UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT
TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): September 14, 2015
Commission file number 001-11625
Pentair plc
(Exact name of Registrant as specified in its charter)
|
|
|
Ireland |
|
98-1141328 |
(State or other jurisdiction of
incorporation or organization) |
|
(I.R.S. Employer
Identification number) |
P.O. Box 471, Sharp Street, Walkden, Manchester, M28 8BU United Kingdom
(Address of principal executive offices, including Zip Code)
Registrants telephone number, including area code: +44-161-703-1885
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the
following provisions:
¨ |
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
¨ |
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
¨ |
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
¨ |
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
ITEM 2.03 |
Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant. |
On September 17, 2015, Pentair plc (the Company), Pentair Finance S.A. (Pentair Finance) and Pentair Investments
Switzerland GmbH (Pentair Investments) completed a public offering (the Offering) of 500.0 million aggregate principal amount of Pentair Finances 2.450% Senior Notes due 2019 (the Notes). Pursuant
to the terms of the underwriting agreement (the Underwriting Agreement), dated September 14, 2015, by and among the Company, Pentair Finance, Pentair Investments and Citigroup Global Markets Limited, J.P. Morgan Securities plc and
Merrill Lynch International as representatives of the several underwriters listed therein (the Underwriters), Pentair Finance sold and the Underwriters purchased for resale to the public the Notes. The Notes are fully and unconditionally
guaranteed as to payment of principal and interest by the Company and Pentair Investments (the Guarantees).
The Notes were
issued under an Indenture (the Base Indenture), dated as of September 16, 2015, among the Company, Pentair Finance, Pentair Investments and U.S. Bank National Association, as trustee (the Trustee), as supplemented by a
Fourth Supplemental Indenture, between the Company, Pentair Finance, Pentair Investments and the Trustee, establishing the terms and providing for the issuance of the Notes (the Supplemental Indenture).
The Supplemental Indenture and form of the Note, which is included therein, provide, among other things, that the Notes bear interest at a
rate of 2.450% per year (payable annually in arrears on September 17 of each year, beginning on September 17, 2016), and will mature on September 17, 2019. The interest rate payable on the Notes is subject to adjustment from time
to time if a debt rating agency downgrades (or subsequently upgrades) the debt rating assigned to the Notes.
The Company intends to use
the net proceeds from the Offering, and the net proceeds from the offering of $500.0 million aggregate principal amount of Pentair Finances 2.900% Senior Notes due 2018, $400.0 million aggregate principal amount of Pentair Finances
3.625% Senior Notes due 2020 and $250.0 million aggregate principal amount of Pentair Finances 4.650% Senior Notes due 2025, which closed on September 16, 2015 (the Concurrent Offering), and borrowings under the Companys
revolving credit facility to finance the acquisition of ERICO Global Company (ERICO), including the repayment of outstanding ERICO debt, for $1.8 billion. If the Company has not consummated the ERICO acquisition by December 31, 2015
or if the merger agreement relating to the acquisition of ERICO is terminated on or prior to December 31, 2015, then the Notes are subject to special mandatory redemption at a redemption price equal to 101% of the aggregate principal amount of
the Notes, plus accrued and unpaid interest, if any, from the date of original issuance to, but not including, the special mandatory redemption date.
At any time, Pentair Finance may redeem the Notes at a make-whole redemption price, plus accrued and unpaid interest on the Notes
being redeemed to, but not including, the redemption date. Pentair Finance is required to offer to repurchase the Notes for cash at a price of 101% of the aggregate principal amount of the Notes, plus accrued and unpaid interest, upon the occurrence
of a change of control triggering event. Pentair Finance also may redeem all, but not less than all, of the Notes in the event of certain tax changes affecting such Notes.
The Base Indenture and the Supplemental Indenture contain customary events of default. If an event of default occurs and is continuing with
respect to the Notes, then the Trustee or the holders of at least 25% of the principal amount of the outstanding Notes may declare the Notes to be due and payable immediately. In addition, in the case of an event of default arising from certain
events of bankruptcy, insolvency or reorganization, all outstanding Notes will become due and payable immediately.
The descriptions of
the Underwriting Agreement, Base Indenture and the Supplemental Indenture set forth above are qualified by reference to the Underwriting Agreement, Base Indenture and the Supplemental Indenture filed as Exhibits 1.1, 4.1 and 4.2 to this Current
Report on Form 8-K and incorporated by reference herein.
The Notes and the Guarantees are registered under the Securities Act of
1933, as amended, pursuant to a Registration Statement on Form S-3 (Registration No. 333-204066) that the Company, Pentair Finance and Pentair Investments filed with the Securities and Exchange Commission (the SEC) on May 11,
2015. The Company is also filing certain exhibits as part of this Current Report on Form 8-K for purposes of such Registration Statement. See Item 9.01. Financial Statements and Exhibits.
1
ITEM 9.01 |
Financial Statements and Exhibits. |
(d) |
Exhibits. The following exhibits are filed herewith: |
|
|
|
Exhibit |
|
Description |
|
|
1.1 |
|
Underwriting Agreement, dated September 14, 2015, among Pentair plc, Pentair Finance S.A. and Pentair Investments Switzerland GmbH, and Citigroup Global Markets Limited, J.P. Morgan Securities plc and Merrill Lynch,
International as representatives of the several underwriters listed therein. |
|
|
4.1 |
|
Indenture, dated as of September 16, 2015, among Pentair Finance S.A. (as Issuer), Pentair plc (as Parent and Guarantor), Pentair Investments Switzerland GmbH (as Guarantor) and U.S. Bank National Association (as Trustee)
(Incorporated by reference to Exhibit 4.1 in the Current Report on Form 8-K of Pentair plc filed with the SEC on September 16, 2015 (File No. 001-11625). |
|
|
4.2 |
|
Fourth Supplemental Indenture, dated as of September 17, 2015, among Pentair Finance S.A. (as Issuer), Pentair plc (as Parent and Guarantor), Pentair Investments Switzerland GmbH (as Guarantor) and U.S. Bank National Association (as
Trustee). |
|
|
5.1 |
|
Opinion of Foley & Lardner LLP with respect to the Notes and Guarantees. |
|
|
5.2 |
|
Opinion of Allen & Overy, société en commandite simple (inscrite au barreau de Luxembourg), with respect to the Notes. |
|
|
5.3 |
|
Opinion of Arthur Cox with respect to the Guarantees issued by Pentair plc. |
|
|
5.4 |
|
Opinion of Bär & Karrer with respect to the Guarantees issued by Pentair Investments Switzerland GmbH. |
|
|
23.1 |
|
Consent of Foley & Lardner LLP (included in Exhibit 5.1). |
|
|
23.2 |
|
Consent of Allen & Overy, société en commandite simple (inscrite au barreau de Luxembourg), (included in Exhibit 5.2). |
|
|
23.3 |
|
Consent of Arthur Cox (included in Exhibit 5.3). |
|
|
23.4 |
|
Consent of Bär & Karrer (included in Exhibit 5.4). |
2
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned, hereunto duly authorized, on September 17, 2015.
|
|
|
PENTAIR PLC |
Registrant |
|
|
By: |
|
/s/ Angela D. Lageson |
|
|
Angela D. Lageson |
|
|
Senior Vice President, General Counsel and Secretary |
3
PENTAIR PLC
Exhibit Index to Current Report on Form 8-K
Dated September 14, 2015
|
|
|
Exhibit |
|
Description |
|
|
1.1 |
|
Underwriting Agreement, dated September 14, 2015, among Pentair plc, Pentair Finance S.A. and Pentair Investments Switzerland GmbH, and Citigroup Global Markets Limited, J.P. Morgan Securities plc and Merrill Lynch,
International as representatives of the several underwriters listed therein. |
|
|
4.1 |
|
Indenture, dated as of September 16, 2015, among Pentair Finance S.A. (as Issuer), Pentair plc (as Parent and Guarantor), Pentair Investments Switzerland GmbH (as Guarantor) and U.S. Bank National Association (as Trustee)
(Incorporated by reference to Exhibit 4.1 in the Current Report on Form 8-K of Pentair plc filed with the SEC on September 16, 2015 (File No. 001-11625). |
|
|
4.2 |
|
Fourth Supplemental Indenture, dated as of September 17, 2015, among Pentair Finance S.A. (as Issuer), Pentair plc (as Parent and Guarantor), Pentair Investments Switzerland GmbH (as Guarantor) and U.S. Bank National Association (as
Trustee). |
|
|
5.1 |
|
Opinion of Foley & Lardner LLP with respect to the Notes and Guarantees. |
|
|
5.2 |
|
Opinion of Allen & Overy, société en commandite simple (inscrite au barreau de Luxembourg), with respect to the Notes. |
|
|
5.3 |
|
Opinion of Arthur Cox with respect to the Guarantees issued by Pentair plc. |
|
|
5.4 |
|
Opinion of Bär & Karrer with respect to the Guarantees issued by Pentair Investments Switzerland GmbH. |
|
|
23.1 |
|
Consent of Foley & Lardner LLP (included in Exhibit 5.1). |
|
|
23.2 |
|
Consent of Allen & Overy, société en commandite simple (inscrite au barreau de Luxembourg), (included in Exhibit 5.2). |
|
|
23.3 |
|
Consent of Arthur Cox (included in Exhibit 5.3). |
|
|
23.4 |
|
Consent of Bär & Karrer (included in Exhibit 5.4). |
4
Exhibit 1.1
EXECUTION VERSION
500,000,000
Pentair
Finance S.A.
2.450% Senior Notes due 2019
Underwriting Agreement
September 14, 2015
Citigroup Global Markets Limited
J.P. Morgan Securities plc
Merrill Lynch International
As Representatives
of the
several Underwriters listed
in Schedule 1 hereto
c/o Citigroup Global
Markets Limited
Citigroup Centre
Canada Square
Canary Wharf
London E14 5LB
United Kingdom
J.P. Morgan Securities plc
25 Bank Street
Canary Wharf
London E14 5JP
United Kingdom
Merrill Lynch International
2 King Edward Street
London EC1A 1HQ
United Kingdom
Ladies and Gentlemen:
Pentair Finance S.A., a
Luxembourg public limited liability company (société anonyme) having its registered office at 26 Boulevard Royal, L-2449 Luxembourg and registered with the Luxembourg trade and companies register under number B 166305 (the
Issuer), proposes to issue and sell to the several Underwriters listed in Schedule 1 hereto (the Underwriters), for whom you are acting as representatives (the Representatives),
500,000,000 principal amount of its 2.450% Senior Notes due
2019 (the 2019 Notes or the Securities). The Securities will be issued pursuant to an indenture to be dated as of September 16, 2015 (the Base
Indenture) among the Issuer, Pentair plc, an Irish public limited company (the Parent), Pentair Investments Switzerland GmbH, a Swiss Gesellschaft mit beschränkter Haftung (Investments and,
together with Parent, the Guarantors), and U.S. Bank National Association, as trustee (the Trustee), as amended by a Supplemental Indenture to be dated as of September 17, 2015 (the Supplemental
Indenture and together with the Base Indenture, the Indenture), and will be guaranteed as to payment on a senior basis by each of the Guarantors (the Guarantees).
The Issuer and the Guarantors hereby confirm their agreement with the several Underwriters concerning the purchase and sale of the Securities,
as follows:
1. Registration Statement. The Issuer and the Guarantors have prepared and filed with the Securities and Exchange
Commission (the Commission) under the Securities Act of 1933, as amended, and the rules and regulations of the Commission thereunder (collectively, the Securities Act), an automatic shelf registration statement
on Form S-3 (File No. 333-204066), including a prospectus, relating to the Securities. Such registration statement, as of the time it became effective, including the information, if any, deemed pursuant to Rule 430A, 430B or 430C under the
Securities Act to be part of the registration statement at the time of its effectiveness (Rule 430 Information), is referred to herein as the Registration Statement; and as used herein, the term
Preliminary Prospectus means each prospectus included in the Registration Statement (and any amendments thereto) before the Time of Sale (as defined below), any prospectus filed with the Commission pursuant to Rule 424(a) under
the Securities Act and the prospectus included in the Registration Statement immediately prior to the Time of Sale that omits Rule 430 Information, and the term Prospectus means the prospectus in the form first used (or made
available upon request of purchasers pursuant to Rule 173 under the Securities Act) in connection with confirmation of sales of the Securities. Any reference in this Agreement to the Registration Statement, any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the Securities Act, as of the effective date of the Registration Statement or the date of such Preliminary
Prospectus or the Prospectus, as the case may be and any reference to amend, amendment or supplement with respect to the Registration Statement, any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include any documents filed after such date under the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder (collectively, the Exchange Act) that
are deemed to be incorporated by reference therein. Capitalized terms used but not defined herein shall have the meanings given to such terms in the Registration Statement and the Prospectus.
At or prior to 5:50 p.m., London time, the time when sales of the Securities were first made (the Time of Sale), the Parent
had prepared the following information (collectively, the Time of Sale Information): a Preliminary Prospectus dated September 10, 2015, and each free-writing prospectus (as defined pursuant to Rule 405 under the
Securities Act) listed on Annex A hereto.
2
The Issuer intends to use the proceeds of the offering of the Securities, together with the
proceeds from offering of the Dollar Notes (as defined below), to finance the Acquisition (as defined below), to repay outstanding commercial paper issued by the Issuer and for general corporate purposes. Pursuant to an agreement and plan of merger
dated August 15, 2015 (together with the schedules and exhibits thereto, the Merger Agreement) among the Parent, Pentair Lionel Acquisition Co., a Delaware corporation and an indirect wholly owned subsidiary of the Parent
(the Acquiror), a newly formed wholly owned subsidiary of the Acquiror (Acquisition Sub) and ERICO Global Company, an Ohio corporation (the ERICO), the Acquiror will acquire all the
issued and outstanding equity interests of ERICO through a merger of Acquisition Sub with and into ERICO (the Acquisition). In connection with the Acquisition, the Issuer will advance or otherwise make available to the Acquiror
the funds required to pay the Acquisition consideration, to pay all outstanding funded indebtedness of ERICO and its subsidiaries and to pay the fees and expenses incurred in connection with the foregoing transactions (the Acquisition
Costs). All or a portion of the Acquisition Costs will be financed by (A) the issuance of the Securities, (B) the issuance of the three series of Unites States dollar-denominated senior notes of the Issuer (together, the
Dollar Notes) in the public offering that priced on September 9, 2015, (C) borrowings under the Amended and Restated Credit Agreement dated as of October 3, 2014, as amended on August 28, 2015 and
September 2, 2015 (as in effect on the date hereof, the Credit Agreement), among the Issuer, the Parent, Investments, Pentair, Inc., the lenders party thereto and Bank of America, N.A., as administrative agent or
(D) borrowings under a $1,800,000,000 senior unsecured 364-day bridge loan facility on terms set forth in that certain commitment letter dated August 15, 2015 (the Bridge Facility).
2. Purchase of the Securities by the Underwriters.
(a) The Issuer agrees to issue and sell the Securities to the several Underwriters as provided in this Agreement, and each Underwriter, on the
basis of the representations, warranties and agreements set forth herein and subject to the conditions set forth herein, agrees, severally and not jointly, to purchase from the Issuer the respective principal amount of the 2019 Notes set forth
opposite such Underwriters name in Schedule 1 hereto at a price, payable in euro, equal to 99.318% of the principal amount thereof plus accrued interest, if any, from September 17, 2015 to the Closing Date (as defined below). The Issuer
will not be obligated to deliver any of the Securities except upon payment for all the Securities to be purchased as provided herein.
(b)
The Issuer and the Guarantors understand that the Underwriters intend to make a public offering of the Securities as soon after the effectiveness of this Agreement as in the judgment of the Representatives is advisable, and initially to offer the
Securities on the terms set forth in the Time of Sale Information. The Issuer and the Guarantors acknowledge and agree that the Underwriters may offer and sell Securities to or through any affiliate of an Underwriter and that any such affiliate may
offer and sell Securities purchased by it to or through any Underwriter.
3
(c) Payment for and delivery of the Securities will be made at the offices of Cravath,
Swaine & Moore LLP, Worldwide Plaza, 825 Eighth Avenue, New York, NY 10019 at 10:00 a.m., London time, on September 17, 2015, or at such other time or place on the same or such other date, not later than the fifth business day
thereafter, as the Representatives and the Issuer may agree upon in writing. The time and date of such payment and delivery is referred to herein as the Closing Date.
(d) Payment for the Securities shall be made in euro by wire transfer in immediately available funds to the account(s) specified by the Issuer
to the Representatives against delivery through the facilities of a common depositary or its nominee (the Common Depositary) on behalf of Euroclear Bank S.A./N.V. (Euroclear) and Clearstream Banking,
société anonyme (Clearstream), unless the Representatives shall otherwise instruct, for the account of the Underwriters, of one or more global notes representing the Securities (collectively, the Global
Note), with any transfer taxes payable in connection with the sale of the Securities duly paid by the Issuer. The Global Note will be made available for inspection by the Representatives not later than 1:00 p.m., New York City time, on the
business day prior to the Closing Date.
(e) The Issuer and the Guarantors acknowledge and agree that each Underwriter is acting solely in
the capacity of an arms-length contractual counterparty to the Issuer and the Guarantors with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as a financial
advisor or a fiduciary to, or an agent of, the Issuer, the Guarantors or any other person. Additionally, neither the Representatives nor any other Underwriter is advising the Issuer, the Guarantors or any other person as to any legal, tax,
investment, accounting or regulatory matters in any jurisdiction. The Issuer and the Guarantors shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of
the transactions contemplated hereby, and neither the Representatives nor any other Underwriter shall have any responsibility or liability to the Issuer or the Guarantors with respect thereto. Any review by the Representatives, any Underwriter of
the Issuer, or the Guarantors of the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Representatives or such Underwriter and shall not be on behalf of the Issuer or the
Guarantors or any other person.
3. Representations and Warranties of the Issuer and the Guarantors. The Issuer and the Guarantors
jointly and severally represent and warrant to each Underwriter that:
(a) Preliminary Prospectus. No order preventing or
suspending the use of any Preliminary Prospectus has been issued by the Commission, and each Preliminary Prospectus, at the time of filing thereof, complied in all material respects with the Securities Act and did not contain any untrue statement of
a material fact or omit to
4
state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
provided that the Issuer and the Guarantors make no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Issuer and the
Guarantors in writing by such Underwriter through the Representatives expressly for use in any Preliminary Prospectus.
(b) Time of
Sale Information. The Time of Sale Information, at the Time of Sale did not, and at the Closing Date will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading; provided that the Issuer and the Guarantors make no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Issuer and the Guarantors in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus, the Time of Sale Information or the Prospectus. No
statement of material fact included in the Prospectus has been omitted from the Time of Sale Information and no statement of material fact included in the Time of Sale Information that is required to be included in the Prospectus has been omitted
therefrom.
(c) Issuer Free Writing Prospectus. The Issuer and the Guarantors (including their agents and representatives, other
than the Underwriters in their capacity as such) have not prepared, made, used, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any written communication (as defined in Rule 405 under
the Securities Act) that constitutes an offer to sell or solicitation of an offer to buy the Securities (each such communication by the Issuer and the Guarantors or their agents and representatives (other than a communication referred to in clauses
(i) (ii) and (iii) below) an Issuer Free Writing Prospectus) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities
Act, (ii) the Preliminary Prospectus, (iii) the Prospectus, (iv) the documents listed on Annex A hereto as constituting part of the Time of Sale Information and (v) any electronic road show or other written communications,
in each case approved in writing in advance by the Representatives. Each such Issuer Free Writing Prospectus complies in all material respects with the Securities Act, has been or will be (within the time period specified in Rule 433) filed in
accordance with the Securities Act (to the extent required thereby) and, when taken together with the Preliminary Prospectus accompanying, or delivered prior to delivery of, or filed prior to the first use of such Issuer Free Writing Prospectus, did
not at the Time of Sale, and at the Closing Date will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were
made, not misleading; provided that the Issuer and the Guarantors make no representation or warranty with respect to any statements or omissions made in each such Issuer Free Writing Prospectus in reliance upon and in conformity with
information relating to any Underwriter furnished to the Issuer and the Guarantors in writing by such Underwriter through the Representatives expressly for use in any Issuer Free Writing Prospectus.
5
(d) Registration Statement and Prospectus. The Registration Statement is an
automatic shelf registration statement as defined under Rule 405 of the Securities Act that has been filed with the Commission not earlier than three years prior to the date hereof; and no notice of objection of the Commission to the use
of such registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has been received by the Issuer or the Guarantors. No order suspending the effectiveness of the Registration Statement has
been issued by the Commission and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Issuer or related to the offering of Securities has been initiated or threatened by the Commission; as of the
applicable effective date of the Registration Statement and any amendment thereto, the Registration Statement complied and will comply in all material respects with the Securities Act and the Trust Indenture Act of 1939, as amended, and the rules
and regulations of the Commission thereunder (collectively, the Trust Indenture Act), and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading; and as of the date of the Prospectus and any amendment or supplement thereto and as of the Closing Date, the Prospectus will not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Issuer and the Guarantors make
no representation or warranty with respect to (i) that part of the Registration Statement that constitutes the Statement of Eligibility and Qualification (Form T-1) of the Trustee under the Trust Indenture Act or (ii) any statements or
omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Issuer and the Guarantors in writing by such Underwriter through the Representatives expressly for use in the Registration Statement or
the Prospectus or any amendment or supplement thereto.
(e) Incorporated Documents. The documents incorporated by reference in each
of the Registration Statement, the Prospectus and the Time of Sale Information, when they were filed with the Commission conformed in all material respects to the requirements of the Exchange Act, and none of such documents contained any untrue
statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and any further
documents so filed and incorporated by reference in the Registration Statement, the Prospectus or the Time of Sale Information, when such documents become effective or are filed with the Commission, as the case may be, will conform in all material
respects to the requirements of the Securities Act or the Exchange Act, as applicable, and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not misleading.
6
(f) Financial Statements. The financial statements and the related notes thereto included
or incorporated by reference in each of the Registration Statement, the Time of Sale Information and the Prospectus comply in all material respects with the applicable requirements of the Securities Act and the Exchange Act, as applicable, and
present fairly the financial position of the Parent and its subsidiaries as of the dates indicated and the results of their operations and the changes in their cash flows for the periods specified; such financial statements have been prepared in
conformity with U.S. generally accepted accounting principles applied on a consistent basis throughout the periods covered thereby, and the supporting schedules included or incorporated by reference in each of the Registration Statement, the
Prospectus and the Time of Sale Information present fairly, in all material respects, the information required to be stated therein; and the other financial information (other than the ERICO financial information) included or incorporated by
reference in each of the Registration Statement, the Time of Sale Information and the Prospectus has been derived from the accounting records of the Parent and its subsidiaries and presents fairly, in all material respects the information shown
thereby. The ERICO financial information included or incorporated by reference in each of the Registration Statement, the Time of Sale Information and the Prospectus has been derived from the accounting records of ERICO and its subsidiaries and
presents fairly, in all material respects the information shown thereby. The interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Registration Statement, the Prospectus and the Time of Sale
Information fairly presents the information called for in all material respects and is prepared in accordance with the Commissions rules and guidelines applicable thereto.
(g) No Material Adverse Change. Since the date of the most recent financial statements of the Parent included or incorporated by
reference in each of the Registration Statement, the Time of Sale Information and the Prospectus, (i) there has not been any change in the capital stock (other than the issuance of ordinary shares upon exercise of stock options or vesting of
awards described as outstanding in, and the grant of options and awards under existing equity incentive plans described in, the Registration Statement, the Time of Sale Information and the Prospectus) or long-term debt of Parent or any of its
subsidiaries (other than borrowings under the Credit Agreement in an immaterial amount), or any dividend or distribution of any kind declared, set aside for payment, paid or made by Parent on any class of capital stock, or any material adverse
change, or any development involving a prospective material adverse change, in or affecting the business, financial position or results of operations of Parent and its subsidiaries taken as a whole; (ii) neither Parent nor any of its
subsidiaries has entered into any transaction or agreement that is material to Parent and its subsidiaries taken as a whole or incurred any liability or obligation, direct or contingent, that is material to Parent and its subsidiaries taken as a
whole, that in each case, has not been disclosed in the Registration Statement, the Time of Sale Information and the Prospectus; and (iii) neither Parent nor any of its subsidiaries has sustained any material loss or interference with its
business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor disturbance or dispute or any action, order or decree of any court or arbitrator or governmental or regulatory authority, except in each
case as otherwise disclosed in each of the Registration Statement, the Time of Sale Information and the Prospectus.
7
(h) Organization and Good Standing. Parent and each of its subsidiaries have been duly
organized and are validly existing and in good standing (to the extent the concept of good standing is applicable in such jurisdiction) under the laws of their respective jurisdictions of organization, are duly qualified to do business and are in
good standing in each jurisdiction in which their respective ownership or lease of property or the conduct of their respective businesses requires such qualification, and have all power and authority necessary to own or hold their respective
properties and to conduct the businesses in which they are engaged, except where the failure to be so qualified, in good standing or have such power or authority would not, individually or in the aggregate, have a material adverse effect on the
business, financial position or results of operations of the Parent and its subsidiaries taken as a whole or on the performance by the Issuer and the Guarantors of their obligations under this Agreement and, the Securities and the Guarantees (a
Material Adverse Effect).
(i) Capitalization. The Parent has the capitalization as set forth in each of the
Registration Statement, the Time of Sale Information and the Prospectus under the heading Capitalization and all the outstanding shares of capital stock or other equity interests of Parent and each subsidiary of the Parent have been duly
and validly authorized and issued, are fully paid and non-assessable and, in the case of each subsidiary of Parent, are owned directly or indirectly by Parent, free and clear of any lien, charge, encumbrance, security interest, restriction on voting
or transfer or any other claim of any third party other than liens, charges, encumbrances, security interests, restrictions or other claims disclosed in each of the Registration Statement, the Time of Sale Information and the Prospectus.
(j) Due Authorization. The Issuer and each of the Guarantors has full right, power and authority to execute and deliver this Agreement,
the Securities, the Guarantees and the Indenture (including each Guarantee set forth therein (collectively, the Transaction Documents) and to perform their respective obligations hereunder and thereunder; and all action required
to be taken for the due and proper authorization, execution and delivery of each of the Transaction Documents and the consummation of the transactions contemplated thereby has been duly and validly taken.
(k) The Indenture. The Indenture has been duly authorized by the Issuer and each of the Guarantors and upon filing of the Registration
Statement was duly qualified under the Trust Indenture Act and, when duly executed and delivered in accordance with its terms by each of the parties thereto, will constitute a valid and legally binding agreement of the Issuer and each of the
Guarantors enforceable against the Issuer and each of the Guarantors in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, court protection or similar laws affecting the enforcement of
creditors rights generally or by equitable principles relating to enforceability (collectively, the Enforceability Exceptions).
(l) The Securities and the Guarantees. The Securities have been duly authorized by the Issuer and, when duly executed, authenticated,
issued and delivered as provided in the Indenture and paid for as provided herein, will be duly and validly issued and outstanding and will constitute valid and legally binding obligations of the
8
Issuer enforceable against the Issuer in accordance with their terms, subject to the Enforceability Exceptions, and will be entitled to the benefits of the Indenture; and the Guarantees have been
duly authorized by each of the Guarantors and, when the Securities have been duly executed, authenticated, issued and delivered as provided in the Indenture and paid for as provided herein, will constitute valid and legally binding obligations of
each of the Guarantors, enforceable against each of the Guarantors in accordance with their terms, subject to the Enforceability Exceptions, and will be entitled to the benefits of the Indenture.
(m) Underwriting Agreement. This Agreement has been duly authorized, executed and delivered by the Issuer and each of the Guarantors.
(n) Paying Agency Agreement. The Paying Agency Agreement to be dated September 17, 2015, between the Issuer and Elavon
Financial Services Limited, UK Branch (the Paying Agent), has been duly authorized by the Issuer and, at the Closing Date, will have been duly executed and delivered by the Issuer and, assuming the due authorization, execution and
delivery thereof by the Paying Agent, will constitute a valid and legally binding agreement of the Issuer enforceable against the Issuer in accordance with its terms, subject to the Enforceability Exceptions.
(o) Descriptions of the Transaction Documents. Each Transaction Document conforms in all material respects to the description thereof
contained in each of the Registration Statement, the Time of Sale Information and the Prospectus.
(p) No Violation or Default.
Neither the Parent nor any of its subsidiaries is (i) in violation of its charter or by-laws or similar organizational documents; (ii) in default, and no event has occurred that, with notice or lapse of time or both, would constitute
such a default, in the due performance or observance of any term, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Parent or any of its subsidiaries is a party or
by which the Parent or any of its subsidiaries is bound or to which any property, right or asset of the Parent or any of its subsidiaries is subject; or (iii) in violation of any law or statute or any judgment, order, rule or regulation of any
court or arbitrator or governmental or regulatory authority, except, in the case of clauses (ii) and (iii) above, for any such default or violation that would not, individually or in the aggregate, have a Material Adverse Effect.
(q) No Conflicts. The execution, delivery and performance by the Parent of the Merger Agreement and execution, delivery and performance
by the Issuer and each of the Guarantors of each of the Transaction Documents to which each is a party, the issuance and sale of the Securities, the issuance of the Guarantees and compliance by the Issuer and each of the Guarantors with the terms
thereof, the issuance of the Dollar Notes, any borrowings under the Bridge Facility and the consummation of the transactions contemplated by the Transaction Documents will not (i) conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, result in the termination, modification or acceleration of, or result in the creation or imposition of any lien, charge or encumbrance upon any property, right or asset of the Parent or any of
its subsidiaries pursuant to, any indenture, mortgage, deed of trust, loan agreement or
9
other agreement or instrument to which the Parent or any of its subsidiaries is a party or by which the Parent or any of its subsidiaries is bound or to which any property, right or asset of the
Parent or any of its subsidiaries is subject, (ii) result in any violation of the provisions of the charter or by-laws or similar organizational documents of the Parent or any of its subsidiaries or (iii) result in the violation of any law
or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority, except in the case of clauses (i) and (iii) above, for any such conflict, breach, violation, default, lien, charge or
encumbrance that would not, individually or in the aggregate, have a Material Adverse Effect.
(r) No Consents Required. No
consent, approval, authorization, order, registration or qualification of or with any court or arbitrator or governmental or regulatory authority is required for the execution, delivery and performance by the Issuer and each of the Guarantors of
each of the Transaction Documents to which each is a party, the issuance and sale of the Securities, the issuance of the Guarantees and compliance by the Issuer and each of the Guarantors with the terms thereof and the consummation of the
transactions contemplated by the Transaction Documents, except for those that have been obtained, the registration of the Securities and the Guarantees under the Securities Act, the qualification of the Indenture under the Trust Indenture Act and
such consents, approvals, authorizations, orders and registrations or qualifications as may be required under applicable state securities laws in connection with the purchase and distribution of the Securities by the Underwriters.
(s) Legal Proceedings. Except as described in each of the Registration Statement, the Time of Sale Information and the Prospectus,
there are no legal, governmental or regulatory investigations, actions, demands, claims, suits, arbitrations, inquiries or proceedings (Actions) pending to which the Parent or any of its subsidiaries is a party or to which any
property, right or asset of the Parent or any of its subsidiaries is the subject that, individually or in the aggregate, if determined adversely to the Parent or any of its subsidiaries, could reasonably be expected to have a Material Adverse
Effect; no Actions are to the knowledge of the Issuer and each of the Guarantors, threatened or contemplated by any governmental or regulatory authority or threatened by others; and (i) there are no current or pending Actions that are required
under the Securities Act to be described in the Registration Statement or the Prospectus that are not so described in the Registration Statement, the Time of Sale Information and the Prospectus and (ii) there are no statutes, regulations or
contracts or other documents that are required under the Securities Act to be filed as exhibits to the Registration Statement or described in the Registration Statement and the Prospectus that are not so filed as exhibits to the Registration
Statement or described in the Registration Statement, the Time of Sale Information and the Prospectus.
(t) Independent Accountants.
Deloitte & Touche LLP, who has certified certain financial statements of the Parent and its consolidated subsidiaries is an independent registered public accounting firm with respect to the Parent and its consolidated subsidiaries
within the applicable rules and regulations adopted by the Commission and the Public Company Accounting Oversight Board (United States) and as required by the Securities Act. To the knowledge of the Issuer and the Guarantors,
10
Ernst & Young LLP who has certified certain financial statements of ERICO and its subsidiaries, is an independent registered public accounting firm with respect to ERICO and its
subsidiaries within the applicable rules and regulations adopted by the American Institute of Certified Public Accountants.
(u)
Intellectual Property. Except as described in each of the Registration Statement, the Time of Sale Information and the Prospectus, to the Issuers and Guarantors knowledge, the Parent or one or more of its subsidiaries, own,
possess or have the right to employ such patents, patent rights, licenses, inventions, copyrights, know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, software, systems or procedures),
trademarks, service marks and trade names, inventions, computer programs, technical data and information (collectively, the Intellectual Property Rights) that are necessary for the Parent to conduct its business, in all material
respects, as now conducted. Except as set forth in or contemplated in the Registration Statement, the Time of Sale Information and the Prospectus, neither the Issuer nor the Guarantors, nor, to the knowledge of the Issuer or the Guarantors, any of
the Parents subsidiaries has received any written notice of infringement of or conflict with asserted rights of others with respect to any of the Intellectual Property Rights, except as individually or in the aggregate have not had and are not
reasonably likely to result in a Material Adverse Effect.
(v) No Undisclosed Relationships. No relationship, direct or indirect,
exists between or among the Parent or any of its subsidiaries, on the one hand, and the directors, officers, stockholders, or other affiliates of the Parent or any of its subsidiaries, on the other, that is required by the Securities Act to be
described in each of the Registration Statement and the Prospectus and that is not so described in such documents and in the Time of Sale Information.
(w) Investment Company Act. Neither the Issuer, nor either Guarantor is, and after giving effect to the offering and sale of the
Securities and the application of the proceeds thereof as described in each of the Registration Statement, the Time of Sale Information and the Prospectus, will not be required to register as an investment company or an entity
controlled by an investment company within the meaning of the Investment Company Act of 1940, as amended, and the rules and regulations of the Commission thereunder (collectively, the Investment Company
Act).
(x) Compliance with Environmental Laws. (i) The Parent and its subsidiaries are (x) in compliance with
applicable federal, state and local laws and regulations relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants (Environmental Laws); (y) have
received all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses and are in compliance with all terms and conditions of any such permits, licenses or approvals; and
(z) have not received notice of any actual or potential liability under any Environmental Law, except in any such case where the failure to comply with Environmental Laws or failure to receive or to comply with such permits, licenses or
approvals has not had and is not reasonably likely to result in a Material Adverse Effect, and (ii) except as described in
11
each of the Time of Sale Information and the Prospectus there are no proceedings that are pending, or that are known to be contemplated, against the Parent or any of its subsidiaries under any
Environmental Laws in which a governmental entity is also a party, other than such proceedings regarding which it is reasonably believed no monetary sanctions of $100,000 or more will be imposed. In the ordinary course of its business, the Parent
and its subsidiaries periodically review the effect of Environmental Laws on their business, operations and properties, in the course of which it identifies and evaluates associated costs and liabilities (including, without limitation, any capital
or operating expenditures required for clean-up, closure of properties or compliance with Environmental Laws, or any permit, license or approval, any related constraints on operating activities and any potential liabilities to third parties); and on
the basis of such review, has reasonably concluded that such associated costs and liabilities, singly or in the aggregate, have not had and are not reasonably likely to result in a Material Adverse Effect, except as set forth in or contemplated in
the Registration Statement, the Time of Sale Information and the Prospectus.
(y) Disclosure Controls. The Parent maintains
disclosure controls and procedures (as such term is defined in Rule 13a-15(e) of the Exchange Act) that comply with the requirements of the Exchange Act; such disclosure controls and procedures have been designed to ensure that material information
relating to the Parent is made known to the Parents principal executive officer and principal financial officer by others within the Parent; and such disclosure controls and procedures are effective.
(z) Accounting Controls. The Parent maintains a system of internal control over financial reporting (as such term is defined in Rule
13a-15(f) of the Exchange Act) that complies with the requirements of the Exchange Act and has been designed by the Parents principal executive officer and principal financial officer, or under their supervision, to provide reasonable
assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with U.S. generally accepted accounting principles. Except as disclosed in the Registration Statement, the
Time of Sale Information and the Prospectus, the internal control over combined financial reporting of the Parent is effective and the Parent is not aware of any material weaknesses in its internal controls over financial reporting.
(aa) No Change in Internal Controls. Except as disclosed in the Registration Statement, the Time of Sale Information and the
Prospectus, since the date of the latest audited consolidated financial statements included in the Registration Statement, the Time of Sale Information and the Prospectus, there has been no change in internal control over the combined financial
reporting of the Parent that has materially affected, or is reasonably likely to materially affect, the internal control over the combined financial reporting of the Parent.
(bb) No Unlawful Payments. Neither the Parent nor any of its subsidiaries nor, to the knowledge of Parent, any director, officer,
agent, affiliate or employee of the Parent or any of its subsidiaries or other person associated with or acting on behalf of the Parent or any of its subsidiaries has (i) used any funds for any unlawful contribution, gift, entertainment or
other unlawful expense relating to political activity; (ii) made or
12
taken an act in furtherance of an offer, promise or authorization of any direct or indirect unlawful payment or benefit to any foreign or domestic government or regulatory official or employee,
including of any government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for
political office; (iii) violated or is in violation of any provision of the Foreign Corrupt Practices Act of 1977, as amended, or any applicable law or regulation implementing the OECD Convention on Combating Bribery of Foreign Public Officials
in International Business Transactions, or committed an offence under the Bribery Act 2010 of the United Kingdom, or any other applicable anti-bribery or anti-corruption laws; or (iv) made, offered, agreed, requested or taken an act in
furtherance of any unlawful bribe or other unlawful benefit, including, without limitation, any rebate, payoff, influence payment, kickback or other unlawful or improper payment or benefit. The Parent and its subsidiaries have instituted, and
maintain and enforce, policies and procedures designed to promote and ensure compliance with all applicable anti-bribery and anti-corruption laws.
(cc) Compliance with Anti-Money Laundering Laws. The operations of the Parent and its subsidiaries are and have been conducted at all
times in compliance with applicable financial recordkeeping and reporting requirements, including those of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the applicable money laundering statutes of all jurisdictions where
the Parent or any of its subsidiaries conducts business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines issued, administered or enforced by any governmental or regulatory agency (collectively, the
Anti-Money Laundering Laws) and no action, suit or proceeding by or before any court or governmental or regulatory agency, authority or body or any arbitrator involving the Parent or any of its subsidiaries with respect to the Anti-Money
Laundering Laws is pending or, to the knowledge of the Issuer or any of the Guarantors, threatened.
(dd) No Conflicts with Sanctions
Laws. Neither the Parent nor any of its subsidiaries nor, to the knowledge of the Issuer or any of the Guarantors, any director, officer or employee, agent, or affiliate or other person associated with or acting on behalf of the Parent or any of
its subsidiaries is currently the subject or the target of any sanctions administered or enforced by the U.S. Government, (including, without limitation, the Office of Foreign Assets Control of the U.S. Department of the Treasury (OFAC)
or the U.S. Department of State and including, without limitation, the designation as a specially designated national or blocked person), the United Nations Security Council (UNSC), the European Union, Her
Majestys Treasury (HMT), or other relevant sanctions authority (collectively, Sanctions), nor is the Parent or any of its subsidiaries located, organized or resident in a country or territory that is the subject or the
target of Sanctions, including, without limitation, Cuba, Iran, North Korea, Sudan and Syria (each, a Sanctioned Country); and the Issuer will not directly or indirectly use the proceeds of the offering of the Securities hereunder, or
lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity (i) to fund or facilitate any activities of or business with any person that, at the time of such funding or
facilitation, is the subject or
13
the target of Sanctions, (ii) to fund or facilitate any activities of or business in any Sanctioned Country or (iii) in any other manner that will result in a violation by any person
(including any person participating in the transaction, whether as underwriter, advisor, investor or otherwise) of Sanctions. For the past 5 years, the Parent and its subsidiaries have not knowingly engaged in and are not now knowingly engaged in
any dealings or transactions with any person that at the time of the dealing or transaction is or was the subject or the target of Sanctions or with any Sanctioned Country.
(ee) No Registration Rights. No person has the right to require the Parent or any of its subsidiaries to register any securities for
sale under the Securities Act by reason of the filing of the Registration Statement with the Commission or the issuance and sale of the Securities.
(ff) No Stabilization. Neither the Issuer nor any of the Guarantors has taken, directly or indirectly, any action designed to or that
could reasonably be expected to cause or result in any stabilization or manipulation of the price of the Securities.
(gg)
Forward-Looking Statements. No forward-looking statement (within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange Act) included or incorporated by reference in any of the Registration Statement, the
Time of Sale Information or the Prospectus has been made or reaffirmed without a reasonable basis or has been disclosed other than in good faith.
(hh) Status under the Securities Act. The Issuer is not an ineligible issuer as defined under the Securities Act, in each case at the
times specified in the Securities Act in connection with the offering of the Securities.
(ii) Choice of Law in Luxembourg. The
Issuer represents that the choice of law provisions set forth in this Agreement are legal, valid and binding under the laws of Luxembourg and will be recognized and given effect to by the courts of Luxembourg (unless a court determined that doing so
would be contrary to public policy in Luxembourg); the Issuer has, under the laws of Luxembourg, the power to submit to the jurisdiction of New York courts; the irrevocable submission of the Issuer to the jurisdiction of the New York courts and the
waiver by the Issuer of any immunity and any objection to the venue of the proceeding in a New York court, included in this Agreement are legal, valid and binding under the laws of Luxembourg; neither the Issuer nor any of its assets is entitled to
immunity (or any similar defense) from suit, execution, attachment or other legal process in Luxembourg; this Agreement is in proper legal form under the laws of Luxembourg for the enforcement thereof against the Issuer, and nothing in Luxembourg
law prevents suit upon this Agreement in the courts of Luxembourg; and it is not necessary (a) in order to enable the Underwriters to exercise or enforce their rights under this Agreement in Luxembourg or (b) by reason of the entry into
and performance of this Agreement, that any of the Underwriters should be licensed, qualified, authorized or entitled to do business in Luxembourg.
14
(jj) Choice of Law in Switzerland. Investments represents that the choice of law
provisions set forth in this Agreement are each legal, valid and binding under the laws of Switzerland, and will be recognized and given effect to by the courts of Switzerland (unless a court determined that doing so would be contrary to public
policy in Switzerland); Investments has, under the laws of Switzerland, the power to submit to the jurisdiction of New York courts; the irrevocable submission of the Investments to the jurisdiction of the New York courts and the waiver by
Investments of any immunity and any objection to the venue of the proceeding in a New York court, included in this Agreement are legal, valid and binding under the laws of Switzerland; neither Investments nor any of its assets is entitled to
immunity (or any similar defense) from suit, execution, attachment or other legal process in Switzerland; this Agreement is in proper legal form under the laws of Switzerland, for the enforcement thereof against Investments and nothing in Swiss law
prevents suit upon this Agreement in the courts of Switzerland; and it is not necessary (a) in order to enable the Underwriters to exercise or enforce their rights under this Agreement in Switzerland or (b) by reason of the entry into and
performance of this Agreement, that any of the Underwriters should be licensed, qualified, authorized or entitled to do business in Switzerland.
(kk) Choice of Law in Ireland. The Parent represents that the choice of law provisions set forth in this Agreement are legal, valid and
binding under the laws of Ireland and will be recognized and given effect to by the courts of Ireland (unless a court determined that doing so would be contrary to public policy in Ireland); the Parent has, under the laws of Ireland, the power to
submit to the jurisdiction of New York courts; the irrevocable submission of the Parent to the jurisdiction of the New York courts and the waiver by the Parent of any immunity and any objection to the venue of the proceeding in a New York court,
included in this Agreement are legal, valid and binding under the laws of Ireland; neither the Parent nor any of its assets is entitled to immunity (or any similar defense) from suit, execution, attachment or other legal process in Ireland; this
Agreement is in proper legal form under the laws of Ireland for the enforcement thereof against the Parent, and nothing in Ireland law prevents suit upon this Agreement in the courts of Ireland; and it is not necessary (a) in order to enable
the Underwriters to exercise or enforce their rights under this Agreement in Ireland or (b) by reason of the entry into and performance of this Agreement, that any of the Underwriters should be licensed, qualified, authorized or entitled to do
business in Ireland.
(ll) ERICO Merger Agreement. Parent has delivered to counsel for the Representatives true and correct copies
of the Merger Agreement in the form originally executed, and there have been no amendments or waivers thereto or in the exhibits or schedules thereto other than those as to which the Representatives have been advised in writing. The Merger Agreement
conforms in all material respects to the description thereof incorporated by reference or contained in the Registration Statement, the Time of Sale Information and the Prospectus. To the Issuers and Guarantors knowledge, there has not
been a breach of the representations and warranties of ERICO contained in the Merger Agreement with respect to ERICO and its subsidiaries that would cause Parents condition to close the Acquisition in the Merger Agreement relating to such
representations and warranties not to be satisfied.
15
4. Further Agreements of the Issuer and the Guarantors. The Issuer and the Guarantors
jointly and severally covenant and agree with each Underwriter that:
(a) Required Filings. The Issuer and the Guarantors will file
the final Prospectus with the Commission within the time periods specified by Rule 424(b) and Rule 430A, 430B or 430C under the Securities Act, will file any Issuer Free Writing Prospectus (including the Pricing Term Sheets referred to in
Annex A hereto) to the extent required by Rule 433 under the Securities Act; and the Parent will file within the applicable time periods specified by the Exchange Act all reports and any definitive proxy or information statements required to be
filed by the Parent with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act during the Prospectus Delivery Period (as defined below); and the Issuer will furnish copies of the Prospectus and each Issuer Free
Writing Prospectus (to the extent not previously delivered) to the Underwriters in New York City prior to 10:00 a.m., New York City time, on the business day next succeeding the date of this Agreement in such quantities as the Representatives may
reasonably request. The Issuer will pay the registration fees for this offering within the time period required by Rule 456(b)(1)(i) under the Securities Act (without giving effect to the proviso therein) and in any event prior to the Closing Date.
As used herein, the term Prospectus Delivery Period means such period of time after the first date of the public offering of the Securities as in the opinion of counsel for the Underwriters a prospectus relating to the Securities is
required by law to be delivered (or required to be delivered but for Rule 172 under the Securities Act) in connection with sales of the Securities by any Underwriter or dealer.
(b) Delivery of Copies. The Issuer will deliver, without charge, to each Underwriter (i) a conformed copy of the Registration
Statement as originally filed and each amendment thereto, in each case including all exhibits and consents filed therewith and (ii) during the Prospectus Delivery Period, as many copies of the Prospectus (including all amendments and
supplements thereto and documents incorporated by reference therein) and each Issuer Free Writing Prospectus as any Representative may reasonably request.
(c) Amendments or Supplements; Issuer Free Writing Prospectuses. Before making, preparing, using, authorizing, approving, referring to
or filing any Issuer Free Writing Prospectus, and before filing any amendment or supplement to the Registration Statement or the Prospectus, in each case prior to the end of the Prospectus Delivery Period, the Issuer and the Guarantors will furnish
to the Representatives and counsel for the Underwriters a copy of the proposed Issuer Free Writing Prospectus, amendment or supplement for review and will not make, prepare, use, authorize, approve, refer to or file any such Issuer Free Writing
Prospectus or file any such proposed amendment or supplement to which any Representative reasonably objects.
(d) Notice to the
Representatives. During the Prospectus Delivery Period, the Issuer and the Guarantors will advise the Representatives promptly, and confirm such advice in writing, (i) when any amendment to the Registration Statement has been filed or
becomes effective; (ii) when any supplement to the Prospectus or any amendment to the Prospectus or any Issuer Free Writing Prospectus has been filed; (iii) of any request by the Commission for any amendment to the Registration Statement
or any amendment or supplement to the Prospectus or the receipt of any comments from the Commission relating to the Registration Statement or any other request by the
16
Commission for any additional information; (iv) of the issuance by the Commission of any order suspending the effectiveness of the Registration Statement or preventing or suspending the use
of any Preliminary Prospectus or the Prospectus or the initiation or threatening of any proceeding for that purpose or pursuant to Section 8A of the Securities Act; (v) of the occurrence of any event within the Prospectus Delivery Period
as a result of which the Prospectus, the Time of Sale Information or any Issuer Free Writing Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in the light of the circumstances existing when the Prospectus, the Time of Sale Information or any such Issuer Free Writing Prospectus is delivered to a purchaser, not misleading;
(vi) of the receipt by the Issuer or the Guarantors of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act; and
(vii) of the receipt by the Issuer or the Guarantors of any notice with respect to any suspension of the qualification of the Securities for offer and sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
and the Issuer and the Guarantors will use their reasonable best efforts to prevent the issuance of any such order suspending the effectiveness of the Registration Statement, preventing or suspending the use of any Preliminary Prospectus or the
Prospectus or suspending any such qualification of the Securities and, if any such order is issued, will use their best efforts to obtain as soon as possible the withdrawal thereof.
(e) Time of Sale Information. If at any time prior to the Closing Date (i) any event shall occur or condition shall exist as a
result of which any of the Time of Sale Information as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading or (ii) it is necessary to amend or supplement the Time of Sale Information to comply with law, the Issuer and the Guarantors will immediately notify the Underwriters thereof and
forthwith prepare and, subject to paragraph (c) above, file with the Commission (to the extent required) and furnish to the Underwriters and to such dealers as the Representatives may designate, such amendments or supplements to the Time of
Sale Information (or any document to be filed with the Commission and incorporated by reference therein) as may be necessary so that the statements in any of the Time of Sale Information as so amended or supplemented (including such documents to be
incorporated by reference therein) will not, in the light of the circumstances under which they were made, be misleading or so that any of the Time of Sale Information will comply with law.
(f) Ongoing Compliance. If during the Prospectus Delivery Period (i) any event shall occur or condition shall exist as a result of
which the Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the
circumstances existing when the Prospectus is delivered to a purchaser, not misleading or (ii) it is necessary to amend or supplement the Prospectus to comply with law, the Issuer and the Guarantors will immediately notify
17
the Underwriters thereof and forthwith prepare and, subject to paragraph (c) above, file with the Commission and furnish to the Underwriters and to such dealers as the Representatives may
designate, such amendments or supplements to the Prospectus (or any document to be filed with the Commission and incorporated by reference therein) as may be necessary so that the statements in the Prospectus as so amended or supplemented including
such documents to be incorporated by reference will not, in the light of the circumstances existing when the Prospectus is delivered to a purchaser, be misleading or so that the Prospectus will comply with law.
(g) Blue Sky Compliance. The Issuer and the Guarantors will qualify the Securities for offer and sale under the securities or Blue Sky
laws of such jurisdictions as the Representatives shall reasonably request and will continue such qualifications in effect so long as required for distribution of the Securities; provided that neither the Issuer nor any of the Guarantors
shall be required to (i) qualify as a foreign corporation or other entity or as a dealer in securities in any such jurisdiction where it would not otherwise be required to so qualify, (ii) file any general consent to service of process in
any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction if it is not otherwise so subject.
(h) Earning
Statement. The Parent will make generally available to its security holders and the Representatives as soon as practicable an earning statement that satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 of the
Commission promulgated thereunder covering a period of at least 12 months beginning with the first fiscal quarter of Parent occurring after the effective date (as defined in Rule 158) of the Registration Statement; provided, that
(i) such delivery requirements to the Parents security holders shall be deemed met by the Parents compliance with its reporting requirements pursuant to the Exchange Act if such compliance satisfies the conditions of Rule 158
thereof and (ii) such delivery requirements to the Representatives shall be deemed met by the Parent, as applicable, if the related reports are available on the Commissions Electronic Data Gathering Analysis and Retrieval System.
(i) Clear Market. Other than the Dollar Note offering and issuance, during the period from the date hereof through and including the
Closing Date, the Issuer and each of the Guarantors will not, without the prior written consent of the Representatives, offer, sell, contract to sell or otherwise dispose of any debt securities issued or guaranteed by the Issuer or any of the
Guarantors and having a tenor of more than one year.
(j) Use of Proceeds. The Issuer will apply the net proceeds from the sale of
the Securities as described in each of the Registration Statement, the Time of Sale Information and the Prospectus under the heading Use of proceeds.
(k) Eligibility for Settlement. The Issuer will assist the Underwriters in arranging for the Securities to be eligible for clearance
and settlement through Euroclear and Clearstream.
18
(l) No Stabilization. Neither the Issuer nor any of the Guarantors will take, directly or
indirectly, any action designed to or that could reasonably be expected to cause or result in any stabilization or manipulation of the price of the Securities.
(m) Record Retention. The Issuer and the Guarantors will, pursuant to reasonable procedures developed in good faith, retain copies of
each Issuer Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433 under the Securities Act.
(n)
Listing. The Issuer shall use its reasonable best efforts to effect the admission and listing of the Securities on The New York Stock Exchange within 30 days of the Closing Date.
5. Certain Agreements of the Underwriters. Each Underwriter hereby represents and agrees that:
(a) It has not and will not use, authorize use of, refer to, or participate in the planning for use of, any free writing
prospectus, as defined in Rule 405 under the Securities Act (which term includes use of any written information furnished to the Commission by the Issuer or the Guarantors and not incorporated by reference into the Registration Statement and
any press release issued by the Issuer or the Guarantors) other than (i) a free writing prospectus that, solely as a result of use by such Underwriter, would not trigger an obligation to file such free writing prospectus with the Commission
pursuant to Rule 433, (ii) any Issuer Free Writing Prospectus listed on Annex A or prepared pursuant to Section 3(c) or Section 4(c) above (including any electronic road show), or (iii) any free writing prospectus prepared by
such Underwriter and approved by the Issuer in advance in writing (each such free writing prospectus referred to in clauses (i) or (iii), an Underwriter Free Writing Prospectus). Notwithstanding the foregoing, the Underwriters may
use the Pricing Term Sheets referred to in Annex A hereto without the consent of the Issuer.
(b) It is not subject to any pending
proceeding under Section 8A of the Securities Act with respect to the offering (and will promptly notify the Issuer if any such proceeding against it is initiated during the Prospectus Delivery Period).
6. Conditions of Underwriters Obligations. The obligation of each Underwriter to purchase Securities on the Closing Date as
provided herein is subject to the performance by the Issuer and each of the Guarantors of their respective covenants and other obligations hereunder and to the following additional conditions:
(a) Registration Compliance; No Stop Order. No order suspending the effectiveness of the Registration Statement shall be in effect, and
no proceeding for such purpose, pursuant to Rule 401(g)(2) or pursuant to Section 8A under the Securities Act shall be pending before or threatened by the Commission; the Prospectus and each Issuer Free Writing Prospectus shall have been timely
filed with the Commission under the Securities Act (in the case of an Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act) and in accordance with Section 4(a) hereof; and all requests by the Commission
for additional information shall have been complied with to the reasonable satisfaction of the Representatives.
19
(b) Representations and Warranties. The representations and warranties of the Issuer and
the Guarantors contained herein shall be true and correct on the date hereof and on and as of the Closing Date; and the statements of the Issuer, the Guarantors and their respective officers made in any certificates delivered pursuant to this
Agreement shall be true and correct on and as of the Closing Date.
(c) No Downgrade. Subsequent to the earlier of (A) the
Time of Sale and (B) the execution and delivery of this Agreement, (i) no downgrading shall have occurred in the rating accorded the Securities or any other debt securities or preferred stock issued or guaranteed by the Parent or any of
its subsidiaries by any nationally recognized statistical rating organization, as such term is defined under Section 3(a)(62) in the Exchange Act and (ii) no such organization shall have publicly announced that it has under
surveillance or review, or has changed its outlook with respect to, its rating of the Securities or of any other debt securities or preferred stock issued or guaranteed by the Parent or any of its subsidiaries (other than an announcement with
positive implications of a possible upgrading).
(d) No Material Adverse Change. No event or condition of a type described in
Section 3(g) hereof shall have occurred or shall exist, which event or condition is not described in each of the Time of Sale Information (excluding any amendment or supplement thereto) and the Prospectus (excluding any amendment or supplement
thereto) the effect of which in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Time of
Sale Information and the Prospectus.
(e) Officers Certificate. The Representatives shall have received on and as of the
Closing Date a certificate of an executive officer or director of the Issuer and of each Guarantor who has specific knowledge of the Issuers or such Guarantors financial matters and is satisfactory to the Representatives
(i) confirming that such officer has carefully reviewed the Registration Statement, the Time of Sale Information and the Prospectus and, to the knowledge of such officer after reasonable investigation, the representations set forth in Sections
3(b) and 3(d) hereof are true and correct; (ii) confirming that the other representations and warranties of the Issuer and the Guarantors in this Agreement are true and correct and that the Issuer and the Guarantors have complied in all
material respects with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and (iii) to the effect set forth in paragraphs (a), (c) and (d) above.
(f) Comfort Letters. (i) On the date of this Agreement and on the Closing Date, Deloitte & Touche LLP shall have
furnished to the Representatives, at the request of the Parent, letters, dated the respective dates of delivery thereof and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives,
20
containing statements and information of the type customarily included in accountants comfort letters to underwriters with respect to the financial statements and certain
financial information contained or incorporated by reference in each of the Registration Statement, the Time of Sale Information and the Prospectus; provided that the letter delivered on the Closing Date shall use a cut-off date
no more than three business days prior to the Closing Date; and (ii) the Issuer shall have furnished to the Representatives a certificate, dated the Closing Date and addressed to the Representatives, of its chief financial officer with respect
to certain financial data contained in the Registration Statement, the Time of Sale Information and the Prospectus, providing management comfort with respect to such information, in form and substance reasonably satisfactory to the
Representatives.
(g) Opinion and 10b-5 Statement of Counsel for the Issuer. Foley & Lardner LLP, U.S. counsel for the
Issuer, shall have furnished to the Representatives, at the request of the Issuer, their written opinion and 10b-5 Statement, dated the Closing Date and addressed to the Underwriters, in substantially the form agreed to prior to the date hereof.
(h) Opinions of Local Counsel. (i) Allen & Overy, société en commandite simple, counsel for the
Issuer in Luxembourg, shall have furnished to the Representatives, at the request of the Issuer, its written opinion, dated the Closing Date and addressed to the Underwriters, in substantially the form agreed to prior to the date hereof,
(ii) Arthur Cox, Dublin, Ireland, counsel for the Parent in Ireland, shall have furnished to the Representatives, at the request of the Issuer, its written opinion, dated the Closing Date and addressed to the Underwriters, in substantially the
form agreed to prior to the date hereof and (iii) Bär & Karrer, counsel for Investments in Switzerland, shall have furnished to the Representatives, at the request of the Issuer, its written opinion, dated the Closing Date and
addressed to the Underwriters, in substantially the form agreed to prior to the date hereof.
(i) Opinion and 10b-5 Statement of
Counsel for the Underwriters. The Representatives shall have received on and as of the Closing Date an opinion and 10b-5 statement of Cravath, Swaine & Moore LLP, counsel for the Underwriters,
with respect to such matters as the Representatives may reasonably request, and such counsel shall have received such documents and information as they may reasonably request to enable them to pass upon such matters.
(j) No Legal Impediment to Issuance. No action shall have been taken and no statute, rule, regulation or order shall have been enacted,
adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the Closing Date, prevent the issuance or sale of the Securities or the issuance of the Guarantees; and no injunction or order of any federal,
state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities or the issuance of the Guarantees.
21
(k) Good Standing. The Representatives shall have received on and as of the Closing Date
satisfactory evidence (to the extent the concept of good standing is applicable in any such jurisdiction) of the good standing of the Issuer and the Guarantors in their respective jurisdictions of organization in writing or any standard form of
telecommunication, from the appropriate governmental authorities of such jurisdiction.
(l) Depositary. The Securities shall be
eligible for clearance and settlement through Euroclear and Clearstream.
(m) Exchange Listing. An application for the listing of
the Securities on the New York Stock Exchange shall have been filed.
(n) Indenture and Securities. The Indenture shall have been
duly executed and delivered by a duly authorized officer of the Issuer, each of the Guarantors and the Trustee, and the Securities shall have been duly executed and delivered by a duly authorized officer of the Issuer and duly authenticated by the
Trustee.
(o) Additional Documents. On or prior to the Closing Date, the Issuer shall have furnished to the Representatives such
further certificates and documents as any Representative may reasonably request.
All opinions, letters, certificates and evidence
mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriters.
7. Indemnification and Contribution.
(a) Indemnification of the Underwriters. The Issuer and each of the Guarantors jointly and severally agree to indemnify and hold
harmless each Underwriter, its affiliates, directors, agents, and officers and each person, if any, who controls such Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against
any and all losses, claims, damages and liabilities (including, without limitation, legal fees and other expenses incurred in connection with any suit, action or proceeding or any claim asserted, as such fees and expenses are incurred), joint or
several, that arise out of, or are based upon, (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or caused by any omission or alleged omission to state therein a material fact
required to be stated therein or necessary in order to make the statements therein, not misleading, or (ii) any untrue statement or alleged untrue statement of a material fact contained in the Prospectus (or any amendment or supplement
thereto), any Issuer Free Writing Prospectus or any Time of Sale Information, or caused by any omission or alleged omission to state therein a material fact necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, in each case except insofar as such losses, claims, damages or liabilities arise out of, or are based upon, any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in
conformity with any information relating to any Underwriter furnished to the Issuer in writing by such Underwriter through the Representatives expressly for use therein.
22
(b) Indemnification of the Issuer and the Guarantors. Each Underwriter agrees, severally
and not jointly, to indemnify and hold harmless the Issuer, each of the Guarantors, each of its respective directors and officers who signed the Registration Statement and each person, if any, who controls the Issuer or the Guarantors within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the indemnity set forth in paragraph (a) above, but only with respect to any losses, claims, damages or liabilities (including,
without limitation, legal fees and other expenses incurred in connection with any suit, action or proceeding or any claim asserted, as such fees and expenses are incurred) that arise out of, or are based upon, any untrue statement or omission or
alleged untrue statement or omission made in reliance upon and in conformity with any information relating to such Underwriter furnished to the Issuer in writing by such Underwriter through the Representatives expressly for use in the Registration
Statement, the Prospectus (or any amendment or supplement thereto), any Issuer Free Writing Prospectus or any Time of Sale Information, it being understood and agreed that the only such information consists of the following paragraphs under the
caption Underwriting in the Preliminary Prospectus and the Prospectus: (i) the names in the first column Underwriters under the heading in the table in the first paragraph; (ii) the fourth paragraph concerning
discounts; (iii) the fifth sentence in the fifth paragraph concerning certain market making activities of the underwriters; and (iv) the sixth paragraph concerning stabilizing transactions, over-allotment transactions and syndicate
covering transactions.
(c) Notice and Procedures. If any suit, action, proceeding (including any governmental or regulatory
investigation), claim or demand shall be brought or asserted against any person in respect of which indemnification may be sought pursuant to either paragraph (a) or (b) above, such person (the Indemnified Person) shall
promptly notify the person against whom such indemnification may be sought (the Indemnifying Person) in writing; provided that the failure to notify the Indemnifying Person shall not relieve it from any liability that it
may have under paragraph (a) or (b) above except to the extent that it has been materially prejudiced (through the forfeiture of substantive rights or defenses) by such failure; and provided, further, that the failure to
notify the Indemnifying Person shall not relieve it from any liability that it may have to an Indemnified Person otherwise than under paragraph (a) or (b) above. If any such proceeding shall be brought or asserted against an Indemnified
Person and it shall have notified the Indemnifying Person thereof, the Indemnifying Person shall retain counsel reasonably satisfactory to the Indemnified Person (who shall not, without the consent of the Indemnified Person, be counsel to the
Indemnifying Person) to represent the Indemnified Person and any others entitled to indemnification pursuant to this Section 7 that the Indemnifying Person may designate in such proceeding and shall pay the fees and expenses of such proceeding
and shall pay the fees and expenses of such counsel related to such proceeding, as incurred. In any such proceeding, any Indemnified Person shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the
expense of such Indemnified Person unless (i) the Indemnifying Person and the Indemnified Person shall have mutually agreed to the contrary; (ii) the Indemnifying Person has failed within a reasonable time to retain counsel reasonably
satisfactory to the Indemnified Person; (iii) the Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or in addition to
23
those available to the Indemnifying Person; or (iv) the named parties in any such proceeding (including any impleaded parties) include both the Indemnifying Person and the Indemnified Person
and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood and agreed that the Indemnifying Person shall not, in connection with any proceeding or
related proceeding in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all Indemnified Persons, and that all such fees and expenses shall be reimbursed as they are
incurred. Any such separate firm for any Underwriter, its affiliates, directors and officers and any control persons of such Underwriter shall be designated in writing by the Representatives and any such separate firm for the Issuer, the Guarantors,
their respective directors and officers who signed the Registration Statement and any control persons of the Issuer and the Guarantors shall be designated in writing by the Issuer. The Indemnifying Person shall not be liable for any settlement of
any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Person agrees to indemnify each Indemnified Person from and against any loss or liability by
reason of such settlement or judgment. No Indemnifying Person shall, without the written consent of the Indemnified Person, effect any settlement of any pending or threatened proceeding in respect of which any Indemnified Person is or could have
been a party and indemnification could have been sought hereunder by such Indemnified Person, unless such settlement (x) includes an unconditional release of such Indemnified Person, in form and substance reasonably satisfactory to such
Indemnified Person, from all liability on claims that are the subject matter of such proceeding and (y) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnified Person.
(d) Contribution. If the indemnification provided for in paragraph (a) or (b) above is unavailable to an Indemnified
Person or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then each Indemnifying Person under such paragraph, in lieu of indemnifying such Indemnified Person thereunder, shall contribute to the amount paid
or payable by such Indemnified Person as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Issuer and the Guarantors on the one hand and the
Underwriters on the other from the offering of the Securities or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to
in clause (i) but also the relative fault of the Issuer and the Guarantors on the one hand and the Underwriters on the other in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as
any other relevant equitable considerations. The relative benefits received by the Issuer and the Guarantors on the one hand and the Underwriters on the other shall be deemed to be in the same respective proportions as the net proceeds (before
deducting expenses) received by the Issuer and the Guarantors from the sale of the Securities and the total underwriting discounts and commissions received by the Underwriters in connection therewith, in each case as set forth in the table on the
cover of the Prospectus, bear to the aggregate offering price of the Securities. The relative fault of the Issuer and the Guarantors on the one hand and
24
the Underwriters on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the Issuer or any Guarantor or by the Underwriters and the parties relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(e) Limitation on Liability. The Issuer, the Guarantors and the Underwriters agree that it would not be just and equitable if
contribution pursuant to this Section 7 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable
considerations referred to in paragraph (d) above. The amount paid or payable by an Indemnified Person as a result of the losses, claims, damages and liabilities referred to in paragraph (d) above shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses incurred by such Indemnified Person in connection with any such action or claim. Notwithstanding the provisions of this Section 7, in no event shall an Underwriter be required to
contribute any amount in excess of the amount by which the total underwriting discounts and commissions received by such Underwriter with respect to the offering of the Securities exceeds the amount of any damages that such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters obligations to contribute pursuant to this Section 7 are several in proportion to their respective purchase obligations hereunder and
not joint.
(f) Non-Exclusive Remedies. The remedies provided for in this Section 7 are not exclusive and shall not limit any
rights or remedies that may otherwise be available to any Indemnified Person at law or in equity.
8. Effectiveness of Agreement.
This Agreement shall become effective upon the execution and delivery hereof by the parties hereto.
9. Termination. This Agreement
may be terminated in the absolute discretion of the Representatives, by notice to the Issuer, if after the execution and delivery of this Agreement and on or prior to the Closing Date (i) trading generally shall have been suspended or
materially limited on the New York Stock Exchange or the over-the-counter market; (ii) trading of any securities issued or guaranteed by the Issuer or any of the Guarantors shall have been suspended on any exchange or in any over-the-counter
market; (iii) a general moratorium on commercial banking activities shall have been declared by U.S. federal, New York State or European authorities; or (iv) there shall have occurred any outbreak or escalation of hostilities or any change
in financial markets or any calamity or crisis, either within or outside the United States or the European Union, that, in the judgment of the Representatives, is material and adverse and makes it impracticable or inadvisable to proceed with the
offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Time of Sale Information and the Prospectus.
25
10. Defaulting Underwriter.
(a) If, on the Closing Date, any Underwriter defaults on its obligation to purchase the Securities that it has agreed to purchase hereunder,
the non-defaulting Underwriters may in their discretion arrange for the purchase of such Securities by other persons satisfactory to the Issuer on the terms contained in this Agreement. If, within 36 hours after any such default by any Underwriter,
the non-defaulting Underwriters do not arrange for the purchase of such Securities, then the Issuer shall be entitled to a further period of 36 hours within which to procure other persons satisfactory to the non-defaulting Underwriters to purchase
such Securities on such terms. If other persons become obligated or agree to purchase the Securities of a defaulting Underwriter, either the non-defaulting Underwriters or the Issuer may postpone the Closing
Date for up to five full business days in order to effect any changes that in the opinion of counsel for the Issuer or counsel for the Underwriters may be necessary in the Registration Statement, the Time of Sale Information and the Prospectus or in
any other document or arrangement, and the Issuer agrees to promptly prepare any amendment or supplement to the Registration Statement, the Time of Sale Information and the Prospectus that effects any such changes. As used in this Agreement, the
term Underwriter includes, for all purposes of this Agreement unless the context otherwise requires, any person not listed in Schedule 1 hereto that, pursuant to this Section 10, purchases Securities that a defaulting
Underwriter agreed but failed to purchase.
(b) If, after giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the Issuer as provided in paragraph (a) above, the aggregate principal amount of such Securities that remains unpurchased does not exceed one-eleventh of the
aggregate principal amount of all the Securities, then the Issuer shall have the right to require each non-defaulting Underwriter to purchase the principal amount of Securities that such Underwriter agreed to purchase hereunder plus such
Underwriters pro rata share (based on the principal amount of Securities that such Underwriter agreed to purchase hereunder) of the Securities of such defaulting Underwriter or Underwriters for which such arrangements have not been
made.
(c) If, after giving effect to any arrangements for the purchase of the Securities of a defaulting Underwriter or Underwriters by
the non-defaulting Underwriters and the Issuer as provided in paragraph (a) above, the aggregate principal amount of such Securities that remains unpurchased exceeds one-eleventh of the aggregate principal amount of all the Securities, or if
the Issuer shall not exercise the right described in paragraph (b) above, then this Agreement shall terminate without liability on the part of the non-defaulting Underwriters. Any termination of this Agreement pursuant to this Section 10
shall be without liability on the part of the Issuer or the Guarantors, except that the Issuer and each of the Guarantors will continue to be liable for the payment of expenses as set forth in Section 11 hereof (except for those direct expenses
incurred by a defaulting Underwriter) and except that the provisions of Section 7 hereof shall not terminate and shall remain in effect. For the avoidance of doubt, the non-defaulting Underwriters shall not be liable for any expenses incurred
by a defaulting Underwriter.
26
(d) Nothing contained herein shall relieve a defaulting Underwriter of any liability it may have
to the Issuer, the Guarantors or any non-defaulting Underwriter for damages caused by its default.
11. Payment of Expenses.
(a) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated, the Issuer and
each of the Guarantors jointly and severally agree to pay or cause to be paid all costs and expenses incident to the performance of their respective obligations hereunder, including without limitation, (i) the costs incident to the
authorization, issuance, sale, preparation and delivery of the Securities and any taxes payable in that connection; (ii) the costs incident to the preparation, printing and filing under the Securities Act of the Registration Statement, the
Preliminary Prospectus, any Issuer Free Writing Prospectus, any Time of Sale Information and the Prospectus (including all exhibits, amendments and supplements thereto) and the distribution thereof; (iii) the costs of reproducing and
distributing each of the Transaction Documents; (iv) the fees and expenses of the Issuers and the Guarantors counsel and independent accountants; (v) the fees and expenses incurred in connection with the registration or
qualification and determination of eligibility for investment of the Securities under the laws of such jurisdictions as the Representatives may designate and the preparation, printing and distribution of a Blue Sky Memorandum (including the related
fees and expenses of counsel for the Underwriters which fees and expenses shall not exceed $15,000); (vi) any fees and expenses incurred in connection with listing the Securities on The New York Stock Exchange; (vii) any fees charged by
rating agencies for rating the Securities; (viii) the fees and expenses of the Trustee and any paying agent (including related fees and expenses of any counsel to such parties); (ix) all expenses and application fees incurred in connection
with any filing with, and clearance of the offering by, the Financial Industry Regulatory Authority, and the approval of the Securities for book-entry transfer by the Common Depositary for Euroclear and Clearstream; and (x) all expenses
incurred by the Issuer in connection with any road show presentation to potential investors. Except as provided in this Section 11 and Sections 7 and 10(c) hereof, the Underwriters shall pay their own expenses on a pro rata basis in
accordance with the amount of Securities purchased by such Underwriter as set forth on Schedule I, including the fees and expenses of their counsel and travel and lodging expenses of any representatives of the Underwriters.
(b) If (i) this Agreement is terminated pursuant to Section 9, (ii) the Issuer for any reason fails to tender the Securities
for delivery to the Underwriters or (iii) the Underwriters decline to purchase the Securities for any reason permitted under this Agreement, the Issuer and each of the Guarantors jointly and severally agree to reimburse the Underwriters for all
out-of-pocket costs and expenses (including the fees and expenses of their counsel) reasonably incurred by the Underwriters in connection with this Agreement and the offering contemplated hereby and neither the Issuer nor the Guarantors shall in any
event be liable to any Underwriter for damages on account of loss of anticipated profits from the sale of the Securities.
27
12. Persons Entitled to Benefit of Agreement. This Agreement shall inure to the benefit of
and be binding upon the parties hereto and their respective successors and the officers and directors and any controlling persons referred to herein, and the affiliates of each Underwriter referred to in Section 7 hereof. Nothing in this
Agreement is intended or shall be construed to give any other person any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision contained herein. No purchaser of Securities from any Underwriter shall be
deemed to be a successor merely by reason of such purchase.
13. Survival. The respective indemnities, rights of contribution,
representations, warranties and agreements of the Issuer, the Guarantors and the Underwriters contained in this Agreement or made by or on behalf of the Issuer, the Guarantors or the Underwriters pursuant to this Agreement or any certificate
delivered pursuant hereto shall survive the delivery of and payment for the Securities and shall remain in full force and effect, regardless of any termination of this Agreement or any investigation made by or on behalf of the Issuer, the Guarantors
or the Underwriters.
14. Certain Defined Terms. For purposes of this Agreement, (a) except where otherwise expressly
provided, the term affiliate has the meaning set forth in Rule 405 under the Securities Act; (b) the term business day means any day other than a day on which banks are permitted or required to be closed in
New York City; and (c) the term subsidiary has the meaning set forth in Rule 405 under the Securities Act; and (d) the term significant subsidiary has the meaning set forth in Rule 1-02 of Regulation S-X under the
Exchange Act.
15. Compliance with USA Patriot Act. In accordance with the requirements of the USA Patriot Act (Title III of Pub.
L. 107-56 (signed into law October 26, 2001)), the Underwriters are required to obtain, verify and record information that identifies their respective clients, including the Issuer, which information may include the name and address of their
respective clients, as well as other information that will allow the Underwriters to properly identify their respective clients.
16.
Stabilization. In connection with the issue of the Securities, J.P. Morgan Securities plc (in this capacity, the Stabilizing Manager) (or any person acting on behalf of the Stabilizing Manager), for its own account or for
the accounts of the underwriters, may to the extent permitted by applicable laws and directives over-allot Securities or effect transactions with a view to supporting the market price of the Securities at a level higher than that which might
otherwise prevail. However, there is no assurance that the Stabilizing Manager (or persons acting on behalf of the Stabilizing Manager) will undertake any stabilizing action. Any stabilization action may begin on or after the date on which adequate
public disclosure of the final terms of the offer of the Securities is made, and, if begun, may be ended at any time, but it must end no later than the earlier of 30 days after the issue of the Securities and 60 days after the date of the allotment
of the Securities. Such stabilization shall be carried out in accordance with applicable laws and regulations. Any loss or profit sustained as a consequence of any such over-allotment or stabilization shall be for the account of the Stabilizing
Manager. The Stabilizing Manager may conduct these transactions in the over-the-counter market or otherwise. If the Stabilizing Manager commences any stabilization action, it may discontinue them at any time.
28
17. Agreement Among Underwriters. The execution of this Agreement by each Underwriter
constitutes the acceptance of each Underwriter of the ICMA Agreement Among Managers Version 1/New York Schedule, subject to any amendment notified to the Underwriters in writing at any time prior to the execution of this Agreement. References to the
Managers shall be deemed to refer to the Underwriters, references to the Lead Manager shall be deemed to refer to each of Citigroup Global Markets Limited, J.P. Morgan Securities plc and Merrill Lynch International and
references to Settlement Lead Manager shall be deemed to refer to J.P. Morgan Securities plc. As applicable to the Underwriters, Clause 3 of the ICMA Agreement Among Managers Version 1/New York Schedule shall be deemed to be deleted in
its entirety and replaced with Section 10 of this Agreement.
18. Miscellaneous.
(a) Authority of the Representatives. Any action by the Underwriters hereunder may be taken by Citigroup Global Markets Limited, J.P.
Morgan Securities plc and Merrill Lynch International on behalf of the Underwriters, and any such action taken by Citigroup Global Markets Limited, J.P. Morgan Securities plc and Merrill Lynch International shall be binding upon the Underwriters.
(b) Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if
mailed or transmitted and confirmed by any standard form of telecommunication. Notices to the Underwriters shall be given to the Representatives c/o Citigroup Global Markets Limited, Citigroup Centre, Canada Square, Canary Wharf, London E14 5LB
United Kingdom (fax: +44-20-7986-1927); Attention: Syndicate Desk, J.P. Morgan Securities plc, 25 Bank Street, Canary Wharf, London E14 5JP United Kingdom, (fax: +44-20-3493-0682; Attention: Head of Debt Syndicate and Head of EMEA Debt Capital
Markets Group, and Merrill Lynch International, 2 King Edward Street, London EC1A 1HQ United Kingdom (fax: +44-20-7995-0048); Attention: Syndicate Desk. Notices to the Issuer and the Guarantors shall be given to them at Pentair plc c/o Pentair
Management Company, 5500 Wayzata Boulevard, Suite 600, Golden Valley, MN (fax: 763-656-5403); Attention: General Counsel.
(c)
Governing Law. This Agreement and any claim, controversy or dispute arising under or related to this Agreement shall be governed by and construed in accordance with the laws of the State of New York.
(d) Submission to Jurisdiction. The Issuer and each of the Guarantors hereby submit to the exclusive jurisdiction of the U.S. federal
and New York state courts in the Borough of Manhattan in The City of New York in any suit or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby. The Issuer and each of the Guarantors waives any objection
which it may now or hereafter have to the laying of venue of any such suit or proceeding in such courts. Each of the Issuer and
29
each of the Guarantors agree that final judgment in any such suit, action or proceeding brought in such court shall be conclusive and binding upon the Issuer and each Guarantor, as applicable,
and may be enforced in any court to the jurisdiction of which the Issuer and each Guarantor, as applicable, is subject by a suit upon such judgment.
(e) Judgment Currency. In respect of any judgment or order given or made for any amount due under this agreement or the transactions
contemplated hereby or thereby that is expressed and paid in a currency (the judgment currency) other than United States dollars, you will indemnify us against any loss incurred as a result of any variation as between (a) the
rate of exchange at which the United States dollar amount is converted into the judgment currency for the purpose of such judgment or order and (b) the rate of exchange at which we are able to purchase United States dollars with the amount of
the judgment currency actually received by us. The term rate of exchange shall include any premiums and costs of exchange payable in connection with the purchase of or conversion into United States dollars.
(f) Waiver of Jury Trial. Each of the parties hereto hereby waives any right to trial by jury in any suit or proceeding arising out of
or relating to this Agreement.
(g) Counterparts. This Agreement may be signed in counterparts (which may include counterparts
delivered by any standard form of telecommunication, including by electronic mail in portable document format (.pdf) or by a combination of such means), each of which shall be an original and all of which together shall
constitute one and the same instrument.
(h) Amendments or Waivers. No amendment or waiver of any provision of this Agreement, nor
any consent or approval to any departure therefrom, shall in any event be effective unless the same shall be in writing and signed by the parties hereto.
(i) Headings. The headings herein are included for convenience of reference only and are not intended to be part of, or to affect the
meaning or interpretation of, this Agreement.
30
If the foregoing is in accordance with your understanding, please indicate your acceptance of
this Agreement by signing in the space provided below.
|
|
|
|
|
Very truly yours, |
|
PENTAIR FINANCE S.A. |
|
|
By |
|
/s/ Benjamin Peric |
|
|
Name: |
|
Benjamin Peric |
|
|
Title: |
|
Director |
|
|
|
|
|
PENTAIR PLC |
|
|
By |
|
/s/ Christopher R. Oster |
|
|
Name: |
|
Christopher R. Oster |
|
|
Title: |
|
Authorized Representative |
|
|
|
|
|
PENTAIR INVESTMENTS SWITZERLAND GMBH |
|
|
By |
|
/s/ Henning Wistorf |
|
|
Name: |
|
Henning Wistorf |
|
|
Title: |
|
Managing Officer |
[Signature Page to Underwriting Agreement]
Accepted: September 14, 2015
CITIGROUP GLOBAL MARKETS LIMITED
|
|
|
By |
|
/s/ Tom Pauk |
|
|
Authorized Signatory |
[Signature Page to Underwriting Agreement]
Accepted: September 14, 2015
J.P. MORGAN SECURITIES PLC
|
|
|
By |
|
/s/ |
|
|
Authorized Signatory |
[Signature Page to Underwriting Agreement]
Accepted: September 14, 2015
MERRILL LYNCH INTERNATIONAL
|
|
|
By |
|
/s/ |
|
|
Authorized Signatory |
[Signature Page to Underwriting Agreement]
Accepted: September 14, 2015
MITSUBISHI UFJ SECURITIES INTERNATIONAL PLC
|
|
|
By |
|
/s/ |
|
|
Authorized Signatory |
[Signature Page to Underwriting Agreement]
35
Accepted: September 14, 2015
U.S. BANCORP INVESTMENTS, INC
|
|
|
By |
|
/s/ |
|
|
Authorized Signatory |
[Signature Page to Underwriting Agreement]
Accepted: September 14, 2015
HSBC BANK PLC
|
|
|
By |
|
/s/ |
|
|
Authorized Signatory |
[Signature Page to Underwriting Agreement]
Accepted: September 14, 2015
WELLS FARGO SECURITIES INTERNATIONAL LIMITED
|
|
|
By |
|
/s/ Matt Carter |
|
|
Authorized Signatory |
[Signature Page to Underwriting Agreement]
Accepted: September 14, 2015
DEUTSCHE BANK AG, LONDON BRANCH
|
|
|
By |
|
/s/ |
|
|
Authorized Signatory |
|
|
|
By |
|
/s/ |
|
|
Authorized Signatory |
[Signature Page to Underwriting Agreement]
Accepted: September 14, 2015
BANCO SANTANDER, S.A.
|
|
|
By |
|
/s/ |
|
|
Authorized Signatory |
|
|
|
By |
|
/s/ Eric Bellanger |
|
|
Authorized Signatory |
[Signature Page to Underwriting Agreement]
Accepted: September 14, 2015
BANCO BILBAO VIZCAYA ARGENTARIA, S.A.
|
|
|
By |
|
/s/ |
|
|
Authorized Signatory |
|
|
|
By |
|
/s/ |
|
|
Authorized Signatory |
[Signature Page to Underwriting Agreement]
Accepted: September 14, 2015
BANK OF MONTREAL, LONDON BRANCH
|
|
|
By |
|
/s/ |
|
|
Authorized Signatory |
[Signature Page to Underwriting Agreement]
Accepted: September 14, 2015
BNP PARIBAS
|
|
|
By |
|
/s/ |
|
|
Authorized Signatory |
[Signature Page to Underwriting Agreement]
Accepted: September 14, 2015
ING FINANCIAL MARKETS LLC
|
|
|
By |
|
/s/ |
|
|
Authorized Signatory |
[Signature Page to Underwriting Agreement]
Accepted: September 14, 2015
ANZ SECURITIES, INC.
|
|
|
By |
|
/s/ |
|
|
Authorized Signatory |
[Signature Page to Underwriting Agreement]
Accepted: September 14, 2015
LOOP CAPITAL MARKETS LLC
|
|
|
By |
|
/s/ |
|
|
Authorized Signatory |
[Signature Page to Underwriting Agreement]
Accepted: September 14, 2015
PNC CAPITAL MARKETS LLC
|
|
|
By |
|
/s/ |
|
|
Authorized Signatory |
[Signature Page to Underwriting Agreement]
Accepted: September 14, 2015
SMBC NIKKO CAPITAL MARKETS LIMITED
|
|
|
By |
|
/s/ |
|
|
Authorized Signatory |
[Signature Page to Underwriting Agreement]
Accepted: September 14, 2015
THE WILLIAMS CAPITAL GROUP, L.P.
|
|
|
By |
|
/s/ David Finkelstein |
David Finkelstein - Assistant Vice President |
|
|
Authorized Signatory |
[Signature Page to Underwriting Agreement]
Schedule 1
|
|
|
|
|
Underwriter |
|
Principal Amount of the 2019 Notes |
|
Citigroup Global Markets Limited |
|
|
114,500,000 |
|
J.P. Morgan Securities plc |
|
|
114,500,000 |
|
Merrill Lynch International |
|
|
114,500,000 |
|
Mitsubishi UFJ Securities International plc |
|
|
36,375,000 |
|
U.S. Bancorp Investments, Inc. |
|
|
36,375,000 |
|
HSBC Bank plc |
|
|
12,500,000 |
|
Wells Fargo Securities International Limited |
|
|
12,500,000 |
|
Deutsche Bank AG, London Branch |
|
|
10,000,000 |
|
Banco Santander, S.A. |
|
|
10,000,000 |
|
Banco Bilbao Vizcaya Argentaria, S.A. |
|
|
5,000,000 |
|
Bank of Montreal, London Branch |
|
|
5,000,000 |
|
BNP Paribas |
|
|
5,000,000 |
|
ING Financial Markets LLC |
|
|
5,000,000 |
|
ANZ Securities, Inc |
|
|
3,750,000 |
|
Loop Capital Markets LLC |
|
|
3,750,000 |
|
PNC Capital Markets LLC |
|
|
3,750,000 |
|
SMBC Nikko Capital Markets Limited |
|
|
3,750,000 |
|
The Williams Capital Group, L.P. |
|
|
3,750,000 |
|
|
|
|
|
|
Total |
|
|
500,000,000 |
|
Annex A
Time of Sale Information
|
|
|
Pricing Term Sheet, dated September 14, 2015, substantially in the form of Annex B. |
Annex B
Filed Pursuant to Rule 433
Registration Statement No. 333-204066
September 14, 2015
Pentair Finance S.A.
Pricing Term Sheet
|
|
|
Issuer: |
|
Pentair Finance S.A. |
Guarantors: |
|
Pentair plc and Pentair Investments Switzerland
GmbH |
Offering Format: |
|
SEC Registered |
Security: |
|
2.450% Senior Notes due 2019 |
Size: |
|
500,000,000 |
Maturity: |
|
September 17, 2019 |
Coupon: |
|
2.450% |
Day Count Fraction: |
|
ACTUAL/ACTUAL (ICMA) |
Price to Public: |
|
99.868% of face amount |
Yield to Maturity: |
|
2.485% |
Benchmark Bund: |
|
OBL 0.500% due April 12, 2019 |
Benchmark Bund Yield: |
|
-0.150% |
Spread to Benchmark Bund: |
|
+263.5 basis points |
Mid-Swap Yield: |
|
0.235% |
Spread to Mid-Swap Yield: |
|
+225 basis points |
Interest Payment Dates: |
|
Annually on September 17, commencing September 17, 2016 |
Use of Proceeds: |
|
The issuer intends to use (i) the net proceeds from the offering, (ii) the net proceeds from the Concurrent Offering of $1,150,000,000 in
aggregate principal amount of senior notes, and (iii) borrowings of approximately $109.4 million under its revolving credit facility to finance the ERICO acquisition, including the repayment of outstanding ERICO debt for $1,800,000,000.
In the event that the issuer is unable to consummate the Concurrent Offering, the issuer
intends to borrow under its $1,800,000,000 committed bridge facility to obtain any additional funds needed to finance the ERICO acquisition. The amount of financing available under the bridge facility decreases to the extent the issuer obtains
financing through the offering and the Concurrent Offering. If the ERICO acquisition
is not consummated on or prior to December 31, 2015 or the merger agreement relating to the acquisition of ERICO is terminated on or prior to December 31, 2015, the issuer intends to use the net proceeds from the offering and cash on hand to fund
the mandatory redemption of all outstanding notes. |
|
|
|
Redemption Provisions: |
|
|
Make-Whole Call: |
|
At any time at a discount rate of comparable government bond rate plus 40 basis points |
Tax Call: |
|
At any time at par if certain events occur involving changes in taxation |
Special Mandatory Redemption: |
|
The offering is not contingent upon the consummation of the ERICO acquisition but, in the event that the ERICO acquisition is not consummated on or prior to December 31, 2015 or the merger agreement relating to the acquisition of
ERICO is terminated on or prior to December 31, 2015, then Pentair Finance will be required to redeem all of the outstanding notes on the Special Mandatory Redemption Date at a redemption price equal to 101% of the principal amount of the notes plus
accrued and unpaid interest, if any, from the date of initial issuance to, but excluding, the Special Mandatory Redemption Date. |
Listing: |
|
The issuer intends to apply to list the notes on the New York Stock Exchange. There can be no assurance that any such application will be successful or that any such listing will be granted or maintained. |
Stabilization: |
|
Stabilization / FCA |
Trade Date: |
|
September 14, 2015 |
Settlement Date: |
|
September 17, 2015 (T+3) |
CUSIP: |
|
709629 AQ2 |
ISIN: |
|
XS1117287398 |
Common Code: |
|
111728739 |
Minimum Denomination: |
|
100,000 and integral multiples of 1,000 in excess thereof |
Ratings*: |
|
|
Joint Book-Running Managers: |
|
Citigroup Global Markets Limited J.P. Morgan
Securities plc Merrill Lynch International Mitsubishi UFJ
Securities International plc U.S. Bancorp Investments, Inc. |
Co-Managers: |
|
HSBC Bank plc Wells Fargo Securities
International Limited Deutsche Bank AG, London Branch Banco
Santander, S.A. |
Junior Co-Managers: |
|
Banco Bilbao Vizacaya Argentaria, S.A. Bank of
Montreal, London Branch BNP Paribas ING Financial Markets
LLC ANZ Securities, Inc. Loop Capital Markets LLC
PNC Capital Markets LLC SMBC Nikko Capital Markets Limited
The Williams Capital Group, L.P. |
*Note: A securities rating is not a recommendation to buy, sell or hold securities and may be revised or
withdrawn at any time.
The issuer and the guarantors have filed a registration statement (including a prospectus) with the SEC for the offering to
which this communication relates. Before you invest, you should read the prospectus in that registration statement and other documents the issuer has filed with the SEC for more complete information about the issuer, the guarantors and this
offering. You may get these documents for free by visiting EDGAR on the SEC Web site at www.sec.gov. Alternatively, the issuer, any underwriter or any dealer participating in the offering will arrange to send you the prospectus if you request it by
calling Citigroup Global Markets Limited toll-free at 1-800-831-9146 or e-mailing at prospectus@citi.com, calling J.P. Morgan Securities plc toll-free at +44-20-7134-2468 or calling Merrill Lynch International toll-free at 1-800-294-1322 or emailing
at dg.prospectus_requests@baml.com.
Any legends, disclaimers or other notices that may appear below are not applicable to this communication and
should be disregarded. Such legends, disclaimers or other notices have been automatically generated as a result of this communication having been sent via Bloomberg or another e-mail system.
Exhibit 4.2
EXECUTION VERSION
PENTAIR FINANCE S.A.,
as Issuer
AND
PENTAIR PLC,
as Parent and Guarantor
AND
PENTAIR INVESTMENTS SWITZERLAND GMBH,
as Guarantor
AND
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
FOURTH SUPPLEMENTAL
INDENTURE
Dated as of September 17, 2015
500,000,000 of 2.450% Senior Notes due 2019
THIS FOURTH SUPPLEMENTAL INDENTURE is dated as of September 17, 2015, among PENTAIR FINANCE
S.A., a Luxembourg public limited liability company (société anonyme) with a registered office at 26, boulevard Royal, L-2449 Luxembourg, Luxembourg and registered with the Luxembourg Trade and Companies Register under
number B 166305, as issuer (the Company), each of PENTAIR PLC, an Irish public limited company (Parent), and PENTAIR INVESTMENTS SWITZERLAND GMBH, a Switzerland limited liability company, as guarantors (each
individually, a Guarantor and collectively, the Guarantors), and U.S. BANK NATIONAL ASSOCIATION, a national banking association, as trustee (the Trustee).
RECITALS
A. The Company,
the Guarantors and the Trustee have heretofore executed and delivered an Indenture, dated as of September 16, 2015 (the Base Indenture), to provide for the issuance by the Company from time to time of unsubordinated debt
securities evidencing its unsecured indebtedness and the guarantee of such securities by the Guarantors to the extent described therein and in this Fourth Supplemental Indenture.
B. Pursuant to resolutions of the Board of Directors, the Company has authorized the issuance of 500,000,000 principal amount of
2.450% Senior Notes due 2019 (the Offered Securities).
C. The entry into this Fourth Supplemental Indenture by
the parties hereto is in all respects authorized by the provisions of the Base Indenture.
D. The Company and the Guarantors desire to
enter into this Fourth Supplemental Indenture pursuant to Section 9.01 of the Base Indenture to establish the terms of the Offered Securities in accordance with Section 2.01 of the Base Indenture and to establish the form of the Offered
Securities in accordance with Section 2.02 of the Base Indenture.
E. All things necessary to make this Fourth Supplemental Indenture
a legal, valid and binding indenture and agreement according to its terms have been done.
NOW, THEREFORE, for and in consideration of the
foregoing premises, the Company, the Guarantors and the Trustee mutually covenant and agree for the equal and proportionate benefit of the respective Holders from time to time of the Offered Securities as follows:
ARTICLE I
Section 1.1 Terms of Offered
Securities.
The following terms relate to the Offered Securities:
(1) The Offered Securities constitute a series of securities having the title 2.450% Senior Notes due 2019.
Fourth Supplemental
Indenture
2
(2) The initial aggregate principal amount of the Offered Securities that may be authenticated
and delivered under the Base Indenture (except for Offered Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Offered Securities pursuant to Section 2.05, 2.06, 2.07, 2.11, or 3.03
of the Base Indenture) is 500,000,000.
(3) The entire Outstanding principal of the Offered Securities shall be payable on
September 17, 2019. Notwithstanding the foregoing, if such date falls on a day that is not a Business Day, the related payment of principal and interest shall be made on the next Business Day as if it were made on the date such payment was due,
and no interest shall accrue on the amounts so payable for the period from and after such date to the next Business Day.
(4) The rate at
which the Offered Securities shall bear interest shall be 2.450% per year, as set forth in Section 1 of the form of Offered Security attached hereto as Exhibit A and subject to adjustment as set forth in Section 2 of the form of
Offered Security attached hereto as Exhibit A. The date from which interest shall accrue on the Offered Securities shall be September 17, 2015 or the most recent Interest Payment Date to which interest has been paid or provided for. The
Interest Payment Date for the Offered Securities shall be September 17 of each year, beginning on September 17, 2016. Interest shall be payable on each Interest Payment Date to the Holders of record at the close of business on the
September 2 immediately prior to such Interest Payment Date (a regular record date). The basis upon which interest shall be calculated shall be that of the actual number of days in the period for which interest is being
calculated and the actual number of days from and including the last date on which interest was paid on the Offered Securities (or September 17, 2015, if no interest has been paid on the Offered Securities) to but excluding the next scheduled
Interest Payment Date. This payment convention is referred to as ACTUAL/ACTUAL (ICMA) as defined in the rulebook of the International Capital Market Association. Other than with respect to the interest payable on the maturity date of the Offered
Securities (which shall be governed by Section 1.1(3)), if any Interest Payment Date would otherwise be a day that is not a Business Day, such Interest Payment Date shall be postponed to the next date that is a Business Day.
(5) The Offered Securities shall initially be represented by one or more fully registered Global Securities. Each Global Security shall be
deposited with, or on behalf of, a common depositary, and registered in the name of the nominee of the common depositary for the accounts of Clearstream (as defined below) and Euroclear (as defined below). Except as set forth in Section 10 of
the form of Offered Security attached hereto as Exhibit A, each such Global Security may be transferred, in whole and not in part, only to Euroclear or Clearstream or their respective nominees. The Offered Securities shall be substantially in the
form attached hereto as Exhibit A, the terms of which are incorporated by reference in this Fourth Supplemental Indenture. Except as set forth in Section 10 of the form of Offered Security attached hereto as Exhibit A, the Offered Securities
shall not be issuable in certificated form. The Offered Securities shall be issuable in denominations of 100,000 or any integral multiple of 1,000 in excess thereof.
(6) The Currency of the Offered Securities shall be euro. All payments of interest and principal, including payments made upon any redemption
or repurchase of the Offered
Fourth Supplemental
Indenture
3
Securities, shall be made in euro; provided that if the euro is unavailable to the Company due to the imposition of exchange controls or other circumstances beyond the control of the Company or
if the euro is no longer being used by the member states of the European Monetary Union that have adopted the euro as their currency or for the settlement of transactions by public institutions of or within the international banking community, then
all payments in respect of the Offered Securities shall be made in U.S. dollars until the euro is again available to the Company or so used. In such circumstances, the amount payable on any date in euro shall be converted into U.S. dollars at the
rate published by the Board of Governors of the Federal Reserve System as of the close of business on the second Business Day prior to the relevant payment date or, if the Board of Governors of the Federal Reserve System has not announced a rate of
conversion, the rate shall be determined in the sole discretion of the Company on the basis of the most recently available market exchange rate for the euro. Any payment in respect of the Offered Securities so made in U.S. dollars shall not
constitute an Event of Default hereunder or under the Indenture. Neither the Trustee nor the paying agent shall have any responsibility for any such calculation or conversion. Any references elsewhere in this Fourth Supplemental Indenture or the
Offered Securities to payments being made in euro notwithstanding, payments shall be made in U.S. dollars to the extent set forth in this Section 1.1(6).
(7) The Offered Securities shall be subject to redemption at the Companys option on any Redemption Date as set forth in Section 6
of the form of Offered Security attached hereto as Exhibit A.
(8) Except as provided in this Fourth Supplemental Indenture, the Offered
Securities shall not be subject to redemption, repurchase or repayment at the option of any Holder thereof, upon the occurrence of any particular circumstances or otherwise. The Offered Securities shall not have the benefit of any sinking fund. For
the avoidance of doubt, the Company, the Guarantors and their respective Affiliates may purchase Offered Securities from the Holders thereof from time to time, either in the open market at prevailing prices or in private transactions at negotiated
prices. Any Offered Securities purchased by the Company, the Guarantors or any of their respective Affiliates may, at the purchasers discretion, be held, resold or canceled.
(9) Except as provided in this Fourth Supplemental Indenture, the Holders of the Offered Securities shall have no special rights in addition
to those provided in the Base Indenture upon the occurrence of any particular events.
(10) The Offered Securities shall be general
unsecured and unsubordinated obligations of the Company and shall be ranked equally among themselves.
(11) The Offered Securities are not
convertible into shares of common stock or other securities of the Company or the Guarantors.
(12) In addition to the provisions of the
Base Indenture referred to in Section 11.03(b) thereof, the covenants described in Sections 1.3(1), 1.3(2) and 1.3(3) of this Fourth Supplemental Indenture shall be subject to the Companys covenant defeasance right set forth in
Section 11.03 of the Base Indenture. In addition, following any such covenant defeasance, the Events of Default set forth in Sections 1.5(1), 1.5(3) and 1.5(4) of this Fourth Supplemental Indenture shall cease to apply with respect to the
Offered Securities.
Fourth Supplemental
Indenture
4
Section 1.2 Additional Defined Terms.
As used in this Fourth Supplemental Indenture, the following defined terms shall have the following meanings with respect to the Offered
Securities only:
Attributable Debt, in connection with a Sale and Lease-Back Transaction, as of any particular time,
means the aggregate of present values (discounted at a rate that, at the inception of the lease, represents the effective interest rate that the lessee would have incurred to borrow over a similar term the funds necessary to purchase the leased
assets) of the obligations of the Company, a Guarantor or any Restricted Subsidiary for net rental payments during the remaining term of the applicable lease, including any period for which such lease has been extended or, at the option of the
lessor, may be extended. The term net rental payments under any lease of any period shall mean the sum of the rental and other payments required to be paid in such period by the lessee thereunder, not including any amounts
required to be paid by such lessee, whether or not designated as rental or additional rental, on account of maintenance and repairs, reconstruction, insurance, taxes, assessments, water rates 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, reconstruction, insurance, taxes, assessments, water rates or similar charges.
Business Day means any day that is not a Saturday, Sunday or other day on which banking institutions in New York City,
London or another place of payment on the Offered Securities are authorized or required by law to close and on which the Trans-European Automated Real-Time Gross Settlement Express Transfer system (the TARGET2 system), or any successor thereto, is
open.
Change of Control means the occurrence on or after the Issue Date of any of the following: (1) the direct
or indirect sale, lease, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or more series of related transactions, of all or substantially all of the assets of Parent and its Subsidiaries, taken as a
whole, to any person other than Parent or a direct or indirect wholly-owned Subsidiary of Parent; (2) the consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any person
becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more than 50% of Parents outstanding Voting Stock or other Voting Stock into which Parents Voting
Stock is reclassified, consolidated, exchanged or changed, measured by voting power rather than number of shares; (3) Parent consolidates with, or merges with or into, any person, or any person consolidates with, or merges with or into, Parent,
in any such event pursuant to a transaction in which any of Parents outstanding Voting Stock or the Voting Stock of such other person is converted into or exchanged for cash, securities or other property, other than any such transaction where
the shares of Parents Voting Stock outstanding immediately prior to such transaction constitute, or are converted into or exchanged for, at least a majority of the Voting Stock of the surviving person or any direct or indirect parent company
of the surviving person immediately after giving effect to such
Fourth Supplemental
Indenture
5
transaction; or (4) the approval by the holders of Parents Voting Stock of a plan for Parents liquidation or dissolution. Notwithstanding the foregoing, a transaction shall not
be deemed to involve a Change of Control under clause (1), (2) or (4) above if: (i) Parent becomes a direct or indirect wholly-owned Subsidiary of a holding company or a holding company becomes the successor to Parent under
Section 10.2 of the Base Indenture pursuant to a transaction that is permitted under Section 10.1 of the Base Indenture and (ii) the direct or indirect holders of the Voting Stock of such holding company immediately following that
transaction (or a series of related transactions) are the same or substantially the same (and hold in the same or substantially the same proportions) as the holders of Parents Voting Stock immediately prior to that transaction. The term
person, as used in this definition, means any Person and any two or more Persons as provided in Section 13(d)(3) of the Exchange Act.
Change of Control Triggering Event means the occurrence of both a Change of Control and a Rating Event; provided, however,
that a Change of Control Triggering Event otherwise arising by virtue of a particular reduction in rating shall not be deemed to have occurred in respect of a Change of Control if the Rating Agency or Rating Agencies making the reduction in rating
to which this definition would otherwise apply do not announce or publicly confirm or inform the Trustee in writing at its request that the reduction was the result, in whole or in part, of any event or circumstance comprised of or arising as a
result of, or in respect of, the applicable Change of Control (whether or not the applicable Change of Control shall have occurred at the time of the purported Change of Control Triggering Event). Unless at least two of the three Rating Agencies are
providing a rating for the Offered Securities at the commencement of any period referred to in the definition of Rating Event, a Rating Event shall be deemed to have occurred during such period. Notwithstanding the foregoing, no Change
of Control Triggering Event shall be deemed to have occurred in connection with any particular Change of Control unless and until such Change of Control has actually been consummated.
Clearstream means Clearstream Banking, société anonyme, or its successor.
Consolidated Net Tangible Assets at any date means Consolidated Net Worth less all Intangible Assets appearing on
the most recently prepared consolidated balance sheet of Parent and its Subsidiaries as of the end of a fiscal quarter of Parent and its Subsidiaries, prepared in accordance with United States generally accepted accounting principles as in effect on
the date of the consolidated balance sheet.
Consolidated Net Worth at any date means total assets less
total liabilities, in each case appearing on the most recently prepared consolidated balance sheet of Parent and its Subsidiaries as of the end of a fiscal quarter of Parent and its Subsidiaries, prepared in accordance with United States generally
accepted accounting principles as in effect on the date of the consolidated balance sheet.
Consolidated Total
Assets at any date means the total assets appearing on the most recently prepared consolidated balance sheet of Parent and its Subsidiaries as of the end of a fiscal quarter of Parent and its Subsidiaries, prepared in accordance with
United States generally accepted accounting principles as in effect on the date of the consolidated balance sheet.
Fourth Supplemental
Indenture
6
ERICO means ERICO Global Company, an Ohio corporation.
ERICO Acquisition means the acquisition of all of the outstanding shares of ERICO by Buyer (as defined in the
definition of ERICO Merger Agreement) pursuant to the ERICO Merger Agreement.
ERICO Merger Agreement
means the Agreement and Plan of Merger dated August 15, 2015, among Parent, Pentair Lionel Acquisition Co., a Delaware corporation and wholly-owned subsidiary of Parent (Buyer), Pentair Lionel Merger Sub, Inc., an Ohio
corporation and a wholly-owned subsidiary of Parent and Buyer, and ERICO, as the same may be amended, restated, supplemented, replaced or otherwise modified from time to time.
Euroclear means Euroclear Bank, S.A./N.V., or its successor.
or euro means the lawful currency of the member states of the European Monetary Union that
have adopted or that adopt the single currency in accordance with the treaty establishing the European Community, as amended by the Treaty on European Union.
Fitch means Fitch Inc., and its successors.
Funded Indebtedness means any Indebtedness maturing by its terms more than one year from the date of the
determination thereof, including any Indebtedness renewable or extendible at the option of the obligor to a date later than one year from the date of the determination thereof.
Indebtedness means, without duplication, the principal amount (such amount being the face amount or, with respect to
original issue discount bonds or zero coupon notes, bonds or debentures or similar securities, determined based on the accreted amount as of the date of the most recently prepared consolidated balance sheet of Parent and its Subsidiaries as of the
end of a fiscal quarter of Parent prepared in accordance with United States generally accepted accounting principles as in effect on the date of such consolidated balance sheet) of (i) all obligations for borrowed money, (ii) all
obligations evidenced by debentures, notes or other similar instruments, (iii) all obligations in respect of letters of credit or bankers acceptances or similar instruments or reimbursement obligations with respect thereto (such instruments to
constitute Indebtedness only to the extent that the outstanding reimbursement obligations in respect thereof are collateralized by cash or cash equivalents reflected as assets on a balance sheet prepared in accordance with United States generally
accepted accounting principles), (iv) all obligations as lessee to the extent capitalized in accordance with United States generally accepted accounting principles in effect on the date of this Fourth Supplemental Indenture and (v) all
Indebtedness of others consolidated in such balance sheet that is guaranteed by the Company, a Guarantor or any of their respective Subsidiaries or for which the Company, a Guarantor or any of their respective Subsidiaries is legally responsible or
liable (whether by agreement to purchase indebtedness of, or to supply funds or to invest in, others).
Intangible
Assets means the amount, if any, stated under the heading Goodwill and Other Intangible assets, net or under any other heading of intangible assets separately listed, in
Fourth Supplemental
Indenture
7
each case on the face of the most recently prepared consolidated balance sheet of Parent and its subsidiaries as of the end of a fiscal quarter of Parent, prepared in accordance with United
States generally accepted accounting principles as in effect on the date of the consolidated balance sheet.
Investment
Grade Rating means a rating equal to or higher than BBB- (or the equivalent) by Fitch, Baa3 (or the equivalent) by Moodys and BBB- (or the equivalent) by S&P, and the equivalent investment grade credit rating from any replacement
rating agency or rating agencies selected by the Company.
Issue Date means the date on which the Offered
Securities are originally issued.
Lien means a mortgage, pledge, security interest, lien or similar encumbrance.
Moodys means Moodys Investors Service, Inc., and its successors.
Non-Recourse Indebtedness means Indebtedness upon the enforcement of which recourse may be had by the holder(s)
thereof only to identified assets of a Guarantor or the Company or any Subsidiary of a Guarantor or the Company and not to a Guarantor or the Company or any Subsidiary of a Guarantor or the Company personally (subject to, for the avoidance of doubt,
customary exceptions contained in non-recourse financings to the non-recourse nature of the obligations thereunder).
Principal Property means any manufacturing, processing or assembly plant, warehouse or distribution facility, office
building or parcel of real property of Parent or any of its Subsidiaries that is located in the United States of America, Canada or the Commonwealth of Puerto Rico and (A) is owned by Parent or any Subsidiary of Parent on the Issue Date,
(B) the initial construction of which has been completed after the date hereof, or (C) is acquired after the date hereof, in each case, other than any such plants, facilities, warehouses, office buildings, parcels or portions thereof, that
(i) in the opinion of the Board of Directors of Parent, are not collectively of material importance to the total business conducted by Parent and its Subsidiaries as an entirety, or (ii) has a net book value (excluding any capitalized
interest expense), on the Issue Date in the case of clause (A) of this definition, on the date of completion of the initial construction in the case of clause (B) of this definition or on the date of acquisition in the case of clause
(C) of this definition, of less than 1.0% of Consolidated Net Tangible Assets on the consolidated balance sheet of Parent as of the applicable date.
Rating Agencies means (i) each of Fitch, Moodys and S&P, and (ii) if any of Fitch, Moodys or
S&P ceases to rate the Offered Securities or fails to make a rating of the Offered Securities publicly available for reasons outside of the Companys control, a nationally recognized statistical rating organization within the
meaning of Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act, selected by the Company (as certified by a resolution of the Companys Board of Directors) as a replacement agency for Fitch, Moodys or S&P, or all of them, as the case may
be.
Fourth Supplemental
Indenture
8
Rating Event means the rating on the Offered Securities is lowered by
at least two of the three Rating Agencies and such Offered Securities are rated below an Investment Grade Rating by at least two of the three Rating Agencies on any day during the period (which period shall be extended so long as the rating of such
Offered Securities is under publicly announced consideration for a possible downgrade by any of the Rating Agencies) commencing on the date of Parents first public notice of the occurrence of a Change of Control or Parents intention to
effect a Change of Control and ending 60 days following consummation or abandonment of such Change of Control.
Restricted
Subsidiary means any Subsidiary of Parent that owns or leases a Principal Property.
Sale and Lease-Back
Transaction means an arrangement with any Person providing for the leasing by Parent or a Restricted Subsidiary of any Principal Property whereby such Principal Property has been owned and in full operation for more than 180 days and has
been or is to be sold or transferred by Parent or a Restricted Subsidiary to such Person other than a Guarantor, the Company or any of their respective Subsidiaries; provided, however, that the foregoing shall not apply to any such arrangement
involving a lease for a term, including renewal rights, for not more than three years.
S&P means
Standard & Poors Ratings Services, a division of The McGraw-Hill Companies, Inc., and its successors.
Voting Stock means, with respect to any specified Person as of any date, the capital stock of such
Person that is at the time entitled to vote generally in the election of the board of directors of such Person.
Section 1.3 Additional
Covenants.
The following additional covenants shall apply with respect to the Offered Securities so long as any of the Offered
Securities remain Outstanding (but subject to defeasance, as provided in the Base Indenture and Section 1.1 of this Fourth Supplemental Indenture):
(1) Limitation on Liens.
None
of the Company or the Guarantors shall, and none of them shall permit any Restricted Subsidiary to, issue, assume or guarantee any Indebtedness that is secured by a Lien upon any property that at the time of such issuance, assumption or guarantee
constitutes a Principal Property, or any shares of stock of or Indebtedness issued by any Restricted Subsidiary, whether now owned or hereafter acquired, without effectively providing that, for so long as such Lien shall continue in existence with
respect to such secured Indebtedness, the Offered Securities (together with, if the Company shall so determine, any other Indebtedness of the Company ranking equally with the Offered Securities, it being understood that for purposes hereof,
Indebtedness which is secured by a Lien and Indebtedness which is not so secured shall not, solely by reason of such Lien, be deemed to be of different ranking) shall be equally and ratably secured by a Lien ranking ratably with or equal to (or at
the Companys option prior to) such secured Indebtedness; provided, however, that the foregoing covenant shall not apply to:
(a) Liens existing on the Issue Date;
Fourth Supplemental
Indenture
9
(b) Liens on the stock, assets or Indebtedness of a Person existing at the time
such Person becomes a Restricted Subsidiary, unless created in contemplation of such Person becoming a Restricted Subsidiary;
(c) Liens on any assets or Indebtedness of a Person existing at the time such Person is merged with or into or consolidated
with or acquired by the Company, a Guarantor or a Restricted Subsidiary or at the time of a purchase, lease or other acquisition of the assets of a corporation or firm as an entirety or substantially as an entirety by the Company, a Guarantor or any
Restricted Subsidiary;
(d) Liens on any Principal Property existing at the time of acquisition thereof by the Company, a
Guarantor or any Restricted Subsidiary, or Liens to secure the payment of the purchase price of such Principal Property by the Company, a Guarantor or any Restricted Subsidiary, or to secure any Indebtedness incurred, assumed or guaranteed by the
Company, a Guarantor or a Restricted Subsidiary for the purpose of financing all or any part of the purchase price of such Principal Property or improvements or construction thereon, which Indebtedness is incurred, assumed or guaranteed prior to, at
the time of or within 180 days after such acquisition, or in the case of real property, completion of such improvement or construction or commencement of full operation of such property, whichever is later; provided, however, that in the case of any
such acquisition, construction or improvement, the Lien shall not apply to any Principal Property theretofore owned by the Company, a Guarantor or a Restricted Subsidiary, other than the Principal Property so acquired, constructed or improved, and
accessions thereto and improvements and replacements thereof and the proceeds of the foregoing;
(e) Liens securing
Indebtedness owing by any Restricted Subsidiary to the Company, a Guarantor or a Subsidiary thereof or by the Company to a Guarantor;
(f) Liens in favor of the United States or any State thereof, or any department, agency or instrumentality or political
subdivision of the United States or any State thereof, or in favor of any other country or any political subdivision thereof, to secure partial, progress, advance or other payments pursuant to any contract, statute, rule or regulation or to secure
any Indebtedness incurred or guaranteed for the purpose of financing all or any part of the purchase price (or, in the case of real property, the cost of construction or improvement) of the Principal Property subject to such Liens (including Liens
incurred in connection with pollution control, industrial revenue or similar financings);
(g) pledges, Liens or deposits
under workers compensation or similar legislation, and Liens thereunder that are not currently dischargeable, or in connection with bids, tenders, contracts (other than for the payment of money) or leases to which the
Fourth Supplemental
Indenture
10
Company, a Guarantor or any Restricted Subsidiary is a party, or to secure the public or statutory obligations of the Company, a Guarantor or any Restricted Subsidiary, or in connection with
obtaining or maintaining self-insurance, or to obtain the benefits of any law, regulation or arrangement pertaining to unemployment insurance, old age pensions, social security or similar matters, or to secure surety, performance, appeal or customs
bonds to which the Company, a Guarantor or any Restricted Subsidiary is a party, or in litigation or other proceedings in connection with the matters heretofore referred to in this clause, such as interpleader proceedings, and other similar pledges,
Liens or deposits made or incurred in the ordinary course of business;
(h) Liens created by or resulting from any
litigation or other proceeding that is being contested in good faith by appropriate proceedings, including Liens arising out of judgments or awards against the Company, a Guarantor or any Restricted Subsidiary with respect to which the Company, a
Guarantor or such Restricted Subsidiary in good faith is prosecuting an appeal or proceedings for review or for which the time to make an appeal has not yet expired; or final unappealable judgment Liens which are satisfied within 15 days of the date
of judgment; or Liens incurred by the Company, a Guarantor or any Restricted Subsidiary for the purpose of obtaining a stay or discharge in the course of any litigation or other proceeding to which the Company, a Guarantor or such Restricted
Subsidiary is a party, provided that (x) in the case of Liens arising out of judgments or awards, the enforcement of such Liens is effectively stayed and (y) the aggregate amount secured by all such Liens does not at any time exceed the
greater of (i) $25,000,000 or (ii) 0.5% of Consolidated Total Assets;
(i) Liens for taxes or assessments or
governmental charges or levies not yet due or delinquent; or that can thereafter be paid without penalty, or that are being contested in good faith by appropriate proceedings; landlords Liens on property held under lease; and any other Liens
or charges incidental to the conduct of the business of the Company, a Guarantor or any Restricted Subsidiary, or the ownership of their respective assets, that were not incurred in connection with the borrowing of money or the obtaining of advances
or credit and that, in the opinion of the Board of Directors of a Guarantor, do not materially impair the use of such assets in the operation of the business of the Company, a Guarantor or such Restricted Subsidiary or the value of such Principal
Property for the purposes of such business;
(j) Liens to secure the Companys, a Guarantors or any Restricted
Subsidiarys obligations under agreements with respect to spot, forward, future and option transactions, entered into in the ordinary course of business;
Fourth Supplemental
Indenture
11
(k) Liens not permitted by the foregoing clauses (a) to (j), inclusive, if
at the time of, and upon giving effect to, the creation or assumption of any such Lien, the aggregate amount of all outstanding Indebtedness of the Company, the Guarantors and all Restricted Subsidiaries, without duplication, secured by all such
Liens not so permitted by the foregoing clauses (a) through (j), inclusive, together with the Attributable Debt in respect of Sale and Lease-Back Transactions permitted by paragraph (a) under subsection (2) below, do not exceed an amount
equal to 15% of Consolidated Net Tangible Assets; and
(l) any extension, renewal or replacement (or successive extensions,
renewals or replacements) in whole or in part, of any Lien referred to in the foregoing clauses (a) to (k), inclusive; provided, however, that the principal amount of Indebtedness secured thereby (except to the extent otherwise excepted under
clauses (a) through (k)) shall not exceed the principal amount of Indebtedness so secured at the time of such extension, renewal or replacement, and that such extension, renewal or replacement shall be limited to all or a part of the assets, or
any replacements therefor and products and proceeds thereof, that secured the Lien so extended, renewed or replaced, plus improvements and construction on real property.
(2) Limitation on Sale and Lease-Back Transactions.
None of the Company or the Guarantors shall, and none of them shall permit any Restricted Subsidiary to, enter into any Sale and Lease-Back
Transaction (other than with the Company, a Guarantor and/or one or more Subsidiaries of a Guarantor) unless:
(a) the
Company, such Guarantor or such Restricted Subsidiary, at the time of entering into such Sale and Lease-Back Transaction, would be entitled to incur Indebtedness secured by a Lien on the Principal Property to be leased in an amount at least equal to
the Attributable Debt in respect of such Sale and Lease-Back Transaction, without equally and ratably securing the Offered Securities pursuant to Section 1.3(1) of this Fourth Supplemental Indenture; or
(b) the direct or indirect proceeds of the sale of the Principal Property to be leased are at least equal to the fair value of
such Principal Property, as determined by Parents Board of Directors, and an amount equal to the net proceeds from the sale of the property or assets so leased is applied, within 180 days of the effective date of any such Sale and Lease-Back
Transaction, to the purchase or acquisition, or, in the case of real property, commencement of the construction of property or assets or to the retirement (other than at maturity or pursuant to a mandatory sinking fund or mandatory redemption
provision) of Offered Securities, or of Funded Indebtedness of Parent or a consolidated Subsidiary ranking on a parity with or senior to the Offered Securities; provided that there shall be credited to the amount of net proceeds required to be
applied pursuant to this clause (b) an amount equal to the sum of (i) the principal amount of Offered Securities delivered within 180 days of the effective date of such Sale and Lease-Back Transaction to the Trustee for retirement and
cancellation and (ii) the principal amount of other Funded Indebtedness voluntarily retired by Parent or a consolidated Subsidiary ranking on a parity with or senior to the Offered Securities within such 180-day period, excluding retirements of
Offered Securities and other Funded Indebtedness as a result of conversions or pursuant to mandatory sinking fund or mandatory prepayment provisions.
Fourth Supplemental
Indenture
12
(3) Change of Control Triggering Event.
(a) If a Change of Control Triggering Event occurs, unless the Company has exercised its option to redeem the Offered
Securities, it shall be required to make an offer (a Change of Control Offer) to each Holder of the Offered Securities to repurchase, at the Holders election, all or any part (equal to 100,000 or an integral multiple
of 1,000 in excess thereof) of that Holders Offered Securities on the terms set forth in this Fourth Supplemental Indenture. In a Change of Control Offer, the Company shall be required to offer payment in cash equal to 101% of the
aggregate principal amount of Offered Securities repurchased, plus accrued and unpaid interest, if any, on the Offered Securities repurchased to, but excluding, the date of repurchase (a Change of Control Payment). Within 30 days
following any Change of Control Triggering Event or, at the Companys option, prior to any Change of Control, but after public announcement of the transaction that constitutes or may constitute the Change of Control, a notice shall be sent to
the Trustee and to the Holders of the Offered Securities describing in reasonable detail the transaction that constitutes or may constitute the Change of Control Triggering Event and offering to repurchase such Offered Securities on the date
specified in the notice, which date shall, except as described in the immediately following sentence and other than as required by law, be no earlier than 30 days and no later than 60 days from the date such notice is sent (a Change of
Control Payment Date). The notice shall, if sent prior to the date of consummation of the Change of Control, state that the offer to purchase is conditioned on the Change of Control Triggering Event occurring on or prior to the Change of
Control Payment Date.
(b) In order to accept the Change of Control Offer, the Holder must deliver (or otherwise comply
with alternative instructions in accordance with the procedures of the Depositary) to the paying agent, at least five Business Days prior to the Change of Control Payment Date, its Offered Security together with the form entitled Election
Form (which form is contained in the form of note attached hereto as Exhibit A) duly completed, or a telegram, telex, facsimile transmission or a letter from a member of a national securities exchange, or the Financial Industry Regulatory
Authority, Inc. or a commercial bank or trust company in the United States setting forth:
(i) the name of the Holder of
such Offered Security;
(ii) the principal amount of such Offered Security;
(iii) the principal amount of such Offered Security to be repurchased;
(iv) the certificate number or a description of the tenor and terms of such Offered Security;
(v) a statement that the Holder is accepting the Change of Control Offer; and
(vi) a guarantee that such Offered Security, together with the form entitled Election Form duly completed, shall be
received by the paying agent at least five Business Days prior to the Change of Control Payment Date.
Fourth Supplemental
Indenture
13
(c) Any exercise by a Holder of its election to accept the Change of Control
Offer shall be irrevocable. The Change of Control Offer may be accepted for less than the entire principal amount of an Offered Security, but in that event the principal amount of such Offered Security remaining Outstanding after repurchase must be
equal to 100,000 or an integral multiple of 1,000 in excess thereof.
(d) On the Change of Control Payment
Date, the Company shall, to the extent lawful:
(i) accept for payment all Offered Securities or portions of such Offered
Securities properly tendered pursuant to the Change of Control Offer;
(ii) deposit with the paying agent an amount equal
to the Change of Control Payment in respect of all Offered Securities or portions of Offered Securities properly tendered; and
(iii) deliver or cause to be delivered to the Trustee the Offered Securities properly accepted together with an Officers
Certificate stating the aggregate principal amount of Offered Securities or portions of Offered Securities being repurchased.
(e) The Company shall not be required to make a Change of Control Offer upon the occurrence of a Change of Control Triggering
Event if a third party makes such an offer in the manner, at the times and otherwise in compliance with the requirements for an offer made by the Company and the third party purchases all Offered Securities properly tendered and not withdrawn under
its offer. In addition, the Company shall not repurchase any Offered Securities if there has occurred and is continuing on the Change of Control Payment Date an Event of Default under the Indenture, other than a default in the payment of the Change
of Control Payment upon a Change of Control Triggering Event.
(f) Notwithstanding the foregoing, the Company and the
Guarantors shall comply with the requirements of Rule 14e-1 under the Securities Exchange Act of 1934, as amended (the Exchange Act), and any other securities laws and regulations thereunder to the extent those laws and
regulations are applicable in connection with the repurchase of the Offered Securities as a result of a Change of Control Triggering Event. To the extent that the provisions of any such securities laws or regulations conflict with this
Section 1.3(3), none of the Company or the Guarantors shall be deemed to have breached its obligations under this Section 1.3(3) by virtue of its compliance with such securities laws or regulations.
Section 1.4 Special Mandatory Redemption.
(1) In the event that either (i) Parent does not consummate the ERICO Acquisition on or prior to December 31, 2015, or (ii) the
ERICO Merger Agreement is terminated any time prior to such date (without replacement thereof) other than as a result of consummating the ERICO Acquisition, the Company shall redeem all of the Outstanding Offered Securities in whole and
Fourth Supplemental
Indenture
14
not in part (a Special Mandatory Redemption) on the Special Mandatory Redemption Date at a redemption price equal to 101% of the principal amount of the Offered Securities,
plus accrued and unpaid interest, if any, to, but excluding, the Special Mandatory Redemption Date. The Special Mandatory Redemption Date means the earlier to occur of (i) February 1, 2016, if the ERICO Acquisition has
not been consummated on or prior to December 31, 2015, or (ii) the 30th day (or if such day is not a Business Day, the first Business Day thereafter) following the termination of the ERICO Merger Agreement (without replacement thereof)
other than as a result of consummating the ERICO Acquisition. Notwithstanding the foregoing, installments of interest on the Offered Securities that are due and payable on Interest Payment Dates falling on or prior to the Special Mandatory
Redemption Date shall be payable on such Interest Payment Dates to the registered Holders as of the close of business on the relevant regular record dates, as provided in the Base Indenture and this Fourth Supplemental Indenture.
(2) The Company shall cause the notice of a Special Mandatory Redemption to be sent, with a copy to the Trustee, within five Business Days
after the occurrence of the event triggering the obligation to effectuate the Special Mandatory Redemption to each Holder at its registered address. On or before the Special Mandatory Redemption Date, the Company shall deposit with the Trustee or a
paying agent funds sufficient to pay the special mandatory redemption price of the Offered Securities to be redeemed on the Special Mandatory Redemption Date. If funds sufficient to pay the special mandatory redemption price of the Offered
Securities to be redeemed on the Special Mandatory Redemption Date are deposited with the Trustee or a paying agent on or before such Special Mandatory Redemption Date, and any applicable conditions set forth in the Base Indenture are satisfied,
interest shall cease to accrue on the Offered Securities on and after such Special Mandatory Redemption Date.
Section 1.5 Additional Events of
Default.
The following additional events shall be established and shall each constitute an Event of Default under
Section 6.01(a) of the Base Indenture with respect to the Offered Securities so long as any of the Offered Securities remain Outstanding:
(1) default in the performance or breach by the Company or a Guarantor of the covenant described under Section 10.01 of the Base
Indenture;
(2) failure by the Company to effect a Special Mandatory Redemption, if required, on the Special Mandatory Redemption Date;
(3) failure by the Company for 60 days from receipt of written notice by the Trustee or the Holders of at least 25% of the principal
amount of the Offered Securities Outstanding to comply with the provisions under Section 1.3(3) of this Fourth Supplemental Indenture; and
(4) an event of default shall happen and be continuing with respect to any Indebtedness (other than Non-Recourse Indebtedness) of the Company,
a Guarantor or any Restricted Subsidiary under any indenture or other instrument evidencing or under which the Company, a Guarantor or any Restricted Subsidiary shall have a principal amount outstanding (such amount with respect to original issue
discount bonds or zero coupon notes, bonds or
Fourth Supplemental
Indenture
15
debentures or similar securities based on the accreted amount determined in accordance with United States generally accepted accounting principles and as of the date of the most recently prepared
consolidated balance sheet of the Company, a Guarantor or any Restricted Subsidiary, as the case may be) in excess of $100,000,000, and such event of default shall involve the failure to pay the principal of such Indebtedness on the final maturity
date thereof after the expiration of any applicable grace period with respect thereto, or such Indebtedness shall have been accelerated so that the same shall have become due and payable prior to the date on which the same would otherwise have
become due and payable, and such acceleration shall not be rescinded or annulled within 30 days after notice thereof shall have been given to the Company by the Trustee, or to the Company and the Trustee by the Holders of at least 25% in aggregate
principal amount of the Outstanding Offered Securities; provided, however, that:
(a) if such event of default under such
indenture or instrument shall be remedied or cured by the Company or the applicable Guarantor or waived by the requisite holders of such Indebtedness, then the Event of Default hereunder by reason thereof shall be deemed likewise to have been
thereupon remedied, cured or waived without further action upon the part of either the Trustee or any of the Holders; and
(b) subject to the provisions of Sections 7.01 and 7.02 of the Base Indenture, the Trustee shall not be charged with
actual knowledge of any such event of default unless written notice thereof shall have been given to a Responsible Officer of the Trustee by the Company or a Guarantor, as the case may be, by the holder or an agent of the holder of any such
Indebtedness, by the trustee then acting under any indenture or other instrument under which such default shall have occurred, or by the Holders of not less than 25% in the aggregate principal amount of Outstanding Offered Securities.
ARTICLE II
MISCELLANEOUS
Section 2.1 Definitions.
Capitalized terms used but not defined in this Fourth Supplemental Indenture shall have the meanings ascribed thereto in the form of Offered
Security attached hereto as Exhibit A or in the Base Indenture.
Section 2.2 Confirmation of Indenture.
The Base Indenture, as supplemented and amended by this Fourth Supplemental Indenture, is in all respects ratified and confirmed, and the Base
Indenture, this Fourth Supplemental Indenture and all indentures supplemental thereto shall be read, taken and construed as one and the same instrument.
Fourth Supplemental
Indenture
16
Section 2.3 Concerning the Trustee.
In carrying out the Trustees responsibilities hereunder, the Trustee shall have all of the rights, protections and immunities which it
possesses under the Indenture. The recitals contained in this Fourth Supplemental Indenture and in the Offered Securities, except the Trustees certificate of authentication, shall be taken as the statements of the Company, and the Trustee
assumes no responsibility for their correctness. The Trustee shall not be responsible for and makes no representations as to (i) the validity or sufficiency of this Fourth Supplemental Indenture or of the Offered Securities, (ii) the
proper authorization hereof by each Guarantor and the Company by action or otherwise, (iii) the due execution hereof by each Guarantor and the Company or (iv) the consequences of any amendment herein provided for. The Trustee shall not be
accountable for the use or application by the Company of the Offered Securities or the proceeds thereof.
Section 2.4 Governing Law.
This Fourth Supplemental Indenture and the Offered Securities shall be deemed to be a contract made under the internal laws of the State of
New York, and for all purposes shall be construed in accordance with the laws of said State without regard to conflicts of law principles (except for Sections 5-1401 and 5-1402 of the New York General Obligations Law) that would require the
application of any other law. This Fourth Supplemental Indenture is subject to the provisions of the Trust Indenture Act of 1939 that are required to be part of this Fourth Supplemental Indenture and shall, to the extent applicable, be governed by
such provisions. The application of articles 86 to 94-8 of the Luxembourg law on commercial companies dated 10 August 1915, as amended, to the Indenture and the Offered Securities is excluded.
Section 2.5 Separability.
In case
any one or more of the provisions contained in this Fourth Supplemental Indenture or in the Offered Securities of any series shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Fourth Supplemental Indenture or of such Offered Securities, but this Fourth Supplemental Indenture and such Offered Securities shall be construed as if such invalid or illegal or
unenforceable provision had never been contained herein or therein.
Section 2.6 Counterparts.
This Fourth Supplemental Indenture may be executed in any number of counterparts, each of which shall be an original, but such counterparts
shall together constitute but one and the same instrument. The exchange of copies of this Fourth Supplemental Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Fourth
Supplemental Indenture as to the parties hereto and may be used in lieu of the original Fourth Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures
for all purposes.
Fourth Supplemental
Indenture
17
Section 2.7 No Benefit.
Nothing in this Fourth Supplemental Indenture, express or implied, shall give to any Person other than the parties hereto and their successors
or assigns, and the Holders of the Offered Securities, any benefit or legal or equitable rights, remedy or claim under this Fourth Supplemental Indenture or the Base Indenture.
Section 2.8 Amendments and Supplemental Indentures.
This Fourth Supplemental Indenture and the Offered Securities are subject to the provisions regarding supplemental indentures and amendments
set forth in Article IX of the Base Indenture, as amended by this Fourth Supplemental Indenture.
Section 2.9 Legal, Valid and Binding Obligation.
The Guarantors and the Company hereby represent and warrant that, assuming the due authorization, execution and delivery of this
Fourth Supplemental Indenture by the Trustee, this Fourth Supplemental Indenture is the legal, valid and binding obligation of the Guarantors and the Company enforceable against the Guarantors and the Company in accordance with its terms, subject to
bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting the enforcement of creditors rights and to general equity principles.
[Signature Page Follows]
Fourth Supplemental
Indenture
18
IN WITNESS WHEREOF, the parties hereto have caused this Fourth Supplemental Indenture to be duly
executed as of the day and year first above written.
|
|
|
PENTAIR FINANCE S.A., as
Issuer |
|
|
By: |
|
/s/ Benjamin Peric |
Name: |
|
Benjamin Peric |
Title: |
|
Director |
|
PENTAIR PLC, as Parent
and Guarantor |
|
|
By: |
|
/s/ Christopher R. Oster |
Name: |
|
Christopher R. Oster |
Title: |
|
Authorized Representative |
|
PENTAIR INVESTMENTS SWITZERLAND GMBH,
as Guarantor |
|
|
By: |
|
/s/ Henning Wistorf |
Name: |
|
Henning Wistorf |
Title: |
|
Managing Officer |
|
|
|
U.S. BANK NATIONAL ASSOCIATION,
as Trustee |
|
|
By: |
|
/s/ Rick Prokosch |
Name: |
|
Rick Prokosch |
Title: |
|
Vice President |
Fourth Supplemental
Indenture
20
EXHIBIT A
FORM OF 2.450% NOTES
[Insert the
Private Placement Legend and/or the Global Security legend, as applicable]
2.450% SENIOR NOTES DUE 2019
CUSIP No. 709629 AQ2
ISIN:
XS1117287398
Common Code: 111728739
PENTAIR
FINANCE S.A.
Société anonyme
26, boulevard Royal
L-2449
Luxembourg
R.C.S. B 166305
promises to pay
to [ ] or registered assigns, the principal sum of [ ] euro on September 17, 2019.
Interest Payment Date: September 17
Regular Record Date:
September 2
Each holder of this Security (as defined below), by accepting the same, agrees to and shall be bound by the provisions
hereof and of the Indenture described herein, and authorizes and directs the Trustee described herein on such holders behalf to be bound by such provisions. Each holder of this Security hereby waives all notice of the acceptance of the
provisions contained herein and in the Indenture and waives reliance by such holder upon said provisions.
This Security shall not be
entitled to any benefit under the Indenture, or be valid or become obligatory for any purpose, until the Certificate of Authentication hereon shall have been signed by or on behalf of the Trustee. The provisions of this Security are continued on the
reverse side hereof, and such continued provisions shall for all purposes have the same effect as though fully set forth at this place.
[Signature Page Follows]
A-1
IN WITNESS WHEREOF, the Company has caused this instrument to be signed in accordance with Section 2.04 of
the Base Indenture.
|
|
|
PENTAIR FINANCE S.A. |
|
|
|
|
Name: |
|
|
Title: |
|
|
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein and referred to in the within-mentioned Indenture.
|
|
|
U.S. BANK NATIONAL ASSOCIATION, |
as Trustee |
|
|
By: |
|
|
|
|
Authorized Signatory |
|
|
Dated: |
|
|
A-2
GUARANTEE
For value received, each of PENTAIR PLC and PENTAIR INVESTMENTS SWITZERLAND GMBH hereby absolutely, unconditionally and irrevocably guarantees
(i) to the holder of this Security the payment of principal of, premium, if any, and interest and any Additional Amounts, if any, on, the Security upon which this Guarantee is set forth in the amounts and at the time when due and payable
whether by declaration thereof, or otherwise, and interest on the overdue principal and interest, if any, of such Security, if lawful, to the holder of such Security and the Trustee on behalf of the Holders, and (ii) to the Trustee all amounts
owed to the Trustee under the Indenture, in each case in accordance with and subject to the terms and limitations of such Security and Article XV of the Base Indenture. This Guarantee shall not become effective until the Trustee or Authenticating
Agent duly executes the certificate of authentication on this Security. This Guarantee shall be governed by and construed in accordance with the laws of the State of New York, without regard to conflict of law principles thereof.
Dated:
|
|
|
PENTAIR PLC |
|
|
By: |
|
|
|
|
Name: |
|
|
Title: |
|
PENTAIR INVESTMENTS SWITZERLAND GMBH |
|
|
By: |
|
|
|
|
Name: |
|
|
Title: |
A-3
PENTAIR FINANCE S.A.
Société anonyme
26,
boulevard Royal
L-2449 Luxembourg
R.C.S. B 166305
2.450% Senior
Notes due 2019
This security is one of a duly authorized series of debt securities of Pentair Finance S.A., a Luxembourg
public limited liability company (société anonyme) with a registered office at 26, boulevard Royal, L-2449 Luxembourg, Luxembourg and registered with the Luxembourg Trade and Companies Register under number B
166305 (the Company), issued or to be issued in one or more series under and pursuant to an Indenture for the Companys unsubordinated debt securities, dated as of September 16, 2015 (the Base
Indenture), duly executed and delivered by and among the Company, Pentair plc, an Irish public limited company (Parent), Pentair Investments Switzerland GmbH, a Switzerland limited liability company (a
Guarantor and, together with Parent, the Guarantors) and U.S. Bank National Association, a national banking association (the Trustee), as supplemented by the Fourth Supplemental Indenture,
dated as of September 17, 2015 (the Fourth Supplemental Indenture), by and among the Company, the Guarantors and the Trustee. The Base Indenture as supplemented and amended by the Fourth Supplemental Indenture is referred to
herein as the Indenture. By the terms of the Base Indenture, the debt securities issuable thereunder are issuable in series that may vary as to amount, date of maturity, rate of interest and in other respects as provided in the
Base Indenture. This security is one of the series designated on the face hereof (individually, a Security, and collectively, the Securities), and reference is hereby made to the Indenture for a description of
the rights, limitations of rights, obligations, duties and immunities of the Trustee, the Company, the Guarantors and the holders of this Security (the Securityholders). Capitalized terms used herein and not otherwise defined
shall have the meanings given them in the Base Indenture or in the Fourth Supplemental Indenture, as applicable.
1.
Interest. The Company promises to pay interest on the principal amount of this Security at an annual rate of 2.450% (the Original Interest Rate), subject to adjustment pursuant to Section 2 of this Security. The
Company shall pay interest annually on September 17 of each year (each such day, an Interest Payment Date).
Interest on the Securities shall accrue from the most recent date to which interest has been paid or duly provided for or, if no interest has
been paid, from the date of issuance; provided that, if there is no existing Default in the payment of interest, and if this Security is authenticated between a regular record date referred to on the face hereof and the next succeeding Interest
Payment Date, interest shall accrue from such next succeeding Interest Payment Date; and provided, further, that the first Interest Payment Date shall be September 17, 2016.
Interest shall be computed on the basis of the actual number of days in the period for which interest is being calculated and the actual
number of days from and including the last date on which interest was paid (or September 17, 2015, if no interest has been paid on this Security), to but excluding the next scheduled Interest Payment Date.
A-4
If any Interest Payment Date would otherwise be a day that is not a Business Day, such Interest
Payment Date shall be postponed to the next date that is a Business Day. If the maturity date of this Security falls on a day that is not a Business Day, the related payment of principal and interest shall be made on the next Business Day as if it
were made on the date such payment was due, and no interest shall accrue on the amounts so payable for the period from and after such date to the next Business Day.
2. Interest Rate Adjustment. The interest rate payable on this Security shall be subject to adjustment from time to time if
either Moodys or S&P (or, if applicable, a nationally recognized statistical rating organization within the meaning of Section 3(a)(62) under the Exchange Act selected by the Company as a replacement for Moodys or
S&P, or both, as the case may be (each, a Substitute Rating Agency)) downgrades (or subsequently upgrades) its rating assigned to the Securities, as set forth in this Section 2. Each of Moodys, S&P and any
Substitute Rating Agency is an Interest Rate Rating Agency, and together they are Interest Rate Rating Agencies.
If the rating of the Securities from one or both of Moodys or S&P (or, if applicable, any Substitute Rating Agency) is decreased to
a rating set forth in either of the tables set forth in this Section 2, the interest rate shall increase from the Original Interest Rate by an amount equal to the sum of the percentages per annum set forth in the following tables opposite those
ratings:
|
|
|
|
|
Moodys Rating* |
|
Percentage |
|
|
|
Ba1 |
|
|
0.25 |
% |
Ba2 |
|
|
0.50 |
% |
Ba3 |
|
|
0.75 |
% |
B1 or below |
|
|
1.00 |
% |
|
|
S&P Rating* |
|
Percentage |
|
|
|
BB+ |
|
|
0.25 |
% |
BB |
|
|
0.50 |
% |
BB- |
|
|
0.75 |
% |
B+ or below |
|
|
1.00 |
% |
* |
Including the equivalent ratings of any Substitute Rating Agency therefor. |
For purposes of
making adjustments to the interest rate payable on this Security, the following rules of interpretation shall apply:
(1)
if at any time less than two Interest Rate Rating Agencies provide a rating on the Securities for reasons not within the Companys control (i) the Company shall use commercially reasonable efforts to obtain a rating on the Securities from
a Substitute Rating Agency for purposes of determining any increase or decrease in the interest rate on this Security pursuant to the tables set forth in this Section 2, (ii) such Substitute Rating Agency shall be substituted for the last
Interest Rate Rating Agency to provide a
A-5
rating on the Securities but which has since ceased to provide such rating, (iii) the relative ratings scale used by such Substitute Rating Agency to assign ratings to senior unsecured debt
shall be determined in good faith by an independent investment banking institution of national standing appointed by the Company and, for purposes of determining the applicable ratings included in the applicable table with respect to such Substitute
Rating Agency, such ratings shall be deemed to be the equivalent ratings used by Moodys or S&P, as applicable, in such table, and (iv) the interest rate payable on this Security shall increase or decrease, as the case may be, such
that the interest rate payable equals the Original Interest Rate plus the appropriate percentage, if any, set forth opposite the rating from such Substitute Rating Agency in the applicable table (taking into account the provisions of clause
(iii) in this paragraph (1)) (plus any applicable percentage resulting from a decreased rating by the other Interest Rate Rating Agency);
(2) for so long as only one Interest Rate Rating Agency provides a rating on the Securities, any increase or decrease in the
interest rate payable on this Security necessitated by a reduction or increase in the rating by that Interest Rate Rating Agency shall be twice the applicable percentage set forth in the applicable table set forth in this Section 2;
(3) if both Interest Rate Rating Agencies cease to provide a rating of the Securities for any reason, and no Substitute Rating
Agency has provided a rating on the Securities, the interest rate shall increase to, or remain at, as the case may be, 2.00% per annum above the Original Interest Rate prior to any such adjustment;
(4) if Moodys or S&P ceases to rate the Securities or make a rating of the Securities publicly available for reasons
within the Companys control, the Company shall not be entitled to obtain a rating from a Substitute Rating Agency and the increase or decrease in the interest rate on this Security shall be determined in the manner described in this
Section 2 as if either only one or no Interest Rate Rating Agency provides a rating on the Securities, as the case may be;
(5) each interest rate adjustment required by any decrease or increase in a rating as set forth in this Section 2, whether
occasioned by the action of Moodys or S&P (or, in either case, any Substitute Rating Agency), shall be made independently of (and in addition to) any and all other interest rate adjustments occasioned by the action of the other Interest
Rate Rating Agency;
(6) in no event shall the interest rate on this Security be reduced to below the Original Interest
Rate prior to any such adjustment; and
(7) subject to paragraphs (3) and (4) of this Section 2, no
adjustment in the interest rate on this Security shall be made solely as a result of an Interest Rate Rating Agency ceasing to provide a rating of the Securities.
If at any time the interest rate on this Security has been adjusted upward and either of the Interest Rate Rating Agencies subsequently
increases its rating of the Securities, the interest rate on this Security shall again be adjusted (and decreased, if appropriate) such that the interest rate
A-6
on this Security equals the Original Interest Rate prior to any such adjustment plus (if applicable) an amount equal to the sum of the percentages per annum set forth opposite the ratings in the
tables set forth in this Section 2 with respect to the ratings assigned to the Securities (or deemed assigned) at that time, all calculated in accordance with the rules of interpretation set forth in this Section 2. If Moodys or any
Substitute Rating Agency subsequently increases its rating on the Securities to Baa3 (or its equivalent if with respect to any Substitute Rating Agency) or higher and S&P or any Substitute Rating Agency subsequently increases its
rating on the Securities to BBB- (or its equivalent if with respect to any Substitute Rating Agency) or higher, the interest rate on this Security shall be decreased to the Original Interest Rate prior to any adjustments made pursuant to
this Section 2.
Any increase or decrease in the interest rate shall take effect from the first day of the interest period during
which a rating change occurs requiring an adjustment in the interest rate. If either Interest Rate Rating Agency changes its rating of the Securities more than once during any particular interest period, the last such change by such Interest Rate
Rating Agency to occur shall control in the event of a conflict for purposes of any increase or decrease in the interest rate.
The
interest rate shall permanently cease to be subject to any adjustment (notwithstanding any subsequent decrease in the ratings by either Interest Rate Rating Agency) if the Securities becomes rated Baa1 or higher by Moodys (or its
equivalent if with respect to any Substitute Rating Agency) and BBB+ or higher by S&P (or its equivalent if with respect to any Substitute Rating Agency), in each case with a stable or positive outlook.
If the interest rate payable on this Security is increased as set forth in this Section 2, the term interest shall be deemed
to include any such additional interest unless the context otherwise requires.
3. Method of Payment. The Company shall pay
interest on this Security (except defaulted interest), if any, to the persons in whose name such Security is registered at the close of business on the regular record date referred to on the facing page of this Security for such interest
installment. In the event that this Security or a portion hereof is called for redemption and the Redemption Date is subsequent to a regular record date with respect to any Interest Payment Date and prior to such Interest Payment Date, interest on
this Security shall be paid upon presentation and surrender of this Security as provided in the Indenture. The principal of and the interest on this Security shall be payable in the coin or currency of the United States of America that at the time
is legal tender for public and private debt, at the office or agency of the Company maintained for that purpose in accordance with the Indenture.
4. Paying Agent and Registrar. Initially, Elavon Financial Services Limited, UK Branch shall act as paying agent and Elavon
Financial Services Limited shall act as Security Registrar. Upon notice to the Trustee, the Company may change or appoint any paying agent or Security Registrar without notice to any Securityholder; provided, however, that the Company shall maintain
a paying agent in a member state of the European Union that is not obligated to withhold or deduct tax pursuant to the European Union Directive 2003/38/EC or any other directive implementing the conclusions of the ECOFIN Council meeting of 26 and
27 November 2000 on the taxation of savings income, or any law implementing or complying with or introduced in order to conform to such directive (so long as there is such a member state). In
A-7
case of discrepancies between the Security Register held by the Security Registrar and the Security Register held by the Company at its registered office in accordance with the provisions of the
Luxembourg law of 10 August 1915 on commercial companies as amended, the register held by the Company shall prevail for Luxembourg law purposes. The Guarantors, the Company or any of their Subsidiaries may act as paying agent or Security
Registrar.
5. Indenture. The terms of this Security include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939 (the TIA) as in effect on the date the Indenture is qualified. This Security is subject to all such terms, and Securityholders are referred to the Indenture and the TIA for
a statement of such terms. These Securities are unsecured general obligations of the Company and constitute the series designated on the face hereof as the 2.450% Senior Notes due 2019, initially limited to 500,000,000 in aggregate
principal amount.
The Company shall furnish to any Securityholder upon written request and without charge a copy of the Base Indenture
and the Fourth Supplemental Indenture. Requests may be made to: Pentair Finance S.A., 26, boulevard Royal, L-2449 Luxembourg, Attention: the Managing Directors.
6. Optional Redemption. This Security is subject to redemption at the option of the Company on any date prior to the maturity
date, in whole or from time to time in part, in 1,000 increments (provided that any remaining principal amount thereof shall be at least the minimum authorized denomination thereof), on written notice given to the Securityholders thereof not
less than 30 days nor more than 90 days prior to the date fixed for redemption in such notice (the Redemption Date). The Securities shall be redeemable at a redemption price equal to the greater of (i) 100% of the principal
amount of such Securities to be redeemed and (ii) the sum of the present values of the remaining scheduled payments of principal and interest thereon due on any date after the Redemption Date (excluding the portion of interest that shall be
accrued and unpaid to and including the Redemption Date) discounted from their scheduled date of payment to the Redemption Date on an annual basis (ACTUAL/ACTUAL (ICMA)), at the Comparable Government Bond Rate (as defined below) plus 40 basis
points, plus, in either the case of clause (i) or clause (ii), accrued and unpaid interest, if any, thereon to, but excluding, the Redemption Date.
This Security is also subject to redemption to the extent provided in Section 14.01 of the Indenture.
If the giving of the notice of redemption is completed as provided in the Indenture, interest on such Securities or portions of Securities
shall cease to accrue on and after the Redemption Date, unless the Company shall default in the payment of any such redemption price and accrued interest with respect to any such Security or portion thereof.
Except as otherwise expressly provided herein (including paragraph 8 herein) or in the Fourth Supplemental Indenture, the Company shall not be
required to make mandatory redemption or sinking fund payments with respect to this Security.
A-8
Comparable Government Bond means, in relation to any Comparable
Government Bond Rate calculation, at the discretion of an independent investment bank selected by the Company, a German government bond whose maturity is closest to the maturity of the Securities to be redeemed, or if such independent investment
bank in its discretion determines that such similar bond is not in issue, such other German government bond as such independent investment bank may, with the advice of three brokers of, and/or market makers in, German government bonds selected by
the Company, determine to be appropriate for determining the Comparable Government Bond Rate.
Comparable
Government Bond Rate means the price, expressed as a percentage (rounded to three decimal places, with 0.0005 being rounded upwards), at which the gross redemption yield on the Securities to be redeemed, if they were to be purchased at
such price on the third Business Day prior to the date fixed for redemption, would be equal to the gross redemption yield on such Business Day of the Comparable Government Bond on the basis of the middle market price of the Comparable Government
Bond prevailing at 11:00 a.m. (London time) on such Business Day as determined by an independent investment bank.
7.
Change of Control Triggering Event. If a Change of Control Triggering Event occurs, unless the Company has exercised its option to redeem this Security, it shall be required to make an offer to the holder of this Security to repurchase, at
such holders election, all or a part (equal to 100,000 or an integral multiple of 1,000 in excess thereof; provided that any remaining principal amount of this Security shall be at least the minimum authorized denomination
thereof), of this Security, in cash equal to 101% of the aggregate principal amount of this Security repurchased, plus accrued and unpaid interest, if any, to, but excluding, the date of repurchase. Within 30 days following any Change of Control
Triggering Event, or at the Companys option, prior to any Change of Control, but after public announcement of the transaction that constitutes or may constitute the Change of Control Triggering Event, a notice shall be sent to the Trustee and
to each Securityholder describing in reasonable detail the transaction that constitutes or may constitute the Change of Control Triggering Event and offering to repurchase this Security on the date specified in the notice, which date shall, except
as described in the immediately following sentence and other than as required by law, be no earlier than 30 days and no later than 60 days from the date such notice is sent. The notice shall, if sent prior to the date of consummation of the Change
of Control, state that the offer to purchase is conditioned on the Change of Control Triggering Event occurring on or prior to the date of repurchase.
8. Special Mandatory Redemption. If Parent does not consummate the ERICO Acquisition on or prior to December 31, 2015, or the
ERICO Merger Agreement is terminated any time prior to such date (without replacement thereof) other than as a result of consummating the ERICO Acquisition, then the Company shall be required to redeem this Security on the Special Mandatory
Redemption Date at a redemption price equal to 101% of the principal amount of this Security, plus accrued and unpaid interest, if any, to, but excluding, the Special Mandatory Redemption Date. Notwithstanding the foregoing, installments of interest
on this Security that are due and payable on Interest Payment Dates falling on or prior to the Special Mandatory Redemption Date shall be payable on such Interest Payment Dates to the registered Securityholders as of the close of business on the
relevant regular record dates. The Company shall cause the notice of a Special Mandatory Redemption to be sent, with a copy to the Trustee,
A-9
within five Business Days after the occurrence of the event triggering the obligation to effectuate the Special Mandatory Redemption to each Securityholder at its registered address. On or before
the Special Mandatory Redemption Date, the Company shall deposit with the Trustee or a paying agent funds sufficient to pay the special mandatory redemption price of the Securities to be redeemed on the Special Mandatory Redemption Date. If funds
sufficient to pay the special mandatory redemption price of the Securities to be redeemed on the Special Mandatory Redemption Date are deposited with the Trustee or a paying agent on or before such Special Mandatory Redemption Date, and any
applicable conditions set forth in the Indenture are satisfied, interest shall cease to accrue on the Securities on and after such Special Mandatory Redemption Date.
9. Denominations, Transfer, Exchange. The Securities are in registered form without coupons in the denominations of 100,000
or any integral multiple of 1,000 in excess thereof. The transfer of Securities may be registered and Securities may be exchanged as provided in the Indenture. The Securities may be presented for exchange or for registration of transfer (duly
endorsed or with the form of transfer endorsed thereon duly executed if so required by the Company or the Security Registrar) at the office of the Security Registrar or at the office of any transfer agent designated by the Company for such purpose.
No service charge shall be made for any registration of transfer or exchange, but a Securityholder may be required to pay any applicable taxes or other governmental charges. If the Securities are to be redeemed, the Company shall not be required to:
(i) issue, register the transfer of, or exchange any Security during a period beginning at the opening of business 15 days before the day a notice of redemption is sent of less than all of the Outstanding Securities of the same series and
ending at the close of business on the day such notice of redemption is sent; (ii) register the transfer of or exchange any Security of any series or portions thereof selected for redemption, in whole or in part, except the unredeemed portion
of any such Security being redeemed in part; nor (iii) register the transfer of or exchange a Security of any series between the applicable regular record date and the next succeeding Interest Payment Date.
10. Certificated Securities. The Company will issue certificated Securities to each person that Euroclear or Clearstream
identifies as the beneficial owner of the Securities represented by a Global Security upon surrender by Euroclear or Clearstream of the Global Security if: (i) Euroclear or Clearstream notifies the Company that it is unwilling or unable to
continue as depositary for that Global Security and the Company does not appoint a successor depositary within 90 days after receiving that notice; (ii) an Event of Default under the Indenture has occurred and is continuing, and Euroclear
or Clearstream requests the issuance of certificated Securities; (iii) at any time Euroclear or Clearstream ceases to be a clearing agency registered or in good standing under the Exchange Act or other applicable statute or regulation and the
Company does not appoint a successor depositary within 90 days after becoming aware that Euroclear or Clearstream has ceased to be so registered or in good standing as a clearing agency; or (iv) the Company determines that the Securities
will no longer be represented by a Global Security.
A Global Security that can be exchanged as described in the preceding sentence shall
be exchanged for certificated Securities issued in authorized denominations in registered form for the same aggregate amount. The definitive Securities shall be registered in the names of the owners of the beneficial interests in the Global Security
as directed by Euroclear or Clearstream.
A-10
Such certificated Securities shall be registered in such names and in such authorized denominations as Euroclear or Clearstream, as applicable, pursuant to instructions from its participants or
indirect participants or otherwise, shall in writing instruct the Trustee
11. Persons Deemed Owners. The registered
Securityholder may be treated as its owner for all purposes.
12. Repayment to the Guarantors or the Company. Any funds or
Governmental Obligations deposited with any paying agent or the Trustee, or then held by the Guarantors or the Company, in trust for payment of principal of, premium, if any, or interest on the Securities that are not applied but remain unclaimed by
the Securityholders for at least one year after the date upon which the principal of, premium, if any, or interest on such Securities shall have respectively become due and payable, shall be repaid to the Guarantors or the Company, as applicable, or
(if then held by the Guarantors or the Company) shall be discharged from such trust. After return to the Company or the Guarantors, Securityholders entitled to the money or securities must look to the Company or the Guarantors, as applicable, for
payment as unsecured general creditors.
13. Amendments, Supplements and Waivers. The Base Indenture contains provisions
permitting the Company, the Guarantors and the Trustee, with the consent of the holders of not less than a majority in aggregate principal amount of the securities of each series at the time Outstanding affected by such supplemental indenture or
indentures to enter into supplemental indentures for the purpose of adding, changing or eliminating any provisions of the Base Indenture or any supplemental indenture or of modifying in any manner not covered elsewhere in the Base Indenture the
rights of the holders of the securities of such series; provided, however, that no such supplemental indenture, without the consent of the holders of each security then Outstanding and affected thereby, shall: (i) extend a fixed maturity of or
any installment of principal of any securities of any series or reduce the principal amount thereof, or reduce the amount of principal of any original issue discount security that would be due and payable upon declaration of acceleration of the
maturity thereof; (ii) reduce the rate of or extend the time for payment of interest of any security of any series; (iii) reduce the premium payable upon the redemption of any security; (iv) make any security payable in Currency other
than that stated in the security; (v) impair the right to institute suit for the enforcement of any payment on or after the fixed maturity thereof (or in the case or redemption, on or after the redemption date); (vi) modify any
subordination provisions applicable to this Security or the guarantee of this Security in a manner adverse in any material respect to the holder hereof; or (vii) reduce the percentage of securities, the holders of which are required to consent
to any such supplemental indenture or indentures. In addition, without the consent of each of the Securityholders, the Company and the Guarantors may not amend the provisions of Section 1.4 of the Fourth Supplemental Indenture or the
corresponding provisions of this Security.
The Base Indenture also contains provisions permitting the holders of not less than a majority
in aggregate principal amount of the Outstanding securities of each series affected thereby, on behalf of all of the holders of the securities of such series, to waive any past default under the Base Indenture, and its consequences, except a default
in the payment of the principal of, premium, if any, or interest on, any of the securities of such series as and when the same shall become due by the terms of such securities.
A-11
Any such consent or waiver by the registered Securityholder shall be conclusive and binding upon
such Securityholder and upon all future Securityholders and owners of this Security and of any Security issued in exchange for this Security or in place hereof (whether by registration of transfer or otherwise), irrespective of whether or not any
notation of such consent or waiver is made upon this Security.
14. Defaults and Remedies. If an Event of Default with respect
to the securities of a series issued pursuant to the Base Indenture occurs and is continuing, the Trustee or the holders of at least 25% in aggregate principal amount of the securities of such series then Outstanding, by notice in writing to the
Company and the Guarantors (and to the Trustee if notice is given by such holders), may declare the unpaid principal of, premium, if any, and accrued interest, if any, due and payable immediately. Subject to the terms of the Indenture, if an Event
of Default under the Indenture shall occur and be continuing, the Trustee shall 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, unless such holders have offered
the Trustee indemnity satisfactory to it. Upon satisfaction of certain conditions set forth in the Indenture, the holders of a majority in principal amount of the Outstanding securities of a series issued pursuant to the Base Indenture 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.
15. Trustee, Paying Agent and Security Registrar May Hold Securities. The Trustee, subject to certain limitations imposed by the TIA,
or any paying agent or Security Registrar, in its individual or any other capacity, may become the owner or pledgee of Securities with the same rights it would have if it were not Trustee, paying agent or Security Registrar.
16. No Recourse Against Others. No recourse under or upon any obligation, covenant or agreement of the Indenture, or of any
Security, or for any claim based thereon or otherwise in respect hereof or thereof, shall be had against any incorporator, stockholder, officer or director, past, present or future as such, of the Guarantors or the Company or of any predecessor or
successor Person, either directly or through the Guarantors or the Company or any such predecessor or successor Person, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise;
it being expressly understood that the Indenture and the obligations issued hereunder and thereunder are solely corporate obligations, and that no such personal liability whatever shall attach to, or is or shall be incurred by, the incorporators,
organizers, shareholders, partners, members, officers, directors, managers or agents as such, of the Guarantors or the Company or of any predecessor or successor Person, or any of them, because of the creation of the indebtedness authorized by the
Indenture, or under or by reason of the obligations, covenants or agreements contained in the Indenture or in the Securities or implied therefrom; and that any and all such personal liability of every name and nature, either at common law or in
equity or by constitution or statute, of, and any and all such rights and claims against, every such incorporator, organizer, shareholder, partner, member, officer, director, manager or agent as such, because of the creation of the indebtedness
authorized by the Indenture, or under or by reason of the obligations, covenants or agreements contained in the Indenture or in the Securities or implied therefrom, are hereby expressly waived and released as a condition of, and as a consideration
for, the acceptance of the Securities.
A-12
17. Discharge of Indenture. The Indenture contains certain provisions pertaining to
defeasance and discharge, which provisions shall for all purposes have the same effect as if set forth herein.
18.
Authentication. This Security shall not be valid until the Trustee signs the certificate of authentication attached to the other side of this Security.
19. Guarantees. All payments by the Company under the Indenture and this Security are fully and unconditionally guaranteed to the
Securityholder by the Guarantors, as provided in the related Guarantee and the Indenture.
20. Additional Amounts. The Company and
the Guarantors are obligated to pay Additional Amounts on this Security to the extent provided in Article XIV of the Indenture.
21.
Abbreviations. Customary abbreviations may be used in the name of a Securityholder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not
as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
22. Governing Law. The Base
Indenture, the Fourth Supplemental Indenture and this Security (and the Guarantee hereon) shall be deemed to be a contract made under the internal laws of the State of New York, and for all purposes shall be construed in accordance with the laws of
said State without regard to conflicts of laws principles (except for Sections 5-1401 and 5-1402 of the New York General Obligations Law) that would require the application of any other law. The Base Indenture, the Fourth Supplemental Indenture and
this Security (and the Guarantee hereon) are subject to the provisions of the TIA that are required to be part of the Base Indenture, the Fourth Supplemental Indenture and this Security (and the Guarantee hereon) and shall, to the extent applicable,
be governed by such provisions. The application of articles 86 to 94-8 of the Luxembourg law on commercial companies dated 10 August 1915, as amended, to the Base Indenture, the Fourth Supplemental Indenture and this Security (and the Guarantee
hereon) is excluded.
A-13
ASSIGNMENT FORM
To assign this Security, fill in the form below: (I) or (we) assign and transfer this Security to
(Insert assignees soc. sec. or tax I.D. no.)
(Print or type assignees name,
address and zip code)
agent to transfer this Security on the books of the Company. The agent may substitute another to act for him.
|
|
|
Your Signature: |
|
|
(Sign exactly as your name appears on the face of this Security) |
A-14
ELECTION FORM
TO BE COMPLETED ONLY IF THE SECURITYHOLDER
ELECTS TO ACCEPT THE CHANGE OF CONTROL OFFER
The undersigned
hereby irrevocably requests and instructs the Company to repurchase the within Security (or the portion thereof specified below), pursuant to its terms, on the Change of Control Payment Date specified in the Change of Control Offer, for the Change
of Control Payment specified in the within Security, to the undersigned,
, at
(please
print or typewrite name, address and telephone number of the undersigned).
For this election to accept the Change of Control Offer to be
effective, the undersigned must (A) deliver, to the address of the paying agent set forth below or at such other place or places of which the Company shall from time to time notify the Securityholder, either (i) the Security with this
Election Form duly completed, or (ii) a telegram, telex, facsimile transmission or a letter from a member of a national securities exchange or the Financial Industry Regulatory Authority, Inc. or a commercial bank or a trust company
in the United States setting forth (a) the name of the Securityholder, (b) the principal amount of the Security, (c) the principal amount of the Security to be repurchased, (d) the certificate number or description of the tenor
and terms of the Security, (e) a statement that the option to elect repurchase is being exercised, and (f) a guarantee stating that the Security to be repurchased, together with this Election Form duly completed, will be
received by the paying agent at least five Business Days prior to the Change of Control Payment Date or (B) otherwise comply with alternative instructions in accordance with the procedures of the depositary. The address of the paying agent is
60 Livingston Avenue, St. Paul, MN 55107; Attention: Paying Agent - Unisys.
If less than the entire principal amount of the within
Security is to be repurchased, specify the portion thereof (which principal amount must be 100,000 or an integral multiple of 1,000 in excess thereof; provided that any remaining principal amount shall be at least the minimum authorized
denomination thereof) which the Securityholder elects to have repurchased: .
|
|
|
Securityholder: |
|
|
By: |
|
|
|
|
Name: |
|
|
Title: |
A-15
Exhibit 5.1
|
|
|
|
|
ATTORNEYS AT LAW
777 EAST WISCONSIN AVENUE MILWAUKEE, WI 53202-5306 414.271.2400 TEL
414.297.4900 FAX WWW.FOLEY.COM |
September 17, 2015
Pentair plc
P.O. Box 471, Sharp Street
Walkden, Manchester, M28 8BU
United Kingdom
Pentair Finance S.A.
26, boulevard Royal
L-2449
Luxembourg
Pentair Investments Switzerland GmbH
Freier Platz 10
8200
Schaffhausen, Switzerland
Ladies and Gentlemen:
We have acted as counsel
for Pentair Finance S.A., a Luxembourg public limited liability company (the Issuer), Pentair Investments Switzerland GmbH, a Switzerland limited liability company (Pentair Investments), and Pentair plc, an Irish public
limited company (Pentair and, together with Pentair Investments, the Guarantors), in connection with the preparation of a Registration Statement on Form S-3 (Registration No. 333-204066) (the Registration
Statement), including the prospectus constituting a part thereof, dated May 11, 2015 and the final supplement to the prospectus, dated September 14, 2015 (collectively, the Prospectus), filed by the Issuer and the
Guarantors with the Securities and Exchange Commission (the SEC) under the Securities Act of 1933, as amended (the Securities Act), relating to the issuance and sale by the Issuer in the manner set forth in the Registration
Statement and the Prospectus of 500,000,000 aggregate principal amount of the Issuers 2.450% Senior Notes due 2019 (the Notes). The Notes are fully and unconditionally guaranteed as to the due and punctual payment of the
principal of, premium, if any, and interest and any additional amounts, if any, on the Notes when and as the same shall become due and payable, whether at maturity, upon redemption or otherwise, by the Guarantors (the Guarantees). The
Notes will be issued under the Indenture, dated September 16, 2015 (the Base Indenture), among the Issuer, the Guarantors, and U.S. Bank National Association, as trustee (the Trustee), and the Fourth Supplemental
Indenture, dated September 17, 2015 (the Supplemental Indenture and, together with the Base Indenture, the Indenture) among the Issuer, the Guarantors and the Trustee.
|
|
|
|
|
|
|
|
|
BOSTON BRUSSELS
CHICAGO DETROIT |
|
JACKSONVILLE LOS ANGELES
MADISON MIAMI |
|
MILWAUKEE NEW YORK
ORLANDO SACRAMENTO |
|
SAN DIEGO SAN FRANCISCO
SHANGHAI SILICON VALLEY |
|
TALLAHASSEE TAMPA
TOKYO WASHINGTON, D.C. |
Pentair plc
Pentair Finance
S.A.
Pentair Investments Switzerland GmbH
September 17,
2015
Page
2
In connection with our opinion, we have examined: (i) the Registration Statement,
including the Prospectus, and the exhibits (including those incorporated by reference) constituting a part of the Registration Statement; (ii) the Indenture; (iii) the forms of the Notes and the Guarantees; and (iv) such other
proceedings, documents and records as we have deemed necessary to enable us to render this opinion.
In our examination of the
above-referenced documents, we have assumed the genuineness of all signatures, the authenticity of all documents, certificates and instruments submitted to us as originals and the conformity with the originals of all documents submitted to us as
copies. We have also assumed that (i) the Trustee is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization, and is duly qualified to engage in the activities contemplated by the Indenture;
(ii) the Indenture has been duly authorized, executed and delivered by, and represents the valid and binding obligation of, the Trustee, enforceable against the Trustee in accordance with its terms, (iii) the Company and Guarantors are
validly existing with power and authority to execute and deliver the Indenture, Notes and the Guarantees; (iv) the Indenture and Notes are duly authorized, executed and delivered by the Issuer in accordance with applicable Luxembourg law;
(v) the Indenture and Guarantees are duly authorized, executed and delivered by Pentair and Pentair Investments in accordance with applicable Irish or Swiss law, respectively; and (vi) the Notes and the Guarantees have been duly
authenticated by the Trustee in accordance with the Indenture.
Based upon and subject to the foregoing and the other matters set forth
herein, and having regard for such legal considerations as we deem relevant, we are of the opinion that:
1. The Notes are legally issued
and valid and binding obligations of the Issuer, enforceable against the Issuer in accordance with their terms.
2. The Guarantees are
legally issued and valid and binding obligations of the Guarantors, enforceable against the Guarantors in accordance with their terms.
The opinions above are each subject to (i) the effect of any bankruptcy, insolvency, reorganization, moratorium, arrangement or similar
laws affecting the rights and remedies of creditors generally, including without limitation the effect of statutory or other laws regarding fraudulent transfers or preferential transfers and (ii) general principles of equity, including
without limitation concepts of materiality, reasonableness, good faith and fair dealing and the possible unavailability of specific performance, injunctive relief or other equitable remedies regardless of whether enforceability is considered in a
proceeding in equity or at law.
We express no opinion as to the laws of any jurisdiction other than the State of New York and the
federal laws of the United States.
Pentair plc
Pentair Finance
S.A.
Pentair Investments Switzerland GmbH
September 17,
2015
Page
3
We hereby consent to the deemed incorporation by reference of this opinion into the
Registration Statement and the Prospectus and to the references to our firm therein. In giving this consent, we do not admit that we are experts within the meaning of Section 11 of the Securities Act or within the category of
persons whose consent is required by Section 7 of the Securities Act.
|
Very truly yours, |
|
/s/ Foley & Lardner LLP |
Exhibit 5.2
|
|
|
|
|
|
|
|
|
|
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 55 557
frank.mausen@allenovery.com |
Pentair Finance S.A.
26,
boulevard Royal
L-2449 Luxembourg
(the
Addressee)
Our ref 0106257-0000001 LU:9586580.3
Luxembourg, 17 September 2015
Pentair Finance S.A.
Registration statement on form S-3
Dear Sirs,
1. |
We have acted as legal advisers in the Grand Duchy of Luxembourg (Luxembourg) to Pentair Finance S.A. (formerly Tyco Flow Control International Finance S.A.), a public limited
liability company (société anonyme), having its registered office at 26, boulevard Royal, L-2449 Luxembourg and registered with the Luxembourg trade and companies register (Registre de commerce et des sociétés,
Luxembourg) (the Register) under number B 166305 (the Company). |
This
legal opinion is issued in connection with the preparation of a Registration Statement on Form S-3 (Registration No. 333-204066) (the Registration Statement), including the prospectus constituting a part thereof, dated 11 May
2015 and the final supplement to the prospectus, dated 14 September 2015 (collectively, the Prospectus), filed by the Company, Pentair plc, an Irish public limited company, and Pentair Investments Switzerland GmbH, a Swiss
Gesellschaft mit beschränkter Haftung (Pentair Investments and, together with Pentair Plc, the Guarantors) with the Securities and Exchange Commission (the SEC) under the Securities Act of 1933, as amended (the
Securities Act), relating to the issuance and sale by Company in the manner set forth in the Registration Statement and the Prospectus of EUR 500,000,000 aggregate principal amount of the Companys 2.450% Senior Notes due 2019 (the
Notes). The Notes are fully and unconditionally guaranteed as to the due and punctual payment of the principal of, premium, if any, and interest and any additional amounts, if any, on the Notes when and as the same shall become due and
payable, whether at maturity, upon redemption or otherwise, by the Guarantors. The Notes will be issued pursuant to an indenture dated 16 September 2015 (the Base Indenture) and made between the Company, the Guarantors and U.S. Bank
National Association, as trustee, as amended by the supplemental indenture dated 17 September 2015 (the Supplemental Indenture and, together with the Base Indenture, the Indenture).
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 (associated office), Rome, São Paulo, Séoul, Shanghai, Singapore, Sydney, Tokyo, Toronto, Warsaw, Washington, D.C. and Yangon.
We have examined, to the exclusion of any other document, copies of the documents listed
below:
2.1 |
an e-mailed scanned copy of the restated articles of association (statuts coordonnés) of the Company in a version dated 28 September 2012 (the Articles); |
2.2 |
an electronic copy of a negative certificate (certificat négatif) issued by the Register in respect of the Company dated 16 September 2015 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 Certificate);
|
2.3 |
an e-mailed scanned copy of the resolutions taken by the board of directors of the Company on 7 May 2015 (the May Resolutions); |
2.4 |
an e-mailed scanned copy of the resolutions taken by the board of directors of the Company on 28 July 2015 (the July Resolutions and together with the May Resolutions, the Resolutions);
|
2.5 |
an electronic copy of the Registration Statement, including the Prospectus; |
2.6 |
an e-mailed scanned signed copy of the Indenture; and |
2.7 |
e-mailed scanned signed copies of the global notes representing the Notes dated 17 September 2015. |
The documents listed in paragraphs 2.6 and 2.7 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 with your consent, and we have not verified
independently:
3.1 |
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; |
3.2 |
the due authorisation, execution and delivery of the Opinion Documents (as the case may be) 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 the Opinion Documents to which it is expressed to be a party; |
3.3 |
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; |
3.4 |
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 Indenture and the issue of the Notes have been or will be obtained; |
2
3.5 |
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 Indenture and
the Notes to render them enforceable in all relevant jurisdictions (other than Luxembourg to the extent opined upon herein); |
3.6 |
that the place of the central administration (siège de ladministration 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 are located at the place of its registered office
(siège statutaire) in Luxembourg and that the Company has no establishment (as such term is defined in the EU Insolvency Regulation) outside Luxembourg; |
3.7 |
that the Opinion Documents are entered into and performed by the parties thereto in good faith and 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; |
3.8 |
that all the parties to the Indenture (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; that in respect of all the parties to the Indenture (other than the Company), 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 respective parties or their assets and that no voluntary or judicial winding-up or liquidation of such parties has been
resolved or become effective at the date hereof; |
3.9 |
that the Resolutions have not been amended, rescinded, revoked or declared void and that the meetings of the board of directors of the Company (as referred to in paragraphs 2.3 and 2.4 above) have been duly convened and
validly held and included a proper discussion and deliberation in respect of all the items of the agendas of the meetings; |
3.10 |
that the Resolutions will remain in full for and effect and will not been amended, rescinded, revoked or declared void as long as Notes are been issued by the Company; |
3.11 |
that the Opinion Documents are legally valid, binding and enforceable under their governing laws (other than Luxembourg law but only to the extent opined herein), that the choices of such governing laws 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; |
3.12 |
that the Articles have not been modified since the date referred to in paragraph 2.1 above; and |
3.13 |
that the entry into and performance of the Indenture and the issue of the Notes are for the corporate benefit (intérêt social) of the Company. |
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 public limited liability company
(société anonyme) formed for an unlimited duration and legally existing under the laws of Luxembourg.
3
The Company has the corporate power and authority to enter into and
perform the obligations under the Indenture and the Notes.
The Indenture and the Notes have been duly authorised, executed and delivered
on behalf of the Company.
The above opinions are subject to the following qualifications:
5.1 |
The opinion expressed herein is 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 |
We express no tax opinion whatsoever in respect of the Company or the tax consequences of the transactions contemplated by the Opinion Documents. |
5.3 |
We express no opinion whatsoever 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. |
5.4 |
We express no opinion whatsoever on the legal validity and enforceability of the Opinion Documents. |
5.5 |
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 (liquidation judiciaire) or similar action has been adopted or made. |
5.6 |
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. |
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). |
4
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 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). |
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 in connection with the registration of the Notes with the SEC. We hereby consent to the
inclusion of this legal opinion as an exhibit to the Registration Statement and the reference to our firm under the caption Legal Matters in the Prospectus which is filed as part of the Registration Statement. In giving this consent, we
do not thereby admit that we are in a category of person whose consent is required under Section 7 of the Securities Act.
Yours faithfully,
/s/ Frank Mausen
Allen & Overy
Frank Mausen*
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. |
5
Exhibit 5.3
Our Reference: 2097/AC#18474223.1
17 September 2015
Pentair plc
Arthur Cox Building
Earlsfort
Terrace
Dublin 2
Ireland
Re: |
Pentair plc (the Company) incorporated in Ireland under registered number 536025 |
Dear Sirs,
|
1.1 |
We are acting as Irish counsel to Pentair plc, registered number 536025, a public company limited by shares, incorporated under the laws of Ireland, with its registered office at Arthur Cox Building, Earlsfort Terrace,
Dublin 2 (the Company), in connection with the registration statement on Form S-3 (Registration No. 333-204066) (the Registration Statement) including the prospectus constituting a part thereof, dated
May 11, 2015 and the final supplement to the prospectus, dated September 14, 2015 (collectively, the Prospectus), filed by Pentair Finance S.A. (the Issuer), the Company and Pentair Investments
Switzerland GmbH (Pentair Investments) with the Securities and Exchange Commission (the SEC) under the Securities Act of 1933, as amended (the Securities Act), relating to the issuance and
sale by the Issuer in the manner set forth in the Registration Statement and the Prospectus of 500,000,000 aggregate principal amount of the 2.450% Senior Notes due 2019 (the Notes). The Notes are fully and unconditionally
guaranteed as to the due and punctual payment of the principal of, premium, if any, and interest and any additional amounts, if any, on the Notes when and as the same shall become due and payable, whether at maturity, upon redemption or otherwise,
by the Company (the Guarantees) and Pentair Investments. The Notes will be issued under the Indenture, dated September 16, 2015 (the Base Indenture), among the Issuer, the Company, Pentair Investments, and
U.S. Bank National Association, as trustee (the Trustee), and the Fourth Supplemental Indenture dated September 17, 2015 (the Supplemental Indenture and, together with the Base Indenture, the
Indenture) between the Issuer, the Company, Pentair Investments, and the Trustee. |
|
1.2 |
This Opinion is confined to and given in all respects on the basis of the laws of Ireland in force as at the date of this Opinion as currently applied by the courts of Ireland. We have made no investigations of and we
express no opinion as to the laws of any other jurisdiction or the effect thereof. In particular, we express no opinion on the laws of the European Union as they affect any jurisdiction other than Ireland. We have assumed without investigation that
insofar as the laws of any jurisdiction other than Ireland are relevant, such laws do not prohibit and are not inconsistent with any of the obligations or rights expressed in the Documents (as defined in paragraph 1.3) or the transactions
contemplated thereby. |
|
1.3 |
This Opinion is also strictly confined to: |
|
(a) |
the matters expressly stated herein at paragraph 2 below and is not to be read as extending by implication or otherwise to any other matter; |
|
(b) |
the documents listed in the Schedule to this Opinion (the Documents); and |
|
(c) |
the searches listed at paragraph 1.6 below. |
We express no opinion, and make no representation
or warranty, as to any matter of fact or in respect of any documents which may exist in relation to the Guarantees, other than the Documents.
|
1.4 |
In giving this opinion, we have relied upon the Corporate Certificate (as defined in the Schedule to this Opinion), the Searches (as defined below) and we give this opinion expressly on the terms that no further
investigation or diligence in respect of any matter referred to in the Corporate Certificate or the Searches is required of us. |
|
1.5 |
For the purpose of giving this Opinion, we have examined copies sent to us by email in pdf or other electronic format of the Documents. |
|
1.6 |
For the purpose of giving this Opinion, we have caused to be made the following legal searches against the Company on 16 September 2015 (together the Searches): |
|
(a) |
on the file of the Company maintained by the Irish Registrar of Companies in Dublin for returns of allotments, special resolutions amending the memorandum and articles of association of the Company, mortgages,
debentures or similar charges or notices thereof, notice of the appointment of directors and secretary of the Company and for the appointment of any receiver, examiner or liquidator; |
|
(b) |
in the Judgments Office of the High Court for unsatisfied judgments, orders, decrees and the like for the twelve years immediately preceding the date of the search; and |
|
(c) |
in the Central Office of the High Court in Dublin for any proceedings and petitions filed in respect of the Company. |
|
1.7 |
This Opinion is governed by and is to be construed in accordance with the laws of Ireland as interpreted by the courts of Ireland at the date hereof. This Opinion speaks only as of its date. |
Subject to the assumptions and qualifications set out in this Opinion and to
any matters not disclosed to us, we are of the opinion that:
|
2.1 |
The Company is a public company limited by shares, is duly incorporated and validly existing under the laws of Ireland and has the requisite corporate power and authority to execute and deliver the Indenture and the
Guarantees. |
|
2.2 |
The Company has duly authorized, executed and delivered the Indenture and the Guarantees. |
For the purpose of giving this Opinion, we assume the following without any
responsibility on our part if any assumption proves to have been untrue as we have not verified independently any assumption:
Authenticity and bona fides
|
3.1 |
the completeness and authenticity of all documents submitted to us as originals or copies of originals and (in the case of copies) conformity to the originals of copy documents and the genuineness of all signatories,
stamps and seals thereon; |
|
3.2 |
where incomplete Documents have been submitted to us or signature pages only have been supplied to us for the purposes of issuing this Opinion, that the originals of such Documents correspond in all respects with the
last draft of the complete Documents submitted to us; |
|
3.3 |
that the terms of the Documents will be observed and performed by the parties thereto; |
|
3.4 |
that the copies produced to us of minutes of meetings and/or of resolutions correctly record the proceedings at such meetings and/or the subject matter which they purport to record and that any meetings referred to in
such copies were duly convened, duly quorate and held, that those present at any such meetings were entitled to attend and vote at the meeting and acted bona fide throughout and that no further resolutions have been passed or other action taken
which would or might alter the effectiveness thereof; |
|
3.5 |
that each of the Documents is up-to-date and current and has not been amended, varied or terminated in any respect and no resolution contained in any of the Documents has been amended, varied, revoked or superseded in
any respect; |
|
3.6 |
that the Memorandum and Articles of Association of the Company amended on 20 May 2014 are the current Memorandum and Articles of Association of the Company, are up to date and have not been amended or superseded;
|
Accuracy of searches and warranties
|
3.7 |
the accuracy and completeness of the information disclosed in the Searches and that such information is accurate as of the date of this Opinion and
has not since the time of such search or enquiry been altered. It should be noted that: (a) the matters disclosed in the Searches may not present a complete summary of the actual position on the matters we have caused searches to be conducted
for; (b) the position reflected |
|
by the Searches may not be fully up-to-date; and (c) searches at the Companies Registration Office do not necessarily reveal whether or not a prior charge has been created or a resolution
has been passed or a petition presented or any other action taken for the winding-up of, or the appointment of a receiver or an examiner to, the Company or its assets; |
|
3.8 |
the truth, completeness and accuracy of all representations and statements as to factual matters contained in the Documents; |
Solvency and Insolvency
|
3.9 |
that: (i) the Company is as at the date of this Opinion able to pay its debts as they fall due within the meaning of sections 508(3) and 570 of the Companies Act 2014 or any analogous provision under any applicable
laws immediately after the execution and delivery of the Documents; and (ii) the Company will not, as a consequence of doing any act or thing which any Document contemplates, permits or requires the relevant party to do, be unable to pay its
debts within the meaning of such sections or any analogous provisions under any applicable laws. |
Commercial Benefit
|
3.10 |
that the Documents have been entered into for bona fide commercial purposes, on arms length terms and for the benefit of each party thereto and are in those parties respective commercial interest and for
their respective corporate benefit. |
This Opinion is addressed to you in connection with the registration of the
Guarantees with the SEC. We hereby consent to the inclusion of this Opinion as an exhibit to the Registration Statement and the reference to our firm under the caption Legal Matters in the prospectus which is filed as part of the
Registration Statement. In giving this consent, we do not thereby admit that we are in a category of person whose consent is required under section 7 of the Securities Act.
This Opinion speaks only as of its date. We are not under any obligation
to update this Opinion from time to time or to notify you of any change of law, fact or circumstances referred to or relied upon in the giving of this Opinion.
|
Yours faithfully, |
|
/s/ Arthur Cox |
ARTHUR COX |
SCHEDULE
Documents
1. |
The Notes, the Guarantees and the Indenture |
2. |
The Registration Statement |
4. |
A corporate certificate of the secretary of the Company dated the date of this opinion (the Corporate Certificate) with copies of: |
|
(a) |
the Memorandum and Articles of Association of the Company in the form amended by resolution of the shareholders of the Company on 20 May 2014; |
|
(b) |
the Certificate of Incorporation of the Company dated 28 November 2013; and |
|
(c) |
Resolutions of the board of directors of the Company. |
5. |
A copy of the certificate of a public company entitled to do business of the Company dated 29 September 2013. |
6. |
Letter of status in respect of the Company from the Irish Companies Registration Office dated 16 September 2015. |
Exhibit 5.4
Pentair Investments Switzerland GmbH
Freier Platz 10
CH-8200 Schaffhausen
Switzerland
Zurich, 17 September 2015
Registration Statement on
Form S-3
Dear Sir or Madam
We are acting as
special Swiss counsel to Pentair Investments Switzerland GmbH (the Company). This opinion is being rendered at the request of the Company in connection with the Companys registration statement on Form S-3 (Registration
No. 333-204066) (the Registration Statement) including the prospectus constituting a part thereof, dated 11 May, 2015 and the final supplement to the prospectus, dated 14 September, 2015 (collectively, the
Prospectus), filed by Pentair Finance S.A. (the Issuer), Pentair plc (Pentair) and the Company with the Securities and Exchange Commission (the SEC) under the Securities Act
of 1933, as amended (the Securities Act), relating to the issuance and sale by the Issuer in the manner set forth in the Registration Statement and the Prospectus of 500,000,000 aggregate principal amount of the
Issuers 2.450% Senior Notes due 2019 (the Notes). The Notes are fully and unconditionally guaranteed as to the due and punctual payment of the principal of, premium, if any, and interest and any additional amounts, if any,
on the Notes when and as the same shall become due and payable, whether at maturity, upon redemption or otherwise, by the Company (the Guarantee) and Pentair plc. The Notes will be issued under the Indenture, dated
16 September 2015 (the Base Indenture), among the Issuer, Pentair plc, the Company, and U.S. Bank National Association, as trustee (the Trustee), and the Fourth Supplemental Indenture dated
17 September 2015 (the Supplemental Indenture and, together with the Base Indenture, the Indenture) between the Issuer, Pentair plc, the Company, and the Trustee.
We have not investigated the laws of any jurisdiction other than Switzerland, and do not express an opinion on the laws of any jurisdiction other than
Switzerland. For the purpose of rendering this opinion, we have examined and solely relied on (i) the Registration Statement, including the Prospectus constituting a part of the
|
|
|
|
|
|
|
|
|
|
|
Bär & Karrer
Rechtsanwälte |
|
Zürich Bär &
Karrer AG Brandschenkestrasse 90
CH-8027 Zürich
Phone: +41 58 261 50 00
Fax: +41 58 261 50 01
zuerich@baerkarrer.ch |
|
Genf Bär & Karrer SA
12, quai de la Poste CH-1211 Genève 11
Phone: +41 58 261 57 00 Fax: +41 58
261 57 01 geneve@baerkarrer.ch |
|
Lugano Bär & Karrer SA
Via Vegezzi 6 CH-6901 Lugano
Phone: +41 58 261 58 00 Fax: +41 58
261 58 01 lugano@baerkarrer.ch |
|
Zug Bär & Karrer AG
Baarerstrasse 8 CH-6301 Zug
Phone: +41 58 261 59 00 Fax: +41 58
261 59 01 zug@baerkarrer.ch |
|
www.baerkarrer.ch |
Registration Statement, (ii) a copy of the signed Indenture, (iii) a copy of the signed Guarantee
and (iv) a copy of the signed secretarys certificate of the Company dated 17 September 2015 including attached thereto a certified extract, dated 10 September 2015, of the Commercial Register of the Canton of Schaffhausen,
Switzerland, the Companys articles of association certified to be up-to-date as of 10 September 2015, resolutions duly adopted by the meeting of the managing officers (Geschäftsführer) of the Company held on 6 May
2015 and a circular resolution of the Board of Directors (i.e. managing officers/Geschäftsführer) of the Company dated 31 July 2015 and containing certain representations.
We have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of all
the documents submitted to us as certified, conformed or photostatic copies and the authenticity of the originals of such latter documents. We have assumed the entering of the parties to the Indenture and the Guarantee for bona fide
commercial reasons and on arms length terms, that none of the managing officers of any such party has or had a conflict of interest with such party in respect of the Indenture or the Guarantee, or otherwise lacked capacity that would preclude
such managing officer from validly representing (or granting a power of attorney in respect of the Indenture and the Guarantee for) such party. We further have assumed that the Company is, at the time of this opinion letter, neither insolvent nor
over-indebted (in the sense of article 725 Swiss Code of Obligations) and that the Company does not guarantee the satisfaction of any liabilities entered of Pentair. This opinion speaks as of its date and is strictly limited to the matters stated
herein and we assume no obligation to review or update this opinion if applicable law or the existing facts or circumstances should change.
Based on the
foregoing and subject to the qualifications set forth herein, we are of the opinion (i) that the Company is a duly organized limited liability company (Gesellschaft mit beschränkter Haftung) validly existing under the laws of
Switzerland, (ii) that the Company has the corporate power to enter into, and perform its obligations under, the Indenture and the Guarantee and (iii) that the Company has duly authorized, executed and delivered the Indenture and the
Guarantee in accordance with the laws of Switzerland.
The opinions set out above are subject to applicable bankruptcy, insolvency, reorganization,
liquidation, moratorium, civil procedure and other similar laws and regulations as applicable to creditors, debtors, claimants and defendants generally as well as principles of equity (good faith) and the absence of a misuse of rights.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to references to our firm therein. In giving this consent, we
do not hereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the SEC promulgated thereunder.
Yours faithfully,
/s/ Bär & Karrer AG
Bär & Karrer AG
Pentair (NYSE:PNR)
Historical Stock Chart
From Apr 2024 to May 2024
Pentair (NYSE:PNR)
Historical Stock Chart
From May 2023 to May 2024