
|
|
3.3
|
|
An electronic version of the excerpt on file at the Luxembourg Trade and Companies Register for Medtronic Global Holdings S.C.A. (
including English translation
)
|
|
|
|
|
3.4
|
|
Amended and Restated Articles of Association of Medtronic Global Holdings S.C.A. (incorporated by reference to Exhibit 3.5 to Medtronic plc’s Registration Statement on Form
S-4,
filed on
July 17, 2015, File
No. 333-205732-01)
|
|
|
|
|
3.5
|
|
Amended and Restated Articles of Incorporation of Medtronic, Inc. (incorporated by reference to Exhibit 3.1 to Medtronic, Inc.’s Current Report on Form
8-K,
filed on January 27,
2015, File
No. 001-07707)
|
|
|
|
|
3.6
|
|
Amended and Restated By-Laws of Medtronic, Inc.
|
|
|
|
|
4.1
|
|
Form of Senior Indenture of Medtronic Global Holdings S.C.A. (including form of Note and Guarantee)
|
|
|
|
|
4.2
|
|
Form of Senior Note of Medtronic Global Holdings S.C.A. (included in Exhibit 4.1)
|
|
|
|
|
4.3
|
|
Form of Subordinated Indenture of Medtronic Global Holdings S.C.A. (including form of Note and Guarantee)
|
|
|
|
|
4.4
|
|
Form of Subordinated Note of Medtronic Global Holdings S.C.A. (included in Exhibit 4.3)
|
|
|
|
|
4.5
|
|
Indenture, dated as of as December 10, 2014 between Medtronic, Inc. and Wells Fargo Bank, National Association, as trustee (“Medtronic, Inc. Senior Indenture”) (incorporated by reference to Exhibit 4.1 to Medtronic,
Inc’s Form
8-K,
filed on December 10, 2014)
|
|
|
|
|
4.6
|
|
First Supplemental Indenture to Medtronic, Inc. Senior Indenture, dated as of December 10, 2014 between Medtronic, Inc. and Wells Fargo Bank, National Association as trustee relating to the Floating Rate Notes due 2020, 1.500%
Notes due 2018, 2.500% Notes due 2020, 3.150% Notes due 2022, 3.500% Notes due 2025, 4.375% Notes due 2035 and 4.625% Notes due 2045 (incorporated by reference to Exhibit 4.2 to Medtronic, Inc’s Form
8-K,
filed on December 10, 2014)
|
|
|
|
|
4.7
|
|
Second Supplemental Indenture to Medtronic, Inc. Senior Indenture, dated as of January 26, 2015 between Medtronic plc and Wells Fargo Bank, National Association as trustee (incorporated by reference to Exhibit 4.3 to Medtronic,
Inc’s Form
8-K,
filed on January 27, 2015)
|
|
|
|
|
4.8
|
|
Third Supplemental Indenture to Medtronic, Inc. Senior Indenture, dated as of January 26, 2015 between Medtronic Global Holdings S.C.A. and Wells Fargo Bank, National Association as trustee (incorporated by reference to Exhibit
4.4 to Medtronic, Inc’s Form
8-K,
filed on January 27, 2015)
|
|
|
|
|
4.9
|
|
Form of Senior Note of Medtronic, Inc. (included in Exhibit 4.5)
|
|
|
|
|
5.1
|
|
Opinion of Wilmer Cutler Pickering Hale and Dorr LLP, U.S. counsel to Medtronic plc, Medtronic Global Holdings S.C.A. and Medtronic, Inc.
|
|
|
|
|
5.2
|
|
Opinion of A&L Goodbody, Irish counsel to Medtronic plc
|
II-11
|
|
|
|
|
Exhibit
No.
|
|
Description
|
|
|
|
|
5.3
|
|
Opinion of Allen & Overy,
société en commandite simple
(
inscrite au barreau de Luxembourg
), Luxembourg counsel to Medtronic Global Holdings S.C.A.
|
|
|
|
|
5.4
|
|
Opinion of Thomas L. Osteraas, Principal Legal Counsel, Corporate & Securities of Medtronic, Inc.
|
|
|
|
|
23.1
|
|
Consent of PricewaterhouseCoopers LLP, independent registered public accounting firm for Medtronic plc
|
|
|
|
|
23.2
|
|
Consent of Wilmer Cutler Pickering Hale and Dorr LLP (included in Exhibit 5.1)
|
|
|
|
|
23.3
|
|
Consent of A&L Goodbody (included in Exhibit 5.2)
|
|
|
|
|
23.4
|
|
Consent of Allen & Overy,
société en commandite simple
(
inscrite au barreau de Luxembourg
) (included in Exhibit 5.3)
|
|
|
|
|
23.5
|
|
Consent of Thomas L. Osteraas, Principal Legal Counsel, Corporate & Securities of Medtronic, Inc. (included in Exhibit 5.4)
|
|
|
|
|
24.1
|
|
Medtronic plc Powers of Attorney (included in the signature pages to the Registration Statement)
|
|
|
|
|
24.2
|
|
Medtronic Global Holdings S.C.A. Powers of Attorney (included in the signature pages to the Registration Statement)
|
|
|
|
|
24.3
|
|
Medtronic, Inc. Powers of Attorney (included in the signature pages to the Registration Statement)
|
|
|
|
|
25.1
|
|
The Statement of Eligibility on Form
T-1
under the Trust Indenture Act of 1939, as amended, of the Trustee under the Senior Indenture of Medtronic Global Holdings S.C.A.
|
|
|
|
|
25.2**
|
|
The Statement of Eligibility on Form
T-1
under the Trust Indenture Act of 1939, as amended, of the Trustee under the Subordinated Indenture of Medtronic Global Holdings S.C.A
|
|
|
|
|
25.3
|
|
The Statement of Eligibility on Form
T-1
under the Trust Indenture Act of 1939, as amended, of the Trustee under the Medtronic, Inc. Senior Indenture
|
|
*
|
To be filed by amendment or by a Current Report on Form
8-K.
|
|
**
|
To be filed pursuant to Section 305(b)(2) of the Trust Indenture Act of 1939.
|
II-12
Exhibit 3.2
COMPANIES ACT 2014
A
PUBLIC COMPANY LIMITED BY SHARES
CONSTITUTION
OF
MEDTRONIC PUBLIC
LIMITED COMPANY
(as amended by Special Resolution on 9 December 2016)
COMPANIES ACT 2014
A PUBLIC COMPANY LIMITED BY SHARES
MEMORANDUM OF ASSOCIATION
OF
MEDTRONIC PUBLIC
LIMITED COMPANY
|
1.
|
The name of the Company is: Medtronic public limited company.
|
|
2.
|
The Company is a public limited company for the purposes of Part 17 of the Companies Act 2014.
|
|
3.
|
The objects for which the Company is established are:
|
|
|
3.1.
|
To carry on the business of a device-based medical therapy and healthcare services and supplies development company, and to design, manufacture, produce, supply and provide medical devices and healthcare supplies,
including cardiac rhythm disease management, coronary, structural heart, endovascular, spine, orthopaedic, dental and neuromodulation devices and therapies, diabetes management solutions, advanced surgical tools and supplies, sutures and wound care
products, needles and syringes, diagnostic imaging agents, contrast media for diagnostic imaging, vascular therapy apparatus, respiratory devices, endomechanical, soft tissue repair, energy, oximetry and monitoring, airway and ventilation, vascular,
SharpSafety and clinical care products, generic pharmaceuticals, active pharmaceutical ingredients and dosage pharmaceuticals and other devices, products or supplies of a surgical, pharmaceutical or medical character necessary or suitable for the
proper treatment of sick or injured persons or patients and to carry on business as merchants of and dealers in first aid appliances, medical and surgical devices, products and accessories, hospital fittings and requisites, and in all accessories
and supplies required for use in the treatment of and care of the sick and injured, and to buy, sell, manufacture and deal in all articles, goods, wares, materials and substances, and to construct, own, operate, manage, furnish and equip with all
necessary conveniences, furniture and equipment hospitals, radiotherapy units, private hospitals, nursing homes, convalescent homes, crèches, hydropathic establishments and similar healthcare undertakings, with all suitable accommodation for
the treatment and care of patients, and to do all things usually dealt in by persons carrying on the above mentioned businesses or any of them or likely to be required or appropriate in connection with any of the said businesses.
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3.2.
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To invest in medical devices, healthcare services and supplies and related assets, including, amongst other items, investments in medical device or healthcare services or supplies companies, products, businesses,
divisions, technologies, sales force and other marketing capabilities, development projects and related activities, licences, intellectual and similar property rights, premises and equipment, royalty rights and all other assets needed or appropriate
to operate a medical device and healthcare services and supplies business.
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3.3.
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To carry on the business of a holding company and to coordinate the administration, finances and activities of any subsidiary companies or associated companies, to do all lawful acts and things whatsoever that are
necessary or convenient in carrying on the business of such a holding company and in particular to carry on, in all its branches, the business of a management services company, to act as managers and to direct or coordinate the management of other
companies or of the business, property and estates of any company or person and to undertake and carry out all such services in connection therewith as may be deemed necessary or appropriate by the Company’s board of directors and to exercise
its powers as a shareholder of other companies.
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1
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3.4.
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To directly or indirectly acquire the entire issued share capital of Medtronic, Inc., a corporation incorporated in the State of Minnesota, and Covidien plc, an Irish public limited company.
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3.5.
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To invest (including long-term investments in, and acquisitions of, the shares or other securities or ownership interests in other companies) any monies of the Company in such investments and in such manner as may from
time to time be determined, and to hold, sell or deal with such investments and generally to purchase, take on lease or in exchange or otherwise acquire any real and personal property and rights or privileges.
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3.6.
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To develop and turn to account any land acquired by the Company or in which it is interested and in particular by laying out and preparing the same for building purposes, constructing, altering, pulling down,
decorating, maintaining, fitting up and improving buildings and conveniences, and by planting, paving, draining, farming, cultivating, letting on building lease or building agreement and by advancing money to and entering into contracts and
arrangements of all kinds with builders, tenants and others.
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3.7.
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To acquire and hold shares and stocks of any class or description, debentures, debenture stocks, bonds, bills, mortgages, obligations, investments, partnership interests, limited partnership interests, trust interests,
membership interests and other securities or ownership interests of all descriptions and of any kind issued or guaranteed by any company or undertaking of whatever nature and wheresoever constituted or carrying on business or issued or guaranteed by
any government, state, dominion, colony, sovereign ruler, commissioners, trust, public, municipal, local or other authority or body of whatever nature and wheresoever situated and investments, securities and property of all descriptions and of any
kind, including real and chattel real estates, mortgages, reversions, assurance policies, contingencies and choses in action.
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3.8.
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To remunerate by cash payments or allotment of shares or securities or other ownership interests (including rights to acquire shares or securities or other ownership interests) of the Company credited as fully paid up
or otherwise any person or company for services rendered or to be rendered to the Company or any parent or subsidiary body corporate whether in the conduct or management of its business, or in placing or assisting to place or guaranteeing the
placing of any of the shares of the Company’s capital, or any debentures or other securities of the Company or in or about the formation or promotion of the Company.
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3.9.
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To purchase for investment property of any tenure and any interest therein, and to make advances upon the security of land or other similar property or any interest therein.
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3.10.
|
To acquire by purchase, exchange, lease, fee, farm grant or otherwise, either for an estate in fee simple or for any less estate or other estate or interest, whether immediate or reversionary and whether vested or
contingent, any lands, tenements or hereditaments of any tenure, whether subject or not to any charges or encumbrances, and to hold, farm, work and manage and to let, sublet, mortgage or charge land and buildings of any kind, reversions, interests,
annuities, life policies, and any other property real or personal, movable or immovable, either absolutely or conditionally, and either subject or not to any mortgage, charge, ground rent or other rents or encumbrances.
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3.11.
|
To erect or secure the erection of buildings or other structures of any kind with a view of occupying or letting them or otherwise utilising them and to enter into any contracts or leases and to grant any licences
necessary to effect the same.
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3.12.
|
To maintain and improve any lands, tenements or hereditaments acquired by the Company or in which the Company is interested, in particular by decorating, maintaining, furnishing, fitting up and improving houses, shops,
flats, maisonettes and other buildings and structures and to enter into contracts and arrangements of all kinds with tenants and others.
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2
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3.13.
|
To sell, exchange, mortgage (with or without power of sale), assign, turn to account or otherwise dispose of and generally deal with the whole or any part of the property, shares, stocks, securities, estates, rights or
undertakings of the Company, real property, chattels real or personal, movable or immovable, either in whole or in part.
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3.14.
|
To take part in the management, supervision, or control of the business or operations of any company or undertaking, and for that purpose to appoint and remunerate any directors, accountants, or other experts or agents
to act as consultants, supervisors and agents of other companies or undertakings and to provide managerial, advisory, technical, design, purchasing and selling services and any other services deemed appropriate by the Company.
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3.15.
|
To make, draw, accept, endorse, negotiate, issue, execute, discount and otherwise deal with bills of exchange, promissory notes, letters of credit, circular notes, and other negotiable or
non-negotiable
or transferable or
non-transferrable
instruments.
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3.16.
|
To redeem, purchase, or otherwise acquire in any manner permitted by law any shares in the Company’s capital or other securities or ownership interests of any kind issued by the Company.
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3.17.
|
To guarantee, support or secure whether by personal covenant or by mortgaging or charging all or any part of the undertaking, property and assets (present and future) and uncalled capital of the Company or by both such
methods, or by any other method whatsoever, the performance of the obligations of, and the repayment or payment of the principal amounts of and the premiums, interest, dividends and other amounts due on or with respect to any security of any person,
firm or company, including any company which is for the time being the Company’s holding company (as defined by section 8 of the Companies Act 2014) or subsidiary (as defined by section 7 of the Companies Act 2014) or another subsidiary as
defined by the said section of the Company’s holding company (as defined by section 8 of the Companies Act 2014) or otherwise associated with the Company in business notwithstanding the fact that the Company may not receive any consideration,
advantage or benefit, direct or indirect from entering into such guarantee or other arrangement or transaction contemplated herein.
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3.18.
|
To lend the funds of the Company with or without security and at interest or free of interest.
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3.19.
|
To raise or borrow or secure the payment of money, including by the issue of bonds, debentures or debenture stock, perpetual or redeemable, or by mortgage, charge, lien or pledge upon the whole or any part of the
undertaking, property, assets or rights of the Company, present or future, including its uncalled capital and generally in any other manner as the directors shall from time to time determine and to enter into or issue interest and currency hedging
and swap agreements, forward rate agreements, interest and currency futures or options and other forms of financial instruments, and to purchase, redeem or pay off any of the foregoing and to guarantee any or all of the liabilities of the Company,
any other company or any other person, and any debentures, debenture stock or other securities may be issued at a discount, premium or otherwise, and with any special privileges as to redemption, surrender, transfer, drawings, allotments of shares,
attending and voting at general meetings of the Company, appointment of directors and otherwise.
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|
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3.20.
|
To accumulate capital for any of the purposes of the Company, and to appropriate any of the Company’s assets to specific purposes, either conditionally or unconditionally, and to admit any class or section of those
who have any dealings with the Company to any share in the profits thereof or in the profits of any particular branch of the Company’s business or to any other special rights, privileges, advantages or benefits.
|
3
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3.21.
|
To reduce the share capital of the Company in any manner permitted by law.
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3.22.
|
To make gifts or grant bonuses to officers or other persons who are or have been in the employment of the Company and to allow any such persons to have the use and enjoyment of such property, chattels or other assets
belonging to the Company upon such terms as the Company shall think fit.
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3.23.
|
To establish and maintain or procure the establishment and maintenance of any pension or superannuation fund (whether contributory or otherwise) for the benefit of and to give or procure the giving of donations,
gratuities, pensions, annuities, allowances, emoluments or charitable aid to any persons who are or were at any time in the employment or service of the Company or any of its predecessors in business, or of any company which is a subsidiary of the
Company or who may be or have been directors or officers of the Company, or of any such other company as aforesaid, or any persons in whose welfare the Company or any such other company as aforesaid may be interested and the wives, husbands, widows,
widowers, families, relatives or dependants of any such persons, and to make payments towards insurance and assurance and to form and contribute to provident and benefit funds for the benefit of any such persons and to remunerate any person, firm or
company rendering services to the Company or of any company which is a subsidiary of the Company, whether by cash payment, gratuities, pensions, annuities, allowances, emoluments or by the allotment of shares or securities of the Company credited as
paid up in full or in part or otherwise.
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|
3.24.
|
To employ experts to investigate and examine into the conditions, prospects, value, character and circumstances of any business concerns, undertakings, assets, property or rights.
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3.25.
|
To insure the life of any person who may, in the opinion of the Company, be of value to the Company, as having or holding for the Company interests, goodwill, or influence or otherwise and to pay the premiums on such
insurance.
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3.26.
|
To distribute either upon a distribution of assets or division of profits among the Members of the Company in kind any property of the Company, and in particular any shares, debentures or securities of other companies
belonging to the Company or of which the Company may have the power of disposing.
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3.27.
|
To give, whether directly or indirectly, and whether by means of a loan, guarantee, the provision of security or otherwise, any financial assistance for the purpose of or in connection with a purchase or subscription
made or to be made by any person of or for any shares in the Company, or, where the Company is a subsidiary company, in its holding company.
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3.28.
|
To do and carry out all or any of the foregoing or following objects in any part of the world and either as principals, agents, contractors, trustees or otherwise, and either by or through agents, trustees or otherwise
and either alone or in partnership or in conjunction with any other company, firm or person, provided that nothing herein contained shall empower the Company to carry on the business of insurance.
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3.29.
|
To apply for, purchase or otherwise acquire any patents, brevets d’invention, licences, trademarks, trade names, copyrights, industrial designs,
know-how,
concessions and
other forms of intellectual property rights and the like conferring any exclusive or
non-exclusive
or limited or contingent rights to use, or any secret or other information as to any invention or process of
the Company, or the acquisition of which may seem calculated directly or indirectly to benefit the Company, and to use, exercise, develop, or grant licences in respect of, or otherwise turn to account the property, rights or information so acquired.
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3.30.
|
To enter into partnership or into any arrangement for sharing profits, union of interests,
co-operation,
joint venture, reciprocal concession or otherwise with any person or
company.
|
4
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|
3.31.
|
To acquire and undertake the whole or any part of the undertaking, business, property and liabilities of any person or company.
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3.32.
|
To adopt such means of making known the Company and its products and services as may seem expedient.
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3.33.
|
To acquire and carry on any business carried on by a subsidiary or a holding company of the Company or another subsidiary of a holding company of the Company.
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3.34.
|
To promote any company or companies for the purpose of acquiring all or any of the property and liabilities of this Company or for any other purpose which may seem directly or indirectly calculated to benefit this
Company.
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3.35.
|
To amalgamate with, merge with or otherwise become part of or associated with any other company or association in any manner permitted by law.
|
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3.36.
|
To make voluntary dispositions of all or any part of the property and rights of the Company and to make gifts thereof or gratuitous payments either for no consideration or for a consideration less than the market value
of such property or rights or the amount of cash payment or by all or any such methods.
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3.37.
|
To receive voluntary dispositions of all or any part of the undertakings, properties, assets or rights of any other corporation and to receive gifts thereof or gratuitous payments either for no consideration or for a
consideration less than the market value of such property or rights or the amount of cash payment or by all or any such methods.
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3.38.
|
To do and carry out all such other things, except the issuing of policies of insurance, as may be deemed by the Company capable of being carried on in connection with the above objects or any of them or calculated to
enhance the value of or render profitable any of the Company’s undertakings, properties, assets or rights.
|
And it is
hereby declared that (i) the word “company” in this clause, except where used in reference to this Company, shall be deemed to include any person, partnership, limited partnership, limited liability partnership, limited liability
company, other corporate body, trust or other body of persons whether incorporated or not incorporated and whether domiciled in Ireland or elsewhere and that the objects of the Company as specified in each of the foregoing paragraphs of this clause
shall be separate and distinct objects and shall not be in anyway limited or restricted by reference to or inference from the terms of any other paragraph or the name of the Company and (ii) any phrase introduced by the terms
“including”, “include”, “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
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4.
|
The liability of each Member is limited to the amount from time to time unpaid on such Member’s Shares.
|
|
5.
|
The authorised share capital of the Company is €40,000 and US$26,260,000 divided into 40,000 Euro Deferred Shares of €1.00 each, 2,600,000,000 Ordinary Shares of US$0.0001 each, 127,500,000 Preferred Shares of
$0.20 each and 500,000 A Preferred Shares of $1.00 each.
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|
6.
|
The shares forming the capital, increased or reduced, may be increased or reduced and be divided into such classes and issued with any special rights, privileges and conditions or with such qualifications as regards
preference, dividend, capital, voting or other special incidents, and be held upon such terms as may be attached thereto or as may from time to time be provided by the original or any substituted or amended Articles of Association and regulations of
the Company for the time being, but so that where shares are issued with any preferential or special rights attached thereto such rights shall not be alterable otherwise than pursuant to the provisions of the Company’s Articles of Association
for the time being.
|
5
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7.
|
Capitalised terms that are not defined in this Memorandum of Association bear the same meaning as those given in the Articles of Association of the Company.
|
6
COMPANIES ACT 2014
A PUBLIC COMPANY LIMITED BY SHARES
ARTICLES OF ASSOCIATION
OF
MEDTRONIC PUBLIC
LIMITED COMPANY
PRELIMINARY
|
1.
|
Sections 43(2), 77, 78, 80, 81, 83(3), 95(1), 96(2) to (11), 124, 125, 126(2) to (8), 144(3), 144(4), 148(2), 158 to 160, 161 (1), 161 (4)-(9), 162 to 165, 178(2), 180(5), 181(1), 181(6), 182(2), 182(5), 183(3),
186(c)(i), 187, 188, 218(3) to (5), 229, 230, 338(5), 338(6), 618(1)(b), 620(8), 1090, 1092 and 1113 of the Companies Act shall not apply to the Company. The provisions of the Companies Act which are stated therein to apply to a public limited
company, save to the extent that its constitution is permitted to provide or state otherwise, will apply to the Company subject to the alterations contained in these Articles, and will, so far as not inconsistent with these Articles, bind the
Company and its members.
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|
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|
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“
Address”
|
|
includes any number or address used for the purposes of communication by way of electronic mail or other electronic communication.
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|
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|
|
“
Adoption Date”
|
|
means the 26 January 2015.
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|
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|
“
Articles”
or “
Articles of Association”
|
|
means these articles of association of the Company, as amended from time to time by Special Resolution.
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|
“
Assistant Secretary”
|
|
means any person appointed by the Board or the Secretary from time to time to assist the Secretary.
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|
“
Auditors”
|
|
means the persons for the time being performing the duties of the statutory auditors of the Company.
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|
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|
“
Board”
|
|
means the board of Directors for the time being of the Company.
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|
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|
“1990 Regulations”
|
|
The Companies Act 1990 (Uncertificated Securities) Regulations 1996 (S.I. No. 68 of 1996) as may be amended from time to time.
|
7
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|
|
|
|
“Chairperson”
|
|
means the chairperson of the Board from time to time and/or chairperson of a general meeting of the Company as the context may require.
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|
|
|
|
“
clear days”
|
|
means, in relation to a period of notice, that period excluding the day when the notice is given or deemed to be given and the day for which notice is being given or on which an action or event for which notice is being given is
to occur or take effect.
|
|
|
|
|
“
Companies Act”
|
|
means the Companies Act 2014 and every statutory modification, replacement and
re-enactment
thereof for the time being in force.
|
|
|
|
|
“
Company”
|
|
means the above-named company.
|
|
|
|
|
“
Court”
|
|
means the Irish High Court.
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|
|
|
|
“
Directors”
|
|
means the directors for the time being of the Company.
|
|
|
|
|
“
dividend”
|
|
includes dividends, final dividends, interim dividends and bonus dividends.
|
|
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|
|
“
electronic communication”
|
|
shall have the meaning given to those words in the Electronic Commerce Act 2000.
|
|
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|
|
“
electronic signature”
|
|
shall have the meaning given to those words in the Electronic Commerce Act 2000.
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|
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|
|
“
Exchange”
|
|
means any securities exchange or other system on which the Shares of the Company may be listed or otherwise authorised for trading from time to time.
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|
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|
|
“
Exchange Act”
|
|
means the Securities Exchange Act of 1934 of the United States of America.
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|
|
|
|
“Medtronic”
|
|
means Medtronic, Inc., a corporation incorporated in the State of Minnesota.
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|
|
|
|
“
Member”
|
|
means a person who has agreed to become a Member of the Company and whose name is entered in the Register of Members as a registered holder of Shares.
|
8
|
|
|
|
|
“
Memorandum”
|
|
means the memorandum of association of the Company as amended from time to time by Special Resolution.
|
|
|
|
|
“Merger”
|
|
means the merger of MergerSub with and into Medtronic, Inc. with Medtronic, Inc. surviving the merger as a wholly owned indirect subsidiary of the Company, the terms and conditions of which are provided for in that certain
transaction agreement, dated as of June 15, 2014, by and among the Company, Medtronic, Covidien plc and the other parties thereto (as amended from time to time).
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|
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|
|
“Merger Consideration”
|
|
has the meaning set out in Article 185.
|
|
|
|
|
“Merger Effective Time”
|
|
has the meaning set out in Article 185.
|
|
|
|
|
“MergerSub”
|
|
means Aviation Merger Sub, LLC, a limited liability company formed in the State of Minnesota.
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|
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|
|
“
month”
|
|
means a calendar month.
|
|
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|
“
Ordinary Resolution”
|
|
means an ordinary resolution of the Company’s Members within the meaning of section 191 of the Companies Act.
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|
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|
“
paid-up”
|
|
means
paid-up
in accordance with the Companies Act as to the nominal value and any premium payable in respect of the issue of any Shares and includes credited as
paid-up.
|
|
|
|
|
“
Redeemable Shares”
|
|
means redeemable shares in accordance with the Companies Act.
|
|
|
|
|
“
Register of Members”
or
“Register”
|
|
means the register of Members of the Company maintained by or on behalf of the Company, in accordance with the Companies Act and includes (except where otherwise stated) any duplicate Register of Members.
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|
|
|
|
“
registered office”
|
|
means the registered office for the time being of the Company.
|
|
|
|
|
“
Seal”
|
|
means the seal of the Company, if any, and includes every duplicate seal.
|
|
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|
|
“
Secretary”
|
|
means the person appointed by the Board to perform any or all of the duties of secretary of the Company and includes an Assistant Secretary and any person appointed by the Board or the Secretary to perform the duties of secretary
of the Company, in each case, when acting in the capacity of the secretary of the Company.
|
9
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|
|
|
|
“
Share”
and “
Shares”
|
|
means a share or shares in the capital of the Company.
|
|
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|
|
“
Special Resolution”
|
|
means a special resolution of the Company’s Members within the meaning of section 191 of the Companies Act.
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|
2.2.1.
|
words importing the singular number include the plural number and vice-versa;
|
|
|
2.2.2.
|
words importing the feminine gender include the masculine gender and the neuter and vice-versa;
|
|
|
2.2.3.
|
words importing persons include any company, partnership or other body of persons, whether corporate or not, any trust and any government, governmental body or agency or public authority, whether of Ireland or elsewhere
and references to a company, except where used in reference to this Company, shall be deemed to include any person, partnership, limited partnership, limited liability partnership, limited liability company, other corporate body, trust or other body
of persons whether incorporated or not incorporated and whether domiciled in Ireland or elsewhere;
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|
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2.2.4.
|
expressions referring to “written” and “in writing” shall be construed, unless the contrary intention appears, as including references to printing, lithography, photography and any other modes of
representing or reproducing words in a visible form except as provided in these Articles and/or where it constitutes writing in electronic form sent to the Company;
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|
|
2.2.5.
|
expressions referring to execution of any document shall include any mode of execution whether under seal or under hand or any mode of electronic signature;
|
|
|
2.2.6.
|
references to provisions of any law or regulation shall be construed as references to those provisions as amended, modified,
re-enacted
or replaced from time to time;
|
|
|
2.2.7.
|
any phrase introduced by the terms “including”, “include”, “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding
those terms;
|
|
|
2.2.8.
|
reference to “officer” or “officers” in these Articles means any executive that has been designated by the Company as an “officer” and, for the avoidance of doubt, shall not have the
meaning given to such term in the Companies Act and any such officers shall not constitute officers of the Company within the meaning of section 2(1) of the Companies Act;
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|
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2.2.9.
|
headings are inserted for reference only and shall be ignored in construing these Articles;
|
|
|
2.2.10.
|
references to US$, USD, $ or dollars shall mean United States dollars, the lawful currency of the United States of America and references to €, euro, or EUR shall mean the euro, the lawful currency of Ireland.
|
10
REGISTERED OFFICE
|
3.
|
The registered office shall be at such place in Ireland as the Board from time to time shall decide.
|
SHARE CAPITAL; ISSUE OF SHARES
|
4.
|
The authorised share capital of the Company is €40,000 and US$26,260,000 divided into 40,000 Euro Deferred Shares of €1.00 each, 2,600,000,000 Ordinary Shares of US$0.0001 each, 127,500,000 Preferred Shares of
$0.20 each and 500,000 A Preferred Shares of $1.00 each.
|
|
5.
|
Subject to the provisions of these Articles relating to new Shares, the Shares shall be at the disposal of the Directors, and they may (subject to the provisions of the Companies Act) allot, grant options over or
otherwise dispose of them to such persons, on such terms and conditions and at such times as they may consider to be in the best interests of the Company and its Members, but so that no Share shall be issued at a discount save in accordance with
sections 71(4) and 1026 of the Companies Act, and so that, in the case of Shares offered to the public for subscription, the amount payable on application on each such Share shall not be less than
one-quarter
of the nominal amount of the Share and the whole of any premium thereon. To the extent permitted by the Companies Act, Shares may also be allotted by a committee of the Directors or by any other person where such committee or person is so authorised
by the Directors.
|
|
6.
|
Subject to any requirement to obtain the approval of Members under any laws, regulations or the rules of any Exchange, the Board is authorised, from time to time, to grant such persons, for such periods and upon such
terms as the Board deems advisable, options or awards to purchase or subscribe for any number of Shares of any class or classes or of any series of any class and other securities or ownership interests of the Company as the Board may deem advisable,
and to cause warrants or other appropriate instruments evidencing such options or awards to be issued.
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|
|
7.1.
|
The Directors are, for the purposes of section 1021 of the Companies Act, generally and unconditionally authorised to exercise all powers of the Company to allot and issue relevant securities (as defined by the said
section 1021) up to the amount of the Company’s authorised share capital as at the date of adoption of these Articles and to allot and issue any Shares acquired by or on behalf of the Company pursuant to the provisions of the Companies Act and
held as treasury shares and, unless renewed, or a longer period of time is allowed under applicable law, this authority shall expire five years from 26 January 2015.
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|
7.2.
|
The Directors are hereby empowered pursuant to sections 1022 and 1023(3) of the Companies Act to allot equity securities within the meaning of the said section 1023 for cash pursuant to the authority conferred by
Article 7.1 as if section 1022 of the Companies Act did not apply to any such allotment. The Company may before the expiry of any such authority make an offer or agreement which would or might require equity securities to be allotted after such
expiry and the Board may allot equity securities in pursuance of such an offer or agreement as if the power conferred by Article 7.1 had not expired.
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|
|
7.3.
|
The Company may issue permissible letters of allotment (as defined by section 1019 of the Companies Act) to the extent permitted by the Companies Act.
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|
8.
|
Without prejudice to any special rights previously conferred on the holders of any existing Shares or class of Shares or any rights conferred on the Directors pursuant to Article 18, any Share in the Company may be
issued with such preferred or deferred or other special rights or such restrictions, whether in regard to dividend, voting, return of capital or otherwise, as the Company may from time to time by Ordinary Resolution determine.
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|
9.
|
The Company may pay commission to any person in consideration of any person subscribing or agreeing to subscribe,
whether absolutely or conditionally, for the Shares in the Company or procuring or agreeing to procure subscriptions, whether absolute or conditional, for any Shares in the Company
|
11
|
|
on such terms and, subject to the provisions of the Companies Act and to such conditions as the Board may determine, including by paying cash or allotting and issuing fully or partly paid Shares
or any combination of the two. The Company may also on any issue of Shares pay such brokerage as may be lawful.
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ORDINARY
SHARES
|
10.
|
The rights and restrictions attaching to the Ordinary Shares shall be as follows:
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|
|
10.1.
|
subject to the right of the Company to set record dates for the purposes of determining the identity of members entitled to notice of and/or to vote at a general meeting and any rules or regulations applicable to the
conduct of any general meeting of the Company, the right to attend and speak at any general meeting of the Company and to exercise one vote per Ordinary Share held at any general meeting of the Company;
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|
|
10.2.
|
the right to participate pro rata in all dividends declared by the Company with respect to the Ordinary Shares; and
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|
|
10.3.
|
the right, in the event of the Company’s winding up, to participate pro rata with all other Ordinary Shares in the total assets of the Company.
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|
11.
|
The rights attaching to the Ordinary Shares shall be subject to the terms of issue of any series or class of Preferred Shares allotted by the Directors from time to time in accordance with Article 18.
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|
|
12.1.
|
If an Ordinary Share is not listed on a securities market, a regulated market or another market recognised for the purposes of section 1072 of the Companies Act, in each case within the meaning of the Companies Act, it
shall be deemed to be a Redeemable Share on, and from the time of, the existence or creation of an agreement, transaction or trade between the Company (including any agent or broker acting on behalf of the Company) and any person (who may or may not
be a Member) pursuant to which the Company acquires or will acquire Ordinary Shares, or an interest in Ordinary Shares, from the relevant person. In these circumstances, the acquisition of such shares by the Company shall constitute the redemption
of a Redeemable Share in accordance with the Companies Act. No resolution, whether special or otherwise, shall be required to be passed to deem any Ordinary Share a Redeemable Share.
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|
|
12.2.
|
If an Ordinary Share is listed on a securities market, a regulated market or another market recognised for the purposes of section 1072 of the Companies Act, in each case within the meaning of the Companies Act, the
provisions of Article 12.1 shall apply unless the Board resolves, prior to the existence or creation of any relevant arrangement, that the arrangement concerned is to be treated as a purchase of Shares pursuant to Article 36.3, in which case the
arrangement shall be so executed.
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|
13.
|
All Ordinary Shares shall rank
pari passu
with each other in all respects.
|
EURO
DEFERRED SHARES
|
14.
|
The holders of the Euro Deferred Shares shall not be entitled to receive any dividend or distribution and shall not be entitled to receive notice of, nor to attend, speak or vote at, any general meeting of the Company.
On a return of assets, whether on liquidation or otherwise, the Euro Deferred Shares shall entitle the holder thereof only to the repayment of the amounts paid up on such shares after repayment of the capital paid up on the Ordinary Shares plus the
payment of $5,000,000 on each of the Ordinary Shares and the holders of the Euro Deferred Shares (as such) shall not be entitled to any further participation in the assets or profits of the Company.
|
12
|
15.
|
The Special Resolution adopting these Articles passed on the Adoption Date shall be deemed to confer irrevocable authority on the Company at any time after the Adoption Date:
|
|
|
15.1.
|
to acquire all or any of the fully paid Euro Deferred Shares otherwise than for valuable consideration in accordance with section 102 of the Companies Act and without obtaining the sanction of the holders thereof;
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|
|
15.2.
|
to appoint any person to execute on behalf of the holders of the Euro Deferred Shares remaining in issue (if any) a transfer thereof and/or an agreement to transfer the same otherwise than for valuable consideration to
the Company or to such other person as the Company may nominate;
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|
|
15.3.
|
to cancel any acquired Euro Deferred Shares; and
|
|
|
15.4.
|
pending such acquisition and/or transfer and/or cancellation, to retain the certificate (if any) for such Euro Deferred Shares.
|
|
16.
|
In accordance with section 1040(3) of the Companies Act, the Company shall, not later than three (3) years after any acquisition by it of any Euro Deferred Shares as aforesaid, cancel such shares (except those
which, or any interest of the Company in which, it shall have previously disposed of) and reduce the amount of the share capital by the nominal value of the shares so cancelled and the Board may take such steps as are requisite to enable the Company
to carry out its obligations under that subsection without complying with sections 84 and 85 of the Companies Act, including passing resolutions in accordance with section 1040(5) of the Companies Act.
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|
17.
|
Neither the acquisition by the Company otherwise than for valuable consideration of all or any of the Euro Deferred Shares nor the redemption thereof nor the cancellation thereof by the Company in accordance with these
Articles shall constitute a variation or abrogation of the rights or privileges attached to the Euro Deferred Shares, and accordingly the Euro Deferred Shares or any of them may be so acquired, redeemed and cancelled without any such consent or
sanction on the part of the holders thereof. The rights conferred upon the holders of the Euro Deferred Shares shall not be deemed to be varied or abrogated by the creation of further shares ranking in priority thereto or
pari passu
therewith.
|
PREFERRED SHARES
|
18.
|
The Directors are authorised to issue all or any of the authorised but unissued Preferred Shares from time to time in one or more classes or series, and to fix for each such class or series such voting power, full or
limited, or no voting power, and such designations, preferences and relative, participating, optional or other special rights and such qualifications, limitations or restrictions thereof, as shall be stated and expressed in the resolution or
resolutions adopted by the Directors providing for the issuance of such class or series, including the authority to provide that any such class or series may be:
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|
|
18.1.
|
redeemable at the option of the Company, or the holders, or both, with the manner of the redemption to be set by the Directors, and redeemable at such time or times, including upon a fixed date, and at such price or
prices;
|
|
|
18.2.
|
entitled to receive dividends (which may be cumulative or
non-cumulative)
at such rates, on such conditions and at such times, and payable in preference to, or in such relation
to, the dividends payable on any other class or classes of Shares or any other series;
|
|
|
18.3.
|
entitled to such rights upon the dissolution of, or upon any distribution of the assets of, the Company; or
|
13
|
|
18.4.
|
convertible into, or exchangeable for, Shares of any other class or classes of Shares, or of any other series of the same or any other class or classes of Shares, of the Company at such price or prices or at such rates
of exchange and with such adjustments as the Directors determine,
|
which rights and restrictions may be as stated in such
resolution or resolutions of the Directors as determined by them in accordance with this Article 18. The Directors may at any time before the allotment of any Preferred Share by further resolution in any way amend the designations, preferences,
rights, qualifications, limitations or restrictions, or vary or revoke the designations of such Preferred Shares.
|
19.
|
The rights conferred upon the holder of any
pre-existing
Shares in the share capital of the Company shall be deemed not to be varied by the creation, issue and allotment of
Preferred Shares in accordance with Article 18.
|
A PREFERRED SHARES
|
20.
|
The A Preferred Shares shall entitle the holders thereof to the following rights:
|
|
|
20.1.
|
The holder of the A Preferred Shares shall be entitled in priority to any payment of dividend on any other class of Shares in the Company to be paid a dividend in the amount per A Preferred Share equal to twice the
dividend to be paid per Ordinary Share;
|
|
|
20.2.
|
On a return of assets, whether on liquidation or otherwise, the A Preferred Shares shall entitle the holder thereof to repayment of the capital paid up thereon (including any share premium) in priority to any repayment
of capital to the holder(s) of any other Shares and the holders of the A Preferred Shares (as such) shall not be entitled to any further participation in the assets or profits of the Company; and
|
|
|
20.3.
|
The holders of the A Preferred Shares shall not be entitled to receive notice of, nor to attend, speak or vote at any meeting of some or all of the Members of the Company.
|
|
|
21.1.
|
If an A Preferred Share is not listed on a securities market, a regulated market or another market recognised for the purposes of section 1072 of the Companies Act, in each case within the meaning of the Companies Act,
it shall be deemed to be a Redeemable Share on, and from the time of, the existence or creation of an agreement, transaction or trade between the Company (including any agent or broker acting on behalf of the Company) and any person (who may or may
not be a Member) pursuant to which the Company acquires or will acquire A Preferred Shares, or an interest in A Preferred Shares, from the relevant person. In these circumstances, the acquisition of such shares by the Company shall constitute the
redemption of a Redeemable Share in accordance with the Companies Act. No resolution, whether special or otherwise, shall be required to be passed to deem any A Preferred Share a Redeemable Share.
|
|
|
21.2.
|
If an A Preferred Share is listed on a securities market, a regulated market or another market recognised for the purposes of section 1072 of the Companies Act, in each case within the meaning of the Companies Act, the
provisions of Article 21.1 shall apply unless the Board resolves, prior to the existence or creation of any relevant arrangement, that the arrangement concerned is to be treated as a purchase of Shares pursuant to Article 36.3, in which case the
arrangement shall be so executed.
|
14
ISSUE OF WARRANTS
|
22.
|
The Board may issue warrants to subscribe for any class of Shares or other securities of the Company on such terms as it may from time to time determine.
|
CERTIFICATES FOR SHARES
|
23.
|
Unless otherwise provided for by the Board or the rights attaching to or by the terms of issue of any particular Shares, or to the extent required by the Companies Act, any Exchange, depository or any operator of any
clearance or settlement system, no person whose name is entered as a Member in the Register of Members shall be entitled to receive a share certificate for any Shares of any class held by him or her (nor on transferring a part of holding, to a
certificate for the balance).
|
|
24.
|
Any share certificate, if issued, shall specify the number of Shares in respect of which it is issued and the amount paid thereon or the fact that they are fully paid, as the case may be, and may otherwise be in such
form as shall be determined by the Board. Such certificates may be under Seal. All certificates for Shares shall be consecutively numbered or otherwise identified and shall specify the Shares to which they relate. The name and address of the person
to whom the Shares represented thereby are issued, with the number of Shares and date of issue, shall be entered in the Register of Members of the Company. All certificates surrendered to the Company for transfer shall be cancelled and no new
certificate shall be issued until the former certificate for a like number of Shares shall have been surrendered and cancelled. The Board may authorise certificates to be issued with the Seal and authorised signature(s) affixed by some method or
system of mechanical process. In respect of a Share or Shares held jointly by several persons, the Company shall not be bound to issue a certificate or certificates to each such person, and the issue and delivery of a certificate or certificates to
one of several joint holders shall be sufficient delivery to all such holders.
|
|
25.
|
If a share certificate is defaced, worn out, lost or destroyed, it may be renewed on such terms (if any) as to evidence and indemnity and on the payment of such expenses reasonably incurred by the Company in
investigating such evidence, as the Board may prescribe, and, in the case of defacement or wearing out, upon delivery of the old certificate.
|
REGISTER OF MEMBERS
|
26.
|
The Company shall maintain or cause to be maintained a Register of its Members in accordance with the Companies Act.
|
|
27.
|
If the Board considers it necessary or appropriate, the Company may establish and maintain a duplicate Register or Registers of Members at such location or locations within or outside Ireland as the Board thinks fit.
The original Register of Members shall be treated as the Register of Members for the purposes of these Articles and the Companies Act.
|
|
28.
|
The Company, or any agent(s) appointed by it to maintain the duplicate Register of Members in accordance with these Articles, shall as soon as practicable and on a regular basis record, or procure the recording of, in
the original Register of Members all transfers of Shares effected on any duplicate Register of Members and shall at all times maintain the original Register of Members in such manner as to show at all times the Members for the time being and the
Shares respectively held by them, in all respects in accordance with the Companies Act.
|
|
29.
|
The Company shall not be bound to register more than four (4) persons as joint holders of any Share. If any Share shall stand in the names of two (2) or more persons, the person first named in the Register of
Members shall be deemed the sole holder thereof as regards service of notices and, subject to the provisions of these Articles, all or any other matters connected with the Company.
|
TRANSFER OF SHARES
|
30.
|
Subject to such of the restrictions of these Articles and to such of the conditions of issue or transfer as may
be applicable, all transfers of Shares shall be effected by an instrument in writing (an “
instrument
|
15
|
|
of transfer
”) in such form as the Board or the Secretary may approve. All such instruments of transfer must be left at the registered office or at such other place as the Board or the
Secretary may specify and all such instruments of transfer shall be retained by the Company.
|
|
|
31.1.
|
The instrument of transfer of any Share shall be executed by the transferor or alternatively for and on behalf of the transferor by the Secretary (or such other person as may be nominated by the Secretary for this
purpose) on behalf of the Company, and the Secretary (or relevant nominee), acting on behalf of the Company, shall be deemed to have been irrevocably appointed agent for the transferor of such Share or Shares with full power to execute, complete and
deliver in the name of and on behalf of the transferor of such Share or Shares all such transfers of Shares held by the Members in the share capital of the Company. An instrument of transfer need not be executed by the transferee except to the
extent required by the Companies Act. Any document which records the name of the transferor, the name of the transferee, the class and number of Shares agreed to be transferred, details of the total consideration payable and the date of the
agreement to transfer the Shares, shall, once executed in accordance with this Article, be deemed to be a proper instrument of transfer for the purposes of section 94 of the Companies Act.
|
|
|
31.2.
|
The transferor shall be deemed to remain the holder of the Share until the name of the transferee is entered on the Register in respect thereof, and neither the title of the transferee nor the title of the transferor
shall be affected by any irregularity or invalidity in the proceedings in reference to the sale should the Board so determine.
|
|
|
31.3.
|
The Company, insofar as the Companies Act or any other applicable law permits, may, or may procure that a subsidiary of the Company shall, pay Irish stamp duty arising on a transfer of Shares on behalf of the transferee
of such Shares of the Company. If stamp duty resulting from the transfer of Shares in the Company which would otherwise be payable by the transferee is paid by the Company or any subsidiary of the Company on behalf of the transferee, then in those
circumstances, the Company shall, on its behalf or on behalf of its subsidiary (as the case may be), be entitled, but not required, to (i) seek reimbursement of the stamp duty from the transferee,
(ii) set-off
the stamp duty against any dividends payable to the transferee of those Shares or (iii) claim a first and permanent lien on the Shares on which stamp duty has been paid by the Company or
its subsidiary for the amount of stamp duty paid.
|
|
|
31.4.
|
Notwithstanding the provisions of these Articles and subject to any regulations made under section 1086 of the Companies Act or the 1990 Regulations, title to any Shares in the Company may also be evidenced and
transferred without a written instrument in accordance with section 1086 of the Companies Act or any regulations made thereunder or the 1990 Regulations. The Board shall have power to permit any class of Shares to be held in uncertificated form and
to implement any arrangements they think fit for such evidencing and transfer which accord with such regulations and in particular shall, where appropriate, be entitled to disapply or modify all or part of the provisions in these Articles with
respect to the requirement for written instruments of transfer and share certificates (if any), in order to give effect to such regulations.
|
|
32.
|
The Board may, without assigning any reason for its decision, decline to register any transfer of any Share which is not a fully paid Share. The Board may also, without assigning any reason, refuse to register a
transfer of any Share unless:
|
|
|
32.1.
|
the instrument of transfer is fully and properly completed and is lodged with the Company accompanied by the certificate for the Shares (if any) to which it relates (which shall upon registration of the transfer be
cancelled) and such other evidence as the Board may reasonably require to show the right of the transferor to make the transfer;
|
|
|
32.2.
|
the instrument of transfer is in respect of only one class of Shares;
|
16
|
|
32.3.
|
a registration statement under the Securities Act of 1933 of the United States of America is in effect with respect to such transfer or such transfer is exempt from registration and, if requested by the Board, a written
opinion from counsel reasonably acceptable to the Board is obtained to the effect that such transfer is exempt from registration;
|
|
|
32.4.
|
the instrument of transfer is properly stamped (in circumstances where stamping is required);
|
|
|
32.5.
|
in the case of a transfer to joint holders, the number of joint holders to which the Share is to be transferred does not exceed four;
|
|
|
32.6.
|
it is satisfied, acting reasonably, that all applicable consents, authorisations, permissions or approvals of any governmental body or agency in Ireland or any other applicable jurisdiction required to be obtained under
relevant law prior to such transfer have been obtained; and
|
|
|
32.7.
|
it is satisfied, acting reasonably, that the transfer would not violate the terms of any agreement to which the Company (or any of its subsidiaries) and the transferor are party or subject.
|
|
33.
|
If the Board shall refuse to register a transfer of any Share, it shall, within two (2) months after the date on which the transfer was lodged with the Company, send to each of the transferor and the transferee
notice of such refusal.
|
|
34.
|
The Company shall not be obligated to make any transfer to an individual under 18 years of age or to a person in respect of whom an order has been made by a competent court or official on the grounds that he or she is
or may be suffering from mental disorder or is otherwise incapable of managing his or her affairs or under other legal disability.
|
|
35.
|
Upon every transfer of Shares, the certificate (if any) held by the transferor shall be given up to be cancelled, and shall forthwith be cancelled accordingly, and subject to Article 23 a new certificate may be issued
without charge to the transferee in respect of the Shares transferred to him or her, and if any of the Shares included in the certificate so given up shall be retained by the transferor, a new certificate in respect thereof may be issued to him or
her without charge.
|
REDEMPTION AND REPURCHASE OF SHARES
|
36.
|
Subject to the provisions Chapter 6 of Part 3 and Chapter 5 of Part 17 of the Companies Act and the other provisions of this Article 36, the Company may:
|
|
|
36.1.
|
pursuant to section 66(4) of the Companies Act, issue any Shares of the Company which are to be redeemed or are liable to be redeemed at the option of the Company or the Member on such terms and in such manner as may be
determined by the Company in general meeting (by Special Resolution) on the recommendation of the Board;
|
|
|
36.2.
|
redeem Shares of the Company on such terms as may be contained in, or be determined pursuant to the provisions of, these Articles. Subject as aforesaid, the Company may cancel any Shares so redeemed or may hold them as
treasury shares (as defined by section 106(1) of the Companies Act) and
re-issue
such treasury shares as Shares of any class or classes or cancel them;
|
|
|
36.3.
|
subject to or in accordance with the provisions of the Companies Act and without prejudice to any relevant special rights attached to any class of Shares, pursuant to section 105 and Chapter 5 of Part 17 of the
Companies Act, purchase any of its own Shares (including any Redeemable Shares and without any obligation to purchase on any
pro rata
basis as between Members or Members of the same class) and may cancel any Shares so purchased or hold them
as treasury shares (as defined by section 106(1) of the Companies Act) and may
re-issue
any such Shares as Shares of any class or classes or cancel them; or
|
17
|
|
36.4.
|
convert any of its Shares into Redeemable Shares provided that the total number of Shares which shall be redeemable pursuant to this authority shall not exceed the limit in section 1071(b) of the Companies Act. No
resolution of Members, whether special or otherwise, shall be required to be passed to convert any of the Company’s Shares into Redeemable Shares.
|
|
37.
|
The Company may make a payment in respect of the redemption or purchase of its own Shares in any manner permitted by the Companies Act.
|
|
38.
|
The holder of the Shares being redeemed or purchased shall be bound to deliver up to the Company at its registered office or such other place as the Board shall specify, the certificate(s) (if any) thereof for
cancellation and thereupon the Company shall pay to him or her the purchase or redemption monies or consideration in respect thereof.
|
VARIATION OF RIGHTS OF SHARES
|
39.
|
Without prejudice to the authority conferred on the Directors pursuant to Article 18 to issue Preferred Shares in the capital of the Company, if at any time the share capital of the Company is divided into different
classes or series of Shares, the rights attached to any class or series (unless otherwise provided by the terms of issue of the Shares of that class or series) may be varied or abrogated with the consent in writing of the holders of a majority of
the issued Shares of that class or series entitled to vote on such variation or abrogation, or with the sanction of an Ordinary Resolution passed at a general meeting of the holders of the Shares of that class or series.
|
|
40.
|
The provisions of these Articles relating to general meetings of the Company shall apply
mutatis mutandis
to every such general meeting of the holders of one class or series of Shares except that the necessary
quorum shall be one or more persons holding or representing by proxy at least a majority of the issued Shares of the class or series.
|
|
41.
|
The rights conferred upon the holders of the Shares of any class or series issued with preferred or other rights shall not, unless otherwise expressly provided by the terms of issue of the Shares of that class or
series, be deemed to be varied by (i) the creation or issue of further Shares ranking
pari passu
therewith; (ii) a purchase or redemption by the Company of its own Shares; or (iii) the creation or issue for value (as determined
by the Board) of further Shares ranking as regards participation in the profits or assets of the Company or otherwise in priority to them. For the avoidance of doubt:
|
|
|
41.1.
|
the issue, redemption or purchase of any of the 127,500,000 Preferred Shares of US$0.20 each shall not constitute a variation of the rights of the holders of Ordinary Shares; and
|
|
|
41.2.
|
the issue of Preferred Shares or any class or series of Preferred Shares which rank
pari passu
with, or junior to, any existing Preferred Shares or class or series of Preferred Shares shall not constitute a
variation of the existing Preferred Shares or class or series of Preferred Shares.
|
LIEN ON SHARES
|
42.
|
The Company shall have a first and paramount lien on every Share (not being a fully paid Share) for all monies (whether presently payable or not) payable at a fixed time or called in respect of that Share. The Board, at
any time, may declare any Share to be wholly or in part exempt from the provisions of this Article 42. The Company’s lien on a Share shall extend to all monies payable in respect of it.
|
|
43.
|
The Company may sell in such manner as the Board determines any Share on which the Company has a lien if a sum in respect of which the lien exists is presently payable and is not paid within fourteen (14) clear
days after notice demanding payment, stating that if the notice is not complied with the Share may be sold, has been given to the holder of the Share or to the person entitled to it by reason of the death or bankruptcy of the holder.
|
|
44.
|
To give effect to a sale, the Board may authorise some person to execute an instrument of transfer of the
Share(s) sold to, or in accordance with, the directions of the transferee. The transferee shall be
|
18
|
|
entered in the Register as the holder of the Share(s) comprised in any such transfer and he or she shall not be bound to see to the application of the purchase monies nor shall his or her title
to the Share be affected by any irregularity in, or invalidity of, the proceedings in reference to the sale, and after the name of the transferee has been entered in the Register, the remedy of any person aggrieved by the sale shall be in damages
only and against the Company exclusively.
|
|
45.
|
The net proceeds of the sale, after payment of the costs, shall be applied in payment of so much of the sum for which the lien exists as is presently payable and any residue (upon surrender to the Company for
cancellation of the certificate for the Shares sold and subject to a like lien for any monies not presently payable as existed upon the Shares before the sale) shall be paid to the person entitled to the Shares at the date of the sale.
|
|
46.
|
Whenever any law for the time being of any country, state or place imposes or purports to impose any immediate or future or possible liability upon the Company to make any payment or empowers any government or taxing
authority or government official to require the Company to make any payment in respect of any Shares registered in the Register as held either jointly or solely by any Members or in respect of any dividends, bonuses or other monies due or payable or
accruing due or which may become due or payable to such Member by the Company on, or in respect of, any Shares registered as mentioned above or for or on account or in respect of any Member and whether in consequence of:
|
|
|
a)
|
the death of such Member;
|
|
|
b)
|
the
non-payment
of any income tax or other tax by such Member;
|
|
|
c)
|
the
non-payment
of any estate, probate, succession, death, stamp or other duty by the executor or administrator of such Member or by or out of his or her estate; or
|
|
|
d)
|
any other act or thing;
|
in every such case (except to the extent that the rights conferred
upon holders of any class of Shares renders the Company liable to make additional payments in respect of sums withheld on account of the foregoing):
|
|
46.1.
|
the Company shall be fully indemnified by such Member or his or her executor or administrator from all liability;
|
|
|
46.2.
|
the Company shall have a lien upon all dividends and other monies payable in respect of the Shares registered in the Register as held either jointly or solely by such Member for all monies paid or payable by the Company
as referred to above in respect of such Shares or in respect of any dividends or other monies thereon or for or on account or in respect of such Member under or in consequence of any such law, together with interest at the rate of fifteen percent
(15%) per annum (or such other rate as the Board may determine) thereon from the date of payment to date of repayment, and the Company may deduct or set off against such dividends or other monies so payable any monies paid or payable by the Company
as referred to above together with interest at the same rate;
|
|
|
46.3.
|
the Company may recover as a debt due from such Member or his or her executor or administrator (wherever constituted) any monies paid by the Company under or in consequence of any such law and interest thereon at the
rate and for the period referred to above in excess of any dividends or other monies then due or payable by the Company; and
|
|
|
46.4.
|
the Company may, if any such money is paid or payable by it under any such law as referred to above, refuse to register a transfer of any Shares by any such Member or his or her executor or administrator until such
money and interest is set off or deducted as referred to above or, in the case that it exceeds the amount of any such dividends or other monies then due or payable by the Company, until such excess is paid to the Company.
|
19
|
47.
|
Subject to the rights conferred upon the holders of any class of Shares, nothing in Article 46 will prejudice or affect any right or remedy which any law may confer or purport to confer on the Company. As between the
Company and every such Member as referred to above (and, his or her executor, administrator and estate, wherever constituted), any right or remedy which such law shall confer or purport to confer on the Company shall be enforceable by the Company.
|
CALLS ON SHARES
|
48.
|
Subject to the terms of allotment, the Board may make calls upon the Members in respect of any monies unpaid on their Shares and each Member (subject to receiving at least fourteen (14) clear days’ notice
specifying when and where payment is to be made) shall pay to the Company as required by the notice the amount called on his or her Shares. A call may be required or permitted to be paid in instalments. A call may be revoked before receipt by the
Company of a sum due thereunder, in whole or in part, and payment of a call may be postponed in whole or in part.
|
|
49.
|
A call shall be deemed to have been made at the time when the resolution of the Board authorising the call was passed.
|
|
50.
|
A person on whom a call is made shall (in addition to a transferee) remain liable notwithstanding the subsequent transfer of the Share in respect of which the call is made.
|
|
51.
|
The joint holders of a Share shall be jointly and severally liable to pay all calls in respect thereof.
|
|
52.
|
If a call remains unpaid after it has become due and payable, the person from whom it is due and payable shall pay interest on the amount unpaid from the day it became due until it is paid at the rate fixed by the terms
of allotment of the Share or in the notice of the call or, if no rate is fixed, at the appropriate rate (as defined by the Companies Act), but the Board may waive payment of the interest wholly or in part.
|
|
53.
|
An amount payable in respect of a Share on allotment or at any fixed date, whether in respect of nominal value or by way of premium, shall be deemed to be a call and, if it is not paid, the provisions of these Articles
shall apply as if that amount had become due and payable by virtue of a call.
|
|
54.
|
Subject to the terms of allotment, the Board may make arrangements on the issue of Shares for a difference between the holders in the amounts and times of payment of calls on their Shares.
|
|
55.
|
The Directors may, if they think fit, receive from any Member willing to advance the same all or any part of the monies uncalled and unpaid upon any Shares held by him or her, and upon all or any of the monies so
advanced may pay (until the same would, but for such advance, become payable) interest at such rate as may be agreed upon between the Directors and the Member paying such sum in advance.
|
FORFEITURE
|
56.
|
If a Member fails to pay any call or instalment of a call on the day appointed for payment thereof, the Directors, at any time thereafter during such times as any part of the call or instalment remains unpaid, may serve
a notice on him or her requiring payment of so much of the call or instalment as is unpaid together with any interest which may have accrued.
|
|
57.
|
The notice shall state a further day (not earlier than the expiration of fourteen (14) clear days from the date of service of the notice) on or before which the payment required by the notice is to be made, and
shall state that in the event of
non-payment
at or before the time appointed, the Shares in respect of which the call was made will be liable to be forfeited.
|
|
58.
|
If the requirements of any such notice as aforesaid are not complied with, then at any time thereafter before the payment required by the notice has been made, any Shares in respect of which the notice has been given
may be forfeited by a resolution of the Directors to that effect. The forfeiture shall include all dividends or other monies payable in respect of the forfeited Shares and not paid before forfeiture. The Board may accept a surrender of any Share
liable to be forfeited hereunder.
|
20
|
59.
|
On the trial or hearing of any action for the recovery of any money due for any call, it shall be sufficient to prove that the name of the Member sued is entered in the Register as the holder, or one of the holders, of
the Shares in respect of which such debt accrued, that the resolution making the call is duly recorded in the minute book and that notice of such call was duly given to the Member sued, in pursuance of these Articles, and it shall not be necessary
to prove the appointment of the Directors who made such call nor any other matters whatsoever, but the proof of the matters aforesaid shall be conclusive evidence of the debt.
|
|
60.
|
A forfeited Share may be sold or otherwise disposed of on such terms and in such manner as the Directors think fit and at any time before a sale or disposition the forfeiture may be cancelled on such terms as the
Directors think fit. Where for the purposes of its disposal, such a Share is to be transferred to any person, the Board may authorise some person to execute an instrument of transfer of the Share to that person. The Company may receive the
consideration, if any, given for the Share on any sale or disposition thereof and may execute a transfer of the Share in favour of the person to whom the Share is sold or disposed of and thereupon he or she shall be registered as the holder of the
Share and shall not be bound to see to the application of the purchase money, if any, nor shall his or her title to the Share be affected by any irregularity or invalidity in the proceedings in reference to the forfeiture, sale or disposal of the
Share.
|
|
61.
|
A person whose Shares have been forfeited shall cease to be a Member in respect of the forfeited Shares, but nevertheless shall remain liable to pay to the Company all monies which, at the date of forfeiture, were
payable by him or her to the Company in respect of the Shares, without any deduction or allowance for the value of the Shares at the time of forfeiture but his or her liability shall cease if and when the Company shall have received payment in full
of all such monies in respect of the Shares.
|
|
62.
|
A statement in writing that the maker of the statement is a Director or the Secretary of the Company, and that a Share in the Company has been duly forfeited on the date stated in the statement, shall be conclusive
evidence of the facts therein stated as against all persons claiming to be entitled to the Share.
|
|
63.
|
The provisions of these Articles as to forfeiture shall apply in the case of
non-payment
of any sum which, by the terms of issue of a Share, becomes payable at a fixed time,
whether on account of the nominal value of the Share or by way of premium, as if the same had been payable by virtue of a call duly made and notified.
|
|
64.
|
The Directors may accept the surrender of any Share which the Directors have resolved to have been forfeited upon such terms and conditions as may be agreed and, subject to any such terms and conditions, a surrendered
Share shall be treated as if it has been forfeited.
|
NON-RECOGNITION
OF TRUSTS
|
65.
|
The Company shall not be obligated to recognise any person as holding any Share upon any trust (except as is otherwise provided in these Articles or to the extent required by law) and the Company shall not be bound by
or be compelled in any way to recognise (even when having notice thereof) any equitable, contingent, future, or partial interest in any Share, or any interest in any fractional part of a Share, or (except only as is otherwise provided by these
Articles or the Companies Act) any other rights in respect of any Share except an absolute right to the entirety thereof in the registered holder. This shall not preclude the Company from requiring the Members or a transferee of Shares to furnish
the Company with information as to the beneficial ownership of any Share when such information is reasonably required by the Company.
|
21
TRANSMISSION OF SHARES
|
66.
|
If a Member dies, the survivor or survivors where the deceased was a joint holder, and the legal personal representatives of the deceased where he or she was a sole holder or the only survivor of joint holders, shall be
the only persons recognised by the Company as having any title to his or her interest in the Shares; but nothing herein contained shall release the estate of any deceased holder from any liability in respect of any Share which had been jointly held
by him or her solely or jointly with other persons.
|
|
67.
|
A person becoming entitled to a Share in consequence of the death, bankruptcy, liquidation or insolvency of a Member, or otherwise becoming entitled to a Share by operation of any law, directive or regulation (whether
of Ireland, the European Union, or any other jurisdiction) may elect, upon such evidence of title being produced as the Directors or the Secretary (or such other person as may be nominated by the Secretary for this purpose) may reasonably require at
any time and from time to time, and subject as further provided in this Article, either to become the holder of the Share or to have some person nominated by him or her registered as the transferee. If he or she elects to become the holder of the
Share, he or she shall give notice to the Company to that effect and, where the Directors or the Secretary (or such other person as may be nominated by the Secretary for this purpose) are satisfied with the evidence of title produced to them, they
may register such persons as the holder of the Share, subject to the other provisions of these Articles and of the Companies Act. If he or she elects to have another person registered, he or she shall execute an instrument of transfer of the Share
to that person. All of these Articles relating to the transfer of Shares shall apply to the notice or instrument of transfer as if it were an instrument of transfer executed by the Member and the event giving rise to the entitlement of the relevant
person to the Shares had not occurred.
|
|
68.
|
A person becoming entitled to a Share by transmission shall have the rights to which he or she would be entitled if he or she were the holder of the Share (including the right to receive and give a valid discharge for
any dividends, distributions or other moneys payable on or in respect of the Share), except that, before being registered as the holder of the Share, he or she shall not be entitled in respect of it to receive notices of, or to attend or vote at,
any meeting of the Company or at any separate meeting of holders of any class of Shares in the Company, so, however, that the Directors or the Secretary (or such other person as may be nominated by the Secretary for this purpose), at any time, may
give notice requiring any such person to elect either to be registered himself or herself or to transfer the Share and, if the notice is not complied with within ninety (90) days, the Directors or the Secretary (or such other person as may be
nominated by the Secretary for this purpose) thereupon may withhold payment of all dividends, bonuses or other monies payable in respect of the Share until the requirements of the notice have been complied with.
|
AMENDMENT OF MEMORANDUM OF ASSOCIATION;
CHANGE OF LOCATION OF REGISTERED OFFICE; AND
ALTERATION OF CAPITAL
|
69.
|
The Company may by Ordinary Resolution (or as otherwise provided in these Articles or permitted under applicable law):
|
|
|
69.1.
|
divide its share capital into several classes and attach to them respectively any preferential, deferred, qualified or special rights, privileges or conditions;
|
|
|
69.2.
|
increase the authorised share capital by such sum to be divided into Shares of such nominal value, as such Ordinary Resolution shall prescribe;
|
|
|
69.3.
|
consolidate and divide all or any of its share capital into Shares of larger amount than its existing Shares;
|
|
|
69.4.
|
by subdivision of its existing Shares or any of them, divide the whole or any part of its share capital into Shares of smaller nominal value than is fixed by the Memorandum subject to section 83(1)(b) of the Companies
Act, so, however, that in the
sub-division,
the proportion between the amount paid and the amount, if any, unpaid on each reduced Share shall be the same as it was in the case of the Share from which the
reduced Share is derived;
|
22
|
|
69.5.
|
cancel any Shares that at the date of the passing of the relevant Ordinary Resolution have not been taken or agreed to be taken by any person; and
|
|
|
69.6.
|
subject to applicable law, change the currency denomination of its share capital.
|
|
70.
|
Subject to the provisions of the Companies Act, the Company may:
|
|
|
70.1.
|
by Special Resolution (or as otherwise required or permitted by applicable law) change its name, alter or add to the Memorandum with respect to any objects, powers or other matters specified therein or alter or add to
these Articles;
|
|
|
70.2.
|
by Special Resolution (or as otherwise required or permitted by applicable law, including without limitation, section 83(1)(c) of the Companies Act) reduce its issued share capital and any capital redemption reserve
fund, share premium account or undenominated capital account. In relation to such reductions, the Company may by Special Resolution (or as otherwise required or permitted by applicable law) determine the terms upon which the reduction is to be
effected, including in the case of a reduction of part only of any class of Shares, those Shares to be affected; and
|
|
|
70.3.
|
by resolution of the Directors, change the location of its registered office.
|
|
71.
|
Whenever as a result of an alteration or reorganisation of the share capital of the Company any Members would become entitled to fractions of a Share, the Board may, on behalf of those Members, sell the Shares
representing the fractions for the best price reasonably obtainable to any person and distribute the proceeds of sale in due proportion among those Members, and the Board may authorise any person to execute an instrument of transfer of the Shares
to, or in accordance with the directions of, the purchaser. The transferee shall not be bound to see to the application of the purchase money nor shall his or her title to the Shares be affected by any irregularity in or invalidity of the
proceedings in reference to the sale.
|
CLOSING REGISTER OF MEMBERS OR FIXING RECORD DATE
|
72.
|
For the purpose of determining Members entitled to notice of or to vote at any meeting of Members or any adjournment thereof, or Members entitled to receive payment of any dividend, or in order to make a determination
of Members for any other proper purpose, the Board may provide, subject to the requirements of section 174 of the Companies Act, that the Register of Members shall be closed for transfers at such times and for such periods, not exceeding in the
whole thirty (30) days in each year. If the Register of Members shall be so closed for the purpose of determining Members entitled to notice of, or to vote at, a meeting of Members, such Register of Members shall be so closed for at least five
(5) days immediately preceding such meeting and the record date for such determination shall be the date of the closure of the Register of Members.
|
|
73.
|
In lieu of, or apart from, closing the Register of Members, the Board may fix in advance a date as the record date (a) for any such determination of Members entitled to notice of or to vote at a meeting of the
Members, which record date shall not be more than sixty (60) days before the date of such meeting, and (b) for the purpose of determining the Members entitled to receive payment of any dividend or other distribution, or in order to make a
determination of Members for any other proper purpose, which record date shall not be more than sixty (60) days prior to the date of payment of such dividend or other distribution or the taking of any action to which such determination of
Members is relevant.
|
|
74.
|
If the Register of Members is not so closed and no record date is fixed for the determination of Members entitled to notice of or to vote at a meeting of Members, the date immediately preceding the date on which notice
of the meeting is deemed given under these Articles shall be the record date for such determination of Members. Where a determination of Members entitled to vote at any meeting of Members has been made as provided in these Articles, such
determination shall apply to any adjournment thereof; provided, however, that the Directors may fix a new record date of the adjourned meeting, if they think fit.
|
23
GENERAL MEETINGS
|
75.
|
The Board shall convene and the Company shall hold annual general meetings in accordance with the requirements of the Companies Act.
|
|
76.
|
The Board may, whenever it thinks fit, and shall, on the requisition in writing of any two Directors, the Chief Executive Officer, the Chief Financial Officer or Members holding such number of Shares as is prescribed
by, and made in accordance with the Companies Act, convene a general meeting in the manner required by the Companies Act. All general meetings other than annual general meetings shall be called extraordinary general meetings. Where any provision of
the Companies Act confers rights on the members of a company to convene a general meeting without first directing the board of directors to convene a general meeting and expresses such rights to apply save where a company’s articles of
association or constitution provides otherwise, such rights shall not apply to the Members of the Company.
|
|
77.
|
The Company shall in each year hold a general meeting as its annual general meeting in addition to any other meeting in that year, and shall specify the meeting as such in the notice calling it. Not more than fifteen
(15) months shall elapse between the date of one annual general meeting of the Company and that of the next. Each general meeting shall be held at such time and place as designated by the Board and as specified in the notice of meeting. Subject
to section 176 of the Companies Act, all general meetings may be held outside of Ireland.
|
|
78.
|
The Board may authorise the Secretary to postpone any general meeting called in accordance with the provisions of these Articles (other than a meeting requisitioned by the Members in accordance with the Companies Act or
the postponement of which would be contrary to the Companies Act, law or a Court order pursuant to the Companies Act) if the Board considers that, for any reason, it is impractical or unreasonable to hold the general meeting, provided that notice of
postponement is given to each Member before the time for such meeting. Fresh notice of the date, time and place for the postponed meeting shall be given to each Member in accordance with the provisions of these Articles.
|
NOTICE OF GENERAL MEETINGS
|
79.
|
Subject to the provisions of the Companies Act allowing a general meeting to be called by shorter notice, an annual general meeting, and an extraordinary general meeting called for the passing of a Special Resolution,
shall be called on at least
twenty-one
(21) clear days’ notice and all other extraordinary general meetings shall be called on at least fourteen (14) clear days’ notice. Such notice shall
state the date, time, place of the meeting and the general nature of the business to be considered. Every notice shall specify such other details as are required by applicable law or the relevant code, rules and regulations applicable to the listing
of the Shares on any Exchange.
|
|
80.
|
A general meeting of the Company shall, whether or not the notice specified in Article 79 has been given and whether or not the provisions of the Articles regarding general meetings have been complied with, be deemed to
have been duly convened if applicable law so permits and it is so agreed by the Auditors and by all the Members entitled to attend and vote thereat or by their proxies.
|
|
81.
|
The notice convening an annual general meeting shall specify the meeting as such, and the notice convening a meeting to pass a Special Resolution shall specify the intention to propose the resolution as a Special
Resolution. Notice of every general meeting shall be given in any manner permitted by these Articles to all Members.
|
|
82.
|
There shall appear with reasonable prominence in every notice of general meetings of the Company a statement that a Member entitled to attend and vote is entitled to appoint one or more proxies to attend and vote
instead of him or her and that a proxy need not be a Member of the Company.
|
24
|
83.
|
The accidental omission to give notice of a general meeting to, or the
non-receipt
of notice of a meeting by, any person entitled to receive notice shall not invalidate the
proceedings of that meeting.
|
|
84.
|
In cases where instruments of proxy are sent out with notices, the accidental omission to send such instrument of proxy to, or the
non-receipt
of such instrument of proxy by, any
person entitled to receive notice shall not invalidate any resolution passed or any proceeding at any such meeting. A Member present, either in person or by proxy, at any general meeting of the Company or of the holders of any class of Shares in the
Company will be deemed to have received notice of that meeting and, where required, of the purpose for which it was called.
|
PROCEEDINGS AT GENERAL MEETINGS
|
85.
|
The business of annual general meetings shall include:
|
|
|
85.1.
|
the consideration of the Company’s statutory financial statements and the report of the Directors and the report of the Auditors on those statements and that report;
|
|
|
85.2.
|
the review by the Members of the Company’s affairs;
|
|
|
85.3.
|
the appointment or
re-appointment
of Auditors;
|
|
|
85.4.
|
the authorisation of the Directors to approve the remuneration of the Auditors; and
|
|
|
85.5.
|
the election and
re-election
of Directors.
|
|
86.
|
No business shall be transacted at any general meeting unless a quorum is present. One or more Members present in person or by proxy holding not less than a majority of the issued and outstanding Shares of the Company
entitled to vote at the meeting in question shall be a quorum.
|
|
87.
|
In case a quorum is not present at a meeting convened upon the requisition of Members, the meeting may be adjourned from time to time without notice other than announcement at the time of adjournment of the date, time
and place at which the meeting will be reconvened.
|
|
88.
|
If the Board wishes to make this facility available to Members for a specific or all general meetings of the Company, a Member may participate in any general meeting of the Company, by means of a telephone, video,
electronic or similar communication equipment by way of which all persons participating in such meeting can communicate with each other simultaneously and instantaneously and such participation shall be deemed to constitute presence in person at the
meeting.
|
|
89.
|
Each Director and the Auditors shall be entitled to attend and speak at any general meeting of the Company.
|
|
90.
|
The Chairperson, or in his absence, some other Director nominated by the Directors shall preside at every general meeting of the Company, but if at any meeting neither the Chairperson, nor such other Director, is
present within fifteen minutes after the time appointed for the holding of the meeting, or if none of them are willing to act as Chairperson, the Directors present shall choose some Director present to be Chairperson, or if no Director is present,
or if all the Directors present decline to take the chair, the Members present shall choose some Member present to be Chairperson.
|
|
91.
|
The Chairperson of the meeting may, and shall if so directed by the meeting (upon the passage of an Ordinary Resolution), adjourn the meeting from time to time and from place to place, but no business shall be
transacted at any adjourned meeting other than the business left unfinished, or which might have been transacted, at the meeting from which the adjournment took place. When a general meeting is adjourned for thirty (30) days or more, notice of
the adjourned meeting shall be given as in the case of an original meeting; save as aforesaid it shall not be necessary to give any notice of an adjournment or of the business to be transacted at an adjourned general meeting.
|
25
|
|
92.1.
|
Subject to the Companies Act, a resolution may only be put to a vote at a general meeting of the Company or of any class of Members if:
|
|
|
a)
|
it is specified in the notice of meeting;
|
|
|
b)
|
it is proposed by or at the direction of the Board;
|
|
|
c)
|
it is proposed at the direction of a court of competent jurisdiction;
|
|
|
d)
|
it is proposed pursuant to, and in accordance with, the procedures and requirements of Article 93 or 155;
|
|
|
e)
|
it is proposed on the requisition in writing of such number of Members as is prescribed by, and is made in accordance with, section 178(3) of the Companies Act; or
|
|
|
f)
|
the Chairperson of the meeting decides that the resolution may properly be regarded as within the scope of the meeting.
|
|
|
92.2.
|
No amendment may be made to a resolution, at or before the time when it is put to a vote, unless the Chairperson of the meeting decides that the amendment or the amended resolution may properly be put to a vote at that
meeting.
|
|
|
92.3.
|
If the Chairperson of the meeting rules a resolution or an amendment to a resolution admissible or out of order (as the case may be), the proceedings of the meeting or on the resolution in question shall not be
invalidated by any error in his or her ruling. Any ruling by the Chairperson of the meeting in relation to a resolution or an amendment to a resolution shall be final and conclusive.
|
|
|
93.1.
|
For business to be properly requested by a Member to be brought before a general meeting (other than nominations of directors, which may only be made in accordance with Article 155), the Member must:
|
|
|
a)
|
be a Member of the Company at the time of the giving of the notice for such general meeting;
|
|
|
b)
|
be entitled to vote at such meeting; and
|
|
|
c)
|
have given timely and proper notice in writing to the Secretary in accordance with this Article 93.
|
|
|
93.2.
|
To be timely for a general meeting, a Member’s notice to the Secretary must be delivered to or mailed and received at the registered office of the Company not less than fifty (50) days nor (except for
shareholder proposals subject to
Rule14a-8(a)(3)(i)
of the Exchange Act) more than ninety (90) days prior to the meeting, provided, however, that in the event that less than sixty (60) days’
notice or prior public disclosure of the date of the meeting is given or made to the Members, notice by the Member to be timely must be received not later than the close of business on the tenth
(10
th
) day following the day on which such notice of the date of the meeting was mailed or such public disclosure was made. In no event shall the adjournment or postponement of any general
meeting, or the public announcement of such an adjournment or postponement, commence a new time period (or extend any time period) for the giving of a Member’s notice to the Secretary pursuant to this Article 93.2.
|
26
|
|
93.3.
|
To be in proper written form, a Member’s notice shall set forth as to each matter such Member proposes to bring before the meeting:
|
|
|
a)
|
a brief description of the business desired to be brought before the meeting and the reasons for conducting such business at the meeting;
|
|
|
b)
|
the name and address, as they appear in the Register of Members, of such Member;
|
|
|
c)
|
the class and number of Shares of the Company which are beneficially owned by the Member; and
|
|
|
d)
|
any material interest of the Member in such business.
|
|
|
93.4.
|
The Chairperson shall, if the facts warrant, determine and declare to the meeting that business was not properly brought before the meeting and in accordance with the provisions of this Article and, if he should so
determine, he shall so declare to the meeting and any such business not properly brought before the meeting shall not be transacted.
|
|
94.
|
Except where a greater majority is required by the Companies Act or these Articles, any question proposed for a decision of the Members at any general meeting of the Company or a decision of any class of Members at a
separate meeting of any class of Shares shall be decided by an Ordinary Resolution.
|
|
95.
|
At any general meeting, a resolution put to the vote of the meeting shall be decided on a poll. The Board or the Chairperson may determine the manner in which the poll is to be taken and the manner in which the votes
are to be counted.
|
|
96.
|
A poll demanded on the election of the Chairperson or on a question of adjournment shall be taken forthwith. A poll demanded on any other question shall be taken at such time as the Chairperson of the meeting directs,
and any business other than that on which a poll has been demanded may be proceeded with pending the taking of the poll.
|
|
97.
|
No notice need be given of a poll not taken immediately. The result of the poll shall be deemed to be the resolution of the general meeting at which the poll was demanded. On a poll, a Member entitled to more than one
vote need not use all his or her votes or cast all the votes he or she uses in the same way.
|
|
98.
|
If authorised by the Board, any vote taken by written ballot may be satisfied by a ballot submitted by electronic and/or telephonic transmission, provided that any such electronic or telephonic submission must either
set forth or be submitted with information from which it can be determined that the electronic or telephonic submission has been authorised by the Member or proxy.
|
|
99.
|
The Board may adopt such rules, regulations and procedures for the conduct of any meeting of the Members as it deems appropriate. Except to the extent inconsistent with any applicable rules, regulations or procedures
adopted by the Board, the Chairperson of any meeting may adopt such rules, regulations and procedures for the meeting, and take such actions with respect to the conduct of the meeting, as the Chairperson of the meeting deems appropriate. The rules,
regulations and procedures adopted may include, without limitation, ones that (i) establish an agenda or order of business, (ii) are intended to maintain order and safety at the meeting, (iii) contain limitations on attendance at or
participation in the meeting to Members of record of the Company, their duly authorised proxies or such other persons as the Chairperson of the meeting shall determine, (iv) contain restrictions on entry to the meeting after the time fixed for
its commencement and (v) limit the time allotted to Member questions or comments.
|
27
|
100.
|
Subject to section 193 of the Companies Act, a resolution in writing signed by all of the Members for the time being entitled to attend and vote on such resolution at a general meeting (or being bodies corporate by
their duly authorised representatives) shall be as valid and effective for all purposes as if the resolution had been passed at a general meeting of the Company duly convened and held, and may consist of several documents in like form each signed by
one or more persons, and if described as a Special Resolution shall be deemed to be a Special Resolution within the meaning of the Companies Act. Any such resolution shall be served on the Company.
|
VOTES OF MEMBERS
|
101.
|
Subject to any rights or restrictions for the time being attached to any class or classes of Shares, every Member of record present in person or by proxy shall have one vote for each Share registered in his or her name
in the Register of Members.
|
|
102.
|
In the case of joint holders of record the vote of the senior holder who tenders a vote, whether in person or by proxy, shall be accepted to the exclusion of the votes of the other joint holders, and for this purpose
seniority shall be determined by the order in which the names stand in the Register of Members.
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|
103.
|
A Member of unsound mind, a Member who has made an enduring power of attorney, or in respect of whom an order has been made by any court, having jurisdiction in cases of unsound mind, may vote by his or her committee,
donee of an enduring power of attorney, receiver, guardian or other person appointed by the foregoing court, and any such committee, donee of an enduring power of attorney, receiver, guardian or other persons appointed by the foregoing court may
vote by proxy.
|
|
104.
|
No Member shall be entitled to vote at any general meeting unless he or she is registered as a Member on the record date for such meeting.
|
|
105.
|
No objection shall be raised to the qualification of any voter except at the general meeting or adjourned general meeting at which the vote objected to is given or tendered and every vote not disallowed at such general
meeting shall be valid for all purposes. Any such objection made in due time shall be referred to the Chairperson of the general meeting whose decision shall be final and conclusive.
|
PROXIES AND CORPORATE REPRESENTATIVES
|
106.
|
Votes may be given either personally or by proxy. A Member may appoint more than one proxy or the same proxy under one or more instruments to attend and vote at a meeting and may appoint a proxy to vote both in favour
of and against the same resolution in such proportion as specified in the instrument appointing the proxy.
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|
|
107.1.
|
Every Member entitled to attend and vote at a general meeting may appoint a proxy to attend, speak and vote on his or her behalf and may appoint more than one proxy to attend, speak and vote at the same meeting. The
appointment of a proxy or corporate representative shall be in such form and may be accepted by the Company at such place and at such time as the Board or the Secretary shall from time to time determine, subject to applicable requirements of the
United States Securities and Exchange Commission and any Exchange on which the Shares are listed.
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|
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107.2.
|
Without limiting the foregoing, the Board or the Secretary may from time to time permit appointments of a proxy
to be made by means of an electronic or internet communication or facility and may in a similar manner permit supplements to, or amendments or revocations of, any such electronic or internet communication or facility to be made. For the avoidance of
doubt, such appointments of proxy made by electronic or internet communications (as permitted by the Board or the Secretary) will be deemed to be deposited at the place specified
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28
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for such purpose once received by the Company. The Board or the Secretary may in addition prescribe the method of determining the time at which any such electronic or internet communication or
facility is to be treated as deposited at the place specified for such purpose. The Board may treat any such electronic or internet communication or facility which purports to be or is expressed to be sent on behalf of a Member as sufficient
evidence of the authority of the person sending that instruction to send it on behalf of that Member.
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|
108.
|
Any body corporate which is a Member of the Company may authorise such person or persons as it thinks fit to act as its representative at any meeting of the Company or of any class of Members of the Company and the
person or persons so authorised shall be entitled to exercise the same powers on behalf of the body corporate which he or she represents as that body corporate could exercise if it were an individual Member of the Company. The Company may require
evidence from the body corporate of the due authorisation of such person or persons to act as the representative of the relevant body corporate.
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109.
|
An appointment of proxy relating to more than one meeting (including any adjournment thereof) having once been received by the Company for the purposes of any meeting shall not require to be delivered, deposited or
received again by the Company for the purposes of any subsequent meeting to which it relates.
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|
110.
|
Receipt by the Company of an appointment of proxy in respect of a meeting shall not preclude a Member from attending and voting at the meeting or at any adjournment thereof which attendance and voting will automatically
cancel any proxy previously submitted.
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|
111.
|
An appointment of proxy shall be valid, unless the contrary is stated therein, for any adjournment of the meeting as well as for the meeting to which it relates.
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|
112.
|
A vote given in accordance with the terms of an appointment of proxy or a resolution authorising a representative to act on behalf of a body corporate shall be valid notwithstanding the death or insanity of the
principal, or the revocation of the appointment of proxy or of the authority under which the proxy was appointed or of the resolution authorising the representative to act or transfer of the Share in respect of which the proxy was appointed or the
authorisation of the representative to act was given, provided that no notice in writing (whether in electronic form or otherwise) of such death, insanity, revocation or transfer shall have been received by the Company at the registered office
before the commencement of the meeting or adjourned meeting at which the appointment of proxy is used or at which the representative acts.
|
|
113.
|
The Board may send, at the expense of the Company and subject to applicable law (including the rules and regulations of the United States Securities and Exchange Commission), by post, electronic mail or otherwise, to
the Members, forms for the appointment of a proxy (with or without stamped envelopes for their return) for use at any general meeting or at any class meeting, either in blank or nominating any one or more of the Directors or any other persons in the
alternative.
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DIRECTORS
|
114.
|
The number of Directors on the Board shall be fixed from time to time solely by the Board, provided, however, that in no case shall the number fixed by the Board be less than three (3) nor more than fifteen (15).
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|
115.
|
The remuneration to be paid to the Directors shall be such remuneration as the Directors shall determine. The
Directors shall also be entitled to be paid their travelling, hotel and other expenses properly incurred by them in going to, attending and returning from meetings of the Directors, or any committee of the Directors, or general meetings of the
Company, or otherwise in connection with the business of the Company, or to receive a fixed allowance in respect thereof as may be determined by the Board from time to time, or a combination partly of one such method and partly the other. The
amount, rate or basis of the remuneration or expenses to be paid to the Directors shall not require
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29
|
|
approval or ratification by the Company in general meeting. A Director is expressly permitted (for the purposes of section 228(1)(d) of the Companies Act) to use the Company’s property
pursuant to or in connection with: the exercise or performance of his duties, functions and powers as Director or employee; the terms of any contract of service or employment or letter of appointment; and, or in the alternative, any other usage
authorised by the Directors (or a person authorised by the Directors) from time to time; and including in each case for a Director’s own benefit or for the benefit of another person.
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|
116.
|
The Board may approve additional remuneration to any Director undertaking any special work or services for, or undertaking any special mission on behalf of, the Company other than his or her ordinary routine work as a
Director. Any fees paid to a Director who is also counsel or solicitor to the Company, or otherwise serves it in a professional capacity shall be in addition to his or her remuneration as a Director.
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|
117.
|
Members of special or standing committees may be allowed like compensation for service on any such committees or for attending committee meetings, or both.
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DIRECTORS’ AND OFFICERS’ INTERESTS
|
118.
|
A Director or an officer of the Company who is in any way, whether directly or indirectly, interested in a contract, transaction or arrangement or proposed contract, transaction or arrangement with the Company shall, in
accordance with section 231 of the Companies Act, declare the nature of his or her interest at the first opportunity either (a) at a meeting of the Board at which the question of entering into the contract, transaction or arrangement is first
taken into consideration, if the Director or officer of the Company knows this interest then exists, or in any other case, at the first meeting of the Board after learning that he or she is or has become so interested or (b) by providing a
general notice to the Directors declaring that he or she is a Director or an officer of, or has an interest in, a person and is to be regarded as interested in any transaction or arrangement made with that person, and after giving such general
notice it shall not be necessary to give special notice relating to any particular transaction.
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119.1.
|
A Director may hold any other office or place of profit under the Company (other than the office of its Auditors) in conjunction with his or her office of Director for such period and on such terms as to remuneration
and otherwise as the Board may determine.
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|
|
119.2.
|
Nothing in section 228(1)(e) of the Companies Act shall restrict a Director from entering into any commitment which has been approved by the Board or has been approved pursuant to such authority as may be delegated by
the Board in accordance with these Articles. It shall be the duty of each Director to obtain the prior approval of the Board, before entering into any commitment permitted by sections 228(1)(e)(ii) and 228(2) of the Companies Act.
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|
120.
|
A Director may act by himself or herself or by his or her firm in a professional capacity for the Company (other than as its Auditors) and he or she or his or her firm shall be entitled to remuneration for professional
services as if he or she were not a Director.
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|
121.
|
A Director may be or become a director, managing director, joint managing director, deputy managing director, executive director, manager or other officer or member of any other company or otherwise interested in any
company promoted by the Company or in which the Company may be interested as member or otherwise, and no such Director shall be accountable to the Company for any remuneration or other benefits received by him or her as a Director, managing
director, joint managing director, deputy managing director, executive director, manager or other officer or member of such other company; provided that he or she has declared the nature of his or her position with, or interest in, such company to
the Board in accordance with Article 118 and this has been approved by a majority of the disinterested Directors, notwithstanding the fact that the disinterested Directors may represent less than a quorum.
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30
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122.
|
No person shall be disqualified from the office of Director or from being an officer of the Company or prevented by such office from contracting with the Company, either as vendor, purchaser or otherwise, nor shall any
such contract or any contract or transaction entered into by or on behalf of the Company in which any Director or officer of the Company shall be in any way interested be or be liable to be avoided, nor shall any Director or officer of the Company
so contracting or being so interested be liable to account to the Company for any profit realised by any such contract or transaction by reason of such Director or officer of the Company holding office or of the fiduciary relation thereby
established; provided that:
|
|
|
122.1.
|
he or she has declared the nature of his or her interest in such contract or transaction to the Board in accordance with Article 118; and
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|
|
122.2.
|
the contract or transaction is approved by a majority of the disinterested Directors, notwithstanding the fact that the disinterested Directors may represent less than a quorum.
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|
123.
|
A Director may be counted in determining the presence of a quorum at a meeting of the Board which authorises or approves the contract, transaction or arrangement in which he or she is interested and he or she shall be
at liberty to vote in respect of any contract, transaction or arrangement in which he or she is interested, provided that the nature of the interest of any Director in any such contract or transaction shall be disclosed by him or her in accordance
with Article 118, at or prior to its consideration and any vote thereon.
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|
124.
|
For the purposes of Article 118:
|
|
|
124.1.
|
a general notice given to the Directors that a Director is to be regarded as having an interest of the nature and extent specified in the notice in any transaction or arrangement in which a specified person or class of
persons is interested shall be deemed to be a disclosure that the Director has an interest in any such transaction of the nature and extent so specified;
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|
|
124.2.
|
an interest of which a Director has no knowledge and of which it is unreasonable to expect him or her to have knowledge shall not be treated as an interest of his or hers; and
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|
|
124.3.
|
a copy of every declaration made and notice given under Article 118 shall be entered within three (3) days after the making or giving thereof in a book kept for this purpose. Such book shall be open for inspection
without charge by any Director, Secretary, the Auditors or Member of the Company at the registered office and shall be produced at every general meeting of the Company and at any meeting of the Directors if any Director so requests in sufficient
time to enable the book to be available at the meeting.
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POWERS AND DUTIES OF DIRECTORS
|
125.
|
The business of the Company shall be managed by the Directors, who may pay all expenses incurred in promoting and registering the Company and may exercise all such powers of the Company as are not, by the Companies Act
or by these Articles, required to be exercised by the Company in general meeting, subject, nevertheless, to any of these Articles and to the provisions of the Companies Act. No resolution made by the Company in general meeting shall invalidate any
prior act of the Directors that would have been valid if that resolution had not been made.
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|
126.
|
The Board shall have the power to appoint and remove officers on such terms as the Board sees fit and to give such titles and delegate such responsibilities to those executives as it sees fit.
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|
127.
|
The Company may exercise the powers conferred by section 44 of the Companies Act with regard to having an official seal for use abroad and such powers shall be vested in the Directors.
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|
128.
|
Unless otherwise ordered by the Board, the chief executive officer shall have the authority to exercise the
voting powers conferred by shares of any other company held or owned by the Company in such manner in all respects as he or she thinks fit and in particular they may exercise their voting powers in
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31
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|
favour of any resolution appointing the directors or any of them as director or officers of such other company or providing for the payment of remuneration or pensions to the directors or
officers of such other company. The Board may from time to time confer like powers upon any other person or persons.
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|
129.
|
All cheques, promissory notes, drafts, bills of exchange and other negotiable instruments and all receipts for money paid to the Company shall be signed, drawn, accepted, endorsed or otherwise executed, as the case may
be, by such person or persons and in such manner as the Directors shall from time to time by resolution determine.
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|
130.
|
The Directors may from time to time authorise such person or persons as they see fit to perform all acts, including without prejudice to the foregoing, to effect a transfer of any shares, bonds, or other evidences of
indebtedness or obligations, subscription rights, warrants, and other securities in another company in which the Company holds an interest and to issue the necessary powers of attorney for the same; and each such person is authorised on behalf of
the Company to vote such securities, to appoint proxies with respect thereto, and to execute consents, waivers and releases with respect thereto, or to cause any such action to be taken.
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|
131.
|
The Board may exercise all powers of the Company to borrow money and to mortgage or charge its undertaking, property and uncalled capital or any part thereof and to issue debentures, debenture stock, mortgages, bonds or
such other securities whether outright or as security for any debt, liability or obligation of the Company or of any third party.
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|
132.
|
The Directors may procure the establishment and maintenance of or participate in, or contribute to, any
non-contributory
or contributory pension or superannuation fund, scheme or
arrangement or life assurance scheme or arrangement for the benefit of, and pay, provide for or procure the grant of donations, gratuities, pensions, allowances, benefits or emoluments to any persons (including Directors or officers) who are or
shall have been at any time in the employment or service of the Company or of any company which is or was a subsidiary or holding company of the Company or of any predecessor in business of the Company or any such subsidiary or holding company
(including, for the avoidance of doubt, Medtronic and Covidien plc) and the wives, husbands, widows, widowers, families, relatives or dependants of any such persons. The Directors may also procure the establishment and subsidy of or subscription to
and support of any institutions, associations, clubs, funds or trusts calculated to be for the benefit of any such persons as aforesaid or otherwise to advance the interests and well-being of the Company or of any such other company as aforesaid or
its Members, and payments for or towards the issuance of any such persons as aforesaid and subscriptions or guarantees of money for charitable or benevolent objects or for any exhibition or for any public, general or useful object; provided that any
Director shall be entitled to retain any benefit received by him or her under this Article 132, subject only, where the Companies Act requires, to disclosure to the Members and the approval of the Company in general meeting.
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|
133.
|
The Board may from time to time provide for the management of the affairs of the Company in such manner as it shall think fit and the specific delegation provisions contained in the Articles shall not limit the general
powers conferred by these Articles.
|
MINUTES
|
134.
|
The Board shall cause minutes to be made in books kept for the purpose of all appointments of officers made by the Board, all resolutions and proceedings at meetings of the Company or the holders of any class of Shares,
of the Board and of committees of the Board, including the names of the Directors present at each meeting.
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DELEGATION OF
THE BOARD’S POWERS
|
135.
|
The Board may, by resolution approved by the affirmative vote of a majority of the Board, delegate any of its
powers (with power to
sub-delegate)
to any committee consisting of one or more Directors (or other persons solely for the purpose of Article 135.3). The Board may also delegate to any Director, officer or
member of the management of the Company or any of its subsidiaries such of its powers as it
|
32
|
|
considers desirable to be exercised by him or her. The Board may also designate one or more Directors as alternate members of any committee, who may replace any absent or disqualified member at
any meeting of any such committee. Any such delegation may be made subject to any conditions the Board may impose, and either collaterally with or to the exclusion of its own powers (but only if exclusion is explicitly so provided in such
delegation) and may be revoked or altered. Subject to any such conditions, the proceedings of a committee of the Board shall be governed by the Articles regulating the proceedings of Directors, so far as they are capable of applying. Each committee
shall keep regular minutes and report to the Board when required. Such committees include but are not limited to the following:
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|
|
135.1.
|
Audit Committee:
The Directors shall by resolution appoint members of the Board who are independent of management and who are free of any relationship which, in the opinion of the Board, would interfere with the
exercise of independent judgment, as an Audit Committee with such powers and duties as the Board may deem appropriate, subject to review by the Board.
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|
|
135.2.
|
Compensation Committee:
The Directors shall by resolution appoint members of the Board who are independent of management and who are free of any relationship which, in the opinion of the Board, would interfere
with the exercise of independent judgment, as a Compensation Committee with such powers and duties as the Board may deem appropriate, subject to review by the Board.
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|
|
135.3.
|
Committee of Disinterested Persons:
The Board may by resolution establish a committee composed of two or more disinterested Directors or other disinterested persons to determine whether it is in the best
interests of the Company to pursue a particular legal right or remedy of the Company and whether to cause the dismissal or discontinuance of a particular proceeding that seeks to assert a right or remedy on behalf of the Company. The committee, once
established, is not subject to the direction or control of, or termination by, the Board. A vacancy on the committee may be filled by a majority vote of the remaining committee members. The good faith determinations of the committee are binding upon
the Company and its Directors, officers and Members. The committee terminates when it issues a written report of its determinations to the Board.
|
|
136.
|
The Board may, by power of attorney or otherwise, appoint any person to be the agent of the Company on such conditions as the Board may determine, provided that the delegation is not to the exclusion of its own powers
and may be revoked by the Board at any time.
|
|
137.
|
The Board may, by power of attorney or otherwise, appoint any company, firm, person or body of persons, whether nominated directly or indirectly by the Board, to be the attorney or authorised signatory of the Company
for such purpose and with such powers, authorities and discretions (not exceeding those vested in or exercisable by the Board under these Articles) and for such period and subject to such conditions as they may think fit, and any such powers of
attorney or other appointment may contain such provisions for the protection and convenience of persons dealing with any such attorneys or authorised signatories as the Board may think fit and may also authorise any such attorney or authorised
signatory to delegate all or any of the powers, authorities and discretions vested in him or her.
|
CHAIRPERSON AND
EXECUTIVE OFFICERS
|
138.
|
The Board may elect any Director as Chairperson of the Board and determine the period for which he or she is to hold office.
|
|
139.
|
In addition to the Chairperson, the Directors and the Secretary, the Company may have such officers as the Board may from time to time determine and, without limitation to the foregoing, the Board may appoint any person
(whether or not a Director) to fill the following positions: chief executive officer, chief financial officer, president, treasurer and controller. Any person may hold more than one of the foregoing positions.
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33
|
140.
|
Any person elected or appointed pursuant to Articles 138 and 139 shall hold his or her office or other position for such period and on such terms as the Board may determine and the Board may revoke or vary any such
election or appointment at any time by resolution of the Board. Any such revocation or variation shall be without prejudice to any claim for damages that such person may have against the Company or the Company may have against such person for any
breach of any contract of service between him or her and the Company which may be involved in such revocation or variation. If any such office or other position becomes vacant for any reason, the vacancy may be filled by the Board.
|
|
141.
|
Except as provided in the Companies Act or these Articles, the powers and duties of any person elected or appointed to any office or executive or official position pursuant to Articles 138 and 139 shall be such as are
determined from time to time by the Board.
|
|
142.
|
Any officer may resign at any time by giving written notice to the Company. The resignation is effective without acceptance when the notice is given to the Company, unless a later effective date is specified in the
notice.
|
|
143.
|
The use of the word “officer” (or similar words) in the title of any executive or other position shall not be deemed to imply that the person holding such executive or other position is an “officer”
of the Company within the meaning of the Companies Act.
|
PROCEEDINGS OF DIRECTORS
|
144.
|
Except as otherwise provided by these Articles, the Directors shall meet together for the despatch of business, convening, adjourning and otherwise regulating their meetings and procedures as they think fit. Questions
arising at any meeting shall be decided by a majority of votes of the Directors present at a meeting at which there is a quorum. Each Director shall have one vote.
|
|
145.
|
Regular meetings of the Board may be held at such times and places as may be provided for in resolutions adopted by the Board. No additional notice of a regularly scheduled meeting of the Board shall be required.
|
|
146.
|
A Director may, and the Secretary on the requisition of a Director shall, at any time summon a meeting of the Directors by at least 24 hours’ notice (or if notice is mailed, at least 4 days’ notice) in writing
to every Director, unless notice is waived by all the Directors either at, before or after the meeting is held and, provided further, if notice is given in person, by telephone, cable, telex, telecopy or email, the same shall be deemed to have been
given on the day it is delivered to the Directors or transmitting organisation, as the case may be. The accidental omission to give notice of a meeting of the Directors to, or the
non-receipt
of notice of a
meeting by, any person entitled to receive notice shall not invalidate the proceedings of that meeting. The presence of a Director at a meeting of the Directors shall be deemed to be a waiver of any failure to give due notice of such meeting unless
such Director states that he or she is not waiving any such failure promptly following the calling to order of such meeting.
|
|
147.
|
The quorum necessary for the transaction of the business of the Board shall be a majority of the Directors in office. If a quorum shall not be present at any meeting of the Board, the Directors present thereat may
adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present.
|
|
148.
|
The continuing Directors may act notwithstanding any vacancy in their body, but if and so long as their number is reduced below the number fixed by or pursuant to these Articles as the minimum number of Directors, the
continuing Directors or Director may act for the purpose of increasing the number of Directors to that number, or of summoning a general meeting of the Company, but for no other purpose.
|
|
149.
|
Any casual vacancy shall only be filled by decision of a majority of the Board then in office, provided that a quorum is present. Any Director elected to fill a vacancy shall hold office until the next election of
directors and until his or her successor shall be elected. Any vacancy on the Board, including a vacancy that results from an increase in the number of Directors or from the death, resignation, retirement, disqualification or removal of a Director,
shall be deemed a casual vacancy.
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34
|
150.
|
If no Chairperson is elected, or if at any meeting the Chairperson is not present within five (5) minutes after the time appointed for holding the same, the Directors present may choose one of their number to be
the Chairperson of the meeting or proceed without a Chairperson of the meeting.
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|
151.
|
All acts done by any meeting of the Directors or of a committee of Directors shall, notwithstanding that it be afterwards discovered that there was some defect in the appointment of any Director, or that they or any of
them were disqualified, be as valid as if every such person had been duly appointed and qualified to be a Director.
|
|
152.
|
Members of the Board or of any committee thereof may participate in a meeting of the Board or of such committee by means of conference telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other and participation in a meeting pursuant to this provision shall constitute presence in person at such meeting. Unless otherwise determined by the Directors, the meeting shall be deemed to be held at
the place where the telephone call or similar communication was initiated.
|
|
153.
|
A resolution or other document in writing (in electronic form or otherwise), signed (whether by electronic signature, advanced electronic signature or otherwise as approved by the Directors) by all the Directors
entitled to receive notice of a meeting of Directors or of a committee of Directors, shall be as valid and effectual as if it had been passed at a meeting of Directors or (as the case may be) a committee of Directors duly convened and held and may
consist of several documents in the like form each signed by one or more Directors, and such resolution or other document or documents when duly signed may be delivered or transmitted (unless the Directors shall otherwise determine either generally
or in any specific case) by facsimile transmission, electronic mail or some other similar means of transmitting the content of documents.
|
RESIGNATION AND DISQUALIFICATION OF DIRECTORS
|
154.
|
The office of a Director shall be vacated ipso facto:
|
|
|
154.1.
|
on the death of a Director;
|
|
|
154.2.
|
if he or she resigns his or her office, on the date on which notice of his or her resignation is delivered to the registered office or tendered at a meeting of the Board or on such later date as may be specified in such
notice;
|
|
|
154.3.
|
on him or her being prohibited by law from being a Director; or
|
|
|
154.4.
|
on him or her ceasing to be a Director by virtue of any provision of the Companies Act.
|
APPOINTMENT, ROTATION, REMOVAL AND NOMINATION OF DIRECTORS
|
|
155.1.
|
No person shall be appointed a Director, unless nominated in accordance with the provisions of this Article 155. Nominations of persons for election to the Board at a general meeting may be made:
|
|
|
(a)
|
by or at the direction of the Board or a committee thereof;
|
|
|
(b)
|
with respect to election at a general meeting, by any Member who holds Ordinary Shares or other Shares carrying the general right to vote at general meetings of the Company, who is a Member at the time of the giving of
the required notice provided for in these Articles and at the time of the relevant general meeting, and who has given timely and proper notice in writing to the Secretary in accordance with Article 155.3 and 155.4;
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35
|
|
(c)
|
with respect to election at an extraordinary general meeting requisitioned in accordance with section 178(3) of the Companies Act, by a Member or Members who hold Ordinary Shares or other Shares carrying the general
right to vote at general meetings of the Company and who make such nomination in the written requisition of the extraordinary general meeting in accordance with these Articles, including Article 155.4, and the Companies Act relating to nominations
of Directors and the proper bringing of special business before an extraordinary general meeting; and
|
|
|
(d)
|
with respect to election at an annual general meeting, by any Member or beneficial owner of Shares (or group of Members and/or beneficial owners of Shares) who meets the requirements of and complies with all applicable
procedures set forth in Article 155.2
|
(sub-clauses
(b), (c) and (d), being the
exclusive means for a Member or beneficial owner (in the case of
sub-clause
(d)) to make nominations of persons for election to the Board).
|
|
(a)
|
Whenever the Board solicits proxies with respect to the election of Directors at an annual general meeting, subject to the provisions of this Article 155.2, the Company shall include in its notice of general meeting and
proxy statement for such annual general meeting, in addition to any persons nominated for election by or at the direction of the Board (or any duly authorised committee thereof), the name, together with the Required Information (as defined below),
of any person nominated for election to the Board (a “Member Nominee”) by an Eligible Holder (as defined in Article 155.2(d)) who expressly elects at the time of providing the notice required by this Article 155.2 to have such nominee
included in the Company’s proxy materials pursuant to this Article 155.2. For purposes of this Article 155.2, the “Required Information” that the Company will include in its proxy statement is (i) the information provided to the
Secretary of the Company concerning the Member Nominee and the Eligible Holder that is required to be disclosed in the Company’s proxy statement pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated
thereunder and (ii) if the Eligible Holder so elects, a Supporting Statement (as defined in Article 155.2(h)). For the avoidance of doubt, nothing in this Article 155.2 shall limit the Company’s ability to solicit against any Member
Nominee or include in its proxy materials the Company’s own statements or other information relating to any Eligible Holder or Member Nominee, including any information provided to the Company pursuant to this Article 155.2. Subject to the
provisions of this Article 155.2, the name of any Member Nominee included in the Company’s proxy statement for an annual general meeting shall also be set forth on the form of proxy distributed by the Company in connection with such annual
general meeting and on any ballot distributed at such annual general meeting.
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(b)
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Notice Period
. In addition to any other applicable requirements, for a nomination to be made by an
Eligible Holder pursuant to this Article 155.2, the Eligible Holder must have given timely and proper notice in writing (the “Notice of Proxy Access Nomination”) to the Secretary in accordance with this Article 155.2. To be timely, the
Notice of Proxy Access Nomination must be delivered to or mailed and received at the registered office of the Company not less than
one-hundred
and twenty (120) days nor more than one hundred and fifty
(150) days prior to the anniversary of the date that the Company first distributed its proxy statement to Members for the preceding year’s annual general meeting. In no event shall the adjournment or
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postponement of the annual general meeting, or the public announcement of such an adjournment or postponement, commence a new time period (or extend any time period) for the giving of a Notice of
Proxy Access Nomination pursuant to this Article 155.2.
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(c)
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Permitted Number of Member Nominees
. The maximum number of Member Nominees nominated by all Eligible
Holders that will be included in the Company’s proxy materials with respect to an annual general meeting shall not exceed twenty percent (20%) of the number of Directors in office as of the last day on which a Notice of Proxy Access Nomination
may be delivered pursuant to and in accordance with this Article 155.2 (the “Final Proxy Access Nomination Date”) or, if such amount is not a whole number, the closest whole number below twenty percent (20%) (such number, as it may be
adjusted pursuant to this Article 155.2(c)), the “Permitted Number”). In the event that one or more vacancies for any reason occurs on the Board after the Final Proxy Access Nomination Date but before the date of the annual general meeting
and the Board resolves to reduce the size of the Board in connection therewith, the Permitted Number shall be calculated based on the number of Directors in office as so reduced. In addition, the Permitted Number shall be reduced by (i) the
number of individuals who will be included in the Company’s proxy materials as nominees recommended by the Board pursuant to an agreement, arrangement or other understanding with a beneficial owner, group of beneficial owners, Member or group
of Members (other than any such agreement, arrangement or understanding entered into in connection with an acquisition of Shares from the Company by such beneficial owner, group of beneficial owners, Member or group of Members) and (ii) the
number of Directors in office as of the Final Proxy Access Nomination Date who were included in the Company’s proxy materials as Member Nominees for any of the two (2) preceding annual general meetings (including any persons counted as
Member Nominees pursuant to the immediately succeeding sentence) and whom the Board decides to nominate for
re-election
to the Board. For purposes of determining when the Permitted Number has been reached, any
individual nominated by an Eligible Holder for inclusion in the Company’s proxy materials pursuant to this Article 155.2 whose nomination is subsequently withdrawn or whom the Board decides to nominate for election to the Board shall be counted
as one of the Member Nominees. Any Eligible Holder submitting more than one Member Nominee for inclusion in the Company’s proxy materials pursuant to this Article 155.2 shall rank such Member Nominees based on the order in which the Eligible
Holder desires such Member Nominees to be selected for inclusion in the Company’s proxy materials in the event that the total number of Member Nominees submitted by Eligible Holders pursuant to this Article 155.2 exceeds the Permitted Number.
In the event that the number of Member Nominees submitted by Eligible Holders pursuant to this Article 155.2 exceeds the Permitted Number, the highest ranking Member Nominee who meets the requirements of this Article 155.2 from each Eligible Holder
will be selected for inclusion in the Company’s proxy materials until the Permitted Number is reached, going in order of the amount (largest to smallest) of Ordinary Shares or other Shares carrying the general right to vote at general meetings
of the Company that each Eligible Holder disclosed as owned in its Notice of Proxy Access Nomination. If the Permitted Number is not reached after the highest ranking Member Nominee who meets the requirements of this Article 155.2 from each Eligible
Holder has been selected, then the next highest ranking Member Nominee who meets the requirements of this Article 155.2 from each Eligible Holder will be selected for inclusion in the Company’s proxy materials, and this process will continue as
many times as necessary, following the same order each time, until the Permitted Number is reached. Notwithstanding anything to the contrary contained in this Article 155.2, the Company shall not be required to include any Member Nominees in its
proxy materials pursuant to this Article 155.2 for any annual general meeting for which the
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Secretary receives notice (whether or not subsequently withdrawn) that a Member intends to nominate one or more persons for election to the Board pursuant to the advance notice requirements for
Member nominees set forth in Articles 155.1(b), 155.3 and 155.4.
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(d)
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Eligible Holder
. An “Eligible Holder” is a Member or beneficial owner of Shares (each, a “Holder”) or group of no more than twenty (20) Holders (counting as one Holder, for this purpose,
any two or more funds that are part of the same Qualifying Fund Group (as defined below)) that (i) has owned (as defined in Article 155.2(e)) continuously for at least three (3) years (the “Minimum Holding Period”) a number of
Ordinary Shares or other Shares carrying the general right to vote at general meetings of the Company that represents at least three percent (3%) of the voting power of the outstanding Ordinary Shares and other Shares carrying the general right to
vote at general meetings of the Company as of the date the Notice of Proxy Access Nomination is received by the Secretary at the registered office of the Company in accordance with this Article 155.2 (the “Required Shares”), (ii) continues
to own the Required Shares through the date of the annual general meeting and (iii) satisfies all other requirements of, and complies with all applicable procedures set forth in, this Article 155.2. A “Qualifying Fund Group” is a
group of two or more funds that are (A) under common management and investment control, (B) under common management and funded primarily by the same employer or (C) a “group of investment companies” as such term is defined
in Section 12(d)(1)(G)(ii) of the Investment Company Act of 1940 of the United States of America, as amended. Whenever the Eligible Holder consists of a group of Holders (including a group of funds that are part of the same Qualifying Fund Group),
(1) each provision in this Article 155.2 that requires the Eligible Holder to provide any written statements, representations, undertakings, agreements or other instruments or to meet any other conditions shall be deemed to require each Holder
(including each individual fund) that is a member of such group to provide such statements, representations, undertakings, agreements or other instruments and to meet such other conditions (except that the members of such group may aggregate the
Shares that each member has owned continuously for the Minimum Holding Period in order to meet the three percent (3%) ownership requirement of the “Required Shares” definition) and (2) a breach of any obligation, agreement or
representation under this Article 155.2 by any member of such group shall be deemed a breach by the Eligible Holder. No person may be a member of more than one group of Holders constituting an Eligible Holder with respect to any annual general
meeting.
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(e)
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Definition of Ownership
. For purposes of this Article 155.2, a Holder shall be deemed to “own”
only those outstanding Ordinary Shares or other Shares carrying the general right to vote at general meetings of the Company as to which the Holder possesses both (i) the full voting and investment rights pertaining to the Shares and
(ii) the full economic interest in (including the opportunity for profit from and risk of loss on) such Shares; provided that the number of Shares calculated in accordance with clauses (i) and (ii) shall not include any Shares
(A) sold by such Holder or any of its affiliates in any transaction that has not been settled or closed, (B) borrowed by such Holder or any of its affiliates for any purposes or purchased by such Holder or any of its affiliates pursuant to
an agreement to resell or (C) subject to any option, warrant, forward contract, swap, contract of sale, other derivative or similar instrument or agreement entered into by such Holder or any of its affiliates, whether any such instrument or
agreement is to be settled with Shares or with cash based on the notional amount or value of outstanding Shares, in any such case which instrument or agreement has, or is intended to have, the purpose or effect of (1) reducing in any manner, to
any extent or at any time in the future, such Holder’s or its affiliates’ full right to vote or direct the voting of any such Shares and/or (2) hedging, offsetting or altering to any degree any gain or loss realized or realizable
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from maintaining the full economic ownership of such Shares by such Holder or affiliate (any such instruments or agreements, as described in this clause (c), “Derivative Instruments”).
A Holder’s ownership of Shares shall be deemed to continue during any period in which (i) the Holder has loaned such Shares, provided that the Holder has the power to recall such loaned Shares on five business days’ notice and
includes in the Notice of Proxy Access Nomination an agreement that it (A) will promptly recall such loaned Shares upon being notified that any of its Member Nominees will be included in the Company’s proxy materials and (B) will
continue to hold such recalled Shares through the date of the annual general meeting or (ii) the Holder has delegated any voting power by means of a proxy, power of attorney or other instrument or arrangement which is revocable at any time by
the Holder. The terms “owned,” “owning” and other variations of the word “own” shall have correlative meanings. Whether outstanding Shares are “owned” for these purposes shall be determined by the Board (or
any duly authorised committee thereof). For purposes of this Article 155.2, the term “affiliate” or “affiliates” shall have the meaning ascribed thereto under the General Rules and Regulations under the Exchange Act.
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(f)
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Form of Notice
. To be in proper written form, the Notice of Proxy Access Nomination must set forth or be accompanied by the following:
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(i)
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a written statement by the Eligible Holder certifying as to the class, series and number of Shares it owns and has owned continuously for the Minimum Holding Period, and the Eligible Holder’s agreement to provide
(A) within five (5) business days following the later of the record date for the annual general meeting or the date notice of the record date is first publicly disclosed, a written statement by the Eligible Holder certifying as to the
class, series and number of Shares it owns and has owned continuously through the record date and (B) immediate notice if the Eligible Holder ceases to own any of the Required Shares prior to the date of the annual general meeting;
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(ii)
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one or more written statements from the registered holder of the Required Shares (and from each intermediary through which the Required Shares are or have been held during the Minimum Holding Period) verifying that, as
of a date within seven calendar days prior to the date the Notice of Proxy Access Nomination is delivered to the Secretary, the Eligible Holder owns, and has owned continuously for the Minimum Holding Period, the Required Shares, and the Eligible
Holder’s agreement to provide, within five (5) business days following the later of the record date for the annual general meeting or the date notice of the record date is first publicly disclosed, one or more written statements from the
registered holder and such intermediaries verifying the Eligible Holder’s continuous ownership of the Required Shares through the record date;
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(iii)
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a copy of the Schedule 14N that has been or is concurrently being filed with the United States Securities and Exchange Commission as required by Rule
14a-18
under the Exchange
Act;
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(iv)
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the information that would be required to be set forth in a Member’s notice of a nomination pursuant to Article 155.4 (including each Member Nominee’s written consent to being named in the proxy statement as a
nominee and to serving as a Director if elected);
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(v)
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a representation that the Member Nominee (1) understands his or her duties as a Director under the Companies
Act and agrees to act in accordance with those duties while serving as a Director, (2) is not and will not become a party
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to any agreement, arrangement or understanding with, and has not given any commitment or assurance to any person as to how such Member Nominee, if elected as a Director of the Company, will act
or vote as a Director on any issue or question to be decided by the Board or that otherwise relates to the Company or the Member Nominee’s service on the Board, (3) is not and will not become a party to any compensatory, payment or other
financial agreement, arrangement or understanding with any person other than with the Company that has not been disclosed to the Company, including any agreement to indemnify such Member Nominee for obligations arising as a result of his or her
service as a Director of the Company, and has not and will not receive any such compensation or other payment from any person other than the Company that has not been disclosed to the Company, in each case in connection with such nominee’s
nomination, service or action as a Director of the Company, (4) if elected as a Director of the Company, will comply with all applicable laws and the rules and listing standards of the principal United States securities exchanges upon which the
Shares of the Company are listed or traded, and the Company’s policies, guidelines and principles applicable to Directors, including, without limitation, the Company’s principles of corporate governance, code of conduct, code of business
conduct and ethics for Board of Directors, conflict of interest, confidentiality, Share ownership and trading policies and guidelines, and any other Company codes, policies and guidelines or any rules, regulations and listing standards, in each case
as applicable to Directors and (5) will provide facts, statements and other information in all communications with the Company and its Members that are or will be true and correct in all material respects and do not and will not omit to state a
material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading;
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(vi)
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a written statement by the Eligible Holder describing whether and the extent to which any Derivative Instrument has been entered into by or on behalf of the Eligible Holder, or any affiliates of the Eligible Holder,
with respect to Shares of the Company;
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(vii)
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a representation that the Eligible Holder (A) will continue to hold the Required Shares through the date of the annual general meeting, (B) acquired the Required Shares in the ordinary course of business and
not with the intent to change or influence control of the Company, and does not presently have such intent, (C) has not nominated and will not nominate for election to the Board at the annual general meeting any person other than the Member
Nominee(s) it is nominating pursuant to this Article 155.2, (D) has not engaged and will not engage in, and has not and will not be a “participant” in another person’s, “solicitation” within the meaning of Rule
14a-1(l)
under the Exchange Act in support of the election of any individual as a Director at the annual general meeting other than its Member Nominee(s) or a nominee of the Board, (E) has not distributed and
will not distribute to any Member of the Company any form of proxy for the annual general meeting other than the form distributed by the Company, (F) has complied and will comply with all laws and regulations applicable to solicitations and the
use, if any, of soliciting material in connection with the annual general meeting and (G) has provided and will provide facts, statements and other information in all communications with the Company and its Members that are or will be true and
correct in all material respects and do not and will not omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading;
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(viii)
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a statement indicating whether the Eligible Holder intends to continue to own the Required Shares for at least one year following the annual general meeting;
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(ix)
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a statement indicating whether the Eligible Holder has, within the past three (3) years, nominated any nominee, through a proxy access regime or otherwise, for election as a director of a competitor to the Company,
as defined in Section 8 of the Clayton Antitrust Act of 1914 of the United States of America, or currently intends to nominate any nominee as a director of a competitor to the Company within the current calendar year, including the names of
such nominee and competitor to the Company and a description of the circumstances under which such nominee was or is to be nominated, if applicable;
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(x)
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an undertaking that the Eligible Holder agrees to (A) assume all liability stemming from any legal or regulatory violation arising out of the Eligible Holder’s communications with the Company’s Members or
out of the information that the Eligible Holder provided to the Company, (B) indemnify and hold harmless the Company and each of its Directors, officers and employees individually against any liability, loss or damages in connection with any
threatened or pending action, suit or proceeding, whether legal, administrative or investigative, against the Company or any of its Directors, officers or employees arising out of any nomination submitted by the Eligible Holder pursuant to this
Article 155.2 or any solicitation or other activity in connection therewith and (C) file with the United States Securities and Exchange Commission any solicitation or other communication with the Company’s Members relating to the meeting
at which its Member Nominee(s) will be nominated, regardless of whether any such filing is required under Regulation 14A of the Exchange Act or whether any exemption from filing is available for such solicitation or other communication under
Regulation 14A of the Exchange Act;
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(xi)
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in the case of a nomination by a group of Holders together constituting an Eligible Holder, the designation by all group members of one member of the group that is authorised to receive communications, notices and
inquiries from the Company and to act on behalf of all members of the group with respect to all matters relating to the nomination under this Article 155.2 (including withdrawal of the nomination); and
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(xii)
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in the case of a nomination by a group of Holders together constituting an Eligible Holder in which two or more funds that are part of the same Qualifying Fund Group are counted as one Holder for purposes of qualifying
as an Eligible Holder, documentation reasonably satisfactory to the Company that demonstrates that the funds are part of the same Qualifying Fund Group.
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(g)
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Additional Required Information
. In addition to the information required pursuant to Article 155.2(f) or any other provision of these Articles, (i) the Company may require any proposed Member Nominee to
furnish such other information as it may reasonably require, as provided in Article 155.6 and (ii) the Company may require the Eligible Holder to furnish any other information that may reasonably be requested by the Company to verify the
Eligible Holder’s continuous ownership of the Required Shares for the Minimum Holding Period.
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(h)
|
Supporting Statement
. The Eligible Holder may, at its option, provide to the Secretary, at the time the
Notice of Proxy Access Nomination is provided, a written statement, not to exceed five hundred (500) words, in support of its Member
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Nominee(s)’ candidacy (a “Supporting Statement”). Only one Supporting Statement may be submitted by an Eligible Holder (including any group of Holders together constituting an
Eligible Holder) in support of its Member Nominee(s). Notwithstanding anything to the contrary contained in this Article 155.2, the Company may omit from its proxy materials any information or Supporting Statement (or portion thereof) that it, in
good faith, believes would violate any applicable law, rule or regulation.
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(i)
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Correction of Defects; Updates and Supplements
. In the event that any information or communications provided by an Eligible Holder or a Member Nominee to the Company or its Members ceases to be true and correct
in all material respects or omits to state a material fact necessary to make the statements made, in light of the circumstances under which they were made, not misleading, such Eligible Holder or Member Nominee, as the case may be, shall promptly
notify the Secretary of any such defect in such previously provided information and of the information that is required to correct any such defect; it being understood that providing such notification shall not be deemed to cure any such defect or
limit the remedies available to the Company relating to any such defect (including the right to omit a Member Nominee from its proxy materials pursuant to this Article 155.2). In addition, any person providing any information to the Company pursuant
to this Article 155.2 shall further update and supplement such information, if necessary, so that all such information shall be true and correct as of the record date for the annual general meeting, and such update and supplement shall be delivered
to or mailed and received by the Secretary at the registered office of the Company not later than five (5) business days following the later of the record date or the date notice of the record date is first publicly disclosed.
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(j)
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Member Nominee Eligibility
. Notwithstanding anything to the contrary contained in this Article 155.2, the Company shall not be required to include in its proxy materials, pursuant to this Article 155.2, any
Member Nominee (i) who would not be independent of management, who is not free of any relationship which, in the opinion of the Board, would interfere with the exercise of independent judgment and/or who would not qualify as independent under
the rules and listing standards of the principal United States securities exchanges upon which the Shares of the Company are listed or traded, any applicable rules of the U.S. Securities and Exchange Commission or any publicly disclosed standards
used by the Board in determining and disclosing the independence of the Company’s directors, (ii) whose election as a member of the Board would cause the Company to be in violation of these Articles, the Memorandum, the rules and listing
standards of the principal United States securities exchanges upon which the Shares of the Company are listed or traded, the Companies Act or any other applicable law, rule or regulation, (iii) who is or has been, within the past three
(3) years, an officer or director of a competitor, as defined in Section 8 of the Clayton Antitrust Act of 1914 of the United States of America, (iv) who is a named subject of a pending criminal proceeding (excluding traffic
violations and other minor offenses) or has been convicted in such a criminal proceeding within the past ten (10) years, (v) who is subject to any order of the type specified in Rule 506(d) of Regulation D promulgated under the Securities Act
of 1933 of the United States of America, as amended, (vi) whose then-current or within the preceding ten (10) years’ business or personal interests place such Member Nominee in a conflict of interest with the Company or any of its
subsidiaries that would cause such Member Nominee to violate any fiduciary duties of directors established pursuant to the Companies Act, including but not limited to, the duty to act in good faith in the best interests of the Company and the duty
to exercise care, skill and diligence, as determined by the Board or (vii) who shall have provided any information to the Company or its Members that was untrue in any material respect or that omitted to state a material fact necessary to make
the statements made, in light of the circumstances in which they were made, not misleading.
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(k)
|
Invalid Nominations
. Notwithstanding anything to the contrary set forth herein, if (i) a Member Nominee and/or the applicable Eligible Holder breaches any of its agreements or representations or fails to
comply with any of its obligations under this Article 155.2 or (ii) a Member Nominee otherwise becomes ineligible for inclusion in the Company’s proxy materials pursuant to this Article 155.2 or dies, becomes disabled or otherwise becomes
ineligible or unavailable for election at the annual general meeting, in each case as determined by the Board (or any duly authorised committee thereof) or the Chairperson of the annual general meeting, (A) the Company may omit or, to the
extent feasible, remove the information concerning such Member Nominee and the related Supporting Statement from its proxy materials and/or otherwise communicate to its Members that such Member Nominee will not be eligible for election at the annual
general meeting, (B) the Company shall not be required to include in its proxy materials any successor or replacement nominee proposed by the applicable Eligible Holder or any other Eligible Holder and (C) the Board (or any duly authorised
committee thereof) or the Chairperson of the annual general meeting shall declare such nomination to be invalid and such nomination shall be disregarded notwithstanding that proxies in respect of such vote may have been received by the Company. In
addition, if the Eligible Holder (or a qualified representative thereof) does not appear at the annual general meeting to present any nomination pursuant to this Article 155.2, such nomination shall be declared invalid and disregarded as provided in
clause (C) above.
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(l)
|
Restrictions on
Re-Nominations
. Any Member Nominee who is included in the Company’s proxy materials for a particular annual general meeting but either
(i) withdraws from or becomes ineligible or unavailable for election at the annual general meeting, or (ii) does not receive at least twenty-five percent (25%) of the votes cast in favour of such Member Nominee’s election, will be
ineligible to be a Member Nominee pursuant to this Article 155.2 for the next two (2) annual general meetings. For the avoidance of doubt, the immediately preceding sentence shall not prevent any Member from nominating any person to the Board
pursuant to and in accordance with Articles 155.1(b), 155.1(c), 155.3 and 155.4.
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(m)
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Exclusive Method
. This Article 155.2 provides the exclusive method for a Member or beneficial owner of Shares to include nominees for election to the Board in the Company’s proxy materials.
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155.3.
|
To be timely, a Member’s notice for nomination(s) of person(s) for election pursuant to Article 155.1(b) must comply with the requirements of Article 93.2.
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155.4.
|
To be in proper written form, a Member’s notice for nomination(s) of person(s) for election pursuant to Article 155.1(b), or in the case of nomination(s) of person(s) for election pursuant to Article 155.1(c), a
Member’s written requisition of the extraordinary general meeting, must, in addition to any other applicable requirements, set forth:
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(a)
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as to each person whom the Member proposes to nominate for election or re–election as a Director, all information relating to such person that is required to be disclosed in solicitations for proxies for election
of directors, or is otherwise required, in each case pursuant to Regulation 14A of the Exchange Act (including such person’s written consent to being named in the proxy statement as a nominee and to serving as a director if elected); and
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(b)
|
as to the Member giving the notice and each beneficial owner, if different, on whose behalf the nomination is made:
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(i)
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the name and address of such Member (as they appear on the Company’s Register of Members) and each such beneficial owner; and
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(ii)
|
the class and number of Shares in the Company which each such Member and each such beneficial owner is the registered or beneficial owner of.
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155.5.
|
Except as otherwise provided by these Articles, the Chairperson of the meeting shall determine whether a nomination was not made in accordance with the procedures prescribed by these Articles, and if he or she should so
determine, he or she shall declare to the meeting that the nomination was defective and such defective nomination shall be disregarded.
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155.6.
|
The Company may require any proposed nominee to furnish such other information as it may reasonably require, including the completion of any questionnaires, to determine the eligibility of such proposed nominee to serve
as a Director of the Company and the impact that such service would have on the ability of the Company to satisfy the requirements of laws, rules, regulations and listing standards applicable to the Company or its Directors.
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156.
|
If at any meeting of Members resolutions are passed in respect of the election or
re-election
(as the case may be) of Directors which would result in the maximum number of
Directors fixed from time to time by the Board being exceeded, then those Director(s), in such number as exceeds such maximum fixed number, receiving at that meeting the lowest number of votes in favour of election or
re-election
(as the case may be) shall, notwithstanding the passing of any resolution in their favour, not be elected or
re-elected
(as the case may be) to the Board;
provided, that this Article shall not limit the rights of holders of any class or series of Shares then in issue having special rights to nominate or appoint Directors in accordance with the terms of issue of such class or series; provided, further,
that nothing in this Article 156 will require or result in the removal of a Director whose election or
re-election
to the Board was not voted on at such meeting.
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157.
|
The Company may from time to time by Special Resolution increase or reduce the maximum or minimum number of Directors. No reduction in the maximum number of Directors shall have the effect of removing any Director prior
to the expiration of his or her term of office.
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158.
|
At every annual general meeting of the Company, all of the Directors shall retire from office unless
re-elected
by Ordinary Resolution at the annual general meeting. A Director
retiring at a meeting shall retain office until the close of that meeting (including any adjournment thereof).
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159.
|
Every Director shall be eligible to stand for
re-election
at an annual general meeting.
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160.
|
The Company may, by Ordinary Resolution, of which notice has been given in accordance with section 146 of the Companies Act, remove any Director before the expiration of his or her period of office notwithstanding
anything in these Articles or in any agreement between the Company and such Director. Such removal shall be without prejudice to any claim such Director may have for damages for breach of any contract of service between him or her and the Company.
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161.
|
The Company may, by Ordinary Resolution, appoint another person in place of a Director removed from office under Article 160.
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162.
|
Notwithstanding any other provision of these Articles, the Directors may appoint a person who is willing to act to be a Director, either to fill a vacancy or as an additional Director, provided that the appointment does
not cause the number of Directors to exceed the number fixed by or in accordance with these Articles as the maximum number of Directors. A Director so appointed shall hold office until the next election of directors and until his or her successor
shall be elected.
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SECRETARY
|
163.
|
The Secretary shall be appointed by the Board at such remuneration (if any) and on such terms as the Board sees fit and any Secretary so appointed may be removed by the Board at any time.
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164.
|
The duties of the Secretary shall be those prescribed by the Companies Act, together with such other duties as shall from time to time be prescribed by the Board, and in any case, shall include the making and keeping of
records of the votes, doings and proceedings of all meetings of the Members and the Board of the Company, and committees, and the authentication of records of the Company.
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165.
|
A provision of the Companies Act or these Articles requiring or authorising a thing to be done by or to a Director and the Secretary shall not be satisfied by its being done by or to the same person acting both as
Director and as, or in the place of, the Secretary.
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SEAL
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166.
|
The Company may, if the Board so determines, have a Seal (including any official seals kept pursuant to the Companies Act) which shall only be used by the authority of the Board or of a committee of the Board authorised
by the Board in that regard and every instrument to which the Seal has been affixed shall be signed by any person who shall be either a Director or the Secretary or some other person authorised by the Board, either generally or specifically, for the
purpose.
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167.
|
The Company may have for use in any place or places outside Ireland a duplicate Seal or Seals, each of which shall be a duplicate of the Seal of the Company, except, in the case of a seal for use in sealing documents
creating or evidencing securities issued by the Company, for the addition on its face of the word “Securities” and, if the Board so determines, with the addition on its face of the name of every place where it is to be used.
|
DIVIDENDS, DISTRIBUTIONS AND RESERVES
|
168.
|
The Company in general meeting may declare dividends, but no dividends shall exceed the amount recommended by the Board. Any general meeting declaring a dividend and any resolution of the Directors declaring an interim
dividend may direct payment of such dividend or interim dividend wholly or partly by the distribution of specific assets and in particular of paid up shares, debentures or debenture stocks of any other company or in any one or more of such ways, and
the Board shall give effect to such resolution, and where any difficulty arises in regard to such distribution, the Board may settle the same as they think expedient, and in particular may issue fractional certificates and fix the value for
distribution of such specific assets or any part thereof and may determine that cash payments shall be made to any Members upon the footing of the value so fixed, in order to adjust the rights of all the parties, and may vest any such specific
assets in trustees as may seem expedient to the Board.
|
|
169.
|
Subject to the Companies Act, the Board may from time to time declare dividends (including interim dividends) and distributions on Shares outstanding and authorise payment of the same out of the funds of the Company
lawfully available therefore and in any currency chosen at its discretion.
|
|
170.
|
The Board may, before declaring any dividends or distributions, set aside such sums as it thinks proper as a reserve or reserves which shall, as directed by the Board, be applicable for any purpose of the Company and
pending such application may, as directed by the Board, be employed in the business of the Company. The Directors may also, without placing the same to reserve, carry forward any profits which they may think it prudent not to dividend.
|
|
171.
|
No dividend, interim dividend or distribution shall be paid otherwise than in accordance with the provisions of section 117 of the Companies Act.
|
|
172.
|
Subject to the rights of persons, if any, entitled to Shares with special rights as to dividends or distributions, if dividends or distributions are to be declared on a class of Shares, they shall be declared and paid
according to the amounts paid or credited as paid on the Shares of such class outstanding on the record date for such dividend or distribution as determined in accordance with these Articles.
|
|
173.
|
The Directors may deduct from any dividend payable to any Member all sums of money (if any) immediately payable by him or her to the Company in relation to his or her Shares.
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45
|
174.
|
Any dividend, distribution, interest or other monies payable in cash in respect of Shares may be paid by cheque or warrant sent through the post, or sent by any electronic or other means of payment, directed to the
registered address of the holder or, in the case of joint holders, to the holder who is first named on the Register of Members or to such person and to such address as such holder or joint holders may in writing direct. Every such cheque or warrant,
electronic or other payment shall be made payable to the order of the person to whom it is sent and payment of the cheque or warrant shall be a good discharge to the Company. Any one of two or more joint holders may give effectual receipts for any
dividends, bonuses, or other monies payable in respect of the Share held by them as joint holders. Any such dividend or other distribution may also be paid by any other method (including payment in a currency other than US$, electronic funds
transfer, direct debit, bank transfer or by means of a relevant system) which the Directors consider appropriate and any Member who elects for such method of payment shall be deemed to have accepted all of the risks inherent therein. The debiting of
the Company’s account in respect of the relevant amount shall be evidence of good discharge of the Company’s obligations in respect of any payment made by any such methods.
|
|
175.
|
No dividend or distribution shall bear interest against the Company.
|
|
176.
|
If the Directors so resolve, subject to applicable law, any dividend which has remained unclaimed for twelve (12) years from the date of its declaration shall be forfeited and cease to remain owing by the Company.
The payment by the Directors of any unclaimed dividend or other monies payable in respect of a Share into a separate account shall not constitute the Company a trustee in respect thereof.
|
CAPITALISATION
|
177.
|
Without prejudice to any powers conferred on the Directors as aforesaid, and subject to the Board’s authority to issue and allot Shares under Articles 7 and 8, the Board may:
|
|
|
177.1.
|
resolve to capitalise an amount standing to the credit of reserves (including a share premium account, undenominated capital account, capital redemption reserve and profit and loss account), whether or not available for
distribution;
|
|
|
177.2.
|
appropriate the sum resolved to be capitalised to the Members in proportion to the nominal amount of Shares held by them respectively and apply that sum on their behalf in or towards paying up in full unissued Shares or
debentures of a nominal amount equal to that sum, and allot the Shares or debentures, credited as fully paid, to the Members (or as the Board may direct) in those proportions, or partly in one way and partly in the other, but the share premium
account, undenominated capital account, the capital redemption reserve and profits that are not available for distribution may, for the purposes of this Article 177, only be applied in paying up unissued Shares to be allotted to Members credited as
fully paid;
|
|
|
177.3.
|
make any arrangements it thinks fit to resolve a difficulty arising in the distribution of a capitalised reserve, including where Shares or debentures become distributable in fractions, the Board may deal with the
fractions as it thinks fit;
|
|
|
177.4.
|
authorise a person to enter (on behalf of all the Members concerned) into an agreement with the Company providing for the allotment to the Members respectively, credited as fully paid, of Shares or debentures to which
they may be entitled on the capitalisation and any such agreement made under this authority being effective and binding on all those Members; and
|
|
|
177.5.
|
generally do all acts and things required to give effect to the resolution.
|
|
|
177.6.
|
Any such capitalisation will not require approval or ratification by the Members of the Company.
|
46
ACCOUNTS
|
178.
|
The Board shall, in accordance with Chapter 2 of Part 6 of the Companies Act, cause to be kept adequate accounting records, whether in the form of documents, electronic form or otherwise, that:
|
|
|
178.1.
|
correctly record and explain the transactions of the Company;
|
|
|
178.2.
|
will at any time enable the financial position of the Company to be determined with reasonable accuracy;
|
|
|
178.3.
|
will enable the Board to ensure that any financial statements of the Company comply with the requirements of the Companies Act;
|
|
|
178.4.
|
will record all sums of money received and expended by the Company and the matters in respect of which the receipt or expenditure takes place, all sales and purchases of goods by the Company and the assets and
liabilities of the Company; and
|
|
|
178.5.
|
will enable the financial statements of the Company to be readily and properly audited.
|
|
179.
|
Accounting records shall be kept on a continuous and consistent basis and entries therein shall be made in a timely manner and be consistent from year to year. The Company may send by post, electronic mail or any other
means of electronic communication a summary financial statement to its Members or persons nominated by any Member. The Company may meet, but shall be under no obligation to meet, any request from any of its Members to be sent additional copies of
its full report and accounts or summary financial statement or other communications with its Members.
|
|
180.
|
The accounting records shall be kept at the registered office of the Company or, subject to the provisions of the Companies Act, at such other place as the Directors think fit and shall be open at all reasonable times
to the inspection of the Directors.
|
|
181.
|
Accounting records shall not be deemed to be kept as required by Articles 178 to 180 if there are not kept such accounting records as are necessary to give a true and fair view of the state of the Company’s affairs
and to explain its transactions.
|
|
182.
|
In accordance with the provisions of the Companies Act, the Board may from time to time cause to be prepared and to be laid before the Company in general meeting profit and loss accounts, balance sheets, group accounts
(if any) and such other reports and accounts as may be required by law.
|
|
183.
|
A copy of every balance sheet (including every document required by law to be annexed thereto) which is to be laid before the annual general meeting of the Company together with a copy of the Directors’ report and
Auditors’ report shall be sent by post, electronic mail or any other means of communication (electronic or otherwise), not less than
twenty-one
(21) clear days before the date of the annual general
meeting, to every person entitled under the provisions of the Companies Act to receive them; provided that in the case of those documents sent by electronic mail or any other means of electronic communication, such documents shall be sent with the
consent of the recipient, to the Address of the recipient notified to the Company by the recipient for such purposes.
|
AUDIT
|
184.
|
Auditors shall be appointed and their duties regulated in accordance with Part 6, Chapter 18 of the Companies Act or any statutory amendment thereof, any other applicable law and such requirements not inconsistent with
the Companies Act as the Board may from time to time determine.
|
MERGER MECHANISM
|
185.
|
Pursuant to the terms of the Merger, at the time the Merger becomes effective (the “
Merger Effective
Time
”), MergerSub shall deposit (or cause to be deposited) with the exchange agent (the “
Exchange Agent
”), (A) certificates or, at the Company’s option, evidence of shares in book entry form, representing the aggregate
number of Ordinary Shares of US$0.0001 each in the capital of the Company (the “
Company Shares
”) that the holders of Medtronic common stock (“
Medtronic Shareholders
”) have the right to receive pursuant to the
Merger, and (B) the aggregate amount
|
47
|
|
payable in lieu of any fractions of Shares in the Company that such Medtronic Shareholder has the right to receive pursuant to the Merger. All Shares and cash deposited with the Exchange Agent
pursuant to the preceding sentence shall hereinafter be referred to as the “
Medtronic Exchange Fund
”. As soon as reasonably practicable after the Merger Effective Time and in any event within five business days after the Merger
Effective Time, the Company shall cause the Exchange Agent to mail to each holder of record of a certificate or certificates, which immediately prior to the Merger Effective Time represented outstanding Medtronic Shares (the “
Medtronic
Certificates
”); and to each holder of record of
non-certificated
outstanding Medtronic Shares represented by book entry (the “
Medtronic Book Entry Shares
”), which at the Merger
Effective Time were converted into the right to receive, for each such Medtronic Share, one Company Share (the “
Merger Consideration
”):
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|
|
185.1.
|
a letter of transmittal which shall specify that delivery shall be effected, and that risk of loss and title to the Medtronic Certificates shall pass, only upon delivery of the Medtronic Certificates to the Exchange
Agent or, in the case of the Medtronic Book Entry Shares, upon adherence to the procedures set forth in the letter of transmittal; and
|
|
|
185.2.
|
instructions for use in effecting the surrender of the Medtronic Certificates and the Medtronic Book Entry Shares (as applicable), in exchange for payment of the Merger Consideration therefor.
|
|
186.
|
Upon surrender of Medtronic Certificates and/or Medtronic Book Entry Shares (as applicable) for cancellation to the Exchange Agent, together with such letter of transmittal, duly completed and validly executed in
accordance with the instructions thereto, and such other documents as may reasonably be required by the Exchange Agent, the holder of such Medtronic Certificates or Medtronic Book Entry Shares (as applicable) shall be entitled to receive in exchange
therefore (i) that number of Company Shares into which such holder’s Medtronic shares represented by such holder’s properly surrendered Medtronic Certificates or Medtronic Book Entry Shares (as applicable) were converted pursuant to
the Merger, and the Medtronic Certificates or Medtronic Book Entry Shares (as applicable) so surrendered shall forthwith be cancelled, and (ii) a cheque in an amount of United States dollars equal to any cash dividends or other distributions
that such holder has a right to receive and the amount of any cash payable in lieu of any fractions of Shares in the Company that such holder has the right to receive pursuant to the Merger. In the event of transfers of ownership of shares of
Medtronic common stock which are not registered in the transfer records of Medtronic, the proper number of Company Shares may be transferred to a person other than the person in whose name the Medtronic Certificate or the Medtronic Book Entry Shares
(as applicable) so surrendered is registered, if such Medtronic Certificate or the Medtronic Book Entry Shares (as applicable) shall be properly endorsed or otherwise be in proper form for transfer and the person requesting such transfer shall pay
any transfer or other taxes required by reason of the transfer of Company Shares to a person other than the registered holder of such Medtronic Certificate or Medtronic Book Entry Shares (as applicable) or establish to the satisfaction of the
Exchange Agent that such tax has been paid or is not applicable. Any portion of the Medtronic Exchange Fund which has not been transferred to the holders of the Medtronic Certificates or the Medtronic Book Entry Shares (as applicable) as of the
six-month
anniversary of the Merger Effective Time shall be delivered to the Company or its designee, upon demand. Any holder of Medtronic Certificates or Medtronic Book Entry Shares (as applicable) who has not
complied with the applicable exchange procedures or duly completed and validly executed the applicable documents necessary to receive the Merger Consideration prior to the
six-month
anniversary of the Merger
Effective Time shall thereafter look only to the Company for payment of such holder’s claim for the Merger Consideration (subject to abandoned property, escheat or other similar applicable laws).
|
NOTICES
|
187.
|
Any notice to be given, served, sent or delivered pursuant to these Articles shall be in writing (whether in electronic form or otherwise).
|
48
|
|
187.1.
|
A notice or document to be given, served, sent or delivered in pursuance of these Articles, and the annual report of the Company, may be given to, served on or delivered to any Director, Member or committee member by
the Company:
|
|
|
(a)
|
by handing same to their authorised agent;
|
|
|
(b)
|
by delivering same to their registered address;
|
|
|
(c)
|
by sending same by the post in a
pre-paid
cover addressed to their registered address; or
|
|
|
(d)
|
by sending, with the consent of the Director, Member or committee member to the extent required by law, same by means of electronic mail or other means of electronic communication approved by the Directors or the
Secretary (or such other person as may be nominated by the Secretary for this purpose), to the Address of the Director, Member or committee member notified to the Company by the Director, Member or committee member for such purpose (or if not so
notified, then to the Address of the Director, Member or committee member last known to the Company). A notice or document may be sent by electronic means to the fullest extent permitted by the Companies Act.
|
|
|
187.2.
|
For the purposes of these Articles and the Companies Act, a document, including the Company’s financial statements and the directors’ and auditor’s reports thereon, shall be deemed to have been sent to a
Director, Member or committee member if a notice is given, served, sent or delivered to the Director, Member or committee member and the notice specifies the website or hotlink or other electronic link at or through which the Director, Member or
committee member may obtain a copy of the relevant document.
|
|
|
187.3.
|
Where a notice or document is given, served or delivered pursuant to
sub-paragraph
187.1(a) or 187.1(b) of this Article, the giving, service or delivery thereof shall be deemed to
have been effected at the time the same was handed to the Director, Member or committee member or his or her authorised agent, or left at his or her registered Address (as the case may be).
|
|
|
187.4.
|
Where a notice or document is given, served or delivered pursuant to
sub-paragraph
187.1(c) of this Article, the giving, service or delivery thereof shall be deemed to have been
effected at the expiration of twenty-four (24) hours after the cover containing it was posted. In proving service or delivery it shall be sufficient to prove that such cover was properly addressed, stamped and posted.
|
|
|
187.5.
|
Where a notice or document is given, served or delivered pursuant to
sub-paragraph
187.1(d) of this Article, the giving, service or delivery thereof shall be deemed to have been
effected at the expiration of forty-eight (48) hours after despatch.
|
|
|
187.6.
|
Every legal personal representative, committee, receiver, curator bonis or other legal curator, assignee in bankruptcy, examiner or liquidator of a Member shall be bound by a notice given as aforesaid if sent to the
last registered Address of such Member, or, in the event of notice given or delivered pursuant to
sub-paragraph
187.1(d), if sent to the Address notified by the Company by the Member for such purpose
notwithstanding that the Company may have notice of the death, lunacy, bankruptcy, liquidation or disability of such Member.
|
|
|
187.7.
|
Notwithstanding anything contained in this Article to the contrary, the Company shall not be obliged to take account of or make any investigations as to the existence of any suspension or curtailment of postal services
within or in relation to all or any part of any jurisdiction.
|
|
|
187.8.
|
Any requirement in these Articles for the consent of a Member in regard to the receipt by such Member of
electronic mail or other means of electronic communications approved by the
|
49
|
|
Directors, including the receipt of the Company’s annual report, statutory financial statements and the Directors’ and auditor’s reports thereon, shall be deemed to have been
satisfied where the Company has written to the Member informing him or her of its intention to use electronic communications for such purposes and the Member has not, within four (4) weeks of the issue of such notice, served an objection in
writing on the Company to such proposal. Where a Member has given, or is deemed to have given, his/her consent to the receipt by such Member of electronic mail or other means of electronic communications approved by the Directors, she/he may
revoke such consent at any time by requesting the Company to communicate with him or her in documented form; provided, however, that such revocation shall not take effect until five (5) days after written notice of the revocation is
received by the Company. No such consent shall be necessary, and to the extent it is necessary, such consent shall be deemed to have been given, if electronic communications are permitted to be used under the rules and regulations of the United
States Securities and Exchange Commission or any Exchange on which the Shares or other securities of the Company are listed.
|
|
|
187.9.
|
Without prejudice to the provisions of
sub-paragraphs
187.1(a) and 187.1(b) of this Article, if at any time by reason of the suspension or curtailment of postal services in any
territory, the Company is unable effectively to convene a general meeting by notices sent through the post, a general meeting may be convened by a public announcement (as defined below) and such notice shall be deemed to have been duly served on all
Members entitled thereto at noon (New York time) on the day on which the said public announcement is made. In any such case the Company shall put a full copy of the notice of the general meeting on its website. A “public announcement”
shall mean disclosure in a press release reported by a financial news service or in a document publicly filed by the Company with the United States Securities and Exchange Commission pursuant to sections 13, 14 or 15(d) of the Exchange Act and the
rules and regulations promulgated thereunder.
|
|
188.
|
Notice may be given by the Company to the joint holders of a Share by giving the notice to the joint holder whose name stands first in the Register in respect of the Share and notice so given shall be sufficient notice
to all the joint holders.
|
|
|
189.1.
|
Every person who becomes entitled to a Share shall, before his or her name is entered in the Register in respect of the Share, be bound by any notice in respect of that Share which has been duly given to a person from
whom he or she derives his or her title.
|
|
|
189.2.
|
A notice may be given by the Company to the persons entitled to a Share in consequence of the death or bankruptcy of a Member by sending or delivering it, in any manner authorised by these Articles for the giving of
notice to a Member, addressed to them at the address, if any, supplied by them for that purpose. Until such an address has been supplied, a notice may be given in any manner in which it might have been given if the death or bankruptcy had not
occurred.
|
|
190.
|
The signature (whether electronic signature, an advanced electronic signature or otherwise) to any notice to be given by the Company may be written (in electronic form or otherwise) or printed.
|
|
191.
|
A Member present, either in person or by proxy, at any meeting of the Company or the holders of any class of Shares in the Company shall be deemed to have received notice of the meeting and, where requisite, of the
purposes for which it was called.
|
50
UNTRACED HOLDERS
|
|
192.1.
|
Subject to applicable law, the Company shall be entitled to sell, at the best price reasonably obtainable, any Share or stock of a Member or any Share or stock to which a person is entitled by transmission if and
provided that:
|
|
|
(a)
|
for a period of twelve (12) years (not less than three (3) dividends having been declared and paid) no cheque or warrant sent by the Company through the post in a prepaid letter addressed to the Member or to
the person entitled by transmission to the Share or stock at his or her address on the Register or other than the last known address given by the Member or the person entitled by transmission to which cheques and warrants are to be sent has been
cashed and no communication has been received by the Company from the Member or the person entitled by transmission; and
|
|
|
(b)
|
at the expiration of the said period of twelve (12) years, the Company has given notice by advertisement in a leading newspaper circulating in the area in which the address referred to in paragraph (a) of this
Article is located of its intention to sell such Share or stock; and
|
|
|
(c)
|
the Company has not during the further period of three (3) months after the date of the advertisement and prior to the exercise of the power of sale received any communication from the Member or person entitled by
transmission.
|
|
|
192.2.
|
To give effect to any such sale, the Company may appoint any person to execute as transferor an instrument of transfer of such Share or stock and such instrument of transfer shall be as effective as if it had been
executed by the Member or person entitled by transmission to such Share or stock. The Company shall account to the Member or other person entitled to such Share or stock for the net proceeds of such sale by carrying all monies in respect thereof to
a separate account which shall be a permanent debt of the Company and the Company shall be deemed to be a debtor and not a trustee in respect thereof for such Member or other person. Monies carried to such separate account may either be employed in
the business of the Company or invested in such investments (other than shares of the Company or its holding company if any) as the Directors may from time to time think fit.
|
|
|
192.3.
|
To the extent necessary in order to comply with any laws or regulations to which the Company is subject in relation to escheatment, abandonment of property or other similar or analogous laws or regulations
(“
Applicable Escheatment Laws
”), the Company may deal with any Share of any Member and any unclaimed cash payments relating to such Share in any manner which it sees fit, including transferring or selling such Share and transferring
to third parties any unclaimed cash payments relating to such Share.
|
|
|
192.4.
|
The Company may only exercise the powers granted to it in paragraph 192.1 above in circumstances where it has complied with, or procured compliance with, the required procedures (as set out in the Applicable Escheatment
Laws) with respect to attempting to identify and locate the relevant member of the Company.
|
|
|
192.5.
|
Any stock transfer form to be executed by the Company in order to sell or transfer a Share pursuant to paragraph 192.1 may be executed in accordance with Article 31.1.
|
51
DESTRUCTION OF DOCUMENTS
|
193.
|
Subject to applicable law, the Company may destroy:
|
|
|
193.1.
|
any dividend mandate or any variation or cancellation thereof or any notification of change of name or address, at any time after the expiry of two (2) years from the date such mandate variation, cancellation or
notification was recorded by the Company;
|
|
|
193.2.
|
any instrument of transfer of Shares which has been registered, at any time after the expiry of six (6) years from the date of registration; and
|
|
|
193.3.
|
any other document on the basis of which any entry in the Register was made, at any time after the expiry of six (6) years from the date an entry in the Register was first made in respect of it;
|
|
|
193.4.
|
and it shall be presumed conclusively in favour of the Company that every share certificate (if any) so destroyed was a valid certificate duly and properly sealed and that every instrument of transfer so destroyed was a
valid and effective instrument duly and properly registered and that every other document destroyed hereunder was a valid and effective document in accordance with the recorded particulars thereof in the books or records of the Company provided
always that:
|
|
|
(a)
|
the foregoing provisions of this Article shall apply only to the destruction of a document in good faith and without express notice to the Company (by a Member or a court) that the preservation of such document was
relevant to a claim;
|
|
|
(b)
|
nothing contained in this Article shall be construed as imposing upon the Company any liability in respect of the destruction of any such document earlier than as aforesaid or in any case where the conditions of proviso
(a) above are not fulfilled; and
|
|
|
(c)
|
references in this Article to the destruction of any document include references to its disposal in any manner.
|
WINDING UP
|
194.
|
If the Company shall be wound up and the assets available for distribution among the Members as such shall be insufficient to repay the whole of the paid up or credited as paid up share capital, such assets shall be
distributed so that, as nearly as may be, the losses shall be borne by the Members in proportion to the capital paid up or credited as paid up at the commencement of the winding up on the Shares held by them respectively. And if in a winding up the
assets available for distribution among the Members shall be more than sufficient to repay the whole of the share capital paid up or credited as paid up at the commencement of the winding up, the excess shall be distributed among the Members in
proportion to the capital at the commencement of the winding up paid up or credited as paid up on the said Shares held by them respectively. Provided that this Article shall not affect the rights of the Members holding Shares issued upon special
terms and conditions.
|
|
|
194.1.
|
In case of a sale by the liquidator under section 601 of the Companies Act, the liquidator may by the contract of sale agree so as to bind all the Members, for the allotment to the Members directly, of the proceeds of
sale in proportion to their respective interests in the Company and may further, by the contract, limit a time at the expiration of which obligations or Shares not accepted or required to be sold shall be deemed to have been irrevocably refused and
be at the disposal of the Company, but so that nothing herein contained shall be taken to diminish, prejudice or affect the rights of dissenting Members conferred by the said section.
|
|
|
194.2.
|
The power of sale of the liquidator shall include a power to sell wholly or partially for debentures, debenture stock, or other obligations of another company, either then already constituted or about to be constituted
for the purpose of carrying out the sale.
|
|
195.
|
If the Company is wound up, the liquidator, with the sanction of a Special Resolution and any other sanction
required by the Companies Act, may divide amongst the Members
in specie
or kind the whole or any part of the assets of the Company (whether they shall consist of property of the same kind or not), and, for such purpose, may value any assets
and determine how the division shall be carried out
|
52
|
|
as between the Members or different classes of Members. The liquidator, with the like sanction, may vest the whole or any part of such assets in trustees upon such trusts for the benefit of the
contributories as, with the like sanction, he or she determines, but so that no Member shall be compelled to accept any assets upon which there is a liability.
|
INDEMNITY
|
|
196.1.
|
Subject to the provisions of, and so far as may be permitted by, the Companies Act, every Director and Secretary shall be entitled to be indemnified by the Company against all costs, charges, losses, expenses and
liabilities incurred by him or her in the execution and discharge of his or her duties or in relation thereto, or in his or her capacity as an officer, including any liability incurred by him in defending any proceedings, civil or criminal, which
relate to anything done or omitted or alleged to have been done or omitted by him as a director, an officer or employee of the Company and in which judgement is given in his or her favour (or the proceedings are otherwise disposed of without any
finding or admission of any material breach of duty on his or her part) or in which he or she is acquitted or in connection with any application under any statute for relief from liability in respect of any such act or omission in which relief is
granted to him by the Court.
|
|
|
196.2.
|
As far as permissible under the Companies Act, the Company shall indemnify any current or former executive or officer of the Company (excluding any Director or Secretary) or any person who is serving or has served at
the request of the Company as a director, executive, officer or trustee of another company against expenses, including attorneys’ fees, judgments, fines, and amounts paid in settlement actually and reasonably incurred by him or her in
connection with any threatened, pending, or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, other than an action by or in the right of the Company, to which he or she was, is, or is threatened to be,
made a party by reason of the fact that he or she is or was such a director, executive, officer or trustee, provided always that the indemnity contained in this Article 196.2 shall not extend to any matter which would render it void pursuant to the
Companies Act.
|
|
|
196.3.
|
In the case of any threatened, pending or completed action, suit or proceeding by or in the right of the Company, the Company shall indemnify, to the fullest extent permitted by the Companies Act, each person indicated
in Article 196.2 against expenses, including attorneys’ fees actually and reasonably incurred in connection with the defence or the settlement thereof, except no indemnification shall be made in respect of any claim, issue or matter as to which
such person shall have been adjudged to be liable for fraud or dishonesty in the performance of his or her duty to the Company unless and only to the extent that the Court or the court in which such action or suit was brought shall determine upon
application that despite the adjudication of liability, but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses as the Court shall deem proper.
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196.4.
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As far as permissible under the Companies Act, expenses, including attorneys’ fees, incurred in defending any action, suit or proceeding referred to in this Article shall be paid by the Company in advance of the
final disposition of such action, suit or proceeding upon receipt of a written affirmation by or on behalf of the Director, executive, officer or trustee, or other indemnitee of a good faith belief that the criteria for indemnification have been
satisfied and a written undertaking to repay such amount if it shall ultimately be determined that he or she is not entitled to be indemnified by the Company as authorised by these Articles.
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196.5.
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It being the policy of the Company that indemnification of the persons specified in this Article shall be made to
the fullest extent permitted by law, the indemnification provided by this Article shall not be deemed exclusive (a) of any other rights to which those seeking indemnification or advancement of expenses may be entitled under the Memorandum,
Articles, any agreement, any insurance purchased by the Company, any vote of Members or disinterested Directors, or
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pursuant to the direction (however embodied) of any court of competent jurisdiction, or otherwise, both as to action in his or her official capacity and as to action in another capacity while
holding such office, (b) of the power of the Company or any of its subsidiaries to indemnify any person who is or was an employee or agent of the Company or of another company, joint venture, trust or other enterprise which he or she is
serving or has served at the request of the Company, to the same extent and in the same situations and subject to the same determinations as are hereinabove set forth with respect to a Director, executive, officer or trustee, or (c) of any
amendments or replacements of the Companies Act which permit for greater indemnification of the persons specified in this Article and any such amendment or replacement of the Companies Act shall hereby be incorporated into these Articles. As used in
this Article 196.5, references to the “Company” include all constituent companies in a consolidation or merger in which the Company or any predecessor to the Company by consolidation or merger was involved. The indemnification provided by
this Article shall continue as to a person who has ceased to be a Director, executive, officer or trustee and shall inure to the benefit of the heirs, executors, and administrators of such a person.
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196.6.
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The Directors shall have power to purchase and maintain for any Director, the Secretary or other officers or employees of the Company insurance against any such liability as referred to in section 235 of the Companies
Act.
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196.7.
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The Company may additionally indemnify any employee or agent of the Company or any director, executive, officer, employee or agent of any of its subsidiaries to the fullest extent permitted by law.
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FINANCIAL YEAR
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197.
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The financial year of the Company shall be as prescribed by the Board from time to time.
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SHAREHOLDER RIGHTS PLAN
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198.
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The Board is hereby expressly authorised to adopt any “shareholder rights plan”, upon such terms and conditions as the Board deems expedient and in the best interests of the Company, subject to applicable law.
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BUSINESS COMBINATION
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199.1.
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The Company may not engage in any business combination, or vote, consent, or otherwise act to authorise a subsidiary of the Company to engage in any business combination, with, with respect to, proposed by or on behalf
of, or pursuant to any written or oral agreement, arrangement, relationship, understanding, or otherwise with, any interested Member of the Company or any affiliate or associate of the interested Member for a period of four (4) years following
the interested Member’s share acquisition date unless the business combination or the acquisition of Shares made by the interested Member on the interested Member’s share acquisition date is approved before the interested Member’s
share acquisition date, or on the share acquisition date but prior to the interested Member becoming an interested Member on the share acquisition date, by a committee of the Board formed in accordance with Article 199.4.
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199.2.
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If a good faith definitive proposal regarding a business combination is made in writing to the Board, a committee of the Board formed in accordance with Article 199.4 shall consider and take action on the proposal and
respond in writing within thirty (30) days after receipt of the proposal by the Company, setting forth its decision regarding the proposal.
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199.3.
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If a good faith definitive proposal to acquire Shares is made in writing to the Board, a committee of the Board formed in accordance with Article 199.4 shall consider and take action on the proposal and respond in
writing within thirty (30) days after receipt of the proposal by the Company, setting forth its decision regarding the proposal.
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54
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199.4.
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When a business combination or acquisition of Shares is proposed pursuant to this Article 199, the Board shall promptly form a committee composed solely of one or more disinterested Directors. The committee shall take
action on the proposal by the affirmative vote of a majority of committee members. No larger proportion or number of votes shall be required. Notwithstanding anything in these Articles to the contrary, subject to applicable law, the committee shall
not be subject to any direction or control by the Board with respect to the committee’s consideration of, or any action concerning, a business combination or acquisition of Shares pursuant to this Article 199. If the Board has no disinterested
Directors, the Board shall select three or more disinterested persons to be committee members. Committee members shall act in accordance with the standard of conduct applicable to the Directors and shall be indemnified in accordance with Article
196. For purposes of this Article 199.4, a Director or person is “disinterested” if the Director or person is neither an officer nor an employee, nor has been an officer or employee within five (5) years preceding the formation of the
committee pursuant to this Article 199.4, of the Company or of a related company.
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199.5.
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This Article 199 may only be amended by a Special Resolution of the Members. In determining whether the Special Resolution has been adopted by the general meeting, votes cast with respect to Shares of interested Members
and their affiliates and associates shall not be taken into account. Notwithstanding any such amendment, this Article 199 shall apply to any business combination of the Company with an interested Member whose share acquisition date was before the
effective date of the amendment of this Article 199.
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199.6.
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This Article 199 does not apply to any business combination of the Company with, with respect to, proposed by or on behalf of, or pursuant to any written or oral agreement, arrangement, relationship, understanding, or
otherwise with any interested Member who became an interested Member solely as a result of having received Shares pursuant to the Merger and/or the scheme of arrangement between Covidien plc and its shareholders.
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199.7.
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As used in this Article 199 only, the term:
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(i)
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“affiliate” means a person that directly or indirectly controls, is controlled by, or is under common control with, a specified person;
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(ii)
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“associate”, when used to indicate a relationship with any person, means any of the following:
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(a)
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any company of which the person is an officer or partner or is, directly or indirectly, the beneficial owner of ten percent (10%) or more of any class or series of shares entitled to vote or other equity interest;
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(b)
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any trust or estate in which the person has a substantial beneficial interest or as to which the person serves as trustee or executor or in a similar fiduciary capacity; or
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(c)
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any relative or spouse of the person, or any relative of the spouse, residing in the home of the person;
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(iii)
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“beneficial owner”, when used with respect to shares or other securities, includes, but is not limited to, any person who, directly or indirectly through any written or oral agreement, arrangement,
relationship, understanding, or otherwise, has or shares the power to vote, or direct the voting of, the shares or securities or has or shares the power to dispose of, or direct the disposition of, the shares or securities, except that:
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(a)
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a person shall not be deemed the beneficial owner of shares or securities tendered pursuant to a tender or exchange offer made by the person or any of the person’s affiliates or associates until the tendered shares
or securities are accepted for purchase or exchange; and
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55
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(b)
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a person shall not be deemed the beneficial owner of shares or securities with respect to which the person has the power to vote or direct the voting arising solely from a revocable proxy given in response to a proxy
solicitation required to be made and made in accordance with the applicable rules and regulations under the Exchange Act and is not then reportable under that act on a Schedule 13D or comparable report, or, if the company is not subject to the rules
and regulations under the Exchange Act, would have been required to be made and would not have been reportable if the company had been subject to the rules and regulations;
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(iv)
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“beneficial ownership” includes, but is not limited to, the right to acquire shares or securities through the exercise of options, warrants, or rights, or the conversion of convertible securities, or
otherwise. The shares or securities subject to the options, warrants, rights, or conversion privileges held by a person shall be deemed to be outstanding for the purpose of computing the percentage of outstanding shares or securities of the class or
series owned by the person, but shall not be deemed to be outstanding for the purpose of computing the percentage of the class or series owned by any other person. A person shall be deemed the beneficial owner of shares and securities beneficially
owned by any relative or spouse of the person or any relative of the spouse, residing in the home of the person, any trust or estate in which the person owns ten percent (10%) or more of the total beneficial interest or serves as trustee or executor
or in a similar fiduciary capacity, any company in which the person owns ten percent (10%) or more of the equity, and any affiliate of the person.
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When two or more persons act or agree to act as a partnership, limited partnership, syndicate, or other group for the purposes of acquiring,
owning, or voting shares or other securities of a company, all members of the partnership, syndicate, or other group are deemed to constitute a “person” and to have acquired beneficial ownership, as of the date they first so act or agree
to act together, of all shares or securities of the company beneficially owned by the person;
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(v)
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“business combination” means any of the following:
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(a)
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any merger, acquisition, scheme of arrangement or amalgamation of the Company or any subsidiary of the Company with (1) the interested Member or (2) any other company (whether or not itself an interested
Member of the Company) that is, or after the merger would be, an affiliate or associate of the interested Member, but excluding (x) the merger of a wholly owned subsidiary of the Company into the Company, (y) the merger of two or more
wholly owned subsidiaries of the Company, or (z) the merger of a company, other than an interested Member or an affiliate or associate of an interested Member, with a wholly owned subsidiary of the Company pursuant to which the surviving
company, immediately after the merger, becomes a wholly owned subsidiary of the Company;
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(b)
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any exchange of Shares or other securities of the Company or any subsidiary of the Company or money, or other property, for shares, other securities, money, or property of (1) the interested Member or (2) any
other company (whether or not itself an interested Member of the Company) that is, or after the exchange would be, an affiliate or associate of the interested Member, but excluding the exchange of shares of a company, other than an interested Member
or an affiliate or associate of an interested Member, pursuant to which the company, immediately after the exchange, becomes a wholly owned subsidiary of the Company;
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(c)
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any sale, lease, exchange, mortgage, pledge, transfer, or other disposition (in a single transaction or a series of transactions), other than sales of goods or services in the ordinary course of business or redemptions
pursuant to Article 200.7, to or with the interested Member or any affiliate or associate of the interested Member, other than to or with the Company or a wholly owned subsidiary of the Company, of assets of the Company or any subsidiary of the
Company (1) having an aggregate market value equal to ten percent (10%) or more of the aggregate market value of all the assets, determined on a consolidated basis, of the Company, (2) having an aggregate market value equal to ten percent
(10%) or more of the aggregate market value of all the outstanding Shares of the Company, or (3) representing ten percent (10%) or more of the earning power or net income, determined on a consolidated basis, of the Company, except a cash
dividend or distribution paid or made pro rata to all Members of the Company;
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(d)
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the issuance or transfer by the Company or any subsidiary of the Company (in a single transaction or a series of transactions) of any shares of, or other ownership interests in, the Company or any subsidiary of the
Company that have an aggregate market value equal to five percent (5%) or more of the aggregate market value of all the outstanding Shares of the Company to the interested Member or any affiliate or associate of the interested Member, except
pursuant to the exercise of warrants or rights to purchase shares offered, or a dividend or distribution paid or made, pro rata to all Members of the Company other than for the purpose, directly or indirectly, of facilitating or effecting a
subsequent transaction that would have been a business combination if the dividend or distribution had not been made;
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(e)
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the adoption of any plan or proposal for the liquidation or dissolution of the Company, or any reincorporation of the Company in another jurisdiction, proposed by or on behalf of, or pursuant to any written or oral
agreement, arrangement, relationship, understanding, or otherwise with, the interested Member or any affiliate or associate of the interested Member;
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(f)
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any reclassification of securities (including, without limitation, any bonus shares or share split, reverse share split, or other distribution of shares in respect of shares), recapitalisation of the Company, merger of
the Company with any subsidiary of the Company, exchange of Shares of the Company with any subsidiary of the Company, or other transaction (whether or not with or into or otherwise involving the interested Member), proposed by or on behalf of, or
pursuant to any written or oral agreement, arrangement, relationship, understanding, or otherwise with, the interested Member or any affiliate or associate of the interested Member, that has the effect, directly or indirectly, of increasing the
proportionate share of the outstanding shares of any class or series of shares entitled to vote, or securities that are exchangeable for, convertible into, or carry a right to acquire shares entitled to vote, of the Company or any subsidiary of the
Company that is, directly or indirectly, owned by the interested Member or any affiliate or associate of the interested Member, except as a result of immaterial changes due to fractional share adjustments; or
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(g)
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any receipt by the interested Member or any affiliate or associate of the interested Member of the benefit, directly or indirectly (except proportionately as a Member of the Company), of any loans, advances, guarantees,
pledges, or other financial assistance, or any tax credits or other tax advantages provided by or through the Company or any subsidiary of the Company;
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57
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(vi)
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“company” means a corporation, limited liability company, partnership, limited partnership, joint venture, association, business trust, estate, trust, enterprise, and any other legal or commercial entity;
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(vii)
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“control”, including the terms “controlling”, “controlled by”, and “under common control with”, means the possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a person, whether through the ownership of voting securities, by contract, or otherwise. A person’s beneficial ownership of ten percent (10%) or more of the voting power of a company’s
outstanding shares entitled to vote in the election of directors creates a presumption that the person has control of the company. Notwithstanding the foregoing, a person is not considered to have control of a company if the person holds voting
power, in good faith, as an agent, bank, broker, nominee, custodian, or trustee for one or more beneficial owners who do not individually or as a group have control of the company;
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(viii)
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“governing body” means the body of a company selected by its owners that has the ultimate power to determine the company’s policies and control its activities;
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(ix)
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“interested Member” means any person that is (1) the beneficial owner, directly or indirectly, of ten percent (10%) or more of the voting power of the outstanding Shares entitled to vote of the Company or
(2) an affiliate or associate of the Company that, at any time within the four (4) year period immediately before the date in question, was the beneficial owner, directly or indirectly, of ten percent (10%) or more of the voting power of
the then outstanding Shares entitled to vote of the Company.
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If a person who has not been a beneficial owner of ten percent
(10%) or more of the voting power of the outstanding Shares entitled to vote of the Company immediately prior to a repurchase of Shares by, or recapitalisation of, the Company or similar action shall become a beneficial owner of ten percent (10%) or
more of the voting power solely as a result of the share repurchase, recapitalisation, or similar action, the person shall not be deemed to be the beneficial owner of ten percent (10%) or more of the voting power for purposes of (1) or (2)
above, unless:
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(a)
|
the repurchase, recapitalisation, conversion, or similar action was proposed by or on behalf of, or pursuant to any agreement, arrangement, relationship, understanding, or otherwise (whether or not in writing) with, the
person or any affiliate or associate of the person; or
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(b)
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the person thereafter acquires beneficial ownership, directly or indirectly, of outstanding Shares entitled to vote of the Company and, immediately after the acquisition, is the beneficial owner, directly or indirectly,
of ten percent (10%) or more of the voting power of the outstanding Shares entitled to vote of the Company.
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(x)
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an “interested Member” does not include:
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(a)
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the Company or any of its subsidiaries;
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(b)
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a savings, employee stock ownership, or other employee benefit plan of the Company or its subsidiary, or a fiduciary of the plan when acting in a fiduciary capacity pursuant to the plan; or
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(c)
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a licensed broker/dealer or licensed underwriter who (1) purchases Shares of the Company solely for purposes of resale to the public and (2) is not acting in concert with an interested Member.
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58
Shares beneficially owned by a plan described in clause (b) or by a fiduciary of a plan
described in clause (b), pursuant to the plan, are not deemed to be beneficially owned by a person who is a fiduciary of the plan;
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(xi)
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“market value”, when used in reference to shares or other property of any company, means the following:
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(a)
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in the case of shares, the average closing sale price of a share during the 30 trading days immediately preceding the date in question:
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(1) on the composite tape for New York Stock Exchange listed shares; or
(2) if the shares are not quoted on the composite tape or not listed on the New York Stock Exchange, on the principal United States securities
exchange registered under Exchange Act, which may include the NASDAQ Stock Market, on which the shares are listed; or
(3) if the shares
are not listed on any such exchange, on any system then in use.
If no quotation under clauses (1) through (3) is available, then the
market value is the fair market value on the date in question of the shares as determined in good faith by the governing body of the company.
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(b)
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in the case of property other than cash or shares, the fair market value of the property on the date in question as determined in good faith by the governing body of the company.
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(xii)
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“parent” of a specified company means a company that directly, or indirectly through related companies, owns more than 50 percent (50%) of the voting power of the shares or other ownership interests
entitled to vote for directors or other members of the governing body of the specified company;
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(xiii)
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“person” includes a natural person and a company;
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(xiv)
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“related company” of a specified company means:
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(a)
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a parent or subsidiary of the specified company;
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(b)
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another subsidiary of a parent of the specified company;
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(c)
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a limited liability company owning, directly or indirectly, more than 50 percent (50%) of the voting power of the shares entitled to vote for directors of the specified company;
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(d)
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a limited liability company having more than 50 percent (50%) of the voting power of its membership interests entitled to vote for members of its governing body owned directly or indirectly by the specified
company;
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(e)
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a limited liability company having more than 50 percent (50%) of the voting power of its membership interests entitled to vote for members of its governing body owned directly or indirectly either (1) by a
parent of the specified company or (2) a limited liability company owning, directly or indirectly, more than 50 percent (50%) of the voting power of the shares entitled to vote for directors of the specified company; or
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59
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(f)
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a company having more than 50 percent (50%) of the voting power of its shares entitled to vote for directors owned directly or indirectly by a limited liability company owning, directly or indirectly, more than
50 percent (50%) of the voting power of the shares entitled to vote for directors of the specified company;
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(xv)
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“security” means a note, stock, treasury stock, security future, bond, debenture, evidence of indebtedness, certificate of interest or participation in a profit-sharing agreement, collateral trust certificate,
preorganization certificate or subscription, transferable share, investment contract, voting trust certificate, certificate of deposit for a security, fractional undivided interest in oil, gas, or other mineral rights, put, call, straddle, option,
or privilege on a security, certificate of deposit, or group or index of securities, including an interest therein or based on the value thereof, put, call, straddle, option, or privilege entered into on a national securities exchange relating to
foreign currency, or, in general, an interest or instrument commonly known as a “security”; or a certificate of interest or participation in, temporary or interim certificate for, receipt for, guarantee of, or warrant or right to subscribe
to or purchase, any of the foregoing. The term:
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(a)
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includes both a certificated and an uncertificated security;
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(b)
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does not include an insurance or endowment policy or annuity contract under which an insurance company promises to pay a fixed or variable sum of money either in a lump sum or periodically for life or other specified
period;
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(c)
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does not include an interest in a contributory or noncontributory pension or welfare plan subject to the United States Employee Retirement Income Security Act of 1974, as amended;
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(d)
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includes as an “investment contract,” among other contracts, an interest in a limited partnership and a limited liability company and an investment in a viatical settlement or similar agreement; and
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(e)
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does not include any equity interest of a closely held corporation or other entity with not more than thirty-five (35) holders of the equity interest of such entity offered or sold pursuant to a transaction in
which 100 percent (100%) of the equity interest of such entity is sold as a means to effect the sale of the business of the entity if the transaction has been negotiated on behalf of all purchasers and if all purchasers have access to inside
information regarding the entity before consummating the transaction;
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(xvi)
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“share acquisition date”, with respect to any person, means the date that the person first becomes an interested Member of the Company. Notwithstanding the foregoing, if a person becomes, on one or more dates,
an interested Member of the Company, but thereafter ceases to be an interested Member of the Company, and subsequently again becomes an interested Member of the Company, “share acquisition date,” with respect to that person means the date
on which the person most recently became an interested Member of the Company; and
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(xvii)
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“subsidiary” of a specified company means a company having more than 50 percent (50%) of the voting power of its shares or other ownership interests entitled to vote for directors or other members of the
governing body of the company owned directly, or indirectly through related companies, by the specified company.
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60
CONTROL SHARE ACQUISITION
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200.1.
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Any Shares of the Company acquired by an acquiring person in a control share acquisition that resulted in the acquiring person holding between twenty percent (20%) and thirty percent (30%) of the voting rights of the
Company, to the extent such Shares exceed twenty percent (20%) of the voting rights of the Company, shall only have the voting rights as shall be accorded to them pursuant to Article 200.6.
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200.2.
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An acquiring person shall deliver to the Company at its registered office an information statement containing all of the following:
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(i)
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the identity and background of the acquiring person, including the identity and background of each member of any partnership, limited partnership, syndicate, or other group constituting the acquiring person, and the
identity and background of each affiliate and associate of the acquiring person, including the identity and background of each affiliate and associate of each member of such partnership, syndicate, or other group; provided, however, that with
respect to a limited partnership, the information need only be given with respect to a partner who is denominated or functions as a general partner and each affiliate and associate of the general partner;
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(ii)
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a reference that the information statement is made under this Article;
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(iii)
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the number and class or series of Shares of the Company beneficially owned, directly or indirectly, before the control share acquisition by each of the persons identified pursuant to paragraph (i);
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(iv)
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the number and class or series of Shares of the Company acquired or proposed to be acquired pursuant to the control share acquisition by each of the persons identified pursuant to paragraph (i);
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(v)
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the terms of the control share acquisition or proposed control share acquisition, including, but not limited to, the source of funds or other consideration and the material terms of the financial arrangements for the
control share acquisition; plans or proposals of the acquiring person (including plans or proposals under consideration) to (1) liquidate or dissolve the Company, (2) sell all or a substantial part of its assets, or merge it or exchange
its shares with any other person, (3) change the location of its principal place of business or its registered office or of a material portion of its business activities, (4) change materially its management or policies of employment,
(5) change materially its charitable or community contributions or its policies, programs, or practices relating thereto, (6) change materially its relationship with suppliers or customers or the communities in which it operates, or
(7) make any other material change in its business, corporate structure, management or personnel; and other objective facts as would be substantially likely to affect the decision of a Member with respect to voting on the control share
acquisition.
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200.3.
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If any material change occurs in the facts set forth in the information statement, including but not limited to any material increase or decrease in the number of Shares of the Company acquired or proposed to be
acquired by the persons identified pursuant to paragraph 200.2 (i), the acquiring person shall promptly deliver to the Company at its registered office an amendment to the information statement containing information relating to the material change.
An increase or decrease or proposed increase or decrease equal, in the aggregate for all persons identified pursuant to paragraph 200.2 (i), to one percent (1%) or more of the total number of outstanding Shares of any class or series of the Company
shall be deemed “material” for purposes of this Article 200.3; an increase or decrease or proposed increase or decrease of less than this amount may be material, depending upon the facts and circumstances.
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61
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200.4.
|
If the acquiring person so requests in writing at the time of delivery of an information statement pursuant to 200.2, and has made, or has made a bona fide written offer to make, a control share acquisition and gives a
written undertaking to pay or reimburse the Company’s expenses of an extraordinary general meeting, except the expenses of the Company in opposing according voting rights with respect to Shares acquired or to be acquired in the control share
acquisition, within ten (10) days after receipt by the Company of the information statement, an extraordinary general meeting of the Members of the Company shall be called pursuant to Article 76, for the sole purpose of considering the voting
rights to be accorded to Shares referred to in Article 200.1, acquired or to be acquired pursuant to the control share acquisition. The extraordinary general meeting shall be held no later than 55 days after receipt of the information statement and
written undertaking to pay or reimburse the Company’s expenses of the extraordinary general meeting, unless the acquiring person agrees to a later date. If the acquiring person so requests in writing at the time of delivery of the information
statement, (1) the extraordinary general meeting shall not be held sooner than 30 days after receipt by the Company of the information statement and (2) the record date for the meeting must be at least 30 days prior to the date of the
meeting. If no request for an extraordinary general meeting is made, consideration of the voting rights to be accorded to Shares referred to in Article 200.1, acquired or to be acquired pursuant to the control share acquisition shall be presented at
the next annual general meeting or extraordinary general meeting of the Members of which notice has not been given, unless prior thereto the matter of the voting rights becomes moot. The Company is not required to have the voting rights to be
accorded to Shares acquired or to be acquired according to a control share acquisition considered at the next annual general meeting or extraordinary general meeting unless it has received the information statement and documents required by Article
200.5 at least 55 days before the meeting. The notice of the meeting shall at a minimum be accompanied by a copy of the information statement (and a copy of any amendment to the information statement previously delivered to the Company) and a
statement disclosing that the Board recommends approval of, expresses no opinion and is remaining neutral toward, recommends rejection of, or is unable to take a position with respect to according voting rights to Shares referred to in Article
200.1, acquired or to be acquired in the control share acquisition. Any amendments to the information statement received after mailing of the notice of the meeting must be mailed promptly to the Members by the Company.
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200.5.
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Notwithstanding anything to the contrary contained in this Article, no extraordinary general meeting shall be called pursuant to Article 200.4 and no consideration of the voting rights to be accorded to Shares referred
to Article 200.1 acquired or to be acquired pursuant to a control share acquisition shall be presented at any annual general meeting or extraordinary general meeting unless, at the time of delivery of the information statement pursuant to Article
200.2, the acquiring person shall have entered into, and shall deliver to the Company a copy or copies of, a definitive financing agreement or definitive financing agreements, with one or more responsible financial institutions or other entities
having the necessary financial capacity, for any financing of the control share acquisition not to be provided by funds of the acquiring person. A financing agreement is not deemed not definitive for purposes of this Article solely because it
contains conditions or contingencies customarily contained in term loan agreements with financial institutions.
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200.6.1.
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Shares referred to in Article 200.1 acquired by an acquiring person in a control share acquisition shall have the same voting rights as other Shares of the same class or series only if approved (i) by Ordinary
Resolution of the Members of the Company and (ii) by Ordinary Resolution of the Members of the Company excluding votes cast with respect to interested shares at an annual general meeting or an extraordinary general meeting of Members pursuant
to Article 200.4.
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200.6.2.
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To have the voting rights accorded by approval of a resolution of Members, any proposed control share acquisition not consummated prior to the time of the Member approval must be consummated within 180 days after the
Member approval.
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200.6.3.
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Any Shares referred to in Article 200.1 acquired in a control share acquisition that do not have voting rights accorded to them by approval of a resolution of Members shall regain their voting rights upon transfer to a
person other than the acquiring person or any affiliate or associate of the acquiring person unless the acquisition of the Shares by the other person constitutes a control share acquisition, in which case the voting rights of the Shares are subject
to the provisions of this Article.
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200.7.
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The Company shall have the option to redeem all, but not less than all, the Shares referred to in Article 200.1 acquired in a control share acquisition, at a redemption price equal to the market value of the Shares at
the time the redemption notice is given, in the event (1) an information statement has not been delivered to the Company by the acquiring person by the tenth day after the control share acquisition, or (2) an information statement has been
delivered but the Members have voted not to accord voting rights to such Shares pursuant to Article 200.6.1. The redemption notice shall be given by the Company within 30 days after the event giving the Company the option to redeem the Shares and
the Shares shall be redeemed within 60 days after the notice is given.
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200.8.
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This Article 200 may only be amended by a Special Resolution of the Members. In determining whether the Special Resolution has been adopted by the general meeting, votes cast with respect to interested Shares shall not
be taken into account. Notwithstanding the foregoing, this Article 200 may be waived with respect to a particular control share acquisition by a committee of the Board comprised solely of Directors who:
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(i)
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are neither officers nor employees of, nor were during the five (5) years preceding the formation of the committee, officers or employees of, the Company or a related company;
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(ii)
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are neither acquiring persons nor affiliates or associates of an acquiring person;
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(iii)
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were not nominated for election as Directors by an acquiring person or an affiliate or associate of an acquiring person; and
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(iv)
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were Directors at the time an acquiring person became an acquiring person or were nominated, elected, or recommended for election as Directors by a majority of those Directors.
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200.9.
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As used in this Article 200 only, the term:
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(i)
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“acquiring person” means a person that makes or proposes to make a control share acquisition. When two or more persons act as a partnership, limited partnership, syndicate, or other group pursuant to any
written or oral agreement, arrangement, relationship, understanding, or otherwise for the purposes of acquiring, owning, or voting Shares of the Company, all members of the partnership, syndicate, or other group constitute a “person.” For
the avoidance of doubt, the former shareholders of Covidien plc and Medtronic will not be deemed to have acted in concert with one another in acquiring Shares in the Company as consideration for the acquisition by the Company of Covidien plc and
Medtronic.
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(ii)
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“acquiring person” does not include (a) a licensed broker/dealer or licensed underwriter who
(1) purchases Shares of the Company solely for purposes of resale to the public and (2) is not acting in concert with an acquiring person, or (b) a person who becomes entitled to exercise or direct the exercise of between twenty
percent (20%) and thirty percent (30%) of the voting rights of the Company solely as a result of a repurchase of Shares by, or recapitalisation of, the Company or similar action unless (1) the repurchase, recapitalisation, or similar action was
proposed by or on behalf of, or pursuant to any written or oral agreement, arrangement, relationship, understanding, or otherwise with, the
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person or any affiliate or associate of the person or (2) the person thereafter acquires beneficial ownership, directly or indirectly, of Shares entitled to vote of the Company and,
immediately after the acquisition, is entitled to exercise or direct the exercise of the between 20 and 30 percent of voting rights of the Company, as the person became entitled to exercise as a result of the repurchase, recapitalisation, or
similar action.
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(iii)
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“affiliate” has the meaning given to this term in Article 199.7(i);
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(iv)
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“associate” has the meaning given to this term in Article 199.7(ii):
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(v)
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“beneficial ownership” has the meaning given to this term in Article 199.7(iii);
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(vi)
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“control share acquisition” means an acquisition, directly or indirectly, by an acquiring person of beneficial ownership of Shares of the Company that, except for this Article 200, would, when added to all
other Shares of the Company beneficially owned by the acquiring person, entitle the acquiring person, immediately after the acquisition, to exercise or direct the exercise of at least 20 percent but less than 30 percent of the voting power
of the Company but does not include any of the following:
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(a)
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an acquisition by a donee pursuant to an inter vivos gift not made to avoid this Article or by a distributee (as defined below);
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(b)
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an acquisition pursuant to a security agreement not created to avoid this Article;
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(c)
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an acquisition by way of a merger whereby a company merges with one or more companies, resulting in a single company, with or without a business purpose, pursuant to a plan of merger, if the Company is a party to the
transaction;
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(d)
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an acquisition by way of exchange whereby a company acquires all of the outstanding shares of one or more classes or series of another company pursuant to a plan of exchange, if the Company is a party to the
transaction;
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(e)
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an acquisition by way of transfer whereby a company sells, leases, transfers, or otherwise disposes of all or substantially all of its property and assets, if the Company is a party to the transaction;
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(f)
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an acquisition by way of merger or exchange with a limited liability company whereby a company participates in a merger or exchange with a limited liability company, if the Company is a party to the transaction;
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(g)
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an acquisition from the Company;
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(h)
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an acquisition for the benefit of others by a person acting in good faith and not made to avoid this Article, to the extent that the person may not exercise or direct the exercise of the voting power or disposition of
the Shares except upon the instruction of others;
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(i)
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an acquisition pursuant to a savings, employee stock ownership, or other employee benefit plan of the Company or any of its subsidiaries, or by a fiduciary of the plan acting in a fiduciary capacity pursuant to the
plan; or
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(j)
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an acquisition pursuant to an offer to purchase for cash pursuant to a tender offer, or to exchange for shares
pursuant to an exchange offer, all Shares of the voting Shares of the Company (1) that has been approved by a majority vote of the members of a committee composed solely of one or more disinterested members of the Board formed pursuant to
Article 199.4, before the commencement of, or the
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public announcement of the intent to commence, the tender or exchange offer; and (2) pursuant to which the acquiring person will become the owner of over 50 percent of the voting Shares
of the Company outstanding at the time of the transaction;
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For purposes of this Article, Shares beneficially owned by a
plan described in clause (i), or by a fiduciary of a plan described in clause (i) pursuant to the plan, are not deemed to be beneficially owned by a person who is a fiduciary of the plan;
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(vii)
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“distributee” means any person who has received or who will receive property of a decedent from the decedent’s personal representative other than as a creditor or purchaser. A testamentary trustee is a
distributee with respect to property which the trustee has received from a personal representative only to the extent of distributed assets or their increment remaining in the trustee’s hands. A beneficiary of a testamentary trust to whom the
trustee has distributed property received from a personal representative is a distributee of the personal representative. For purposes of this provision, “testamentary trustee” includes a trustee to whom assets are transferred by will, to
the extent of the devised assets;
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(viii)
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“interested shares” means the Shares of the Company beneficially owned by any of the following persons: (1) the acquiring person, (2) any officer of the Company, or (3) any employee of the
Company who is also a director of the Company; and
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(ix)
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“market value” has the meaning given to it in Article 199.7 (xi).
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FAIR PRICE
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201.1.
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An offeror may not acquire Shares of the Company within two years following the last purchase of Shares pursuant to a takeover offer with respect to that class, including, but not limited to, acquisitions made by
purchase, exchange, merger, consolidation, liquidation, redemption, reverse stock split, recapitalisation, reorganisation, or any other similar transaction, unless the Member is afforded, at the time of the proposed acquisition, a reasonable
opportunity to dispose of the Shares to the offeror upon substantially equivalent terms as those provided in the earlier takeover offer.
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201.2.
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Article 201.1 does not apply if the proposed acquisition of Shares is approved, before the purchase of any Shares by the offeror pursuant to the earlier takeover offer, by a committee of the board, comprised solely of
Directors who:
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(i)
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neither are officers or employees of, nor were during the five (5) years preceding the formation of the committee officers or employees of, the Company or a related company;
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(ii)
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are neither the offerors nor affiliates or associates of the offeror;
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(iii)
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were not nominated for election as Directors by the offeror or an affiliate or associate of the offeror; and
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(iv)
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were Directors at the time of the first public announcement of the takeover offer or were nominated, elected, or recommended for election as directors by a majority of those Directors.
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65
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201.3.
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As used in this Article 201 only, the term:
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(i)
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“affiliate” has the meaning given to that term in Article 199.7 (i);
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(ii)
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“associate” has the meaning given to that term in Article 199.7 (ii);
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(iii)
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“offeror” means a person who makes or in any way participates in making a takeover offer. Offeror does not include a bank or broker-dealer loaning funds to an offeror in the ordinary course of its business or
a bank, broker-dealer, attorney, accountant, consultant, employee, or other person furnishing information or advice to or performing ministerial duties for an offeror and not otherwise participating in the takeover offer. When two or more persons
act as a partnership, limited partnership, syndicate, or other group pursuant to any agreement, arrangement, relationship, understanding, or otherwise, whether or not in writing, for the purpose of acquiring, owning, or voting shares of a target
company, all members of the partnership, syndicate, or other group constitute “a person.”;
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(iv)
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“takeover offer” means an offer to acquire Shares of the Company from a Member pursuant to a tender offer or request or invitation for tenders, if, after the acquisition of all Shares acquired pursuant to the
offer:
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(a)
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the offeror would be directly or indirectly a beneficial owner of more than ten percent (10%) of any class or series of the outstanding Shares of the Company and was directly or indirectly the beneficial owner of ten
percent (10%) or less of that class or series of the outstanding Shares of the Company before commencement of the offer; or
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(b)
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the beneficial ownership by the offeror of any class or series of the issued and outstanding Shares of the Company would be increased by more than ten percent (10%) of that class or series and the offeror was directly
or indirectly the beneficial owner of ten percent (10%) or more of any class or series of the outstanding Shares of the Company before commencement of the offer.
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(v)
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Takeover offer does not include:
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(a)
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an offer in connection with the acquisition of a Share which, together with all other acquisitions by the offeror of Shares of the same class or series of Shares of the Company, would not result in the offeror having
acquired more than two percent (2%) of that class or series during the preceding
12-month
period; or
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(b)
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an offer by the Company to acquire its own Shares unless the offer is made during the pendency of a takeover offer by a person who is not an associate or affiliate of the issuer.
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GREENMAIL RESTRICTIONS
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202.1.
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Except for redemptions under Article 200.7, the Company shall not, directly or indirectly, purchase or agree to
purchase any Shares entitled to vote from a person (or two or more persons who act as a partnership, limited partnership, syndicate, or other group pursuant to any written or oral agreement, arrangement, relationship, understanding, or otherwise for
the purpose of acquiring, owning, or voting Shares of the Company) who beneficially owns more than five percent (5%) of the voting power of the Company for more than the market value thereof if the Shares have been beneficially owned by the person
for less than two (2) years, unless (1) the purchase or agreement to purchase is approved at a meeting of Members by the affirmative vote of the holders of not less than a majority of the issued and outstanding Shares
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of the Company entitled to vote or (2) the Company makes an offer, of at least equal value per Share, to all holders of Shares of the class or series and to all holders of any class or
series into which the securities may be converted. For purposes of determining the period that shares have been beneficially owned by a person:
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(i)
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shares acquired by the person by gift from a donor are deemed to have first become beneficially owned by the person when the shares were acquired by the donor;
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(ii)
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shares acquired by a trust from the settlor of the trust, or shares acquired from the trust by a beneficiary of the trust, are deemed to have first become beneficially owned by the trust or the beneficiary when the
shares were acquired by the settlor; and
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(iii)
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shares acquired by an estate or personal representative as a result of the death or incapacity of a person, or shares acquired from the estate or personal representative by an heir, devisee, or beneficiary of the
deceased or incapacitated person, are deemed to have first become beneficially owned by the estate, personal representative, heir, devisee, or beneficiary when the shares were acquired by the deceased or incapacitated person.
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202.2.
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As used in this Article 202 only, the term:
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(i)
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“market value” has the meaning given to it in Article 199.7 (xi).
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67
We, the corporate body whose name and address is subscribed, wish to be formed into a company in pursuance of
this memorandum of association, and we agree to take the number of shares in the capital of the Company set opposite our respective names.
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Name, Address and Description
of the
Subscriber
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Number of shares
taken by the
Subscriber
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For and on behalf of
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Goodbody Trustees Limited
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One Ordinary Share of
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IFSC, North Wall Quay, Dublin 1
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EUR€1.00 each
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Limited Liability Company
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Dated
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Witness to the above signature:
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Name:
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Address:
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Occupation:
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68
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Exhibit 3.3
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eurotraduc
société de
traduction
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CERTIFIED TRANSLATION
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THE ORIGINAL AND THE TRANSLATION BEAR THE SAME NUMBER:
900178
The
undersigned Luc PETRY, sworn translator registered with the Higher Court of Justice of and in Luxembourg, hereby certifies having verified the present translation with a French – English translator.
Page 1 of 7.
31/01/2017
Eurotraduc may not be held liable for translation errors resulting
from documents that are handwritten, not easily legible, erroneous or incomplete.
A translation of diplomas does not in any event represent an equivalence, which must be requested from the authorities of the
country having awarded them. Eurotraduc declines any responsibility regarding the exactness of diploma titles.
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eurotraduc
société de
traduction
86, rue de Luxembourg
L-4221 Esch-sur-Alzette
Tél. 47 46 76
Fax
: 46 19 20
info@eurotraduc.lu
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86, rue de Luxembourg
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tél.: +352 47 46 76
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BCEELULL
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LU11 0019 1000 3336 0000
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TVA LU 11020725
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L-4221 Esch-sur-Alzette
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fax: +352 46 19 20
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BILLLULL
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LU22 0021 1016 8440 0000
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R.C. Luxembourg B 12741
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www.eurotraduc.lu
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info@eurotraduc.lu
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CELLLULL
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LU34 0141 3339 9120 0000
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Matricule 1975 2401 759
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Page 1/3
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Registre de Commerce
et des
Sociétés
Luxembourg
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EXTRAIT
Medtronic Global Holdings S.C.A.
Numéro d’immatriculation :
B191129
Date d’immatriculation
21/10/2014
Dénomination ou raison sociale
Medtronic Global Holdings S.C.A.
Forme
juridique
Société en commandite par actions
Siège social
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3b
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Boulevard Prince Henri
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Objet social
Extrait de l’inscription : Pour le détail prière de se reporter au dossier
3.1. La Société a pour objet social (i) l’acquisition, la détention et la cession, sous quelque forme que ce
soit et par tous moyens, par voie directe ou indirecte, de participations, droits, intérêts et engagements dans des sociétés luxembourgeoises ou étrangères, (ii) l’acquisition par achat,
souscription ou de toute autre manière, ainsi que l’aliénation par vente, échange or de toute autre manière de titres, obligations, créances, billets et autres valeurs mobilières ou instruments
financiers de toutes espèces (notamment d’obligations ou de parts émises par des fonds commun de placement luxembourgeois ou par des fonds étrangers, ou tout autre organisme similaire), de prêts ou toute autre
facilité de crédit, ainsi que des contrats portant sur les titres précités ou y relatifs et (iii) la possession, l’administration, le développement et la gestion d’un portefeuille d’actifs
(composé notamment d’actifs tels que ceux définis dans les paragraphes (i) et (ii) ci-dessus). 3.2. La Société peut acquérir ou assumer, directement ou par l’intermédiaire d’une
autre entité ou d’un autre organisme, les risques liés à la détention ou la propriété de titres, de créances et de tous biens ou actifs (incluant des valeurs mobilières de toutes sortes),
mobiliers ou immobiliers, corporels ou incorporels, et/ou les risques liés aux dettes ou engagements de tiers ou inhérents à tout ou partie...
Capital social / Fonds social
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Type
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Montant Devise
Etat de libération
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Fixe
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20 050 000 Dollar des Etats-Unis Total
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Date de constitution
07/10/2014
Durée
Illimitée
Adresse postale: L-2961 Luxembourg Tél.: (+352) 26 428-1
Fax: (+352) 26 42 85 55 www.rcsl.lu
RCSL G.I.E. R.C.S. Luxembourg C24 14, rue Erasme
L-1468 Luxembourg
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Page 2/3
B191129
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Registre de Commerce
et des
Sociétés
Luxembourg
|
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Exercice social
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Premier exercice ou exercice raccourci
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Exercice social
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Du
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Au
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Du
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Au
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01/05/2015
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29/04/2016
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30/04
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29/04
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Administrateur(s) / Gérant(s)
Régime de signature statutaire
La Société sera engagée vis-à-vis des tiers par la signature de l’Actionnaire Commandité ou par la
signature individuelle ou conjointe de toute(s) personne(s) à qui un tel pouvoir de signature a été valablement délégué et dans les limites de ce pouvoir.
Medtronic Global Holdings GP S.à r.l.
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N° d’immatriculation au RCS
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Dénomination ou raison sociale
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B191031
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Medtronic Global Holdings GP S.à r.l.
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Forme juridique
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Société à responsabilité limitée
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Siège social
Numéro Rue
1 rue du Potager
Code postal Localité
Pays
2347
Luxembourg Luxembourg
Type de mandat
Fonction
Actionnaire Commandité
Durée du mandat
Date de nomination Durée du mandat
07/10/2014
Indéterminée
Personne(s)
chargée(s) du contrôle des comptes
PricewaterhouseCoopers
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N° d’immatriculation au RCS
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Dénomination ou raison sociale
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B65477
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PricewaterhouseCoopers
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Forme juridique
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Société coopérative
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Siège social
Numéro Rue
2 rue Gerhard Mercator
Code postal Localité Pays
2182 Luxembourg
Luxembourg
Type de mandat
Réviseur d’entreprises agréé
Durée du mandat
Date de nomination Durée du mandat
jusqu’à l’assemblée générale qui se tiendra en l’année
27/05/2016
Déterminée
2016
Adresse postale: L-2961 Luxembourg
Tél.: (+352) 26 428-1 Fax: (+352) 26 42 85 55 www.rcsl.lu
RCSL G.I.E. R.C.S. Luxembourg C24 14, rue Erasme
L-1468 Luxembourg
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Page 3/3
B191129
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Registre de Commerce
et des
Sociétés
Luxembourg
|
|
Pour extrait conforme
[1]
Luxembourg, le 27/01/2017
Pour le gestionnaire du registre de commerce et des sociétés
[2]
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Signé électroniquement par
RCSL groupement d’intérêt économique
Date de signature Indiquée: 2017-01-27 09:25:15
Numéro de série:
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[1]
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En application de l’article 21 paragraphe 2 de la loi modifiée du 19 décembre 2002 concernant le registre de commerce et des sociétés ainsi que la comptabilité et les comptes
annuels des entreprises et l’article 21 du règlement grand-ducal modifié du 23 janvier 2003 portant exécution de la loi du 19 décembre 2002, le présent extrait reprend au moins la situation à jour des
données communiquées au registre de commerce et des sociétés jusqu’à trois jours avant la date d’émission dudit extrait. Si une modification a été notifiée au registre de
commerce et des sociétés entre temps, il se peut qu’elle n’ait pas été prise en compte lors de l’émission de l’extrait.
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[2]
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Le présent extrait est établi et signé électroniquement. Le gestionnaire du registre de commerce et des sociétés ne garantit l’authenticité de l’origine et
l’intégrité des informations contenues sur le présent extrait par rapport aux informations inscrites au registre de commerce et des sociétés que si le présent extrait comporte une signature
électronique émise par le gestionnaire du registre de commerce et des sociétés.
|
Adresse postale: L-2961 Luxembourg
Tél.: (+352) 26 428-1 Fax: (+352) 26 42 85 55 www.rcsl.lu
RCSL G.I.E. R.C.S. Luxembourg C24 14, rue Erasme
L-1468 Luxembourg
Page 1 of 3
LUXEMBOURG
TRADE & COMPANIES
REGISTER
ABSTRACT
Medtronic Global Holdings S.C.A.
Registration n°:
B191129
Registration date
21
st
October 2014
Corporate name
Medtronic Global Holdings S.C.A.
Legal form
a partnership limited
by shares
Registered Office
Number Street
3b
boulevard Prince Henri
Post Code Township
1724
Luxembourg
Corporate Purpose
3.1. The corporate purpose of the
Company is (i) the acquisition, holding and transfer in any way whatsoever and by any means, either directly or indirectly, by way of participations, rights, interests and commitments in Luxembourg or foreign companies, (ii) the
acquisition by way of purchase, subscription or otherwise as well as the alienation by way of sale, exchange or otherwise of securities, bonds, claims, bills and other transferable securities or financial instruments of any kind (in particular of
corporate bonds or shares issued by Luxembourg collective investment funds or foreign funds, or any similar organisation), loans or any other credit facility, as well as contracts bearing on the aforesaid securities or relating thereto, and
(iii) the possession, administration, development and management of a portfolio of assets (comprising in particular such as those defined at items (i) and (ii) here above. 3.2. The Company may acquire or assume, either directly or
through the intermediary of another entity or organisation, the risks linked to the holding or ownership of securities, claims or any property or assets (inclusive of transferable securities of any kind), whether movable or immovable, tangible or
intangible, and/or the risks linked to the debts or commitments of third parties or inherent in all or part (...)
Corporate capital:
Type Amount
Currency
Payment
Set 20,050,000 United
States Dollar in full
Date of incorporation
Duration
Unlimited
Mail address: L-2961 Luxembourg –
Phone: 26 428-1 – Fax: 26 42 85 55 -
www.rcsl.lu
- RCSL: G.I.E.
Luxembourg Trade & Companies Register C24 – 14, rue
Erasme, L-1468 Luxembourg
Page 2 of 3
B191129
Financial year
First financial year or short year Financial year
From To
From
To
01/05/2015
29/04/2016 30/04
29/04
Director(s)/Manager(s)
Statutory signature regime
Towards third parties, the Company
shall be bound by the individual signature of the Special Shareholder or by the individual or joint signature(s) of any person(s) to whom such power shall have been validly delegated, and within the limits set to such power.
Medtronic Global Holdings GP S.à r.l.
Companies Register n°
Corporate name
B191031
Medtronic Global Holdings GP S.à r.l.
Legal form
Limited liability company
Registered Office:
Number
Street
1
rue du Potager
Post code
Township Country
2347
Luxembourg Luxembourg
Mandate type
Special Shareholder
Period of office
Appointment date Period of office
07/10/2014 indeterminate
Person(s) in charge of the supervision of accounts
PricewaterhouseCoopers
Companies Register n° Corporate name
B65477
PricewaterhouseCoopers
Legal form
Cooperative company
Registered Office:
Number
Street
2
rue Gerhard Mercator
Post code
Township Country
2182
Luxembourg Luxembourg
Mandate type
Authorised independent auditor
Period of office
Appointment date
Period of office Until the General Meeting to be held in
27/05/2016 set
2016
Page 3 of 3
B191129
Certified true abstract
(
1)
Luxembourg,
27 January 2017
For the Manager of the Trade and Companies Register
(2)
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Electronically signed by
Trade &
Companies Register
Economic Interest Group
Recorded signature
date: 2017-01-27 09:25:15
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(1)
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By application of Article 21 paragraph 2 of the amended law of 19 December 2002 on the Trade and Companies Register as well as the accounting and annual accounts of companies and Article 21 of the amended Grand
Ducal Regulation of 23 January 2003 decreeing the application of the law of 19 December 2002, the present abstract shows at the least the updated situation of the data communicated to the Trade and Companies Register up to three days prior
to the date of issue of the said abstract. If a modification has in the meantime been notified to the Trade and Companies Register, it may be that it was not yet taken into account at the time of issue of the abstract.
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(2)
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This abstract was drawn up and signed electronically. The administrator of the trade and companies register can only guarantee the authenticity of the source and integrity of the information contained in this extract in
relation to the information held in the trade and companies register if this extract bears an electronic signature issued by the administrator of the trade and companies register.
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Exhibit 3.6
AMENDED AND RESTATED
BY-LAWS
OF
MEDTRONIC, INC.
*****************
ARTICLE I
OFFICES
SECTION 1. REGISTERED
OFFICE. The registered office of the corporation shall be designated in the corporation’s Articles of Incorporation, as they may be amended from time to time.
SECTION 2. OTHER OFFICES. The corporation may have other offices, either within or without the State of Minnesota, at such place or places as
the Board of Directors may from time to time appoint or the business of the corporation may require.
ARTICLE II
MEETING OF SHAREHOLDERS
SECTION
1. TIME AND PLACE. Regular meetings and any special meetings of shareholders shall be held at such place, either within or without the State of Minnesota, and at such time and date as the Board of Directors, by resolution, shall determine and as set
forth in the notice of the meeting or in a duly executed waiver of notice thereof.
SECTION 2. REGULAR MEETINGS. At each regular meeting,
the shareholders entitled to vote shall elect a Board of Directors and they may transact such other corporate business as shall be stated in the notice of the meeting.
SECTION 3. SPECIAL MEETINGS. Meetings of stockholders for any purpose other than the election of directors may be called at any time by the
Chief Executive Officer or Secretary, or by the Board of Directors acting upon majority vote.
SECTION 4. VOTING. Each shareholder
entitled to vote in accordance with the terms of the Articles of Incorporation and in accordance with the provisions of these
By-Laws
shall be entitled to one vote, in person or by proxy, for each share of
stock entitled to vote held by such shareholder. Upon the demand of any shareholder, the vote for directors and the vote upon any question before the meeting shall be by ballot. All elections for directors shall be decided by plurality vote. Except
as otherwise provided by the Articles of Incorporation or the Minnesota Business Corporation Act (as it may be amended from time to time, the “MBCA”), all other matters shall be decided by majority vote of the shares present or represented
by proxy at such meeting and entitled to vote on such matters.
SECTION 5. QUORUM. The holders of a majority of the voting power of the shares entitled to vote
at a meeting, represented either in person or by proxy, shall constitute a quorum for the transaction of business at any meeting of shareholders. In case a quorum shall not be present at any meeting, a majority of the voting power of the shares
entitled to vote thereat, present in person or by proxy, shall have the power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until the requisite amount of stock entitled to vote shall be present. At
any such adjourned meeting at which the requisite voting power shall be represented, any business may be transacted which might have been transacted at the meeting as originally noticed; but only those shareholders entitled to vote at the meeting as
originally noticed shall be entitled to vote at any adjournment or adjournments thereof.
SECTION 6. NOTICE OF MEETINGS. Written notice,
stating the place, date and time of the meeting, and the general nature of the business to be considered, shall be given to each shareholder entitled to vote thereat at his address as it appears in the records of the corporation, not less than four
nor more than sixty days before the date of the meeting. No business other than that stated in the notice shall be transacted at any meeting without the unanimous consent of all the shareholders entitled to vote thereat.
SECTION 7. ACTION WITHOUT MEETING. Unless otherwise provided by the Articles of Incorporation, any action required to be taken at any special
or regular meeting of shareholders, or any action which may be taken at any such special or regular meeting, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall
be signed by all of the corporation’s shareholders.
ARTICLE III
DIRECTORS
SECTION 1. NUMBER AND
TERM. The Board of Directors shall consist of one or more natural persons, as determined by a resolution of the Board of Directors. A director shall hold office until a successor is elected and qualified, or until the earlier death, resignation,
disqualification, or removal of the director.
SECTION 2. RESIGNATIONS. Any director, member of a committee or other officer may resign at
any time. Such resignation shall be made in writing, and shall take effect at the time specified therein, and if no time be specified, at the time of its receipt by the Chief Executive Officer or Secretary. The acceptance of a resignation shall not
be necessary to make it effective.
SECTION 3. VACANCIES. If a vacancy on the Board of Directors or any committee occurs by reason of
death, resignation, disqualification, removal or otherwise or if a newly created directorship results from an increase in the number of directors, the remaining directors in office, though less than a quorum, by a majority vote, may appoint any
qualified person to fill such vacancy, who shall hold office for the unexpired term and until his successor shall be duly chosen.
SECTION
4. REMOVAL. Except as hereinafter provided, any director or directors may be removed either for or without cause at any time by the affirmative vote of the holders of a
2
majority of all the shares of stock outstanding and entitled to vote, at a special meeting of the shareholders called for the purpose and the vacancies thus created may be filled, at the meeting
held for the purpose of removal, by the affirmative vote of a majority in interest of the shareholders entitled to vote.
SECTION 5.
POWERS. The Board of Directors shall exercise all of the powers of the corporation except such as are by the MBCA, or by the Articles of Incorporation of the corporation or by these
By-Laws
conferred upon or
reserved to the shareholders.
SECTION 6. COMMITTEES. The Board of Directors may, by resolution approved by the affirmative vote of a
majority of the Board of Directors, establish committees having the authority of the Board of Directors in the management of the business of the corporation only to the extent provided in the resolution. Each such committee shall consist of one or
more natural persons (who need not be directors) appointed by affirmative vote of a majority of the directors present at a duly held Board of Directors meeting, and shall, except in the case of a committee of disinterested persons, be subject at all
times to the direction and control of the Board of Directors. A majority of the members of a committee shall constitute a quorum for the transaction of business.
The Board of Directors may by resolution establish a committee composed of two or more disinterested directors or other disinterested persons
to determine whether it is in the best interests of the corporation to pursue a particular legal right or remedy of the corporation and whether to cause the dismissal or discontinuance of a particular proceeding that seeks to assert a right or
remedy on behalf of the corporation. Such committee, once established, is not subject to the direction or control of, or termination by, the Board of Directors. A vacancy on the committee may be filled by a majority vote of the remaining committee
members. The good faith determinations of the committee are binding upon the corporation and its directors, officers and shareholders.
SECTION 7. MEETINGS. Meetings of the Board of Directors may be held from time to time at any place within or without the State of Minnesota
that the Board of Directors may designate. The Chairman of the Board or any two directors may call a Board meeting by directing the Chief Executive Officer or Secretary in writing to give at least two days’ notice to all other directors of the
date and time of the meeting. The notice need not state the purpose of the meeting, and may be given by mail, telephone, electronic communication, or in person. If a meeting schedule is adopted by the Board, or if the date and time of a Board
meeting has been announced at a previous meeting, no notice is required.
Unless otherwise restricted by the Articles of Incorporation or
by these
By-Laws,
members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting of the Board of Directors, or any committee, by means of conference
telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting.
SECTION 8. QUORUM. A majority of the directors shall constitute a quorum for the transaction of business. If at any meeting of the Board of
Directors there shall be less than a
3
quorum present, a majority of those present may adjourn the meeting from time to time until a quorum is obtained, and no further notice thereof need be given other than by announcement at the
meeting which shall be so adjourned.
SECTION 9. COMPENSATION. Directors shall not receive any stated salary for their services as
directors or as members of committees, but by resolution of the board a fixed fee and expenses of attendance may be allowed for attendance at each meeting. Nothing herein contained shall be construed to preclude any director from serving the
corporation in any other capacity as an officer, agent or otherwise, and receiving compensation therefor.
SECTION 10. ACTION WITHOUT
MEETING. Unless otherwise set forth in the Articles of Incorporation, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting, if prior to such action a
written consent thereto is signed by all members of the board, or of such committee as the case may be, and such written consent is filed with the minutes of proceedings of the board or committee.
ARTICLE IV
OFFICERS
SECTION 1. OFFICERS. The officers of the corporation shall be
a
Chief Executive Officer, a Chief Financial Officer, and a
Secretary. In addition, the Board of Directors may elect or appoint such other officers or agents as it deems necessary for the operation and management of the corporation with such powers, rights, duties and responsibilities as may be determined by
the Board of Directors, including, but not limited to, a Chairman of the Board of Directors, one or more Executive Officers, a Secretary, and a Controller, each of whom shall have the powers, rights, duties and responsibilities set forth in these
By-Laws
unless otherwise determined by the Board of Directors. Any of the offices or functions of those offices may be held by the same person. Other than the Chairman of the Board of Directors, none of the officers
of the corporation need be directors. Two or more offices may be held by the same person.
SECTION 2. ELECTION AND TERM OF OFFICE. The
officers shall be elected at the first meeting of the Board of Directors after each regular meeting or such other time as is desired by the Board of Directors. Unless otherwise provided at the time of election or appointment, each officer shall hold
office until such officer’s successor is elected and qualified or until such officer’s earlier death, resignation, or removal. Any officer may be removed with or without cause by the affirmative vote of a majority of the entire Board of
Directors (without prejudice, however, to any contract rights of such officer). Any officer may resign at any time by giving written notice to the corporation. The resignation is effective without acceptance when the notice is given to the
corporation, unless a later effective date is specified in the notice.
SECTION 3. CHAIRMAN. The Chairman of the Board of Directors, if
one be elected, shall preside at all meetings of the Board of Directors and he/she shall have and perform such other duties as from time to time may be assigned by the Board of Directors.
SECTION 4. CHIEF EXECUTIVE OFFICER. Unless provided otherwise by a resolution adopted by the Board of Directors, the Chief Executive Officer
(a) shall have general
4
active management of the business of the corporation; (b) shall, when present and in the absence of the Chairman of the Board, preside at all meetings of the shareholders and Board of
Directors; (c) shall see that all orders and resolutions of the Board of Directors are carried into effect; (d) shall sign and deliver in the name of the corporation any deeds, mortgages, bonds, contracts or other instruments pertaining to
the business of the corporation, except in cases in which the authority to sign and deliver is required by law to be exercised by another person or is expressly delegated by the Articles of Incorporation, these
By-Laws
or the Board of Directors to some other officer or agent of the corporation; (e) may appoint such divisional or staff officers, a secretary, a treasurer and a controller, each of whom shall have
the powers, rights, duties and responsibilities delegated to him or her by the Chief Executive Officer; (f) may maintain records of and certify proceedings of the Board and shareholders; and (g) shall perform such other duties as may from
time to time be assigned by the Board. Unless the Board of Directors elects a President, the Chief Executive Officer shall also be the President of the corporation.
SECTION 5. VICE PRESIDENT. Each Vice President shall have such powers and shall perform such duties as shall be assigned to him or her by the
directors or the Chief Executive Officer. In the event of absence or disability of the Chief Executive Officer, the Board of Directors may designate a Vice President or Vice Presidents to succeed to the powers and duties of the Chief Executive
Officer until a successor Chief Executive Officer has been appointed and qualified.
SECTION 6. CHIEF FINANCIAL OFFICER. Unless provided
otherwise by a resolution adopted by the Board of Directors, the Chief Financial Officer (a) shall keep accurate financial records for the corporation; (b) shall deposit all monies, drafts and checks in the name of and to the credit of the
corporation in such banks and depositories as the Board of Directors shall designate from time to time; (c) shall endorse for deposit all notes, checks and drafts received by the corporation as ordered by the Board of Directors, making proper
vouchers therefor; (d) shall disburse corporate funds and issue checks and drafts in the name of the corporation, as ordered by the Board of Directors; (e) shall render to the Chief Executive Officer and the Board of Directors, whenever
requested, an account of all of such officer’s transactions as Chief Financial Officer and of the financial condition of the corporation; and (f) shall perform such other duties as may be prescribed by the Board of Directors or the Chief
Executive Officer from time to time. Unless the Board of Directors elects a Treasurer, the Chief Financial Officer shall also be the Treasurer of the corporation
SECTION 7. SECRETARY. The Secretary shall give, or cause to be given, notice of all meetings of shareholders and directors, and all other
notices required by the MBCA or by these
By-Laws,
and in case of his absence or refusal or neglect so to do, any such notice may be given by any person thereunto directed by the Chief Executive Officer, or by
the directors, or shareholders, upon whose requisition the meeting is called as provided in these
By-Laws.
The Secretary shall record all the proceedings of the meetings of the corporation and of the directors
in a book to be kept for that purpose and shall have and perform such other duties as may be assigned by the directors or the Chief Executive Officer.
SECTION 8. ASSISTANT TREASURERS AND ASSISTANT SECRETARIES. Assistant Treasurers and Assistant Secretaries, if any, shall be elected and shall
have such powers and shall perform such duties as shall be assigned to them, respectively, by the Board of Directors or the Chief Executive Officer.
5
SECTION 9. DELEGATION. Unless prohibited by a resolution approved by the affirmative vote of a
majority of the directors present, an officer elected or appointed by the Board of Directors (or an officer or agent appointed by the Chief Executive Officer pursuant to Section IV.4 hereof) may, without the approval of the Board of Directors
or the Chief Executive Officer (as the case may be), delegate some or all of the duties and powers of the office to other persons.
ARTICLE
V
SHARES OF THE CORPORATION AND THEIR TRANSFER
SECTION 1. CERTIFICATES OF STOCK. Shares of the corporation may be certificated or uncertificated, as provided under the MBCA. The
certificates for such stock shall be numbered (separately for each class) in the order in which they shall be issued and shall be signed in the name of the corporation by the Chairman or by the Chief Executive Officer or any Vice President, and by
the Chief Financial Officer, any Assistant Treasurer, Secretary or any Assistant Secretary. Any signature upon a certificate may be a facsimile. Certificates on which a facsimile signature of a former officer, transfer agent, or registrar appears
may be issued with the same effect as if such person were an officer, transfer agent, or registrar on the date of issue.
SECTION 2. LOST
CERTIFICATES. A duplicate certificate of stock may be issued in the place of any certificate theretofore issued by the corporation, alleged to have been lost or destroyed, and the directors may, in their discretion, require the owner of the lost or
destroyed certificate, or his legal representatives, to give the corporation a bond, in such sum as they may direct, not exceeding double the value of the stock, to indemnify the corporation against any claim that may be made against it on account
of the alleged loss of any such certificate, or the issuance of any such duplicate certificate.
SECTION 3. TRANSFER OF SHARES. The shares
of stock of the corporation shall be transferable upon its books only by the shareholder named in the certificate or by their duly authorized attorneys or legal representatives, and upon surrender of the old certificates to the corporation by the
delivery thereof to the person in charge of the stock and transfer books and ledgers, or to such other person as the directors may designate, by whom they shall be cancelled, and new certificates shall thereupon be issued. The shareholder in whose
name shares of stock stand on the books of the corporation shall be deemed the owner thereof for all purposes as regards the corporation; provided, that when any transfer of shares shall be made as collateral security and not absolutely, such fact,
if known to the corporation or to the transfer agent, shall be so expressed in the entry of transfer; and provided, further, that the Board of Directors may establish a procedure whereby a shareholder may certify that all or a portion of the shares
registered in the name of the shareholder are held for the account of one or more beneficial owners.
SECTION 4. SHAREHOLDERS RECORD DATE.
The Board of Directors may fix a date, not exceeding sixty days preceding the date of any meeting of shareholders, as a record date for the determination of the shareholders entitled to notice of and entitled to vote at such
6
meeting. When a date is so fixed, only shareholders on that date are entitled to notice of and permitted to vote at that meeting of shareholders, notwithstanding any transfer of any shares on the
books of the corporation after any record date so fixed.
ARTICLE VI
GENERAL PROVISIONS
SECTION 1.
DISTRIBUTIONS, ACQUISITIONS OF SHARES. The Board of Directors may authorize distributions upon the shares of the corporation or acquisitions by the corporation of such shares to the extent permitted by the MBCA.
SECTION 2. NO CORPORATE SEAL. The corporation shall not have a corporate seal.
SECTION 3. FISCAL YEAR. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.
SECTION 4. CHECKS. All checks, drafts or other orders for the payment of money, notes or other evidences of indebtedness issued in the name of
the corporation shall be signed by such officer or officers, agent or agents of the corporation, and in such manner as shall be determined from time to time by resolutions of the Board of Directors.
SECTION 5. NOTICE AND WAIVER OF NOTICE. Whenever any notice is required by these
By-Laws
to be given,
personal notice is not meant unless expressly so stated, and any notice so required shall be deemed to be sufficient if given by depositing the same in the United States mail, postage prepaid, addressed to the person entitled thereto at his address
as it appears on the records of the corporation, and such notice shall be deemed to have been given on the day of such mailing. Shareholders not entitled to vote shall not be entitled to receive notice of any meetings except as otherwise provided by
the MBCA.
Whenever any notice whatever is required to be given under the provisions of any law, or under the provisions of the Articles
of Incorporation of the corporation or these
By-Laws,
a waiver thereof in writing or by electronic transmission, signed or evidenced by the person or persons entitled to said notice, whether before or after
the time stated therein, shall be deemed equivalent to the actual required notice. Attendance in person or by proxy by a person at a meeting, or delivery of advance written consent to a proposal to be acted on at the meeting, shall constitute a
waiver of notice of such meeting except when the person attends a meeting for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened.
SECTION 6. SECURITIES OF OTHER ENTITIES. Unless otherwise ordered by the Board of Directors, the Chief Executive Officer shall have full power
and authority on behalf of the corporation (i) to attend and to vote at any meeting of security holders of other entities in which the corporation may hold securities; (ii) to execute any proxy for such meeting; and (iii) to execute a
written action in lieu of a meeting of such other entity. At such meeting, by such proxy or by such writing in lieu of meeting, the Chief Executive Officer shall possess and may exercise any and all rights and powers incident to the ownership of
such securities that the corporation might have possessed and exercised if it had been present. The Board of Directors may, from time to time, confer like powers upon any other person or persons.
7
Unless otherwise ordered by the Board of Directors, the Chief Executive Officer shall have full
power and authority on behalf of the corporation to purchase, sell, transfer or encumber any and all securities of any other entity owned by the corporation which represent not more than ten percent (10%) of the outstanding securities of such other
entity, and may execute and deliver such documents as may be necessary to effectuate such purchase, sale, transfer or encumbrance. The Board of Directors may, from time to time, confer like powers upon any other person or persons.
ARTICLE VII
INDEMNIFICATION,
ADVANCEMENT AND INSURANCE
SECTION 1. NATURE OF INDEMNITY. The corporation shall indemnify and advance expenses to the fullest extent set
forth in the MBCA to any person who is or was or has agreed to become a director, officer, or employee of the corporation, or has been elected or appointed to serve as a member of a committee of the Board of Directors (collectively,
“Indemnitee”).
SECTION 2. ADVANCES. If the Indemnitee is made or threatened to be made a party to a proceeding, the Indemnitee
is entitled, upon written request to the corporation, to payment or reimbursement by the corporation of reasonable expenses, including attorneys’ fees and disbursements, incurred by the Indemnitee in advance of the final disposition of the
proceeding, provided the Indemnitee meets the requirements set forth in the MBCA.
SECTION 3. DETERMINATION THAT
INDEMNIFICATION/ADVANCEMENT OF EXPENSES IS PROPER. All determinations as to whether the Indemnitee has met the criteria set forth in the MBCA such that the Indemnitee is entitled to indemnification or to the payment or reimbursement of expenses in
advance of the final disposition of a proceeding shall be made by or on behalf of the corporation pursuant to the procedures provided in the MBCA.
SECTION 4. PROCEDURE FOR INDEMNIFICATION/ADVANCEMENT. Any indemnification of, or advance of expenses to, the Indemnitee shall be made
promptly, and in any event within thirty days, upon the written request of the Indemnitee If the corporation does not make a determination within thirty days that indemnification of the Indemnitee is improper in the circumstances because he/she has
not met the applicable standard of conduct set forth in MBCA or if the corporation fails to respond within thirty days to the Indemnitee’s written request for indemnification or advancement of expenses, the corporation shall be deemed to have
approved such request. If the corporation denies a written request for indemnity or advancement of expenses, in whole or in part, or if payment in full pursuant to such request is not made within thirty days, the right to indemnification or advances
as granted by this Article shall be enforceable by the Indemnitee in any court of competent jurisdiction. Such Indemnitee’s costs and expenses incurred in connection with successfully establishing his/her right to indemnification, in whole or
in part, in any such action shall also be indemnified by the corporation. It shall be a defense to any such action (other than an action brought to enforce a claim for the advance of costs, charges and expenses under Section 2 of this Article
where the required undertaking, if any, has been received by the corporation) that the claimant has not met the standard of conduct set forth in the MBCA, but the burden of proving such defense shall be on the corporation. Neither the failure of the
corporation (including its Board of Directors or a committee thereof, its independent legal counsel, and its shareholders) to have made a
8
determination prior to the commencement of such action that indemnification of, or advancement to, the Indemnitee is proper in the circumstances because he/she has met the applicable standard of
conduct set forth in the MBCA nor the fact that there has been an actual determination by the corporation (including its Board of Directors, its independent legal counsel, or its shareholders) that the Indemnitee has not met such applicable standard
of conduct, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct.
SECTION 5. SURVIVAL; PRESERVATION OF OTHER RIGHTS. The foregoing indemnification provisions shall be deemed to be a contract between the
corporation and each Indemnitee at any time while these provisions as well as the relevant provisions of the MBCA are not in effect and any repeal or modification thereof shall not affect any right or obligation then existing with respect to any
state of facts then or previously existing or any action, suit, or proceeding previously or thereafter brought or threatened based in whole or in part upon any such state of facts. Such a “contract right” may not be modified retroactively
without the consent of such indemnitee.
The indemnification provided by this Article shall not be deemed exclusive of any other rights to
which those indemnified may be entitled under any other bylaw, agreement, vote of shareholders or disinterested directors or otherwise, both as to action in his or her official capacity and as to action in any other capacity while holding such
office, and shall continue as to a person who has ceased to be a director, officer, employee or an elected or appointed member of a committee of the Board of Directors, and shall inure to the benefit of the heirs, executors and administrators of
such a person. The corporation may enter into a separate written agreement with any Indemnitee that expressly provides for indemnification and reimbursement of such person to the full extent permitted by this Article, on the same terms and
conditions provided herein.
SECTION 6. INSURANCE. The corporation may purchase and maintain insurance on behalf of any Indemnitee whether
or not the corporation should have the power to indemnify Indemnitee against such liability under the provisions of this Article.
SECTION
7. SEVERABILITY. If this Article or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the corporation shall nevertheless indemnify each Indemnitee as to costs, charges and expenses (including
attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any action, suit or proceeding, whether civil, criminal, administrative or investigative, including an action by or in the right of the corporation, to the
fullest extent permitted by any applicable portion of this Article that shall not have been invalidated and to the fullest extent permitted by applicable law.
ARTICLE VIII
AMENDMENTS
Unless the Articles of Incorporation provide otherwise, these
By-Laws
may be altered or repealed and
By-Laws
may be made at any regular meeting of the shareholders or at any special meeting thereof if notice of the proposed alteration or repeal or
By-Law
or
By-Laws
to be made be contained in the notice of such special meeting, by the affirmative vote of a majority of the
9
stock issued and outstanding and entitled to vote thereat. These
By-Laws
may also be altered or repealed and
By-Laws
may be made by an affirmative vote of a majority of the Board of Directors, subject to the foregoing power of the shareholders and subject to any other limitations on such authority of the Board as
provided by the laws of the State of Minnesota.
10
Exhibit 4.1
MEDTRONIC GLOBAL HOLDINGS S.C.A.
as Issuer
and
MEDTRONIC PUBLIC LIMITED COMPANY
and
MEDTRONIC, INC.
as Guarantors
TO
WELLS FARGO BANK,
NATIONAL ASSOCIATION,
as Trustee
SENIOR INDENTURE
Dated
as of
TABLE OF CONTENTS*
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ARTICLE 1
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DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
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Section 1.01 Definitions
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Section 1.02 Compliance Certificates and Opinions
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Section 1.03 Form of Documents Delivered to Trustee
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Section 1.04 Acts of Holders; Record Dates
|
|
|
10
|
|
|
|
|
|
Section 1.05 Notices, Etc., to Trustee, Company or Guarantors
|
|
|
12
|
|
|
|
|
|
Section 1.06 Notice to Holders; Waiver
|
|
|
13
|
|
|
|
|
|
Section 1.07 Conflict with Trust Indenture Act
|
|
|
13
|
|
|
|
|
|
Section 1.08 Effect of Headings and Table of Contents
|
|
|
14
|
|
|
|
|
|
Section 1.09 Successors and Assigns
|
|
|
14
|
|
|
|
|
|
Section 1.10 Separability Clause
|
|
|
14
|
|
|
|
|
|
Section 1.11 Benefits of Indenture
|
|
|
14
|
|
|
|
|
|
Section 1.12 Governing Law; Waiver of Jury Trial; Consent to Jurisdiction; Service of
Process
|
|
|
14
|
|
|
|
|
|
Section 1.13 Legal Holidays
|
|
|
15
|
|
|
|
|
|
Section 1.14 USA Patriot Act
|
|
|
15
|
|
|
|
|
|
Section 1.15 Judgment Currency
|
|
|
15
|
|
|
|
|
|
Section 1.16 Force Majeure
|
|
|
15
|
|
|
|
|
|
ARTICLE 2
|
|
|
|
|
|
SECURITY FORMS
|
|
|
|
|
|
|
|
|
Section 2.01 Forms Generally
|
|
|
16
|
|
|
|
|
|
Section 2.02 Form of Face of Security
|
|
|
16
|
|
|
|
|
|
Section 2.03 Form of Reverse of Security
|
|
|
18
|
|
|
|
|
|
Section 2.04 Form of Legend for Securities
|
|
|
20
|
|
|
|
|
|
Section 2.05 Form of Trustee’s Certificate of Authentication
|
|
|
21
|
|
|
|
|
|
Section 2.06 CUSIP Numbers
|
|
|
21
|
|
|
|
|
|
Section 2.07 Form of Guarantee
|
|
|
21
|
|
|
|
|
|
ARTICLE 3
|
|
|
|
|
|
THE SECURITIES
|
|
|
|
|
|
|
|
|
Section 3.01 Amount Unlimited; Issuable in Series
|
|
|
22
|
|
|
|
|
|
|
|
|
|
|
|
Section 3.02 Denominations
|
|
|
25
|
|
|
|
|
|
Section 3.03 Execution, Authentication, Delivery and Dating
|
|
|
25
|
|
|
|
|
|
Section 3.04 Temporary Securities
|
|
|
26
|
|
|
|
|
|
Section 3.05 Registration, Registration of Transfer and Exchange; Certain Transfers and
Exchanges
|
|
|
27
|
|
|
|
|
|
Section 3.06 Mutilated, Destroyed, Lost and Wrongfully Taken Securities
|
|
|
29
|
|
|
|
|
|
Section 3.07 Payment of Interest; Interest Rights Preserved
|
|
|
30
|
|
|
|
|
|
Section 3.08 Persons Deemed Owners
|
|
|
31
|
|
|
|
|
|
Section 3.09 Cancellation
|
|
|
31
|
|
|
|
|
|
Section 3.10 Computation of Interest
|
|
|
32
|
|
|
|
|
|
ARTICLE 4
|
|
|
|
|
|
SATISFACTION AND DISCHARGE
|
|
|
|
|
|
|
|
|
Section 4.01 Satisfaction and Discharge of Indenture
|
|
|
32
|
|
|
|
|
|
Section 4.02 Application of Trust Money
|
|
|
33
|
|
|
|
|
|
ARTICLE 5
|
|
|
|
|
|
REMEDIES
|
|
|
|
|
|
|
|
|
Section 5.01 Events of Default
|
|
|
33
|
|
|
|
|
|
Section 5.02 Acceleration of Maturity; Rescission and Annulment
|
|
|
34
|
|
|
|
|
|
Section 5.03 Collection of Indebtedness and Suits for Enforcement by Trustee
|
|
|
35
|
|
|
|
|
|
Section 5.04 Trustee May File Proofs of Claim
|
|
|
36
|
|
|
|
|
|
Section 5.05 Trustee May Enforce Claims Without Possession of Securities
|
|
|
36
|
|
|
|
|
|
Section 5.06 Application of Money Collected
|
|
|
36
|
|
|
|
|
|
Section 5.07 Limitation on Suits
|
|
|
37
|
|
|
|
|
|
Section 5.08 Unconditional Right of Holders To Receive Principal, Premium and
Interest
|
|
|
38
|
|
|
|
|
|
Section 5.09 Restoration of Rights and Remedies
|
|
|
38
|
|
|
|
|
|
Section 5.10 Rights and Remedies Cumulative
|
|
|
38
|
|
|
|
|
|
Section 5.11 Delay or Omission Not Waiver
|
|
|
38
|
|
|
|
|
|
Section 5.12 Control by Holders
|
|
|
38
|
|
|
|
|
|
Section 5.13 Waiver of Past Defaults
|
|
|
39
|
|
|
|
|
|
Section 5.14 Undertaking for Costs
|
|
|
39
|
|
|
|
|
|
Section 5.15 Waiver of Usury, Stay or Extension Laws
|
|
|
39
|
|
|
|
|
|
ARTICLE 6
|
|
|
|
|
|
THE TRUSTEE
|
|
|
|
|
|
|
|
|
Section 6.01 Certain Duties and Responsibilities
|
|
|
40
|
|
ii
|
|
|
|
|
|
|
|
|
|
Section 6.02 Notice of Defaults
|
|
|
40
|
|
|
|
|
|
Section 6.03 Certain Rights of Trustee
|
|
|
40
|
|
|
|
|
|
Section 6.04 Not Responsible for Recitals or Issuance of Securities
|
|
|
42
|
|
|
|
|
|
Section 6.05 May Hold Securities
|
|
|
42
|
|
|
|
|
|
Section 6.06 Money Held in Trust
|
|
|
43
|
|
|
|
|
|
Section 6.07 Compensation and Reimbursement
|
|
|
43
|
|
|
|
|
|
Section 6.08 Conflicting Interests
|
|
|
44
|
|
|
|
|
|
Section 6.09 Corporate Trustee Required; Eligibility
|
|
|
44
|
|
|
|
|
|
Section 6.10 Resignation and Removal; Appointment of Successor
|
|
|
44
|
|
|
|
|
|
Section 6.11 Acceptance of Appointment by Successor
|
|
|
45
|
|
|
|
|
|
Section 6.12 Merger, Conversion, Consolidation or Succession to Business
|
|
|
47
|
|
|
|
|
|
Section 6.13 Preferential Collection of Claims Against Company
|
|
|
47
|
|
|
|
|
|
Section 6.14 Appointment of Authenticating Agent
|
|
|
47
|
|
|
|
|
|
ARTICLE 7
|
|
|
|
|
|
HOLDERS’ LISTS AND REPORTS BY TRUSTEE, COMPANY AND GUARANTORS
|
|
|
|
|
|
|
|
|
Section 7.01 Company To Furnish Trustee Names and Addresses of Holders
|
|
|
48
|
|
|
|
|
|
Section 7.02 Preservation of Information; Communications to Holders
|
|
|
49
|
|
|
|
|
|
Section 7.03 Reports by Trustee
|
|
|
49
|
|
|
|
|
|
Section 7.04 Reports
|
|
|
49
|
|
|
|
|
|
ARTICLE 8
|
|
|
|
|
|
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
|
|
|
|
|
|
|
|
|
Section 8.01 Company May Consolidate, Etc., Only on Certain Terms
|
|
|
50
|
|
|
|
|
|
Section 8.02 Successor Substituted
|
|
|
51
|
|
|
|
|
|
ARTICLE 9
|
|
|
|
|
|
SUPPLEMENTAL INDENTURES
|
|
|
|
|
|
|
|
|
Section 9.01 Supplemental Indentures Without Consent of Holders
|
|
|
51
|
|
|
|
|
|
Section 9.02 Supplemental Indentures with Consent of Holders
|
|
|
53
|
|
|
|
|
|
Section 9.03 Execution of Supplemental Indentures
|
|
|
54
|
|
|
|
|
|
Section 9.04 Effect of Supplemental Indentures
|
|
|
54
|
|
|
|
|
|
Section 9.05 Conformity with Trust Indenture Act
|
|
|
54
|
|
|
|
|
|
Section 9.06 Reference in Securities to Supplemental Indentures
|
|
|
54
|
|
|
|
|
|
ARTICLE 10
|
|
|
|
|
|
COVENANTS
|
|
|
|
|
|
|
|
|
Section 10.01 Payment of Principal, Premium and Interest
|
|
|
54
|
|
iii
|
|
|
|
|
|
|
|
|
|
Section 10.02 Maintenance of Office or Agency
|
|
|
55
|
|
|
|
|
|
Section 10.03 Money for Securities Payments To Be Held in Trust
|
|
|
55
|
|
|
|
|
|
Section 10.04 Statement by Officers as to Default
|
|
|
57
|
|
|
|
|
|
Section 10.05 Existence
|
|
|
57
|
|
|
|
|
|
Section 10.06 Limitation on Secured Debt
|
|
|
57
|
|
|
|
|
|
Section 10.07 Limitation on Sale and Leaseback Transactions
|
|
|
59
|
|
|
|
|
|
Section 10.08 Waiver of Certain Covenants
|
|
|
60
|
|
|
|
|
|
ARTICLE 11
|
|
|
|
|
|
REDEMPTION OF SECURITIES
|
|
|
|
|
|
|
|
|
Section 11.01 Applicability of Article
|
|
|
60
|
|
|
|
|
|
Section 11.02 Election To Redeem; Notice to Trustee
|
|
|
60
|
|
|
|
|
|
Section 11.03 Selection by Trustee of Securities To Be Redeemed
|
|
|
61
|
|
|
|
|
|
Section 11.04 Notice of Redemption
|
|
|
61
|
|
|
|
|
|
Section 11.05 Deposit of Redemption Price
|
|
|
62
|
|
|
|
|
|
Section 11.06 Securities Payable on Redemption Date
|
|
|
62
|
|
|
|
|
|
Section 11.07 Securities Redeemed in Part
|
|
|
63
|
|
|
|
|
|
ARTICLE 12
|
|
|
|
|
|
SINKING FUNDS
|
|
|
|
|
|
|
|
|
Section 12.01 Applicability of Article
|
|
|
63
|
|
|
|
|
|
Section 12.02 Satisfaction of Sinking Fund Payments with Securities
|
|
|
63
|
|
|
|
|
|
Section 12.03 Redemption of Securities for Sinking Fund
|
|
|
63
|
|
|
|
|
|
ARTICLE 13
|
|
|
|
|
|
DEFEASANCE AND COVENANT DEFEASANCE
|
|
|
|
|
|
|
|
|
Section 13.01 Company’s Option To Effect Defeasance or Covenant Defeasance
|
|
|
64
|
|
|
|
|
|
Section 13.02 Defeasance and Discharge
|
|
|
64
|
|
|
|
|
|
Section 13.03 Covenant Defeasance
|
|
|
64
|
|
|
|
|
|
Section 13.04 Conditions to Defeasance or Covenant Defeasance
|
|
|
65
|
|
|
|
|
|
Section 13.05 Deposited Money and U.S. Government Obligations To Be Held in Trust;
Miscellaneous Provisions
|
|
|
67
|
|
|
|
|
|
Section 13.06 Reinstatement
|
|
|
68
|
|
|
|
|
|
ARTICLE 14
|
|
|
|
|
|
GUARANTEES
|
|
|
|
|
|
|
|
|
Section 14.01 Note Guarantee
|
|
|
68
|
|
|
|
|
|
Section 14.02 Limitation on Guarantor Liability
|
|
|
69
|
|
iv
|
|
|
|
|
|
|
|
|
|
Section 14.03 Execution and Delivery
|
|
|
70
|
|
|
|
|
|
Section 14.04 Subrogation
|
|
|
70
|
|
|
|
|
|
Section 14.05 Benefits Acknowledged
|
|
|
70
|
|
|
|
|
|
Section 14.06 Release of Note Guarantees
|
|
|
71
|
|
|
|
|
|
Section 14.07 Guarantors May Consolidate, Etc., Only on Certain Terms; Successor
Substituted
|
|
|
71
|
|
|
|
|
|
ARTICLE 15
|
|
|
|
|
|
ADDITIONAL AMOUNTS; CERTAIN TAX PROVISIONS
|
|
|
|
|
|
|
|
|
Section 15.01 Redemption Upon Changes in Withholding Taxes
|
|
|
73
|
|
|
|
|
|
Section 15.02 Payment of Additional Amounts
|
|
|
73
|
|
v
Certain Sections of this Indenture
relating to Sections 310 through 318, inclusive, of the
Trust Indenture
Act of 1939:*
|
|
|
|
|
Trust Indenture
Act Section
§ 310 (a)(1)
|
|
Indenture
Section
6.09
|
|
(a)(2)
(a)(3)
(a)(4)
(b)
|
|
6.09
Not Applicable Not Applicable
6.08
|
|
|
|
6.10
|
|
|
|
|
|
§ 311(a)
|
|
6.13
|
|
(b)
|
|
6.13
|
|
§ 312(a)
|
|
7.01
|
|
|
|
7.02
|
|
(b)
|
|
7.02
|
|
(c)
|
|
7.02
|
|
§ 313(a)
|
|
7.03
|
|
(b)
|
|
7.03
|
|
(c)
|
|
7.03
|
|
(d)
|
|
7.03
|
|
§ 314(a)
|
|
7.04
|
|
(a)(4)
|
|
1.01
|
|
(b)
|
|
10.04
Not Applicable
|
|
(c)(1)
|
|
1.02
|
|
(c)(2)
(c)(3)
(d)
(e)
|
|
1.02
Not Applicable
Not Applicable
1.02
|
|
§ 315(a)
|
|
6.01
|
|
(b)
|
|
6.02
|
|
(c)
|
|
6.01
|
|
(d)
|
|
6.01
|
|
(e)
|
|
5.14
|
|
§ 316(a)
|
|
1.01
|
|
(a)(1)(A)
|
|
5.02
|
|
|
|
5.12
|
|
(a)(1)(B)
(a)(2)
(b)
|
|
5.13
Not Applicable
5.08
|
|
(c)
|
|
1.04
|
|
§ 317(a)(1)
|
|
5.03
|
|
(a)(2)
|
|
5.04
|
|
(b)
|
|
10.03
|
|
§ 318(a)
|
|
1.07
|
Note: This
cross-reference table shall not, for any purpose, be deemed part of the Indenture.
vi
INDENTURE, dated as of
, among MEDTRONIC GLOBAL HOLDINGS S.C.A., a corporate partnership limited by shares (
société en
commandite par actions
) organized under the laws of the Grand Duchy of Luxembourg (the “
Company
”), MEDTRONIC PUBLIC LIMITED COMPANY, a public limited company incorporated under the laws of Ireland (“
Parent
”),
MEDTRONIC, INC., a Minnesota corporation (“
Medtronic, Inc.
”), and Wells Fargo Bank, National Association, a national banking association duly organized under the laws of the United States, as Trustee (herein called the
“
Trustee
”).
Recitals of the Company
The Company has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its debentures,
notes or other evidences of indebtedness (herein called the “
Securities
”), to be issued in one or more series as provided in this Indenture.
Parent and Medtronic, Inc. have duly authorized the execution and delivery of this Indenture to guarantee the Securities.
All things necessary to make this Indenture
a valid agreement of the Company, Parent and Medtronic, Inc. in accordance with its terms,
have been done.
NOW, THEREFORE, THIS INDENTURE
WITNESSETH:
In consideration of the promises and the purchase of the Securities by the Holders thereof, each party agrees as follows for the benefit of
each other and for the equal and proportionate benefit of all Holders of the Securities or of any series thereof:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01
Definitions.
For all purposes of this Indenture, except as otherwise expressly provided or unless the
context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to them in this Article and include the
plural as well as the singular;
(b) all other terms used herein which are defined in the Trust Indenture
Act, either directly
or by reference therein, have the meanings assigned to them therein;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting principles, and, except as otherwise herein expressly provided, the term “
generally accepted accounting principles
” with respect to any computation required
or permitted hereunder shall mean such accounting principles as are generally accepted in the United States of America at the date of such computation;
(d) unless the context otherwise requires, any reference to an “
Article
” or a “
Section
” refers to an
Article or a Section, as the case may be, of this Indenture; and
1
(e) the words “
herein
”, “
hereof
” and
“
hereunder
” and other words of similar import refer to this Indenture
as a whole and not to any particular Article, Section or other subdivision.
“
Act
” when used with respect to any Holder, has the meaning specified in Section 1.04.
“
Additional Amounts
” has the meaning specified in Section 15.02.
“
Affiliate
” of any specified Person means any other Person directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified Person. For the purposes of this definition, “
control
” when used with respect to any specified Person means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “
controlling
” and “
controlled
” have meanings correlative to the foregoing.
“
Attributable Debt
” in respect of any lease means, at the time of determination, the present value (discounted at the rate of
interest implicit in the terms of the lease) of the obligation of the lessee for net rental payments during the remaining term of the lease (including any period for which such lease has been extended or may, at the option of the lessor, be
extended). “
Net rental payments
” under any lease for any period means the sum of the rental and other payments required to be paid in such period by the lessee thereunder, not including, however, any amounts required to be paid by
such lessee (whether or not designated as rental or additional rental payments) on account of maintenance and repairs, insurance, taxes, assessments or similar charges required to be paid by such lessee thereunder or any amounts required to be paid
by such lessee thereunder contingent upon the amount of sales, maintenance and repairs, insurance, taxes, assessments or similar charges.
“
Authenticating Agent
” means any Person authorized by the Trustee pursuant to Section 6.14 to act on behalf of the
Trustee to authenticate Securities of one or more series.
“
Bankruptcy Default
” has the meaning specified in
Section 5.01.
“
Board of Directors
” means, with respect to the Company, either the board of directors of the Company
or any duly authorized committee of that board and, with respect to any Guarantor, the board of directors or any duly authorized committee of that board.
“
Board Resolution
” means a copy of a resolution certified by the Secretary or an Assistant Secretary or a Director of the
Company or any Guarantor to have been duly adopted by the applicable Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee.
“
Business Day
” when used with respect to any Place of Payment, means any day, other than a Saturday or Sunday, that is
neither a legal holiday nor a day on which banking institutions, in that Place of Payment are authorized or required by law, regulation or executive order to close.
“
Capital Lease
” means, with respect to any Person, any lease of any property which, in conformity with generally accepted
accounting principles, is required to be capitalized on the balance sheet of such Person.
2
“
Capital Stock
” means, with respect to any Person, any and all shares of stock
of a corporation, partnership interests or other equivalent interests (however designated, whether voting or
non-voting)
in such Person’s equity, entitling the holder to receive a share of the profits and
losses, and a distribution of assets, after liabilities, of such Person.
“
CIFSA
” means Covidien International Finance
S.A., a Luxembourg company and an indirect, wholly-owned subsidiary of Parent.
“
Code
” means the United States Internal
Revenue Code of 1986, as amended.
“
Commission
” means the Securities and Exchange Commission, from time to time
constituted, created under the Exchange Act, or, if at any time after the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties
at such time.
“
Company
” means the Person named as the “
Company
” in the first paragraph of this
instrument until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “
Company
” shall mean such successor Person.
“
Company Request
” or “
Company Order
” means a written request or order signed in the name of the Company,
Parent or Medtronic, Inc., as the case may be, by its Chairman, its President, any Vice President, its Treasurer, its Assistant Treasurer, its General Counsel, its Secretary or its Assistant Secretary, and delivered to the Trustee.
“
Consolidated Net Tangible Assets
” means, at the date of determination, the aggregate amount of total assets which would
appear on the consolidated balance sheet of Parent (less applicable reserves and other properly deductible items) after deducting therefrom (a) all current liabilities (excluding any indebtedness for money borrowed having a maturity of less
than 12 months from the date of the then most recent consolidated balance sheet of Parent but which by its terms is renewable or extendible beyond 12 months from such date at the option of the borrower) and (b) all goodwill, trade names,
patents, unamortized debt discount and expense and any other like intangibles, all as set forth on Parent’s then most recent consolidated balance sheet and computed in accordance with generally accepted accounting principles.
“
Corporate Trust Office
” means the designated office of the Trustee or the Security Registrar, as the case may be, at which
at any particular time its corporate trust business will be administered, which office for the Trustee as of the date hereof is located at Wells Fargo Bank, National Association, Corporate Trust Services, 600 South 4th Street, 6th Floor,
Minneapolis, Minnesota, Attn: Administrator for Medtronic.
“
Corporation
” means a corporation, association, company,
joint-stock company or business trust.
“
Covenant Defeasance
” has the meaning specified in Section 13.03.
“
Debt
” means, with respect to any Person, without duplication:
(i) all indebtedness of such Person for borrowed money; and
3
(ii) all obligations of such Person evidenced by bonds, debentures, notes or other similar
instruments.
The amount of Debt of any Person will be deemed to be:
(A) with respect to Debt secured by a Lien on an asset of such Person but not otherwise the obligation, contingent or otherwise, of such
Person, the lesser of (1) the fair market value of such asset on the date the Lien attached and (2) the amount of such Debt;
(B) with respect to any Debt issued with original issue discount, the face amount of such Debt less the remaining unamortized portion of
the original issue discount of such Debt; and
(C) otherwise, the outstanding principal amount thereof.
“
Default
” has the meaning specified in Section 6.02.
“
Defaulted Interest
” has the meaning specified in Section 3.07.
“
Defeasance
” has the meaning specified in Section 13.02.
“
Depositary
” means, with respect to Securities of any series issuable in whole or in part in the form of one or more Global
Securities, a clearing agency registered under the Exchange Act that is designated to act as Depositary for such Securities as contemplated by Section 3.01.
“
Event of Default
” has the meaning specified in Section 5.01.
“
Exchange Act
” means the Securities Exchange Act of 1934 and any statute successor thereto, in each case as amended from time
to time.
“
Expiration Date
” has the meaning specified in Section 1.04.
“
Foreign Government Obligation
” has the meaning specified in Section 13.04.
“
Funded Debt
” means Debt which by its terms matures at, or is extendible or renewable at the option of the obligor to, a date
more than 12 months after the date of the creation of such Debt.
“
Global Security
” means a Security that evidences all
or part of the Securities of any series and bears the legend set forth in Section 2.04 (or such legend as may be specified as contemplated by Section 3.01 for such Securities).
“
Guarantee
” means any obligation, contingent or otherwise, of any Person directly or indirectly guaranteeing any Debt or
other obligation of any other Person and, without limiting the generality of the foregoing, any obligation, direct or indirect, contingent or otherwise, of such Person (i) to purchase or pay (or advance or supply funds for the purchase or
payment of) such Debt or other obligation of such other Person (whether arising by virtue of partnership arrangements, or by agreement to keep-well, to purchase assets, goods, securities or services, to
4
take-or-pay,
or to maintain financial statement conditions or otherwise) or (ii) entered into for purposes of
assuring in any other manner the obligee of such Debt or other obligation of the payment thereof or to protect such obligee against loss in respect thereof, in whole or in part;
provided
that the term “Guarantee” does not include
endorsements for collection or deposit in the ordinary course of business. The term “Guarantee” used as a verb has a corresponding meaning.
“
Guaranteed Bonds
” means (i) Medtronic, Inc.’s outstanding Floating Rate Notes due 2017, 0.875% Senior Notes due
2017, 1.375% Senior Notes due 2018, 1.500% Senior Notes due 2018, 5.600% Senior Notes due 2019, 4.450% Senior Notes due 2020, 2.500% Senior Notes due 2020, Floating Rate Notes due 2020, 4.125% Senior Notes due 2021, 3.125% Senior Notes due 2022,
3.150% Senior Notes due 2022, 2.750% Senior Notes due 2023, 3.625% Senior Notes due 2024, 3.500% Senior Notes due 2025, 4.375% Senior Notes due 2035, 6.500% Senior Notes due 2039, 5.550% Senior Notes due 2040, 4.500% Senior Notes due 2042, 4.000%
Senior Notes due 2043, 4.625% Senior Notes due 2044, and 4.625% Senior Notes due 2045, (ii) CIFSA’s 6.000% Senior Notes due 2017, 4.200% Senior Notes due 2020, 3.200% Senior Notes due 2022, 2.950% Senior Notes due 2023 and 6.550% Senior Notes
due 2037 and (iii) any notes or debentures that (1) are issued by the Company or Medtronic, Inc. after the date hereof, (2) are guaranteed by Parent, the Company and/or Medtronic, Inc. and (3) are at the time of issuance or which
later become, whether in connection with an exchange of securities or otherwise, registered pursuant to the Securities Act.
“
Guarantor
” means each of Parent and Medtronic, Inc. and its respective successors.
“
Holder
” means a Person in whose name a Security is registered in the Security Register.
“
Incur
” means, with respect to any Debt, to incur, create, issue, assume or Guarantee such Debt. If any Person becomes a
Restricted Subsidiary on any date after the date of the Indenture, the Debt of such Person outstanding on such date will be deemed to have been Incurred by such Person on such date for purposes of Section 10.06. The accretion of original issue
discount or payment of interest in kind will not be considered an Incurrence of Debt.
“
Indenture
” means this instrument
as originally executed and as it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof, including, for all purposes of this instrument and any
such supplemental indenture, the provisions of the Trust Indenture
Act that are deemed to be a part of and govern this instrument and any such supplemental indenture, respectively. The term “Indenture” shall also include the terms
of a particular series of Securities established as contemplated by Section 3.01.
“
Independent Financial Firm
”
means an accounting, appraisal or investment banking firm or consultant, in each case of nationally recognized standing, that is, in the good faith determination of the Company, qualified to perform the task for which it has been engaged.
“
Interest
” when used with respect to an Original Issue Discount Security which by its terms bears interest only after
Maturity, means interest payable after Maturity.
“
Interest Payment Date
” means, when used with respect to any Security,
the Stated Maturity of an installment of interest on such Security.
“
Investment Company Act
” means the Investment
Company Act of 1940 and any statute successor thereto, in each case as amended from time to time.
5
“
Judgment Currency
” has the meaning specified in Section 1.15.
“
Lien
” means any mortgage, pledge, security interest, encumbrance, lien or charge of any kind (including any conditional sale
or other title retention agreement or Capital Lease).
“
Maturity
” when used with respect to any Security, means the date
on which the principal of such Security or an installment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.
“
Medtronic, Inc.
” has the meaning specified in the preamble hereto.
“
Mortgage
” means any mortgage, pledge, lien or other encumbrance.
“
Note Guarantee
” means the Guarantee of the Securities by the Guarantors and the Company’s obligations thereunder.
“
Notice of Default
” means a written notice of the kind specified in Section 5.01(e).
“
Officers’ Certificate
” means a certificate signed by the Chairman of the Board of Directors, the President or Chief
Executive Officer or a Vice President, and by the Chief Financial Officer, the Treasurer or any Assistant Treasurer, the Secretary or an Assistant Secretary or a Director, of the Company or any Guarantor, as the case may be, and delivered to the
Trustee.
“
Opinion of Counsel
” means a written opinion of counsel, who may be an employee of or counsel for the Company
or any Guarantor, and who shall be acceptable to the Trustee.
“
Original Issue Discount Security
” means any Security
which provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 5.02.
“
Outstanding
”
when used with respect to Securities, means, as of the date of determination, all Securities theretofore
authenticated and delivered under this Indenture
(including Securities held by the Company or an Affiliate of the Company),
except
:
(1) Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;
(2) Securities for whose payment or redemption money in the necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for the Holders of such Securities;
provided
that, if such Securities are to be redeemed,
notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made;
(3) Securities as to which Defeasance has been effected pursuant to Section 13.02; and
6
(4) Securities which have been paid or in exchange for or in lieu of which other Securities
have been authenticated and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Securities are held by a
bona fide
purchaser in whose hands such Securities are valid obligations of the Company;
provided
,
however
, that in determining whether the Holders of the requisite principal amount of the Outstanding Securities have given, made or taken any
request, demand, authorization, direction, notice, consent, waiver or other action hereunder as of any date, (A) the principal amount of an Original Issue Discount Security which shall be deemed to be Outstanding shall be the amount of the
principal thereof which would be due and payable as of such date upon acceleration of the Maturity thereof to such date pursuant to Section 5.02, (B) if, as of such date, the principal amount payable at the Stated Maturity of a Security is not
determinable, the principal amount of such Security which shall be deemed to be Outstanding shall be the amount as specified or determined as contemplated by Section 3.01, (C) the principal amount of a Security denominated in one or more
foreign currencies or currency units which shall be deemed to be Outstanding shall be the U.S. dollar equivalent, determined as of such date in the manner provided as contemplated by Section 3.01, of the principal amount of such Security (or,
in the case of a Security described in Clause (A) or (B) above, of the amount determined as provided in such Clause), and (D) Securities owned by the Company or any other obligor upon the Securities or any Affiliate of the Company or of
such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent, waiver or other action,
only Securities which a Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction
of the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is not the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor.
“
Parent
” has the meaning specified in the preamble hereto.
“
Paying Agent
” means any Person authorized by the Company to pay the principal of or any premium or interest on any
Securities on behalf of the Company.
“
Permitted Debt
” has the meaning specified in Section 10.06.
“
Person
” means any individual, corporation, partnership, joint venture, trust, unincorporated organization, limited liability
company or government or any agency or political subdivision thereof.
“
Place of Payment
” when used with respect to the
Securities of any series, means the place or places where the principal of and any premium and interest on the Securities of that series are payable as specified as contemplated by Section 3.01.
“
Predecessor Security
” of any particular Security means every previous Security evidencing all or a portion of the same debt
as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 3.06 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed
to evidence the same debt as the mutilated, destroyed, lost or stolen Security.
7
“
Principal Property
” means any plant, office facility, warehouse, distribution
center or equipment located within the United States (other than its territories or possessions) and owned by Parent or any Subsidiary, the gross book value (without deduction of any depreciation reserves) of which on the date as of which the
determination is being made exceeds 2% of the Consolidated Net Tangible Assets of Parent, except any such property which Parent’s Board of Directors, in its good faith opinion, determines is not of material importance to the business conducted
by Parent and its Subsidiaries, taken as a whole, as evidenced by a Board Resolution.
“
Redemption Date
” when used with
respect to any Security to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture.
“
Redemption
Price
” when used with respect to any Security to be redeemed, means the price at which it is to be redeemed pursuant to this Indenture.
“
Regular Record Date
” for the interest payable on any Interest Payment Date on the Securities of any series means the date
specified for that purpose as contemplated by Section 3.01.
“
Required Currency
” has the meaning specified in
Section 1.15.
“
Responsible Officer
” when used with respect to the Trustee, means any officer in the Corporate Trust
Office of the Trustee or any other officer of the Trustee customarily performing functions similar to those performed by any of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer to
whom such matter is referred because of his knowledge of and familiarity with the particular subject, in each case who shall have direct responsibility for the administration of this Indenture.
“
Restricted Subsidiary
” means (i) each of the Company and Medtronic, Inc. and (ii) any other Subsidiary of Parent
which owns or leases a Principal Property, except any Subsidiary substantially all of the assets of which are located, or substantially all of the business of which is carried on, outside the United States and its territories and possessions.
“
Sale and Leaseback Transaction
” means, with respect to any Person, an arrangement whereby such Person enters into a lease of
property previously transferred by such Person to the lessor.
“
Securities
” has the meaning stated in the first recital
of this Indenture and more particularly means any Securities authenticated and delivered under this Indenture.
“
Securities
Act
” means the Securities Act of 1933 and any statute successor thereto, in each case as amended from time to time.
“
Security Register
” and “
Security Registrar
” have the respective meanings specified in Section 3.05.
8
“
Stated Maturity
” when used with respect to any Security or any installment of
principal thereof or interest thereon, means the date specified in such Security as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable.
“
Subsidiary
” means a corporation, partnership or other legal entity of which, in the case of a corporation, more than 50% of
the outstanding voting stock is owned, directly or indirectly, by Parent or by one or more other Subsidiaries, or by Parent and one or more other Subsidiaries or, in the case of any partnership or other legal entity, more than 50% of the ordinary
equity capital interests is, at the time, directly or indirectly owned or controlled by Parent or by one or more of the Subsidiaries or by Parent and one or more other Subsidiaries. For the purposes of this definition, “
voting
stock
” means stock which ordinarily has voting power for the election of directors, whether at all times or only so long as no senior class of stock has such voting power by reason of any contingency.
“
Successor Security
” of any particular Security means every Security issued after, and evidencing all or a portion of the
same debt as that evidenced by, such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 3.06 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall
be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security.
“
Taxes
” has the meaning
specified in Section 15.02.
“
Taxing Jurisdiction
” has the meaning specified in Section 15.01.
“
Trust Indenture
Act
” means the Trust Indenture Act of 1939 (15 U.S.C. § 77aaa-77bbbb) as in force at the date as
of which this instrument was executed;
provided
,
however
, that in the event the Trust Indenture
Act of 1939 is amended after such date, “
Trust Indenture Act
” means, to the extent required by any such amendment,
the Trust Indenture
Act of 1939 as so amended.
“
Trustee
” means the Person named as the “
Trustee
”
in the first paragraph of this instrument until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “
Trustee
” shall mean or include each Person who is then a Trustee
hereunder, and if at any time there is more than one such Person, “
Trustee
” as used with respect to the Securities of any series shall mean the Trustee with respect to Securities of that series.
“
U.S. Government Obligation
” has the meaning specified in Section 13.04.
“
Vice President
” when used with respect to the Company, any Guarantor or the Trustee, means any vice president, whether or
not designated by a number or a word or words added before or after the title “
vice president
.”
Section
1.02
Compliance Certificates and Opinions
.
Upon any application or request by the Company or any Guarantor to the Trustee to
take any action under any provision of this Indenture, the Company or such Guarantor, as applicable,
9
shall furnish to the Trustee an Officers’ Certificate and an Opinion of Counsel. Each such Officers’ Certificate and Opinion of Counsel shall comply with the requirements of the Trust
Indenture Act and any other requirements set forth in this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall (except for certificates provided in Section 10.04) include:
(a) a
statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto;
(b) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(c) a statement that, in the opinion of each such individual, he has made such examination or
investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.
Section 1.03
Form of Documents Delivered to Trustee
.
In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other
such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
Any
certificate or opinion of an officer of the Company or any Guarantor may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable
care should know, that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion is based are erroneous. Any such certificate or opinion of counsel may be based, insofar as it relates to factual
matters, upon a certificate or opinion of, or representations by, an officer or officers of the Company or applicable Guarantor stating that the information with respect to such factual matters is in the possession of the Company or applicable
Guarantor, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.
Section 1.04
Acts of
Holders; Record Dates
.
Any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted
by this Indenture
to be given, made or taken by Holders may be embodied
10
in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by agent duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Company. Such instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the “
Act
” of the Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of
this Indenture
and (subject to Section 6.01) conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section.
The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof. Where such execution
is by a signer acting in a capacity other than his individual capacity, such certificate or affidavit shall also constitute sufficient proof of his authority. The fact and date of the execution of any such instrument or writing, or the authority of
the Person executing the same, may also be proved in any other manner which the Trustee deems sufficient.
The ownership of Securities
shall be proved by the Security Register.
Any request, demand, authorization, direction, notice, consent, waiver or other Act of the
Holder of any Security shall bind every future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered
to be done by the Trustee, the Company or any Guarantor in reliance thereon, whether or not notation of such action is made upon such Security.
The Company may set any day as a record date for the purpose of determining the Holders of Outstanding Securities of any series entitled to
give, make or take any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture
to be given, made or taken by Holders of Securities of such series
;
provided
that
the Company may not set a record date for, and the provisions of this paragraph shall not apply with respect to, the giving or making of any notice, declaration, request or direction referred to in the next paragraph. If any record date is set
pursuant to this paragraph, the Holders of Outstanding Securities of the relevant series on such record date, and no other Holders, shall be entitled to take the relevant action, whether or not such Holders remain Holders after such record date;
provided
that no such action shall be effective hereunder unless taken on or prior to the applicable Expiration Date by Holders of the requisite principal amount of Outstanding Securities of such series on such record date. Nothing in this
paragraph shall be construed to prevent the Company from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no
action by any Person be cancelled and of no effect), and nothing in this paragraph shall be construed to render ineffective any action taken by Holders of the requisite principal amount of Outstanding Securities of the relevant series on the date
such action is taken. Promptly after any record date is set pursuant to this paragraph, the Company, at its own expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the
Trustee in writing and to each Holder of Securities of the relevant series in the manner set forth in Section 1.06.
11
The Trustee may set any day as a record date for the purpose of determining the Holders of
Outstanding Securities of any series entitled to join in the giving or making of (i) any Notice of Default, (ii) any declaration of acceleration referred to in Section 5.02, (iii) any request to institute proceedings referred to in
Section 5.07(b), or (iv) any direction referred to in Section 5.12, in each case with respect to Securities of such series. If any record date is set pursuant to this paragraph, the Holders of Outstanding Securities of such series on such
record date, and no other Holders, shall be entitled to join in such notice, declaration, request or direction, whether or not such Holders remain Holders after such record date;
provided
that no such action shall be effective hereunder
unless taken on or prior to the applicable Expiration Date by Holders of the requisite principal amount of Outstanding Securities of such series on such record date. Nothing in this paragraph shall be construed to prevent the Trustee from setting a
new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by any Person be canceled and of no effect), and nothing in
this paragraph shall be construed to render ineffective any action taken by Holders of the requisite principal amount of Outstanding Securities of the relevant series on the date such action is taken. Promptly after any record date is set pursuant
to this paragraph, the Trustee, at the Company’s expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Company in writing and to each Holder of Securities of the
relevant series in the manner set forth in Section 1.06.
With respect to any record date set pursuant to this Section, the party
hereto which sets such record dates may designate any day as the “
Expiration Date
” and from time to time may change the Expiration Date to any earlier or later day;
provided
that no such change shall be effective unless
notice of the proposed new Expiration Date is given to the other party hereto in writing, and to each Holder of Securities of the relevant series in the manner set forth in Section 1.06, on or prior to the existing Expiration Date. If an
Expiration Date is not designated with respect to any record date set pursuant to this Section, the party hereto which set such record date shall be deemed to have initially designated the 180th day after such record date as the Expiration Date with
respect thereto, subject to its right to change the Expiration Date as provided in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be later than the 180th day after the applicable record date.
Without limiting the foregoing, a Holder entitled hereunder to take any action hereunder with regard to any particular Security may do so with
regard to all or any part of the principal amount of such Security or by one or more duly appointed agents each of which may do so pursuant to such appointment with regard to all or any part of such principal amount.
Section 1.05
Notices, Etc., to Trustee, Company or Guarantors
.
Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with:
12
(a) the Trustee by any Holder or by the Company or any Guarantor shall be sufficient for
every purpose hereunder if made, given, furnished or filed in writing to or with the Trustee at its Corporate Trust Office, Attention: Corporate Trust Division;
(b) the Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to the Company addressed to it at (i) 3b, boulevard Prince Henry, L-1724 Luxembourg, Attn: Treasury Department or (ii) any other address previously furnished in writing to
such Trustee by the Company;
(c) Parent by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless
otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to such Guarantor addressed to it at (i) 20 Lower Hatch Street Dublin 2, Ireland, Attn: Treasury Department or (ii) any other address previously
furnished in writing to such Trustee by Parent; or
(d) Medtronic, Inc. by the Trustee or by any Holder shall be sufficient for every
purpose hereunder (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to Medtronic, Inc. addressed to it at (i) 710 Medtronic Parkway, Minneapolis, MN 55432, Attn: Treasury Department or (ii) any
other address previously furnished in writing to such Trustee by Medtronic, Inc.
Section 1.06 Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each Holder affected by such event, at his address as it appears in the Security Register, not later than the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice
with respect to other Holders. Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.
Section 1.07
Conflict with Trust Indenture
Act
.
If any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture Act which is required under such Act to be a
part of and govern this Indenture, the latter provision shall control. If any provision of this Indenture modifies or excludes any provision of the Trust Indenture Act which may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or to be excluded, as the case may be.
13
Section 1.08
Effect of Headings and Table of Contents
.
The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
Section 1.09
Successors and Assigns
.
All covenants and agreements in this Indenture by the Company, Parent and Medtronic, Inc. shall bind its respective successors and assigns,
whether so expressed or not.
Section 1.10
Separability Clause
.
In case any provision or any portion of any provision in this Indenture or in the Securities or in any Note Guarantee shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 1.11
Benefits of Indenture
.
Nothing in this Indenture or in the Securities or in any Note Guarantee, express or implied, shall give to any Person, other than the parties
hereto and their successors hereunder and the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture.
Section 1.12
Governing Law; Waiver of Jury Trial; Consent to Jurisdiction; Service of Process
.
This Indenture, the Securities and any Note Guarantee shall be governed by and construed in accordance with the law of the State of New York
and of the United States. For the avoidance of doubt, the applicability of Article 86 to
94-8
of the Luxembourg law on commercial companies shall be excluded.
EACH OF THE COMPANY, PARENT, MEDTRONIC, INC., THE HOLDERS AND THE TRUSTEE 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 INDENTURE, THE NOTES, THE NOTE GUARANTEES OR THE TRANSACTION CONTEMPLATED HEREBY
To the fullest extent permitted by applicable law, each of the Company, Parent and Medtronic, Inc. hereby irrevocably submits to the
jurisdiction of any federal or state court located in the Borough of Manhattan in The City of New York, New York in any suit, action or proceeding based on or arising out of or relating to this Indenture or any Securities and irrevocably agrees that
all claims in respect of such suit or proceeding may be determined in any such court. Each of the Company, Parent and Medtronic, Inc. irrevocably waives, to the fullest extent permitted by law, any objection which it may have to the laying of the
venue of any such suit, action or proceeding brought in an inconvenient forum. Each of the Company, Parent and
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Medtronic, Inc. agrees that final judgment in any such suit, action or proceeding brought in such a court shall be conclusive and binding upon the Company, Parent and Medtronic, Inc. and may be
enforced in any courts to the jurisdiction of which the Company, Parent or Medtronic, Inc., as applicable, is subject by a suit upon such judgment
; provided
, that service of process is effected upon the Company, Parent or Medtronic, Inc., as
applicable, in the manner specified herein or as otherwise permitted by law. Each of the Company and Parent irrevocably appoints
[ ] as its agent to receive service of process or other legal summons for purposes of any suit, action or proceeding based on or
arising out of or relating to this Indenture or any Securities.
Section 1.13
Legal Holidays
.
In any case where any Interest Payment Date, Redemption Date or Stated Maturity of any Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or of the Securities (other than a provision of any Security which specifically states that such provision shall apply in lieu of this Section)) payment of interest or principal
(and premium, if any) need not be made at such Place of Payment on such date, but may be made on the next succeeding Business Day at such Place of Payment with the same force and effect as if made on the Interest Payment Date or Redemption Date, or
at the Stated Maturity.
Section 1.14
USA Patriot Act
.
The parties hereto acknowledge that in accordance with Section 326 of the U.S.A. Patriot Act, the Trustee, like all financial
institutions and in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the
Trustee. The parties to this Indenture agree that they will provide the Trustee with such information as it may request in order for the Trustee to satisfy the requirements of the U.S.A. Patriot Act.
Section 1.15
Judgment Currency
.
The Company and each Guarantor agrees, to the fullest extent that it may effectively do so under applicable law, that if for the purpose of
obtaining judgment in any court it is necessary to convert the sum due in respect of the principal of, or premium or interest, if any, or Additional Amounts on the Securities of any series (the “
Required Currency
”) into a currency
in which a judgment will be rendered (the “
Judgment Currency
”), the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Trustee could purchase in The City of New York the Required
Currency with the Judgment Currency on the New York Banking Day preceding that on which a final unappealable judgment is given. For purposes of the foregoing, “
New York Banking Day
” means any day except a legal holiday in The City
of New York.
Section 1.16
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
15
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 which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.
ARTICLE 2
SECURITY FORMS
Section 2.01
Forms Generally
.
The Securities of each series shall be in substantially the form set forth in this Article, or in such other form as shall be established by
or pursuant to a Board Resolution or in one or more indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such
letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or Depositary therefor or as may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by their execution thereof. If the form of Securities of any series is established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by
the Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of the Company Order contemplated by Section 3.03 for the authentication and delivery of such Securities.
Each Security shall bear a notation of Guarantee substantially in the form set forth in Section 2.07.
The definitive Securities shall be printed, lithographed or engraved on steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities, as evidenced by their execution of such Securities.
Section 2.02
Form of
Face of Security
.
[Insert any legend required by the Internal Revenue Code, the Securities Act and/or other applicable securities laws and the
regulations under each of them.]
Medtronic Global Holdings S.C.A., a corporate partnership limited by shares (
société en
commandite par actions
) organized under the laws of the Grand Duchy of Luxembourg (herein called the “
Company
”, which term includes any successor corporation under the Indenture hereinafter referred to), for value received,
hereby promises to pay to or registered assigns, the principal sum of Dollars
on and to pay interest thereon from or from the most recent
Interest Payment Date to which interest has been paid or duly provided for,
on and in each year,
commencing , at the rate of % per annum, until the principal hereof is paid or made available for payment. [
If applicable
then insert
—provided that any principal and premium, and any such installment of
16
interest, which is overdue shall bear interest at the rate of % per annum (to the extent that the payment of such interest shall be legally enforceable), from the date
such amounts are due until they are paid or made available for payment, and such interest on any overdue interest shall be payable on demand.]
The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid
to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which shall be the
or (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. Any
such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities of this series not less than 10 days prior to such Special
Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities of this series may be listed, and upon such notice as may be required by such exchange, all as
more fully provided in said Indenture.
[
If the Security is not to bear interest prior to Maturity, insert
—The principal of
this Security shall not bear interest except in the case of a default in payment of principal upon acceleration, upon redemption or at Stated Maturity and in such case the overdue principal and any overdue premium shall bear interest at the rate of
% per annum (to the extent that the payment of such interest shall be legally enforceable), from the dates such amounts are due until they are paid or made available for payment. Interest on any overdue principal or premium
shall be payable on demand. [Any such interest on overdue principal or premium which is not paid on demand shall bear interest at the rate of % per annum (to the extent that the payment of such interest on interest shall be
legally enforceable), from the date of such demand until the amount so demanded is paid or made available for payment. Interest on any overdue interest shall be payable on demand.]]
Payment of the principal of (and premium, if any) and [
if applicable, insert
—any such] interest on this Security will be made at
the office or agency of the Trustee maintained for that purpose in Minneapolis, Minnesota, in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts [
if
applicable
,
insert
—;
provided
,
however
, that at the option of the Company payment of interest may be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Security
Register].
Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions
shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
17
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed under its
corporate seal.
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Medtronic Global Holdings S.C.A.
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By
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Attest:
Section 2.03
Form of Reverse of Security
.
This Security is one of a duly authorized issue of securities of the Company (herein called the “
Securities
”), issued and to
be issued in one or more series under an Indenture, dated as of (herein called the “
Indenture
”, which term
shall have the meaning assigned to it in such instrument), among the Company, Medtronic Public Limited Company, a public limited company incorporated under the laws of Ireland, Medtronic, Inc., a Minnesota corporation, and Wells Fargo Bank, National
Association, as Trustee (herein called the “
Trustee
”, which term includes any successor trustee under the Indenture), and reference is hereby made to the Indenture for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Company, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is one of the series designated on the face
hereof, initially limited in aggregate principal amount to $ . The Company may at any time issue additional securities under the Indenture in unlimited amounts having the same
terms as the Securities;
provided
that no additional securities of a series may be issued if an Event of Default has occurred and is continuing with respect to such series of securities.
[
If applicable, insert
—The Securities of this series may be redeemed at any time [on or after
, ], as a whole or in part, at the option of the Issuer, upon mailing notice of such redemption not less
than 30 and not more than 60 days to the Holders of such Securities, at a redemption price equal to .]
[
If the Security is subject to redemption of any kind, insert
—In the event of redemption of this Security in part only, a new
Security or Securities of this series and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof.]
[
If the Security is not an Original Issue Discount Security, insert
—If an Event of Default with respect to Securities of this
series shall occur and be continuing, the principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture.]
18
[
If the Security is an Original Issue Discount Security, insert
—If an Event of
Default with respect to Securities of this series shall occur and be continuing, an amount of principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture. Such amount shall
be equal to—
insert formula for determining the amount
. Upon payment (i) of the amount of principal so declared due and payable and (ii) of interest on any overdue principal, premium and interest (in each case to the extent that
the payment of such interest shall be legally enforceable), all of the Company’s obligations in respect of the payment of the principal of and premium and interest, if any, on the Securities of this series shall terminate.]
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations
of the Company and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Company and the Trustee with the consent of the Holders of a majority in principal amount of the Securities at the
time Outstanding of each series to be affected. The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Securities of each series at the time Outstanding, on behalf of the Holders of all
Securities of such series, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder of this Security shall not have the
right to institute any proceeding with respect to the Indenture or for the appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall have previously given the Trustee written notice of a continuing Event of
Default with respect to the Securities of this series, the Holders of at least 25% in principal amount of the Securities of this series at the time Outstanding shall have made written request to the Trustee to institute proceedings in respect of
such Event of Default as Trustee and offered the Trustee indemnity, and the Trustee shall not have received from the Holders of a majority in principal amount of Securities of this series at the time Outstanding a direction inconsistent with such
request, and shall have failed to institute any such proceeding, for 60 days after receipt of such notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted by the Holder of this Security for the enforcement of any
payment of principal hereof or any premium or interest hereon on or after the respective due dates expressed herein.
No reference herein
to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and any premium and interest on this Security at the times,
place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security Register, upon surrender of this Security for registration of transfer at the office or agency of the Company in any place where the principal of and any premium and interest on
this Security are payable, duly endorsed by, or accompanied by
19
a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or the Holder’s attorney duly authorized in writing, and
thereupon one or more new Securities of this series and of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form without coupons in denominations of
$ and any integral multiple thereof. As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like
aggregate principal amount of Securities of this series and of like tenor of a different authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made to a Holder for any such registration of transfer or exchange, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for
registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the contrary.
Reference is made to the Indenture. Such further
provisions shall for all purposes have the same effect as though fully set forth herein.
All terms used in this Security which are
defined in the Indenture shall have the meanings assigned to them in the Indenture.
Section 2.04
Form of Legend for
Securities
.
Unless otherwise specified as contemplated by Section 3.01 for the Securities evidenced thereby, every Security
authenticated and delivered hereunder shall bear one or more of the appropriate legends in substantially the following forms as relevant below:
[
If the Security is a Global Security, then insert
—THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN
THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.]
[
If the Security is a Global Security and The Depository Trust Company is to be the Depositary therefor, then insert
—UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“
DTC
”), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
20
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. TRANSFERS
OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE.]
Section 2.05
Form of Trustee
’
s Certificate of Authentication
.
The Trustee’s certificates of authentication shall be in substantially the following form:
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
Dated:
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Wells Fargo Bank National Association, as Trustee
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By:
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Authorized Signatory
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Section 2.06
CUSIP Numbers
.
The Company in issuing the Securities may use “CUSIP” numbers (if then generally in use), and, if so, the Trustee shall use
“CUSIP” numbers in notices of redemption as a convenience to Holders;
provided
that the Trustee shall have no liability for any defect in the “CUSIP” numbers as they appear on the any Security, notice or elsewhere, and
;
provided further
that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of a redemption and that reliance may be placed only on the
other identification numbers printed on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers. The Company will promptly notify the Trustee in writing of any change in the “CUSIP”
numbers.
Section 2.07
Form of Guarantee
.
The form of Guarantee shall be set forth on the applicable series of Securities substantially as follows:
GUARANTEE
For value received,
the undersigned (the “
Guarantor
”), to the extent set forth in and subject to the terms of the Indenture, dated as of
(the “
Indenture
”), among Medtronic Global Holdings S.C.A, a corporate partnership limited by shares
(
société en commandite par actions
) organized under the laws of the Grand Duchy of Luxembourg (the “
Company
”), Medtronic Public Limited Company, a public limited company incorporated under
21
the laws of Ireland, Medtronic, Inc., a Minnesota corporation, and Wells Fargo Bank, National Association, as Trustee (herein called the “
Trustee
”, which term includes any
successor trustee under the Indenture), hereby fully and unconditionally guarantees, on a joint and several basis, to each Holder and to the Trustee and its successors and assigns, that the principal of and premium, if any, and interest on the
Securities shall be promptly paid in full when due, whether at Stated Maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of and interest on the Securities, if any, if lawful, and all other obligations of the
Company to the Holders or the Trustee hereunder or thereunder shall be promptly paid in full or performed.
The obligations of each
Guarantor to the Holders and to the Trustee pursuant to this Guarantee and the Indenture are expressly set forth in Article 14 of the Indenture, and reference is hereby made to the Indenture for the precise terms and limitations of this Guarantee.
Each Holder of the Securities to which this Guarantee is endorsed, by accepting such Securities, agrees to and shall be bound by such provisions.
All terms used in this Guarantee which are defined in the Indenture shall have the meanings assigned to them in the Indenture.
IN WITNESS WHEREOF, each Guarantor has caused this Guarantee to be signed by a duly authorized officer.
Dated:
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MEDTRONIC PUBLIC LIMITED COMPANY
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By
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MEDTRONIC, INC.
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By
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ARTICLE 3
THE SECURITIES
Section
3.01
Amount Unlimited; Issuable in Series
.
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited. Additional Securities of any series of Securities authenticated and delivered under this Indenture may be authenticated and delivered hereunder at any time, having the same terms as, treated as a single
class (for all purposes under this Indenture) with, and in aggregate principal amounts that exceed the aggregate principal amount of, such previously authenticated and delivered Securities.
22
The Securities may be issued in one or more series. There shall be established in or pursuant to
a Board Resolution and, subject to Section 3.03, set forth, or determined in the manner provided in, an Officers’ Certificate, or established in one or more indentures supplemental hereto, prior to the issuance of Securities of any series:
(a) the title of the Securities of the series (which shall distinguish the Securities of the series from Securities of any other
series);
(b) any limit upon the aggregate principal amount of the Securities of the series which may be authenticated and delivered
under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Section 3.04, 3.05, 3.06, 9.06 or 11.07 and except for any
Securities which, pursuant to Section 3.03, are deemed never to have been authenticated and delivered hereunder);
(c) the
Person to whom any interest on a Security of the series shall be payable, if other than the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such
interest;
(d) the date or dates on which the principal of any Securities of the series is payable;
(e) the rate or rates at which any Securities of the series shall bear interest, if any, the date or dates from which any such interest
shall accrue, the Interest Payment Dates on which any such interest shall be payable and the Regular Record Date for any such interest payable on any Interest Payment Date;
(f) the place or places where the principal of and any premium and interest on any Securities of the series shall be payable;
(g) the period or periods within which, the price or prices at which and the terms and conditions upon which any Securities of the series
may be redeemed, in whole or in part, at the option of the Company and, if other than by a Board Resolution, the manner in which any election by the Company to redeem the Securities shall be evidenced;
(h) the obligation, if any, of the Company to redeem or purchase any Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of the Holder thereof and the period or periods within which, the price or prices at which and the terms and conditions upon which any Securities of the series shall be redeemed or purchased, in whole or in part, pursuant
to such obligation;
(i) if other than denominations of $1,000 and any integral multiple thereof, the denominations in which any
Securities of the series shall be issuable;
(j) if the amount of principal of or any premium or interest on any Securities of the
series may be determined with reference to an index or pursuant to a formula, the manner in which such amounts shall be determined;
23
(k) if other than the currency of the United States of America, the currency, currencies or
currency units in which the principal of or any premium or interest on any Securities of the series shall be payable and the manner of determining the equivalent thereof in the currency of the United States of America for any purpose, including for
purposes of the definition of “
Outstanding
” in Section 1.01;
(l) if the principal of or any premium or
interest on any Securities of the series is to be payable, at the election of the Company or the Holder thereof, in one or more currencies or currency units other than that or those in which such Securities are stated to be payable, the currency,
currencies or currency units in which the principal of or any premium or interest on such Securities as to which such election is made shall be payable, the periods within which and the terms and conditions upon which such election is to be made and
the amount so payable (or the manner in which such amount shall be determined);
(m) if other than the entire principal amount
thereof, the portion of the principal amount of any Securities of the series which shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 5.02;
(n) if the principal amount payable at the Stated Maturity of any Securities of the series will not be determinable as of any one or more
dates prior to the Stated Maturity, the amount which shall be deemed to be the principal amount of such Securities as of any such date for any purpose thereunder or hereunder, including the principal amount thereof which shall be due and payable
upon any Maturity other than the Stated Maturity or which shall be deemed to be Outstanding as of any date prior to the Stated Maturity (or, in any such case, the manner in which such amount deemed to be the principal amount shall be determined);
(o) if applicable, that the Securities of the series, in whole or any specified part, shall be defeasible pursuant to
Section 13.02 or Section 13.03 or both such Sections and, if other than by a Board Resolution, the manner in which any election by the Company to defease such Securities shall be evidenced;
(p) if applicable, that any Securities of the series shall be issuable in whole or in part in the form of one or more Global Securities
and, in such case, the respective Depositaries for such Global Securities, the form of any legend or legends which shall be borne by any such Global Security in addition to or in lieu of that set forth in Section 2.04 and any circumstances in
addition to or in lieu of those set forth in Clause (2) of the last paragraph of Section 3.05 in which any such Global Security may be exchanged in whole or in part for Securities registered, and any transfer of such Global Security in
whole or in part may be registered, in the name or names of Persons other than the Depositary for such Global Security or a nominee thereof;
(q) any addition to or change in the Events of Default which applies to any Securities of the series and any change in the right of the
Trustee or the requisite Holders of such Securities to declare the principal amount thereof due and payable pursuant to Section 5.02;
(r) any addition to or change in the covenants set forth in Article 10 which applies to Securities of the series;
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(s) whether the Securities of the series are subject to guarantee provisions different from
or in addition to those set forth in Article 14;
(t) whether the Securities of the series are subject to a registration rights
agreement pursuant to which additional interest may be payable on such Securities; and
(u) any other terms of the series (which
terms shall not be inconsistent with the provisions of this Indenture, except as permitted by Section 9.01(e)).
All Securities of any one
series shall be substantially identical except as to denomination and except as may otherwise be provided in or pursuant to the Board Resolution referred to above and (subject to Section 3.03) set forth, or determined in the manner provided in,
the Officers’ Certificate referred to above or in any such indenture supplemental hereto.
If any of the terms of the series are
established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of the
Officers’ Certificate setting forth the terms of the series.
Section 3.02
Denominations
.
The Securities of each series shall be issuable only in registered form without coupons and only in such denominations as shall be specified
as contemplated by Section 3.01. In the absence of any such specified denomination with respect to the Securities of any series, the Securities of such series shall be issuable in denominations of $1,000 and any multiple thereof.
Section 3.03
Execution, Authentication, Delivery and Dating
.
The Securities shall be executed on behalf of the Company by any two of its Chairman of the Board, Chief Executive Officer, its President, its
Chief Financial Officer, its Treasurer or one of its Vice Presidents, under its corporate seal reproduced thereon attested by any of the aforementioned officers. The signature of any of these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who are the proper officers of the Company at the time of execution
of such Security shall bind the Company, notwithstanding that such individuals or any of them have ceased to hold such offices.
At any
time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series executed by the Company and any Note Guarantee executed by the Guarantors to the Trustee for authentication, together
with a Company Order for the authentication and delivery of such Securities, and the Trustee in accordance with the Company Order shall authenticate and deliver such Securities. If the form or terms of the Securities of the series have been
established by or pursuant to one or more Board Resolutions as permitted by Sections 2.01 and 3.01, in authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee
shall be entitled to receive, and (subject to Section 6.01) shall be fully protected in relying upon, an Opinion of Counsel (subject to any reservations set out therein) stating:
25
(a) if the form of such Securities has been established by or pursuant to Board Resolution
as permitted by Section 2.01, that such form has been established in conformity with the provisions of this Indenture;
(b) if
the terms of such Securities have been established by or pursuant to Board Resolution as permitted by Section 3.01, that such terms have been established in conformity with the provisions of this Indenture; and
(c) that such Securities and the related Note Guarantees, when authenticated and delivered by the Trustee and issued by the Company in
the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and legally binding obligations of the Company and the Guarantors, as applicable, enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general principles of equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
If such form or terms have been so established, the Trustee shall not be required to authenticate such
Securities if the issue of such Securities pursuant to this Indenture will affect the Trustee’s own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 3.01 and of the preceding paragraph, if all Securities of a series are not to be
originally issued at one time, it shall not be necessary to deliver the Officers’ Certificate otherwise required pursuant to Section 3.01 or the Company Order and Opinion of Counsel otherwise required pursuant to such preceding paragraph
at or prior to the authentication of each Security of such series if such documents are delivered at or prior to the authentication upon original issuance of the first Security of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the form provided for herein executed by the Trustee by manual signature, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has
been duly authenticated and delivered hereunder. Notwithstanding the foregoing, if any Security shall have been authenticated and delivered hereunder but never issued and sold by the Company, and the Company shall deliver such Security to the
Trustee for cancellation as provided in Section 3.09, for all purposes of this Indenture such Security shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled to the benefits of this Indenture.
Section 3.04
Temporary Securities
.
Pending the preparation of definitive Securities of any series, the Company may execute, and each Guarantor may execute any Note Guarantee
thereon, and upon Company Order the Trustee shall authenticate and deliver, temporary Securities which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the
definitive Securities in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other variations as the officers executing such Securities may determine, as evidenced by their execution of such Securities.
26
If temporary Securities of any series are issued, the Company will cause definitive Securities of
that series to be prepared without unreasonable delay. After the preparation of definitive Securities of such series, the temporary Securities of such series shall be exchangeable for definitive Securities of such series upon surrender of the
temporary Securities of such series at the office or agency of the Company in a Place of Payment for that series, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any series, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor one or more definitive Securities of the same series, of any authorized denominations and of like tenor and aggregate principal amount. Until so exchanged, the temporary
Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of such series and tenor.
Section 3.05 Registration, Registration of Transfer and Exchange; Certain Transfers and Exchanges.
(a)
Registration, Registration of Transfer and Exchange Generally
. The Company shall cause to be kept at the Corporate Trust
Office of the Security Registrar designated pursuant to this Section 3.05 a register (being the combined register of the Security Registrar and all
Co-Security
Registrars and herein sometimes collectively
referred to as the “
Security Register
”) in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Securities and of transfers of Securities. Wells Fargo Bank, National
Association, is hereby initially appointed Security Registrar, and the Trustee is hereby initially appointed
Co-Security
Registrar, in each case for the purpose of registering Securities and transfers of
Securities as herein provided. The Company, with prior notice to the Trustee, may (i) replace the Security Registrar with an entity that satisfies the eligibility requirements of a Trustee under Section 6.09 and (ii) remove or add
Co-Security
Registrars. A Security Registrar or
Co-Security
Registrar shall not be liable for the acts or omissions of any other Security Registrar or
Co-Security
Registrar, as the case may be. The Trustee shall have the right to inspect the register of the Security Registrar (and any
Co-Security
Registrar) at all reasonable
times and may request and rely upon a certificate of a duly authorized officer of the Security Registrar (and any
Co-Security
Registrar) as to the names and addresses of Holders and the principal amounts and
numbers of the Securities held thereby and such other matters as the Trustee may reasonably request.
In addition to any Security Register
described in the foregoing paragraph, a register of the Securities will be kept at the registered office of the Company, for Luxembourg law purposes. Upon written request from the Company, the Registrar shall provide the Company with a copy of the
Security Register to enable it to maintain a register of the Securities at its registered office. The Company accepts any copy of the register as correspondence and document recording the transfer of any Securities and agrees to update its register
upon receipt of such copy.
The Company hereby initially selects the Corporate Trust Office of the Trustee, located at Wells Fargo Bank,
National Association, Corporate Trust Services, 600 South 4th Street, 6th Floor, Minneapolis, Minnesota, Attn: Administrator for Medtronic, as the office or agency of the
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Company in the Minneapolis, Minnesota, where the Securities may be presented or surrendered for payment and where the Securities may be surrendered for registration of transfer or exchange in
accordance with Section 10.02.
Upon surrender for registration of transfer of any Security of a series at the office or agency of
the Company in a Place of Payment for that series, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Securities of the same series, of any authorized
denominations and of like tenor and aggregate principal amount and each Guarantor shall execute any Note Guarantees thereon.
At the
option of the Holder, Securities of any series may be exchanged for other Securities of the same series, of any authorized denominations and of like tenor and aggregate principal amount, upon surrender of the Securities to be exchanged at such
office or agency. Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive and each Guarantors
shall execute any Note Guarantees thereon.
All Securities and any Note Guarantees thereon issued upon any registration of transfer or
exchange of guaranteed Securities shall be the valid obligations of the Company and the Guarantors, as applicable, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities and any Guarantees thereon
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for
exchange shall (if so required by the Company or the Trustee) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed, by the Holder thereof or his attorney
duly authorized in writing.
The transferor shall also provide or cause to be provided to the Trustee all information necessary to allow
the Trustee to comply with any applicable tax reporting obligations, including without limitation, any cost basis reporting obligations under Section 6045 of the Code. The Trustee may rely on any such information provided to it and shall have
no responsibility to verify or ensure the accuracy of such information.
No service charge shall be made for any registration of transfer
or exchange of Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges
pursuant to Section 3.04, 9.06 or 11.7 not involving any transfer.
If the Securities of any series (or of any series and specified
tenor) are to be redeemed in part, the Company shall not be required (A) to issue, register the transfer of or exchange any Securities of that series (or of that series and specified tenor, as the case may be) during a period beginning at the
opening of business 15 days before the day of the mailing of a notice of redemption of any such Securities selected for redemption under Section 11.03 and ending at the close of business on the day of such mailing, or (B) to register the
transfer of or exchange any Security so selected for redemption in whole or in part, except the unredeemed portion of any Security being redeemed in part.
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The provisions of Clauses (1), (2), (3), and (4) below shall apply only to Global
Securities:
(1) Each Global Security authenticated under this Indenture shall be registered in the name of the Depositary designated
for such Global Security or a nominee thereof and delivered to such Depositary or a nominee thereof or custodian therefor, and each such Global Security shall constitute a single Security for all purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture, no Global Security may be exchanged in whole or in part for Securities
registered, and no transfer of a Global Security in whole or in part may be registered, in the name of any Person other than the Depositary for such Global Security or a nominee thereof unless (A) such Depositary (i) has notified the
Company that it is unwilling or unable to continue as Depositary for such Global Security or (ii) has ceased to be a clearing agency registered under the Exchange Act, and, in each case, a successor depositary is not appointed by the Company
within 90 days of such notice or after the Company becomes aware of such cessation, (B) the Company in its sole discretion determines that such Global Security shall be exchangeable for definitive registered Securities and executes and delivers
to the Security Registrar a Company Order providing that such Global Security shall be so exchangeable, (C) there shall have occurred and be continuing an Event of Default with respect to such Global Security or (D) there shall exist such
circumstances, if any, in addition to or in lieu of the foregoing as have been specified for this purpose as contemplated by Section 3.01.
(3) Subject to Clause (2) above, any exchange of a Global Security for other Securities may be made in whole or in part, and all
Securities issued in exchange for a Global Security or any portion thereof shall be registered in such names as the Depositary for such Global Security shall direct.
(4) Every Security authenticated and delivered upon registration of transfer of, or in exchange for or in lieu of, a Global Security or
any portion thereof, whether pursuant to this Section, Section 3.04, 3.06, 9.06 or 11.07 or otherwise, shall be authenticated and delivered in the form of, and shall be, a Global Security, unless such Security is registered in the name of a
Person other than the Depositary for such Global Security or a nominee thereof.
(5) In connection with any proposed exchange of
Global Securities for Securities in definitive registered form, the Company or DTC shall be required to provide or cause to be provided to the Trustee all information necessary to allow the Trustee to comply with any applicable tax reporting
obligations, including without limitation any cost basis reporting obligations under Section 6045 of the Code. The Trustee may rely on any such information provided to it and shall have no responsibility to verify or ensure the accuracy of such
information.
Section 3.06
Mutilated, Destroyed, Lost and Wrongfully Taken Securities
.
29
If any mutilated Security is surrendered to the Trustee, the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a new Security of the same series and of like tenor and principal amount and bearing a number not contemporaneously outstanding and each Guarantor shall execute any Note Guarantee thereon.
If there shall be delivered to the Company and the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of
any Security and (ii) such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Company or the Trustee that such Security has been acquired by a
protected purchaser, the Company shall execute and the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or wrongfully taken Security, a new Security of the same series and of like tenor and principal amount and bearing a
number not contemporaneously outstanding and each Guarantor shall execute any Note Guarantees thereon.
In case any such mutilated,
destroyed, lost or wrongfully taken Security has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series and any Note Guarantee thereon issued pursuant to this Section in lieu of any destroyed, lost or wrongfully
taken Security shall constitute an original additional contractual obligation of the Company or the Guarantors, as applicable, whether or not the destroyed, lost or wrongfully taken Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or wrongfully taken Securities.
Section 3.07
Payment of Interest; Interest
Rights Preserved
.
Except as otherwise provided as contemplated by Section 3.01 with respect to any series of Securities,
interest on any Security which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest.
Any interest on any Security of any series which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date (herein called “
Defaulted Interest
”) shall forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Company, at its election in each case, as provided in Clause (a) or (b) below:
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(a) The Company may elect to make payment of any Defaulted Interest to the Persons in whose
names the Securities of such series (or their respective Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Security of such series and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust
for the benefit of the Persons entitled to such Defaulted Interest as in this Clause provided. Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 days and not less than 10
days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Company of such Special Record Date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be given to each Holder of Securities of such series in the manner set forth in Section 1.06, not less than 10
days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been so mailed, such Defaulted Interest shall be paid to the Persons in whose names the Securities of such
series (or their respective Predecessor Securities) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following Clause (b).
(b) The Company may make payment of any Defaulted Interest on the Securities of any series in any other lawful manner not inconsistent
with the requirements of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this Clause,
such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security.
Section 3.08
Persons Deemed Owners
.
Prior to due presentment of a Security for registration of transfer, the Company, the Guarantors, the Trustee and any agent of the Company,
any Guarantor or the Trustee may treat the Person in whose name such Security is registered as the owner of such Security for the purpose of receiving payment of principal of and any premium and (subject to Section 3.07) any interest on such
Security and for all other purposes whatsoever, whether or not such Security be overdue, and neither the Company, the Guarantors, the Trustee nor any agent of the Company, any Guarantor or the Trustee shall be affected by notice to the contrary.
Section 3.09
Cancellation.
31
All Securities surrendered for payment, redemption, registration of transfer or exchange or for
credit against any sinking fund payment shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee and shall be promptly cancelled by it. The Company or any Guarantor may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder which the Company or any Guarantor may have acquired in any manner whatsoever, and may deliver to the Trustee (or to any other Person for delivery to the Trustee) for
cancellation any Securities previously authenticated hereunder which the Company has not issued and sold, and all Securities so delivered shall be promptly cancelled by the Trustee. No Securities shall be authenticated in lieu of or in exchange for
any Securities cancelled as provided in this Section, except as expressly permitted by this Indenture. All cancelled Securities held by the Trustee shall be disposed of in accordance with the Trustee’s customary procedures.
Section 3.10
Computation of Interest
.
Except as otherwise specified as contemplated by Section 3.01 for Securities of any series, interest on the Securities of each series
shall be computed on the basis of a
360-day
year of twelve
30-day
months.
ARTICLE 4
SATISFACTION AND
DISCHARGE
Section 4.01
Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect (except as to any surviving rights of registration of transfer or
exchange of Securities herein expressly provided for), and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture, when:
(a) either:
(i) all
Securities theretofore authenticated and delivered (other than (A) Securities which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 3.06 and (B) Securities 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, as provided in Section 10.03) have been delivered to the Trustee for cancellation; or
(ii) all such Securities not theretofore delivered to the Trustee for cancellation (A) have become due and payable, or (B) will
become due and payable at their Stated Maturity within one year, or (C) are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the
expense, of the Company, and the Company, in the case of subclauses (ii) (A), (B), or (C) above, has deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose money (either in (1) U.S. dollars or (2) U.S.
Government Obligations or, in the case of Securities denominated in a currency other than U.S. dollars, Foreign Government Obligations (
provided
, that, solely for purposes of the foregoing clause (2), such U.S. Government Obligations and/or
Foreign Government Obligations shall be accompanied by an opinion of an Independent Financial Firm certifying to the sufficiency of such U.S. Government and/or Foreign Government Obligations so delivered)) in an amount sufficient to pay and
discharge the entire indebtedness on such Securities not theretofore delivered to the Trustee for cancellation, for principal and any premium and interest to the date of such deposit (in the case of Securities which have become due and payable) or
to the Stated Maturity or Redemption Date, as the case may be;
32
(b) the Company has paid or caused to be paid all other sums payable hereunder by the
Company; and
(c) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that
all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company or any Guarantor to the Trustee under
Section 6.07, the obligations of the Trustee to any Authenticating Agent under Section 6.14 and, if money shall have been deposited with the Trustee pursuant to subclause (ii) of Clause (a) of this Section, the obligations of the
Trustee under Section 4.02 and the last paragraph of Section 10.03 shall survive.
Section 4.02
Application of Trust
Money
.
Subject to the provisions of the last paragraph of Section 10.03, all money deposited with the Trustee pursuant to
Section 4.01 shall be held in trust and applied by it, in accordance with the provisions of the Securities and this Indenture, to the payment, either directly or through any Paying Agent (including the Company or any Guarantor acting as its own
Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal and any premium and interest for whose payment such money has been deposited with the Trustee.
ARTICLE 5
REMEDIES
Section 5.01
Events of Default
.
“
Event of Default
” wherever used herein with respect to Securities of any series, means any one of the following events
(whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be 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):
(a) default in the payment of any interest upon any Security of that series when it becomes due and payable, and
continuance of such default for a period of 30 days; or
(b) default in the payment of the principal of or any premium on any
Security of that series at its Maturity; or
(c) default in the deposit of any sinking fund payment, when and as due by the terms of
a Security of that series; or
(d) default in the performance, or breach, of any covenant or warranty of the Company or a Guarantor
in this Indenture (other than a covenant or warranty a default in whose performance or whose breach is elsewhere in this Section specifically dealt with or which has
33
expressly been included in this Indenture solely for the benefit of series of Securities other than that series), and continuance of such default or breach for a period of 60 consecutive days
after there has been given, by registered or certified mail, to the Company and the Guarantors by the Trustee or to the Company, the Guarantors and the Trustee by the Holders of at least 25% in principal amount of the Outstanding Securities of that
series a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a “
Notice of Default
” hereunder; or
(e) there occurs with respect to any Debt of Parent or any Restricted Subsidiary having an outstanding principal amount of $150,000,000
or more in the aggregate for all such Debt of all such Persons (i) an event of default that results in such Debt being due and payable prior to its scheduled maturity or (ii) failure to make a principal payment when due at maturity; or
(f) any Note Guarantee, ceases to be in full force and effect or is declared to be null and void and unenforceable or any Note
Guarantee is found to be invalid or any Guarantor denies its liability under its Note Guarantee (other than by reason of its release in accordance with the terms of this Indenture, including pursuant to Section 14.06); or
(g) an involuntary case or other proceeding is commenced against the Company or any Guarantor with respect to it or its debts under any
bankruptcy, insolvency, examinership or other similar law now or hereafter in effect seeking the appointment of a trustee, receiver, liquidator, examiner, custodian or other similar official of it or any substantial part of its property, and such
involuntary case or other proceeding remains undismissed and unstayed for a period of 60 days; or an order for relief is entered against the Company or any Guarantor under the federal bankruptcy laws or the laws of the Company’s or such
Guarantor’s jurisdiction of organization, as applicable, in each case as now or hereafter in effect; or
(h) the Company or any
Guarantor (i) commences a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or consents to the entry of an order for relief in an involuntary case under any such law, (ii) consents
to the appointment of or taking possession by a receiver, examiner, liquidator, assignee, custodian, trustee, sequestrator or similar official of the Company or such Guarantor or for all or substantially all of the property and assets of the Company
or such Guarantor or (iii) effects any general assignment for the benefit of creditors (an event of default specified in clause (g) or (h) a “
Bankruptcy Default
”); or
(i) any other Event of Default provided with respect to Securities of that series.
Section 5.02
Acceleration of Maturity; Rescission and Annulment
.
If an Event of Default (other than a Bankruptcy Default) with respect to Securities of any series at the time Outstanding occurs and is
continuing, then in every such case the Trustee or the Holders of at least 25% in principal amount of the Outstanding Securities of that series may declare the principal amount of all the Securities of that series (or, if any Securities of that
series are Original Issue Discount Securities, such portion of the principal amount of such Securities as may be specified by the terms thereof) to be due and payable immediately, by a notice in writing
34
to the Company and the Guarantors (and to the Trustee if given by Holders), and upon any such declaration such principal amount (or specified amount) shall become immediately due and payable. If
a Bankruptcy Default with respect to Securities of any series at the time Outstanding occurs, the principal amount of all the Securities of that series (or, if any Securities of that series are Original Issue Discount Securities, such portion of the
principal amount of such Securities as may be specified by the terms thereof) shall automatically, and without any declaration or other action on the part of the Trustee or any Holder, become immediately due and payable.
At any time after such a declaration of acceleration with respect to Securities of any series has been made and before a judgment or decree
for payment of the money due has been obtained by the Trustee as hereinafter in this Article provided, the Holders of a majority in principal amount of the Outstanding Securities of that series, by written notice to the Company and the Guarantors
and the Trustee, may rescind and annul such declaration and its consequences if:
(a) the Company or any Guarantor has paid or
deposited with Trustee a sum sufficient to pay:
(i) all overdue interest on all Securities of that series,
(ii) the principal of (and premium, if any, on) any Securities of that series which have become due otherwise than by such declaration of
acceleration and any interest thereon at the rate or rates prescribed therefor in such Securities, and
(iii) to the extent that
payment of such interest is lawful, interest upon overdue interest at the rate or rates prescribed therefor in such Securities, if any;
(b) all sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; and
(c) all Events of Default with respect to Securities of that series, other than the
non-payment
of the principal of Securities of that series which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or impair any right consequent thereon.
Section 5.03
Collection of Indebtedness and Suits for Enforcement by Trustee
.
The Company and each Guarantor covenants that if:
(a) default is made in the payment of any interest on any Security when such interest becomes due and payable and such default continues
for a period of 30 days, or
(b) default is made in the payment of the principal of (or premium, if any, on) any Security at the
Maturity thereof, the Company or a Guarantor will, upon demand of the Trustee, pay to it, for the benefit of the Holders of such Securities, the whole amount then due and payable on such Securities for principal and any premium and interest and, to
the extent that
35
payment of such interest shall be legally enforceable, interest on any overdue principal and premium and on any overdue interest, at the rate or rates prescribed therefor in such Securities, and,
in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.
If an Event of Default with respect to Securities of any series occurs and is continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Holders of Securities of such series by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.
Section 5.04
Trustee May File Proofs of Claim
.
In case of any judicial proceeding relative to the Company or a Guarantor (or any other obligor upon the Securities), its property or its
creditors, the Trustee shall be entitled and empowered, by intervention in such proceeding or otherwise, to take any and all actions authorized under the Trust Indenture Act in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders,
to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 6.07.
No provision of this Indenture shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding;
provided
,
however
, that the Trustee may, on behalf of the Holders, vote for the election of a trustee in bankruptcy or similar official and be a member of a creditors’ or other similar committee.
Section 5.05
Trustee May Enforce Claims Without Possession of Securities
.
All rights of action and claims under this Indenture or the Securities may be prosecuted and enforced by the Trustee without the possession of
any of the Securities or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities in respect of which such judgment has been recovered.
Section 5.06
Application of Money Collected
.
36
Any money collected by the Trustee pursuant to this Article shall be applied in the following
order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on account of principal or any premium or interest, upon presentation of the Securities and the notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 6.07; and
SECOND: To the payment of the amounts then due and unpaid upon Securities of such series for principal, premium, if any, and interest, in
respect of which or for the benefit of which such funds have been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities for principal, premium, if any, and interest, respectively;
and
THIRD: To the Company or the Guarantors, as their interests may appear.
Section 5.07
Limitation on Suits
.
No Holder of any Security of any series shall have any right to institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver, examiner or trustee, or for any other remedy hereunder, unless:
(a) such Holder has
previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of that series;
(b) the Holders of not less than 25% in principal amount of the Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
(c) such Holder or
Holders have offered to the Trustee indemnity against the costs, expenses and liabilities to be incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding;
and
(e) no direction inconsistent with such written request has been given to the Trustee during such
60-day
period by the Holders of a majority in principal amount of the Outstanding Securities of that series;
it
being understood and intended that no one or more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other of such Holders,
or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all of such Holders (it being
understood that the Trustee does not have an affirmative duty to ascertain whether or not such actions or forbearances are unduly prejudicial to such Holders).
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Section 5.08 Unconditional Right of Holders To Receive Principal, Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of and any premium and (subject to Section 3.07) interest on such Security on the respective Stated Maturities expressed in such Security (or, in the case of redemption, on the Redemption Date)
and to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder.
Section 5.09
Restoration of Rights and Remedies
.
If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Company, the Guarantors, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.
Section 5.10
Rights and Remedies Cumulative
.
Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 3.06, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 5.11
Delay or Omission Not Waiver
.
No delay or omission of the Trustee or of any Holder of any Securities to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
Section 5.12
Control by Holders
.
The Holders of a majority in principal amount of the Outstanding Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the Securities of such series
; provided
that:
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(a) such direction shall not be in conflict with any rule of law or with this Indenture, the
Securities or any Note Guarantee,
(b) such direction is not unduly prejudicial to the rights of the Holders,
(c) such direction will not involve the Trustee in personal liability or expense for which the Trustee has not received a satisfactory
indemnity, and
(d) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction.
Section 5.13
Waiver of Past Defaults
.
The Holders of not less than a majority in principal amount of the Outstanding Securities of any series by notice to the Trustee may on behalf
of the Holders of all the Securities of such series waive any past default hereunder with respect to such series and its consequences, except a default:
(a) in the payment of the principal of or any premium or interest on any Security of such series, or
(b) in respect of a covenant or provision hereof which under Article 9 cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
Section 5.14
Undertaking for Costs
.
In any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken, suffered
or omitted by it as Trustee, a court may require any party litigant in such suit to file an undertaking to pay the costs of such suit, and may assess costs, including attorney’s fees and expenses, against any such party litigant, in the manner
and to the extent provided in the Trust Indenture Act;
provided
that neither this Section nor the Trust Indenture Act shall be deemed to authorize any court to require such an undertaking or to make such an assessment in any suit instituted
by the Company or the Trustee.
Section 5.15
Waiver of Usury, Stay or Extension Laws
.
The Company and each Guarantor covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in
any manner whatsoever claim or take the benefit or advantage of, any usury, stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Company and each
Guarantor (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer
and permit the execution of every such power as though no such law had been enacted.
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ARTICLE 6
THE TRUSTEE
Section
6.01
Certain Duties and Responsibilities
.
The duties and responsibilities of the Trustee shall be as provided by the Trust
Indenture Act. Notwithstanding the foregoing, no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section.
(a) Except during the continuance of an Event of Default:
(i) the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture,
and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(ii) in the
absence of willful misconduct on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether
or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein).
(b) If an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs.
Section 6.02
Notice of Defaults
.
If a default occurs hereunder with respect to Securities of any series, the Trustee shall give the Holders of Securities of such series notice
of such default as and to the extent provided by the Trust Indenture Act;
provided
,
however
, that in the case of any default of the character specified in Section 5.01(e) with respect to Securities of such series, no such notice to
Holders shall be given until at least 30 days after the occurrence thereof. For the purpose of this Section, the term “
default
” means any event which is, or after notice or lapse of time or both would become, an Event of Default
with respect to Securities of such series.
Section 6.03
Certain Rights of Trustee
.
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Subject to the provisions of Section 6.01:
(a) the Trustee may conclusively rely and shall be protected in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper
party or parties or a Guarantor;
(b) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a
Company Request or Company Order, and any resolution of the Board of Directors shall be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officers’ Certificate;
(d) the Trustee may consult with counsel of its choosing and the advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such Holders shall have offered to the Trustee security or indemnity against the costs, expenses and liabilities which might be incurred by it in compliance with such request or
direction;
(f) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or
attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or
through agents or attorneys;
(h) in no event shall the Trustee be responsible or liable for special, indirect or punitive loss or
damage of any kind whatsoever (including loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action;
(i) the Trustee shall not be required to give any bond or surety in respect of the performance of its powers and duties hereunder;
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(j) the rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder;
(k) the Trustee shall not be deemed to have notice of any Default or Event of 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 the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Securities and this Indenture; and
(l) the Company shall provide to the Trustee on a timely basis such information as the Trustee requires to enable the Trustee to prepare
and file any form required to be submitted by the Company with the Internal Revenue Service and the Holders of the Notes relating to original issue discount.
(m) For certain payments made pursuant to this Indenture, the Trustee may be required to make a “reportable payment” or
“withholdable payment” and in such cases the Trustee shall have the duty to act as a payor or withholding agent, respectively, that is responsible for any tax withholding and reporting required under Chapters 3, 4 and 61 of the Code. The
Trustee shall have the sole right to make the determination as to which payments are “reportable payments” or “withholdable payments.” All parties to this Indenture shall provide an executed IRS Form
W-9
or appropriate IRS Form
W-8
(or, in each case, any successor form) to the Trustee prior to closing, and shall promptly update any such form to the extent such form becomes
obsolete or inaccurate in any respect. The Trustee shall have the right to request from any party to this Indenture, or any other Person entitled to payment hereunder, any additional forms, documentation or other information as may be reasonably
necessary for the Trustee to satisfy its reporting and withholding obligations under the Code. To the extent any such forms to be delivered under this Section 6.03 are not provided prior to or by the time the related payment is required to be
made or are determined by the Trustee to be incomplete and/or inaccurate in any respect, the Trustee shall be entitled to withhold on any such payments hereunder to the extent withholding is required under Chapters 3, 4 or 61 of the Code, and shall
have no obligation to gross up any such payment.
Section 6.04
Not Responsible for Recitals or Issuance of Securities
.
The recitals contained herein and in the Securities, except the Trustee’s certificates of authentication, shall be taken as the
statements of the Company, and neither the Trustee nor any Authenticating Agent assumes any responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities. Neither
the Trustee nor any Authenticating Agent shall be accountable for the use or application by the Company of Securities or the proceeds thereof.
Section 6.05
May Hold Securities
.
The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other agent of the Company, in its individual or any
other capacity, may become the owner or
42
pledgee of Securities and, subject to Sections 6.08 and 6.13, may otherwise deal with the Company with the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other agent.
Section 6.06
Money Held in Trust
.
Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee shall
be under no liability for interest on any money received by it hereunder except as otherwise agreed with the Company.
Section
6.07
Compensation and Reimbursement
.
The Company and each Guarantor agrees:
(a) to pay to the Trustee from time to time compensation for all services rendered by it hereunder (which compensation shall be agreed
upon in writing from time to time between the Trustee and the Company and shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, to reimburse the Trustee upon its request for all reasonable expenses, disbursements
and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as
may be attributable to its negligence or willful misconduct; and
(c) to indemnify each of the Trustee or any predecessor Trustee and
their agents for, and to hold them harmless against, any and all loss, damage, claims, liability or expense, including taxes (other than taxes based upon, measured by or determined by the income of the Trustee), arising out of or in connection with
the acceptance or administration of the trust or trusts hereunder, including the costs and expenses of defending itself against any claim (whether asserted by the Company, any Guarantor, any Holder or any other Person) or liability in connection
with the exercise or performance of any of its powers or duties hereunder, or in connection with enforcing the provisions of this Section, except to the extent that such loss, damage, claim, liability or expense is due to its own negligence or
willful misconduct.
To secure the Company’s and the Guarantor’s payment obligations in this Section, the Trustee shall have a
lien prior to the Securities on all money or property held or collected by the Trustee, except that held in trust for the benefit of Holders of Securities to pay principal and interest on particular Securities.
Without prejudice to its rights hereunder, when the Trustee incurs expenses or renders services after an Event of Default specified in Section
5.01(g) or Section 5.01(h) occurs, the expenses and the compensation for the services are intended to constitute expenses of administration under applicable federal or state bankruptcy, insolvency, reorganization or other similar law.
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Section 6.08
Conflicting Interests
.
If the Trustee has or shall acquire a conflicting interest within the meaning of the Trust Indenture Act, the Trustee shall either eliminate
such interest or resign, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture. To the extent permitted by such Act, the Trustee shall not be deemed to have a conflicting interest
by virtue of being a trustee under this Indenture with respect to Securities of more than one series.
Section 6.09
Corporate
Trustee Required; Eligibility
.
There shall at all times be one (and only one) Trustee hereunder with respect to the Securities of
each series, which may be Trustee hereunder for Securities of one or more other series. Each Trustee shall be a Person that is eligible pursuant to the Trust Indenture Act to act as such and has a combined capital and surplus of at least
$50,000,000. If any such Person publishes reports of condition at least annually, pursuant to law or to the requirements of its supervising or examining authority, then for the purposes of this Section and to the extent permitted by the Trust
Indenture Act, the combined capital and surplus of such Person shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Trustee with respect to the Securities of any
series shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article.
Section 6.10
Resignation and Removal; Appointment of Successor
.
No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 6.11.
The Trustee may
resign at any time with respect to the Securities of one or more series by giving written notice thereof to the Company and the Guarantors. If the instrument of acceptance by a successor Trustee required by Section 6.11 shall not have been
delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may, at the expense of the Company, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to
the Securities of such series.
The Trustee may be removed at any time with respect to the Securities of any series by Act of the Holders
of a majority in principal amount of the Outstanding Securities of such series, delivered to the Trustee and to the Company and the Guarantors. If the instrument of acceptance by a successor Trustee required by Section 6.11 shall not have been
delivered to the Trustee within 30 days after the removal of the Trustee, the removed Trustee may, at the expense of the Company, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities
of such series.
If at any time:
44
(a) the Trustee shall fail to comply with Section 6.08 after written request therefor
by the Company, Parent or by any Holder who has been a
bona fide
Holder of a Security for at least six months, or
(b) the
Trustee shall cease to be eligible under Section 6.09 and shall fail to resign after written request therefor by the Company, Parent or by any such Holder, or
(c) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, then, in any such case, (i) the Company by a Board
Resolution may remove the Trustee with respect to all Securities, or (ii) subject to Section 5.14, any Holder who has been a
bona fide
Holder of a Security for at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal of the Trustee with respect to all Securities and the appointment of a successor Trustee or Trustees.
If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause,
with respect to the Securities of one or more series, the Company, by a Board Resolution, shall promptly appoint a successor Trustee or Trustees with respect to the Securities of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of one or more or all of such series and that at any time there shall be only one Trustee with respect to the Securities of any particular series) and shall comply with the applicable
requirements of Section 6.11. If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the Securities of any series shall be appointed by Act of the Holders of a
majority in principal amount of the Outstanding Securities of such series delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment in accordance with the
applicable requirements of Section 6.11, become the successor Trustee with respect to the Securities of such series and to that extent supersede the successor Trustee appointed by the Company. If no successor Trustee with respect to the
Securities of any series shall have been so appointed by the Company or the Holders and accepted appointment in the manner required by Section 6.11, any Holder who has been a
bona fide
Holder of a Security of such series for at least six
months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
The Company shall give notice of each resignation and each removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series to all Holders of Securities of such series in the manner provided in Section 1.06. Each notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
Section 6.11
Acceptance of Appointment by Successor
.
In case of the appointment hereunder of a successor Trustee with respect to all Securities, every such successor Trustee so appointed
shall execute, acknowledge and deliver to the
45
Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Company or the successor Trustee, such retiring Trustee shall, upon payment of its
charges, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such
retiring Trustee hereunder. The successor Trustee shall mail notice of its succession to the Holders.
In case of the appointment
hereunder of a successor Trustee with respect to the Securities of one or more (but not all) series, the Company, the retiring Trustee and each successor Trustee with respect to the Securities of one or more series shall execute and deliver an
indenture supplemental hereto wherein each successor Trustee shall accept such appointment and which (a) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates, (b) if the retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and (c) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by
more than one Trustee, it being understood that nothing herein or in such supplemental indenture
shall constitute such Trustees
co-trustees
of the same trust and that each such Trustee shall be trustee
of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee; and upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall
become effective to the extent provided therein and each such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities
of that or those series to which the appointment of such successor Trustee relates; but, on request of the Company or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such successor Trustee relates.
Upon request of any such successor Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred to in the first or second preceding paragraph, as the case may be.
No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
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Section 6.12
Merger, Conversion, Consolidation or Succession to Business
.
Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of the Trustee (including the trust created by this Indenture), shall be the successor
of the Trustee hereunder
; provided
such corporation shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Securities
shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the
same effect as if such successor Trustee had itself authenticated such Securities.
Section 6.13
Preferential Collection of Claims
Against Company
.
If and when the Trustee shall be or become a creditor of the Company or any Guarantor (or any other obligor upon the
Securities), the Trustee shall be subject to the provisions of the Trust Indenture Act regarding the collection of claims against the Company or such Guarantor (or any such other obligor).
Section 6.14
Appointment of Authenticating Agent
.
The Trustee may appoint an Authenticating Agent or Agents with respect to one or more series of Securities which shall be authorized to act on
behalf of the Trustee to authenticate Securities of such series issued upon original issue and upon exchange, registration of transfer or partial redemption thereof or pursuant to Section 3.06, and Securities so authenticated shall be entitled
to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. Wherever reference is made in this Indenture to the authentication and delivery of Securities by the Trustee or the
Trustee’s certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the Company and shall at all times be a corporation organized and doing business under the laws of the United States of America, any State thereof or the District of Columbia,
authorized under such laws to act as Authenticating Agent, having a combined capital and surplus of not less than $50,000,000 and subject to supervision or examination by federal or state authority. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so published. If at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this Section.
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The Trustee hereby initially appoints Wells Fargo Bank, National Association as an Authenticating
Agent. The Company hereby deems Wells Fargo Bank, National Association an acceptable Authenticating Agent.
Any corporation into which an
Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any corporation succeeding to all
or substantially all of the corporate agency or corporate trust business of an Authenticating Agent (including the authenticating agency contemplated by this Indenture), shall continue to be an Authenticating Agent
; provided
such corporation
shall be otherwise eligible under this Section, without the execution or filing of any paper or any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and to the Company. Upon receiving such a notice of resignation or upon such a termination, or in case at any time such Authenticating
Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee may appoint a successor Authenticating Agent which shall be acceptable to the Company and shall give notice of such appointment in the manner provided in
Section 1.06 to all Holders of Securities of the series with respect to which such Authenticating Agent will serve. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers
and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to time reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to the Trustee’s certificate of authentication, an alternative certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
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Wells Fargo Bank, National Association
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By:
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As Authenticating Agent
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By:
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As Authenticating Agent
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ARTICLE 7
HOLDERS’ LISTS AND REPORTS BY TRUSTEE, COMPANY AND GUARANTORS
Section 7.01
Company To Furnish Trustee Names and Addresses of Holders
.
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The Company will furnish or cause to be furnished to the Trustee:
(a) not more than 15 days after each Regular Record Date and in any case at least once every 6 months, a list, in such form as the Trustee
may reasonably require, of the names and addresses of the Holders of Securities of each series as of the preceding Regular Record Date, and
(b) at such other times as the Trustee may request in writing, within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days prior to the time such list is furnished;
excluding
from any such list names and addresses received by the Trustee in its capacity as Security Registrar or
Co-Security
Registrar, as applicable.
Section 7.02
Preservation of Information; Communications
to Holders
.
The Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders
contained in the most recent list furnished to the Trustee as provided in Section 7.01 and the names and addresses of Holders received by the Trustee in its capacity as Security Registrar or
Co-Security
Registrar, as applicable. The Trustee may destroy any list furnished to it as provided in Section 7.01 upon receipt of a new list so furnished.
The rights of Holders to communicate with other Holders with respect to their rights under this Indenture or under the Securities, and the
corresponding rights and privileges of the Trustee, shall be as provided by the Trust Indenture Act.
Every Holder of Securities, by
receiving and holding the same, agrees with the Company and the Trustee that none of the Company, the Guarantors nor the Trustee nor any agent of any of them shall be held accountable by reason of any disclosure of information as to names and
addresses of Holders made pursuant to the Trust Indenture Act.
Section 7.03
Reports by Trustee
.
By no later than May 15 of each year, beginning on May 15, [ ], and for as long as
the Securities remain outstanding, the Trustee shall transmit to Holders such reports concerning the Trustee and its actions under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant
thereto.
A copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee with each stock exchange
upon which any Securities are listed, with the Commission and with the Company. The Company will promptly notify the Trustee when any Securities are listed on any stock exchange, and any delisting thereof.
Section 7.04
Reports
.
(a) Parent shall deliver to the Trustee, within 30 days after Parent has filed, or would have been required to file, the same with the
Commission, copies of the annual reports and quarterly reports and of the information, documents and other periodic or current reports (or copies of such portions of any of the foregoing as the Commission may from to time to time by
49
rules and regulations prescribe) that Parent may be required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act (other than confidential filings, documents
subject to confidential treatment and correspondence with the Commission);
provided
, that the filing of the foregoing documents via the EDGAR system (or any successor electronic filing system), shall be deemed to be delivered to the Trustee
as of the time such documents are filed via EDGAR (or such successor system);
provided
,
further
, that if at any time Parent is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, it will file with
the Trustee and the Commission, in accordance with rules and regulations prescribed from time to time by the Commission, such of the supplementary and periodic information, documents and reports that may be required pursuant to Section 13 of
the Exchange Act, in respect of a debt security listed and registered on a national securities exchange as may be prescribed from time to time in such rules and regulations. The Trustee shall have no obligation whatsoever to determine whether or not
such information, documents or reports have been filed via the EDGAR system (or such successor system).
(b) If this Indenture is
qualified under the Trust Indenture Act, the Company and each Guarantor will comply with Section 314(a) of the Trust Indenture Act, to the extent applicable.
(c) Delivery of any information, documents and reports to the Trustee is for informational purposes only and the Trustee’s receipt
of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s or the Guarantors’ compliance with any of its covenants hereunder (as to
which the Trustee is entitled to rely exclusively on Officers’ Certificates).
ARTICLE 8
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 8.01
Company May Consolidate, Etc., Only on Certain Terms
.
The Company shall not in any transaction or series of transactions, consolidate with or merge into any other Person, or sell, assign, convey,
transfer, lease or otherwise dispose of all or substantially all of its assets to any other Person, unless:
(a) either: (i) the
Company shall be the continuing Person; or (ii) the Person (if other than the Company), formed by such consolidation or into which the Company is merged, or the Person that acquires, by sale, assignment, conveyance, transfer, lease or other
disposition, all or substantially all of the assets of the Company, shall (1) be a corporation, partnership, limited liability company, trust or similar entity organized and validly existing under the laws of the United States of America, any
state or political subdivision thereof, the District of Columbia, the United Kingdom or any member country of the European Union and (2) expressly assume, by a supplemental indenture, in form reasonably satisfactory to the Trustee, the due and
punctual payment of the principal of (and premium, if any) and interest on all the Securities and the performance or the observance of every covenant of this Indenture on the part of the Company to be performed or observed;
(b) immediately after giving effect to such transaction (including the Incurrence of any Debt in connection with such transaction or
series of transactions), no Event of Default, and
50
no event which, after notice or lapse of time or both, would become an Event of Default, shall have occurred and be continuing (
provided
, that, for the avoidance of doubt, Debt of a
Restricted Subsidiary Incurred prior to such transaction which is assumed by the Company, another Restricted Subsidiary or the Person assuming the Company’s obligations hereunder in connection with such transaction shall be deemed not to be a
separate Incurrence of Debt); and
(c) if, as a result of any such consolidation or merger or such conveyance, transfer or lease,
properties or assets of the Company would become subject to a mortgage, pledge, lien, security interest or other encumbrance which would not be permitted by this Indenture, the Company or such successor Person, as the case may be, shall take such
steps as shall be necessary effectively to secure the Securities equally and ratably with (or prior to) all indebtedness secured thereby; and
(d) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, sale, conveyance, assignment, transfer, lease or other disposition and such supplemental indenture comply with the requirements of this Indenture.
Notwithstanding the foregoing, the provisions of this Section 8.01 shall not apply to any consolidation, merger, sale, conveyance,
assignment, transfer, lease or other disposition of assets between or among the Company and Parent and/or any other Restricted Subsidiary.
Section 8.02
Successor Substituted
.
Upon any consolidation of the Company with, or merger of the Company into, any other Person or any conveyance, transfer or lease of
substantially all of the assets of the Company in accordance with Section 8.01, the successor Person formed by such consolidation or into which the Company is merged or to which such conveyance, transfer or lease is made shall succeed to, and
be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor Person had been named as the Company herein, and thereafter, except in the case of a lease, the predecessor
Person shall be relieved of all obligations and covenants under this Indenture and the Securities.
ARTICLE 9
SUPPLEMENTAL INDENTURES
Section
9.01
Supplemental Indentures
Without Consent of Holders
.
Without the consent of the Holders of any series of
Securities, the Company and, to the extent applicable, each Guarantor, in each case when authorized by a Board Resolution, and the Trustee, at any time and from time to time, may enter into one or more indentures
supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(a) to evidence the succession of another Person to the Company or
any Guarantor and the assumption by any such successor of the covenants of the Company or such Guarantor herein and in the Securities of any series and in the Note Guarantees of any series, as applicable; or
51
(b) to add to the covenants of the Company or any Guarantor for the benefit of the Holders
of all or any series of Securities (and if such covenants are to be for the benefit of less than all series of Securities, stating that such covenants are expressly being included solely for the benefit of such series) or to surrender any right or
power herein conferred upon the Company or any Guarantor; or
(c) to add any additional Events of Default for the benefit of the
Holders of all or any series of Securities (and if such additional Events of Default are to be for the benefit of less than all series of Securities, stating that such additional Events of Default are expressly being included solely for the benefit
of such series); or
(d) to add to or change any of the provisions of this Indenture to such extent as shall be necessary to permit
or facilitate the issuance of Securities in bearer form, registrable or not registrable as to principal, and with or without interest coupons, or to permit or facilitate the issuance of Securities in uncertificated form; or
(e) to add to, change or eliminate any of the provisions of this Indenture in respect of one or more series of Securities
; provided
that any such addition, change or elimination (i) shall neither (A) apply to any Security of any series created prior to the execution of such supplemental indenture and entitled to the benefit of such provision nor (B) modify the
rights of the Holder of any such Security with respect to such provision or (ii) shall become effective only when there is no such Security Outstanding; or
(f) to secure the Securities or any Note Guarantee; or
(g) to establish the form or terms of Securities of any series as permitted by Sections 2.01 and 3.01; or
(h) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 6.11; or
(i) to cure any ambiguity, to correct or supplement any provision herein or in any supplemental indenture which may be defective or
inconsistent with any other provision herein or in any supplemental indenture, or to make any other provisions with respect to matters or questions arising under this Indenture
; provided
that such action pursuant to this Clause (i) shall
not adversely affect the interests of the Holders of Securities of any series in any material respect; or
(j) to conform this
Indenture or any supplemental indenture to the description of the Securities set forth in any prospectus or prospectus supplement related to such series of Securities; or
(k) to comply with the rules of any applicable securities depositary; or
52
(l) to comply with any requirements of the Commission in connection with the qualification
of the Indenture under the Trust Indenture Act; or
(m) to add or release a Guarantor as required or permitted by this Indenture.
Section 9.02
Supplemental Indentures
with Consent of Holders
.
With the consent of the Holders of not less than 50% in principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company, the Guarantors and the Trustee, the Company and the Guarantors, in each case when authorized by a Board Resolution, and the Trustee may enter into an indenture
or
indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of modifying in any manner the rights of the Holders of Securities of such series under
this Indenture;
provided
,
however
, that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Security affected thereby:
(a) extend the Stated Maturity of the principal of, or any installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or any premium payable upon the redemption thereof, or reduce the amount of the principal of an Original Issue Discount Security or any other Security which would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 5.02, or change any Place of Payment where, or the coin or currency in which, any Security or any premium or interest thereon is payable, or impair the right to institute
suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date), or
(b) reduce the percentage in principal amount of the Outstanding Securities of any series, the consent of whose Holders is required for
any such supplemental indenture, or the consent of whose Holders is required for any waiver (of compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences) provided for in this Indenture, or
(c) modify any of the provisions of this Section, Section 5.13 or Section 10.08, except to increase any such percentage or to
provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Security affected thereby;
provided
,
however
, that this clause shall not be deemed to require
the consent of any Holder with respect to changes in the references to the “Trustee” and concomitant changes in this Section and Article 10, or the deletion of this proviso, in accordance with the requirements of Section 6.11 and
Section 9.01(h); or
(d) release Parent or Medtronic, Inc. from its obligations in respect of the Note Guarantees or modify the Note
Guarantees of any series other than in accordance with the provisions of this Indenture.
A supplemental indenture which changes or
eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series of Securities, or which modifies the rights of the Holders of Securities of such series with
respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series.
53
It shall not be necessary for any Act of Holders under this Section to approve the particular
form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof.
Section
9.03
Execution of Supplemental Indentures
.
In executing, or accepting the additional trusts created by, any supplemental
indenture
permitted by this Article or the modifications thereby of the trusts created by this Indenture, the Trustee shall receive, and (subject to Section 6.01) shall be fully protected in relying upon, an Officers’ Certificate
and an Opinion of Counsel (subject to any reservations set out therein) stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture and that such supplemental indenture
is the valid and
binding obligation of the Company and any Guarantors party thereto, enforceable against the Company and any Guarantors party thereto in accordance with its terms. The Trustee may, but shall not be obligated to, enter into any such supplemental
indenture which affects the Trustee’s own rights, duties or immunities under this Indenture
or otherwise.
Section
9.04
Effect of Supplemental Indentures
.
Upon the execution of any supplemental indenture under this Article, this Indenture
shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.
Section 9.05
Conformity with Trust Indenture Act
.
Every supplemental indenture executed pursuant to this Article shall conform to the requirements of the Trust Indenture
Act.
Section 9.06
Reference in Securities to Supplemental Indentures
.
Securities of any series authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture
.
If the Company shall so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture
may be prepared and executed by the Company and any Note Guarantee executed thereon and authenticated and delivered by the Trustee in exchange for Outstanding
Securities of such series.
ARTICLE 10
COVENANTS
Section
10.01
Payment of Principal, Premium and Interest
.
54
The Company covenants and agrees for the benefit of each series of Securities that it will duly
and punctually pay the principal of and any premium and interest on the Securities of that series in accordance with the terms of the Securities and this Indenture. The performance by any Guarantor of the obligations of the Company under this
Section 10.01 shall be deemed to constitute performance thereof by the Company.
Section 10.02
Maintenance of Office or
Agency
.
The Company will maintain in each Place of Payment for any series of Securities an office or agency where Securities of that
series may be presented or surrendered for payment, where Securities of that series may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company in respect of the Securities of that series and this
Indenture may be served. The Company will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive
all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other offices or
agencies where the Securities of one or more series may be presented or surrendered for any or all such purposes and may from time to time rescind such designations;
provided
,
however
, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency in each Place of Payment for Securities of any series for such purposes. The Company will give prompt written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other office or agency.
Section 10.03
Money for Securities Payments To
Be Held in Trust
.
If the Company shall at any time act as its own Paying Agent with respect to any series of Securities, it will, on
or before each due date of the principal of or any premium or interest on any of the Securities of that series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay the principal and any premium and
interest so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series of Securities, it will, on or prior to each due date of the principal
of or any premium or interest on any Securities of that series, deposit with a Paying Agent a sum sufficient to pay such amount, such sum to be held as provided by the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the Company
will promptly notify the Trustee of its action or failure so to act.
The Company hereby initially appoints Wells Fargo Bank, National
Association at its office located at 600 South 4th Street, 6th Floor, Minneapolis, Minnesota, 55415, Attn: Administrator for Medtronic, as a Paying Agent.
The Company will cause each Paying Agent for any series of Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall
55
agree with the Trustee, subject to the provisions of this Section, that such Paying Agent will (a) comply with the provisions of the Trust Indenture Act applicable to it as a Paying Agent
and (b) during the continuance of any default by the Company (or any other obligor upon the Securities of that series) in the making of any payment in respect of the Securities of that series, upon the written request of the Trustee, forthwith
pay to the Trustee all sums held in trust by such Paying Agent for payment in respect of the Securities of that series.
The Company may
at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company or such Paying Agent,
such sums to be held by the Trustee upon the same trusts as those upon which such sums were held by the Company or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further
liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for
the payment of the principal of or any premium or interest on any Security of any series and remaining unclaimed for two years after such principal, premium or interest has become due and payable shall be paid to the Company on Company Request, or
(if then held by the Company) shall be discharged from such trust; and the Holder of such Security shall thereafter, as an unsecured general creditor, look only to the Company for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease;
provided
,
however
, that the Trustee or such Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in the English language, customarily published on each Business Day and of general circulation in New York that, after a date specified therein, which shall not be less than
30 days from the date of such publication, any unclaimed balance of such money then remaining will be repaid to the Company.
For certain
payments made pursuant to this Indenture, the Paying Agent may be required to make a “reportable payment” or “withholdable payment” and in such cases the Paying Agent shall have the duty to act as a payor or withholding agent,
respectively, that is responsible for any tax withholding and reporting required under Chapters 3, 4 and 61 of the Code. The Paying Agent shall have the sole right to make the determination as to which payments are “reportable payments” or
“withholdable payments.” All parties to this Indenture shall provide an executed IRS Form
W-9
or appropriate IRS Form
W-8
(or, in each case, any successor
form) to the Paying Agent prior to closing, and shall promptly update any such form to the extent such form becomes obsolete or inaccurate in any respect. The Paying Agent shall have the right to request from any party to this Indenture, or any
other Person entitled to payment hereunder, any additional forms, documentation or other information as may be reasonably necessary for the Paying Agent to satisfy its reporting and withholding obligations under the Code. To the extent any such
forms to be delivered under this Section 10.03 are not provided prior to or by the time the related payment is required to be made or are determined by the Paying Agent to be incomplete and/or inaccurate in any respect, the Paying Agent shall
be entitled to withhold on any such payments hereunder to the extent withholding is required under Chapters 3, 4 or 61 of the Code, and shall have no obligation to gross up any such payment.
56
Section 10.04
Statement by Officers as to Default
.
(a) The Company and each Guarantor (to the extent that such Guarantor is so required under the Trust Indenture Act) shall deliver to the
Trustee within 120 days after the end of each fiscal year of Parent a brief certificate (which need not comply with the requirements of the definition of “Officers’ Certificate” set forth herein) from the principal executive,
financial or accounting officer of the Company on its behalf as to his or her knowledge of the Company’s and the Guarantors’ compliance with all covenants and agreements under this Indenture required to be complied with by the Company or
such Guarantor. Such certificate need not include a reference to any
non-compliance
that has been fully cured prior to the date as of which such certificate speaks.
(b) The Company or a Guarantor, as applicable, shall, within 30 days after becoming aware of the occurrence of an Event of Default,
provide the Trustee with an Officers’ Certificate providing notice of and specifying such Event of Default.
Section
10.05
Existence.
Subject to Article 8, each of the Company and the Guarantors will do or cause to be done all things
necessary to preserve and keep in full force and effect its existence, rights (charter and statutory) and franchises;
provided
,
however
, that neither the Company nor any Guarantor shall be required to preserve any such right or
franchise if the Board of Directors shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Company or such Guarantor and that the loss thereof is not disadvantageous in any material respect to the
Holders.
Section 10.06
Limitation on Secured Debt
.
(a) Parent will not, and will not permit any Restricted Subsidiary to, Incur any Debt secured by a Lien on any Principal Property, now
owned or hereafter owned by Parent or any Restricted Subsidiary, or any shares of stock or Debt of any Restricted Subsidiary, without effectively providing that the Securities of that series (together with, if Parent shall so determine, any other
Debt of Parent or such Restricted Subsidiary then existing or thereafter created which is not subordinate to the Securities) shall be secured equally and ratably with (or prior to) such secured Debt so long as such secured debt shall be so secured;
provided
that Parent or any Restricted Subsidiary may Incur Debt secured by Liens without equally and ratably securing the Securities of that series if, on the date of the Incurrence, after giving effect to the Incurrence and to the
retirement of any Debt that is concurrently being retired, the aggregate amount of all outstanding Debt secured by Liens which could not have been incurred, issued, assumed or guaranteed by Parent or a Restricted Subsidiary without equally and
ratably securing the Securities of each series then Outstanding except for the proviso of this paragraph, together with the aggregate amount of Attributable Debt incurred pursuant to Section 10.07(b)(iii), does not at such time exceed 20% of
Consolidated Net Tangible Assets of Parent.
(b) Notwithstanding the foregoing, Parent and, to the extent provided below, any
Restricted Subsidiary may Incur Debt secured by the following Liens (“
Permitted Debt
”):
57
(i) Liens on any Principal Property acquired (whether by merger, consolidation, purchase,
lease or otherwise), constructed or improved by Parent or any Restricted Subsidiary after the date of the Indenture which are created or assumed prior to, contemporaneously with, or within 360 days after, such acquisition, construction or
improvement, to secure or provide for the payment of all or any part of the cost of such acquisition, construction or improvement (including related expenditures capitalized for federal income tax purposes in connection therewith) incurred after the
date of the Indenture;
(ii) Liens on any property, shares of Capital Stock or Debt existing at the time of acquisition thereof,
whether by merger, consolidation, purchase, lease or otherwise (including Liens on property, shares of Capital Stock or Debt of a Corporation existing at the time such Corporation becomes a Restricted Subsidiary);
(iii) Liens in favor of, or which secure Debt owing to, Parent or any Restricted Subsidiary;
(iv) Liens in favor of the United States or any state thereof, or any department, agency, or instrumentality or political subdivision
thereof, or political entity affiliated therewith, or in favor of any other country, or any political subdivision thereof, to secure partial, progress, advance or other payments, or other obligations, pursuant to any contract or statute, or to
secure any Debt incurred for the purpose of financing all or any part of the cost of acquiring, constructing or improving the property subject to such Liens (including Liens incurred in connection with pollution control, industrial revenue or
similar financings);
(v) Liens imposed by law, such as mechanics’, workmen’s, repairmen’s, materialmen’s,
carriers’, warehousemen’s, vendors’ or other similar Liens arising in the ordinary course of business, or governmental (federal, state or municipal) Liens arising out of contracts for the sale of products or services by Parent or any
Restricted Subsidiary, or deposits or pledges to obtain the release of any of the foregoing;
(vi) pledges or deposits under
workmen’s compensation, unemployment insurance, or similar legislation and Liens of judgments thereunder which are not currently dischargeable, or good faith deposits in connection with bids, tenders, contracts (other than for the payment of
money) or leases to which Parent or any Restricted Subsidiary is a party, or deposits to secure public or statutory obligations of Parent or any Restricted Subsidiary, or deposits in connection with obtaining or maintaining self-insurance or to
obtain the benefits of any law, regulation or arrangement pertaining to workmen’s compensation, unemployment insurance, old age pensions, social security or similar matters, or deposits of cash or obligations of the United States to secure
surety, appeal or customs bonds to which Parent or any Restricted Subsidiary is a party, or deposits in litigation or other proceedings such as, but not limited to, interpleader proceedings;
(vii) Liens created by or resulting from any litigation or other proceeding which is being contested in good faith by appropriate
proceedings, including Liens arising out of judgments or awards against Parent or any Restricted Subsidiary with respect to which Parent or such Restricted Subsidiary is in good faith prosecuting an appeal or proceedings for review; or Liens
incurred by Parent or any Restricted Subsidiary for the purpose of obtaining a stay or discharge in the course of any litigation or other proceeding to which Parent or such Restricted Subsidiary is a party;
58
(viii) Liens for taxes or assessments or governmental charges or levies not yet due or
delinquent, or which can thereafter be paid without penalty, or which are being contested in good faith by appropriate proceedings;
(ix) Liens consisting of easements,
rights-of-way,
zoning
restrictions, restrictions on the use of real property, and defects and irregularities in the title thereto, landlords’ Liens and other similar Liens and encumbrances none of which interfere materially with the use of the property covered
thereby in the ordinary course of the business of Parent or such Restricted Subsidiary and which do not, in the opinion of Parent, materially detract from the value of such properties;
(x) Liens existing on the first date on which the Securities of that series are authenticated;
(xi) Liens arising solely by virtue of any statutory or common law provision relating to banker’s Liens, rights of setoff or similar
rights and remedies as to deposit accounts or other funds maintained with a creditor depository institution;
provided
that (i) such deposit account is not a dedicated cash collateral account and is not subject to restrictions against
access by Parent or the applicable Restricted Subsidiary in excess of those set forth by regulations promulgated by the Federal Reserve Board and (ii) such deposit account is not intended to provide collateral to the depository institution; or
(xii) any extension, renewal or replacement (or successive extensions, removals or replacements) as a whole or in part, of any Lien
referred to in the foregoing clauses (i) to (xi), inclusive;
provided
that (i) such extension, renewal or replacement Lien shall be limited to all or a part of the same property, shares of stock or Debt that secured the Lien
extended, renewed or replaced (plus improvements on such property) and (ii) the Debt secured by such Lien at such time is not increased.
Section 10.07
Limitation on Sale and Leaseback Transactions
.
Parent will not, and will not permit any Restricted Subsidiary to, enter into any Sale and Leaseback Transaction with respect to any Principal
Property unless:
(a) Parent or the Restricted Subsidiary would be entitled to, without equally and ratably securing the Securities of
that series to Incur Debt secured by a Lien on such property pursuant to Section 10.06, or
(b) Parent or a Subsidiary, within
360 days after such transaction, applies an amount not less than the net proceeds of the sale of the Principal Property leased pursuant to such arrangement to (1) the retirement of its Funded Debt;
provided
that the amount to be applied
to the retirement of Funded Debt of Parent shall be reduced by the principal amount of any Securities of such series delivered within 360 days after such sale to the Trustee for retirement and cancellation, and the principal amount of Funded Debt,
other than Securities, voluntarily retired by Parent within 360 days after such sale or (2) the purchase, construction or development
59
of other property, facilities or equipment used or useful in Parent’s or a Restricted Subsidiary’s business;
provided
,
further
, that:
(i) no such retirement may be effected by payment at maturity or pursuant to any mandatory sinking fund payment or mandatory prepayment
provision;
(ii) no such restriction will apply to a Sale and Leaseback Transaction between Parent and a Restricted Subsidiary or
between Restricted Subsidiaries or involving the taking back of a lease for a period of less than three years; and
(iii) Parent or
any Restricted Subsidiary may enter into a Sale and Leaseback Transaction if, on the date of such transaction, after giving effect thereto and to the retirement of any Funded Debt that is concurrently being retired, the aggregate amount of all
Attributable Debt in respect of Sale and Leaseback Transactions existing at such time (other than Sale and Leaseback Transactions otherwise permitted under this Section 10.07), together with the aggregate amount of all outstanding Debt incurred
pursuant to the first proviso of Section 10.06(a), does not at such time exceed 20% of Consolidated Net Tangible Assets of Parent.
Section 10.08
Waiver of Certain Covenants
.
Except as otherwise specified as contemplated by Section 3.01 for Securities of such series, the Company and/or any Guarantor, as
applicable, may, with respect to the Securities of any series, omit in any particular instance to comply with any term, provision or condition set forth in any covenant provided pursuant to Sections 3.01(r), 9.01(b) or 9.01(g) for the benefit of the
Holders of such series and in Sections 10.06 or 10.07 if before the time for such compliance the Holders of not less than a majority in principal amount of the Outstanding Securities of such series shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such term, provision or condition, but no such waiver shall extend to or affect such term, provision or condition except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company and/or such Guarantor, as applicable, and the duties of the Trustee in respect of any such term, provision or condition shall remain in full force and effect.
ARTICLE 11
REDEMPTION OF
SECURITIES
Section 11.01
Applicability of Article
.
Securities of any series which are redeemable before their Stated Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 3.01 for such Securities) in accordance with this Article.
Section
11.02
Election To Redeem; Notice to Trustee
.
The election of the Company to redeem any Securities shall be evidenced by a
Board Resolution or in another manner specified as contemplated by Section 3.01 for such Securities. In case of any redemption at the election of the Company of less than all the Securities of any series (including any such redemption affecting
only a single Security), the Company shall, at
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least 40 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee of such Redemption Date, of the principal amount
of Securities of such series to be redeemed, and, if applicable, of the tenor of the Securities to be redeemed. In the case of any redemption of Securities prior to the expiration of any restriction on such redemption provided in the terms of such
Securities or elsewhere in this Indenture, the Company shall furnish the Trustee with an Officers’ Certificate evidencing compliance with such restriction.
Section 11.03
Selection by Trustee of Securities To Be Redeemed
.
If less than all the Securities of any series are to be redeemed (unless all the Securities of such series and of a specified tenor are to be
redeemed or unless such redemption affects only a single Security), the particular Securities to be redeemed shall be selected not more than 10 days prior to the Redemption Date by the Trustee, from the Outstanding Securities of such series not
previously called for redemption, by such method as the Trustee shall deem fair and appropriate and which may provide for the selection for redemption of a portion of the principal amount of any Security of such series
; provided
that the
unredeemed portion of the principal amount of any Security shall be in an authorized denomination (which shall not be less than the minimum authorized denomination) for such Security. If less than all the Securities of such series and of a specified
tenor are to be redeemed (unless such redemption affects only a single Security), the particular Securities to be redeemed shall be selected not more than 10 days prior to the Redemption Date by the Trustee, from the Outstanding Securities of such
series and specified tenor not previously called for redemption in accordance with the preceding sentence.
The Trustee shall promptly
notify the Company in writing of the Securities selected for redemption as aforesaid and, in case of any Securities selected for partial redemption as aforesaid, the principal amount thereof to be redeemed.
The provisions of the two preceding paragraphs shall not apply with respect to any redemption affecting only a single Security, whether such
Security is to be redeemed in whole or in part. In the case of any such redemption in part, the unredeemed portion of the principal amount of the Security shall be in an authorized denomination (which shall not be less than the minimum authorized
denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to
the redemption of Securities shall relate, in the case of any Securities redeemed or to be redeemed only in part, to the portion of the principal amount of such Securities which has been or is to be redeemed.
Section 11.04
Notice of Redemption
.
Notice of redemption shall be given by first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days prior to the
Redemption Date, to each Holder of Securities to be redeemed, at his address appearing in the Security Register. An Officer’s Certificate specifying the actual redemption price must be sent to the Trustee no later than five Business Days prior
to the redemption date.
All notices of redemption shall state:
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(a) the Redemption Date,
(b) the calculation of the Redemption Price, including the portion thereof representing any accrued interest;
(c) if less than all the Outstanding Securities of any series consisting of more than a single Security are to be redeemed, the
identification (and, in the case of partial redemption of any such Securities, the principal amounts) of the particular Securities to be redeemed and, if less than all the Outstanding Securities of any series consisting of a single Security are to
be redeemed, the principal amount of the particular Security to be redeemed,
(d) that on the Redemption Date the Redemption Price
will become due and payable upon each such Security to be redeemed and, if applicable, that interest thereon will cease to accrue on and after said date,
(e) the place or places where each such Security is to be surrendered for payment of the Redemption Price, and
(f) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of the Company shall be given by the Company or, at the Company’s
written request, by the Trustee in the name and at the expense of the Company.
Section 11.05
Deposit of Redemption Price
.
Prior to any Redemption Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 10.03) an amount of money sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date.
Section 11.06
Securities Payable on Redemption Date
.
Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall, on the Redemption Date, become due and payable at
the Redemption Price therein specified, and from and after such date (unless the Company shall default in the payment of the Redemption Price and accrued interest) such Securities shall cease to bear interest. Upon surrender of any such Security for
redemption in accordance with said notice, such Security shall be paid by the Company at the Redemption Price, together with accrued interest to the Redemption Date;
provided
,
however
, that, unless otherwise specified as contemplated
by Section 3.01, installments of interest whose Stated Maturity is on or prior to the Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of Section 3.07.
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If any Security called for redemption shall not be so paid upon surrender thereof for redemption,
the principal and any premium shall, until paid, bear interest from the Redemption Date at the rate prescribed therefor in the Security.
Section 11.07
Securities Redeemed in Part
.
Any Security which is to be redeemed only in part shall be surrendered at a Place of Payment therefor (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute and each Guarantor
shall execute any Note Guarantee thereon, and the Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new Security or Securities of the same series and of like tenor, of any authorized denomination as
requested by such Holder, in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Security so surrendered.
ARTICLE 12
SINKING FUNDS
Section 12.01
Applicability of Article
.
The provisions of this Article shall be applicable to any sinking fund for the retirement of Securities of any series except as otherwise
specified as contemplated by Section 3.01 for such Securities.
The minimum amount of any sinking fund payment provided for by the
terms of any Securities is herein referred to as a “mandatory sinking fund payment”, and any payment in excess of such minimum amount provided for by the terms of such Securities is herein referred to as an “optional sinking fund
payment”. If provided for by the terms of any Securities, the cash amount of any sinking fund payment may be subject to reduction as provided in Section 12.02. Each sinking fund payment shall be applied to the redemption of Securities as
provided for by the terms of such Securities.
Section 12.02
Satisfaction of Sinking Fund Payments with Securities
.
The Company (a) may deliver Outstanding Securities of a series (other than any previously called for redemption) and (b) may apply
as a credit Securities of a series which have been redeemed either at the election of the Company pursuant to the terms of such Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund payment with respect to any Securities of such series required to be made pursuant to the terms of such Securities as and to the extent provided for by the terms of such
Securities;
provided
that the Securities to be so credited have not been previously so credited. The Securities to be so credited shall be received and credited for such purpose by the Trustee at the Redemption Price, as specified in the
Securities so to be redeemed, for redemption through operation of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly.
Section 12.03
Redemption of Securities for Sinking Fund
.
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Not less than 45 days prior to each sinking fund payment date for any Securities, the Company
will deliver to the Trustee an Officers’ Certificate specifying the amount of the next ensuing sinking fund payment for such Securities pursuant to the terms of such Securities, the portion thereof, if any, which is to be satisfied by payment
of cash and the portion thereof, if any, which is to be satisfied by delivering and crediting Securities pursuant to Section 12.02 and will also deliver to the Trustee any Securities to be so delivered. Not less than 30 days prior to each such
sinking fund payment date, the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 11.03 and cause notice of the redemption thereof to be given in the name of and at the
expense of the Company in the manner provided in Section 11.04. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Sections 11.06 and 11.07.
ARTICLE 13
DEFEASANCE AND
COVENANT DEFEASANCE
Section 13.01
Company
’
s Option To Effect Defeasance or Covenant Defeasance
.
The Company may elect, at its option at any time, to have Section 13.02 or Section 13.03 applied to any Securities or any series of
Securities, as the case may be, designated pursuant to Section 3.01 as being defeasible pursuant to such Section 13.02 or 13.03, in accordance with any applicable requirements provided pursuant to Section 3.01 and upon compliance with
the conditions set forth below in this Article. Any such election shall be evidenced by a Board Resolution or in another manner specified as contemplated by Section 3.01 for such Securities.
Section 13.02 Defeasance and Discharge.
Upon the Company’s exercise of its option (if any) to have this Section applied to any Securities or any series of Securities, as the
case may be, the Company shall be deemed to have been discharged from its obligations with respect to such Securities as provided in this Section on and after the date the conditions set forth in Section 13.04 are satisfied (hereinafter called
“
Defeasance
”). For this purpose, such Defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by such Securities and to have satisfied all its other obligations under such
Securities and this Indenture insofar as such Securities are concerned (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same), subject to the following which shall survive until otherwise terminated
or discharged hereunder: (a) the rights of Holders of such Securities to receive, solely from the trust fund described in Section 13.04 and as more fully set forth in such Section, payments in respect of the principal of and any premium
and interest on such Securities when payments are due, (b) the Company’s obligations with respect to such Securities under Sections 3.04, 3.05, 3.06, 10.02 and 10.03, (c) the rights, powers, trusts, duties and immunities of the Trustee
hereunder and (d) this Article. Subject to compliance with this Article, the Company may exercise its option (if any) to have this Section applied to any Securities notwithstanding the prior exercise of its option (if any) to have
Section 13.03 applied to such Securities.
Section 13.03
Covenant Defeasance
.
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Upon the Company’s exercise of its option (if any) to have this Section applied to any
Securities or any series of Securities, as the case may be, (a) the Company shall be released from its obligations under Section 8.01, Sections 10.04 through 10.08, inclusive, and any covenants provided pursuant to Sections 3.01(s),
9.01(b) or 9.01(g) for the benefit of the Holders of such Securities, and (b) the occurrence of any event specified in Section 5.01(e) (with respect to any of Section 8.01, Sections 10.04 through Section 10.08, inclusive, and any such
covenants provided pursuant to Sections 3.01(s), 9.01(b) or 9.01(g)), and Sections 5.01(e) through 5.01(i) shall be deemed not to be or result in an Event of Default, in each case with respect to such Securities as provided in this Section on and
after the date the conditions set forth in Section 13.04 are satisfied (hereinafter called “
Covenant Defeasance
”). For this purpose, such Covenant Defeasance means that, with respect to such Securities, the Company may omit to
comply with and shall have no liability in respect of any term, condition or limitation set forth in any such specified Section (to the extent so specified in the case of Section 5.01(d)), whether directly or indirectly by reason of any reference
elsewhere herein to any such Section or by reason of any reference in any such Section to any other provision herein or in any other document, but the remainder of this Indenture and such Securities shall be unaffected thereby.
Section 13.04
Conditions to Defeasance or Covenant Defeasance
.
The following shall be the conditions to the application of Section 13.02 or Section 13.03 to any Securities or any series of
Securities, as the case may be:
(a) The Company shall irrevocably have deposited or caused to be deposited with the Trustee (or
another trustee which satisfies the requirements contemplated by Section 6.09 and agrees to comply with the provisions of this Article applicable to it) as trust funds in trust for the purpose of making the following payments, specifically
pledged as security for, and dedicated solely to, the benefits of the Holders of such Securities, (i) money in an amount, or (ii) U.S. Government Obligations (or Foreign Governmental Obligations, in the case of Securities denominated in a
currency other than U.S. dollars) which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment, money in an amount, or
(iii) a combination thereof, in each case sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which shall
be applied by the Trustee (or any such other qualifying trustee) to pay and discharge, (A) the principal of and any premium and interest on such Securities on the respective Stated Maturities and (B) any mandatory sinking fund payments or
analogous payments applicable to the Outstanding Securities of such series on the day on which such payments are due and payable, in accordance with the terms of this Indenture and such Securities. As used herein, “
U.S. Government
Obligation
” means (x) any security which is (i) a direct obligation of the United States of America for the payment of which the full faith and credit of the United States of America is pledged or (ii) an obligation of a
Person controlled or supervised by and acting as an agency or instrumentality of the United States of America the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America, which, in either
case (i) or (ii), is not callable or redeemable at the option of the issuer thereof, and (y) any depositary receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act) as custodian with respect to any U.S. Government
Obligation which is specified in Clause (x) above and held by such bank for the account of the
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holder of such depositary receipt, or with respect to any specific payment of principal of or interest on any U.S. Government Obligation which is so specified and held
; provided
that
(except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depositary receipt from any amount received by the custodian in respect of the U.S. Government Obligation or the
specific payment of principal or interest evidenced by such depositary receipt. As used herein, “
Foreign Government Obligation
” means, in relation to Securities denominated in a currency other than U.S. dollars, (x) any
security which is (i) a direct obligation of the government that issued such currency for the payment of which full faith and credit of such government is pledged or, with respect to Securities of any series which are denominated in euro, a
direct obligation of any member nation of the European Union for the payment of which obligation the full faith and credit of the respective nation is pledged so long as such nation has a credit rating at least equal to that of the highest rated
member nation of the European Economic Area or (ii) an obligation of a Person controlled or supervised by and acting as an agency or instrumentality for such government, the payment of which is unconditionally guaranteed as a full faith and
credit obligation by such government, which, in either case of (i) or (ii), are not callable or redeemable at the option of the issuer thereof and (y) any depositary receipt issued by a bank (as defined in Section 3(a)(2) of the Securities
Act) as custodian with respect to any Foreign Government Obligation which is specified in clause (x) above and held by such bank for the account of the holder of such depositary receipt, or with respect to any specific payment of principal of
or interest on any Foreign Government Obligation which is so specified and held
; provided
that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depositary receipt
from any amount received by the custodian in respect of the Foreign Government Obligation or the specific payment of principal or interest evidenced by such depositary receipt.
(b) In the event of an election to have Section 13.02 apply to any Securities or any series of Securities, as the case may be, the
Company shall have delivered to the Trustee an Opinion of Counsel stating that (i) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (ii) since the date of this instrument, there has
been a change in the applicable federal income tax law, in either case (i) or (ii) to the effect that, and based thereon such opinion shall confirm that, the Holders of such Securities will not recognize gain or loss for federal income tax
purposes as a result of the deposit, Defeasance and discharge to be effected with respect to such Securities and will be subject to federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit,
Defeasance and discharge were not to occur.
(c) In the event of an election to have Section 13.03 apply to any Securities or
any series of Securities, as the case may be, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such Securities will not recognize gain or loss for federal income tax purposes as a result of the
deposit and Covenant Defeasance to be effected with respect to such Securities and will be subject to federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit and Covenant Defeasance were
not to occur.
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(d) Such Defeasance or Covenant Defeasance shall not cause any Securities of such series
then listed on any registered national securities exchange under the Exchange Act, to be delisted.
(e) No event which is, or after
notice or lapse of time or both would become, an Event of Default with respect to such Securities shall have occurred and be continuing at the time of such deposit or, with regard to any such event specified in Sections 5.01(i) and (j), at any time
on or prior to the 90th day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until after such 90th day).
(f) Such Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest as defined in Section 6.08 and
within the meaning of the Trust Indenture Act (assuming all Securities are in default within the meaning of such Act).
(g) Such
Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any other agreement or instrument to which the Company is a party or by which it is bound.
(h) Such Defeasance or Covenant Defeasance shall not result in the trust arising from such deposit constituting an investment company
within the meaning of the Investment Company Act unless such trust shall be registered under such Act or exempt from registration thereunder.
(i) The Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all
conditions precedent with respect to such Defeasance or Covenant Defeasance have been complied with.
Section 13.05
Deposited
Money and U.S. Government Obligations and Foreign Government Obligations To Be Held in Trust; Miscellaneous Provisions
.
Subject to
the provisions of the last paragraph of Section 10.03, all money, U.S. Government Obligations and Foreign Government Obligations (including the proceeds thereof) deposited with the Trustee or other qualifying trustee (solely for purposes of
this Section and Section 13.06, the Trustee and any such other trustee are referred to collectively as the “
Trustee
”) pursuant to Section 13.04 in respect of any Securities shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Securities and this Indenture, to the payment, either directly or through any such Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Holders of
such Securities, of all sums due and to become due thereon in respect of principal and any premium and interest, but money so held in trust need not be segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the U.S. Government
Obligations or Foreign Government Obligations deposited pursuant to Section 13.04 or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of
Outstanding Securities.
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Anything in this Article to the contrary notwithstanding, the Trustee shall deliver or pay to the
Company from time to time upon Company Request any money or U.S. Government Obligations or Foreign Government Obligations held by it as provided in Section 13.04 with respect to any Securities which, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect the Defeasance or Covenant Defeasance, as the
case may be, with respect to such Securities.
Section 13.06
Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in accordance with this Article with respect to any Securities by reason of
any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the obligations under this Indenture and such Securities from which the Company has been discharged or released
pursuant to Section 13.02 or 13.03 shall be revived and reinstated as though no deposit had occurred pursuant to this Article with respect to such Securities, until such time as the Trustee or Paying Agent is permitted to apply all money held
in trust pursuant to Section 13.05 with respect to such Securities in accordance with this Article;
provided
,
however
, that if the Company makes any payment of principal of or any premium or interest on any such Security following
such reinstatement of its obligations, the Company shall be subrogated to the rights (if any) of the Holders of such Securities to receive such payment from the money so held in trust.
ARTICLE 14
GUARANTEES
Section 14.01
Note Guarantee
.
(a) Subject to this Article 14, each Guarantor hereby, jointly and severally, fully and unconditionally guarantees, on a senior basis, to
each Holder and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Securities or the obligations of the Company hereunder or thereunder, that: the principal of and premium, if any,
and interest on the Securities shall be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of and interest on the Securities, if any, if lawful, and all other
obligations of the Company to the Holders or the Trustee hereunder or thereunder shall be promptly paid in full or performed, all in accordance with the terms hereof and thereof. Failing payment by the Company when due of any amount so guaranteed or
any performance so guaranteed for whatever reason, each Guarantor shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.
(b) Each Guarantor hereby agrees that its obligations hereunder shall be unconditional, irrespective of the validity, regularity or
enforceability of the Securities or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to
enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives
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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 Note Guarantee shall not be discharged except by complete performance of the obligations contained in the Securities and this Indenture, or pursuant to Section 14.06.
(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 either to the Trustee or such Holder, this Note Guarantee, to the extent theretofore discharged, shall be reinstated in full force and
effect.
(d) Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of
any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (1) the maturity
of the obligations guaranteed hereby may be accelerated as provided in Section 5.02 for the purposes of this Note Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (2) in the event of any declaration of acceleration of such obligations as provided in Section 5.02, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the
purpose of this Note Guarantee. The Guarantors shall have the right to seek contribution from any
non-paying
Guarantor so long as the exercise of such right does not impair the rights of the Holders under the
Note Guarantees.
(e) Each Note Guarantee shall remain in full force and effect and continue to be effective should any petition be
filed by or against the Company for liquidation, reorganization, should the Company become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the
Company’s assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Securities are, pursuant to applicable law, rescinded or reduced
in amount, or must otherwise be restored or returned by any obligee on the Securities or the Note Guarantees, whether as a “voidable preference,” “fraudulent transfer” or otherwise, all as though such payment or performance had
not been made. In the event that any payment or any part thereof, is rescinded, reduced, restored or returned, the Securities shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so
rescinded, reduced, restored or returned.
(f) In case any provision of any Note Guarantee shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
(g) Each payment to be made by a Guarantor in respect of its Note Guarantee shall be made without
set-off,
counterclaim, reduction or diminution of any kind or nature.
Section
14.02
Limitation on Guarantor Liability
.
69
Each Guarantor, and by its acceptance of Securities, each Holder, hereby confirms that it is the
intention of all such parties that the Note Guarantee of such Guarantor not constitute a fraudulent transfer or conveyance for purposes of Debtor Relief Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar
U.S. federal or state law or law of such Guarantor’s jurisdiction of organization to the extent applicable to any Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that
the obligations of each Guarantor shall be limited to the maximum amount as 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 this Article 14, result in the obligations of such Guarantor under its
Note Guarantee not constituting a fraudulent conveyance or fraudulent transfer under applicable law. Each Guarantor that makes a payment under its Note Guarantee shall be entitled upon payment in full of all Note Guarantee obligations under this
Indenture to a contribution from each other Guarantor in an amount equal to such other Guarantor’s
pro rata
portion of such payment based on the respective net assets of all the Guarantors at the time of such payment determined in
accordance with generally accepted accounting principles.
Section 14.03
Execution and Delivery
.
(a) To evidence its Note Guarantee set forth in Section 14.01, at the time a series of Securities is executed and delivered, each
Guarantor shall execute a notation of Guarantee substantially in the form set forth in Section 2.07 of Exhibit A hereto, with such modifications as may be deemed necessary by the Company and such Guarantor, on behalf of such Guarantor by an
officer or person holding an equivalent title.
(b) Each Guarantor agrees that its Note Guarantee set forth in Section 14.01
shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Securities.
(c) If an officer whose signature is on this Indenture or a supplemental indenture no longer holds that office at the time the Trustee
authenticates the Security, the Note Guarantees shall be valid nevertheless.
(d) The delivery of any Security by the Trustee, after
the authentication thereof hereunder, shall constitute due delivery of the Note Guarantee set forth in this Indenture on behalf of the Guarantors.
Section 14.04
Subrogation.
Each Guarantor shall be subrogated to all rights of Holders against the Company in respect of any amounts paid by any Guarantor pursuant to
the provisions of Section 14.01;
provided
that, if an Event of Default has occurred and is continuing, no Guarantor shall be entitled to enforce or receive any payments arising out of, or based upon, such right of subrogation until all
amounts then due and payable by the Company under this Indenture or the Securities shall have been paid in full.
Section
14.05
Benefits Acknowledged
.
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Each Guarantor acknowledges that it will receive direct and indirect benefits from the financing
arrangements contemplated by this Indenture and that the guarantee and waivers made by it pursuant to its Note Guarantee are knowingly made in contemplation of such benefits.
Section 14.06
Release of Note Guarantees
.
(a) A Note Guarantee by a Guarantor shall be automatically and unconditionally released and discharged, and such Note Guarantee shall
thereupon terminate and be discharged and of no further force and effect, and no further action by such Guarantor, the Company or the Trustee shall be required for the release of such Guarantor’s Note Guarantee:
(1) (A) upon the merger or consolidation of such Guarantor with and into either the Company or any other Guarantor that is the surviving
person in such merger or consolidation, or upon the liquidation of such Guarantor following or concurrently with the transfer of all or substantially all of its assets to either the Company or another Guarantor (and, if applicable, any minority
stockholders of such Guarantor on a pro rata basis according to their ownership interests in such Guarantor); or
(B) upon the
Company exercising its legal defeasance or covenant defeasance options in accordance with Article 13 or the Company’s obligations under this Indenture being discharged in accordance with the terms of this Indenture and the Securities; or
(C) the release or extinguishment of the guarantee by such Guarantor of Debt under all outstanding Guaranteed Bonds, including the
release or extinguishment of such guarantee as a result of the maturity, repayment, retirement, replacement or refinancing of such outstanding Guaranteed Bonds (which release may be simultaneous with the release of the Note Guarantee hereunder);
provided
, that no Event of Default has occurred and is continuing; and
(2) such Guarantor delivering to the Trustee an
Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for in this Indenture relating to such transaction have been complied with.
(b) At the written request and expense of the Company or the relevant Guarantor, the Trustee shall execute and deliver such documents
prepared by the Company or such Guarantor and reasonably required in order to acknowledge such release, discharge and termination in respect of the applicable Note Guarantee. Neither the Company nor any Guarantor shall be required to make a notation
on the Securities to reflect any Note Guarantee or any such release, termination or discharge.
Section 14.07
Guarantors May
Consolidate, Etc., Only on Certain Terms; Successor Substituted
.
(a) No Guarantor shall, in any transaction or series of
transactions, consolidate with or merge into any other Person, or sell, assign, convey, transfer, lease or otherwise dispose of all or substantially all of its assets to any other Person, unless:
(i) either: (1) such Guarantor shall be the continuing Person; or (2) the Person (if other than such Guarantor), formed by such
consolidation or into which the Company is
71
merged, or the Person that acquires, by sale, assignment, conveyance, transfer, lease or other disposition, all or substantially all of the assets of such Guarantor, shall (A) be a
corporation, partnership, limited liability company, trust or similar entity organized and validly existing under the laws of the United States of America, any state or political subdivision thereof, the District of Columbia, the United Kingdom or
any member country of the European Union and (B) expressly assume, by a supplemental indenture, in form reasonably satisfactory to the Trustee, all obligations of such Guarantor under this Indenture and performance or observance of every
covenant of this Indenture on the part of such Guarantor to be performed or observed;
(ii) immediately after giving effect to such
transaction (including the Incurrence of any Debt in connection with such transaction or series of transactions), no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have occurred
and be continuing (
provided
, that for the avoidance of doubt, Debt of Parent or any Restricted Subsidiary Incurred prior to such transaction which is assumed by Parent or any Restricted Subsidiary or the Person assuming such Guarantor’s
obligations hereunder in connection with such transaction shall be deemed not to be a separate incurrence of Debt);
(iii) if, as a
result of any such consolidation or merger or such conveyance, transfer or lease, properties or assets of a Guarantor would become subject to a mortgage, pledge, lien, security interest or other encumbrance which would not be permitted by this
Indenture, such Guarantor or such successor Person, as the case may be, shall take such steps as shall be necessary effectively to secure the Securities equally and ratably with (or prior to) all indebtedness secured thereby; and
(iv) such Guarantor shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, sale, conveyance, assignment, transfer, lease or other disposition and such supplemental indenture comply with the requirements of this Indenture.
(b) Notwithstanding the foregoing, the provisions of this Section 14.07 shall not apply to any consolidation, merger, sale,
conveyance, assignment, transfer, lease or other disposition of assets between or among a Guarantor and Parent and/or any other Restricted Subsidiary, as the case may be.
(c) Upon any consolidation of a Guarantor with, or merger of a Guarantor into, any other Person or any conveyance, transfer or lease of
substantially all of the assets of a Guarantor in accordance with Section 14.07(a), the successor Person formed by such consolidation or into which such Guarantor is merged or to which such conveyance, transfer or lease is made shall succeed to, and
be substituted for, and may exercise every right and power of, such Guarantor under this Indenture with the same effect as if such successor Person had been named as such Guarantor herein, and thereafter, except in the case of a lease, the
predecessor Person shall be relieved of all obligations and covenants under this Indenture and the Securities.
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ARTICLE 15
ADDITIONAL AMOUNTS; CERTAIN TAX PROVISIONS
Section 15.01
Redemption Upon Changes in Withholding Taxes
.
Unless otherwise provided pursuant to Section 3.01, the Securities of any series may be redeemed, as a whole but not in part, at the
option of the Company, upon not less than 30 nor more than 60 days’ notice (which notice shall be irrevocable), at a redemption price equal to 100% of the principal amount thereof, together with accrued interest, if any, to the redemption date
and Additional Amounts (as defined in Section 15.02), if any, if as a result of any amendment to, or change in, the laws, regulations, rulings or treaties of Luxembourg, the United States or other jurisdiction in which the Company or any
Guarantor or, in each case, any successor thereof (including a continuing Person formed by a consolidation with the Company or any Guarantor, into which the Company or such Guarantor is merged, or that acquires or leases all or substantially all of
the property and assets of the Company or such Guarantor) may be organized, as applicable, or any political subdivision thereof or therein having the power to tax (a “
Taxing Jurisdiction
”), or any change in the application or
official interpretation of such laws, regulations, rulings or treaties, including any action taken by, or change in the published administrative practice of, a taxing authority or a holding by a court of competent jurisdiction (regardless of whether
such action, change or holding is with respect to the Company or a Guarantor), which amendment or change is announced or becomes effective on or after the date the Securities of such series are issued, the Company or such Guarantor has become, or
there is a material probability that it will become, obligated to pay Additional Amounts on the next date on which any amount would be payable with respect to the Securities of such series, and such obligation cannot be avoided by the use of
commercially reasonable measures available to the Company or such Guarantor, as the case may be, not including substitution of the obligor on the Securities;
provided
,
however
, that no such notice of redemption may be given earlier
than 60 days prior to the earliest date on which the Company or any Guarantor, as the case may be, would be obligated, or there is a material probability the Company or Guarantor would otherwise be obligated, to pay such Additional Amount. Prior to
the publication or, where relevant, mailing (and/or to the extent permitted by applicable procedures or regulations, electronic delivery) of any notice of redemption described in this paragraph, the Company shall deliver to the Trustee (i)(A) an
Officer’s Certificate of the Company stating that the obligation to pay Additional Amounts cannot be avoided by the Company taking commercially reasonable measures available to it or (B) an Officer’s Certificate of the applicable
Guarantor stating that the obligation to pay Additional Amounts cannot be avoided by such Guarantor taking commercially reasonable measures available to it, as the case may be, as described above, and (ii) a written opinion of independent tax
counsel to the Company or the applicable Guarantor, as the case may be, of recognized standing to the effect that the Company or the applicable Guarantor, as the case may be, has or there is a material probability that it will become obligated to
pay Additional Amounts as a result of a change, amendment, official interpretation or application described above and that the Company or the applicable Guarantor, as the case may be, cannot avoid the payment of such Additional Amounts by taking
commercially reasonable measures available to it as described above.
Section 15.02
Payment of Additional Amounts
.
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All payments made by the Company or any Guarantor under or with respect to the Securities and any
Note Guarantee will be made free and clear of and without withholding or deduction for or on account of any present or future taxes, duties, levies, imposts, assessments or governmental charges of whatever nature imposed or levied by or on behalf of
any Taxing Jurisdiction (“
Taxes
”), unless the Company or any Guarantor, as the case may be, is required to withhold or deduct Taxes by law or by the interpretation or administration thereof. In the event that the Company or any
Guarantor is required to so withhold or deduct any amount for or on account of any Taxes from any payment made under or with respect to the Securities or the Note Guarantee, as the case may be, the Company or the applicable Guarantor, as the case
may be, will pay such additional amounts (“
Additional Amounts
”) as may be necessary so that the net amount received by each holder of Securities (including Additional Amounts) after such withholding or deduction will equal the
amount that such Holder would have received if such Taxes had not been required to be withheld or deducted;
provided
that no Additional Amounts will be payable with respect to a payment to a holder of Securities or a holder of beneficial
interests in Global Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Securities or for or on account of:
(a) any Taxes that are imposed or withheld solely because such holder (or the beneficial owner for whose benefit such holder holds such
Securities) or a fiduciary, settlor, beneficiary, member, shareholder or other equity owner of, or possessor of a power over, such holder (or beneficial owner) if such holder (or beneficial owner) is an estate, trust, partnership, limited liability
company, corporation or other entity:
(1) is or was present or engaged in, or is or was treated as present or engaged in,
a trade or business in the Taxing Jurisdiction or has or had a permanent establishment in the Taxing Jurisdiction (in each case, other than the mere fact of ownership of such Securities, without another presence or business in such Taxing
Jurisdiction);
(2) has or had any present or former connection (other than the mere fact of ownership of such Securities)
with the Taxing Jurisdiction imposing such Taxes, including being or having been a national citizen or resident thereof, being treated as being or having been a resident thereof or being or having been physically present therein;
(3) with respect to any withholding Taxes imposed by the United States, is or was with respect to the United States a personal
holding company, a passive foreign investment company, a controlled foreign corporation, a foreign private foundation or other foreign tax exempt organization or corporation that has accumulated earnings to avoid United States federal income tax;
(4) actually or constructively owns or owned 10% or more of the total combined voting power of all classes of stock of the
Company or the applicable Guarantor within the meaning of Section 871(h)(3) of the Code; or
74
(5) is or was a bank receiving payments on an extension of credit made pursuant
to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3) of the Code.
(b) any estate, inheritance, gift, sales, transfer, excise, personal property or similar Taxes imposed with respect to the Securities,
except as otherwise provided herein;
(c) any Taxes imposed solely as a result of the presentation of such Securities (where
presentation is required) for payment on a date more than 15 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the beneficiary or
holder thereof would have been entitled to the payment of Additional Amounts had the Securities been presented for payment on any date during such
15-day
period;
(d) any Taxes imposed or withheld solely as a result of the failure of such holder or any other person to comply with applicable
certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connection with the Taxing Jurisdiction of such holder, if such compliance is required by statute, regulation, ruling or
administrative practice of the relevant Taxing Jurisdiction or by any applicable tax treaty to which the relevant Taxing Jurisdiction is a party as a precondition to relief or exemption from such Taxes;
(e) with respect to withholding Taxes imposed by the United States, any such Taxes imposed by reason of the failure of such holder to
fulfill the statement requirements of sections 871(h) or 881(c) of the Code;
(f) any Taxes that are payable by any method other than
withholding or deduction by the Company or a Guarantor or any paying agent from payments in respect of such Securities;
(g) any
Taxes required to be withheld by any paying agent from any payment in respect of any Securities if such payment can be made without such withholding by at least one other paying agent;
(h) any withholding or deduction for Taxes which would not have been imposed if the relevant Securities had been presented to another
paying agent in a country that is a member of the European Union as of the date of this Indenture;
(i) any withholding or deduction
required pursuant to sections 1471 through 1474 of the Code, any regulations or agreements thereunder, official interpretations thereof, any intergovernmental agreement, or any law, rule, guidance or administrative practice implementing an
intergovernmental agreement entered into in connection with such sections of the Code or;
(j) any combination of Section 15.02(a),
(b), (c), (d), (e), (f), (g), (h) or (i).
Additional Amounts also will not be payable to any Holder or the holder of a beneficial
interest in a Global Security that is a fiduciary, partnership, limited liability company or other fiscally transparent entity, or to such holder that is not the sole Holder or holder of such beneficial interests of such Security, as the case may
be. This exception, however, will apply
75
only to the extent that a beneficiary or settlor with respect to the fiduciary, or a beneficial owner or member of the partnership, limited liability company or other fiscally transparent entity,
would not have been entitled to the payment of an Additional Amount had the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment.
The Company or the applicable Guarantor, as the case may be, will also (i) make such withholding or deduction of Taxes and
(ii) remit the full amount of Taxes so deducted or withheld to the relevant Taxing Jurisdiction in accordance with all applicable laws. The Company or the applicable Guarantor, as the case may be, will use its commercially reasonable efforts to
obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxes. The Company or the applicable Guarantor, as the case may be, will, upon request, make available to
the holders of the Securities, within 90 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Company or the applicable Guarantor or
if, notwithstanding the Company’s or the applicable Guarantor’s efforts to obtain such receipts, the same are not obtainable, other evidence of such payments by the Company or the applicable Guarantor.
At least 30 days prior to each date on which any payment under or with respect to the Securities or the Note Guarantee is due and payable, if
the Company or a Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Company or the applicable Guarantor will deliver to the Trustee an Officers’ Certificate stating the fact that such Additional Amounts will
be payable and the amounts so payable and will set forth such other information as is necessary to enable such Trustee to pay such Additional Amounts to holders of Securities on the payment date.
In addition, the Company will pay any stamp, issue, registration, documentary or other similar taxes and duties, including interest, penalties
and Additional Amounts with respect thereto, payable in Luxembourg or the United States or any political subdivision or taxing authority of or in the foregoing in respect of the creation, issue, offering, enforcement, redemption or retirement of the
Securities.
The provisions of this Article 15 shall survive any termination of the discharge of this Indenture and shall apply
mutatis
mutandis
to any jurisdiction in which the Company or a Guarantor or any successor Person to the Company or a Guarantor, as the case may be, is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority
or agency thereof or therein;
provided
,
however
, the date on which the Company or the applicable Guarantor changes its jurisdiction in which it is organized or such Person becomes a successor to the Company or the applicable Guarantor,
as the case may be, shall be substituted for the date on which the series of Securities was issued.
Whenever in this Indenture, the
Securities or the Note Guarantee there is mentioned, in any context, the payment of principal and premium, if any, redemption price, interest or any other amount payable under or with respect to any Security, such mention shall be deemed to include
mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
76
* * *
This instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument. The exchange of copies of this instrument and of signature pages by facsimile or.pdf transmission shall constitute effective execution and delivery of this instrument as to the
parties hereto and may be used in lieu of the original instrument for all purposes. Signatures of the parties hereto transmitted by facsimile or .pdf shall be deemed to be their original signatures for all purposes.
77
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of the
day and year first above written.
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MEDTRONIC GLOBAL HOLDINGS
S.C.A., as Issuer
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By:
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Name:
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Title:
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MEDTRONIC PUBLIC LIMITED
COMPANY, as Guarantor
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By:
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Name:
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Title:
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MEDTRONIC, INC., as Guarantor
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By:
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Name:
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Title:
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WELLS FARGO BANK, NATIONAL
ASSOCIATION, as Trustee
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By:
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Name:
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Title:
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[
Signature Page to Indenture
]
78
Exhibit 4.3
MEDTRONIC GLOBAL HOLDINGS S.C.A.
as Issuer
and
MEDTRONIC PUBLIC LIMITED COMPANY
and
MEDTRONIC, INC.
as Guarantors
TO
,
as Trustee
SUBORDINATED INDENTURE
Dated as of
TABLE OF CONTENTS*
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Page
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ARTICLE 1
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DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
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Section 1.01 Definitions
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1
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Section 1.02 Compliance Certificates and Opinions
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10
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Section 1.03 Form of Documents Delivered to Trustee
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10
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Section 1.04 Acts of Holders; Record Dates
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11
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Section 1.05 Notices, Etc., to Trustee, Company or Guarantors
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13
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Section 1.06 Notice to Holders; Waiver
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13
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Section 1.07 Conflict with Trust Indenture Act
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14
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Section 1.08 Effect of Headings and Table of Contents
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14
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Section 1.09 Successors and Assigns
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14
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Section 1.10 Separability Clause
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14
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Section 1.11 Benefits of Indenture
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14
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Section 1.12 Governing Law; Waiver of Jury Trial; Consent to Jurisdiction; Service of
Process
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15
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Section 1.13 Legal Holidays
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15
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Section 1.14 USA Patriot Act
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15
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Section 1.15 Judgment Currency
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16
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Section 1.16 Force Majeure
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16
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ARTICLE 2
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SECURITY FORMS
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Section 2.01 Forms Generally
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16
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Section 2.02 Form of Face of Security
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17
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Section 2.03 Form of Reverse of Security
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18
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Section 2.04 Form of Legend for Securities
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21
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Section 2.05 Form of Trustee’s Certificate of Authentication
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21
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Section 2.06 CUSIP Numbers
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22
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Section 2.07 Form of Guarantee
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22
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ARTICLE 3
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THE SECURITIES
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Section 3.01 Amount Unlimited; Issuable in Series
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23
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Section 3.02 Denominations
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26
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Section 3.03 Execution, Authentication, Delivery and Dating
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26
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Section 3.04 Temporary Securities
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27
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Section 3.05 Registration, Registration of Transfer and Exchange; Certain Transfers and
Exchanges
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28
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Section 3.06 Mutilated, Destroyed, Lost and Wrongfully Taken Securities
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30
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Section 3.07 Payment of Interest; Interest Rights Preserved
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31
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Section 3.08 Persons Deemed Owners
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32
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Section 3.09 Cancellation
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Section 3.10 Computation of Interest
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ARTICLE 4
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SATISFACTION AND DISCHARGE
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Section 4.01 Satisfaction and Discharge of Indenture
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Section 4.02 Application of Trust Money
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ARTICLE 5
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REMEDIES
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Section 5.01 Events of Default
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34
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Section 5.02 Acceleration of Maturity; Rescission and Annulment
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35
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Section 5.03 Collection of Indebtedness and Suits for Enforcement by Trustee
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36
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Section 5.04 Trustee May File Proofs of Claim
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Section 5.05 Trustee May Enforce Claims Without Possession of Securities
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Section 5.06 Application of Money Collected
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Section 5.07 Limitation on Suits
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Section 5.08 Unconditional Right of Holders To Receive Principal, Premium and
Interest
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Section 5.09 Restoration of Rights and Remedies
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Section 5.10 Rights and Remedies Cumulative
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Section 5.11 Delay or Omission Not Waiver
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Section 5.12 Control by Holders
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Section 5.13 Waiver of Past Defaults
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Section 5.14 Undertaking for Costs
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Section 5.15 Waiver of Usury, Stay or Extension Laws
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ii
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ARTICLE 6
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THE TRUSTEE
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Section 6.01 Certain Duties and Responsibilities
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Section 6.02 Notice of Defaults
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Section 6.03 Certain Rights of Trustee
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41
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Section 6.04 Not Responsible for Recitals or Issuance of Securities
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42
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Section 6.05 May Hold Securities
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Section 6.06 Money Held in Trust
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Section 6.07 Compensation and Reimbursement
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Section 6.08 Conflicting Interests
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Section 6.09 Corporate Trustee Required; Eligibility
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44
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Section 6.10 Resignation and Removal; Appointment of Successor
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44
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Section 6.11 Acceptance of Appointment by Successor
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45
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Section 6.12 Merger, Conversion, Consolidation or Succession to Business
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46
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Section 6.13 Preferential Collection of Claims Against Company
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47
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Section 6.14 Appointment of Authenticating Agent
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ARTICLE 7
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HOLDERS’ LISTS AND REPORTS BY TRUSTEE, COMPANY AND GUARANTORS
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Section 7.01 Company To Furnish Trustee Names and Addresses of Holders
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48
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|
Section 7.02 Preservation of Information; Communications to Holders
|
|
|
49
|
|
|
|
|
|
Section 7.03 Reports by Trustee
|
|
|
49
|
|
|
|
|
|
Section 7.04 Reports
|
|
|
49
|
|
|
ARTICLE 8
|
|
|
|
|
|
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
|
|
|
|
|
|
|
|
|
Section 8.01 Company May Consolidate, Etc., Only on Certain Terms
|
|
|
50
|
|
|
|
|
|
Section 8.02 Successor Substituted
|
|
|
51
|
|
|
ARTICLE 9
|
|
|
|
|
|
SUPPLEMENTAL INDENTURES
|
|
|
|
|
|
|
|
|
Section 9.01 Supplemental Indentures Without Consent of Holders
|
|
|
51
|
|
|
|
|
|
Section 9.02 Supplemental Indentures with Consent of Holders
|
|
|
52
|
|
|
|
|
|
Section 9.03 Execution of Supplemental Indentures
|
|
|
53
|
|
|
|
|
|
Section 9.04 Effect of Supplemental Indentures
|
|
|
54
|
|
|
|
|
|
Section 9.05 Conformity with Trust Indenture Act
|
|
|
54
|
|
|
|
|
|
Section 9.06 Reference in Securities to Supplemental Indentures
|
|
|
54
|
|
iii
|
|
|
|
|
|
|
ARTICLE 10
|
|
|
|
|
|
COVENANTS
|
|
|
|
|
|
|
|
|
Section 10.01 Payment of Principal, Premium and Interest
|
|
|
54
|
|
|
|
|
|
Section 10.02 Maintenance of Office or Agency
|
|
|
54
|
|
|
|
|
|
Section 10.03 Money for Securities Payments To Be Held in Trust
|
|
|
55
|
|
|
|
|
|
Section 10.04 Statement by Officers as to Default
|
|
|
56
|
|
|
|
|
|
Section 10.05 Existence
|
|
|
56
|
|
|
|
|
|
Section 10.06 Limitation on Secured Debt
|
|
|
56
|
|
|
|
|
|
Section 10.07 Limitation on Sale and Leaseback Transactions
|
|
|
58
|
|
|
|
|
|
Section 10.08 Waiver of Certain Covenants
|
|
|
59
|
|
|
ARTICLE 11
|
|
|
|
|
|
REDEMPTION OF SECURITIES
|
|
|
|
|
|
|
|
|
Section 11.01 Applicability of Article
|
|
|
60
|
|
|
|
|
|
Section 11.02 Election To Redeem; Notice to Trustee
|
|
|
60
|
|
|
|
|
|
Section 11.03 Selection by Trustee of Securities To Be Redeemed
|
|
|
60
|
|
|
|
|
|
Section 11.04 Notice of Redemption
|
|
|
61
|
|
|
|
|
|
Section 11.05 Deposit of Redemption Price
|
|
|
61
|
|
|
|
|
|
Section 11.06 Securities Payable on Redemption Date
|
|
|
61
|
|
|
|
|
|
Section 11.07 Securities Redeemed in Part
|
|
|
62
|
|
|
ARTICLE 12
|
|
|
|
|
|
SINKING FUNDS
|
|
|
|
|
|
|
|
|
Section 12.01 Applicability of Article
|
|
|
62
|
|
|
|
|
|
Section 12.02 Satisfaction of Sinking Fund Payments with Securities
|
|
|
62
|
|
|
|
|
|
Section 12.03 Redemption of Securities for Sinking Fund
|
|
|
63
|
|
|
ARTICLE 13
|
|
|
|
|
|
DEFEASANCE AND COVENANT DEFEASANCE
|
|
|
|
|
|
|
|
|
Section 13.01 Company’s Option To Effect Defeasance or Covenant Defeasance
|
|
|
63
|
|
|
|
|
|
Section 13.02 Defeasance and Discharge
|
|
|
63
|
|
|
|
|
|
Section 13.03 Covenant Defeasance
|
|
|
64
|
|
|
|
|
|
Section 13.04 Conditions to Defeasance or Covenant Defeasance
|
|
|
64
|
|
|
|
|
|
Section 13.05 Deposited Money and U.S. Government Obligations and Foreign Government
Obligations To Be Held in Trust; Miscellaneous Provisions
|
|
|
66
|
|
|
|
|
|
Section 13.06 Reinstatement
|
|
|
67
|
|
iv
|
|
|
|
|
|
|
ARTICLE 14
|
|
|
|
|
|
GUARANTEES
|
|
|
|
|
|
|
|
|
Section 14.01 Note Guarantee
|
|
|
67
|
|
|
|
|
|
Section 14.02 Limitation on Guarantor Liability
|
|
|
69
|
|
|
|
|
|
Section 14.03 Execution and Delivery
|
|
|
69
|
|
|
|
|
|
Section 14.04 Subrogation
|
|
|
70
|
|
|
|
|
|
Section 14.05 Benefits Acknowledged
|
|
|
70
|
|
|
|
|
|
Section 14.06 Release of Note Guarantees
|
|
|
70
|
|
|
|
|
|
Section 14.07 Guarantors May Consolidate, Etc., Only on Certain Terms; Successor
Substituted
|
|
|
71
|
|
|
|
|
|
Section 14.08 Subordination of Note Guarantee
|
|
|
72
|
|
|
ARTICLE 15
|
|
|
|
|
|
SUBORDINATION OF SECURITIES
|
|
|
|
|
|
|
|
|
Section 15.01 Agreement of Subordination
|
|
|
72
|
|
|
|
|
|
Section 15.02 Payments to Holders
|
|
|
72
|
|
|
|
|
|
Section 15.03 Subrogation of Securities
|
|
|
74
|
|
|
|
|
|
Section 15.04 Authorization by Holder
|
|
|
75
|
|
|
|
|
|
Section 15.05 Notice to Trustee
|
|
|
75
|
|
|
|
|
|
Section 15.06 Trustee’s Relation to Senior Debt
|
|
|
75
|
|
|
|
|
|
Section 15.07 No Impairment of Subordination
|
|
|
76
|
|
|
|
|
|
Section 15.08 Rights of Trustee
|
|
|
76
|
|
|
ARTICLE 16
|
|
|
|
|
|
ADDITIONAL AMOUNTS; CERTAIN TAX PROVISIONS
|
|
|
|
|
|
|
|
|
Section 16.01 Redemption Upon Changes in Withholding Taxes
|
|
|
76
|
|
|
|
|
|
Section 16.02 Payment of Additional Amounts
|
|
|
77
|
|
v
Certain Sections of this Indenture
relating to Sections 310 through 318, inclusive, of the
Trust Indenture
Act of 1939:*
|
|
|
|
|
Trust Indenture
Act Section
|
|
Indenture
Section
|
|
§ 310 (a)(1)
|
|
6.09
|
|
(a)(2)
|
|
6.09
|
|
(a)(3)
|
|
Not Applicable Not Applicable
|
|
(a)(4)
|
|
6.08
|
|
(b)
|
|
|
|
|
|
6.10
|
|
|
|
|
|
§ 311(a)
|
|
6.13
|
|
(b)
|
|
6.13
|
|
§ 312(a)
|
|
7.01
|
|
|
|
7.02
|
|
(b)
|
|
7.02
|
|
(c)
|
|
7.02
|
|
§ 313(a)
|
|
7.03
|
|
(b)
|
|
7.03
|
|
(c)
|
|
7.03
|
|
(d)
|
|
7.03
|
|
§ 314(a)
|
|
7.04
|
|
(a)(4)
|
|
1.01
|
|
|
|
10.04
|
|
(b)
|
|
Not Applicable
|
|
(c)(1)
|
|
1.02
|
|
(c)(2)
|
|
1.02
|
|
(c)(3)
|
|
Not Applicable
|
|
(d)
|
|
Not Applicable
|
|
(e)
|
|
1.02
|
|
§ 315(a)
|
|
6.01
|
|
(b)
|
|
6.02
|
|
(c)
|
|
6.01
|
|
(d)
|
|
6.01
|
|
(e)
|
|
5.14
|
|
§ 316(a)
|
|
1.01
|
|
(a)(1)(A)
|
|
5.02
|
|
|
|
5.12
|
|
(a)(1)(B)
|
|
5.13
|
|
(a)(2)
|
|
Not Applicable
|
|
(b)
|
|
5.08
|
|
|
|
|
|
(c)
|
|
1.04
|
|
§ 317(a)(1)
|
|
5.03
|
|
(a)(2)
|
|
5.04
|
|
(b)
|
|
10.03
|
|
§ 318(a)
|
|
1.07
|
Note: This
cross-reference table shall not, for any purpose, be deemed part of the Indenture.
vi
INDENTURE, dated as of
, among MEDTRONIC GLOBAL HOLDINGS S.C.A., a corporate partnership limited by shares (
société en
commandite par actions
) organized under the laws of the Grand Duchy of Luxembourg (the “
Company
”), MEDTRONIC PUBLIC LIMITED COMPANY, a public limited company incorporated under the laws of Ireland (“
Parent
”),
MEDTRONIC, INC., a Minnesota corporation (“
Medtronic, Inc.
”), and
, as Trustee (herein called the
“
Trustee
”).
Recitals of the Company
The Company has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its debentures,
notes or other evidences of subordinated indebtedness (herein called the “
Securities
”), to be issued in one or more series as provided in this Indenture.
Parent and Medtronic, Inc. have duly authorized the execution and delivery of this Indenture to guarantee the Securities.
All things necessary to make this Indenture
a valid agreement of the Company, Parent and Medtronic, Inc. in accordance with its terms,
have been done.
NOW, THEREFORE, THIS INDENTURE
WITNESSETH:
In consideration of the promises and the purchase of the Securities by the Holders thereof, each party agrees as follows for the benefit of
each other and for the equal and proportionate benefit of all Holders of the Securities or of any series thereof:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01
Definitions.
For all purposes of this Indenture, except as otherwise expressly provided or unless the
context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to them in this Article and include the
plural as well as the singular;
(b) all other terms used herein which are defined in the Trust Indenture
Act, either directly or
by reference therein, have the meanings assigned to them therein;
(c) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles, and, except as otherwise herein expressly provided, the term “
generally accepted accounting principles
” with respect to any computation required or
permitted hereunder shall mean such accounting principles as are generally accepted in the United States of America at the date of such computation;
(d) unless the context otherwise requires, any reference to an “
Article
” or a “
Section
” refers to an Article
or a Section, as the case may be, of this Indenture; and
1
(e) the words “
herein
”, “
hereof
” and
“
hereunder
” and other words of similar import refer to this Indenture
as a whole and not to any particular Article, Section or other subdivision.
“
Act
” when used with respect to any Holder, has the meaning specified in Section 1.04.
“
Additional Amounts
” has the meaning specified in Section 16.02.
“
Affiliate
” of any specified Person means any other Person directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified Person. For the purposes of this definition, “
control
” when used with respect to any specified Person means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “
controlling
” and “
controlled
” have meanings correlative to the foregoing.
“
Attributable Debt
” in respect of any lease means, at the time of determination, the present value (discounted at the rate of
interest implicit in the terms of the lease) of the obligation of the lessee for net rental payments during the remaining term of the lease (including any period for which such lease has been extended or may, at the option of the lessor, be
extended). “
Net rental payments
” under any lease for any period means the sum of the rental and other payments required to be paid in such period by the lessee thereunder, not including, however, any amounts required to be paid by
such lessee (whether or not designated as rental or additional rental payments) on account of maintenance and repairs, insurance, taxes, assessments or similar charges required to be paid by such lessee thereunder or any amounts required to be paid
by such lessee thereunder contingent upon the amount of sales, maintenance and repairs, insurance, taxes, assessments or similar charges.
“
Authenticating Agent
” means any Person authorized by the Trustee pursuant to Section 6.14 to act on behalf of the
Trustee to authenticate Securities of one or more series.
“
Bankruptcy Default
” has the meaning specified in
Section 5.01.
“
Board of Directors
” means, with respect to the Company, either the board of directors of the Company
or any duly authorized committee of that board and, with respect to any Guarantor, the board of directors or any duly authorized committee of that board.
“
Board Resolution
” means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company or any
Guarantor to have been duly adopted by the applicable Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee.
“
Business Day
” when used with respect to any Place of Payment, means any day, other than a Saturday or Sunday, that is
neither a legal holiday nor a day on which banking institutions, in that Place of Payment are authorized or required by law, regulation or executive order to close.
“
Capital Lease
” means, with respect to any Person, any lease of any property which, in conformity with generally accepted
accounting principles, is required to be capitalized on the balance sheet of such Person.
2
“
Capital Stock
” means, with respect to any Person, any and all shares of stock
of a corporation, partnership interests or other equivalent interests (however designated, whether voting or
non-voting)
in such Person’s equity, entitling the holder to receive a share of the profits and
losses, and a distribution of assets, after liabilities, of such Person.
“
CIFSA
” means Covidien International Finance
S.A., a Luxembourg company and an indirect, wholly-owned subsidiary of Parent.
“
Code
” means the United States Internal
Revenue Code of 1986, as amended.
“
Commission
” means the Securities and Exchange Commission, from time to time
constituted, created under the Exchange Act, or, if at any time after the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties
at such time.
“
Company
” means the Person named as the “
Company
” in the first paragraph of this
instrument until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “
Company
” shall mean such successor Person.
“
Company Request
” or “
Company Order
” means a written request or order signed in the name of the Company,
Parent or Medtronic, Inc., as the case may be, by its Chairman, its President, any Vice President, its Treasurer, its Assistant Treasurer, its General Counsel, its Secretary or its Assistant Secretary, and delivered to the Trustee.
“
Consolidated Net Tangible Assets
” means, at the date of determination, the aggregate amount of total assets which would
appear on the consolidated balance sheet of Parent (less applicable reserves and other properly deductible items) after deducting therefrom (a) all current liabilities (excluding any indebtedness for money borrowed having a maturity of less
than 12 months from the date of the then most recent consolidated balance sheet of Parent but which by its terms is renewable or extendible beyond 12 months from such date at the option of the borrower) and (b) all goodwill, trade names,
patents, unamortized debt discount and expense and any other like intangibles, all as set forth on Parent’s then most recent consolidated balance sheet and computed in accordance with generally accepted accounting principles.
“
Corporate Trust Office
” means the designated office of the Trustee or the Security Registrar, as the case may be, at which
at any particular time its corporate trust business will be administered, which office for the Trustee as of the date hereof is located at
, Attn: .
“
Corporation
” means a corporation, association, company, joint-stock company or business trust.
“
Covenant Defeasance
” has the meaning specified in Section 13.03.
“
Debt
” means, with respect to any Person, without duplication:
(i) all indebtedness of such Person for borrowed money; and
(ii) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments.
3
The amount of Debt of any Person will be deemed to be:
(A) with respect to Debt secured by a Lien on an asset of such Person but not otherwise the obligation, contingent or otherwise, of such
Person, the lesser of (1) the fair market value of such asset on the date the Lien attached and (2) the amount of such Debt;
(B) with respect to any Debt issued with original issue discount, the face amount of such Debt less the remaining unamortized portion of the
original issue discount of such Debt; and
(C) otherwise, the outstanding principal amount thereof.
“
Default
” has the meaning specified in Section 6.02.
“
Defaulted Interest
” has the meaning specified in Section 3.07.
“
Defeasance
” has the meaning specified in Section 13.02.
“
Depositary
” means, with respect to Securities of any series issuable in whole or in part in the form of one or more Global
Securities, a clearing agency registered under the Exchange Act that is designated to act as Depositary for such Securities as contemplated by Section 3.01.
“
Event of Default
” has the meaning specified in Section 5.01.
“
Exchange Act
” means the Securities Exchange Act of 1934 and any statute successor thereto, in each case as amended from time
to time.
“
Expiration Date
” has the meaning specified in Section 1.04.
“
Foreign Government Obligation
” has the meaning specified in Section 13.04.
“
Funded Debt
” means Debt which by its terms matures at, or is extendible or renewable at the option of the obligor to, a date
more than 12 months after the date of the creation of such Debt.
“
Global Security
” means a Security that evidences all
or part of the Securities of any series and bears the legend set forth in Section 2.04 (or such legend as may be specified as contemplated by Section 3.01 for such Securities).
“
Guarantee
” means any obligation, contingent or otherwise, of any Person directly or indirectly guaranteeing any Debt or
other obligation of any other Person and, without limiting the generality of the foregoing, any obligation, direct or indirect, contingent or otherwise, of such Person (i) to purchase or pay (or advance or supply funds for the purchase or
payment of) such Debt or other obligation of such other Person (whether arising by virtue of partnership arrangements, or by agreement to keep-well, to purchase assets, goods, securities or services, to
take-or-pay,
or to maintain financial statement conditions or otherwise) or (ii) entered into for purposes of assuring in any other manner the obligee of such Debt or other obligation of the payment
thereof or to protect such obligee against loss in respect thereof, in whole or in part;
provided
that the term “Guarantee” does not include endorsements for collection or deposit in the ordinary course of business. The term
“Guarantee” used as a verb has a corresponding meaning.
4
“
Guaranteed Bonds
” means (i) Medtronic, Inc.’s outstanding Floating
Rate Notes due 2017, 0.875% Senior Notes due 2017, 1.375% Senior Notes due 2018, 1.500% Senior Notes due 2018, 5.600% Senior Notes due 2019, 4.450% Senior Notes due 2020, 2.500% Senior Notes due 2020, Floating Rate Notes due 2020, 4.125% Senior
Notes due 2021, 3.125% Senior Notes due 2022, 3.150% Senior Notes due 2022, 2.750% Senior Notes due 2023, 3.625% Senior Notes due 2024, 3.500% Senior Notes due 2025, 4.375% Senior Notes due 2035, 6.500% Senior Notes due 2039, 5.550% Senior Notes due
2040, 4.500% Senior Notes due 2042, 4.000% Senior Notes due 2043, 4.625% Senior Notes due 2044, and 4.625% Senior Notes due 2045, (ii) CIFSA’s 6.000% Senior Notes due 2017, 4.200% Senior Notes due 2020, 3.200% Senior Notes due 2022, 2.950%
Senior Notes due 2023 and 6.550% Senior Notes due 2037 and (iii) any notes or debentures that (1) are issued by the Company or Medtronic, Inc. after the date hereof, (2) are guaranteed by Parent, the Company and/or Medtronic, Inc. and
(3) are at the time of issuance or which later become, whether in connection with an exchange of securities or otherwise, registered pursuant to the Securities Act.
“
Guarantor
” means each of Parent and Medtronic, Inc. and its respective successors.
“
Holder
” means a Person in whose name a Security is registered in the Security Register.
“
Incur
” means, with respect to any Debt, to incur, create, issue, assume or Guarantee such Debt. If any Person becomes a
Restricted Subsidiary on any date after the date of the Indenture, the Debt of such Person outstanding on such date will be deemed to have been Incurred by such Person on such date for purposes of Section 10.06. The accretion of original issue
discount or payment of interest in kind will not be considered an Incurrence of Debt.
“
Indenture
” means this instrument
as originally executed and as it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof, including, for all purposes of this instrument and any
such supplemental indenture, the provisions of the Trust Indenture
Act that are deemed to be a part of and govern this instrument and any such supplemental indenture, respectively. The term “Indenture” shall also include the terms
of a particular series of Securities established as contemplated by Section 3.01.
“
Interest
” when used with respect
to an Original Issue Discount Security which by its terms bears interest only after Maturity, means interest payable after Maturity.
“
Interest Payment Date
” means, when used with respect to any Security, the Stated Maturity of an installment of interest on
such Security.
“
Investment Company Act
” means the Investment Company Act of 1940 and any statute successor thereto, in
each case as amended from time to time.
“
Judgment Currency
” has the meaning specified in Section 1.15.
5
“
Lien
” means any mortgage, pledge, security interest, encumbrance, lien or
charge of any kind (including any conditional sale or other title retention agreement or Capital Lease).
“
Maturity
” when
used with respect to any Security, means the date on which the principal of such Security or an installment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call
for redemption or otherwise.
“
Medtronic, Inc.
” has the meaning specified in the preamble hereto.
“
Mortgage
” means any mortgage, pledge, lien or other encumbrance.
“
Note Guarantee
” means the Guarantee of the Securities by the Guarantors and the Company’s obligations thereunder.
“
Notice of Default
” means a written notice of the kind specified in Section 5.01(e).
“
Officers’ Certificate
” means a certificate signed by the Chairman of the Board of Directors, the President or Chief
Executive Officer or a Vice President, and by the Chief Financial Officer, the Treasurer or any Assistant Treasurer, the Secretary or an Assistant Secretary or Director, of the Company or any Guarantor, as the case may be, and delivered to the
Trustee.
“
Opinion of Counsel
” means a written opinion of counsel, who may be an employee of or counsel for the Company
or any Guarantor, and who shall be acceptable to the Trustee.
“
Original Issue Discount Security
” means any Security
which provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 5.02.
“
Outstanding
”
when used with respect to Securities, means, as of the date of determination, all Securities theretofore
authenticated and delivered under this Indenture
(including Securities held by the Company or an Affiliate of the Company),
except
:
(1) Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;
(2) Securities for whose payment or redemption money in the necessary amount has been theretofore deposited with the Trustee or any Paying
Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for the Holders of such Securities;
provided
that, if such Securities are to be redeemed, notice of
such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made;
(3)
Securities as to which Defeasance has been effected pursuant to Section 13.02; and
6
(4) Securities which have been paid or in exchange for or in lieu of which other Securities have
been authenticated and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Securities are held by a
bona fide
purchaser in
whose hands such Securities are valid obligations of the Company;
provided
,
however
, that in determining whether the Holders of the requisite principal amount of the Outstanding Securities have given, made or taken any request, demand,
authorization, direction, notice, consent, waiver or other action hereunder as of any date, (A) the principal amount of an Original Issue Discount Security which shall be deemed to be Outstanding shall be the amount of the principal thereof
which would be due and payable as of such date upon acceleration of the Maturity thereof to such date pursuant to Section 5.02, (B) if, as of such date, the principal amount payable at the Stated Maturity of a Security is not determinable, the
principal amount of such Security which shall be deemed to be Outstanding shall be the amount as specified or determined as contemplated by Section 3.01, (C) the principal amount of a Security denominated in one or more foreign currencies or
currency units which shall be deemed to be Outstanding shall be the U.S. dollar equivalent, determined as of such date in the manner provided as contemplated by Section 3.01, of the principal amount of such Security (or, in the case of a
Security described in Clause (A) or (B) above, of the amount determined as provided in such Clause), and (D) Securities owned by the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor
shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent, waiver or other action, only Securities
which a Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee
the pledgee’s right so to act with respect to such Securities and that the pledgee is not the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor.
“
Parent
” has the meaning specified in the preamble hereto.
“
Paying Agent
” means any Person authorized by the Company to pay the principal of or any premium or interest on any
Securities on behalf of the Company.
“
Permitted Debt
” has the meaning specified in Section 10.06.
“
Person
” means any individual, corporation, partnership, joint venture, trust, unincorporated organization, limited liability
company or government or any agency or political subdivision thereof.
“
Place of Payment
” when used with respect to the
Securities of any series, means the place or places where the principal of and any premium and interest on the Securities of that series are payable as specified as contemplated by Section 3.01.
“
Predecessor Security
” of any particular Security means every previous Security evidencing all or a portion of the same debt
as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 3.06 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
7
“
Principal Property
” means any plant, office facility, warehouse, distribution
center or equipment located within the United States (other than its territories or possessions) and owned by Parent or any Subsidiary, the gross book value (without deduction of any depreciation reserves) of which on the date as of which the
determination is being made exceeds 2% of the Consolidated Net Tangible Assets of Parent, except any such property which Parent’s Board of Directors, in its good faith opinion, determines is not of material importance to the business conducted
by Parent and its Subsidiaries, taken as a whole, as evidenced by a Board Resolution.
“
Redemption Date
” when used with
respect to any Security to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture.
“
Redemption
Price
” when used with respect to any Security to be redeemed, means the price at which it is to be redeemed pursuant to this Indenture.
“
Regular Record Date
” for the interest payable on any Interest Payment Date on the Securities of any series means the date
specified for that purpose as contemplated by Section 3.01.
“
Required Currency
” has the meaning specified in
Section 1.15.
“
Responsible Officer
” when used with respect to the Trustee, means any officer in the Corporate Trust
Office of the Trustee or any other officer of the Trustee customarily performing functions similar to those performed by any of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer to
whom such matter is referred because of his knowledge of and familiarity with the particular subject, in each case who shall have direct responsibility for the administration of this Indenture.
“
Restricted Subsidiary
” means (i) each of the Company and Medtronic, Inc. and (ii) any other Subsidiary of Parent
which owns or leases a Principal Property, except any Subsidiary substantially all of the assets of which are located, or substantially all of the business of which is carried on, outside the United States and its territories and possessions.
“
Sale and Leaseback Transaction
” means, with respect to any Person, an arrangement whereby such Person enters into a lease of
property previously transferred by such Person to the lessor.
“
Securities
” has the meaning stated in the first recital
of this Indenture and more particularly means any Securities authenticated and delivered under this Indenture.
“
Securities
Act
” means the Securities Act of 1933 and any statute successor thereto, in each case as amended from time to time.
“
Security Register
” and “
Security Registrar
” have the respective meanings specified in Section 3.05.
8
“
Stated Maturity
” when used with respect to any Security or any installment of
principal thereof or interest thereon, means the date specified in such Security as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable.
“
Senior Debt
” of a Person means the principal of, premium, if any, interest on, and any other payment due pursuant to any of
the following, whether outstanding at the date hereof or hereafter incurred or created:
(a) all Debt of that Person;
(b) all obligations in respect of Capital Leases of that Person;
(c) all obligations of the kind described in the preceding clause (a) above and all lease obligations of others of the kind described in
the preceding clause (b) above that the Person, in any manner, assumes or guarantees or that the Person in effect guarantees through an agreement to purchase, whether that agreement is contingent or otherwise; and
(d) all renewals, extensions or refundings of indebtedness of the kinds described in any of the preceding clauses (a) and (c) and all
renewals or extensions of leases of the kinds described in either of the preceding clauses (b) or (c) above;
unless
, in the case of any
particular indebtedness, lease, renewal, extension or refunding, the instrument or lease creating or evidencing it or the assumption or guarantee relating to it expressly provides that such indebtedness, lease, renewal, extension or refunding is not
superior in right of payment to the Securities.
“
Subsidiary
” means a corporation, partnership or other legal entity of
which, in the case of a corporation, more than 50% of the outstanding voting stock is owned, directly or indirectly, by Parent or by one or more other Subsidiaries, or by Parent and one or more other Subsidiaries or, in the case of any partnership
or other legal entity, more than 50% of the ordinary equity capital interests is, at the time, directly or indirectly owned or controlled by Parent or by one or more of the Subsidiaries or by Parent and one or more other Subsidiaries. For the
purposes of this definition, “
voting stock
” means stock which ordinarily has voting power for the election of directors, whether at all times or only so long as no senior class of stock has such voting power by reason of any
contingency.
“
Successor Security
” of any particular Security means every Security issued after, and evidencing all or a
portion of the same debt as that evidenced by, such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 3.06 in exchange for or in lieu of a mutilated, destroyed, lost or stolen
Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security.
“
Taxes
” has the
meaning specified in Section 15.02.
“
Taxing Jurisdiction
” has the meaning specified in Section 16.01.
9
“
Trust Indenture
Act
” means the Trust Indenture Act of 1939 (15 U.S.C.
§ 77aaa-77bbbb) as in force at the date as of which this instrument was executed;
provided
,
however
, that in the event the Trust Indenture
Act of 1939 is amended after such date, “
Trust Indenture Act
”
means, to the extent required by any such amendment, the Trust Indenture
Act of 1939 as so amended.
“
Trustee
”
means the Person named as the “
Trustee
” in the first paragraph of this instrument until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “
Trustee
”
shall mean or include each Person who is then a Trustee hereunder, and if at any time there is more than one such Person, “
Trustee
” as used with respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
“
U.S. Government Obligation
” has the meaning specified in Section 13.04.
“
Vice President
” when used with respect to the Company, any Guarantor or the Trustee, means any vice president, whether or
not designated by a number or a word or words added before or after the title “
vice president
.”
Section 1.02
Compliance Certificates and Opinions
.
Upon any application or request by the Company or any Guarantor to the Trustee to take any
action under any provision of this Indenture, the Company or such Guarantor, as applicable, shall furnish to the Trustee an Officers’ Certificate and an Opinion of Counsel. Each such Officers’ Certificate and Opinion of Counsel shall
comply with the requirements of the Trust Indenture Act and any other requirements set forth in this Indenture.
Every certificate or
opinion with respect to compliance with a condition or covenant provided for in this Indenture shall (except for certificates provided in Section 10.04) include:
(a) a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein
relating thereto;
(b) a brief statement as to the nature and scope of the examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(c) a statement that, in the opinion of each such individual, he has made
such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.
Section 1.03
Form of Documents Delivered to Trustee
.
In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only
10
one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an
opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company or any Guarantor may be
based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with
respect to the matters upon which his certificate or opinion is based are erroneous. Any such certificate or opinion of counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an
officer or officers of the Company or applicable Guarantor stating that the information with respect to such factual matters is in the possession of the Company or applicable Guarantor, unless such counsel knows, or in the exercise of reasonable
care should know, that the certificate or opinion or representations with respect to such matters are erroneous.
Where any Person is
required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.
Section 1.04
Acts of Holders; Record Dates
.
Any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture
to be
given, made or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by agent duly appointed in writing; and, except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Company. Such instrument or instruments (and the action embodied therein and evidenced thereby)
are herein sometimes referred to as the “
Act
” of the Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this
Indenture
and (subject to Section 6.01) conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section.
The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof. Where such execution
is by a signer acting in a capacity other than his individual capacity, such certificate or affidavit shall also constitute sufficient proof of his authority. The fact and date of the execution of any such instrument or writing, or the authority of
the Person executing the same, may also be proved in any other manner which the Trustee deems sufficient.
The ownership of Securities
shall be proved by the Security Register.
Any request, demand, authorization, direction, notice, consent, waiver or other Act of the
Holder of any Security shall bind every future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu
11
thereof in respect of anything done, omitted or suffered to be done by the Trustee, the Company or any Guarantor in reliance thereon, whether or not notation of such action is made upon such
Security.
The Company may set any day as a record date for the purpose of determining the Holders of Outstanding Securities of any series
entitled to give, make or take any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture
to be given, made or taken by Holders of Securities of such series;
provided
that the Company may not set a record date for, and the provisions of this paragraph shall not apply with respect to, the giving or making of any notice, declaration, request or direction referred to in the next paragraph. If any record date is
set pursuant to this paragraph, the Holders of Outstanding Securities of the relevant series on such record date, and no other Holders, shall be entitled to take the relevant action, whether or not such Holders remain Holders after such record date;
provided
that no such action shall be effective hereunder unless taken on or prior to the applicable Expiration Date by Holders of the requisite principal amount of Outstanding Securities of such series on such record date. Nothing in this
paragraph shall be construed to prevent the Company from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no
action by any Person be cancelled and of no effect), and nothing in this paragraph shall be construed to render ineffective any action taken by Holders of the requisite principal amount of Outstanding Securities of the relevant series on the date
such action is taken. Promptly after any record date is set pursuant to this paragraph, the Company, at its own expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the
Trustee in writing and to each Holder of Securities of the relevant series in the manner set forth in Section 1.06.
The Trustee may
set any day as a record date for the purpose of determining the Holders of Outstanding Securities of any series entitled to join in the giving or making of (i) any Notice of Default, (ii) any declaration of acceleration referred to in Section 5.02,
(iii) any request to institute proceedings referred to in Section 5.07(b), or (iv) any direction referred to in Section 5.12, in each case with respect to Securities of such series. If any record date is set pursuant to this paragraph, the
Holders of Outstanding Securities of such series on such record date, and no other Holders, shall be entitled to join in such notice, declaration, request or direction, whether or not such Holders remain Holders after such record date;
provided
that no such action shall be effective hereunder unless taken on or prior to the applicable Expiration Date by Holders of the requisite principal amount of Outstanding Securities of such series on such record date. Nothing in this paragraph
shall be construed to prevent the Trustee from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by
any Person be canceled and of no effect), and nothing in this paragraph shall be construed to render ineffective any action taken by Holders of the requisite principal amount of Outstanding Securities of the relevant series on the date such action
is taken. Promptly after any record date is set pursuant to this paragraph, the Trustee, at the Company’s expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the
Company in writing and to each Holder of Securities of the relevant series in the manner set forth in Section 1.06.
12
With respect to any record date set pursuant to this Section, the party hereto which sets such
record dates may designate any day as the “
Expiration Date
” and from time to time may change the Expiration Date to any earlier or later day;
provided
that no such change shall be effective unless notice of the proposed new
Expiration Date is given to the other party hereto in writing, and to each Holder of Securities of the relevant series in the manner set forth in Section 1.06, on or prior to the existing Expiration Date. If an Expiration Date is not designated
with respect to any record date set pursuant to this Section, the party hereto which set such record date shall be deemed to have initially designated the 180th day after such record date as the Expiration Date with respect thereto, subject to its
right to change the Expiration Date as provided in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be later than the 180th day after the applicable record date.
Without limiting the foregoing, a Holder entitled hereunder to take any action hereunder with regard to any particular Security may do so with
regard to all or any part of the principal amount of such Security or by one or more duly appointed agents each of which may do so pursuant to such appointment with regard to all or any part of such principal amount.
Section 1.05
Notices, Etc., to Trustee, Company or Guarantors
.
Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with:
(a) the Trustee by any Holder or by the Company or any Guarantor shall be
sufficient for every purpose hereunder if made, given, furnished or filed in writing to or with the Trustee at its Corporate Trust Office, Attention: Corporate Trust Division;
(b) the Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to the Company addressed to it at (i) 3b, boulevard Prince Henry,
L-1724
Luxembourg, Attn: Treasury Department or (ii) any other address
previously furnished in writing to such Trustee by the Company;
(c) Parent by the Trustee or by any Holder shall be sufficient for every
purpose hereunder (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to such Guarantor addressed to it at (i) 20 Lower Hatch Street Dublin 2, Ireland, Attn: Treasury Department or (ii) any other
address previously furnished in writing to such Trustee by Parent; or
(d) Medtronic, Inc. by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to Medtronic, Inc. addressed to it at (i) 710 Medtronic Parkway, Minneapolis, MN 55432, Attn: Treasury
Department or (ii) any other address previously furnished in writing to such Trustee by Medtronic, Inc.
Section 1.06 Notice
to Holders; Waiver.
13
Where this Indenture provides for notice to Holders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to each Holder affected by such event, at his address as it appears in the Security Register, not later than the latest date (if
any), and not earlier than the earliest date (if any), prescribed for the giving of such notice. In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular
Holder shall affect the sufficiency of such notice with respect to other Holders. Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the
event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.
Section 1.07
Conflict with Trust Indenture
Act
.
If any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture Act which is required under such Act to be a
part of and govern this Indenture, the latter provision shall control. If any provision of this Indenture modifies or excludes any provision of the Trust Indenture Act which may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or to be excluded, as the case may be.
Section 1.08
Effect of Headings and Table of
Contents
.
The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the
construction hereof.
Section 1.09
Successors and Assigns
.
All covenants and agreements in this Indenture by the Company, Parent and Medtronic, Inc. shall bind its respective successors and assigns,
whether so expressed or not.
Section 1.10
Separability Clause
.
In case any provision or any portion of any provision in this Indenture or in the Securities or in any Note Guarantee shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 1.11
Benefits of Indenture
.
Nothing in this Indenture or in the Securities or in any Note Guarantee, express or implied, shall give to any Person, other than the parties
hereto and their successors hereunder and the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture.
14
Section 1.12
Governing Law; Waiver of Jury Trial; Consent to Jurisdiction; Service of
Process
.
This Indenture, the Securities and any Note Guarantee shall be governed by and construed in accordance with the law of the
State of New York and of the United States. For the avoidance of doubt, the applicability of Article 86 to
94-8
of the Luxembourg law on commercial companies shall be excluded.
EACH OF THE COMPANY, PARENT, MEDTRONIC, INC., THE HOLDERS AND THE TRUSTEE 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 INDENTURE, THE NOTES, THE NOTE GUARANTEES OR THE TRANSACTION CONTEMPLATED HEREBY
To the fullest extent permitted by applicable law, each of the Company, Parent and Medtronic, Inc. hereby irrevocably submits to the
jurisdiction of any federal or state court located in the Borough of Manhattan in The City of New York, New York in any suit, action or proceeding based on or arising out of or relating to this Indenture or any Securities and irrevocably agrees that
all claims in respect of such suit or proceeding may be determined in any such court. Each of the Company, Parent and Medtronic, Inc. irrevocably waives, to the fullest extent permitted by law, any objection which it may have to the laying of the
venue of any such suit, action or proceeding brought in an inconvenient forum. Each of the Company, Parent and Medtronic, Inc. agrees that final judgment in any such suit, action or proceeding brought in such a court shall be conclusive and binding
upon the Company, Parent and Medtronic, Inc. and may be enforced in any courts to the jurisdiction of which the Company, Parent or Medtronic, Inc., as applicable, is subject by a suit upon such judgment;
provided
, that service of process is
effected upon the Company, Parent or Medtronic, Inc., as applicable, in the manner specified herein or as otherwise permitted by law. Each of the Company and Parent irrevocably appoints [ ] as its agent to receive service of
process or other legal summons for purposes of any suit, action or proceeding based on or arising out of or relating to this Indenture or any Securities.
Section 1.13
Legal Holidays
.
In any case where any Interest Payment Date, Redemption Date or Stated Maturity of any Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or of the Securities (other than a provision of any Security which specifically states that such provision shall apply in lieu of this Section)) payment of interest or principal
(and premium, if any) need not be made at such Place of Payment on such date, but may be made on the next succeeding Business Day at such Place of Payment with the same force and effect as if made on the Interest Payment Date or Redemption Date, or
at the Stated Maturity.
Section 1.14
USA Patriot Act
.
15
The parties hereto acknowledge that in accordance with Section 326 of the U.S.A. Patriot
Act, the Trustee, like all financial institutions and in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a
relationship or opens an account with the Trustee. The parties to this Indenture agree that they will provide the Trustee with such information as it may request in order for the Trustee to satisfy the requirements of the U.S.A. Patriot Act.
Section 1.15
Judgment Currency
.
The Company and each Guarantor agrees, to the fullest extent that it may effectively do so under applicable law, that if for the purpose of
obtaining judgment in any court it is necessary to convert the sum due in respect of the principal of, or premium or interest, if any, or Additional Amounts on the Securities of any series (the “
Required Currency
”) into a currency
in which a judgment will be rendered (the “
Judgment Currency
”), the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Trustee could purchase in The City of New York the Required
Currency with the Judgment Currency on the New York Banking Day preceding that on which a final unappealable judgment is given. For purposes of the foregoing, “
New York Banking Day
” means any day except a legal holiday in The City
of New York.
Section 1.16
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 which are consistent with accepted practices in the banking industry to
resume performance as soon as practicable under the circumstances.
ARTICLE 2
SECURITY FORMS
Section
2.01
Forms Generally
.
The Securities of each series shall be in substantially the form set forth in this Article, or in such
other form as shall be established by or pursuant to a Board Resolution or in one or more indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by
this Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or Depositary therefor or as may, consistently
herewith, be determined by the officers executing such Securities, as evidenced by their execution thereof. If the form of Securities of any series is established by action taken pursuant to a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of the Company Order contemplated by Section 3.03 for the authentication and delivery of such
Securities.
16
Each Security shall bear a notation of Guarantee substantially in the form set forth in
Section 2.07.
The definitive Securities shall be printed, lithographed or engraved on steel engraved borders or may be produced in
any other manner, all as determined by the officers executing such Securities, as evidenced by their execution of such Securities.
Section 2.02
Form of Face of Security
.
[Insert any legend required by the Internal Revenue Code, the Securities Act and/or other applicable securities laws and the regulations under each of
them.]
Medtronic Global Holdings S.C.A., a corporate partnership limited by shares (
société en
commandite par actions
) organized under the laws of the Grand Duchy of Luxembourg (herein called the “
Company
”, which term includes any successor corporation under the Indenture hereinafter referred to), for value received,
hereby promises to pay to or registered assigns, the principal sum of Dollars
on and to pay interest thereon from or from the most recent Interest Payment Date
to which interest has been paid or duly provided for, on and in
each year, commencing , at the rate of % per annum, until the principal hereof is paid or made available for payment. [
If
applicable then insert
—provided that any principal and premium, and any such installment of interest, which is overdue shall bear interest at the rate of % per annum (to the extent that the payment of such interest
shall be legally enforceable), from the date such amounts are due until they are paid or made available for payment, and such interest on any overdue interest shall be payable on demand.]
The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid
to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which shall be the
or (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. Any
such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities of this series not less than 10 days prior to such Special
Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities of this series may be listed, and upon such notice as may be required by such exchange, all as
more fully provided in said Indenture.
17
[
If the Security is not to bear interest prior to Maturity, insert
—The principal of
this Security shall not bear interest except in the case of a default in payment of principal upon acceleration, upon redemption or at Stated Maturity and in such case the overdue principal and any overdue premium shall bear interest at the rate of
% per annum (to the extent that the payment of such interest shall be legally enforceable), from the dates such amounts are due until they are paid or made available for payment. Interest on any overdue principal or premium
shall be payable on demand. [Any such interest on overdue principal or premium which is not paid on demand shall bear interest at the rate of % per annum (to the extent that the payment of such interest on interest shall be
legally enforceable), from the date of such demand until the amount so demanded is paid or made available for payment. Interest on any overdue interest shall be payable on demand.]]
Payment of the principal of (and premium, if any) and [
if applicable, insert
—any such] interest on this Security will be made at
the office or agency of the Trustee maintained for that purpose in , in such coin or currency of the United States of America as
at the time of payment is legal tender for payment of public and private debts [
if applicable
,
insert
—;
provided
,
however
, that at the option of the Company payment of interest may be made by check mailed to the
address of the Person entitled thereto as such address shall appear in the Security Register].
Reference is hereby made to the further
provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this
Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the
Company has caused this instrument to be duly executed under its corporate seal.
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Medtronic Global Holdings S.C.A.
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By
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Section 2.03
Form of Reverse of Security
.
This Security is one of a duly authorized issue of securities of the Company (herein called the “
Securities
”), issued and to
be issued in one or more series under an Indenture, dated as of (herein called the “
Indenture
”, which term
shall have the meaning assigned
18
to it in such instrument), among the Company, Medtronic Public Limited Company, a public limited company incorporated under the laws of Ireland, Medtronic, Inc., a Minnesota corporation, and
, as Trustee (herein called the “
Trustee
”, which term includes any successor trustee under the Indenture), and
reference is hereby made to the Indenture for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the Securities and of the terms upon which the Securities are,
and are to be, authenticated and delivered. This Security is one of the series designated on the face hereof, initially limited in aggregate principal amount to $ . The Company
may at any time issue additional securities under the Indenture in unlimited amounts having the same terms as the Securities;
provided
that no additional securities of a series may be issued if an Event of Default has occurred and is
continuing with respect to such series of securities.
[
If applicable, insert
—The Securities of this series may be redeemed at
any time [on or after ,
], as a whole or in part, at the option of the Issuer, upon mailing notice of such redemption not less than 30 and not more than
60 days to the Holders of such Securities, at a redemption price equal to .]
[
If the Security is subject to redemption of any kind, insert
—In the event of redemption of this Security in part only, a new
Security or Securities of this series and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof.]
[
If the Security is not an Original Issue Discount Security, insert
—If an Event of Default with respect to Securities of this
series shall occur and be continuing, the principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture.]
[
If the Security is an Original Issue Discount Security, insert
—If an Event of Default with respect to Securities of this series
shall occur and be continuing, an amount of principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture. Such amount shall be equal to—
insert formula for determining
the amount
. Upon payment (i) of the amount of principal so declared due and payable and (ii) of interest on any overdue principal, premium and interest (in each case to the extent that the payment of such interest shall be legally
enforceable), all of the Company’s obligations in respect of the payment of the principal of and premium and interest, if any, on the Securities of this series shall terminate.]
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations
of the Company and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Company and the Trustee with the consent of the Holders of a majority in principal amount of the Securities at the
time Outstanding of each series to be affected. The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Securities of each series at the time Outstanding, on behalf of the Holders of all
Securities of such series, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder
19
of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.
As provided in and subject to
the provisions of the Indenture, the Holder of this Security shall not have the right to institute any proceeding with respect to the Indenture or for the appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder
shall have previously given the Trustee written notice of a continuing Event of Default with respect to the Securities of this series, the Holders of at least 25% in principal amount of the Securities of this series at the time Outstanding shall
have made written request to the Trustee to institute proceedings in respect of such Event of Default as Trustee and offered the Trustee indemnity, and the Trustee shall not have received from the Holders of a majority in principal amount of
Securities of this series at the time Outstanding a direction inconsistent with such request, and shall have failed to institute any such proceeding, for 60 days after receipt of such notice, request and offer of indemnity. The foregoing shall not
apply to any suit instituted by the Holder of this Security for the enforcement of any payment of principal hereof or any premium or interest hereon on or after the respective due dates expressed herein. Any payments with respect to the Securities
will be subject to the subordination provisions set forth in the Indenture.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and any premium and interest on this Security at the times, place and rate, and in the coin or currency,
herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is
registrable in the Security Register, upon surrender of this Security for registration of transfer at the office or agency of the Company in any place where the principal of and any premium and interest on this Security are payable, duly endorsed
by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or the Holder’s attorney duly authorized in writing, and thereupon one or more new
Securities of this series and of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form without coupons in denominations of
$ and any integral multiple thereof. As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like
aggregate principal amount of Securities of this series and of like tenor of a different authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made to a Holder for any such registration of transfer or exchange, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for
registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this
20
Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
Reference is made to the Indenture, including provisions subordinating the payment of principal of and premium, if any, and
interest on the Securities to the prior payment in full of all Senior Debt (as defined in the Indenture). Such further provisions shall for all purposes have the same effect as though fully set forth herein.
All terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture.
Section 2.04
Form of Legend for Securities
.
Unless otherwise specified as contemplated by Section 3.01 for the Securities evidenced thereby, every Security authenticated and
delivered hereunder shall bear one or more of the appropriate legends in substantially the following forms as relevant below:
[If the
Security is a Global Security, then insert—THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN
WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE.]
[If the Security is a Global Security and The Depository Trust Company is to be the Depositary therefor, then
insert—UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“
DTC
”), TO THE ISSUER 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 IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. TRANSFERS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE.]
Section
2.05
Form of Trustee
’
s Certificate of Authentication
.
The Trustee’s certificates of authentication
shall be in substantially the following form:
This is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
21
Dated:
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[
], as Trustee
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By:
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Authorized Signatory
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Section 2.06
CUSIP Numbers
.
The Company in issuing the Securities may use “CUSIP” numbers (if then generally in use), and, if so, the Trustee shall use
“CUSIP” numbers in notices of redemption as a convenience to Holders;
provided
that the Trustee shall have no liability for any defect in the “CUSIP” numbers as they appear on the any Security, notice or elsewhere;
provided further
that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of a redemption and that reliance may be placed only on the
other identification numbers printed on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers. The Company will promptly notify the Trustee in writing of any change in the “CUSIP”
numbers.
Section 2.07
Form of Guarantee
.
The form of Guarantee shall be set forth on the applicable series of Securities substantially as follows:
GUARANTEE
For value received,
the undersigned (the “
Guarantor
”), to the extent set forth in and subject to the terms of the Indenture, dated as of
(the “
Indenture
”), among Medtronic Global Holdings S.C.A, a corporate partnership limited by shares
(
société en commandite par actions
) organized under the laws of the Grand Duchy of Luxembourg (the “
Company
”), Medtronic Public Limited Company, a public limited company incorporated under the laws of Ireland,
Medtronic, Inc., a Minnesota corporation, and , as Trustee (herein called the “
Trustee
”, which term includes any
successor trustee under the Indenture), hereby fully and unconditionally guarantees, on a joint and several basis, to each Holder and to the Trustee and its successors and assigns, that the principal of and premium, if any, and interest on the
Securities shall be promptly paid in full when due, whether at Stated Maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of and interest on the Securities, if any, if lawful, and all other obligations of the
Company to the Holders or the Trustee hereunder or thereunder shall be promptly paid in full or performed;
provided
that the obligations of each Guarantor is subordinated to the Senior Debt of such Guarantor to the same extent that the
Securities are subordinated to the Senior Debt of the Company as set forth in Article 15 of the Indenture.
The obligations of each
Guarantor to the Holders and to the Trustee pursuant to this Guarantee and the Indenture are expressly set forth in Article 14 of the Indenture, and reference is hereby made to the Indenture for the precise terms and limitations of this Guarantee.
Each Holder of the Securities to which this Guarantee is endorsed, by accepting such Securities, agrees to and shall be bound by such provisions.
22
All terms used in this Guarantee which are defined in the Indenture shall have the meanings
assigned to them in the Indenture.
IN WITNESS WHEREOF, each Guarantor has caused this Guarantee to be signed by a duly authorized
officer.
Dated:
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MEDTRONIC PUBLIC LIMITED
COMPANY
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ARTICLE 3
THE SECURITIES
Section 3.01
Amount Unlimited; Issuable in Series
.
The aggregate principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited. Additional Securities of any series of Securities authenticated and delivered under this Indenture may be authenticated and delivered hereunder at any time, having the same terms as, treated as a single class (for all
purposes under this Indenture) with, and in aggregate principal amounts that exceed the aggregate principal amount of, such previously authenticated and delivered Securities.
The Securities may be issued in one or more series. There shall be established in or pursuant to a Board Resolution and, subject to Section
3.03, set forth, or determined in the manner provided in, an Officers’ Certificate, or established in one or more indentures supplemental hereto, prior to the issuance of Securities of any series:
(a) the title of the Securities of the series (which shall distinguish the Securities of the series from Securities of any other series);
(b) any limit upon the aggregate principal amount of the Securities of the series which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Section 3.04, 3.05, 3.06, 9.06 or 11.07 and except for any Securities
which, pursuant to Section 3.03, are deemed never to have been authenticated and delivered hereunder);
23
(c) the Person to whom any interest on a Security of the series shall be payable, if other than
the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest;
(d) the date or dates on which the principal of any Securities of the series is payable;
(e) the rate or rates at which any Securities of the series shall bear interest, if any, the date or dates from which any such interest
shall accrue, the Interest Payment Dates on which any such interest shall be payable and the Regular Record Date for any such interest payable on any Interest Payment Date;
(f) the place or places where the principal of and any premium and interest on any Securities of the series shall be payable;
(g) the period or periods within which, the price or prices at which and the terms and conditions upon which any Securities of the series
may be redeemed, in whole or in part, at the option of the Company and, if other than by a Board Resolution, the manner in which any election by the Company to redeem the Securities shall be evidenced;
(h) the obligation, if any, of the Company to redeem or purchase any Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of the Holder thereof and the period or periods within which, the price or prices at which and the terms and conditions upon which any Securities of the series shall be redeemed or purchased, in whole or in part, pursuant
to such obligation;
(i) if other than denominations of $1,000 and any integral multiple thereof, the denominations in which any
Securities of the series shall be issuable;
(j) if the amount of principal of or any premium or interest on any Securities of the
series may be determined with reference to an index or pursuant to a formula, the manner in which such amounts shall be determined;
(k) if other than the currency of the United States of America, the currency, currencies or currency units in which the principal of or
any premium or interest on any Securities of the series shall be payable and the manner of determining the equivalent thereof in the currency of the United States of America for any purpose, including for purposes of the definition of
“
Outstanding”
in Section 1.01;
(l) if the principal of or any premium or interest on any Securities of the
series is to be payable, at the election of the Company or the Holder thereof, in one or more currencies or currency units other than that or those in which such Securities are stated to be payable, the currency, currencies or currency units in
which the principal of or any premium or interest on such Securities as to which such election is made shall be payable, the periods within which and the terms and conditions upon which such election is to be made and the amount so payable (or the
manner in which such amount shall be determined);
24
(m) if other than the entire principal amount thereof, the portion of the principal amount
of any Securities of the series which shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 5.02;
(n) if the principal amount payable at the Stated Maturity of any Securities of the series will not be determinable as of any one or more
dates prior to the Stated Maturity, the amount which shall be deemed to be the principal amount of such Securities as of any such date for any purpose thereunder or hereunder, including the principal amount thereof which shall be due and payable
upon any Maturity other than the Stated Maturity or which shall be deemed to be Outstanding as of any date prior to the Stated Maturity (or, in any such case, the manner in which such amount deemed to be the principal amount shall be determined);
(o) if applicable, that the Securities of the series, in whole or any specified part, shall be defeasible pursuant to
Section 13.02 or Section 13.03 or both such Sections and, if other than by a Board Resolution, the manner in which any election by the Company to defease such Securities shall be evidenced;
(p) if applicable, that any Securities of the series shall be issuable in whole or in part in the form of one or more Global Securities
and, in such case, the respective Depositaries for such Global Securities, the form of any legend or legends which shall be borne by any such Global Security in addition to or in lieu of that set forth in Section 2.04 and any circumstances in
addition to or in lieu of those set forth in Clause (2) of the last paragraph of Section 3.05 in which any such Global Security may be exchanged in whole or in part for Securities registered, and any transfer of such Global Security in
whole or in part may be registered, in the name or names of Persons other than the Depositary for such Global Security or a nominee thereof;
(q) any addition to or change in the Events of Default which applies to any Securities of the series and any change in the right of the
Trustee or the requisite Holders of such Securities to declare the principal amount thereof due and payable pursuant to Section 5.02;
(r) any addition to or change in the covenants set forth in Article 10 which applies to Securities of the series;
(s) whether the Securities of the series are subject to guarantee provisions different from or in addition to those set forth in Article
14;
(t) whether the Securities of the series are subject to a registration rights agreement pursuant to which additional interest
may be payable on such Securities;
(u) the extent to which payments on the Securities will be subordinated to the payment of Senior
Debt of the Company; and
(v) any other terms of the series (which terms shall not be inconsistent with the provisions of this
Indenture, except as permitted by Section 9.01(e)).
All Securities of any one series shall be substantially identical except as to
denomination and except as may otherwise be provided in or pursuant to the Board Resolution referred to above and (subject to Section 3.03) set forth, or determined in the manner provided in, the Officers’ Certificate referred to above or
in any such indenture supplemental hereto.
25
If any of the terms of the series are established by action taken pursuant to a Board Resolution,
a copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of the Officers’ Certificate setting forth the terms of the
series.
Section 3.02
Denominations
.
The Securities of each series shall be issuable only in registered form without coupons and only in such denominations as shall be specified
as contemplated by Section 3.01. In the absence of any such specified denomination with respect to the Securities of any series, the Securities of such series shall be issuable in denominations of $1,000 and any multiple thereof.
Section 3.03
Execution, Authentication, Delivery and Dating
.
The Securities shall be executed on behalf of the Company by any two of its Chairman of the Board, Chief Executive Officer, its President, its
Chief Financial Officer, its Treasurer or one of its Vice Presidents, under its corporate seal reproduced thereon attested by any of the aforementioned officers. The signature of any of these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who are the proper officers of the Company at the time of execution
of such Security shall bind the Company, notwithstanding that such individuals or any of them have ceased to hold such offices.
At any
time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series executed by the Company and any Note Guarantee executed by the Guarantors to the Trustee for authentication, together
with a Company Order for the authentication and delivery of such Securities, and the Trustee in accordance with the Company Order shall authenticate and deliver such Securities. If the form or terms of the Securities of the series have been
established by or pursuant to one or more Board Resolutions as permitted by Sections 2.01 and 3.01, in authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee
shall be entitled to receive, and (subject to Section 6.01) shall be fully protected in relying upon, an Opinion of Counsel (subject to any reservations set out therein) stating:
(a) if the form of such Securities has been established by or pursuant to Board Resolution as permitted by Section 2.01, that such
form has been established in conformity with the provisions of this Indenture;
(b) if the terms of such Securities have been
established by or pursuant to Board Resolution as permitted by Section 3.01, that such terms have been established in conformity with the provisions of this Indenture; and
(c) that such Securities and the related Note Guarantees, when authenticated and delivered by the Trustee and issued by the Company in
the manner and subject to any conditions
26
specified in such Opinion of Counsel, will constitute valid and legally binding obligations of the Company and the Guarantors, as applicable, enforceable in accordance with their terms, subject
to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
If such form or terms have been so established, the Trustee shall not be required to
authenticate such Securities if the issue of such Securities pursuant to this Indenture will affect the Trustee’s own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably
acceptable to the Trustee.
Notwithstanding the provisions of Section 3.01 and of the preceding paragraph, if all Securities of a
series are not to be originally issued at one time, it shall not be necessary to deliver the Officers’ Certificate otherwise required pursuant to Section 3.01 or the Company Order and Opinion of Counsel otherwise required pursuant to such
preceding paragraph at or prior to the authentication of each Security of such series if such documents are delivered at or prior to the authentication upon original issuance of the first Security of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the form provided for herein executed by the Trustee by manual signature, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has
been duly authenticated and delivered hereunder. Notwithstanding the foregoing, if any Security shall have been authenticated and delivered hereunder but never issued and sold by the Company, and the Company shall deliver such Security to the
Trustee for cancellation as provided in Section 3.09, for all purposes of this Indenture such Security shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled to the benefits of this Indenture.
Section 3.04
Temporary Securities
.
Pending the preparation of definitive Securities of any series, the Company may execute, and each Guarantor may execute any Note Guarantee
thereon, and upon Company Order the Trustee shall authenticate and deliver, temporary Securities which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the
definitive Securities in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other variations as the officers executing such Securities may determine, as evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company will cause definitive Securities of that series to be prepared without
unreasonable delay. After the preparation of definitive Securities of such series, the temporary Securities of such series shall be exchangeable for definitive Securities of such series upon surrender of the temporary Securities of such series at
the office or agency of the Company in a Place of Payment for that series, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any
27
series, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor one or more definitive Securities of the same series, of any authorized denominations and of
like tenor and aggregate principal amount. Until so exchanged, the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of such series and tenor.
Section 3.05 Registration, Registration of Transfer and Exchange; Certain Transfers and Exchanges.
(a)
Registration, Registration of Transfer and Exchange Generally
. The Company shall cause to be kept at the Corporate Trust
Office of the Security Registrar designated pursuant to this Section 3.05 a register (being the combined register of the Security Registrar and all
Co-Security
Registrars and herein sometimes collectively
referred to as the “
Security Register
”) in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Securities and of transfers of Securities.
[ ], is hereby initially appointed Security Registrar, and the Trustee is hereby initially appointed
Co-Security
Registrar, in each case for the purpose of registering Securities and transfers of Securities as herein provided. The Company, with prior notice to the Trustee, may (i) replace the Security
Registrar with an entity that satisfies the eligibility requirements of a Trustee under Section 6.09 and (ii) remove or add
Co-Security
Registrars. A Security Registrar or
Co-Security
Registrar shall not be liable for the acts or omissions of any other Security Registrar or
Co-Security
Registrar, as the case may be. The Trustee shall have the
right to inspect the register of the Security Registrar (and any
Co-Security
Registrar) at all reasonable times and may request and rely upon a certificate of a duly authorized officer of the Security
Registrar (and any
Co-Security
Registrar) as to the names and addresses of Holders and the principal amounts and numbers of the Securities held thereby and such other matters as the Trustee may reasonably
request.
In addition to any Security Register described in the foregoing paragraph, a register of the Securities will be kept at the
registered office of the Company, for Luxembourg law purposes. Upon written request from the Company, the Registrar shall provide the Company with a copy of the Security Register to enable it to maintain a register of the Securities at its
registered office. The Company accepts any copy of the register as correspondence and document recording the transfer of any Securities and agrees to update its register upon receipt of such copy.
The Company hereby initially selects the Corporate Trust Office of the Trustee, located at
, Attn: ,
as the office or agency of the Company in , where the Securities may be presented or surrendered for payment and where the
Securities may be surrendered for registration of transfer or exchange in accordance with Section 10.02.
Upon surrender for
registration of transfer of any Security of a series at the office or agency of the Company in a Place of Payment for that series, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Securities of the same series, of any authorized denominations and of like tenor and aggregate principal amount and each Guarantor shall execute any Note Guarantees thereon.
28
At the option of the Holder, Securities of any series may be exchanged for other Securities of
the same series, of any authorized denominations and of like tenor and aggregate principal amount, upon surrender of the Securities to be exchanged at such office or agency. Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive and each Guarantors shall execute any Note Guarantees thereon.
All Securities and any Note Guarantees thereon issued upon any registration of transfer or exchange of guaranteed Securities shall be the
valid obligations of the Company and the Guarantors, as applicable, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities and any Guarantees thereon surrendered upon such registration of transfer or
exchange.
Every Security presented or surrendered for registration of transfer or for exchange shall (if so required by the Company or
the Trustee) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed, by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Section 3.04, 9.06 or 11.7 not involving any transfer.
If the Securities of any series (or of any series and specified tenor) are to be redeemed in part, the Company shall not be required
(A) to issue, register the transfer of or exchange any Securities of that series (or of that series and specified tenor, as the case may be) during a period beginning at the opening of business 15 days before the day of the mailing of a notice
of redemption of any such Securities selected for redemption under Section 11.03 and ending at the close of business on the day of such mailing, or (B) to register the transfer of or exchange any Security so selected for redemption in
whole or in part, except the unredeemed portion of any Security being redeemed in part.
The provisions of Clauses (1), (2), (3), and
(4) below shall apply only to Global Securities:
(1) Each Global Security authenticated under this Indenture shall be registered
in the name of the Depositary designated for such Global Security or a nominee thereof and delivered to such Depositary or a nominee thereof or custodian therefor, and each such Global Security shall constitute a single Security for all purposes of
this Indenture.
(2) Notwithstanding any other provision in this Indenture, no Global Security may be exchanged in whole or in part
for Securities registered, and no transfer of a Global Security in whole or in part may be registered, in the name of any Person other than the Depositary for such Global Security or a nominee thereof unless (A) such Depositary (i) has
notified the Company that it is unwilling or unable to continue as Depositary for such Global Security or (ii) has ceased to be a clearing agency registered under the Exchange Act, and, in each case, a successor
29
depositary is not appointed by the Company within 90 days of such notice or after the Company becomes aware of such cessation, (B) the Company in its sole discretion determines that such
Global Security shall be exchangeable for definitive registered Securities and executes and delivers to the Security Registrar a Company Order providing that such Global Security shall be so exchangeable, (C) there shall have occurred and be
continuing an Event of Default with respect to such Global Security or (D) there shall exist such circumstances, if any, in addition to or in lieu of the foregoing as have been specified for this purpose as contemplated by Section 3.01.
(3) Subject to Clause (2) above, any exchange of a Global Security for other Securities may be made in whole or in part, and
all Securities issued in exchange for a Global Security or any portion thereof shall be registered in such names as the Depositary for such Global Security shall direct.
(4) Every Security authenticated and delivered upon registration of transfer of, or in exchange for or in lieu of, a Global Security or
any portion thereof, whether pursuant to this Section, Section 3.04, 3.06, 9.06 or 11.07 or otherwise, shall be authenticated and delivered in the form of, and shall be, a Global Security, unless such Security is registered in the name of a
Person other than the Depositary for such Global Security or a nominee thereof.
Section 3.06
Mutilated, Destroyed, Lost and
Wrongfully Taken Securities
.
If any mutilated Security is surrendered to the Trustee, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a new Security of the same series and of like tenor and principal amount and bearing a number not contemporaneously outstanding and each Guarantor shall execute any Note Guarantee thereon.
If there shall be delivered to the Company and the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any
Security and (ii) such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Company or the Trustee that such Security has been acquired by a
protected purchaser, the Company shall execute and the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or wrongfully taken Security, a new Security of the same series and of like tenor and principal amount and bearing a
number not contemporaneously outstanding and each Guarantor shall execute any Note Guarantees thereon.
In case any such mutilated,
destroyed, lost or wrongfully taken Security has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series and any Note Guarantee thereon issued pursuant to this Section in lieu of any destroyed, lost or wrongfully
taken Security shall constitute an original additional contractual obligation of the Company or the Guarantors, as applicable, whether or not
30
the destroyed, lost or wrongfully taken Security shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and
all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the extent
lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or wrongfully taken Securities.
Section 3.07
Payment of Interest; Interest Rights Preserved
.
Except as otherwise provided as contemplated by Section 3.01 with respect to any series of Securities, interest on any Security which is
payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for
such interest.
Any interest on any Security of any series which is payable, but is not punctually paid or duly provided for, on any
Interest Payment Date (herein called “
Defaulted Interest
”) shall forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of having been such Holder, and such Defaulted Interest may be paid by the
Company, at its election in each case, as provided in Clause (a) or (b) below:
(a) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the Securities of such series (or their respective Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be
fixed in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Security of such series and the date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment,
such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this Clause provided. Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall
be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be given to each Holder of Securities of such series in the manner
set forth in Section 1.06, not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been so mailed, such Defaulted Interest shall be paid to
the Persons in whose names the Securities of such series (or their respective Predecessor Securities) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following Clause (b).
(b) The Company may make payment of any Defaulted Interest on the Securities of any series in any other lawful manner not inconsistent
with the requirements of any securities
31
exchange on which such Securities may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to
this Clause, such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security.
Section 3.08
Persons Deemed Owners
.
Prior to due presentment of a Security for registration of transfer, the Company, the Guarantors, the Trustee and any agent of the Company,
any Guarantor or the Trustee may treat the Person in whose name such Security is registered as the owner of such Security for the purpose of receiving payment of principal of and any premium and (subject to Section 3.07) any interest on such
Security and for all other purposes whatsoever, whether or not such Security be overdue, and neither the Company, the Guarantors, the Trustee nor any agent of the Company, any Guarantor or the Trustee shall be affected by notice to the contrary.
Section 3.09
Cancellation.
All Securities surrendered for payment, redemption, registration of transfer or exchange or for credit against any sinking fund payment shall,
if surrendered to any Person other than the Trustee, be delivered to the Trustee and shall be promptly cancelled by it. The Company or any Guarantor may at any time deliver to the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company or any Guarantor may have acquired in any manner whatsoever, and may deliver to the Trustee (or to any other Person for delivery to the Trustee) for cancellation any Securities previously authenticated hereunder
which the Company has not issued and sold, and all Securities so delivered shall be promptly cancelled by the Trustee. No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as provided in this Section, except as
expressly permitted by this Indenture. All cancelled Securities held by the Trustee shall be disposed of in accordance with the Trustee’s customary procedures.
Section 3.10
Computation of Interest
.
Except as otherwise specified as contemplated by Section 3.01 for Securities of any series, interest on the Securities of each series
shall be computed on the basis of a
360-day
year of twelve
30-day
months.
ARTICLE 4
SATISFACTION AND
DISCHARGE
Section 4.01
Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect (except as to any surviving rights of registration of transfer or
exchange of Securities herein expressly
32
provided for), and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture, when:
(a) either:
(i) all
Securities theretofore authenticated and delivered (other than (A) Securities which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 3.06 and (B) Securities 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, as provided in Section 10.03) have been delivered to the Trustee for cancellation; or
(ii) all such Securities not theretofore delivered to the Trustee for cancellation (A) have become due and payable, or (B) will
become due and payable at their Stated Maturity within one year, or (C) are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the
expense, of the Company, and the Company, in the case of subclauses (ii) (A), (B), or (C) above, has deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose money (either in U.S. dollars or U.S. Government
Obligations or, in the case of Securities denominated in a currency other than U.S. dollars, Foreign Government Obligations) in an amount sufficient to pay and discharge the entire indebtedness on such Securities not theretofore delivered to the
Trustee for cancellation, for principal and any premium and interest to the date of such deposit (in the case of Securities which have become due and payable) or to the Stated Maturity or Redemption Date, as the case may be;
(b) the Company has paid or caused to be paid all other sums payable hereunder by the Company; and
(c) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of this Indenture have been complied with.
Notwithstanding the
satisfaction and discharge of this Indenture, the obligations of the Company or any Guarantor to the Trustee under Section 6.07, the obligations of the Trustee to any Authenticating Agent under Section 6.14 and, if money shall have been
deposited with the Trustee pursuant to subclause (ii) of Clause (a) of this Section, the obligations of the Trustee under Section 4.02 and the last paragraph of Section 10.03 shall survive.
Section 4.02
Application of Trust Money
.
Subject to the provisions of the last paragraph of Section 10.03, all money deposited with the Trustee pursuant to Section 4.01
shall be held in trust and applied by it, in accordance with the provisions of the Securities and this Indenture, to the payment, either directly or through any Paying Agent (including the Company or any Guarantor acting as its own Paying Agent) as
the Trustee may determine, to the Persons entitled thereto, of the principal and any premium and interest for whose payment such money has been deposited with the Trustee.
33
ARTICLE 5
REMEDIES
Section
5.01
Events of Default
.
“
Event of Default
” wherever used herein with respect to Securities of any series,
means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be 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):
(a) default in the payment of any interest upon any Security of that series
when it becomes due and payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of the
principal of or any premium on any Security of that series at its Maturity; or
(c) default in the deposit of any sinking fund
payment, when and as due by the terms of a Security of that series; or
(d) default in the performance, or breach, of any covenant or
warranty of the Company or a Guarantor in this Indenture (other than a covenant or warranty a default in whose performance or whose breach is elsewhere in this Section specifically dealt with or which has expressly been included in this Indenture
solely for the benefit of series of Securities other than that series), and continuance of such default or breach for a period of 60 consecutive days after there has been given, by registered or certified mail, to the Company and the Guarantors by
the Trustee or to the Company, the Guarantors and the Trustee by the Holders of at least 25% in principal amount of the Outstanding Securities of that series a written notice specifying such default or breach and requiring it to be remedied and
stating that such notice is a “
Notice of Default
” hereunder; or
(e) there occurs with respect to any Debt of Parent
or any Restricted Subsidiary having an outstanding principal amount of $150,000,000 or more in the aggregate for all such Debt of all such Persons (i) an event of default that results in such Debt being due and payable prior to its scheduled
maturity or (ii) failure to make a principal payment when due at maturity; or
(f) any Note Guarantee, ceases to be in full
force and effect or is declared to be null and void and unenforceable or any Note Guarantee is found to be invalid or any Guarantor denies its liability under its Note Guarantee (other than by reason of its release in accordance with the terms of
this Indenture, including pursuant to Section 14.06); or
(g) an involuntary case or other proceeding is commenced against the
Company or any Guarantor with respect to it or its debts under any bankruptcy, insolvency, examinership or other similar law now or hereafter in effect seeking the appointment of a trustee, receiver, liquidator, examiner, custodian or other similar
official of it or any substantial part of its property, and such involuntary case or other proceeding remains undismissed and unstayed for a period of 60 days; or an order for relief is entered against the Company or any Guarantor under the federal
bankruptcy laws or the laws of the Company’s or such Guarantor’s jurisdiction of organization, as applicable, in each case as now or hereafter in effect; or
34
(h) the Company or any Guarantor (i) commences a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or consents to the entry of an order for relief in an involuntary case under any such law, (ii) consents to the appointment of or taking possession by a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar official of the Company or such Guarantor or for all or substantially all of the property and assets of the Company or such Guarantor or (iii) effects any general assignment for
the benefit of creditors (an event of default specified in clause (g) or (h) a “
Bankruptcy Default
”); or
(i) any other Event of Default provided with respect to Securities of that series.
Section 5.02
Acceleration of Maturity; Rescission and Annulment
.
If an Event of Default (other than a Bankruptcy Default) with respect to Securities of any series at the time Outstanding occurs and is
continuing, then in every such case the Trustee or the Holders of at least 25% in principal amount of the Outstanding Securities of that series may declare the principal amount of all the Securities of that series (or, if any Securities of that
series are Original Issue Discount Securities, such portion of the principal amount of such Securities as may be specified by the terms thereof) to be due and payable immediately, by a notice in writing to the Company and the Guarantors (and to the
Trustee if given by Holders), and upon any such declaration such principal amount (or specified amount) shall become immediately due and payable. If a Bankruptcy Default with respect to Securities of any series at the time Outstanding occurs, the
principal amount of all the Securities of that series (or, if any Securities of that series are Original Issue Discount Securities, such portion of the principal amount of such Securities as may be specified by the terms thereof) shall
automatically, and without any declaration or other action on the part of the Trustee or any Holder, become immediately due and payable.
At any time after such a declaration of acceleration with respect to Securities of any series has been made and before a judgment or decree
for payment of the money due has been obtained by the Trustee as hereinafter in this Article provided, the Holders of a majority in principal amount of the Outstanding Securities of that series, by written notice to the Company and the Guarantors
and the Trustee, may rescind and annul such declaration and its consequences if:
(a) the Company or any Guarantor has paid or
deposited with Trustee a sum sufficient to pay:
(i) all overdue interest on all Securities of that series,
(ii) the principal of (and premium, if any, on) any Securities of that series which have become due otherwise than by such declaration of
acceleration and any interest thereon at the rate or rates prescribed therefor in such Securities, and
(iii) to the extent that
payment of such interest is lawful, interest upon overdue interest at the rate or rates prescribed therefor in such Securities, if any;
35
(b) all sums paid or advanced by the Trustee hereunder and the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel; and
(c) all Events of Default with respect to
Securities of that series, other than the
non-payment
of the principal of Securities of that series which have become due solely by such declaration of acceleration, have been cured or waived as provided in
Section 5.13.
No such rescission shall affect any subsequent default or impair any right consequent thereon.
Section 5.03
Collection of Indebtedness and Suits for Enforcement by Trustee
.
The Company and each Guarantor covenants that if:
(a) default is made in the payment of any interest on any Security when such interest becomes due and payable and such default continues
for a period of 30 days, or
(b) default is made in the payment of the principal of (or premium, if any, on) any Security at the
Maturity thereof, the Company or a Guarantor will, upon demand of the Trustee, pay to it, for the benefit of the Holders of such Securities, the whole amount then due and payable on such Securities for principal and any premium and interest and, to
the extent that payment of such interest shall be legally enforceable, interest on any overdue principal and premium and on any overdue interest, at the rate or rates prescribed therefor in such Securities, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.
If an Event of Default with respect to Securities of any series occurs and is continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Holders of Securities of such series by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.
Section 5.04
Trustee May File Proofs of Claim
.
In case of any judicial proceeding relative to the Company or a Guarantor (or any other obligor upon the Securities), its property or its
creditors, the Trustee shall be entitled and empowered, by intervention in such proceeding or otherwise, to take any and all actions authorized under the Trust Indenture Act in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders,
to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 6.07.
36
No provision of this Indenture shall be deemed to authorize the Trustee to authorize or consent
to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder
in any such proceeding;
provided
,
however
, that the Trustee may, on behalf of the Holders, vote for the election of a trustee in bankruptcy or similar official and be a member of a creditors’ or other similar committee.
Section 5.05
Trustee May Enforce Claims Without Possession of Securities
.
All rights of action and claims under this Indenture or the Securities may be prosecuted and enforced by the Trustee without the possession of
any of the Securities or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities in respect of which such judgment has been recovered.
Section 5.06
Application of Money Collected
.
Any money collected by the Trustee pursuant to this Article shall be applied in the following order, at the date or dates fixed by the Trustee
and, in case of the distribution of such money on account of principal or any premium or interest, upon presentation of the Securities and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 6.07; and
SECOND: To the payment of the amounts then due and unpaid upon Securities of such series for principal, premium, if any, and interest, in
respect of which or for the benefit of which such funds have been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities for principal, premium, if any, and interest, respectively;
and
THIRD: To the Company or the Guarantors, as their interests may appear.
Section 5.07
Limitation on Suits
.
No Holder of any Security of any series shall have any right to institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver, examiner or trustee, or for any other remedy hereunder, unless:
(a) such Holder has
previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of that series;
(b) the Holders of not less than 25% in principal amount of the Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
37
(c) such Holder or Holders have offered to the Trustee indemnity against the costs, expenses
and liabilities to be incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding; and
(e) no direction inconsistent with such written
request has been given to the Trustee during such
60-day
period by the Holders of a majority in principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under this Indenture, except in the
manner herein provided and for the equal and ratable benefit of all of such Holders (it being understood that the Trustee does not have an affirmative duty to ascertain whether or not such actions or forbearances are unduly prejudicial to such
Holders).
Section 5.08 Unconditional Right of Holders To Receive Principal, Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional,
to receive payment of the principal of and any premium and (subject to Section 3.07) interest on such Security on the respective Stated Maturities expressed in such Security (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder.
Section
5.09
Restoration of Rights and Remedies
.
If the Trustee or any Holder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the
Company, the Guarantors, the Trustee and the Holders shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding
had been instituted.
Section 5.10
Rights and Remedies Cumulative
.
Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 3.06, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
38
Section 5.11
Delay or Omission Not Waiver
.
No delay or omission of the Trustee or of any Holder of any Securities to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
Section 5.12
Control by Holders
.
The Holders of a majority in principal amount of the Outstanding Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the Securities of such series;
provided
that:
(a) such direction shall not be in conflict with any rule of law or with this Indenture, the Securities or any Note Guarantee,
(b) such direction is not unduly prejudicial to the rights of the Holders,
(c) such direction will not involve the Trustee in personal liability or expense for which the Trustee has not received a satisfactory
indemnity, and
(d) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction.
Section 5.13
Waiver of Past Defaults
.
The Holders of not less than a majority in principal amount of the Outstanding Securities of any series by notice to the Trustee may on behalf
of the Holders of all the Securities of such series waive any past default hereunder with respect to such series and its consequences, except a default:
(a) in the payment of the principal of or any premium or interest on any Security of such series, or
(b) in respect of a covenant or provision hereof which under Article 9 cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
Section 5.14
Undertaking for Costs
.
39
In any suit for the enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken, suffered or omitted by it as Trustee, a court may require any party litigant in such suit to file an undertaking to pay the costs of such suit, and may assess costs, including attorney’s fees and
expenses, against any such party litigant, in the manner and to the extent provided in the Trust Indenture Act;
provided
that neither this Section nor the Trust Indenture Act shall be deemed to authorize any court to require such an
undertaking or to make such an assessment in any suit instituted by the Company or the Trustee.
Section 5.15
Waiver of Usury,
Stay or Extension Laws
.
The Company and each Guarantor covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any usury, stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this
Indenture; and the Company and each Guarantor (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.
ARTICLE 6
THE TRUSTEE
Section
6.01
Certain Duties and Responsibilities
.
The duties and responsibilities of the Trustee shall be as provided by the Trust
Indenture Act. Notwithstanding the foregoing, no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section.
(a) Except during the continuance of an Event of Default:
(i) the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture,
and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(ii) in the
absence of willful misconduct on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether
or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein).
40
(b) If an Event of Default has occurred and is continuing, the Trustee shall exercise such
of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs.
Section 6.02
Notice of Defaults
.
If a default occurs hereunder with respect to Securities of any series, the Trustee shall give the Holders of Securities of such series notice
of such default as and to the extent provided by the Trust Indenture Act;
provided
,
however
, that in the case of any default of the character specified in Section 5.01(e) with respect to Securities of such series, no such notice to
Holders shall be given until at least 30 days after the occurrence thereof. For the purpose of this Section, the term “
default
” means any event which is, or after notice or lapse of time or both would become, an Event of Default
with respect to Securities of such series.
Section 6.03
Certain Rights of Trustee
.
Subject to the provisions of Section 6.01:
(a) the Trustee may conclusively rely and shall be protected in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper
party or parties or a Guarantor;
(b) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a
Company Request or Company Order, and any resolution of the Board of Directors shall be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officers’ Certificate;
(d) the Trustee may consult with counsel of its choosing and the advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such Holders shall have offered to the Trustee security or indemnity against the costs, expenses and liabilities which might be incurred by it in compliance with such request or
direction;
(f) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or
41
document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further
inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents
or attorneys;
(h) in no event shall the Trustee be responsible or liable for special, indirect or punitive loss or damage of any
kind whatsoever (including loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action;
(i) the Trustee shall not be required to give any bond or surety in respect of the performance of its powers and duties hereunder;
(j) the rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder;
(k) the Trustee shall not be deemed to have notice of any Default or Event of 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 the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Securities and this Indenture; and
(l) the Company shall provide to the Trustee on a timely basis such information as the Trustee requires to enable the Trustee to prepare
and file any form required to be submitted by the Company with the Internal Revenue Service and the Holders of the Notes relating to original issue discount.
Section 6.04
Not Responsible for Recitals or Issuance of Securities
.
The recitals contained herein and in the Securities, except the Trustee’s certificates of authentication, shall be taken as the
statements of the Company, and neither the Trustee nor any Authenticating Agent assumes any responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities. Neither
the Trustee nor any Authenticating Agent shall be accountable for the use or application by the Company of Securities or the proceeds thereof.
Section 6.05
May Hold Securities
.
The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other agent of the Company, in its individual or any
other capacity, may become the owner or pledgee of Securities and, subject to Sections 6.08 and 6.13, may otherwise deal with the Company with the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
42
Section 6.06
Money Held in Trust
.
Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee shall
be under no liability for interest on any money received by it hereunder except as otherwise agreed with the Company.
Section
6.07
Compensation and Reimbursement
.
The Company and each Guarantor agrees:
(a) to pay to the Trustee from time to time compensation for all services rendered by it hereunder (which compensation shall be agreed
upon in writing from time to time between the Trustee and the Company and shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, to reimburse the Trustee upon its request for all reasonable expenses, disbursements
and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as
may be attributable to its negligence or willful misconduct; and
(c) to indemnify each of the Trustee or any predecessor Trustee and
their agents for, and to hold them harmless against, any and all loss, damage, claims, liability or expense, including taxes (other than taxes based upon, measured by or determined by the income of the Trustee), arising out of or in connection with
the acceptance or administration of the trust or trusts hereunder, including the costs and expenses of defending itself against any claim (whether asserted by the Company, any Guarantor, any Holder or any other Person) or liability in connection
with the exercise or performance of any of its powers or duties hereunder, or in connection with enforcing the provisions of this Section, except to the extent that such loss, damage, claim, liability or expense is due to its own negligence or
willful misconduct.
To secure the Company’s and the Guarantor’s payment obligations in this Section, the Trustee shall have a
lien prior to the Securities on all money or property held or collected by the Trustee, except that held in trust for the benefit of Holders of Securities to pay principal and interest on particular Securities.
Without prejudice to its rights hereunder, when the Trustee incurs expenses or renders services after an Event of Default specified in Section
5.01(g) or Section 5.01(h) occurs, the expenses and the compensation for the services are intended to constitute expenses of administration under applicable federal or state bankruptcy, insolvency, reorganization or other similar law.
Section 6.08
Conflicting Interests
.
If the Trustee has or shall acquire a conflicting interest within the meaning of the Trust Indenture Act, the Trustee shall either eliminate
such interest or resign, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture. To the extent permitted by such Act, the Trustee shall not be deemed to have a conflicting interest
by virtue of being a trustee under this Indenture with respect to Securities of more than one series.
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Section 6.09
Corporate Trustee Required; Eligibility
.
There shall at all times be one (and only one) Trustee hereunder with respect to the Securities of each series, which may be Trustee hereunder
for Securities of one or more other series. Each Trustee shall be a Person that is eligible pursuant to the Trust Indenture Act to act as such and has a combined capital and surplus of at least $50,000,000. If any such Person publishes reports of
condition at least annually, pursuant to law or to the requirements of its supervising or examining authority, then for the purposes of this Section and to the extent permitted by the Trust Indenture Act, the combined capital and surplus of such
Person shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Trustee with respect to the Securities of any series shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article.
Section
6.10
Resignation and Removal; Appointment of Successor
.
No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 6.11.
The Trustee may resign at any time with respect to the Securities of one or more series by giving written notice thereof to the Company and
the Guarantors. If the instrument of acceptance by a successor Trustee required by Section 6.11 shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may, at the
expense of the Company, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
The Trustee may be removed at any time with respect to the Securities of any series by Act of the Holders of a majority in principal amount of
the Outstanding Securities of such series, delivered to the Trustee and to the Company and the Guarantors. If the instrument of acceptance by a successor Trustee required by Section 6.11 shall not have been delivered to the Trustee within 30
days after the removal of the Trustee, the removed Trustee may, at the expense of the Company, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
If at any time:
(a) the
Trustee shall fail to comply with Section 6.08 after written request therefor by the Company, Parent or by any Holder who has been a
bona fide
Holder of a Security for at least six months, or
(b) the Trustee shall cease to be eligible under Section 6.09 and shall fail to resign after written request therefor by the
Company, Parent or by any such Holder, or
44
(c) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or
insolvent or a receiver of the Trustee or of its property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, then, in any
such case, (i) the Company by a Board Resolution may remove the Trustee with respect to all Securities, or (ii) subject to Section 5.14, any Holder who has been a
bona fide
Holder of a Security for at least six months may, on
behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee with respect to all Securities and the appointment of a successor Trustee or Trustees.
If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause,
with respect to the Securities of one or more series, the Company, by a Board Resolution, shall promptly appoint a successor Trustee or Trustees with respect to the Securities of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of one or more or all of such series and that at any time there shall be only one Trustee with respect to the Securities of any particular series) and shall comply with the applicable
requirements of Section 6.11. If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the Securities of any series shall be appointed by Act of the Holders of a
majority in principal amount of the Outstanding Securities of such series delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment in accordance with the
applicable requirements of Section 6.11, become the successor Trustee with respect to the Securities of such series and to that extent supersede the successor Trustee appointed by the Company. If no successor Trustee with respect to the
Securities of any series shall have been so appointed by the Company or the Holders and accepted appointment in the manner required by Section 6.11, any Holder who has been a
bona fide
Holder of a Security of such series for at least six
months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
The Company shall give notice of each resignation and each removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series to all Holders of Securities of such series in the manner provided in Section 1.06. Each notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
Section 6.11
Acceptance of Appointment by Successor
.
In case of the appointment hereunder of a successor Trustee with respect to all Securities, every such successor Trustee so appointed
shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without
any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Company or the successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder. The successor Trustee shall mail notice of its succession to the Holders.
45
In case of the appointment hereunder of a successor Trustee with respect to the Securities of one
or more (but not all) series, the Company, the retiring Trustee and each successor Trustee with respect to the Securities of one or more series shall execute and deliver an indenture supplemental hereto wherein each successor Trustee shall accept
such appointment and which (a) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to
the Securities of that or those series to which the appointment of such successor Trustee relates, (b) if the retiring Trustee is not retiring with respect to all Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee,
and (c) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such
supplemental indenture
shall constitute such Trustees
co-trustees
of the same trust and that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts
hereunder administered by any other such Trustee; and upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall become effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder with respect to the
Securities of that or those series to which the appointment of such successor Trustee relates.
Upon request of any such successor
Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts referred to in the first or second preceding paragraph, as the case may
be.
No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
Section 6.12
Merger, Conversion, Consolidation or Succession to Business
.
Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of the Trustee (including the trust created by this Indenture), shall be the successor
of the Trustee hereunder;
provided
such corporation shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Securities
shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to
46
such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities.
Section 6.13
Preferential Collection of Claims Against Company
.
If and when the Trustee shall be or become a creditor of the Company or any Guarantor (or any other obligor upon the Securities), the Trustee
shall be subject to the provisions of the Trust Indenture Act regarding the collection of claims against the Company or such Guarantor (or any such other obligor).
Section 6.14
Appointment of Authenticating Agent
.
The Trustee may appoint an Authenticating Agent or Agents with respect to one or more series of Securities which shall be authorized to act on
behalf of the Trustee to authenticate Securities of such series issued upon original issue and upon exchange, registration of transfer or partial redemption thereof or pursuant to Section 3.06, and Securities so authenticated shall be entitled
to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. Wherever reference is made in this Indenture to the authentication and delivery of Securities by the Trustee or the
Trustee’s certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the Company and shall at all times be a corporation organized and doing business under the laws of the United States of America, any State thereof or the District of Columbia,
authorized under such laws to act as Authenticating Agent, having a combined capital and surplus of not less than $50,000,000 and subject to supervision or examination by federal or state authority. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so published. If at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this Section.
The Trustee hereby initially appoints
[ ] as an Authenticating Agent. The Company hereby deems
[ ] an acceptable Authenticating Agent.
Any corporation into which an Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any corporation succeeding to all or substantially all of the corporate agency or corporate trust business of an Authenticating Agent
(including the authenticating agency contemplated by this Indenture), shall continue to be an Authenticating Agent;
provided
such corporation shall be otherwise eligible under this Section, without the execution or filing of any paper or any
further act on the part of the Trustee or the Authenticating Agent.
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An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee
and to the Company. The Trustee may at any time terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and to the Company. Upon receiving such a notice of resignation or upon such a termination,
or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee may appoint a successor Authenticating Agent which shall be acceptable to the Company and shall give notice of
such appointment in the manner provided in Section 1.06 to all Holders of Securities of the series with respect to which such Authenticating Agent will serve. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall
become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this
Section.
The Company agrees to pay to each Authenticating Agent from time to time reasonable compensation for its services under this
Section.
If an appointment with respect to one or more series is made pursuant to this Section, the Securities of such series may have
endorsed thereon, in addition to the Trustee’s certificate of authentication, an alternative certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
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[ ]
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By:
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As Authenticating Agent
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By:
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As Authenticating Agent
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ARTICLE 7
HOLDERS’ LISTS AND REPORTS BY TRUSTEE, COMPANY AND GUARANTORS
Section 7.01
Company To Furnish Trustee Names and Addresses of Holders
.
The Company will furnish or cause to be furnished to the Trustee:
(a) not more than 15 days after each Regular Record Date and in any case at least once every 6 months, a list, in such form as the Trustee
may reasonably require, of the names and addresses of the Holders of Securities of each series as of the preceding Regular Record Date, and
(b) at such other times as the Trustee may request in writing, within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days prior to the time such list is furnished;
excluding
from any such list names and addresses received by the Trustee in its capacity as Security Registrar or
Co-
Security Registrar, as applicable.
48
Section 7.02
Preservation of Information; Communications to Holders
.
The Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 7.01 and the names and addresses of Holders received by the Trustee in its capacity as Security Registrar or
Co-Security
Registrar, as applicable. The
Trustee may destroy any list furnished to it as provided in Section 7.01 upon receipt of a new list so furnished.
The rights of
Holders to communicate with other Holders with respect to their rights under this Indenture or under the Securities, and the corresponding rights and privileges of the Trustee, shall be as provided by the Trust Indenture Act.
Every Holder of Securities, by receiving and holding the same, agrees with the Company and the Trustee that none of the Company, the
Guarantors nor the Trustee nor any agent of any of them shall be held accountable by reason of any disclosure of information as to names and addresses of Holders made pursuant to the Trust Indenture Act.
Section 7.03
Reports by Trustee
.
By no later than May 15 of each year, beginning on May 15, [ ], and for as long as
the Securities remain outstanding, the Trustee shall transmit to Holders such reports concerning the Trustee and its actions under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant
thereto.
A copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee with each stock exchange
upon which any Securities are listed, with the Commission and with the Company. The Company will promptly notify the Trustee when any Securities are listed on any stock exchange, and any delisting thereof.
Section 7.04
Reports
.
(a) Parent shall deliver to the Trustee, within 30 days after Parent has filed, or would have been required to file, the same with the
Commission, copies of the annual reports and quarterly reports and of the information, documents and other periodic or current reports (or copies of such portions of any of the foregoing as the Commission may from to time to time by rules and
regulations prescribe) that Parent may be required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act (other than confidential filings, documents subject to confidential treatment and correspondence with the
Commission);
provided
, that the filing of the foregoing documents via the EDGAR system (or any successor electronic filing system), shall be deemed to be delivered to the Trustee as of the time such documents are filed via EDGAR (or such
successor system);
provided
,
further
, that if at any time Parent is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, it will file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such of the supplementary and periodic information, documents and reports that may be required pursuant to Section 13 of the Exchange Act, in respect of a debt security listed and
registered on a national securities exchange as may be prescribed from time to time in such rules and regulations. The Trustee shall have no obligation whatsoever to determine whether or not such information, documents or reports have been filed via
the EDGAR system (or such successor system).
49
(b) If this Indenture is qualified under the Trust Indenture Act, the Company and each
Guarantor will comply with Section 314(a) of the Trust Indenture Act, to the extent applicable.
(c) Delivery of any information,
documents and reports to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein,
including the Company’s or the Guarantors’ compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates).
ARTICLE 8
CONSOLIDATION, MERGER,
CONVEYANCE, TRANSFER OR LEASE
Section 8.01
Company May Consolidate, Etc., Only on Certain Terms
.
The Company shall not in any transaction or series of transactions, consolidate with or merge into any other Person, or sell, assign, convey,
transfer, lease or otherwise dispose of all or substantially all of its assets to any other Person, unless:
(a) either: (i) the
Company shall be the continuing Person; or (ii) the Person (if other than the Company), formed by such consolidation or into which the Company is merged, or the Person that acquires, by sale, assignment, conveyance, transfer, lease or other
disposition, all or substantially all of the assets of the Company, shall (1) be a corporation, partnership, limited liability company, trust or similar entity organized and validly existing under the laws of the United States of America, any
state or political subdivision thereof, the District of Columbia, the United Kingdom or any member country of the European Union and (2) expressly assume, by a supplemental indenture, in form reasonably satisfactory to the Trustee, the due and
punctual payment of the principal of (and premium, if any) and interest on all the Securities and the performance or the observance of every covenant of this Indenture on the part of the Company to be performed or observed;
(b) immediately after giving effect to such transaction (including the Incurrence of any Debt in connection with such transaction or
series of transactions), no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have occurred and be continuing (
provided
, that, for the avoidance of doubt, Debt of a Restricted
Subsidiary Incurred prior to such transaction which is assumed by the Company, another Restricted Subsidiary or the Person assuming the Company’s obligations hereunder in connection with such transaction shall be deemed not to be a separate
Incurrence of Debt); and
(c) if, as a result of any such consolidation or merger or such conveyance, transfer or lease, properties
or assets of the Company would become subject to a mortgage, pledge, lien, security interest or other encumbrance which would not be permitted by this Indenture, the Company or such successor Person, as the case may be, shall take such steps as
shall be necessary effectively to secure the Securities equally and ratably with (or prior to) all indebtedness secured thereby; and
50
(d) the Company shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that such consolidation, merger, sale, conveyance, assignment, transfer, lease or other disposition and such supplemental indenture comply with the requirements of this Indenture.
Notwithstanding the foregoing, the provisions of this Section 8.01 shall not apply to any consolidation, merger, sale, conveyance,
assignment, transfer, lease or other disposition of assets between or among the Company and Parent and/or any other Restricted Subsidiary.
Section 8.02
Successor Substituted
.
Upon any consolidation of the Company with, or merger of the Company into, any other Person or any conveyance, transfer or lease of
substantially all of the assets of the Company in accordance with Section 8.01, the successor Person formed by such consolidation or into which the Company is merged or to which such conveyance, transfer or lease is made shall succeed to, and
be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor Person had been named as the Company herein, and thereafter, except in the case of a lease, the predecessor
Person shall be relieved of all obligations and covenants under this Indenture and the Securities.
ARTICLE 9
SUPPLEMENTAL INDENTURES
Section
9.01
Supplemental Indentures
Without Consent of Holders
.
Without the consent of the Holders of any series of
Securities, the Company and, to the extent applicable, each Guarantor, in each case when authorized by a Board Resolution, and the Trustee, at any time and from time to time, may enter into one or more indentures
supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(a) to evidence the succession of another Person to the Company or
any Guarantor and the assumption by any such successor of the covenants of the Company or such Guarantor herein and in the Securities of any series and in the Note Guarantees of any series, as applicable; or
(b) to add to the covenants of the Company or any Guarantor for the benefit of the Holders of all or any series of Securities (and if
such covenants are to be for the benefit of less than all series of Securities, stating that such covenants are expressly being included solely for the benefit of such series) or to surrender any right or power herein conferred upon the Company or
any Guarantor; or
(c) to add any additional Events of Default for the benefit of the Holders of all or any series of Securities (and
if such additional Events of Default are to be for the benefit of less than all series of Securities, stating that such additional Events of Default are expressly being included solely for the benefit of such series); or
(d) to add to or change any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the issuance
of Securities in bearer form, registrable or not registrable as to principal, and with or without interest coupons, or to permit or facilitate the issuance of Securities in uncertificated form; or
51
(e) to add to, change or eliminate any of the provisions of this Indenture in respect of one
or more series of Securities;
provided
that any such addition, change or elimination (i) shall neither (A) apply to any Security of any series created prior to the execution of such supplemental indenture and entitled to the benefit
of such provision nor (B) modify the rights of the Holder of any such Security with respect to such provision or (ii) shall become effective only when there is no such Security Outstanding; or
(f) to secure the Securities or any Note Guarantee; or
(g) to establish the form or terms of Securities of any series as permitted by Sections 2.01 and 3.01; or
(h) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 6.11; or
(i) to cure any ambiguity, to correct or supplement any provision herein or in any supplemental indenture which may be defective or
inconsistent with any other provision herein or in any supplemental indenture, or to make any other provisions with respect to matters or questions arising under this Indenture;
provided
that such action pursuant to this Clause (i) shall
not adversely affect the interests of the Holders of Securities of any series in any material respect; or
(j) to conform this
Indenture or any supplemental indenture to the description of the Securities set forth in any prospectus or prospectus supplement related to such series of Securities; or
(k) to comply with the rules of any applicable securities depositary; or
(l) to comply with any requirements of the Commission in connection with the qualification of the Indenture under the Trust Indenture
Act; or
(m) to add or release a Guarantor as required or permitted by this Indenture.
Section 9.02
Supplemental Indentures
with Consent of Holders
.
With the consent of the Holders of not less than 50% in principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company, the Guarantors and the Trustee, the Company and the Guarantors, in each case when authorized by a Board Resolution, and the Trustee may enter into an indenture
or
indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of modifying in
52
any manner the rights of the Holders of Securities of such series under this Indenture;
provided
,
however
, that no such supplemental indenture shall, without the consent of the
Holder of each Outstanding Security affected thereby:
(a) extend the Stated Maturity of the principal of, or any installment of
principal of or interest on, any Security, or reduce the principal amount thereof or the rate of interest thereon or any premium payable upon the redemption thereof, or reduce the amount of the principal of an Original Issue Discount Security or any
other Security which would be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 5.02, or change any Place of Payment where, or the coin or currency in which, any Security or any premium or interest
thereon is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date), or
(b) reduce the percentage in principal amount of the Outstanding Securities of any series, the consent of whose Holders is required for
any such supplemental indenture, or the consent of whose Holders is required for any waiver (of compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences) provided for in this Indenture, or
(c) modify any of the provisions of this Section, Section 5.13 or Section 10.08, except to increase any such percentage or to
provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Security affected thereby;
provided
,
however
, that this clause shall not be deemed to require
the consent of any Holder with respect to changes in the references to the “
Trustee
” and concomitant changes in this Section and Article 10, or the deletion of this proviso, in accordance with the requirements of Section 6.11
and Section 9.01(h); or
(d) release Parent or Medtronic, Inc. from its obligations in respect of the Note Guarantees or modify the
Note Guarantees of any series other than in accordance with the provisions of this Indenture.
A supplemental indenture which changes or
eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series of Securities, or which modifies the rights of the Holders of Securities of such series with
respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to approve the particular form of any proposed supplemental indenture, but
it shall be sufficient if such Act shall approve the substance thereof.
Section 9.03
Execution of Supplemental Indentures
.
In executing, or accepting the additional trusts created by, any supplemental indenture
permitted by this Article or the
modifications thereby of the trusts created by this Indenture, the Trustee shall receive, and (subject to Section 6.01) shall be fully protected in relying upon, an Officers’ Certificate and an Opinion of Counsel (subject to any
reservations set out therein)
53
stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture and that such supplemental indenture
is the valid and binding obligation of
the Company and any Guarantors party thereto, enforceable against the Company and any Guarantors party thereto in accordance with its terms. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture which affects the
Trustee’s own rights, duties or immunities under this Indenture
or otherwise.
Section 9.04
Effect of Supplemental
Indentures
.
Upon the execution of any supplemental indenture under this Article, this Indenture shall be modified in accordance
therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.
Section 9.05
Conformity with Trust Indenture Act
.
Every supplemental indenture executed pursuant to this Article shall conform to the requirements of the Trust Indenture
Act.
Section 9.06
Reference in Securities to Supplemental Indentures
.
Securities of any series authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture
.
If the Company shall so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture
may be prepared and executed by the Company and any Note Guarantee executed thereon and authenticated and delivered by the Trustee in exchange for Outstanding
Securities of such series.
ARTICLE 10
COVENANTS
Section
10.01
Payment of Principal, Premium and Interest
.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of and any premium and interest on the Securities of that series in accordance with the terms of the Securities and this Indenture. The performance by any Guarantor of the obligations of
the Company under this Section 10.01 shall be deemed to constitute performance thereof by the Company.
Section
10.02
Maintenance of Office or Agency
.
The Company will maintain in each Place of Payment for any series of Securities an
office or agency where Securities of that series may be presented or surrendered for payment, where Securities of that series may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company in respect
of the Securities of that series and this Indenture may be served. The Company will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Company
54
shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served
at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to time rescind such designations;
provided
,
however
, that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain
an office or agency in each Place of Payment for Securities of any series for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office
or agency.
Section 10.03
Money for Securities Payments To Be Held in Trust
.
If the Company shall at any time act as its own Paying Agent with respect to any series of Securities, it will, on or before each due date of
the principal of or any premium or interest on any of the Securities of that series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay the principal and any premium and interest so becoming due until
such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series of Securities, it will, on or prior to each due date of the principal
of or any premium or interest on any Securities of that series, deposit with a Paying Agent a sum sufficient to pay such amount, such sum to be held as provided by the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the Company
will promptly notify the Trustee of its action or failure so to act.
The Company hereby initially appoints
[ ] at its office located at
, Attn: ,
as a Paying Agent.
The Company will cause each Paying Agent for any series of Securities other than the Trustee to execute and deliver to
the Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section, that such Paying Agent will (a) comply with the provisions of the Trust Indenture Act applicable to it as a Paying
Agent and (b) during the continuance of any default by the Company (or any other obligor upon the Securities of that series) in the making of any payment in respect of the Securities of that series, upon the written request of the Trustee,
forthwith pay to the Trustee all sums held in trust by such Paying Agent for payment in respect of the Securities of that series.
The
Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company or such
Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which such sums were held by the Company or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from
all further liability with respect to such money.
55
Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust
for the payment of the principal of or any premium or interest on any Security of any series and remaining unclaimed for two years after such principal, premium or interest has become due and payable shall be paid to the Company on Company Request,
or (if then held by the Company) shall be discharged from such trust; and the Holder of such Security shall thereafter, as an unsecured general creditor, look only to the Company for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease;
provided
,
however
, that the Trustee or such Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in the English language, customarily published on each Business Day and of general circulation in New York that, after a date specified therein, which shall not be less than
30 days from the date of such publication, any unclaimed balance of such money then remaining will be repaid to the Company.
Section
10.04
Statement by Officers as to Default
.
(a) The Company and each Guarantor (to the extent that such Guarantor is so
required under the Trust Indenture Act) shall deliver to the Trustee within 120 days after the end of each fiscal year of Parent a brief certificate (which need not comply with the requirements of the definition of “Officers’
Certificate” set forth herein) from the principal executive, financial or accounting officer of the Company on its behalf as to his or her knowledge of the Company’s and the Guarantors’ compliance with all covenants and agreements
under this Indenture required to be complied with by the Company or such Guarantor. Such certificate need not include a reference to any
non-compliance
that has been fully cured prior to the date as of which
such certificate speaks.
(b) The Company or a Guarantor, as applicable, shall, within 30 days after becoming aware of the occurrence
of an Event of Default, provide the Trustee with an Officers’ Certificate providing notice of and specifying such Event of Default.
Section 10.05
Existence.
Subject to Article 8, each of the Company and the Guarantors will do or cause to be done all things necessary to preserve and keep in full
force and effect its existence, rights (charter and statutory) and franchises;
provided
,
however
, that neither the Company nor any Guarantor shall be required to preserve any such right or franchise if the Board of Directors shall
determine that the preservation thereof is no longer desirable in the conduct of the business of the Company or such Guarantor and that the loss thereof is not disadvantageous in any material respect to the Holders.
Section 10.06
Limitation on Secured Debt
.
(a) Parent will not, and will not permit any Restricted Subsidiary to, Incur any Debt secured by a Lien on any Principal Property, now
owned or hereafter owned by Parent or any Restricted Subsidiary, or any shares of stock or Debt of any Restricted Subsidiary, without effectively providing that the Securities of that series (together with, if Parent shall so determine, any other
Debt of Parent or such Restricted Subsidiary then existing or thereafter created which
56
is not subordinate to the Securities) shall be secured equally and ratably with (or prior to) such secured Debt so long as such secured debt shall be so secured;
provided
that Parent or
any Restricted Subsidiary may Incur Debt secured by Liens without equally and ratably securing the Securities of that series if, on the date of the Incurrence, after giving effect to the Incurrence and to the retirement of any Debt that is
concurrently being retired, the aggregate amount of all outstanding Debt secured by Liens which could not have been incurred, issued, assumed or guaranteed by Parent or a Restricted Subsidiary without equally and ratably securing the Securities of
each series then Outstanding except for the proviso of this paragraph, together with the aggregate amount of Attributable Debt incurred pursuant to Section 10.07(b)(iii), does not at such time exceed 20% of Consolidated Net Tangible Assets of
Parent.
(b) Notwithstanding the foregoing, Parent and, to the extent provided below, any Restricted Subsidiary may Incur Debt
secured by the following Liens (“
Permitted Debt
”):
(i) Liens on any Principal Property acquired (whether by merger,
consolidation, purchase, lease or otherwise), constructed or improved by Parent or any Restricted Subsidiary after the date of the Indenture which are created or assumed prior to, contemporaneously with, or within 360 days after, such acquisition,
construction or improvement, to secure or provide for the payment of all or any part of the cost of such acquisition, construction or improvement (including related expenditures capitalized for federal income tax purposes in connection therewith)
incurred after the date of the Indenture;
(ii) Liens on any property, shares of Capital Stock or Debt existing at the time of
acquisition thereof, whether by merger, consolidation, purchase, lease or otherwise (including Liens on property, shares of Capital Stock or Debt of a Corporation existing at the time such Corporation becomes a Restricted Subsidiary);
(iii) Liens in favor of, or which secure Debt owing to, Parent or any Restricted Subsidiary;
(iv) Liens in favor of the United States or any state thereof, or any department, agency, or instrumentality or political subdivision
thereof, or political entity affiliated therewith, or in favor of any other country, or any political subdivision thereof, to secure partial, progress, advance or other payments, or other obligations, pursuant to any contract or statute, or to
secure any Debt incurred for the purpose of financing all or any part of the cost of acquiring, constructing or improving the property subject to such Liens (including Liens incurred in connection with pollution control, industrial revenue or
similar financings);
(v) Liens imposed by law, such as mechanics’, workmen’s, repairmen’s, materialmen’s,
carriers’, warehousemen’s, vendors’ or other similar Liens arising in the ordinary course of business, or governmental (federal, state or municipal) Liens arising out of contracts for the sale of products or services by Parent or any
Restricted Subsidiary, or deposits or pledges to obtain the release of any of the foregoing;
(vi) pledges or deposits under
workmen’s compensation, unemployment insurance, or similar legislation and Liens of judgments thereunder which are not currently dischargeable, or good faith deposits in connection with bids, tenders, contracts (other than for
57
the payment of money) or leases to which Parent or any Restricted Subsidiary is a party, or deposits to secure public or statutory obligations of Parent or any Restricted Subsidiary, or deposits
in connection with obtaining or maintaining self-insurance or to obtain the benefits of any law, regulation or arrangement pertaining to workmen’s compensation, unemployment insurance, old age pensions, social security or similar matters, or
deposits of cash or obligations of the United States to secure surety, appeal or customs bonds to which Parent or any Restricted Subsidiary is a party, or deposits in litigation or other proceedings such as, but not limited to, interpleader
proceedings;
(vii) Liens created by or resulting from any litigation or other proceeding which is being contested in good faith by
appropriate proceedings, including Liens arising out of judgments or awards against Parent or any Restricted Subsidiary with respect to which Parent or such Restricted Subsidiary is in good faith prosecuting an appeal or proceedings for review; or
Liens incurred by Parent or any Restricted Subsidiary for the purpose of obtaining a stay or discharge in the course of any litigation or other proceeding to which Parent or such Restricted Subsidiary is a party;
(viii) Liens for taxes or assessments or governmental charges or levies not yet due or delinquent, or which can thereafter be paid
without penalty, or which are being contested in good faith by appropriate proceedings;
(ix) Liens consisting of easements,
rights-of-way,
zoning restrictions, restrictions on the use of real property, and defects and irregularities in the title thereto, landlords’ Liens and other similar
Liens and encumbrances none of which interfere materially with the use of the property covered thereby in the ordinary course of the business of Parent or such Restricted Subsidiary and which do not, in the opinion of Parent, materially detract from
the value of such properties;
(x) Liens existing on the first date on which the Securities of that series are authenticated;
(xi) Liens arising solely by virtue of any statutory or common law provision relating to banker’s Liens, rights of setoff or similar
rights and remedies as to deposit accounts or other funds maintained with a creditor depository institution;
provided
that (i) such deposit account is not a dedicated cash collateral account and is not subject to restrictions against
access by Parent or the applicable Restricted Subsidiary in excess of those set forth by regulations promulgated by the Federal Reserve Board and (ii) such deposit account is not intended to provide collateral to the depository institution; or
(xii) any extension, renewal or replacement (or successive extensions, removals or replacements) as a whole or in part, of any Lien
referred to in the foregoing clauses (i) to (xi), inclusive;
provided
that (i) such extension, renewal or replacement Lien shall be limited to all or a part of the same property, shares of stock or Debt that secured the Lien
extended, renewed or replaced (plus improvements on such property) and (ii) the Debt secured by such Lien at such time is not increased.
Section 10.07
Limitation on Sale and Leaseback Transactions
.
58
Parent will not, and will not permit any Restricted Subsidiary to, enter into any Sale and
Leaseback Transaction with respect to any Principal Property unless:
(a) Parent or the Restricted Subsidiary would be entitled to,
without equally and ratably securing the Securities of that series to Incur Debt secured by a Lien on such property pursuant to Section 10.06, or
(b) Parent or a Subsidiary, within 360 days after such transaction, applies an amount not less than the net proceeds of the sale of the
Principal Property leased pursuant to such arrangement to (x) the retirement of its Funded Debt;
provided
that the amount to be applied to the retirement of Funded Debt of Parent shall be reduced by the principal amount of any Securities
of such series delivered within 360 days after such sale to the Trustee for retirement and cancellation, and the principal amount of Funded Debt, other than Securities, voluntarily retired by Parent within 360 days after such sale or (y) the
purchase, construction or development of other property, facilities or equipment used or useful in Parent’s or a Restricted Subsidiary’s business;
provided
,
further
, that:
(i) no such retirement may be effected by payment at maturity or pursuant to any mandatory sinking fund payment or mandatory prepayment
provision;
(ii) no such restriction will apply to a Sale and Leaseback Transaction between Parent and a Restricted Subsidiary or
between Restricted Subsidiaries or involving the taking back of a lease for a period of less than three years; and
(iii) Parent or
any Restricted Subsidiary may enter into a Sale and Leaseback Transaction if, on the date of such transaction, after giving effect thereto and to the retirement of any Funded Debt that is concurrently being retired, the aggregate amount of all
Attributable Debt in respect of Sale and Leaseback Transactions existing at such time (other than Sale and Leaseback Transactions otherwise permitted under this Section 10.07), together with the aggregate amount of all outstanding Debt incurred
pursuant to the first proviso of Section 10.06(a), does not at such time exceed 20% of Consolidated Net Tangible Assets of Parent.
Section 10.08
Waiver of Certain Covenants
.
Except as otherwise specified as contemplated by Section 3.01 for Securities of such series, the Company and/or any Guarantor, as
applicable, may, with respect to the Securities of any series, omit in any particular instance to comply with any term, provision or condition set forth in any covenant provided pursuant to Sections 3.01(r), 9.01(b) or 9.01(g) for the benefit of the
Holders of such series and in Sections 10.06 or 10.07 if before the time for such compliance the Holders of not less than a majority in principal amount of the Outstanding Securities of such series shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such term, provision or condition, but no such waiver shall extend to or affect such term, provision or condition except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company and/or such Guarantor, as applicable, and the duties of the Trustee in respect of any such term, provision or condition shall remain in full force and effect.
59
ARTICLE 11
REDEMPTION OF SECURITIES
Section
11.01
Applicability of Article
.
Securities of any series which are redeemable before their Stated Maturity shall be
redeemable in accordance with their terms and (except as otherwise specified as contemplated by Section 3.01 for such Securities) in accordance with this Article.
Section 11.02
Election To Redeem; Notice to Trustee
.
The election of the Company to redeem any Securities shall be evidenced by a Board Resolution or in another manner specified as contemplated
by Section 3.01 for such Securities. In case of any redemption at the election of the Company of less than all the Securities of any series (including any such redemption affecting only a single Security), the Company shall, at least 40 days
prior to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee of such Redemption Date, of the principal amount of Securities of such series to be redeemed, and, if applicable, of
the tenor of the Securities to be redeemed. In the case of any redemption of Securities prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture, the Company shall furnish
the Trustee with an Officers’ Certificate evidencing compliance with such restriction.
Section 11.03
Selection by Trustee of
Securities To Be Redeemed
.
If less than all the Securities of any series are to be redeemed (unless all the Securities of such series
and of a specified tenor are to be redeemed or unless such redemption affects only a single Security), the particular Securities to be redeemed shall be selected not more than 10 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series not previously called for redemption, by such method as the Trustee shall deem fair and appropriate and which may provide for the selection for redemption of a portion of the principal amount of any Security of such series;
provided
that the unredeemed portion of the principal amount of any Security shall be in an authorized denomination (which shall not be less than the minimum authorized denomination) for such Security. If less than all the Securities of such
series and of a specified tenor are to be redeemed (unless such redemption affects only a single Security), the particular Securities to be redeemed shall be selected not more than 10 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities of such series and specified tenor not previously called for redemption in accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of the Securities selected for redemption as aforesaid and, in case of any Securities
selected for partial redemption as aforesaid, the principal amount thereof to be redeemed.
The provisions of the two preceding paragraphs
shall not apply with respect to any redemption affecting only a single Security, whether such Security is to be redeemed in whole or in part. In the case of any such redemption in part, the unredeemed portion of the principal amount of the Security
shall be in an authorized denomination (which shall not be less than the minimum authorized denomination) for such Security.
60
For all purposes of this Indenture, unless the context otherwise requires, all provisions
relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to be redeemed only in part, to the portion of the principal amount of such Securities which has been or is to be redeemed.
Section 11.04
Notice of Redemption
.
Notice of redemption shall be given by first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days prior to the
Redemption Date, to each Holder of Securities to be redeemed, at his address appearing in the Security Register. An Officer’s Certificate specifying the actual redemption price must be sent to the Trustee no later than five Business Days prior
to the redemption date.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the calculation of the Redemption Price, including the portion thereof representing any accrued interest;
(c) if less than all the Outstanding Securities of any series consisting of more than a single Security are to be redeemed, the
identification (and, in the case of partial redemption of any such Securities, the principal amounts) of the particular Securities to be redeemed and, if less than all the Outstanding Securities of any series consisting of a single Security are to
be redeemed, the principal amount of the particular Security to be redeemed,
(d) that on the Redemption Date the Redemption Price
will become due and payable upon each such Security to be redeemed and, if applicable, that interest thereon will cease to accrue on and after said date,
(e) the place or places where each such Security is to be surrendered for payment of the Redemption Price, and
(f) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of the Company shall be given by the Company or, at the Company’s
written request, by the Trustee in the name and at the expense of the Company.
Section 11.05
Deposit of Redemption Price
.
Prior to any Redemption Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 10.03) an amount of money sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date.
Section 11.06
Securities Payable on Redemption Date
.
61
Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall, on
the Redemption Date, become due and payable at the Redemption Price therein specified, and from and after such date (unless the Company shall default in the payment of the Redemption Price and accrued interest) such Securities shall cease to bear
interest. Upon surrender of any such Security for redemption in accordance with said notice, such Security shall be paid by the Company at the Redemption Price, together with accrued interest to the Redemption Date;
provided
,
however
,
that, unless otherwise specified as contemplated by Section 3.01, installments of interest whose Stated Maturity is on or prior to the Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Record Dates according to their terms and the provisions of Section 3.07.
If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal and any premium shall, until
paid, bear interest from the Redemption Date at the rate prescribed therefor in the Security.
Section 11.07
Securities Redeemed
in Part
.
Any Security which is to be redeemed only in part shall be surrendered at a Place of Payment therefor (with, if the Company
or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute
and each Guarantor shall execute any Note Guarantee thereon, and the Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new Security or Securities of the same series and of like tenor, of any authorized
denomination as requested by such Holder, in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Security so surrendered.
ARTICLE 12
SINKING FUNDS
Section 12.01
Applicability of Article
.
The provisions of this Article shall be applicable to any sinking fund for the retirement of Securities of any series except as otherwise
specified as contemplated by Section 3.01 for such Securities.
The minimum amount of any sinking fund payment provided for by the
terms of any Securities is herein referred to as a “mandatory sinking fund payment”, and any payment in excess of such minimum amount provided for by the terms of such Securities is herein referred to as an “optional sinking fund
payment”. If provided for by the terms of any Securities, the cash amount of any sinking fund payment may be subject to reduction as provided in Section 12.02. Each sinking fund payment shall be applied to the redemption of Securities as
provided for by the terms of such Securities.
Section 12.02
Satisfaction of Sinking Fund Payments with Securities
.
62
The Company (a) may deliver Outstanding Securities of a series (other than any previously
called for redemption) and (b) may apply as a credit Securities of a series which have been redeemed either at the election of the Company pursuant to the terms of such Securities or through the application of permitted optional sinking fund
payments pursuant to the terms of such Securities, in each case in satisfaction of all or any part of any sinking fund payment with respect to any Securities of such series required to be made pursuant to the terms of such Securities as and to the
extent provided for by the terms of such Securities;
provided
that the Securities to be so credited have not been previously so credited. The Securities to be so credited shall be received and credited for such purpose by the Trustee at the
Redemption Price, as specified in the Securities so to be redeemed, for redemption through operation of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly.
Section 12.03
Redemption of Securities for Sinking Fund
.
Not less than 45 days prior to each sinking fund payment date for any Securities, the Company will deliver to the Trustee an Officers’
Certificate specifying the amount of the next ensuing sinking fund payment for such Securities pursuant to the terms of such Securities, the portion thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if any, which
is to be satisfied by delivering and crediting Securities pursuant to Section 12.02 and will also deliver to the Trustee any Securities to be so delivered. Not less than 30 days prior to each such sinking fund payment date, the Trustee shall
select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 11.03 and cause notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided in
Section 11.04. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Sections 11.06 and 11.07.
ARTICLE 13
DEFEASANCE AND
COVENANT DEFEASANCE
Section 13.01
Company
’
s Option To Effect Defeasance or Covenant Defeasance
.
The Company may elect, at its option at any time, to have Section 13.02 or Section 13.03 applied to any Securities or any series of
Securities, as the case may be, designated pursuant to Section 3.01 as being defeasible pursuant to such Section 13.02 or 13.03, in accordance with any applicable requirements provided pursuant to Section 3.01 and upon compliance with
the conditions set forth below in this Article. Any such election shall be evidenced by a Board Resolution or in another manner specified as contemplated by Section 3.01 for such Securities.
Section 13.02 Defeasance and Discharge.
Upon the Company’s exercise of its option (if any) to have this Section applied to any Securities or any series of Securities, as the
case may be, the Company shall be deemed to have been discharged from its obligations with respect to such Securities as provided in this Section on and after the date the conditions set forth in Section 13.04 are satisfied (hereinafter called
“
Defeasance
”). For this purpose, such Defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by such Securities and to have satisfied all its other obligations under such
Securities and this Indenture insofar as such
63
Securities are concerned (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same), subject to the following which shall survive until otherwise
terminated or discharged hereunder: (a) the rights of Holders of such Securities to receive, solely from the trust fund described in Section 13.04 and as more fully set forth in such Section, payments in respect of the principal of and any
premium and interest on such Securities when payments are due, (b) the Company’s obligations with respect to such Securities under Sections 3.04, 3.05, 3.06, 10.02 and 10.03, (c) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and (d) this Article. Subject to compliance with this Article, the Company may exercise its option (if any) to have this Section applied to any Securities notwithstanding the prior exercise of its option (if any) to have
Section 13.03 applied to such Securities.
Section 13.03
Covenant Defeasance
.
Upon the Company’s exercise of its option (if any) to have this Section applied to any Securities or any series of Securities, as the
case may be, (a) the Company shall be released from its obligations under Section 8.01, Sections 10.04 through 10.08, inclusive, and any covenants provided pursuant to Sections 3.01(s), 9.01(b) or 9.01(g) for the benefit of the Holders of
such Securities, and (b) the occurrence of any event specified in Section 5.01(e) (with respect to any of Section 8.01, Sections 10.04 through Section 10.08, inclusive, and any such covenants provided pursuant to Sections 3.01(s),
9.01(b) or 9.01(g)), and Sections 5.01(e) through 5.01(i) shall be deemed not to be or result in an Event of Default, in each case with respect to such Securities as provided in this Section on and after the date the conditions set forth in
Section 13.04 are satisfied (hereinafter called “
Covenant Defeasance
”). For this purpose, such Covenant Defeasance means that, with respect to such Securities, the Company may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such specified Section (to the extent so specified in the case of Section 5.01(d)), whether directly or indirectly by reason of any reference elsewhere herein to any such Section or by
reason of any reference in any such Section to any other provision herein or in any other document, but the remainder of this Indenture and such Securities shall be unaffected thereby.
Section 13.04
Conditions to Defeasance or Covenant Defeasance
.
The following shall be the conditions to the application of Section 13.02 or Section 13.03 to any Securities or any series of
Securities, as the case may be:
(a) The Company shall irrevocably have deposited or caused to be deposited with the Trustee (or
another trustee which satisfies the requirements contemplated by Section 6.09 and agrees to comply with the provisions of this Article applicable to it) as trust funds in trust for the purpose of making the following payments, specifically
pledged as security for, and dedicated solely to, the benefits of the Holders of such Securities, (i) money in an amount, or (ii) U.S. Government Obligations (or Foreign Governmental Obligations, in the case of Securities denominated in a
currency other than U.S. dollars) which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment, money in an amount, or
(iii) a combination thereof, in each case sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which shall
be applied by the Trustee (or any such other qualifying trustee) to pay
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and discharge, (A) the principal of and any premium and interest on such Securities on the respective Stated Maturities and (B) any mandatory sinking fund payments or analogous payments
applicable to the Outstanding Securities of such series on the day on which such payments are due and payable, in accordance with the terms of this Indenture and such Securities. As used herein, “
U.S. Government Obligation
” means
(x) any security which is (i) a direct obligation of the United States of America for the payment of which the full faith and credit of the United States of America is pledged or (ii) an obligation of a Person controlled or supervised
by and acting as an agency or instrumentality of the United States of America the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America, which, in either case (i) or (ii), is not
callable or redeemable at the option of the issuer thereof, and (y) any depositary receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act) as custodian with respect to any U.S. Government Obligation which is specified in
Clause (x) above and held by such bank for the account of the holder of such depositary receipt, or with respect to any specific payment of principal of or interest on any U.S. Government Obligation which is so specified and held;
provided
that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depositary receipt from any amount received by the custodian in respect of the U.S. Government Obligation or
the specific payment of principal or interest evidenced by such depositary receipt. As used herein, “
Foreign Government Obligation
” means, in relation to Securities denominated in a currency other than U.S. dollars, (x) any
security which is (i) a direct obligation of the government that issued such currency for the payment of which full faith and credit of such government is pledged or, with respect to Securities of any series which are denominated in euro, a
direct obligation of any member nation of the European Union for the payment of which obligation the full faith and credit of the respective nation is pledged so long as such nation has a credit rating at least equal to that of the highest rated
member nation of the European Economic Area or (ii) an obligation of a Person controlled or supervised by and acting as an agency or instrumentality for such government, the payment of which is unconditionally guaranteed as a full faith and
credit obligation by such government, which, in either case of (i) or (ii), are not callable or redeemable at the option of the issuer thereof and (y) any depositary receipt issued by a bank (as defined in Section 3(a)(2) of the Securities
Act) as custodian with respect to any Foreign Government Obligation which is specified in clause (x) above and held by such bank for the account of the holder of such depositary receipt, or with respect to any specific payment of principal of
or interest on any Foreign Government Obligation which is so specified and held;
provided
that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depositary receipt
from any amount received by the custodian in respect of the Foreign Government Obligation or the specific payment of principal or interest evidenced by such depositary receipt.
(b) In the event of an election to have Section 13.02 apply to any Securities or any series of Securities, as the case may be, the
Company shall have delivered to the Trustee an Opinion of Counsel stating that (i) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (ii) since the date of this instrument, there has
been a change in the applicable federal income tax law, in either case (i) or (ii) to the effect that, and based thereon such opinion shall confirm that, the Holders of such Securities will not recognize gain or loss for federal income tax
purposes as a result of the deposit, Defeasance and discharge to be effected with respect to such Securities and will be subject to federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit,
Defeasance and discharge were not to occur.
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(c) In the event of an election to have Section 13.03 apply to any Securities or any
series of Securities, as the case may be, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such Securities will not recognize gain or loss for federal income tax purposes as a result of the
deposit and Covenant Defeasance to be effected with respect to such Securities and will be subject to federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit and Covenant Defeasance were
not to occur.
(d) Such Defeasance or Covenant Defeasance shall not cause any Securities of such series then listed on any registered
national securities exchange under the Exchange Act, to be delisted.
(e) No event which is, or after notice or lapse of time or both
would become, an Event of Default with respect to such Securities shall have occurred and be continuing at the time of such deposit or, with regard to any such event specified in Sections 5.01(i) and (j), at any time on or prior to the 90th day
after the date of such deposit (it being understood that this condition shall not be deemed satisfied until after such 90th day).
(f) Such Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest as defined in Section 6.08 and
within the meaning of the Trust Indenture Act (assuming all Securities are in default within the meaning of such Act).
(g) Such
Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any other agreement or instrument to which the Company is a party or by which it is bound.
(h) Such Defeasance or Covenant Defeasance shall not result in the trust arising from such deposit constituting an investment company
within the meaning of the Investment Company Act unless such trust shall be registered under such Act or exempt from registration thereunder.
(i) The Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all
conditions precedent with respect to such Defeasance or Covenant Defeasance have been complied with.
Section 13.05
Deposited
Money and U.S. Government Obligations and Foreign Government Obligations To Be Held in Trust; Miscellaneous Provisions
.
Subject to
the provisions of the last paragraph of Section 10.03, all money, U.S. Government Obligations and Foreign Government Obligations (including the proceeds thereof) deposited with the Trustee or other qualifying trustee (solely for purposes of
this Section and Section 13.06, the Trustee and any such other trustee are referred to collectively as the “
Trustee
”) pursuant to Section 13.04 in respect of any Securities shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Securities and this Indenture, to the payment, either directly or through any such Paying Agent (including the Company acting as
66
its own Paying Agent) as the Trustee may determine, to the Holders of such Securities, of all sums due and to become due thereon in respect of principal and any premium and interest, but money so
held in trust need not be segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the
Trustee against any tax, fee or other charge imposed on or assessed against the U.S. Government Obligations or Foreign Government Obligations deposited pursuant to Section 13.04 or the principal and interest received in respect thereof other
than any such tax, fee or other charge which by law is for the account of the Holders of Outstanding Securities.
Anything in this Article
to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request any money or U.S. Government Obligations or Foreign Government Obligations held by it as provided in Section 13.04 with
respect to any Securities which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required
to be deposited to effect the Defeasance or Covenant Defeasance, as the case may be, with respect to such Securities.
Section
13.06
Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in accordance with this Article with
respect to any Securities by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the obligations under this Indenture and such Securities from which the
Company has been discharged or released pursuant to Section 13.02 or 13.03 shall be revived and reinstated as though no deposit had occurred pursuant to this Article with respect to such Securities, until such time as the Trustee or Paying
Agent is permitted to apply all money held in trust pursuant to Section 13.05 with respect to such Securities in accordance with this Article;
provided
,
however
, that if the Company makes any payment of principal of or any premium
or interest on any such Security following such reinstatement of its obligations, the Company shall be subrogated to the rights (if any) of the Holders of such Securities to receive such payment from the money so held in trust.
ARTICLE 14
GUARANTEES
Section 14.01
Note Guarantee
.
(a) Subject to this Article 14, each Guarantor hereby, jointly and severally, fully and unconditionally guarantees, on a senior basis, to
each Holder and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Securities or the obligations of the Company hereunder or thereunder, that: the principal of and premium, if any,
and interest on the Securities shall be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of and interest on the Securities, if any, if lawful, and all other
obligations of the Company to the Holders or the Trustee hereunder or thereunder shall be promptly paid in full or performed, all in
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accordance with the terms hereof and thereof. Failing payment by the Company when due of any amount so guaranteed or any performance so guaranteed for whatever reason, each Guarantor shall be
jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.
(b) Each Guarantor hereby agrees that its obligations hereunder shall be unconditional, irrespective of the validity, regularity or
enforceability of the Securities or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to
enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby 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 Note Guarantee shall not be discharged except by complete performance of the
obligations contained in the Securities and this Indenture, or pursuant to Section 14.06.
(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 either to the Trustee or such Holder,
this Note Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect.
(d) Each Guarantor agrees
that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the
Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (1) the maturity of the obligations guaranteed hereby may be accelerated as provided in Section 5.02 for the purposes of this Note Guarantee, notwithstanding
any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (2) in the event of any declaration of acceleration of such obligations as provided in Section 5.02, such
obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Note Guarantee. The Guarantors shall have the right to seek contribution from any
non-paying
Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Note Guarantees.
(e) Each Note Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the
Company for liquidation, reorganization, should the Company become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Company’s assets, and shall, to
the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Securities are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be
restored or returned by any obligee on the Securities or the Note Guarantees, whether as a “voidable preference,” “fraudulent transfer” or otherwise, all as though such payment or performance had not been made. In the event that
any payment or any part thereof, is rescinded, reduced, restored or returned, the Securities shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or
returned.
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(f) In case any provision of any Note Guarantee shall be invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
(g) Each
payment to be made by a Guarantor in respect of its Note Guarantee shall be made without
set-off,
counterclaim, reduction or diminution of any kind or nature.
Section 14.02
Limitation on Guarantor Liability
.
Each Guarantor, and by its acceptance of Securities, each Holder, hereby confirms that it is the intention of all such parties that the Note
Guarantee of such Guarantor not constitute a fraudulent transfer or conveyance for purposes of Debtor Relief Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar U.S. federal or state law or law of such
Guarantor’s jurisdiction of organization to the extent applicable to any Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of each Guarantor shall be
limited to the maximum amount as 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 this Article 14, result in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent
conveyance or fraudulent transfer under applicable law. Each Guarantor that makes a payment under its Note Guarantee shall be entitled upon payment in full of all Note Guarantee obligations under this Indenture to a contribution from each other
Guarantor in an amount equal to such other Guarantor’s
pro rata
portion of such payment based on the respective net assets of all the Guarantors at the time of such payment determined in accordance with generally accepted accounting
principles.
Section 14.03
Execution and Delivery
.
(a) To evidence its Note Guarantee set forth in Section 14.01, at the time a series of Securities is executed and delivered, each
Guarantor shall execute a notation of Guarantee substantially in the form set forth in Section 2.07 of Exhibit A hereto, with such modifications as may be deemed necessary by the Company and such Guarantor, on behalf of such Guarantor by an
officer or person holding an equivalent title.
(b) Each Guarantor agrees that its Note Guarantee set forth in Section 14.01
shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Securities.
(c) If an officer whose signature is on this Indenture or a supplemental indenture no longer holds that office at the time the Trustee
authenticates the Security, the Note Guarantees shall be valid nevertheless.
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(d) The delivery of any Security by the Trustee, after the authentication thereof hereunder,
shall constitute due delivery of the Note Guarantee set forth in this Indenture on behalf of the Guarantors.
Section
14.04
Subrogation.
Each Guarantor shall be subrogated to all rights of Holders against the Company in respect of any amounts
paid by any Guarantor pursuant to the provisions of Section 14.01;
provided
that, if an Event of Default has occurred and is continuing, no Guarantor shall be entitled to enforce or receive any payments arising out of, or based upon,
such right of subrogation until all amounts then due and payable by the Company under this Indenture or the Securities shall have been paid in full.
Section 14.05
Benefits Acknowledged
.
Each Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by this Indenture
and that the guarantee and waivers made by it pursuant to its Note Guarantee are knowingly made in contemplation of such benefits.
Section 14.06
Release of Note Guarantees
.
(a) A Note Guarantee by a Guarantor shall be automatically and unconditionally released and discharged, and such Note Guarantee shall
thereupon terminate and be discharged and of no further force and effect, and no further action by such Guarantor, the Company or the Trustee shall be required for the release of such Guarantor’s Note Guarantee:
(1) (A) upon the merger or consolidation of such Guarantor with and into either the Company or any other Guarantor that is the surviving
person in such merger or consolidation, or upon the liquidation of such Guarantor following or concurrently with the transfer of all or substantially all of its assets to either the Company or another Guarantor (and, if applicable, any minority
stockholders of such Guarantor on a pro rata basis according to their ownership interests in such Guarantor); or
(B) upon the
Company exercising its legal defeasance or covenant defeasance options in accordance with Article 13 or the Company’s obligations under this Indenture being discharged in accordance with the terms of this Indenture and the Securities; or
(C) the release or extinguishment of the guarantee by such Guarantor of Debt under all outstanding Guaranteed Bonds, including the
release or extinguishment of such guarantee as a result of the maturity, repayment, retirement, replacement or refinancing of such outstanding Guaranteed Bonds (which release may be simultaneous with the release of the Note Guarantee hereunder);
provided
, that no Event of Default has occurred and is continuing; and
(2) such Guarantor delivering to the Trustee an
Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for in this Indenture relating to such transaction have been complied with.
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(b) At the written request and expense of the Company or the relevant Guarantor, the Trustee
shall execute and deliver such documents prepared by the Company or such Guarantor and reasonably required in order to acknowledge such release, discharge and termination in respect of the applicable Note Guarantee. Neither the Company nor any
Guarantor shall be required to make a notation on the Securities to reflect any Note Guarantee or any such release, termination or discharge.
Section 14.07
Guarantors May Consolidate, Etc., Only on Certain Terms; Successor Substituted
.
(a) No Guarantor shall, in any transaction or series of transactions, consolidate with or merge into any other Person, or sell, assign,
convey, transfer, lease or otherwise dispose of all or substantially all of its assets to any other Person, unless:
(i) either:
(1) such Guarantor shall be the continuing Person; or (2) the Person (if other than such Guarantor), formed by such consolidation or into which the Company is merged, or the Person that acquires, by sale, assignment, conveyance, transfer,
lease or other disposition, all or substantially all of the assets of such Guarantor, shall (A) be a corporation, partnership, limited liability company, trust or similar entity organized and validly existing under the laws of the United States
of America, any state or political subdivision thereof, the District of Columbia, the United Kingdom or any member country of the European Union and (B) expressly assume, by a supplemental indenture, in form reasonably satisfactory to the
Trustee, all obligations of such Guarantor under this Indenture and performance or observance of every covenant of this Indenture on the part of such Guarantor to be performed or observed;
(ii) immediately after giving effect to such transaction (including the Incurrence of any Debt in connection with such transaction or
series of transactions), no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have occurred and be continuing (
provided
, that for the avoidance of doubt, Debt of Parent or any
Restricted Subsidiary Incurred prior to such transaction which is assumed by Parent or any Restricted Subsidiary or the Person assuming such Guarantor’s obligations hereunder in connection with such transaction shall be deemed not to be a
separate incurrence of Debt);
(iii) if, as a result of any such consolidation or merger or such conveyance, transfer or lease,
properties or assets of a Guarantor would become subject to a mortgage, pledge, lien, security interest or other encumbrance which would not be permitted by this Indenture, such Guarantor or such successor Person, as the case may be, shall take such
steps as shall be necessary effectively to secure the Securities equally and ratably with (or prior to) all indebtedness secured thereby; and
(iv) such Guarantor shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, sale, conveyance, assignment, transfer, lease or other disposition and such supplemental indenture comply with the requirements of this Indenture.
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(b) Notwithstanding the foregoing, the provisions of this Section 14.07 shall not apply
to any consolidation, merger, sale, conveyance, assignment, transfer, lease or other disposition of assets between or among a Guarantor and Parent and/or any other Restricted Subsidiary, as the case may be.
(c) Upon any consolidation of a Guarantor with, or merger of a Guarantor into, any other Person or any conveyance, transfer or lease of
substantially all of the assets of a Guarantor in accordance with Section 14.07(a), the successor Person formed by such consolidation or into which such Guarantor is merged or to which such conveyance, transfer or lease is made shall succeed to, and
be substituted for, and may exercise every right and power of, such Guarantor under this Indenture with the same effect as if such successor Person had been named as such Guarantor herein, and thereafter, except in the case of a lease, the
predecessor Person shall be relieved of all obligations and covenants under this Indenture and the Securities.
Section
14.08
Subordination of Note Guarantee.
The obligations of each Guarantor under its Guarantee pursuant to this Article 14 will be junior and subordinated to the Senior Debt of such Guarantor on the same basis as the Securities are junior
and subordinated to Senior Debt of the Company. For the purposes of the foregoing sentence, the Trustee and the Holders will have the right to receive and/or retain payments by any of the Guarantors only at such times as they may receive and/or
retain payments in respect of the Securities pursuant to this Indenture, including Article 14 hereof.
ARTICLE 15
SUBORDINATION OF SECURITIES
Section 15.01
Agreement of Subordination.
The Company covenants and agrees, and each Holder by its acceptance thereof likewise
covenants and agrees, that all Securities shall be issued subject to the provisions of this Article 15; and each holder of Securities issued hereunder, whether upon original issue or upon transfer or assignment thereof, accepts and agrees to be
bound by such provisions.
The payment of the principal of, premium (if any) and interest on all Securities issued hereunder shall, to the
extent and in the manner hereinafter set forth, be subordinated and subject in right of payment to the prior payment in full of all Senior Debt of the Company, whether outstanding at the date of this Indenture or thereafter incurred.
The provisions of this Article 15 define the subordination of the Securities, as obligations of the Company, with respect to Senior Debt of
the Company. No provision of this Article 15 shall prevent the occurrence of any default or Event of Default hereunder.
Section
15.02
Payments to Holders.
In the event and during the continuation of any default in the payment of principal, premium (if any), interest or any other payment due on any Senior Debt of the Company continuing beyond the period of grace,
if any, specified in the instrument or lease evidencing such Senior Debt of the Company, then, unless and until such default shall have been cured or waived or shall have ceased to exist, no payment shall be made by the Company with respect to the
principal of or interest on the Securities from monies deposited with the Trustee pursuant thereto prior to the happening of such default.
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Upon any payment by the Company, or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, to creditors upon any dissolution or
winding-up
or liquidation or reorganization of the Company, whether voluntary or involuntary or in bankruptcy,
insolvency, receivership or other proceedings, all amounts due or to become due upon all Senior Debt of the Company shall first be paid in full, or payment thereof provided for in money in accordance with its terms, before any payment is made on
account of the principal of, premium (if any) or interest on the Securities (except payments made pursuant to Article 4 hereof from monies deposited with the Trustee pursuant thereto prior to the occurrence of such dissolution,
winding-up,
liquidation or reorganization); and upon any such dissolution or
winding-up
or liquidation or reorganization any payment by the Company, or distribution of assets
of the Company of any kind or character, whether in cash, property or securities, to which the holders of the Securities or the Trustee would be entitled, except for the provisions of this Article 15, shall (except as aforesaid) be paid by the
Company or by any receiver, trustee in bankruptcy, liquidating trustee, agent or other Person making such payment or distribution, or by the holders of the Securities or by the Trustee under this Indenture if received by them or it, directly to the
holders of Senior Debt of the Company (pro rata to such holders on the basis of the respective amounts of Senior Debt of the Company held by such holders, as calculated by the Company) or their representative or representatives, or to the trustee or
trustees under any indenture pursuant to which any instruments evidencing any Senior Debt of the Company may have been issued, as their respective interests may appear, to the extent necessary to pay all Senior Debt of the Company in full, in money
or money’s worth, after giving effect to any concurrent payment or distribution to or for the holders of Senior Debt of the Company, before any payment or distribution is made to the holders of the Securities or to the Trustee.
In the event that, notwithstanding the foregoing, any payment or distribution of assets of the Company of any kind or character, whether in
cash, property or securities, prohibited by the foregoing, shall be received by the Trustee or the holders of the Securities before all Senior Debt of the Company is paid in full, or provision is made for such payment in money in accordance with its
terms, such payment or distribution shall be held in trust for the benefit of and shall be paid over or delivered to the holders of Senior Debt of the Company or their representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing any Senior Debt of the Company may have been issued, as their respective interests may appear, as calculated by the Company, for application to the payment of all Senior Debt of the Company
remaining unpaid to the extent necessary to pay all Senior Debt of the Company in full in money in accordance with its terms, after giving effect to any concurrent payment or distribution to or for the holders of such Senior Debt.
For purposes of this Article 15, the words, “cash, property or securities” shall not be deemed to include shares of stock of the
Company as reorganized or readjusted, or securities of the Company or any other Person provided for by a plan of reorganization or readjustment, the payment of which is subordinated at least to the extent provided in this Article 15 with respect to
the Securities to the payment of all Senior Debt of the Company which may at the time be outstanding;
provided
that (i) the Senior Debt of the Company is assumed by the new Person, if any, resulting from any such reorganization or
readjustment, and (ii) the rights of the holders of the Senior Debt of the Company (other than leases) and of leases which are assumed are not, without the consent of such holders, altered by such reorganization or readjustment.
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The consolidation of the Company with, or the merger of the Company into, another Person or the
liquidation or dissolution of the Company following the conveyance or transfer of its property as an entirety, or substantially as an entirety, to another Person upon the terms and conditions provided for in Article 8 shall not be deemed a
dissolution,
winding-up,
liquidation or reorganization for the purposes of this Section 15.02 if such other Person shall, as a part of such consolidation, merger, conveyance or transfer, comply with the
conditions stated in Article 8 hereof.
Section 15.03
Subrogation of Securities.
Subject to the payment in full of all Senior
Debt of the Company, the rights of the holders of the Securities shall be subrogated to the rights of the holders of Senior Debt of the Company to receive payments or distributions of cash, property or securities of the Company applicable to the
Senior Debt of the Company until the principal of, premium (if any) and interest on the Securities shall be paid in full; and, for the purposes of such subrogation, no payments or distributions to or for the benefit of the holders of the Senior Debt
of the Company or the Trustee of any cash, property or securities to which the holders of the Securities or the Trustee would be entitled except for the provisions of this Article 15, shall, as between the Company, its creditors other than holders
of Senior Debt of the Company, and the holders of the Securities, be deemed to be a payment by the Company to or on account of the Senior Debt of the Company. It is understood that the provisions of this Article 15 are and are intended solely for
the purpose of defining the relative rights of the holders of the Securities, on the one hand, and the holders of the Senior Debt of the Company, on the other hand.
Nothing contained in this Article 15 or elsewhere in this Indenture or in the Securities is intended to or shall impair, as between the
Company, its creditors other than the holders of its Senior Debt, and the holders of the Securities, the obligation of the Company, which is absolute and unconditional, to pay to the holders of the Securities the principal of and interest on the
Securities as and when the same shall become due and payable in accordance with their terms, or is intended to or shall affect the relative rights of the holders of the Securities and creditors of the Company other than the holders of its Senior
Debt, nor shall anything herein or therein prevent the Trustee or the holder of any Security from exercising all remedies otherwise permitted by applicable law upon default under this Indenture, subject to the rights, if any, under this Article 15
of the holders of Senior Debt of the Company in respect of cash, property or securities of the Company received upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Company referred to in this Article 15, the Trustee, subject to the provisions of
Section 6.01, and the holders of the Securities shall be entitled to rely upon any order or decree made by any court of competent jurisdiction in which such dissolution,
winding-up,
liquidation or
reorganization proceedings are pending, or a certificate of the receiver, trustee in bankruptcy, liquidating trustee, agent or other Person making such payment or distribution, delivered to the Trustee or to the holders of the Securities, for the
purpose of ascertaining the Persons entitled to participate in such distribution, the holders of the Senior Debt and other indebtedness of the Company, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all
other facts pertinent thereto or to this Article 15.
74
Section 15.04
Authorization by Holder.
Each holder of a Security by its acceptance
thereof authorizes and directs the Trustee on its behalf to take such action as may be necessary or appropriate to effectuate the subordination provided in this Article 15 appoints the Trustee its
attorney-in-fact
for any and all such purposes.
Section 15.05
Notice to Trustee.
The
Company shall give promptly written notice to a Responsible Officer of the Trustee of any fact known to the Company which would prohibit the making of any payment of monies to or by the Trustee in respect of the Securities pursuant to the provisions
of this Article 15. Notwithstanding the provisions of this Article 15 or any other provision of this Indenture, the Trustee shall not be charged with knowledge of the existence of any facts which would prohibit the making of any payment of monies to
or by the Trustee in respect of the Securities pursuant to the provisions of this Article 15, unless and until a Responsible Officer of the Trustee shall have received written notice thereof at the Corporate Trust Office of the Trustee from the
Company or a holder or holders of Senior Debt of the Company or from any trustee therefor; and before the receipt of any such written notice, the Trustee, subject to the provisions of Section 6.01, shall be entitled in all respects to assume
that no such facts exist;
provided
that if on a date not fewer than three Business Days prior to the date upon which by the terms hereof any such monies may become payable for any purpose (including, without limitation, the payment of the
principal of or interest on any Security) the Trustee shall not have received, with respect to such monies, the notice provided for in this Section 15.05, then, anything herein contained to the contrary notwithstanding, the Trustee shall have
full power and authority to receive such monies and to apply the same to the purpose for which they were received, and shall not be affected by any notice to the contrary which may be received by it on or after such prior date.
The Trustee conclusively shall be entitled to rely on the delivery to it of a written notice by a Person representing himself to be a holder
of Senior Debt of the Company (or a trustee on behalf of such holder) to establish that such notice has been given by a holder of Senior Debt of the Company or a trustee on behalf of any such holder or holders. In the event that the Trustee
determines in good faith that further evidence is required with respect to the right of any Person as a holder of Senior Debt of the Company to participate in any payment or distribution pursuant to this Article 15, the Trustee may request such
Person to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of Senior Debt of the Company held by such Person, the extent to which such Person is entitled to participate in such payment or distribution and any other
facts pertinent to the rights of such Person under this Article 15, and if such evidence is not furnished the Trustee may defer any payment to such Person pending judicial determination as to the right of such Person to receive such payment.
Section 15.06
Trustee
’
s Relation to Senior Debt.
The Trustee in its individual capacity shall be entitled to
all the rights set forth in this Article 15 in respect of any Senior Debt of the Company at any time held by it, to the same extent as any other holder of Senior Debt of the Company and nothing elsewhere in this Indenture shall deprive the Trustee
of any of its rights as such holder.
With respect to the holders of Senior Debt of the Company, the Trustee undertakes to perform or to
observe only such of its covenants and obligations as are specifically set forth in this Article 15, and no implied covenants or obligations with respect to the holders of Senior
75
Debt of the Company shall be read into this Indenture against the Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior Debt of the Company and the Trustee
shall not be liable to any holder of Senior Debt of the Company if it shall pay over or deliver to holders of Securities, the Company or any other Person money or assets to which any holder of Senior Debt of the Company shall be entitled by virtue
of this Article 15 or otherwise.
Section 15.07
No Impairment of Subordination.
No right of any present or future holder of
any Senior Debt of the Company to enforce subordination as herein provided shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or by any act or failure to act, in good faith, by any such
holder, or by any noncompliance by the Company with the terms, provisions and covenants of this Indenture, regardless of any knowledge thereof which any such holder may have or otherwise be charged with.
Section 15.08
Rights of Trustee.
Nothing in this Article 15 shall apply to claims of or payments to, the Trustee pursuant to
Section 6.03.
ARTICLE 16
ADDITIONAL AMOUNTS; CERTAIN TAX PROVISIONS
Section 16.01
Redemption Upon Changes in Withholding Taxes
.
Unless otherwise provided pursuant to Section 3.01, the Securities of any series may be redeemed, as a whole but not in part, at the
option of the Company, upon not less than 30 nor more than 60 days’ notice (which notice shall be irrevocable), at a redemption price equal to 100% of the principal amount thereof, together with accrued interest, if any, to the redemption date
and Additional Amounts (as defined in Section 16.02), if any, if as a result of any amendment to, or change in, the laws, regulations, rulings or treaties of Luxembourg, the United States or other jurisdiction in which the Company or any
Guarantor or, in each case, any successor thereof (including a continuing Person formed by a consolidation with the Company or any Guarantor, into which the Company or such Guarantor is merged, or that acquires or leases all or substantially all of
the property and assets of the Company or such Guarantor) may be organized, as applicable, or any political subdivision thereof or therein having the power to tax (a “
Taxing Jurisdiction
”), or any change in the application or
official interpretation of such laws, regulations, rulings or treaties, including any action taken by, or change in the published administrative practice of, a taxing authority or a holding by a court of competent jurisdiction (regardless of whether
such action, change or holding is with respect to the Company or a Guarantor), which amendment or change is announced or becomes effective on or after the date the Securities of such series are issued, the Company or such Guarantor has become, or
there is a material probability that it will become, obligated to pay Additional Amounts on the next date on which any amount would be payable with respect to the Securities of such series, and such obligation cannot be avoided by the use of
commercially reasonable measures available to the Company or such Guarantor, as the case may be, not including substitution of the obligor on the Securities;
provided
,
however
, that no such notice of redemption may be given earlier
than 60 days prior to the earliest date on which the Company or any Guarantor, as the case may be, would be obligated, or there is a material probability the Company or Guarantor would otherwise be obligated, to pay such Additional Amount. Prior to
the publication or, where relevant, mailing (and/or to the extent permitted by applicable procedures or regulations, electronic
76
delivery) of any notice of redemption described in this paragraph, the Company shall deliver to the Trustee (i)(A) an Officer’s Certificate of the Company stating that the obligation to pay
Additional Amounts cannot be avoided by the Company taking commercially reasonable measures available to it or (B) an Officer’s Certificate of the applicable Guarantor stating that the obligation to pay Additional Amounts cannot be avoided
by such Guarantor taking commercially reasonable measures available to it, as the case may be, as described above, and (ii) a written opinion of independent tax counsel to the Company or the applicable Guarantor, as the case may be, of
recognized standing to the effect that the Company or the applicable Guarantor, as the case may be, has or there is a material probability that it will become obligated to pay Additional Amounts as a result of a change, amendment, official
interpretation or application described above and that the Company or the applicable Guarantor, as the case may be, cannot avoid the payment of such Additional Amounts by taking commercially reasonable measures available to it as described above.
Section 16.02
Payment of Additional Amounts
.
All payments made by the Company or any Guarantor under or with respect to the Securities and any Note Guarantee will be made free and clear
of and without withholding or deduction for or on account of any present or future taxes, duties, levies, imposts, assessments or governmental charges of whatever nature imposed or levied by or on behalf of any Taxing Jurisdiction
(“
Taxes
”), unless the Company or any Guarantor, as the case may be, is required to withhold or deduct Taxes by law or by the interpretation or administration thereof. In the event that the Company or any Guarantor is required to so
withhold or deduct any amount for or on account of any Taxes from any payment made under or with respect to the Securities or the Note Guarantee, as the case may be, the Company or the applicable Guarantor, as the case may be, will pay such
additional amounts (“
Additional Amounts
”) as may be necessary so that the net amount received by each holder of Securities (including Additional Amounts) after such withholding or deduction will equal the amount that such Holder
would have received if such Taxes had not been required to be withheld or deducted;
provided
that no Additional Amounts will be payable with respect to a payment to a holder of Securities or a holder of beneficial interests in Global
Securities where such holder is subject to taxation on such payment by a relevant Taxing Jurisdiction for any reason other than such holder’s mere ownership of the Securities or for or on account of:
(a) any Taxes that are imposed or withheld solely because such holder (or the beneficial owner for whose benefit such holder holds such
Securities) or a fiduciary, settlor, beneficiary, member, shareholder or other equity owner of, or possessor of a power over, such holder (or beneficial owner) if such holder (or beneficial owner) is an estate, trust, partnership, limited liability
company, corporation or other entity:
(1) is or was present or engaged in, or is or was treated as present or engaged in,
a trade or business in the Taxing Jurisdiction or has or had a permanent establishment in the Taxing Jurisdiction (in each case, other than the mere fact of ownership of such Securities, without another presence or business in such Taxing
Jurisdiction);
(2) has or had any present or former connection (other than the mere fact of ownership of such Securities)
with the Taxing Jurisdiction imposing such Taxes,
77
including being or having been a national citizen or resident thereof, being treated as being or having been a resident thereof or being or having been physically present therein;
(3) with respect to any withholding Taxes imposed by the United States, is or was with respect to the United States a personal
holding company, a passive foreign investment company, a controlled foreign corporation, a foreign private foundation or other foreign tax exempt organization or corporation that has accumulated earnings to avoid United States federal income tax;
(4) actually or constructively owns or owned 10% or more of the total combined voting power of all classes of stock of the
Company or the applicable Guarantor within the meaning of Section 871(h)(3) of the Code; or
(5) is or was a bank receiving
payments on an extension of credit made pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3) of the Code.
(b) any estate, inheritance, gift, sales, transfer, excise, personal property or similar Taxes imposed with respect to the Securities,
except as otherwise provided herein;
(c) any Taxes imposed solely as a result of the presentation of such Securities (where
presentation is required) for payment on a date more than 15 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the beneficiary or
holder thereof would have been entitled to the payment of Additional Amounts had the Securities been presented for payment on any date during such
15-day
period;
(d) any Taxes imposed or withheld solely as a result of the failure of such holder or any other person to comply with applicable
certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connection with the Taxing Jurisdiction of such holder, if such compliance is required by statute, regulation, ruling or
administrative practice of the relevant Taxing Jurisdiction or by any applicable tax treaty to which the relevant Taxing Jurisdiction is a party as a precondition to relief or exemption from such Taxes;
(e) with respect to withholding Taxes imposed by the United States, any such Taxes imposed by reason of the failure of such holder to
fulfill the statement requirements of sections 871(h) or 881(c) of the Code;
(f) any Taxes that are payable by any method other than
withholding or deduction by the Company or a Guarantor or any paying agent from payments in respect of such Securities;
(g) any
Taxes required to be withheld by any paying agent from any payment in respect of any Securities if such payment can be made without such withholding by at least one other paying agent;
78
(h) any withholding or deduction for Taxes which would not have been imposed if the relevant
Securities had been presented to another paying agent in a country that is a member of the European Union as of the date of this Indenture;
(i) any withholding or deduction required pursuant to sections 1471 through 1474 of the Code, any regulations or agreements thereunder,
official interpretations thereof, any intergovernmental agreement, or any law, rule, guidance or administrative practice implementing an intergovernmental agreement entered into in connection with such sections of the Code or;
(j) any combination of Section 16.02(a), (b), (c), (d), (e), (f), (g), (h) or (i).
Additional Amounts also will not be payable to any Holder or the holder of a beneficial interest in a Global Security that is a fiduciary,
partnership, limited liability company or other fiscally transparent entity, or to such holder that is not the sole Holder or holder of such beneficial interests of such Security, as the case may be. This exception, however, will apply only to the
extent that a beneficiary or settlor with respect to the fiduciary, or a beneficial owner or member of the partnership, limited liability company or other fiscally transparent entity, would not have been entitled to the payment of an Additional
Amount had the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment.
The Company or the applicable Guarantor, as the case may be, will also (i) make such withholding or deduction of Taxes and
(ii) remit the full amount of Taxes so deducted or withheld to the relevant Taxing Jurisdiction in accordance with all applicable laws. The Company or the applicable Guarantor, as the case may be, will use its commercially reasonable efforts to
obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxes. The Company or the applicable Guarantor, as the case may be, will, upon request, make available to
the holders of the Securities, within 90 days after the date the payment of any Taxes so deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Company or the applicable Guarantor or
if, notwithstanding the Company’s or the applicable Guarantor’s efforts to obtain such receipts, the same are not obtainable, other evidence of such payments by the Company or the applicable Guarantor.
At least 30 days prior to each date on which any payment under or with respect to the Securities or the Note Guarantee is due and payable, if
the Company or a Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Company or the applicable Guarantor will deliver to the Trustee an Officers’ Certificate stating the fact that such Additional Amounts will
be payable and the amounts so payable and will set forth such other information as is necessary to enable such Trustee to pay such Additional Amounts to holders of Securities on the payment date.
In addition, the Company will pay any stamp, issue, registration, documentary or other similar taxes and duties, including interest, penalties
and Additional Amounts with respect thereto, payable in Luxembourg or the United States or any political subdivision or taxing authority of or in the foregoing in respect of the creation, issue, offering, enforcement, redemption or retirement of the
Securities.
79
The provisions of this Article 16 shall survive any termination of the discharge of this
Indenture and shall apply
mutatis mutandis
to any jurisdiction in which the Company or a Guarantor or any successor Person to the Company or a Guarantor, as the case may be, is organized or is engaged in business for tax purposes or any
political subdivisions or taxing authority or agency thereof or therein;
provided
,
however
, the date on which the Company or the applicable Guarantor changes its jurisdiction in which it is organized or such Person becomes a successor
to the Company or the applicable Guarantor, as the case may be, shall be substituted for the date on which the series of Securities was issued.
Whenever in this Indenture, the Securities or the Note Guarantee there is mentioned, in any context, the payment of principal and premium, if
any, redemption price, interest or any other amount payable under or with respect to any Security, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were
or would be payable in respect thereof.
* * *
This instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument. The exchange of copies of this instrument and of signature pages by facsimile or.pdf transmission shall constitute effective execution and delivery of this instrument as to the
parties hereto and may be used in lieu of the original instrument for all purposes. Signatures of the parties hereto transmitted by facsimile or .pdf shall be deemed to be their original signatures for all purposes.
80
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of the
day and year first above written.
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MEDTRONIC GLOBAL HOLDINGS
S.C.A.,
as Issuer
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By:
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Name:
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Title:
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MEDTRONIC PUBLIC LIMITED
COMPANY,
as Guarantor
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By:
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Name:
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Title:
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MEDTRONIC, INC., as Guarantor
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By:
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Name:
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Title:
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[ ], as Trustee
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By:
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Name:
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Title:
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[
Signature Page to Indenture
]
81
Exhibit 5.1
+1 212 230 8800 (t)
+1 212 230 8888 (f)
wilmerhale.com
February 3, 2017
Medtronic Public Limited Company
20 Lower Hatch Street
Dublin 2, Ireland
Medtronic Global Holdings S.C.A.
3b, boulevard Prince Henri
L-1724
Luxembourg
Medtronic, Inc.
710 Medtronic Parkway
Minneapolis, MN 55432
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Re:
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Registration Statement on Form
S-3
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Ladies and Gentlemen:
This opinion is furnished to you in connection with a Registration Statement on Form
S-3
(the “Registration
Statement”) filed by Medtronic Public Limited Company, a public limited company organized under the laws of Ireland (the “Company”), Medtronic Global Holdings S.C.A., a partnership limited by shares (
société en
commandite par actions
) organized under the laws of the Grand Duchy of Luxembourg (“Medtronic Luxco”), and Medtronic, Inc., a Minnesota corporation (“Medtronic, Inc.”), with the Securities and Exchange Commission (the
“Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), for the registration of the following securities of the Company, Medtronic Luxco and Medtronic, Inc. (the “Securities”):
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(i)
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senior debt securities of Medtronic Luxco (the “Medtronic Luxco Senior Debt Securities”);
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(ii)
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subordinated debt securities of Medtronic Luxco (the “Medtronic Luxco Subordinated Debt Securities” and, together with the Medtronic Luxco Senior Debt Securities, the “Medtronic Luxco Debt
Securities”);
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(iii)
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senior debt securities of Medtronic, Inc. (the “Medtronic, Inc. Debt Securities”);
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(iv)
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guarantees by the Company of the Medtronic Luxco Debt Securities and Medtronic, Inc. Debt Securities (collectively, the “Company Debt Guarantees”);
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(v)
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guarantees by Medtronic Luxco of the Medtronic, Inc. Debt Securities (the “Medtronic Luxco Debt Guarantees”); and
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(vi)
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guarantees by Medtronic, Inc. of the Medtronic Luxco Debt Securities (the “Medtronic, Inc. Debt Guarantees”),
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Medtronic Public Limited Company
Medtronic Global Holding S.C.A.
Medtronic, Inc.
February 3, 2017
Page
2
all of which may be issued from time to time on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act at an indeterminate aggregate initial offering price, as set forth in the Registration Statement, the prospectus contained therein (the “Prospectus”) and any amendments or supplements thereto.
We are acting as U.S. counsel for the Company, Medtronic Luxco and Medtronic, Inc. in connection with the filing of the Registration Statement. The Medtronic
Luxco Senior Debt Securities and the guarantees thereof may be issued pursuant to a senior indenture in the form of Exhibit 4.1 to the Registration Statement to be entered into among Medtronic Luxco, as issuer, the Company and Medtronic, Inc., as
guarantors, and Wells Fargo Bank, National Association, as trustee (the “Trustee”), which Trustee has been duly qualified under the Trust Indenture Act of 1939, as amended; the Medtronic Luxco Subordinated Debt Securities and the
guarantees thereof may be issued pursuant to a subordinated indenture in the form of Exhibit 4.3 to the Registration Statement to be entered into among Medtronic Luxco, as issuer, the Company and Medtronic, Inc., as guarantors, and a trustee to be
named; and the Medtronic, Inc. Debt Securities and the guarantees thereof may be issued pursuant to the senior indenture filed as Exhibit 4.5 to the Registration Statement, dated as of December 10, 2014 (as amended and supplemented as of the
date hereof, the “Medtronic, Inc. Indenture”) between Medtronic, Inc. and the Trustee, as amended by a supplemental indenture filed as Exhibit 4.6 to the Registration Statement, dated as of December 10, 2014 between Medtronic, Inc.
and the Trustee, a supplemental indenture filed as Exhibit 4.7 to the Registration Statement, dated as of January 26, 2015 between the Company and the Trustee and a supplemental indenture filed as Exhibit 4.8 to the Registration Statement,
dated as of January 26, 2015 between Medtronic Luxco and the Trustee (each, an “Indenture,” and collectively, the “Indentures”).
We have examined and relied upon signed copies of the Registration Statement to be filed with the Commission, including the exhibits thereto. We have also
examined and relied upon the corporate minute books of Medtronic, Inc. as provided to us by Medtronic, Inc., the Amended and Restated Articles of Incorporation of Medtronic, Inc. and the Bylaws of Medtronic, Inc. (as amended as of the date hereof).
For purposes of this opinion, we have also examined and relied without investigation upon the accuracy of (i) the opinion letter of A&L Goodbody, Irish counsel for the Company, dated the date hereof and filed as Exhibit 5.2 to the
Registration Statement; (ii) the opinion letter of Allen & Overy,
soci
é
t
é
en
commandite
simple
(
inscrite
au
barreau
de Luxembourg
), special
Luxembourg counsel for Medtronic Luxco dated the date hereof and filed as Exhibit 5.3 to the Registration Statement; and (iii) the opinion letter of Thomas L. Osteraas, Principal Legal Counsel, Corporate & Securities of Medtronic,
Inc., dated the date hereof and filed as Exhibit 5.4 to the Registration Statement.
In our examination of the documents described above, we have assumed
the genuineness of all signatures, the legal capacity of all individual signatories, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as copies, the authenticity of
such original documents and the completeness and accuracy of the corporate minute books of Medtronic, Inc. provided to us by Medtronic, Inc.
Medtronic Public Limited Company
Medtronic Global Holding S.C.A.
Medtronic, Inc.
February 3, 2017
Page
3
We have relied as to certain matters on information obtained from public officials and officers of the
Company, Medtronic Luxco and Medtronic, Inc., and we have assumed that: (i) one or more prospectus supplements will be prepared and filed with the Commission describing the Securities offered thereby; (ii) all Securities will be issued and
sold in compliance with applicable federal and state securities laws and in the manner stated in the Registration Statement, the Prospectus and the applicable prospectus supplement; (iii) (a) the applicable Indenture will be duly authorized,
executed and delivered by all parties thereto and (b) any supplemental indenture relating to a series of Medtronic Luxco Debt Securities or Medtronic, Inc. Debt Securities, as applicable, will be duly authorized, executed and delivered by the
parties named therein; (iv) the Trustee will be duly eligible to serve as trustee; (v) the Medtronic Luxco Debt Securities and the Medtronic, Inc. Debt Securities, as applicable, will be duly authenticated by the Trustee; (vi) a
definitive purchase, underwriting or similar agreement with respect to any Securities offered will be duly authorized, executed and delivered by all parties thereto other than the Company; (vii) the Company will be validly existing as a public
limited company and in good standing under the laws of Ireland; (viii) Medtronic Luxco will be validly existing as a partnership limited by shares and in good standing under the laws of the Grand-Duchy of Luxembourg; and (ix) Medtronic,
Inc. will be validly existing as a corporation and in good standing under the laws of the State of Minnesota.
We are expressing no opinion herein as to
the application of any federal or state law or regulation to the power, authority or competence of any party to any agreement with respect to any of the Securities. We have assumed that such agreements are, or will be, the valid and binding
obligations of each party thereto other than the Company, Medtronic Luxco and Medtronic, Inc., and enforceable against each such other party in accordance with their respective terms.
We have assumed for purposes of our opinions below that no authorization, approval or other action by, and no notice to or filing with, any governmental
authority or regulatory body or any other third party is required for the due execution, delivery or performance by the Company, Medtronic Luxco or Medtronic, Inc., or, if any such authorization, approval, consent, action, notice or filing is
required, it will have been duly obtained, taken, given or made and will be in full force and effect.
We have also assumed that there will not have
occurred, prior to the date of issuance of the Securities, any change in law affecting the validity or enforceability of such Securities and that at the time of the issuance and sale of the Securities, the Board of Directors of the Company, the
general partner of Medtronic Luxco or the Board of Directors of Medtronic, Inc. (or any person or persons acting pursuant to authority properly delegated to such person or persons) shall not have taken any action to rescind or otherwise reduce its
prior authorization of the issuance of the Securities.
Our opinions below are qualified to the extent that they may be subject to or affected by
(i) applicable bankruptcy, insolvency, reorganization, moratorium, usury, fraudulent conveyance or similar laws relating to or affecting the rights or remedies of creditors generally; (ii) duties and standards imposed on creditors and
parties to contracts, including, without limitation, requirements of
Medtronic Public Limited Company
Medtronic Global Holding S.C.A.
Medtronic, Inc.
February 3, 2017
Page
4
materiality, good faith, reasonableness and fair dealing; and (iii) general equitable principles. Furthermore, we express no opinion as to the availability of any equitable or specific
remedy upon any breach of any of the agreements as to which we are opining herein, or any of the agreements, documents or obligations referred to therein, or to the successful assertion of any equitable defenses, inasmuch as the availability of such
remedies or the success of any equitable defenses may be subject to the discretion of a court. We express no opinion herein as to the laws of any state or jurisdiction other than the state laws of the State of New York. We also express no opinion
herein with respect to compliance by the Company, Medtronic Luxco or Medtronic, Inc. with the securities or “blue sky” laws of any state or other jurisdiction of the United States or of any foreign jurisdiction. In addition, we express no
opinion and make no statement herein with respect to the antifraud laws of any jurisdiction.
We also express no opinion herein as to any provision of any
agreement (i) that may be deemed to or construed to waive any right of the Company, Medtronic Luxco or Medtronic, Inc., (ii) to the effect that rights and remedies are not exclusive, that every right or remedy is cumulative and may be
exercised in addition to or with any other right or remedy and does not preclude recourse to one or more other rights or remedies, (iii) relating to the effect of invalidity or unenforceability of any provision of any agreement on the validity
or enforceability of any other provision thereof, (iv) that is in violation of public policy, (v) relating to indemnification and contribution with respect to securities law matters, (vi) which provides that the terms of any agreement
may not be waived or modified except in writing, (vii) purporting to indemnify any person against his, her or its own negligence or intentional misconduct, (viii) requiring the payment of penalties, consequential damages or liquidated
damages or (ix) relating to choice of law or consent to jurisdiction.
Based upon and subject to the foregoing, we are of the opinion that:
1. With respect to the Medtronic Luxco Debt Securities, when (i) all valid and necessary company action of
Medtronic Luxco has been taken by Medtronic Luxco in conformity with Medtronic Luxco’s organizational documents (the “Medtronic Luxco Authorizing Actions”), (ii) the applicable Indenture has been duly authorized, executed and
delivered, (iii) the terms of the Medtronic Luxco Debt Securities and of their issuance and sale have been duly established in conformity with the applicable Indenture and the Medtronic Luxco Authorizing Actions, (iv) such Medtronic Luxco
Debt Securities have been duly executed and authenticated in accordance with the applicable Indenture and issued and sold as contemplated by the Registration Statement, the Prospectus and the applicable prospectus supplement and (v) Medtronic
Luxco has received the consideration provided for in the Medtronic Luxco Authorizing Actions, such Medtronic Luxco Debt Securities will constitute valid and binding obligations of Medtronic Luxco, enforceable against Medtronic Luxco in accordance
with their terms.
2. With respect to the Medtronic, Inc. Debt Securities, when (i) all valid and necessary
company action of Medtronic, Inc. has been taken by Medtronic, Inc. in conformity with Medtronic, Inc.’s organizational documents (the “Medtronic, Inc. Authorizing
Medtronic Public Limited Company
Medtronic Global Holding S.C.A.
Medtronic, Inc.
February 3, 2017
Page
5
Actions”), (ii) the terms of the Medtronic, Inc. Debt Securities and of their issuance and sale have been duly established in conformity with the Medtronic, Inc. Indenture and the Medtronic,
Inc. Authorizing Actions, (iii) such Medtronic, Inc. Debt Securities have been duly executed and authenticated in accordance with the Medtronic, Inc. Indenture and issued and sold as contemplated by the Registration Statement, the Prospectus
and the applicable prospectus supplement and (iv) Medtronic, Inc. has received the consideration provided for in the Medtronic, Inc. Authorizing Actions, such Medtronic, Inc. Debt Securities will constitute valid and binding obligations of
Medtronic, Inc., enforceable against Medtronic, Inc. in accordance with their terms.
3. With respect to the
Company Debt Guarantees, when (i) all valid and necessary company action of the Company has been taken by the Company in conformity with the Company’s organizational documents (the “Company Authorizing Actions”), (ii) the
applicable Indenture has been duly authorized, executed and delivered, (iii) the terms of the applicable Medtronic Luxco Debt Securities or Medtronic, Inc. Debt Securities, as applicable, and of their issuance and sale have been duly
established in conformity with the applicable Indenture and the Medtronic Luxco Authorizing Actions or the Medtronic, Inc. Authorizing Actions, as applicable, (iv) the terms of such Company Debt Guarantees have been duly established in
conformity with the applicable Indenture and the Company Authorizing Actions, (v) such Medtronic Luxco Debt Securities or Medtronic, Inc. Debt Securities, as applicable, have been duly executed and authenticated in accordance with the
applicable Indenture and issued and sold as contemplated by the Registration Statement, the Prospectus and the applicable prospectus supplement and (vi) Medtronic Luxco or Medtronic, Inc., as applicable, has received the consideration provided
for in the Medtronic Luxco Authorizing Actions or the Medtronic, Inc. Authorizing Actions, as applicable, such Company Debt Guarantees will constitute valid and legally binding obligations of the Company, enforceable against the Company in
accordance with their terms.
4. With respect to the Medtronic Luxco Debt Guarantees, when (i) each of the
Medtronic Luxco Authorizing Actions has been taken, (ii) the terms of the Medtronic, Inc. Debt Securities and of their issuance and sale have been duly established in conformity with the applicable Indenture and the Medtronic, Inc. Authorizing
Actions, (iii) the terms of such Medtronic Luxco Debt Guarantees have been duly established in conformity with the Medtronic, Inc. Indenture and the Medtronic Luxco Authorizing Actions, (iv) such Medtronic, Inc. Debt Securities have been
duly executed and authenticated in accordance with the Medtronic, Inc. Indenture and issued and sold as contemplated by the Registration Statement, the Prospectus and the applicable prospectus supplement and (v) Medtronic, Inc. has received the
consideration provided for in the Medtronic, Inc. Authorizing Actions, such Medtronic Luxco Debt Guarantees will constitute valid and legally binding obligations of Medtronic Luxco, enforceable against Medtronic Luxco in accordance with their terms.
5. With respect to the Medtronic, Inc. Debt Guarantees, when (i) each of the Medtronic, Inc. Authorizing
Actions has been taken, (ii) the applicable Indenture has been duly authorized, executed and delivered, (iii) the terms of the Medtronic Luxco Debt Securities and of their issuance and sale have been duly established in conformity with the
applicable Indenture and the Medtronic
Medtronic Public Limited Company
Medtronic Global Holding S.C.A.
Medtronic, Inc.
February 3, 2017
Page
6
Luxco Authorizing Actions, (iv) the terms of such Medtronic, Inc. Debt Guarantees have been duly established in conformity with the applicable Indenture and the Medtronic, Inc. Authorizing
Actions, (v) such Medtronic, Inc. Debt Securities have been duly executed and authenticated in accordance with the applicable Indenture and issued and sold as contemplated by the Registration Statement, the Prospectus and the applicable
prospectus supplement and (vi) Medtronic Luxco has received the consideration provided for in the Medtronic Luxco Authorizing Actions, such Medtronic, Inc. Debt Guarantees will constitute valid and legally binding obligations of Medtronic,
Inc., enforceable against Medtronic, Inc. in accordance with their terms.
Please note that we are opining only as to the matters expressly set forth
herein, and no opinion should be inferred as to any other matters. This opinion is based upon currently existing statutes, rules, regulations and judicial decisions, and we disclaim any obligation to advise you of any change in any of these sources
of law or subsequent legal or factual developments which might affect any matters or opinions set forth herein.
We hereby consent to the filing of this
opinion with the Commission as an exhibit to the Registration Statement in accordance with the requirements of Item 601(b)(5) of Regulation
S-K
under the Securities Act and to the use of our name therein,
in the Prospectus and in any prospectus supplement under the caption “Legal Matters.” In giving such consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities
Act or the rules and regulations of the Commission.
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Very truly yours,
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WILMER CUTLER PICKERING
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HALE AND DORR LLP
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By:
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/s/ Erika L. Robinson
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Erika L. Robinson, a Partner
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Exhibit 5.2
A&L Goodbody Solicitors International Financial Services Centre North Wall Quay Dublin 1
Tel: +353 1 649 2000 Fax: +353 1 649 2649 email: info@algoodbody.com website: www.algoodbody.com dx: 29 Dublin
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Our ref |
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SOC/MME 01420543
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Your ref
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Date |
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3 February 2017
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Medtronic plc
20 Lower Hatch
Street
Dublin 2
Ireland
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Re:
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Medtronic plc (the
Company
)
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Dear Sirs
We are acting as Irish counsel to the Company, a public limited company incorporated under the laws of Ireland (registered number 545333) in connection with
the filing of a Registration Statement on Form
S-3
(the
Registration
Statement
) by the Company, Medtronic Global Holdings S.C.A., a partnership limited by shares (
société
en
commandite
par
actions
) organized under the laws of the Grand-Duchy of Luxembourg (
Medtronic
Luxco
) and Medtronic, Inc., a Minnesota corporation (
Medtronic,
Inc.
) with the Securities and
Exchange Commission (the
SEC
) pursuant to which we understand that:
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(i)
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Medtronic Luxco will register, under the Securities Act of 1933, as amended (the
Securities
Act
), senior debt securities (the
Medtronic
Luxco
Senior
Debt
Securities
),
which may be issued under a senior indenture (the
Medtronic
Luxco
Senior
Indenture
) in the form included as Exhibit 4.1 to the Registration Statement to be entered into among Medtronic Luxco, as issuer, the Company and
Medtronic, Inc., as guarantors, and Wells Fargo Bank, National Association, as trustee, (the
Trustee
). We understand that the Company shall, together with Medtronic Inc., guarantee the obligations of Medtronic Luxco arising under the
Medtronic Luxco Senior Indenture (the
Medtronic
Luxco
Senior
Debt
Guarantee
);
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(ii)
|
Medtronic Luxco will register, under the Securities Act, subordinated debt securities (the
Medtronic
Luxco
Subordinated
Debt
Securities
and, together with the Medtronic Luxco Senior
Debt Securities, the
Medtronic
Luxco
Debt
Securities
), which may be issued under a subordinated indenture (the
Medtronic
Luxco
Subordinated
Indenture
and, together with the Medtronic Luxco
Senior Indenture, the
Medtronic
Luxco
Indentures
) in the form included as Exhibit 4.3 to the Registration Statement to be entered into among Medtronic Luxco, as issuer, the Company and Medtronic, Inc., as guarantors, and a
trustee to be named. We understand that the Company shall, together with Medtronic Inc., guarantee the obligations of Medtronic Luxco arising under the Medtronic Luxco Subordinated Indenture (the
Medtronic
Luxco
Subordinated
Debt
Guarantee
); and
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(iii)
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Medtronic Inc. will register, under the Securities Act, senior debt securities (the
Medtronic
Inc
Senior
Debt
Securities
), which may be issued under the indenture (as amended and
supplemented as of the date hereof, the
Medtronic,
Inc.
Indenture
) included as Exhibit 4.5 to the Registration Statement, dated as of as December 10, 2014 between Medtronic, Inc. and the Trustee, as amended by a
supplemental indenture filed as Exhibit 4.6 to the Registration Statement, dated as of December 10, 2014 between Medtronic, Inc. and the Trustee, a supplemental indenture filed as Exhibit 4.7 to the Registration Statement,
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dated as of January 26, 2015 between the Company and the Trustee and a supplemental indenture filed as Exhibit 4.8 to the Registration Statement, dated as of January 26, 2015 between
Medtronic Luxco and the Trustee. We understand that the Company shall, together with Medtronic Luxco, guarantee any additional obligations of Medtronic, Inc. arising under the Medtronic, Inc. Indenture (the
Medtronic
,
Inc.
Debt
Guarantee
and, together with the Medtronic Luxco Senior Debt Guarantee and the Medtronic Luxco Subordinate Debt Guarantee, the
Guarantees
and each a
Guarantee
).
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In connection with this Opinion, we have reviewed pdf copies of (i) the Registration Statement, (ii) the Medtronic Luxco Indentures and the form of
notes included therein, (iii) the Medtronic Inc. Indenture (together with the Medtronic Luxco Indentures, the
Indentures
and each an
Indenture
) and the form of note included therein, (iv) the form of each Guarantee and
(v) copies of such corporate records of the Company as we have deemed necessary as a basis for the opinions hereinafter expressed. In rendering this Opinion, we have examined, and have assumed the truth and accuracy of the contents of, all such
corporate records, documents and certificates of officers of the Company and of public officials as to factual matters and have conducted such searches on 3 February, 2017 (being the last practicable date on which searches could be conducted)
in public registries in Ireland as we have deemed necessary or appropriate for the purposes of this Opinion but have made no independent investigation regarding such factual matters. In our examination we have assumed the (continued) truth and
accuracy of the information contained in such documents, the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified or
photostatic copies and the authenticity of the originals of such documents.
We have further assumed that, on the entry by the Company into each
Guarantee, pursuant to the Company’s Memorandum and Articles of Association (the
Constitutional
Documents
), that the board of directors of the Company (the
Board
), or any appropriate committee appointed thereby, will have
validly authorized entry into such Guarantee and that such Guarantee will have been duly executed, authenticated (if applicable), issued and delivered in accordance with the terms of the relevant Indenture and such Guarantee and in the manner
contemplated by the applicable prospectus and prospectus supplements and that such Guarantee will create legally valid and binding obligations of the Company, enforceable against the Company in accordance with its terms.
We have further assumed that none of the resolutions and authorities of the Board upon which we have relied have been or will be varied, amended or revoked in
any respect or have expired and that each Guarantee will be issued in accordance with such resolutions and authorities.
We have further assumed that the
terms of each Guarantee will have been established so as not to, and that the execution and delivery by the Company of, and the performance of its obligations under, each Guarantee, as applicable, will not violate, conflict with or constitute a
default under (i) the Constitutional Documents, (ii) any agreement or instrument to which the Company or its properties are subject, (iii) any law, rule or regulation to which the Company or its properties is subject, (iv) any
judicial or regulatory order or decree of any governmental authority or (v) any consent, approval, license, authorisation or validation of, or filing, recording or registration with, any governmental authority.
We have assumed the absence of fraud on the part of the Company and its respective officers, employees, agents and advisers and that the Company will enter
into and issue each Guarantee in good faith, for its legitimate and bona fide business purposes. We have further assumed that: (i) the Company will be fully solvent at the time of and immediately following the entry into each Guarantee;
(ii) no
2
resolution or petition for the appointment of a liquidator or examiner will be passed or presented prior to the entry into each Guarantee; (iii) no receiver will have been appointed in
relation to any of the assets or undertaking of the Company prior to the to the entry into each Guarantee and (iv) no composition in satisfaction of debts, scheme of arrangement, or compromise or arrangement with creditors or members (or any
class of creditors or members) will be proposed, sanctioned or approved in relation to the Company prior to the entry into each Guarantee.
Subject to the
foregoing and to the within additional qualifications and assumptions, and based upon searches carried out in the Irish Companies Registration Office and the Central Office of the High Court on 3 February 2017, we are of the opinion that:
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•
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the Company is a company duly incorporated under the laws of Ireland and validly existing as a public limited company under the laws of Ireland; and
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•
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each Guarantee when (i) issued in accordance with all necessary corporate action of the Company, including a valid resolution of the Board or any duly appointed committee thereof, (ii) if appropriate,
authenticated in the manner set forth in such Guarantee, (iii) delivered against due payment therefor, and (iv) duly authorized, executed and delivered by the Company and the other parties thereto, will (a) be duly authorized and
validly issued; and (b) will not violate the Constitutional Documents.
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In rendering this Opinion, we have confined ourselves to
matters of Irish law. We express no opinion on any laws other than the laws of Ireland (and the interpretation thereof) in force as at the date hereof.
We hereby consent to the filing of this Opinion with the SEC as an exhibit to the Registration Statement. In giving such consent, we do not hereby admit that
we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the SEC.
This
Opinion is being delivered to you and may not be relied upon or distributed to any other person without our prior written consent, other than Wilmer Cutler Pickering Hale and Dorr LLP for the purposes solely of any legal opinion that they may be
required to give with respect to the Registration Statement.
The Opinion is governed by and construed in accordance with
the laws of Ireland.
Yours faithfully,
/s/ A&L
Goodbody
3
Exhibit 5.3
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Medtronic Global Holdings S.C.A.
3b,
boulevard Prince Henri
L-1724
Luxembourg
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Allen & Overy
société en commandite simple, inscrite au
barreau de Luxembourg
33 avenue J.F. Kennedy
L-1855
Luxembourg
Boîte postale 5017
L-1050
Luxembourg
Tel +352 4444 55 1
Fax +352 4444 55 222
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Our ref 0118516-0000001 LU:11374081.5
Luxembourg, 3 February 2017
Legal Opinion
Dear Sirs,
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1.
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We have acted as legal advisers in the Grand Duchy of Luxembourg (
Luxembourg
) to
Medtronic Global Holdings S.C.A
., a partnership limited by shares (
société en commandite par
actions
) incorporated under the laws of Luxembourg, with its registered office at 3b, Boulevard Prince Henri,
L-1724
Luxembourg, Grand Duchy of Luxembourg and registered with the Luxembourg trade and
companies register
(Registre de commerce et des sociétés, Luxembourg)
(the
Register
) under number B 191129 (the
Company
).
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This legal opinion is issued in connection with the Company’s filing with the Securities and Exchange Commission of a new registration
statement on Form
S-3
(the
Registration Statement
), which includes a prospectus dated 3 February 2017 (the
Prospectus
), with respect to the registration by the Company of the offering and sale of
an indeterminate amount (denominated in USD or a foreign currency, currency unit or composite currency) of debt securities (as described in the Prospectus) being fully and unconditionally guaranteed by Medtronic Public Limited Company and Medtronic,
Inc. (the
Securities
).
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2.
|
We have examined, to the exclusion of any other document, copies of the documents listed below:
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2.1
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a copy of the restated articles of association (
statuts
coordonn
é
s
) of the Company (the
SCA Articles
) as at 26 June 2015;
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2.2
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a copy of the restated articles of association (
statuts
coordonn
é
s
) of Medtronic Global Holdings GP S.à r.l., a private limited liability company
(
soci
é
t
é
à
responsabilité limit
ée
) incorporated under the laws of the Grand Duchy of Luxembourg, with its registered office at 3b, Boulevard Prince
Henri,
L-1724
Luxembourg, Grand Duchy of Luxembourg and registered with the Register under number B 191031 (the
General Partner
) as at 1 October 2015 (the
GP Articles
together with the SCA
Articles the
Articles
);
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2.3
|
an electronic copy of a negative certificate (
certificat négatif
) issued by the Register in respect of the Company, dated 3 February 2017 stating that on the day immediately prior to the date of issuance
of the negative certificate, there were no records at the Register of any court order regarding, amongst others, a (i) bankruptcy adjudication against the Company, (ii) reprieve from payment (
sursis de paiement
), (iii) controlled
management (
gestion contrôlée
) or (iv) composition with creditors (
concordat préventif de la faillite
) (the
SCA Certificate
);
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Allen & Overy, société en commandite simple, is an affiliated office of Allen & Overy LLP. Allen & Overy LLP or an
affiliated undertaking has an office in each of: Abu Dhabi, Amsterdam, Antwerp, Bangkok, Barcelona, Beijing, Belfast, Bratislava, Brussels, Bucharest (associated office), Budapest, Casablanca, Doha, Dubai, Düsseldorf, Frankfurt, Hamburg, Hanoi,
Ho Chi Minh City, Hong Kong, Istanbul, Jakarta (associated office), Johannesburg, London, Luxembourg, Madrid, Milan, Moscow, Munich, New York, Paris, Perth, Prague, Riyadh (cooperation office), Rome, São Paulo, Séoul, Shanghai,
Singapore, Sydney, Tokyo, Warsaw, Washington, D.C. and Yangon.
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2.4
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an electronic copy of a negative certificate (
certificat négatif
) issued by Register in respect of the General Partner, dated Janaury 27, 2017 stating that on the day immediately prior to the date of
issuance of the negative certificate, there were no records at the Register of any court order regarding, amongst others, a (i) bankruptcy adjudication against the Company, (ii) reprieve from payment (
sursis de paiement
), (iii)
controlled management (
gestion contrôlée
) or (iv) composition with creditors (
concordat préventif de la faillite
) (the
GP Certificate
, together with the SCA Certificate, the
Certificates
);
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2.5
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an excerpt of the Register pertaining to the Company dated 3 February 2017;
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2.6
|
an excerpt of the Register pertaining to the General Partner dated 3 February 2017; and
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2.7
|
a scanned copy of an excerpt of the resolutions taken by the board of managers of the General Partner, acting in its capacity as general partner of the Company on 3 February 2017 (the
Resolutions
);
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2.8
|
an execution copy received by email on 3 February 2017 of the form of senior indenture of the Company (including form of guarantee), to be entered into by and between the Company as issuer, Medtronic Public Limited
Company and Medtronic, Inc. as guarantors and Wells Fargo Bank, National Association as trustee, to be filed with the Registration Statement as exhibit (the
Senior Indenture
);
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2.9
|
an execution copy received by email on 3 February 2017 of the form of subordinated indenture of the Company (including form of guarantee), to be entered into by and between the Company as issuer, Medtronic Public
Limited Company and Medtronic, Inc. as guarantors and a trustee to be named (the
Company Subordinated Indenture
and together with the Senior Indenture, the
Indentures
); and
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2.10
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a scanned copy received by email on 3 February 2017 of the executed Registration Statement, including the Prospectus, together with an indenture between Medtronic, Inc. and Wells Fargo Bank, National Association as
trustee dated 10 December 2014, as amended by a supplemental indenture between Medtronic, Inc. and Wells Fargo Bank, National Association as trustee dated 10 December 2014, a supplemental indenture between Medtronic Public Limited Company
and Wells Fargo Bank, National Association as trustee dated 26 January 2015 and a supplemental indenture between the Company and Wells Fargo Bank, National Association as trustee dated 26 January 2015.
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The document listed in paragraphs 2.8 to 2.10 (inclusive) above are herein referred to as the
Opinion Documents
. The term “Opinion Documents”
includes, for the purposes of paragraphs 3. and 5. below, any document in connection therewith.
Unless otherwise provided herein, terms and expressions
shall have the meaning ascribed to them in the Opinion Documents.
In giving this legal opinion, we have assumed, and we have not verified independently:
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3.1
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the genuineness of all signatures, stamps and seals, the completeness and conformity to the originals of all the documents submitted to us as certified, photostatic, faxed, scanned or
e-mailed
copies or specimens and the authenticity of the originals of such documents and that the individuals purported to have signed, have in fact signed (and had the general legal capacity to sign) these
documents;
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2
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3.2
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the due authorisation, execution and delivery of the Opinion Documents by all the parties thereto (other than the Company) as well as the capacity, power, authority and legal right of all the parties thereto (other than
the Company) to enter into, execute, deliver and perform their respective obligations thereunder, and the compliance with all internal authorisation procedures by each party (other than the Company) for the execution by it of these Opinion Documents
to which it is expressed to be a party;
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3.3
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that the Indentures will be signed in the form of the execution versions thereof listed in paragraphs 2.8 and 2.9 above;
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3.4
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that all factual matters and statements relied upon or assumed herein were, are and will be (as the case may be) true, complete and accurate on the date of execution of the Opinion Documents;
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3.5
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that all authorisations, approvals and consents under any applicable law (other than Luxembourg law to the extent opined upon herein) which may be required in connection with the execution, delivery and performance of
the Opinion Documents have been or will be obtained;
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3.6
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the due compliance with all matters (including without limitation, the obtaining of necessary consents and approvals and the making of necessary filings and registrations) required in connection with the Opinion
Documents to render them enforceable in all relevant jurisdictions (other than Luxembourg to the extent opined upon herein);
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3.7
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that the place of the central administration (
siège de l’administration centrale
), the principal place of business
(principal établissement)
and the centre of main interests (as referred
to in Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings, as amended (the
EU Insolvency Regulation
)) of the Company and the General Partner are located at the place of their registered office (
siège
statutaire
) in Luxembourg and that the Company and the General Partner have no establishment (as such term is defined in the EU Insolvency Regulation) outside Luxembourg;
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3.8
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that the Company does not carry out an activity in the financial sector on a professional basis, as referred to in the act dated 5 April 1993 regarding the financial sector, as amended;
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3.9
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that the Company does not carry out an activity requiring the granting of a business licence under the Luxembourg act dated 2 September 2011 relating to the establishment of certain businesses and business
licences;
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3.10
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that the Opinion Documents are legally valid, binding and enforceable under their governing law (other than Luxembourg law to the extent opined upon herein), that the choice of such governing law and of the jurisdiction
clauses are valid (as a matter of such governing law and all other applicable laws (other than Luxembourg law to the extent opined upon herein)) as the choice of the governing law and the submission to the jurisdiction of the chosen courts for the
Opinion Documents;
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3.11
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that the choice of governing law clause in the Indenture shall apply to any litigation in relation to the Registration Statement as a whole;
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3.12
|
that the obligations assumed by all the parties under the Opinion Documents constitute legally valid, binding and enforceable obligations in accordance with their terms under the respective governing laws of such
obligations (other than the laws of Luxembourg to the extent opined herein);
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3.13
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that the Opinion Documents are entered into and performed by the parties thereto in good faith and without any intention of fraud or intention to deprive of any legal benefit any persons (including for the avoidance of
doubt third parties) or to circumvent any applicable mandatory laws or regulations of any jurisdiction (including without limitation any tax laws);
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3.14
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that there are no provisions of the laws of any jurisdiction outside Luxembourg which would adversely affect, or otherwise have any negative impact on, the opinions expressed in this legal opinion;
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3.15
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that all the parties to the Opinion Documents (other than the Company) are companies duly organised, incorporated and existing in accordance with the laws of the jurisdiction of their respective incorporation and/or
their registered office and/or the place of effective management, having a corporate existence;
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3.16
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that no steps have been taken pursuant to any insolvency, bankruptcy, liquidation or equivalent or analogous proceedings to appoint an administrator, bankruptcy receiver, insolvency officer or liquidator over the
Company and/or the General Partner or any of their assets and that no voluntary or judicial
winding-up
or liquidation of the Company and/or the General Partner has been resolved or become effective at the date
hereof. In respect of the Company and the General Partner, we refer to the Certificates;
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3.17
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that the entry into and performance under the Opinion Documents are made for the corporate benefit (
intérêt social
) of the Company;
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3.18
|
that the Registration Statement has in fact been signed and the Indentures will be signed by Erik De Gres and Melanie Devine in their capacity as managing directors of the General Partner of the Company, or their
successor in such title and capacity;
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3.19
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that the Resolutions have not been amended, rescinded, revoked or declared void and that the meeting of the board of managers of the General Partner of the Company (as referred to in paragraph 2.7 above) was duly
convened and validly held and included a proper discussion and deliberation in respect of all the items of the agenda of the meeting;
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3.20
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that the Articles have not been modified since the dates referred to in paragraphs 2.1 and 2.2 above;
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3.21
|
that any representation, warranty or statement of fact or law, other than as to the laws of Luxembourg, made in the Opinion Documents is true, accurate and complete in all material respect;
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3.22
|
that all payments and transfers made by, on behalf of, in favour of, or for the account of, the Company under the Opinion Documents, are made on an arm’s length basis and are in accordance with market practice;
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3.23
|
that the Company is not, is not deemed to be, and, as a result of entering into and performing the Opinion Documents, will not be, over-indebted in light of the current practice of the Luxembourg tax administration;
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3.24
|
that none of the parties to the Opinion Documents nor the holders of Securities will have any relation with the Company other than that of an independent third party acting in the normal course of its business and/or
will maintain any particular economic relation with the Company, other than that contemplated by the Opinion Documents and by the Securities;
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3.25
|
the absence of any other arrangement by or between any of the parties to the Opinion Documents or between the parties to the Opinion Documents and any third parties which modifies or supersedes any of the terms of the
Opinion Documents or otherwise affects the opinions expressed herein;
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3.26
|
there is neither a vitiated consent (
vice de consentement
) by reason of mistake (
erreur
), fraud (
dol
), duress (
violence
) or inadequacy (
lésion
), nor an illicit cause (
cause
illicite
) in relation to the Opinion Documents;
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3.27
|
that all agreed conditions to the effectiveness of the Opinion Documents have been or will be satisfied;
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3.28
|
that none of the Securities will carry interest, or any other payment, contingent on the profits of, or on the distribution of profits by, the Company; and
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3.29
|
that none of the Securities will be exchangeable for, convertible into, or linked to shares or other equity investments issued or to be issued by the Company.
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Based upon, and subject to, the assumptions made above and the qualifications set out below and
subject to any matters not disclosed to us, we are of the opinion that, under the laws of Luxembourg in effect, as construed and applied by the Luxembourg courts in published Luxembourg court decisions, on the date hereof:
The Company is a corporate partnership limited by shares (
société en commandite
par actions
) formed for an unlimited duration and legally existing under the laws of Luxembourg.
The Company has the corporate power and authority to enter into and perform the
Opinion Documents.
The Opinion Documents have been duly executed on behalf of the Company.
The obligations expressed to be assumed by the Company under the Opinion Documents would
be enforceable against the Company in the Luxembourg courts in accordance with their express terms provided the obligations are enforceable under the law by which they are expressed to be governed.
The execution, delivery and performance by the
Company of the Opinion Documents, and the compliance by the Company with the terms of such Opinion Documents do not violate the SCA Articles and any applicable law of Luxembourg relating to corporate partnerships limited by shares generally.
No authorisations, approvals or consents of governmental, judicial and public bodies and
authorities of or in Luxembourg are required under statute in connection with the entry into and performance by the Company of the Opinion Documents.
|
4.7
|
Application of governing law
|
The choice of the laws of the State of New York, United States of America,
as the governing law of the Opinion Documents would be upheld as a valid choice of law by the courts of Luxembourg and applied by those courts in proceedings in relation to the Opinion Documents as the governing law thereof.
5
|
4.8
|
Submission to jurisdiction
|
The submission to the jurisdiction of the state or federal court of the city
of New York, State of New York, United States of America, by the Company contained in the Opinion Documents constitutes an effective submission by the Company to the jurisdiction of such courts.
|
4.9
|
Enforcement of judgments
|
|
(a)
|
A final and conclusive judgment in respect of the Opinion Documents obtained against the Company in the state or federal court of the city of New York, State of New York, United States of America, would be recognised
and enforced by the Luxembourg courts subject to the applicable enforcement procedure (as set out in the relevant provisions of the Luxembourg New Civil Procedure Code).
|
Pursuant to Luxembourg case law, the enforcement of such judgment is subject to the following requirements:
|
|
•
|
|
the foreign judgment must be enforceable in the country of origin,
|
|
|
•
|
|
the court of origin must have had jurisdiction both according to its own laws and to the Luxembourg conflict of jurisdictions rules,
|
|
|
•
|
|
the foreign proceedings must have been regular in light of the laws of the country of origin,
|
|
|
•
|
|
the rights of defence must not have been violated,
|
|
|
•
|
|
the foreign court must have applied the law which is designated by the Luxembourg conflict of laws rules, or, at least, the judgment must not contravene the principles underlying these rules,
|
|
|
•
|
|
the considerations of the foreign judgment as well as the judgment as such must not contravene Luxembourg international public policy,
|
|
|
•
|
|
the foreign judgment must not have been rendered as a result of or in connection with an evasion of Luxembourg law (“
fraude à la loi
”).
|
|
(b)
|
Any judgment awarded in the courts of Luxembourg may be expressed in a currency other than the euro. However, any obligation to pay a sum of money would be enforceable in Luxembourg in terms of the euro only.
|
The Company is not entitled to claim immunity from jurisdiction or immunity from
enforcement with respect to any action or proceeding brought in connection with its obligations under the Opinion Documents in the courts of Luxembourg.
According to the Certificates, on the day immediately prior to the issuance of the
Certificates, no court order has been recorded with the Register pursuant to which the Company or the General Partner had been adjudicated bankrupt
(faillite),
or become subject to, or benefited from, a reprieve from payment (
sursis de
paiement
), controlled management (
gestion contrôlée
) or composition with creditors (
concordat préventif de la faillite
), judicial liquidation or judicial appointment of a temporary administrator.
6
The above opinions are subject to the following qualifications:
|
5.1
|
The opinions expressed herein are subject to, and may be affected or limited by, the provisions of any applicable bankruptcy (
faillite
), insolvency, liquidation, reprieve from payment (
sursis de paiement
),
controlled management (
gestion contrôlée
), composition with creditors (
concordat préventif de la faillite
), reorganisation proceedings or similar Luxembourg or foreign law proceedings or regimes affecting the rights
of creditors generally.
|
|
5.2
|
Any certificate or determination which would by contract be deemed to be conclusive may not be upheld by the Luxembourg courts.
|
|
5.3
|
Certain obligations may not be the subject of specific performance pursuant to court orders, but may result in damages only. Accordingly, Luxembourg courts may issue an award of damages where specific performance is
deemed impracticable or an award of damages is determined adequate.
|
|
5.4
|
Notwithstanding a foreign jurisdiction clause, the Luxembourg courts would, in principle, have jurisdiction to order provisional measures in connection with assets or persons located in Luxembourg and such measures
would most likely be governed by Luxembourg law.
|
|
5.5
|
Penalty clauses (
clauses pénales
), and similar clauses on damages or liquidated damages, as governed by article 1152 and articles 1226
et seq
. of the Luxembourg Civil Code are allowed to the extent
that they provide for a reasonable level of damages. The judge has however the right to reduce (or increase) the amount thereof if it is unreasonably high (or low). The provisions of article 1152 and articles 1226
et seq
. of the Luxembourg
Civil Code are generally considered to be a point of public policy under Luxembourg law. It is possible that a Luxembourg court would hold them to be a point of international public policy that would set aside the relevant foreign governing law.
|
|
5.6
|
International public
policy means the fundamental concepts of Luxembourg law that the Luxembourg courts may deem to be of such significance so as to exclude the application of an (otherwise applicable) foreign
law (deemed to be contrary in its results to such concepts). International public policy is a matter which is constantly evolving on the basis of the position of Luxembourg courts with respect to cases they hear. Accordingly, there are uncertainties
as to what is considered as international public policy under Luxembourg law.
|
|
5.7
|
Interest may not accrue on interest that is due on principal, unless such interest has been due for at least one year (article 1154 of the Luxembourg Civil Code). The right to compound interest is limited to cases where
(i) the interest has been due for at least one year and (ii) the parties have specifically provided in an agreement (to be made after that interest has become due for at least one year) that such interest may be compounded (or absent such
agreement, the creditor may file an appropriate request with the relevant court). The provisions of article 1154 of the Luxembourg Civil Code are generally considered to be a point of public policy under Luxembourg law. It is possible, although it
is highly unlikely, that a Luxembourg court would hold these provisions to be a point of international public policy that would set aside the relevant foreign governing law.
|
|
5.8
|
The registration of the Opinion Documents with the
Administration de l’Enregistrement et des Domaines
in Luxembourg will be required where the Opinion Documents are physically attached
(
annexé(s)
) to a public deed or to any other document subject to mandatory registration, in which case either a nominal registration duty or an ad valorem duty (of, for instance, 0.24 (zero point twenty four) per cent. of the amount of
the payment obligation mentioned in the document so registered) will be payable depending on the nature of the document to be registered. These registration duties will equally be payable in the case of voluntary registration of the Opinion
Documents.
|
7
|
5.9
|
Claims may become barred under statutory limitation period rules and may be subject to defences of
set-off
or counter-claims. We express no opinion as to whether rights of
set-off,
including rights on
close-out
netting, are effective in a Luxembourg insolvency situation.
|
|
5.10
|
No opinion is expressed as to the validity and enforceability of provisions whereby interest on overdue amounts or other payment obligations shall continue to accrue or subsist after judgment.
|
|
5.11
|
Where any obligations are to be performed or observed or are based upon a matter arising in a jurisdiction outside Luxembourg, they may not be enforceable under Luxembourg law if and to the extent that such performance
or observance would be unlawful, unenforceable, or contrary to public policy under the laws of such jurisdiction.
|
|
5.12
|
With respect to the opinions expressed in paragraph 4.7 above, the Luxembourg courts might not apply a chosen foreign law if that choice was not made bona fide and/or:
|
|
|
(a)
|
if it were not pleaded and proved; or
|
|
|
(b)
|
if such foreign law would be contrary to the mandatory provisions (
lois impératives
) or overriding mandatory provisions (
lois de police
) of Luxembourg law or manifestly incompatible with Luxembourg
public policy; or
|
|
|
(c)
|
to the extent that relevant contractual obligations or matters fall outside of the scope of Regulation (EC) No 593/2008 of the European Parliament and the Council of 17 June 2008 on the law applicable to
contractual obligations; or
|
|
|
(d)
|
if all other elements relevant to the situation are located in a country other than the jurisdiction of the chosen governing law, in which case the Luxembourg courts may apply the applicable mandatory provisions of such
country; or
|
|
|
(e)
|
where the chosen governing law is not the law of an EU Member State, if all other elements relevant to the situation are located in one or several EU Member States, in which case the Luxembourg courts may apply
applicable mandatory EU law provisions (as implemented in Luxembourg); or
|
|
|
(f)
|
where contractual obligations are to be or have been performed in another country where such performance is prohibited by overriding mandatory provisions; or
|
|
|
(g)
|
if a party is subject to insolvency proceedings, in which case the Luxembourg courts would apply the law of the jurisdiction where such insolvency proceedings have been duly opened (
lex concursus
) to the effects
of such insolvency proceedings without prejudice to the exceptions provided for in the EU Insolvency Regulation.
|
|
5.13
|
Clauses that grant to the debtor of an obligation the power to determine, in its absolute discretion, if, and if so, under which conditions its obligation will be performed may be declared void by a Luxembourg court (if
competent) on the basis of articles 1170 and 1174 of the Luxembourg Civil Code (
condition purement potestative
,
one-sided
clause). It is possible that a Luxembourg court would hold articles 1170 and
1174 of the Luxembourg Civil Code to be a point of international public policy that would set aside the relevant foreign governing law.
|
8
|
5.14
|
Any indemnity provision entitling one party to recover its legal and other enforcement costs and expenses from another party may be limited in terms of items or amounts as a Luxembourg court (if competent) deems
appropriate.
|
|
5.15
|
Under the laws of Luxembourg, unless otherwise provided for or unless the contrary results from the factual circumstances, a power of attorney or agency (
mandat
), whether or not irrevocable, will terminate by
force of law, and without notice, upon the occurrence of insolvency events affecting the principal or the agent. A power of attorney or agency (
mandat
) might become ineffective upon the principal entering into controlled management
(
gestion contrôlée
) or reprieve from payment (
sursis de paiement
). The designation of a service of process agent may constitute (or may be deemed to constitute) a power of attorney or agency (
mandat
).
|
|
5.16
|
We express no opinion on the effectiveness or ineffectiveness of a purported revocation, or the consequences of such revocation by the principal of a power of attorney or agency (
mandat
) expressed to be
irrevocable.
|
|
5.17
|
We express no opinion on the validity or enforceability under Luxembourg law of a power of attorney granted in the exclusive interest of the attorney or a third party.
|
|
5.18
|
There is uncertainty whether a Luxembourg insolvency receiver of a debtor subject to Luxembourg insolvency proceedings would, where applicable, accept the tiering between senior and subordinated creditors of this
debtor.
|
|
5.19
|
There are no general Luxembourg law provisions or regulations on
non-petition
clauses (that is, a clause whereby one or more parties waive ab initio their right to institute
bankruptcy proceedings against their debtor). There is, to our knowledge, no Luxembourg (published) case law or well established legal literature on
non-petition
clauses. In the absence of Luxembourg
(published) case law, it is our view that Luxembourg courts would mainly turn to Belgian case law and prevailing legal literature which do not recognise the enforceability of a
non-petition
clause because it
violates public policy.
|
|
5.20
|
From a Luxembourg law perspective, turnover provisions might be regarded as a mere contractual mechanism and would not give the senior creditor a proprietary claim on the insolvency of the junior creditor. In the case
that a junior creditor has been paid before a senior creditor and bankruptcy proceedings are instituted against the junior creditor before the amounts so paid to the junior creditor have been paid and distributed to the senior creditor, it is
uncertain whether the senior creditor would be able to claw back these amounts from the junior creditor.
|
|
5.21
|
There are neither general Luxembourg law provisions nor, to our knowledge, Luxembourg (published) case law or well established legal literature with respect to limited recourse provisions. We take the view that
Luxembourg courts would mainly turn to Belgian case law and prevailing legal doctrine which seem to admit the validity and enforceability of a provision whereby contractual arrangements are established in conformity with the law of contracts and the
law of obligations to the extent that they do not grant to a particular creditor a better rank in the distribution of the debtor’s assets. The principle of
pari
passu
treatment of creditors (according to which contractual
arrangements, entered into prior to the opening of insolvency proceedings and designed to unfairly benefit one creditor to the detriment of other creditors by giving it a preferential right not provided for by law, are unlawful) aims only at, and as
such is public policy, protecting the rights of all the creditors (
l’ensemble
des
cr
é
anciers
). In other words, the debtor may not, by an arrangement with one of its creditors, impair the rights of the
other creditors. Nothing however prohibits one or more creditors to limit, to derogate from, or even to renounce, their rights in the sense that they dispose of their own rights without altering other creditors’ rights.
|
9
|
5.22
|
We do not express or imply any opinion in respect of a withholding tax that may become due or payable pursuant to the Luxembourg law of 23 December 2005 as amended introducing a withholding tax of 20% on payments
of interest or similar income made or ascribed by a paying agent established in Luxembourg to or for the benefit of an individual beneficial owner who is resident of Luxembourg.
|
|
5.23
|
We express no tax opinion whatsoever in respect of the Company or the tax consequences of the transactions contemplated by the Opinion Documents.
|
|
5.24
|
We express no opinion as to whether the performance of the Opinion Documents would cause any borrowing limits, debt/equity or other ratios possibly agreed with the tax authorities to be exceeded nor as to the
consequences thereof.
|
|
5.25
|
We express no opinion whatsoever on regulatory matters or on matters of fact or on matters other than those expressly set forth in this legal opinion, and no opinion is, or may be, implied or inferred therefrom.
|
|
5.26
|
We have not made any enquiry regarding, and no opinion is expressed or implied in relation to, the accuracy of any representation or warranty given by, or concerning, any of the parties to the Opinion Documents or
whether such parties or any of them have complied with or will comply with any covenant or undertaking given by them or the terms and conditions of any obligations binding upon them, save as expressly provided herein.
|
|
5.27
|
The rights and obligations of the parties under the Opinion Documents may be limited by the effects of (i) criminal law measures, including without limitation criminal freezing orders, or (ii) public law
sanctions or restraining measures taken from time to time under applicable laws, treaties or other instruments.
|
|
5.28
|
Payments made, as well as other transactions (listed in the pertinent section of the Luxembourg Commercial Code) concluded or performed, during the suspect period (
période suspecte
) which is fixed by the
Luxembourg court and dates back not more than six months as from the date on which the Luxembourg court formally adjudicates a person bankrupt, and, as for specific payments and transactions, during an additional period of ten days before the
commencement of such period, are subject to cancellation by the Luxembourg court upon proceedings instituted by the Luxembourg insolvency receiver.
|
In particular,
|
|
(a)
|
article 445 of the Luxembourg Commercial Code sets out that specific transactions entered into during the suspect period and an additional period of ten days preceding the suspect period fixed by the court (e.g. the
granting of a security interest for antecedent debts; the payment of debts which have not fallen due, whether payment is made in cash or by way of assignment, sale,
set-off
or by any other means; the payment
of debts which have fallen due by any other means than in cash or by bill of exchange; transactions without consideration or for materially inadequate consideration) must be set aside or declared void, as the case may be, if so requested by the
insolvency receiver;
|
|
|
(b)
|
article 446 of the Luxembourg Commercial Code states that payments made for matured debts as well as other transactions concluded for consideration during the suspect period are subject to cancellation by the court upon
proceedings instituted by the insolvency receiver if they were concluded with the knowledge of the bankrupt’s cessation of payments; and
|
10
|
|
(c)
|
regardless of the suspect period, article 448 of the Luxembourg Commercial Code and article 1167 of the Luxembourg Civil Code (actio pauliana) give the creditor the right to challenge any fraudulent payments and
transactions made prior to the bankruptcy, without limitation of time.
|
|
5.29
|
A search at the Register is not capable of conclusively revealing whether a (and the Certificate does not constitute conclusive evidence that no)
winding-up
resolution or
petition, or an order adjudicating or declaring a, or a petition or filing for, bankruptcy or reprieve from payment (
sursis de paiement
), controlled management (
gestion contrôlée
), composition with creditors
(
concordat
préventif de la faillite
) or judicial liquidation or similar action has been adopted or made.
|
|
5.30
|
The corporate documents of, and relevant court orders affecting, a Luxembourg company (including, but not limited to, the notice of a
winding-up
order or resolution, notice of the
appointment of a receiver or similar officer) may not be held at the Register immediately and there is generally a delay in the relevant document appearing on the files regarding the company concerned. Furthermore, it cannot be ruled out that the
required filing of documents has not occurred or that documents filed with the Register may have been mislaid or lost. In accordance with Luxembourg company law, changes or amendments to corporate documents to be filed at the Register will be
effective (
opposable
)
vis-à-vis
third parties only as of the day of their publication in the Official Gazette unless the company proves that the relevant
third parties had prior knowledge thereof.
|
|
5.31
|
As used in this legal opinion, the term
enforceable
means that the relevant rights and obligations are of a type which the Luxembourg courts do normally enforce. It does not mean that these obligations will
necessarily be enforced in all circumstances in accordance with their respective terms, enforcement being subject to,
inter alia
, the nature of the remedies available in the Luxembourg courts, the acceptance by such court of jurisdiction, the
discretion of the courts (within the limits of Luxembourg law), the power of such courts to stay proceedings, to grant grace periods, the provisions of Luxembourg procedure rules regarding remedies, enforcement measures available under Luxembourg
law, mandatory provisions of Luxembourg law or principles of Luxembourg international public policy from time to time in force and the general principles of Luxembourg law in particular, the general principle of good faith performance.
|
|
5.32
|
Actions in Luxembourg courts must, in principle, be brought in the name of the principal not in the name of an agent of the principal.
|
|
6.
|
This legal opinion is as of this date and we undertake no obligation to update it or advise of changes hereafter occurring. We express no opinion as to any matters other than those expressly set forth herein, and
no opinion is, or may be, implied or inferred herefrom. We express no opinion on any economic, financial or statistical information (including formulas determining payments to be made) contained in the Opinion Documents (or any document in
connection therewith).
|
|
7.
|
This legal opinion is given on the express basis, accepted by each person who is entitled to rely on it, that this legal opinion and all rights, obligations or liability in relation to it are governed by, and
shall be construed in accordance with, Luxembourg law and that any action or claim in relation to it can be brought exclusively before the courts of Luxembourg.
|
|
8.
|
Any addressee who is entitled to, and does, rely on this legal opinion agrees, by so relying, that, to the fullest extent permitted by law and regulation (and except in the case of wilful misconduct or fraud)
there is no assumption of personal duty of care by, and such person will not bring any claim against, any individual who is a partner of, member of, employee of or consultant to Allen & Overy,
société en commandite
simple
, Allen & Overy LLP or any other member of the group of Allen & Overy undertakings and that such person will instead confine any claim to Allen & Overy,
société en commandite simple
,
Allen & Overy LLP or any other member of the group of Allen & Overy undertakings (and for this purpose “claim” means (save only where law and regulation applies otherwise) any claim, whether in contract, tort (including
negligence), for breach of statutory duty, or otherwise).
|
11
|
9.
|
Luxembourg legal concepts are expressed in English terms and not in their original French or German terms. The concepts concerned may not be identical to the concepts described by the same English terms as they
exist under the laws of other jurisdictions. It should be noted that there are always irreconcilable differences between languages making it impossible to guarantee a totally accurate translation or interpretation. In particular, there are always
some legal concepts which exist in one jurisdiction and not in another, and in those cases it is bound to be difficult to provide a completely satisfactory translation or interpretation because the vocabulary is missing from the language. We accept
no responsibility for omissions or inaccuracies to the extent that they are attributable to such factors.
|
This legal opinion
is given to you exclusively in connection with the Opinion Documents and may not be relied upon by you for any other purpose. You may not give copies of this legal opinion to others, or enable or allow any person or persons to quote, rely upon or
otherwise use part or all of this legal opinion without our prior written permission.
We hereby consent to the filing of this opinion
with the Securities and Exchange Commission as an exhibit to the Registration Statement in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the U.S. Securities Act of 1933, as amended, and to the use of our name therein, in
the Prospectus and in any prospectus supplement under the caption “Legal Matters”. In giving such consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the SEC.
Yours faithfully,
/s/ Patrick Mischo
Allen & Overy
Patrick Mischo
*
Partner
Avocat à la Cour
|
*
|
This document is signed on behalf of Allen & Overy, a société en commandite simple, registered on list V of the Luxembourg bar. The individual signing this document is a qualified lawyer
representing this entity.
|
12
Exhibit 5.4
Medtronic, Inc.
710
Medtronic Parkway
Minneapolis MN 55432
www.medtronic.com
February 3, 2017
Re:
Registration Statement on Form
S-3
Ladies and Gentlemen:
This opinion is furnished
to you in connection with a Registration Statement on Form
S-3
(the “Registration Statement”) filed by Medtronic, Inc., a Minnesota corporation (the “Company”), Medtronic Public Limited
Company, a public limited company organized under the laws of Ireland (“Medtronic plc”) and Medtronic Global Holdings S.C.A., a partnership limited by shares (
société en commandite par actions
) organized under the laws
of the Grand-Duchy of Luxembourg (“Medtronic Luxco”), with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”).
The undersigned is the Principal Legal Counsel, Corporate & Securities of the Company. The undersigned has served as counsel to the
Company in connection with the preparation and filing of the Registration Statement pursuant to which the Company will register the following:
|
|
(i)
|
senior debt securities of the Company (the “Company Debt Securities”); and
|
|
|
(ii)
|
guarantees (the “Guarantees”) of debt securities of Medtronic Luxco (the “Medtronic Luxco Debt Securities”).
|
The Company Debt Securities and any guarantees thereof may be issued pursuant to the senior indenture (the “Company Indenture”)
filed as Exhibit 4.5 to the Registration Statement, dated as of December 10, 2014 between the Company and Wells Fargo Bank, National Association, as trustee (the “Trustee”), as amended by a supplemental indenture filed as Exhibit 4.6
to the Registration Statements, dated as of December 10, 2014 between the Company and the Trustee, a supplemental indenture filed as Exhibit 4.7 to the Registration Statement, dated as of January 26, 2015 between Medtronic plc and the
Trustee and a supplemental indenture filed as Exhibit 4.8 to the Registration Statement, dated as of January 26, 2015 between Medtronic Luxco and the Trustee. The Guarantees may be issued pursuant to a senior indenture in the form of Exhibit
4.1 to the Registration Statement to be entered into among Medtronic Luxco, as issuer, the Company and Medtronic plc, as guarantors, and the Trustee or a subordinated indenture in the form of Exhibit 4.3 to the Registration Statement to be entered
into among Medtronic Luxco, as issuer, the Company and Medtronic, Inc., as guarantors, and a trustee to be named (together, the “Medtronic Luxco Indentures”).
As to various matters of fact material to this opinion, the undersigned has relied upon certificates of public officials and upon the
representations of Medtronic, Inc. or its officers or directors, including those made in the Indenture and in documents or certificates executed in connection therewith. The undersigned has also examined the Amended and Restated Articles of
Incorporation and Bylaws of Medtronic, Inc., each as amended to date, and originals or copies of such other corporate documents and records and other certificates and instruments and has made such other investigation as the undersigned has deemed
necessary in connection with the opinion hereafter set forth. The undersigned has not independently or through third parties verified such certificates, representations, or statements or made any
February 3, 2017
Page
2
independent investigation as to the existence of agreements, instruments, corporate records or other
documents, orders, judgments or decrees by which Medtronic, Inc. or any of its properties may be bound.
My opinion is limited solely to
the present substantive law of the State of Minnesota (excluding its conflict of laws principles). I express no opinion as to the laws of any other state or jurisdiction. I express no opinion on any matter of county, municipal, or special political
subdivision law.
For purposes of this opinion, the undersigned has assumed, among other things, the genuineness of all signatures, the
authenticity of all documents submitted as originals, the conformity to original documents of all documents submitted as copies, and that the information in the certificates, representations, and statements referred to above remains true and
complete as of the date hereof. In examining documents, the undersigned has assumed that parties executing the same, other than Medtronic, Inc., have all necessary power to enter into and perform all of their obligations thereunder and that such
parties have duly executed and delivered such documents. I have also assumed, as to each such party other than Medtronic, Inc., the due authorization by all requisite action of the execution, delivery and performance of such documents by such
parties, in each case at the requisite time in order for such action to be effective, and that such documents are legal, valid, binding on and enforceable against such parties in accordance with their respective terms. I have also assumed that each
natural person executing any of the documents and agreements involved in the matters covered by this opinion has the capacity and is legally competent to do so. I have assumed that each of the documents and agreements involved in any matter covered
by this opinion letter accurately describes the mutual understanding of the parties as to all matters contained therein and that no other agreements or understandings exist between the parties relating to the transactions contemplated by such
document or agreement.
Based upon and subject to the foregoing, and subject to the qualifications hereinafter set forth, it is the
undersigned’s opinion as of this date that:
|
|
1.
|
Based exclusively upon a good standing certificate received from the Office of the Secretary of State of Minnesota, Medtronic, Inc. is validly existing as a corporation under the laws of the State of Minnesota.
|
|
|
2.
|
With respect to the Company Debt Securities, when (i) all valid and necessary company action of the Company has been taken by the Company in conformity with the Company’s organizational documents (the
“Company Authorizing Actions”), and (ii) the terms of the Company Debt Securities and of their issuance and sale have been duly established in conformity with the Company Indenture and the Company Authorizing Actions, the Company Debt
Securities will be duly authorized and the performance by the Company of its obligations thereunder (a) will not violate the Company organizational documents and (b) will be within the corporate powers of the Company.
|
|
|
3.
|
With respect to the Guarantees, when (i) each of the Company Authorizing Actions has been taken, (ii) the applicable Medtronic Luxco Indenture has been duly authorized, executed and delivered and
(iii) the terms of the Medtronic Luxco Debt Securities and of their issuance and sale have been duly established in conformity with the applicable Medtronic Luxco Indenture and with all valid and necessary company action of Medtronic Luxco in
conformity with Medtronic Luxco’s organizational documents, the Guarantees will be duly authorized and the execution and delivery thereof and the performance by the Company of its obligations thereunder (a) will not violate the Company
organizational documents and (b) will be within the corporate powers of the Company.
|
February 3, 2017
Page
3
This Opinion is being delivered to you and may not be relied upon or distributed to any other
person without our prior written consent, other than Wilmer Cutler Pickering Hale and Dorr LLP for the purposes solely of any legal opinion that they may be required to give with respect to the Registration Statement.
I hereby consent to the filing of this opinion with the Commission as an exhibit to the Registration Statement in accordance with the
requirements of Item 601(b)(5) of Regulation
S-K
under the Securities Act and to the use of my name therein and in the related Prospectus and any prospectus supplement under the caption “Legal
Matters.” In giving this consent, I do not thereby admit that I am within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder. The opinions
expressed herein are rendered on and as of the date hereof, and I assume no obligation to advise you, or any other person, or to make any investigations, as to any legal developments or factual matters arising subsequent to the date hereof that
might affect the opinions expressed herein.
[
Signature Page Follows
]
|
|
|
Very truly yours,
|
|
|
|
/s/ Thomas L. Osteraas
|
|
|
|
Thomas L. Osteraas
|
|
Principal Legal Counsel, Corporate & Securities of Medtronic, Inc.
|
[
Signature Page to Medtronic, Inc. Opinion
]
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration Statement on Form
S-3
of our report dated
June 28, 2016 relating to the financial statements, financial statement schedule and the effectiveness of internal control over financial reporting, which appears in Medtronic plc’s Annual Report on Form
10-K
for the year ended April 29, 2016. We also consent to the reference to us under the heading “Experts”
in such Registration Statement.
|
|
|
/s/ PricewaterhouseCoopers LLP
|
|
Minneapolis, MN
|
|
February 3, 2017
|
Exhibit 25.1
UNITED STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
T-1
STATEMENT OF
ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
|
☐
|
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b) (2)
|
WELLS FARGO
BANK, NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
|
|
|
|
|
A National Banking Association
|
|
94-1347393
|
|
(Jurisdiction of incorporation or
organization if not a U.S. national bank)
|
|
(I.R.S. Employer
Identification No.)
|
|
|
|
|
101 North Phillips Avenue
Sioux Falls, South Dakota
|
|
57104
|
|
(Address of principal executive offices)
|
|
(Zip code)
|
Wells Fargo & Company
Law Department, Trust Section
MAC
N9305-175
Sixth Street and Marquette Avenue, 17
th
Floor
Minneapolis, Minnesota 55479
(612)
667-4608
(Name, address and telephone number of agent for service)
MEDTRONIC PUBLIC LIMITED COMPANY
(Exact name of obligor as specified in its charter)
|
|
|
|
|
Ireland
|
|
98-1183488
|
|
(State or other jurisdiction of
incorporation or organization)
|
|
(I.R.S. Employer
Identification No.)
|
|
|
|
|
20 Lower Hatch Street
Dublin 2, Ireland
|
|
|
|
(Address of principal executive offices)
|
|
(Zip code)
|
MEDTRONIC GLOBAL HOLDINGS S.C.A.
(Exact name of obligor as specified in its charter)
|
|
|
|
|
Grand Duchy of Luxembourg
|
|
98-1202865
|
|
(State or other jurisdiction of
incorporation or organization)
|
|
(I.R.S. Employer
Identification No.)
|
|
|
|
|
3b, boulevard Prince Henri
L-1724
Luxembourg
|
|
|
|
(Address of principal executive offices)
|
|
(Zip code)
|
MEDTRONIC, INC.
(Exact
name of obligor as specified in its charter)
|
|
|
|
|
Minnesota
|
|
41-0793183
|
|
(State or other jurisdiction of
incorporation or organization)
|
|
(I.R.S. Employer
Identification No.)
|
|
|
|
|
710 Medtronic Parkway
Minneapolis, MN
|
|
55432
|
|
(Address of principal executive offices)
|
|
(Zip code)
|
SENIOR DEBT SECURITIES ISSUED BY
MEDTRONIC GLOBAL HOLDINGS S.C.A.
(Title of the indenture securities)
Item 1.
General Information.
Furnish the following information as to the trustee:
|
|
(a)
|
Name and address of each examining or supervising authority to which it is subject.
|
Comptroller of the Currency
Treasury Department
Washington, D.C.
Federal
Deposit Insurance Corporation
Washington, D.C.
Federal Reserve Bank of San Francisco
San Francisco, California 94120
|
|
(b)
|
Whether it is authorized to exercise corporate trust powers.
|
The trustee is authorized to
exercise corporate trust powers.
Item 2.
Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None with respect to the trustee.
No responses are included for Items
3-14
of this Form
T-1
because the obligor
is not in default as provided under Item 13.
Item 15.
Foreign Trustee.
Not applicable.
Item 16.
List of Exhibits.
List below all exhibits filed as a part of this Statement of Eligibility.
|
|
|
|
|
Exhibit 1.
|
|
A copy of the Articles of Association of the trustee now in effect.*
|
|
|
|
|
Exhibit 2.
|
|
A copy of the Comptroller of the Currency Certificate of Corporate Existence for Wells Fargo Bank, National Association, dated January 14, 2015.*
|
|
|
|
|
Exhibit 3.
|
|
A copy of the Comptroller of the Currency Certification of Fiduciary Powers for Wells Fargo Bank, National Association, dated January 6, 2014.*
|
|
|
|
|
Exhibit 4.
|
|
Copy of
By-laws
of the trustee as now in effect.*
|
|
|
|
|
Exhibit 5.
|
|
Not applicable.
|
|
|
|
|
Exhibit 6.
|
|
The consent of the trustee required by Section 321(b) of the Act.
|
|
|
|
|
Exhibit 7.
|
|
A copy of the latest report of condition of the trustee published pursuant to law or the requirements of its supervising or examining authority.
|
|
|
|
|
Exhibit 8.
|
|
Not applicable.
|
|
|
|
|
Exhibit 9.
|
|
Not applicable.
|
|
*
|
Incorporated by reference to the exhibit of the same number to the trustee’s Form
T-1
filed as exhibit to the Filing 305B2 dated March 13, 2015 of file number
333-190926.
|
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, Wells Fargo Bank, National Association, a national banking
association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Atlanta and State of
Georgia on the 3rd day of February, 2017.
|
|
|
WELLS FARGO BANK, NATIONAL ASSOCIATION
|
|
|
|
/s/ Stefan Victory
|
|
Stefan Victory
|
|
Vice President
|
EXHIBIT 6
February 3, 2017
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In accordance with Section 321(b) of the Trust Indenture Act of 1939, as amended, the undersigned hereby consents that reports of examination of the
undersigned made by Federal, State, Territorial, or District authorities authorized to make such examination may be furnished by such authorities to the Securities and Exchange Commission upon its request therefor.
|
|
|
Very truly yours,
|
|
|
|
WELLS FARGO BANK, NATIONAL ASSOCIATION
|
|
|
|
/s/ Stefan Victory
|
|
Stefan Victory
|
|
Vice President
|
Exhibit 7
Consolidated Report of Condition of
Wells Fargo Bank National Association
of 101 North Phillips Avenue, Sioux Falls, SD 57104
And Foreign and Domestic Subsidiaries,
at the close of business September 30, 2016, filed in accordance with 12 U.S.C. §161 for National Banks.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Dollar Amounts
|
|
|
|
|
|
|
|
In Millions
|
|
|
ASSETS
|
|
|
|
|
|
|
|
|
|
Cash and balances due from depository institutions:
|
|
|
|
|
|
|
|
|
|
Noninterest-bearing balances and currency and coin
|
|
|
|
|
|
$
|
17,662
|
|
|
Interest-bearing balances
|
|
|
|
|
|
|
228,654
|
|
|
Securities:
|
|
|
|
|
|
|
|
|
|
Held-to-maturity
securities
|
|
|
|
|
|
|
99,241
|
|
|
Available-for-sale
securities
|
|
|
|
|
|
|
273,020
|
|
|
Federal funds sold and securities purchased under agreements to resell:
|
|
|
|
|
|
|
|
|
|
Federal funds sold in domestic offices
|
|
|
|
|
|
|
76
|
|
|
Securities purchased under agreements to resell
|
|
|
|
|
|
|
22,123
|
|
|
Loans and lease financing receivables:
|
|
|
|
|
|
|
|
|
|
Loans and leases held for sale
|
|
|
|
|
|
|
22,444
|
|
|
Loans and leases, net of unearned income
|
|
|
919,725
|
|
|
|
|
|
|
LESS: Allowance for loan and lease losses
|
|
|
10,603
|
|
|
|
|
|
|
Loans and leases, net of unearned income and allowance
|
|
|
|
|
|
|
909,122
|
|
|
Trading Assets
|
|
|
|
|
|
|
46,588
|
|
|
Premises and fixed assets (including capitalized leases)
|
|
|
|
|
|
|
7,671
|
|
|
Other real estate owned
|
|
|
|
|
|
|
955
|
|
|
Investments in unconsolidated subsidiaries and associated companies
|
|
|
|
|
|
|
10,787
|
|
|
Direct and indirect investments in real estate ventures
|
|
|
|
|
|
|
0
|
|
|
Intangible assets
|
|
|
|
|
|
|
|
|
|
Goodwill
|
|
|
|
|
|
|
22,691
|
|
|
Other intangible assets
|
|
|
|
|
|
|
14,962
|
|
|
Other assets
|
|
|
|
|
|
|
64,823
|
|
|
|
|
|
|
|
|
|
|
|
|
Total assets
|
|
|
|
|
|
$
|
1,740,819
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
LIABILITIES
|
|
|
|
|
|
|
|
|
|
Deposits:
|
|
|
|
|
|
|
|
|
|
In domestic offices
|
|
|
|
|
|
$
|
1,167,424
|
|
|
Noninterest-bearing
|
|
|
375,955
|
|
|
|
|
|
|
Interest-bearing
|
|
|
791,469
|
|
|
|
|
|
|
In foreign offices, Edge and Agreement subsidiaries, and IBFs
|
|
|
|
|
|
|
154,137
|
|
|
Noninterest-bearing
|
|
|
1,032
|
|
|
|
|
|
|
Interest-bearing
|
|
|
153,105
|
|
|
|
|
|
|
Federal funds purchased and securities sold under agreements to repurchase:
|
|
|
|
|
|
|
|
|
|
Federal funds purchased in domestic offices
|
|
|
|
|
|
|
6,166
|
|
|
Securities sold under agreements to repurchase
|
|
|
|
|
|
|
20,719
|
|
|
|
|
|
|
|
|
|
|
Dollar Amounts
In Millions
|
|
|
|
|
|
Trading liabilities
|
|
|
25,666
|
|
|
Other borrowed money
|
|
|
|
|
|
(includes mortgage indebtedness and obligations under capitalized leases)
|
|
|
154,595
|
|
|
Subordinated notes and debentures
|
|
|
13,610
|
|
|
Other liabilities
|
|
|
38,863
|
|
|
|
|
|
|
|
|
Total liabilities
|
|
$
|
1,581,180
|
|
|
|
|
|
EQUITY CAPITAL
|
|
|
|
|
|
Perpetual preferred stock and related surplus
|
|
|
0
|
|
|
Common stock
|
|
|
519
|
|
|
Surplus (exclude all surplus related to preferred stock)
|
|
|
106,704
|
|
|
Retained earnings
|
|
|
47,765
|
|
|
Accumulated other comprehensive income
|
|
|
4,257
|
|
|
Other equity capital components
|
|
|
0
|
|
|
|
|
|
|
|
|
Total bank equity capital
|
|
|
159,245
|
|
|
Noncontrolling (minority) interests in consolidated subsidiaries
|
|
|
394
|
|
|
|
|
|
|
|
|
|
|
|
Total equity capital
|
|
|
159,639
|
|
|
|
|
|
|
|
|
Total liabilities, and equity capital
|
|
$
|
1,740,819
|
|
|
|
|
|
|
|
I, John R. Shrewsberry, Sr. EVP & CFO of the above-named bank do hereby declare that this Report of Condition has
been prepared
in conformance with the instructions issued by the appropriate Federal regulatory authority and is true to the best of my knowledge
and belief.
|
|
|
John R. Shrewsberry
|
|
Sr. EVP & CFO
|
We, the undersigned directors, attest to the correctness of this Report of Condition and declare that it has been
examined by us and to the best of our knowledge and belief has been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and is true and correct.
|
|
|
Directors
|
|
James Quigley
|
|
Enrique Hernandez, Jr
|
|
Timothy Sloan
|
Exhibit 25.3
UNITED STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
T-1
STATEMENT OF
ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
|
☐
|
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b) (2)
|
WELLS FARGO
BANK, NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
|
|
|
|
|
A National Banking Association
|
|
94-1347393
|
|
(Jurisdiction of incorporation or
organization if not a U.S. national bank)
|
|
(I.R.S. Employer
Identification No.)
|
|
|
|
|
101 North Phillips Avenue
Sioux Falls, South Dakota
|
|
57104
|
|
(Address of principal executive offices)
|
|
(Zip code)
|
Wells Fargo & Company
Law Department, Trust Section
MAC
N9305-175
Sixth Street and Marquette Avenue, 17
th
Floor
Minneapolis, Minnesota 55479
(612)
667-4608
(Name, address and telephone number of agent for service)
MEDTRONIC PUBLIC LIMITED COMPANY
(Exact name of obligor as specified in its charter)
|
|
|
|
|
Ireland
|
|
98-1183488
|
|
(State or other jurisdiction of
incorporation or organization)
|
|
(I.R.S. Employer
Identification No.)
|
|
|
|
|
20 Lower Hatch Street
Dublin 2, Ireland
|
|
|
|
(Address of principal executive offices)
|
|
(Zip code)
|
MEDTRONIC GLOBAL HOLDINGS S.C.A.
(Exact name of obligor as specified in its charter)
|
|
|
|
|
Grand Duchy of Luxembourg
|
|
98-1202865
|
|
(State or other jurisdiction of
incorporation or organization)
|
|
(I.R.S. Employer
Identification No.)
|
|
|
|
|
3b, boulevard Prince Henri
L-1724
Luxembourg
|
|
|
|
(Address of principal executive offices)
|
|
(Zip code)
|
MEDTRONIC, INC.
(Exact
name of obligor as specified in its charter)
|
|
|
|
|
Minnesota
|
|
41-0793183
|
|
(State or other jurisdiction of
incorporation or organization)
|
|
(I.R.S. Employer
Identification No.)
|
|
|
|
|
710 Medtronic Parkway
Minneapolis, MN
|
|
55432
|
|
(Address of principal executive offices)
|
|
(Zip code)
|
SENIOR DEBT SECURITIES ISSUED BY
MEDTRONIC, INC.
(Title of
the indenture securities)
Item 1.
General Information.
Furnish the following information as to the trustee:
|
|
(a)
|
Name and address of each examining or supervising authority to which it is subject.
|
Comptroller of the Currency
Treasury Department
Washington, D.C.
Federal
Deposit Insurance Corporation
Washington, D.C.
Federal Reserve Bank of San Francisco
San Francisco, California 94120
|
|
(b)
|
Whether it is authorized to exercise corporate trust powers.
|
The trustee is authorized to
exercise corporate trust powers.
Item 2.
Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None with respect to the trustee.
No responses are included for Items
3-14
of this Form
T-1
because the obligor
is not in default as provided under Item 13.
Item 15.
Foreign Trustee.
Not applicable.
Item 16.
List of Exhibits.
List below all exhibits filed as a part of this Statement of Eligibility.
|
|
|
|
|
Exhibit 1.
|
|
A copy of the Articles of Association of the trustee now in effect.*
|
|
|
|
|
Exhibit 2.
|
|
A copy of the Comptroller of the Currency Certificate of Corporate Existence for Wells Fargo Bank, National Association, dated January 14, 2015.*
|
|
|
|
|
Exhibit 3.
|
|
A copy of the Comptroller of the Currency Certification of Fiduciary Powers for Wells Fargo Bank, National Association, dated January 6, 2014.*
|
|
|
|
|
Exhibit 4.
|
|
Copy of
By-laws
of the trustee as now in effect.*
|
|
|
|
|
Exhibit 5.
|
|
Not applicable.
|
|
|
|
|
Exhibit 6.
|
|
The consent of the trustee required by Section 321(b) of the Act.
|
|
|
|
|
Exhibit 7.
|
|
A copy of the latest report of condition of the trustee published pursuant to law or the requirements of its supervising or examining authority.
|
|
|
|
|
Exhibit 8.
|
|
Not applicable.
|
|
|
|
|
Exhibit 9.
|
|
Not applicable.
|
|
*
|
Incorporated by reference to the exhibit of the same number to the trustee’s Form
T-1
filed as exhibit to the Filing 305B2 dated March 13, 2015 of file number
333-190926.
|
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, Wells Fargo Bank, National Association, a national banking
association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Atlanta and State of
Georgia on the 3rd day of February, 2017.
|
|
|
|
|
WELLS FARGO BANK, NATIONAL ASSOCIATION
|
|
|
|
/s/ Stefan Victory
|
|
Stefan Victory
|
|
Vice President
|
EXHIBIT 6
February 3, 2017
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In accordance with Section 321(b) of the Trust Indenture Act of 1939, as amended, the undersigned hereby consents that reports of examination of the
undersigned made by Federal, State, Territorial, or District authorities authorized to make such examination may be furnished by such authorities to the Securities and Exchange Commission upon its request therefor.
|
|
|
|
|
Very truly yours,
|
|
|
|
WELLS FARGO BANK, NATIONAL ASSOCIATION
|
|
|
|
/s/ Stefan Victory
|
|
Stefan Victory
|
|
Vice President
|
Exhibit 7
Consolidated Report of Condition of
Wells Fargo Bank National Association
of 101 North Phillips Avenue, Sioux Falls, SD 57104
And Foreign and Domestic Subsidiaries,
at the close of business September 30, 2016, filed in accordance with 12 U.S.C. §161 for National Banks.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Dollar Amounts
|
|
|
|
|
|
|
|
In Millions
|
|
|
ASSETS
|
|
|
|
|
|
|
|
|
|
Cash and balances due from depository institutions:
|
|
|
|
|
|
|
|
|
|
Noninterest-bearing balances and currency and coin
|
|
|
|
|
|
$
|
17,662
|
|
|
Interest-bearing balances
|
|
|
|
|
|
|
228,654
|
|
|
Securities:
|
|
|
|
|
|
|
|
|
|
Held-to-maturity
securities
|
|
|
|
|
|
|
99,241
|
|
|
Available-for-sale
securities
|
|
|
|
|
|
|
273,020
|
|
|
Federal funds sold and securities purchased under agreements to resell:
|
|
|
|
|
|
|
|
|
|
Federal funds sold in domestic offices
|
|
|
|
|
|
|
76
|
|
|
Securities purchased under agreements to resell
|
|
|
|
|
|
|
22,123
|
|
|
Loans and lease financing receivables:
|
|
|
|
|
|
|
|
|
|
Loans and leases held for sale
|
|
|
|
|
|
|
22,444
|
|
|
Loans and leases, net of unearned income
|
|
|
919,725
|
|
|
|
|
|
|
LESS: Allowance for loan and lease losses
|
|
|
10,603
|
|
|
|
|
|
|
Loans and leases, net of unearned income and allowance
|
|
|
|
|
|
|
909,122
|
|
|
Trading Assets
|
|
|
|
|
|
|
46,588
|
|
|
Premises and fixed assets (including capitalized leases)
|
|
|
|
|
|
|
7,671
|
|
|
Other real estate owned
|
|
|
|
|
|
|
955
|
|
|
Investments in unconsolidated subsidiaries and associated companies
|
|
|
|
|
|
|
10,787
|
|
|
Direct and indirect investments in real estate ventures
|
|
|
|
|
|
|
0
|
|
|
Intangible assets
|
|
|
|
|
|
|
|
|
|
Goodwill
|
|
|
|
|
|
|
22,691
|
|
|
Other intangible assets
|
|
|
|
|
|
|
14,962
|
|
|
Other assets
|
|
|
|
|
|
|
64,823
|
|
|
|
|
|
|
|
|
|
|
|
|
Total assets
|
|
|
|
|
|
$
|
1,740,819
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
LIABILITIES
|
|
|
|
|
|
|
|
|
|
Deposits:
|
|
|
|
|
|
|
|
|
|
In domestic offices
|
|
|
|
|
|
$
|
1,167,424
|
|
|
Noninterest-bearing
|
|
|
375,955
|
|
|
|
|
|
|
Interest-bearing
|
|
|
791,469
|
|
|
|
|
|
|
In foreign offices, Edge and Agreement subsidiaries, and IBFs
|
|
|
|
|
|
|
154,137
|
|
|
Noninterest-bearing
|
|
|
1,032
|
|
|
|
|
|
|
Interest-bearing
|
|
|
153,105
|
|
|
|
|
|
|
Federal funds purchased and securities sold under agreements to repurchase:
|
|
|
|
|
|
|
|
|
|
Federal funds purchased in domestic offices
|
|
|
|
|
|
|
6,166
|
|
|
Securities sold under agreements to repurchase
|
|
|
|
|
|
|
20,719
|
|
|
|
|
|
|
|
|
|
|
Dollar Amounts
In Millions
|
|
|
|
|
|
Trading liabilities
|
|
|
25,666
|
|
|
Other borrowed money
|
|
|
|
|
|
(includes mortgage indebtedness and obligations under capitalized leases)
|
|
|
154,595
|
|
|
Subordinated notes and debentures
|
|
|
13,610
|
|
|
Other liabilities
|
|
|
38,863
|
|
|
|
|
|
|
|
|
Total liabilities
|
|
$
|
1,581,180
|
|
|
|
|
|
EQUITY CAPITAL
|
|
|
|
|
|
Perpetual preferred stock and related surplus
|
|
|
0
|
|
|
Common stock
|
|
|
519
|
|
|
Surplus (exclude all surplus related to preferred stock)
|
|
|
106,704
|
|
|
Retained earnings
|
|
|
47,765
|
|
|
Accumulated other comprehensive income
|
|
|
4,257
|
|
|
Other equity capital components
|
|
|
0
|
|
|
|
|
|
|
|
|
Total bank equity capital
|
|
|
159,245
|
|
|
Noncontrolling (minority) interests in consolidated subsidiaries
|
|
|
394
|
|
|
|
|
|
|
|
|
|
|
|
Total equity capital
|
|
|
159,639
|
|
|
|
|
|
|
|
|
Total liabilities, and equity capital
|
|
$
|
1,740,819
|
|
|
|
|
|
|
|
I, John R. Shrewsberry, Sr. EVP & CFO of the above-named bank do hereby declare that this Report of Condition has
been prepared
in conformance with the instructions issued by the appropriate Federal regulatory authority and is true to the best of my knowledge
and belief.
|
|
|
John R. Shrewsberry
|
|
Sr. EVP & CFO
|
We, the undersigned directors, attest to the correctness of this Report of Condition and declare that it has been
examined by us and to the best of our knowledge and belief has been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and is true and correct.
|
|
|
Directors
|
|
James Quigley
|
|
Enrique Hernandez, Jr
|
|
Timothy Sloan
|