Exhibit 1.1
UNDERWRITING AGREEMENT
July 12, 2022
CITIGROUP GLOBAL MARKETS LIMITED
DEUTSCHE BANK AG, LONDON BRANCH
HSBC BANK PLC
X.X. XXXXXX SECURITIES PLC
XXXXXXX XXXXX INTERNATIONAL
As Representatives of the several Underwriters
c/o CITIGROUP GLOBAL MARKETS LIMITED
Citigroup Centre
Canada Square
Xxxxxx Xxxxx
Xxxxxx X00 0XX
Xxxxxx Xxxxxxx
x/x XXXXXXXX XXXX XX, XXXXXX BRANCH
Winchester House
1 Great Xxxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Xxxxxx Xxxxxxx
c/o HSBC BANK PLC
0 Xxxxxx Xxxxxx
Xxxxxx X00 0XX
Xxxxxx Xxxxxxx
c/o X.X. XXXXXX SECURITIES PLC
00 Xxxx Xxxxxx
Xxxxxx Xxxxx
Xxxxxx X00 0XX
Xxxxxx Xxxxxxx
c/o MERRILL XXXXX INTERNATIONAL
0 Xxxx Xxxxxx Xxxxxx
Xxxxxx
XX0X 0XX
Xxxxxx Xxxxxxx
Ladies and Gentlemen:
Introductory. Celanese US Holdings LLC, a Delaware limited
liability company (the “Company”), a wholly-owned subsidiary of Celanese Corporation, a Delaware corporation (the
“Parent Guarantor”), proposes to issue and sell to the several underwriters listed in Schedule A hereto (the
“Underwriters”), for whom Citigroup Global Markets Limited (“Citigroup”), Deutsche Bank AG,
London Branch, (“Deutsche Bank”), HSBC Bank plc (“HSBC”), X.X. Xxxxxx Securities plc
(“X.X. Xxxxxx”) and Xxxxxxx Xxxxx International (“MLI”), are acting as representatives (either
on their own behalf or through any of their respective affiliates, the “Representatives”), (i) €1,000
million aggregate principal amount of the Company’s 4.777% Senior Notes due 2026 (the “2026 Notes”) and
(ii) €500 million aggregate principal amount of the Company’s 5.337% Senior Notes due 2029 (the “2029
Notes” and, together with the 2026 Notes, the “Notes”).
The Company intends to use the net proceeds from the issuance and sale
of the Securities (as defined below), together with borrowings under the Term Loan Facility, the net proceeds of the concurrent U.S. Dollar
notes offering described in the Disclosure Package (as defined below) or other debt financing, available borrowings under the Company’s
revolving credit facility and cash on hand to fund the purchase price of the pending acquisition by the Parent Guarantor of the majority
of the Mobility & Materials business (the “Acquired Business”) of DuPont de Nemours Inc. (“DuPont”),
pursuant to that certain Transaction Agreement dated as of February 17, 2022 (as it may be amended, restated, amended and restated, supplemented
or otherwise modified from time to time, the “Acquisition Agreement”), among the Parent Guarantor, DuPont and DuPont
E&I Holding, Inc. The term “Acquisition” as used herein shall refer to each of the transactions contemplated by
the Acquisition Agreement.
The Securities will be issued pursuant to an indenture, dated as of
May 6, 2011 (the “Base Indenture”), among the Company, the Guarantors (as defined below) and Computershare Trust Company,
N.A. (as successor trustee to Xxxxx Fargo Bank, National Association), as trustee (the “Base Trustee”). Certain terms of the
Securities will be established pursuant to a supplemental indenture, to be dated as of the Closing Date (as defined in Section 2 hereof)
(the “Supplemental Indenture” and, together with the Base Indenture, the “Indenture”), to the Base
Indenture, among the Company, the Guarantors, the Base Trustee, U.S. Bank National Association, as trustee for the Notes (the “Trustee”),
U.S. Bank National Association, as registrar and transfer agent (the “Transfer Agent”), and Elavon Financial Services
DAC, UK Branch, as paying agent (the “Paying Agent”). The Notes will be issued only in registered form and deposited
in global form with a common depository (the “Common Depository”) for Euroclear Bank SA/NV (“Euroclear”)
and Clearstream Banking, S.A. (“Clearstream”).
Subject to the terms and conditions of the Indenture, the payment of
principal of, premium, if any, and interest on the Notes will be fully and unconditionally guaranteed (the “Guarantees”)
on a senior unsecured basis, jointly and severally by (i) the Parent Guarantor and (ii) the subsidiaries of the Company that are listed
on Schedule B hereof as “Subsidiary Guarantors” (collectively with the Parent Guarantor, the “Guarantors”).
The Notes and the Guarantees are herein collectively referred to as the “Securities.”
SECTION 1. Representations and Warranties. Each of the Company and the Guarantors, jointly and severally, hereby represents, warrants
and covenants to each Underwriter (it being understood and agreed that whenever reference is made to the subsidiaries of the Parent Guarantor
in this Agreement, such phrase will be understood to refer to and include (i) the subsidiaries of the Parent Guarantor and (ii) except
as expressly stated herein, the Acquired Business, and shall be to the knowledge of the Parent Guarantor and the Company with respect
to the Acquired Business) that, as of the date hereof and as of the Closing Date:
(a) Registration
Statement. The Company has prepared and filed with the Securities and Exchange Commission (the “Commission”)
a registration statement on Form S-3 (File No. 333-236294), which contains a base prospectus (the “Base
Prospectus”), to be used in connection with the public offering and sale of the Securities. Such registration statement,
as amended, including the financial statements, exhibits and schedules thereto, at each time of effectiveness under the Securities
Act of 1933, as amended, and the rules and regulations promulgated thereunder (collectively, the “Securities
Act”), including any required information deemed to be a part thereof at the time of effectiveness pursuant to Rule 430B
or 430C under the Securities Act or the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated
thereunder (collectively, the “Exchange Act”), is called the “Registration Statement.” Any
preliminary prospectus supplement relating to the Securities that is filed with the Commission pursuant to Rule 424(b) of the
Securities Act, together with the Base Prospectus, is hereafter called a “Preliminary Prospectus.” The term
“Prospectus” shall mean the final prospectus supplement relating to the Securities that is first filed pursuant
to Rule 424(b) of the Securities Act after the date and time that this Agreement is executed and delivered by the parties hereto,
including the Base Prospectus. Any reference herein 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; any reference to any amendment or supplement to any Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include any documents filed after the date of such Preliminary Prospectus or Prospectus, as the case may be, under the
Exchange Act, and incorporated by reference in such Preliminary Prospectus or Prospectus, as the case may be; and any reference to
any amendment to the Registration Statement shall be deemed to refer to and include any annual report of the Parent Guarantor filed
pursuant to Section 13(a) or 15(d) of the Exchange Act after the effective date of the Registration Statement that is incorporated
by reference in the Registration Statement.
(b) Compliance
with Registration Requirements. The Parent Guarantor and the Company meet the requirements for use of Form S-3 under the Securities
Act. The Registration Statement has become effective upon filing with the Commission under the Securities Act. No stop order suspending
the effectiveness of the Registration Statement is in effect, the Commission has not issued any order or notice preventing or suspending
the use of the Registration Statement, any Preliminary Prospectus or the Prospectus and no proceedings for such purpose or pursuant to
Section 8A of the Securities Act have been instituted or are pending or, to the best knowledge of the Company, are contemplated or threatened
by the Commission. In addition, the Indenture has been duly qualified under the Trust Indenture Act of 1939, as amended, and the rules
and regulations promulgated thereunder (the “Trust Indenture Act”).
Each of the Preliminary Prospectus
and the Prospectus when filed complied in all material respects with the Securities Act. Each of the Registration Statement and any
post-effective amendment thereto, at each time of effectiveness, at the date hereof and at the Closing Date, complied and will
comply in all material respects with the Securities Act and 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. The Prospectus, as amended or supplemented, as of its date, at the time of any filing pursuant to
Rule 424(b) of the Securities Act and at the Closing Date, did not and 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. The representations and warranties set forth in the two immediately preceding sentences do not apply to
statements in or omissions from the Registration Statement or any post-effective amendment thereto, or the Preliminary Prospectus or
the Prospectus, or any amendments or supplements thereto, made in reliance upon and in conformity with information relating to any
Underwriter furnished to the Company in writing by the Representatives expressly for use therein, it being understood and agreed
that the only such information furnished by the Representatives consists of the information described as such in Section 7(b)
hereof.
The documents incorporated by reference
in the Registration Statement, the Disclosure Package (as defined herein) and the Prospectus, when they were filed with the Commission
conformed in all material respects to the requirements of the Exchange Act. Any further documents so filed and incorporated by reference
in the Registration Statement, the Disclosure Package and the Prospectus or any further amendment or supplement thereto, when such documents
are filed with the Commission will conform in all material respects to the requirements of the Exchange Act. All documents incorporated
or deemed to be incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus, as of their respective
dates, when taken together with the other information in the Disclosure Package, at the Applicable Time and, when taken together with
the other information in the Prospectus, at the Closing Date, did not or will not include an 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.
(c) Well-Known
Seasoned Issuer. (i) At the time of filing the Registration Statement, (ii) at the time of the most recent amendment thereto
for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective amendment,
incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), (iii) at the time the
Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) of the Securities Act) made
any offer relating to the Securities in reliance on the exemption of Rule 163 of the Securities Act, and (iv) at the Applicable
Time (with such date and time being used as the determination date for purposes of this clause (iv)), the Company was and is a “well-known
seasoned issuer” as defined in Rule 405 of the Securities Act. The Registration Statement is an “automatic shelf registration
statement,” as defined in Rule 405 of the Securities Act that has been filed with the Commission not earlier than three years
prior to the Closing Date; the Company has not received from the Commission any notice pursuant to Rule 401(g)(2) of the Securities Act
objecting to use of the automatic shelf registration statement form; and the Company has not otherwise ceased to be eligible to use the
automatic shelf registration form.
(d) The
Disclosure Package. The term “Disclosure Package” shall mean (i) the Preliminary Prospectus, if any, as
amended or supplemented, (ii) the issuer free writing prospectuses as defined in Rule 433 of the Securities Act (each, an
“Issuer Free Writing Prospectus”), if any, identified in Schedule C hereto, (iii) any other free writing
prospectus that the parties hereto shall hereafter expressly agree in writing to treat as part of the Disclosure Package and (iv)
the Final Term Sheet (as defined herein), which also shall be identified in Schedule C hereto. As of 11:09 a.m. (New York City time)
on the date of this Agreement (the “Applicable Time”), the Disclosure Package did 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 this representation, warranty and agreement shall not
apply to statements in or omissions from the Disclosure Package based upon and in conformity with information furnished to the
Company in writing by any Underwriter through the Representatives expressly for use therein, it being understood and agreed that the
only such information furnished by any Underwriter consists of the information described as such in Section 7(b) hereof.
(e) Company
Not Ineligible Issuer. (i) At the earliest time after the filing of the Registration Statement relating to the Securities that the
Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) of the Securities Act) and
(ii) as of the Applicable Time (with such date being used as the determination date for purposes of this clause (ii)), the Company was
not and is not an “ineligible issuer” (as defined in Rule 405 of the Securities Act), without taking account of any determination
by the Commission pursuant to Rule 405 of the Securities Act that it is not necessary that the Company be considered an “ineligible
issuer.”
(f) Issuer
Free Writing Prospectuses. Each Issuer Free Writing Prospectus, as of its issue date and at all subsequent times through the completion
of the offering of Securities under this Agreement or until any earlier date that the Company notified or notifies the Representatives
as described in the next sentence, did not, does not and will not include any information that conflicted, conflicts or will conflict
with the information contained in the Registration Statement, the Disclosure Package or the Prospectus. If at any time following issuance
of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus
conflicted or would conflict with the information contained in the Registration Statement, the Disclosure Package or the Prospectus, the
Company has promptly notified or will promptly notify the Representatives and has promptly amended or supplemented or will promptly amend
or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict. Any Issuer Free Writing
Prospectus not identified on Schedule C hereto, when taken together with the Disclosure Package, 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. The foregoing three sentences do not apply to statements
in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information furnished to the Company
by any Underwriter through the Representatives specifically for use therein, it being understood and agreed that the only such information
furnished by any Underwriter consists of the information described as such in Section 7(b) hereof.
(g) Distribution
of Offering Material by the Company and the Guarantors. Neither the Company nor any Guarantor has distributed or will
distribute, prior to the later of the Closing Date and the completion of the Underwriters’ distribution of the Securities, any
offering material in connection with the offering and sale of the Securities other than the Preliminary Prospectus, the Prospectus
and any Issuer Free Writing Prospectus reviewed and consented to by the Representatives.
(h) No
Applicable Registration or Other Similar Rights. There are no persons with registration or other similar rights to have any
equity or debt securities registered for sale under the Registration Statement or included in the offering contemplated by this Agreement,
except for such rights as have been duly waived.
(i) The
Underwriting Agreement. This Agreement has been duly authorized, executed and delivered by the Company and the Guarantors and is a
valid and binding agreement of the Company and the Guarantors.
(j) [Reserved].
(k) Authorization
of the Notes and the Guarantees. The Notes to be purchased by the Underwriters from the Company will on the Closing Date be in the
form contemplated by the Indenture, will have been duly authorized for issuance and sale pursuant to this Agreement and the Indenture
and, at the Closing Date, will have been duly executed by the Company and, when authenticated in the manner provided for in the Indenture
and delivered against payment of the purchase price therefor, will constitute valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting the rights and remedies of creditors or by general equitable principles and
will be entitled to the benefits of the Indenture. The Guarantees of the Notes on the Closing Date will be in the respective forms contemplated
by the Indenture and will have been duly authorized pursuant to this Agreement and the Indenture; the Guarantees of the Notes, at the
Closing Date, will have been duly executed by each of the Guarantors and, when the Notes have been authenticated in the manner provided
for in the Indenture and issued and delivered against payment of the purchase price therefor, the Guarantees of the Notes will constitute
valid and binding agreements of the Guarantors, enforceable against the Guarantors in accordance with their terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting the rights
and remedies of creditors or by general equitable principles and will be entitled to the benefits of the Indenture.
(l) Authorization
of the Indenture. The Indenture has been duly authorized by the Company and the Guarantors and, at the Closing Date, will have been
duly executed and delivered by the Company and the Guarantors and will constitute a valid and binding agreement of the Company and the
Guarantors, enforceable against the Company and the Guarantors in accordance with its terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting the rights and remedies of
creditors or by general equitable principles.
(m) Description
of the Securities and the Indenture. The Securities and the Indenture will conform in all material respects to the respective
statements relating thereto contained in the Disclosure Package and the Prospectus under the captions “Description of the
Notes” and “Description of Debt Securities and Guarantees.”
(n) No
Material Adverse Change. Except as otherwise disclosed in the Disclosure Package and the Prospectus (exclusive of any amendment or
supplement thereto), subsequent to the respective dates as of which information is given in the Prospectus (exclusive of any amendment
or supplement thereto), (i) there has been no material adverse change, or any development that could reasonably be expected to result
in a material adverse change, in the financial condition, or in the earnings, prospects, business or operations, whether or not arising
from transactions in the ordinary course of business, of the Parent Guarantor and its subsidiaries, considered as one entity (any such
change is called a “Material Adverse Change”); (ii) the Parent Guarantor and its subsidiaries, considered as one entity,
have not incurred any material liability or obligation, indirect, direct or contingent, not in the ordinary course of business or entered
into any material transaction or agreement not in the ordinary course of business; and (iii) there has been no dividend or distribution
of any kind declared, paid or made by the Parent Guarantor or, except for dividends paid to the Parent Guarantor or any of its other subsidiaries,
by any of its subsidiaries on any class of capital stock or repurchase or redemption by the Parent Guarantor or any of its subsidiaries
of any class of capital stock.
(o) Independent
Accountants. (i) KPMG LLP, which expressed its opinion with respect to the consolidated financial statements (which term as used in
this Agreement includes the related notes thereto) included in the December 31, 2021 Annual Report on Form 10-K of the Parent Guarantor
filed with the Commission and incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus, is an
independent registered public accounting firm within the meaning of the Securities Act, the Exchange Act and the rules of the Public Company
Accounting Oversight Board, and any non-audit services provided by KPMG LLP or any KPMG non-U.S. member firm affiliate to the Parent Guarantor
or any of its subsidiaries have been approved by the Audit Committee of the Board of Directors of the Parent Guarantor;
(ii) PricewaterhouseCoopers LLP, which expressed its opinion with respect to the historical financial statements of the Acquired Business,
included in the June 27, 2022 Current Report on Form 8-K of the Parent Guarantor filed with the Commission and incorporated by reference
in the Registration Statement, the Disclosure Package and the Prospectus, is an independent registered public accounting firm within the
meaning of the Securities Act, the Exchange Act and the rules of the Public Company Accounting Oversight Board.
(p) Preparation
of the Financial Statements. The consolidated financial statements of the Acquired Business and the Parent Guarantor, each
together with the related schedules and notes, filed with the Commission as part of or incorporated by reference in the Registration
Statement and included or incorporated by reference in the Disclosure Package and the Prospectus present fairly the consolidated
financial position of the entities to which they relate as of and at the dates indicated and the results of their operations and
cash flows for the periods specified. Such consolidated financial statements have been prepared in conformity with generally
accepted accounting principles as applied in the United States (“GAAP”) applied on a consistent basis throughout
the periods involved, except as may be expressly stated in the related notes thereto. The financial data set forth in the Disclosure
Package and the Prospectus under the caption “Capitalization” presents fairly the information set forth therein on a
basis consistent with that of the audited financial statements contained in the Registration Statement, except that any non-GAAP
financial measures included under such captions have not been presented in accordance with GAAP. The pro forma financial information
and the related notes thereto included or incorporated by reference in the Disclosure Package and the Prospectus has been prepared
in accordance with the Commission’s rules and guidance with respect to pro forma financial information, and the assumptions
underlying such pro forma financial information are reasonable and are set forth in or incorporated by reference in the Disclosure
Package and Prospectus. The statistical and market-related data and forward-looking statements included in the Disclosure Package
and the Prospectus are based on or derived from sources that the Company believes to be reliable and accurate in all material
respects and represent their good faith estimates that are made on the basis of data derived from such sources. The interactive data
in eXtensible Business Reporting Language included or incorporated by reference in the Registration Statement, the Disclosure
Package and the Prospectus fairly present the information called for in all material respects and have been prepared in accordance
with the Commission's rules and guidelines applicable thereto.
(q) Incorporation
and Good Standing of the Company and the Guarantors. Each of the Company and the Guarantors has been duly incorporated or formed,
as applicable, and is validly existing as a corporation, limited partnership or limited liability company, as applicable, in good standing
under the laws of the jurisdiction of its incorporation or formation, as applicable, and has corporate, partnership or limited liability
company, as applicable, power and authority to own, lease and operate its properties and to conduct its business as described in the Disclosure
Package and the Prospectus and to enter into and perform its obligations under each of this Agreement, the Securities and the Indenture,
as applicable. Each of the Company and the Guarantors is duly qualified as a foreign corporation, limited partnership or limited liability
company, as applicable, to transact business and is in good standing or equivalent status in each jurisdiction in which such qualification
is required, whether by reason of the ownership or leasing of property or the conduct of business, except for such jurisdictions where
the failure to so qualify or to be in good standing would not, individually or in the aggregate, result in a Material Adverse Change.
All of the issued and outstanding capital stock or other ownership interest of each of the Company and the Guarantors (other than the
Parent Guarantor) has been duly authorized and validly issued, is fully paid and nonassessable and, in the case of the Company and the
Guarantors, is owned by the Parent Guarantor, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge,
lien, encumbrance or claim, except as disclosed in the Disclosure Package and the Prospectus. The Parent Guarantor does not own or control,
directly or indirectly, any corporation, association or other entity that would be required to be listed in Exhibit 21 to an Annual Report
on Form 10-K of the Parent Guarantor, other than those listed in Exhibit 21.1 to the Parent Guarantor’s Annual Report on Form 10-K
for the fiscal year ended December 31, 2021.
(r) Capitalization
and Other Capital Stock Matters. At March 31, 2022, on a consolidated basis, after giving pro forma effect to the issuance and
sale of the Securities pursuant hereto and the Acquisition, the Parent Guarantor would have an authorized and outstanding
capitalization as set forth in the Disclosure Package and Prospectus under the caption “Capitalization” (other than for
subsequent share repurchases pursuant to Rule 10b-18 of the Exchange Act and subsequent issuances of capital stock, if any, pursuant
to employee benefit plans described in the Disclosure Package and the Prospectus or upon exercise of outstanding options or warrants
described in the Disclosure Package and the Prospectus). All of the outstanding shares of common stock of the Parent Guarantor (the
“Common Stock”) have been duly authorized and validly issued, are fully paid and nonassessable and have been
issued in compliance with federal and state securities laws. None of the outstanding shares of Common Stock were issued in violation
of any preemptive rights, rights of first refusal or other similar rights to subscribe for or purchase securities of the Parent
Guarantor.
(s) Non-Contravention
of Existing Instruments; No Further Authorizations or Approvals Required. Neither the Parent Guarantor nor any of its
subsidiaries is (i) in violation of its charter, bylaws or other constitutive document or (ii) in default (or, with the giving of
notice or lapse of time, would be in default) (“Default”) under any indenture, mortgage, loan or credit
agreement, note, contract, franchise, lease or other instrument to which the Parent Guarantor or any of its subsidiaries is a party
or by which it or any of them may be bound (including, without limitation, (i) that certain Credit Agreement, dated as of March
18, 2022, by and among Celanese Corporation, Celanese US Holdings LLC, Celanese Europe B.V., certain subsidiaries of Celanese US
Holdings LLC from time to time party thereto as borrowers, each lender from time to time party thereto, Bank of America, N.A., as
administrative agent, a swing line lender and an L/C issuer, and the other financial institutions party thereto and (ii) that
certain Term Loan Credit Agreement, dated as of March 18, 2022, by and among Celanese Corporation, Celanese US Holdings LLC, certain
subsidiaries of Celanese US Holdings LLC from time to time party thereto as borrowers, each lender from time to time party thereto,
Bank of America, N.A., as administrative agent, a swing line lender and an L/C issuer and the other financial institutions parties
thereto), or to which any of the property or assets of the Parent Guarantor or any of its subsidiaries is subject (each, an
“Existing Instrument”), except, in the case of clause (ii) above, for such Defaults as would not, individually or
in the aggregate, result in a Material Adverse Change. The execution, delivery and performance of this Agreement and the Indenture
by the Company and the Guarantors, as applicable, and the issuance and delivery of the Securities, and consummation of the
transactions contemplated hereby and thereby and by the Disclosure Package and the Prospectus (i) have been duly authorized by all
necessary corporate action and will not result in any violation of the provisions of the charter, bylaws or other constitutive
document of the Company or any Guarantor, (ii) will not conflict with or constitute a breach of, or Default or a Debt Repayment
Triggering Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Parent Guarantor or any of its subsidiaries pursuant to, or require the consent of any other party to, any
Existing Instrument, except for such conflicts, breaches, Defaults, liens, charges or encumbrances as would not, individually or in
the aggregate, result in a Material Adverse Change and (iii) will not result in any violation of any law, administrative regulation
or administrative or court decree applicable to the Parent Guarantor or any subsidiary, except for such violations as would not,
individually or in the aggregate, result in a Material Adverse Change. No consent, approval, authorization or other order of, or
registration or filing with, any court or other governmental or regulatory authority or agency is required for the execution,
delivery and performance of this Agreement or the Indenture by the Company and the Guarantors, or the issuance and delivery of the
Securities, or consummation of the transactions contemplated hereby and thereby and by the Disclosure Package and the Prospectus,
except such as have been obtained or made by the Company and are in full force and effect. As used herein, a “Debt
Repayment Triggering Event” means any event or condition which gives, or with the giving of notice or lapse of time would
give, the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the
right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Parent Guarantor or any of
its subsidiaries.
(t) No
Material Actions or Proceedings. Except as otherwise disclosed in the Disclosure Package and the Prospectus, there are no legal or
governmental actions, suits or proceedings pending or, to the best of the Parent Guarantor’s or the Company’s knowledge, threatened
(i) against or affecting the Parent Guarantor or any of its subsidiaries or (ii) which has as the subject thereof any property owned or
leased by, the Parent Guarantor or any of its subsidiaries and that, with respect to any such action, suit or proceeding, if determined
adversely to the Parent Guarantor or such subsidiary would result in a Material Adverse Change or adversely affect the consummation of
the transactions contemplated by this Agreement.
(u) Intellectual
Property Rights. To the knowledge of the Parent Guarantor, the Parent Guarantor and its subsidiaries own or possess sufficient trademarks,
trade names, patent rights, copyrights, trade secrets, licenses of the foregoing and other similar rights (collectively, “Intellectual
Property Rights”) reasonably necessary to conduct their businesses as now conducted; and the expected expiration of any of such
Intellectual Property Rights would not result in a Material Adverse Change. Neither the Parent Guarantor nor any of its subsidiaries has
received any notice of infringement or conflict with asserted Intellectual Property Rights of others (other than any such notice received
more than one year before the date hereof with respect to which no action has been taken during such one (1) year period to the Parent
Guarantor’s knowledge), which infringement or conflict, if the subject of an unfavorable decision, would result in a Material Adverse
Change.
(v) Cyber
Security; Data Protection. Except as would not, individually or in the aggregate, reasonably be expected to result in a Material
Adverse Change, the Parent Guarantor and its subsidiaries’ information technology assets and equipment, computers, systems,
networks, hardware, software, websites, applications, and databases (collectively, “IT Systems”) are adequate
for, and operate and perform in all material respects as required in connection with the operation of the business of the Parent
Guarantor and its subsidiaries as currently conducted. The Parent Guarantor and its subsidiaries have implemented and maintained
commercially reasonable controls, policies, procedures, and safeguards to maintain and protect the integrity, continuous operation,
redundancy and security of all IT Systems and data processed or stored in connection with their businesses, including all personal,
personally identifiable, sensitive, confidential or regulated information and data (“Protected Data”). There have
been no breaches, violations, outages, or unauthorized uses of or accesses to the IT Systems and Protected Data, except for those
that have been remedied without material cost or liability or the duty to notify any other person or any such breaches, violations,
outages or unauthorized uses or accesses to the same that would not, individually or in the aggregate, reasonably be expected to
result in a Material Adverse Change, nor are there any incidents under internal review or investigation relating to the same. The
Parent Guarantor and its subsidiaries are presently in material compliance with all applicable laws or statutes and all judgments,
orders, rules and regulations of any court or arbitrator or governmental or regulatory authority, internal policies and contractual
obligations relating to the privacy and security of IT Systems and Protected Data and to the protection of such IT Systems and
Protected Data from unauthorized use, access, misappropriation or modification.
(w) All
Necessary Permits, etc. Except as would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse
Change, (i) the Parent Guarantor and each of its subsidiaries possess such valid and current certificates, authorizations or permits issued
by the appropriate state, federal or foreign regulatory agencies or bodies necessary to own, lease and operate its properties and to conduct
their respective businesses as described in the Disclosure Package and the Prospectus, and (ii) neither the Parent Guarantor nor any subsidiary
has received any notice of proceedings relating to the revocation or modification of, or non-compliance with, any such certificate, authorization
or permit.
(x) Title
to Properties. Except as otherwise disclosed in the Disclosure Package and the Prospectus, the Parent Guarantor and each of its subsidiaries
has good and marketable title to all the properties and assets reflected as owned in the financial statements referred to in Section 1(p)
hereof (except for any leased properties or assets classified as owned in accordance with GAAP), in each case free and clear of any security
interests, mortgages, liens, encumbrances, equities, claims and other defects, except as disclosed in the Disclosure Package and the Prospectus
and except such as do not materially and adversely affect the value of such property and do not materially interfere with the use made
of such property by the Parent Guarantor or such subsidiary. The real property, improvements, equipment and personal property held under
lease by the Parent Guarantor or any subsidiary are held under valid and enforceable leases, with such exceptions as are not material
and do not materially interfere with the use made of such real property, improvements, equipment or personal property by the Parent Guarantor
or such subsidiary.
(y) Tax
Law Compliance. Except as would not, individually or in the aggregate, result in a Material Adverse Change, (i) the Parent
Guarantor and each of its consolidated subsidiaries has filed all federal, state, provincial, local and foreign tax returns required
to be filed and has paid all taxes (including taxes payable in the capacity of a withholding agent) required to be paid by it and,
if due and payable, any related or similar assessment, fine or penalty levied against it except as may be being contested in good
faith and by appropriate proceedings, (ii) each of the Parent Guarantor and the Acquired Business has made charges, accruals and
reserves in accordance with GAAP in the applicable financial statements referred to in Section 1(p) hereof in respect of all taxes
for all periods as to which the tax liability of the Parent Guarantor or any of its consolidated subsidiaries or the Acquired
Business, as applicable, has not been finally determined and (iii) there is no deficiency, assessment or other claim made in writing
that is due and payable by the Parent Guarantor or any of its consolidated subsidiaries.
(z) Investment
Company Act of 1940, as Amended. Neither the Company nor any Guarantor is required, and upon the issuance and sale of the Securities
as herein contemplated and the application of the net proceeds therefrom as described in the Disclosure Package and the Prospectus will
not be required, to register as an “investment company” under the Investment Company Act of 1940, as amended.
(aa) Insurance. Each of the
Parent Guarantor and its subsidiaries are insured with policies in such amounts and with such deductibles and covering such risks as are
generally deemed adequate and customary for their businesses. The Parent Guarantor has no reason to believe that it or any subsidiary
will not be able (i) to renew its material existing insurance coverage as and when such policies expire or (ii) to obtain comparable coverage
from similar institutions as may be necessary or appropriate to conduct its business as now conducted and at a cost that would not result
in a Material Adverse Change. Neither the Parent Guarantor nor any subsidiary has been denied any material insurance coverage which it
has sought or for which it has applied.
(bb) No Price Stabilization or
Manipulation. None of the Company or any of the Guarantors has taken or will take, directly or indirectly, any action designed to
or that might be reasonably expected to cause or result in stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Securities.
(cc) Solvency. The Parent Guarantor
and its subsidiaries on a consolidated basis are, and immediately after the Closing Date will be, Solvent. As used herein, the term “Solvent”
means, with respect to any person on a particular date, that on such date (i) the fair market value of the assets of such person is greater
than the total amount of liabilities (including contingent liabilities) of such person, (ii) the present fair salable value of the assets
of such person is greater than the amount that will be required to pay the probable liabilities of such person on its debts as they become
absolute and matured, (iii) such person is able to realize upon its assets and pay its debts and other liabilities, including contingent
obligations, as they mature and (iv) such person does not have unreasonably small capital.
(dd) Compliance with Xxxxxxxx-Xxxxx.
The Parent Guarantor and its subsidiaries are in compliance in all material respects with the applicable provisions of the Xxxxxxxx-Xxxxx
Act of 2002 (the “Xxxxxxxx-Xxxxx Act,” which term, as used herein, includes the rules and regulations of the Commission
promulgated thereunder).
(ee) Accounting
System. The Parent Guarantor and its subsidiaries maintain accounting controls that are designed to provide reasonable
assurances that: (i) transactions are executed in accordance with management’s general or specific authorization; (ii)
transactions are recorded as necessary to permit preparation of consolidated financial statements in conformity with GAAP and to
maintain accountability for assets; (iii) access to assets is permitted only in accordance with management’s general or
specific authorization; (iv) the recorded accountability for assets is compared with existing assets at reasonable intervals and
appropriate action is taken with respect to any differences; and (v) the interactive data in eXtensible Business Reporting Language
included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus fairly present the
information called for in all material respects and are prepared in accordance with the Commission's rules and guidelines applicable
thereto.
(ff) Disclosure Controls and Procedures.
The Parent Guarantor has established and maintains disclosure controls and procedures (as such term is defined in Rules 13a-15 and 15d-15
under the Exchange Act); such disclosure controls and procedures are designed to ensure that material information relating to the Parent
Guarantor and its subsidiaries (which, for the avoidance of doubt, are not deemed to include the Acquired Business until the closing of
the Acquisition) is made known to the chief executive officer and chief financial officer of the Parent Guarantor by others within the
Parent Guarantor or any of its subsidiaries, as applicable.
(gg) Regulations T, U, X. Neither
the Company nor any Guarantor nor any of their respective subsidiaries nor any agent thereof acting on their behalf has taken, and none
of them will take, any action that might cause this Agreement or the issuance or sale of the Securities to violate Regulation T, Regulation
U or Regulation X of the Board of Governors of the Federal Reserve System.
(hh) Compliance
with and Liability under Environmental Laws. Except as otherwise disclosed in the Disclosure Package and the Prospectus, or
except as would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Change: (i) each of
the Parent Guarantor and its subsidiaries and their respective operations and facilities are in compliance with, and not subject to
any known liabilities under, applicable Environmental Laws, which compliance includes, without limitation, having obtained and being
in compliance with any permits, licenses or other governmental authorizations or approvals, and having made all filings and provided
all financial assurances and notices, required for the ownership and operation of the business, properties and facilities of the
Parent Guarantor or its subsidiaries under applicable Environmental Laws; (ii) neither the Parent Guarantor nor any of its
subsidiaries has received any written communication, whether from a governmental authority, citizens group, employee or otherwise,
that alleges that the Parent Guarantor or any of its subsidiaries is in violation of any Environmental Law; (iii) there is no claim,
action or cause of action filed with a court or governmental authority, no investigation with respect to which the Parent Guarantor
has received written notice, and no written notice by any person or entity alleging actual or potential liability on the part of the
Parent Guarantor or any of its subsidiaries based on or pursuant to any Environmental Law pending or, to the best of the Parent
Guarantor’s knowledge, threatened against the Parent Guarantor or any of its subsidiaries or any person or entity whose
liability under or pursuant to any Environmental Law the Parent Guarantor or any of its subsidiaries has retained or assumed either
contractually or by operation of law; (iv) neither the Parent Guarantor nor any of its subsidiaries is conducting or paying for, in
whole or in part, any investigation, response or other corrective action pursuant to any Environmental Law at any site or facility,
nor is any of them subject or a party to any order, judgment, decree, contract or agreement which imposes any obligation or
liability under any Environmental Law; (v) no lien, charge, encumbrance or restriction has been recorded pursuant to any
Environmental Law with respect to any assets, facility or property owned, operated or leased by the Parent Guarantor or any of its
subsidiaries; and (vi) to the best of Parent Guarantor’s knowledge, there are no past or present actions, activities,
circumstances, conditions or occurrences, including, without limitation, the Release or threatened Release of any Hazardous
Material, that could reasonably be expected to result in a violation of or liability under any Environmental Law on the part of the
Parent Guarantor or any of its subsidiaries, including without limitation, any such liability which the Parent Guarantor or any of
its subsidiaries has retained or assumed either contractually or by operation of law.
For purposes of this Agreement, “Environment”
means ambient air, indoor air, surface water, groundwater, drinking water, soil, surface and subsurface strata, and natural resources
such as wetlands, flora and fauna. “Environmental Laws” means the common law and all federal, state, local and foreign
laws or regulations, ordinances, codes, orders, decrees, judgments and injunctions issued, promulgated or entered thereunder, relating
to pollution or protection of the Environment or human health, including without limitation, those relating to (i) the Release or threatened
Release of Hazardous Materials; and (ii) the manufacture, processing, distribution, use, generation, treatment, storage, transport, handling
or recycling of Hazardous Materials. “Hazardous Materials” means any substance, material, chemical, waste, compound,
or constituent, in any form, including without limitation, petroleum and petroleum products, defined or regulated under any Environmental
Law as hazardous or toxic. “Release” means any release, spill, emission, discharge, deposit, disposal, leak, pumping,
pouring, dumping, emptying, injection or leaching into the Environment, or into, from or through any building, structure or facility of
Hazardous Materials.
(ii) ERISA
Compliance. Except as would not, individually or in the aggregate, result in a Material Adverse Change, the Parent Guarantor and
its subsidiaries and any “employee benefit plan” (as defined under the Employee Retirement Income Security Act of 1974
as amended, “ERISA,” which term, as used herein, includes the regulations and published interpretations
thereunder) established or maintained by the Parent Guarantor, its subsidiaries or their ERISA Affiliates (as defined below) are in
compliance with ERISA. “ERISA Affiliate” means, with respect to the Parent Guarantor or a subsidiary thereof, any
member of any group of organizations described in Section 414 of the Internal Revenue Code of 1986 (as amended, the
“Code,” which term, as used herein, includes the regulations and published interpretations thereunder) of which
the Parent Guarantor or such subsidiary is a member. Except as would not, individually or in the aggregate, result in a Material
Adverse Change, no “reportable event” (as defined under ERISA) has occurred or is reasonably expected to occur with
respect to any “employee benefit plan” established or maintained by the Parent Guarantor, its subsidiaries or any of
their ERISA Affiliates. Neither the Parent Guarantor, its subsidiaries nor any of their ERISA Affiliates has incurred or reasonably
expects to incur any material liability under (i) Title IV of ERISA with respect to termination of, or withdrawal from (including
any liability under Section 4062(e) of ERISA), any “employee benefit plan” or (ii) Sections 412, 4971, 4975 or 4980B of
the Code. Except as would not, individually or in the aggregate, result in a Material Adverse Change, each “employee benefit
plan” established or maintained by the Parent Guarantor, its subsidiaries or any of their ERISA Affiliates that is intended to
be qualified under Section 401 of the Code is so qualified and nothing has occurred, whether by action or failure to act, which
would cause the loss of such qualification.
(jj) Compliance with Labor Laws.
Except as would not, individually or in the aggregate, result in a Material Adverse Change, (i) there is (A) no unfair labor practice
complaint pending or, to the best of the Parent Guarantor’s knowledge, threatened against the Parent Guarantor or any of its subsidiaries
before the National Labor Relations Board, and no grievance or arbitration proceeding arising out of or under collective bargaining agreements
pending, or to the best of the Parent Guarantor’s knowledge, threatened, against the Parent Guarantor or any of its subsidiaries,
(B) no strike, labor dispute, slowdown or stoppage pending or, to the best of the Parent Guarantor’s knowledge, threatened against
the Parent Guarantor or any of its subsidiaries and (C) no union representation question existing with respect to the employees of the
Parent Guarantor or any of its subsidiaries and, to the best of the Parent Guarantor’s knowledge, no union organizing activities
taking place and (ii) there has been no violation of any federal, state or local law relating to discrimination in hiring, promotion or
pay of employees or of any applicable wage or hour laws.
(kk) No Unlawful Contributions
or Other Payments. Neither the Parent Guarantor nor any of its subsidiaries nor, to the knowledge of the Parent Guarantor, any director,
officer, agent, employee or affiliate of the Parent Guarantor or any of its subsidiaries is aware of or has taken any action, directly
or indirectly, that would result in a violation by such persons of the FCPA or the Xxxxxxx Xxx 0000 of the United Kingdom (the “Bribery
Act”), including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly
in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to
give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA)
or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA or the
Bribery Act; and the Parent Guarantor, its subsidiaries and, to the knowledge of the Parent Guarantor, its affiliates have conducted their
businesses in compliance with the FCPA or the Bribery Act and have instituted and maintain and enforced policies and procedures designed
to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith. No part of the proceeds of the offering
will be used, directly or indirectly, in violation of the FCPA or the Bribery Act, each as may be amended, or similar law of any other
relevant jurisdiction, or the rules or regulations thereunder.
“FCPA” means Foreign
Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder.
(ll) No
Conflict with Money Laundering Laws. The operations of the Parent Guarantor and its subsidiaries are and have been conducted at
all times in compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions
Reporting Act of 1970, as amended, the money laundering statutes of all applicable jurisdictions, the rules and regulations
thereunder and any related or similar rules, regulations or guidelines issued, administered or enforced by any governmental agency
(collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the Parent Guarantor or any of its subsidiaries with respect to
the Money Laundering Laws is pending or, to the best knowledge of the Parent Guarantor, threatened.
(mm) No Conflict with Sanctions
Laws. None of the Parent Guarantor, any of its subsidiaries or, to the knowledge of the Parent Guarantor, any director, officer, agent,
employee, affiliate or representative of the Parent Guarantor or any of its subsidiaries is an individual or entity that is currently,
or is owned or controlled by individuals or entities that are, the subject or target of any sanctions administered or enforced by the
United States Government, including, without limitation, the U.S. Department of the Treasury’s Office of Foreign Assets Control,
the United Nations Security Council, the European Union, Her Majesty’s Treasury, or other relevant sanctions authority (collectively,
“Sanctions”), nor is the Parent Guarantor or any of its subsidiaries, except as otherwise disclosed in the Disclosure
Package and the Prospectus (exclusive of any amendment or supplement thereto), located, organized or resident in a country or territory
that is the subject of Sanctions; and neither the Company nor the Parent Guarantor will, directly or indirectly, use the proceeds of the
sale of the Securities, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other
person, (i) to fund or facilitate any activities of or business with any person, or in any country or territory, that, at the time of
such funding or facilitation, is the subject of Sanctions (currently Crimea region of Ukraine, Cuba, Iran, North Korea, Syria, and the
so-called Donetsk Peoples Republic and so-called Luhansk People’s Republic) or (ii) 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.
The Parent Guarantor and its subsidiaries have instituted and maintain policies and procedures designed to prevent Sanctions violations
(by the Parent Guarantor and its subsidiaries and by persons associated with the Parent Guarantor and its subsidiaries). The representation
in this clause (mm) is provided to (i) each Underwriter domiciled in the European Union only if and to the extent that it does not result
in a violation of the Council Regulation (EC) Xx. 0000/00 xx 00 Xxxxxxxx 0000 (xxx “Blocking Regulation”) or any laws
or regulations implementing the Blocking Regulation in any member state of the European Union, (ii) each Underwriter domiciled in the
United Kingdom if and to the extent that it does not result in a violation of the Blocking Regulation as it forms part of domestic law
by virtue of the European Union (Withdrawal) Act 2018 (“EUWA”) or any similar blocking or anti-boycott law in the United
Kingdom and (iii) Deutsche Bank and any other Underwriter domiciled in Germany only if and to the extent that it does not result in a
violation of Section 7 of the German Foreign Trade Ordinance (Außenwirtschaftsverordnung - AWV) or any other applicable anti-boycott
or similar laws or regulations.
(nn) Application for Exchange Listing.
On or prior to the Closing Date, application will have been made by the Company for the Securities to be listed and admitted to trading
on the New York Stock Exchange (“NYSE”).
(oo) FSMA.
None of the Parent Guarantor or its subsidiaries or any director, officer, agent, employee or Affiliate of the Parent Guarantor or
any of its subsidiaries has distributed or, prior to the later to occur of (i) the Closing Date and (ii) the completion of the
distribution of the Notes, will distribute any material referring to the offering and sale of the Notes other than the Preliminary
Prospectus or Prospectus or other materials, if any, permitted by the Securities Act and the U.K. Financial Services and Markets Act
2000 (the “FSMA”) (or regulations or legislation promulgated pursuant to the Act or the FSMA) or required to be
distributed by the NYSE.
Any certificate signed by an officer of the Company
or any Guarantor and delivered to the Underwriters or to counsel for the Underwriters shall be deemed to be a representation and warranty
by the Company or such Guarantor to each Underwriter as to the matters set forth therein.
SECTION 2. Purchase, Sale and Delivery of
the Securities.
(a) The
Securities. Each of the Company and the Guarantors agrees to issue and sell the Securities to the several Underwriters as provided
in this Agreement, and, subject to the conditions set forth herein, each Underwriter agrees, severally and not jointly, to purchase from
the Company (i) the aggregate principal amount of 2026 Notes set forth opposite such underwriter’s name on Schedule A, at a purchase
price of 99.550% of the principal amount thereof and (ii) the aggregate principal amount of 2029 Notes set forth opposite such underwriter’s
name on Schedule A, at a purchase price of 99.471% of the principal amount thereof (collectively, the “Purchase Amount”),
in each case, payable on the Closing Date and on the basis of the representations, warranties and agreements herein contained, and upon
the terms herein set forth.
(b) The
Closing Date. Delivery of certificates for the Notes in global form to be purchased by the Underwriters and payment therefor shall
be made at the offices of Xxxxxx Xxxxxx & Xxxxxxx LLP, 00 Xxx Xxxx, Xxx Xxxx, XX 00000 (or such other place as may be agreed to by
the Company and the Representatives) at 10:00 a.m. London time, on July 19, 2022, or such other time and date as the Representatives shall
designate by notice to the Company (the time and date of such closing are called the “Closing Date”).
(c) Public Offering of the Notes.
The Representatives hereby advise the Company that the Underwriters intend to offer for sale to the public, as described in the Disclosure
Package and the Prospectus, their respective portions of the Notes as soon after this Agreement has been executed by the Representatives
as, in their sole judgment, they have determined is advisable and practicable.
(d) Payment for the Notes. Payment
for the Notes shall be made on the Closing Date by wire transfer of immediately available funds to the order of the Company.
It is understood that MLI, as a Representative, for its own account
and the accounts of the several Underwriters, will accept delivery of and receipt for, and make payment of the purchase price for, the
Notes. Each of Citigroup, Deutsche Bank, HSBC, X.X. Xxxxxx and MLI individually, and not as a Representative of the Underwriters, may
(but shall not be obligated to (other than pursuant to Section 16 hereof)) make payment for any Notes to be purchased by any Underwriter
whose funds shall not have been received by the Representatives by the Closing Date for the account of such Underwriter, but any such
payment shall not relieve such Underwriter from any of its obligations under this Agreement.
(e) Delivery
of the Securities. Payment for the Securities shall be made by the several Underwriters (either individually or through one of the
Underwriters) by wire transfer payable in same-day funds to the account or accounts specified by the Issuer, and Euroclear and Clearstream
shall credit the Securities to the Commissionaire Account (as defined below) of the Settlement Bank (as defined below). The certificates
for the Notes (the “Global Notes”) shall be in such denominations and registered with the Common Depository, and shall
be made available for inspection on the business day preceding the Closing Date at a location in New York City, as the Representatives
may designate. Time shall be of the essence, and delivery at the time and place specified in this Agreement is a further condition to
the obligations of the Underwriters.
MLI, or such other of the Underwriters as the Company may direct to
settle the Notes (the “Settlement Bank”) acknowledges that the Securities represented by the Global Notes will initially
be credited to an account (the “Commissionaire Account”) for the benefit of the Settlement Bank, the terms of which
will include a third-party beneficiary clause (“stipulation pour autrui”) with the Company as the third-party beneficiary,
and provide that such Notes are to be delivered to others only against payment of the net Purchase Amount (i.e., less the commissions
and expenses to be deducted from the Purchase Amount) into the Commissionaire Account on a delivery against payment basis.
The Settlement Bank acknowledges that (i) the Global Notes shall be
held to the order of the Company as set out above and (ii) the net Purchase Amount received in the Commissionaire Account (i.e.,
less the commissions and expenses deducted from the Purchase Amount) will be held on behalf of the Company until such time as they are
transferred to the Company’s order. The Settlement Bank undertakes that the net Purchase Amount (i.e., less the commissions
and expenses deducted from the Purchase Amount) will be transferred to the Company’s order promptly following receipt of the Purchase
Amount in the Commissionaire Account.
The Company acknowledges and accepts the benefit
of the third-party beneficiary clause (“stipulation pour autrui”) pursuant to the Belgian Civil Code, in the case of
Euroclear, and the Luxembourg Civil Code, in the case of Clearstream, in each case in respect of the Commissionaire Account.
(f) Delivery of Prospectus to the Underwriters.
Not later than 10:00 a.m. New York City time on the second business day following the date the Notes are first released by the Underwriters
for sale to the public, the Company shall deliver or cause to be delivered, copies of the Prospectus in such quantities and at such places
as the Representatives shall reasonably request.
SECTION 3. Additional Covenants. Each
of the Company and the Guarantors, jointly and severally, further covenants and agrees with each Underwriter as follows:
(a) Representative
Review of Proposed Amendments and Supplements. During the period beginning at the Applicable Time and ending on the later of the
Closing Date or such date, as in the opinion of counsel for the Underwriters, the Prospectus is no longer required by law to be
delivered in connection with sales by an Underwriter or dealer, including in circumstances where such requirement may be satisfied
pursuant to Rule 172 of the Securities Act (the “Prospectus Delivery Period”), prior to amending or supplementing
the Registration Statement, the Disclosure Package or the Prospectus, the Company shall furnish to the Representatives for review a
copy of each such proposed amendment or supplement, and the Company shall not file or use any such proposed amendment or supplement
to which the Underwriters reasonably object.
(b) Securities
Act Compliance. After the date of this Agreement and during the Prospectus Delivery Period, the Company shall promptly advise the
Representatives in writing (i) when the Registration Statement, if not effective at the Applicable Time, shall have become effective,
(ii) of the receipt of any comments of, or requests for additional or supplemental information from, the Commission, (iii) of the time
and date of any filing of any post-effective amendment to the Registration Statement or any amendment or supplement to any Preliminary
Prospectus or the Prospectus, (iv) of the time and date that any post-effective amendment to the Registration Statement becomes effective,
and (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order
or notice preventing or suspending the use of the Registration Statement, any Preliminary Prospectus or the Prospectus, or of any receipt
by the Company of any notification with respect to the suspension of the qualification of the Notes for sale in any jurisdiction or of
the threatening or initiation of any proceedings for any of such purposes (including any notice or order pursuant to Section 8A or Rule
401(g)(2) of the Securities Act). The Company shall use commercially reasonable efforts to prevent the issuance of any such stop order
or notice of prevention or suspension of such use. If the Commission shall enter any such stop order or issue any such notice at any time,
the Company will use commercially reasonable efforts to obtain the lifting or reversal of such order or notice at the earliest possible
moment, or, subject to Section 3(a), will file an amendment to the Registration Statement or will file a new registration statement and
use its best efforts to have such amendment or new registration statement declared effective as soon as practicable. Additionally, the
Company agrees that it shall comply with the provisions of Rules 424(b) and 430B, as applicable, under the Securities Act, including with
respect to the timely filing of documents thereunder, and will use commercially reasonable efforts to confirm that any filings made by
the Company under such Rule 424(b) were received in a timely manner by the Commission.
(c) Exchange
Act Compliance. During the Prospectus Delivery Period, the Company will file all documents required to be filed with the Commission
and the New York Stock Exchange (“NYSE”) pursuant to Section 13, 14 or 15 of the Exchange Act in the manner and within
the time periods required by the Exchange Act.
(d) Final
Term Sheet. The Company will prepare a final term sheet in a form approved by the Representatives, and will file such term sheet
pursuant to Rule 433(d) under the Securities Act within the time required by such rule (such term sheet, the “Final Term Sheet”).
(e) Permitted
Free Writing Prospectuses. The Company represents that it has not made, and agrees that, unless it obtains the prior written
consent of the Representatives, it will not make, any offer relating to the Notes that constitutes or would constitute an Issuer
Free Writing Prospectus or that otherwise constitutes or would constitute a “free writing prospectus” (as defined in
Rule 405 of the Securities Act) or a portion thereof required to be filed by the Company with the Commission or retained by the
Company under Rule 433 of the Securities Act; provided that the prior written consent of the Representatives hereto shall be
deemed to have been given in respect of the Free Writing Prospectuses included in Schedule C hereto. Any such free writing
prospectus consented to by the Representatives is hereinafter referred to as a “Permitted Free Writing
Prospectus.” The Company agrees that it (i) has treated and will treat, as the case may be, each Permitted Free Writing
Prospectus as an Issuer Free Writing Prospectus, and (ii) has complied and will comply, as the case may be, with the requirements of
Rules 164 and 433 of the Securities Act applicable to any Permitted Free Writing Prospectus, including in respect of timely filing
with the Commission, legending and record keeping. The Company consents to the use by any Underwriter of a free writing prospectus
that (a) is not an “issuer free writing prospectus” as defined in Rule 433 of the Securities Act, or
(b) contains only (1) information describing the preliminary terms of the Securities or their offering or other
information included in the Disclosure Package, (2) information that describes the final terms of the Securities or their
offering and that is included in the Final Term Sheet of the Company contemplated in Section 1(d) or (3) information permitted
under Rule 134 under the Securities Act; provided that each Underwriter severally covenants with the Company not to take any
action without the Company’s consent which consent shall be confirmed in writing that would result in the Company being
required to file with the Commission under Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf
of such Underwriter that otherwise would not be required to be filed by the Company thereunder, but for the action of such
Underwriter.
(f) Amendments
and Supplements to the Registration Statement, Disclosure Package and Prospectus and Other Securities Act Matters. If at any time
during the Prospectus Delivery Period, (i) any event shall occur or condition shall exist as a result of which any of the Disclosure Package
or the Prospectus 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 any of the Registration Statement, Disclosure Package or the Prospectus to comply with law,
the Company and the Guarantors will immediately notify the Underwriters thereof and forthwith prepare (subject to Section 3(a) hereof),
file with the Commission (and use its commercially reasonable efforts to have any amendment to the Registration Statement or any new registration
statement to be declared effective) and furnish at its own expense to the Underwriters such amendments or supplements to any of the Registration
Statement, Disclosure Package or the Prospectus, or any new registration statement, as may be necessary so that the statements in any
of the Disclosure Package or Prospectus as so amended or supplemented will not, in the light of the circumstances under which they were
made, be misleading or so that any of the Registration Statement, Disclosure Package or Prospectus will comply with all applicable law,
and the Company shall not file or use any such proposed amendment or supplement to which the Underwriters reasonably object.
(g) Copies
of the Prospectus. The Company agrees to furnish the Underwriters, without charge, as many copies of the Prospectus and any
amendments and supplements thereto (including any documents incorporated or deemed incorporated by reference therein) and the
Disclosure Package as the Representatives may request.
(h) Blue
Sky Compliance. Each of the Company and the Guarantors shall cooperate with the Representatives and counsel for the Underwriters to
qualify or register (or to obtain exemptions from qualifying or registering) all or any part of the Securities for offer and sale under
the securities laws of the several states of the United States, the provinces of Canada or any other jurisdictions designated by the Representatives,
shall comply with such laws and shall continue such qualifications, registrations and exemptions in effect so long as required for the
distribution of the Securities. None of the Company or any of the Guarantors shall be required to qualify as a foreign corporation or
to take any action that would subject it to general service of process in any such jurisdiction where it is not presently qualified or
where it would be subject to taxation as a foreign corporation. The Company will advise the Representatives promptly of the suspension
of the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction
or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification,
registration or exemption, each of the Company and the Guarantors shall use its best efforts to obtain the withdrawal thereof at the earliest
possible moment.
(i) Use
of Proceeds. The Company shall apply the net proceeds from the sale of the Securities sold by it in the manner described under the
caption “Use of Proceeds” in the Disclosure Package and the Prospectus.
(j) Euroclear
and Clearstream. The Company will cooperate with the Underwriters and use its best efforts to permit the Securities to be eligible
for clearance and settlement through the facilities of Euroclear and Clearstream and to maintain such eligibility for so long as the Securities
remain outstanding.
(k) Filing
Fees. The Company agrees to pay the required Commission filing fees relating to the Securities within the time required by Rule 456(b)(1)
of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities
Act.
(l) Future
Reports to the Representatives. During the period of two years hereafter the Company will furnish to the Representatives (i) to the
extent not available on the Commission’s Next-Generation XXXXX filing system, as soon as practicable after the end of each fiscal
year, copies of the Annual Report of the Company containing the balance sheet of the Company as of the close of such fiscal year and statements
of income, stockholders’ equity and cash flows for the year then ended and the opinion thereon of the Company’s independent
public or certified public accountants; and (ii) to the extent not available on the Commission’s Next-Generation XXXXX filing system,
as soon as practicable after the filing thereof, copies of each proxy statement, Annual Report on Form 10-K, Quarterly Report on Form
10-Q, Current Report on Form 8-K or other report filed by the Company with the Commission, the Financial Industry Regulatory Authority,
Inc. (“FINRA”) or any securities exchange.
(m) No
Manipulation of Price. Neither the Company nor any Guarantor will take, directly or indirectly, any action designed to cause or result
in, or that has constituted or might reasonably be expected to constitute, under the Exchange Act or otherwise, the stabilization or manipulation
of the price of any securities of the Company to facilitate the sale or resale of the Securities.
(n) Notice
of Inability to Use Automatic Shelf Registration Statement Form. If at any time during the Prospectus Delivery Period, the Company
receives from the Commission a notice pursuant to Rule 401(g)(2) of the Securities Act or otherwise ceases to be eligible to use
the automatic shelf registration statement form, the Company will (i) promptly notify the Representatives, (ii) promptly file
a new registration statement or post-effective amendment on the proper form relating to the Notes, in a form satisfactory to the Representatives,
(iii) use its best efforts to cause such registration statement or post-effective amendment to be declared effective and (iv) promptly
notify the Representatives of such effectiveness. The Company will take all other action necessary or appropriate to permit the public
offering and sale of the Notes to continue during the Prospectus Delivery Period as contemplated in the registration statement that was
the subject of the Rule 401(g)(2) notice or for which the Company has otherwise become ineligible. References herein to the Registration
Statement shall include such new registration statement or post-effective amendment, as the case may be.
(o) Exchange
Listing. The Company will use its reasonable efforts to cause the Securities to be listed and admitted to trading on the NYSE following
the Closing Date and maintain such listing as long as the Securities are outstanding.
(p) Earnings
Statement. As soon as practicable, the Company will make generally available to its security holders and to the Representatives
an earnings statement (which need not be audited) covering a period of at least twelve months beginning with the first fiscal quarter
of the Company occurring after the “effective date” (as defined in Rule 158 under the Securities Act) of the Registration
Statement.
(q) Stabilization.
In connection with the issuance of the Securities, the Company hereby authorizes MLI (in this capacity, the “Stabilizing Manager”)
(or any person acting on behalf of the Stabilizing Manager) to (i) overallot 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 and (ii) make adequate public disclosure
regarding stabilization of the information required in relation to such stabilization by any applicable law or regulation.
In connection with the issue of the
Securities, the Stabilizing Manager (or any person acting on behalf of the Stabilizing Manager) may 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 stabilization 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 calendar days after the issue of the Securities and 60 calendar 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 it at any time. Nothing contained in this paragraph shall be construed so as to require the Company to issue in
excess of the aggregate principal amount of Securities specified in Schedule A hereto.
The Representatives on behalf of the several Underwriters, may, in
their sole discretion, waive in writing the performance by the Company or any Guarantor of any one or more of the foregoing covenants
or extend the time for their performance.
SECTION
4. Payment of Expenses. Each of the Company and the Guarantors, jointly and severally,
agrees to pay all costs, fees and expenses incurred in connection with the performance of its obligations hereunder and in
connection with the transactions contemplated hereby, including, without limitation, (i) all expenses incident to the issuance and
delivery of the Securities (including all printing and engraving costs), (ii) all necessary issue, transfer and other stamp taxes in
connection with the issuance and sale of the Securities to the Underwriters, (iii) all fees and expenses of the Company’s and
the Guarantors’ counsel, independent public or certified public accountants and other advisors, (iv) all costs and expenses
incurred in connection with the preparation, printing, filing, shipping and distribution of the Registration Statement (including
financial statements, exhibits, schedules, consents and certificates of experts), each Issuer Free Writing Prospectus, each
Preliminary Prospectus and the Prospectus, and all amendments and supplements thereto, and the mailing and delivering of copies
thereof to the Underwriters and dealers, this Agreement, the Indenture and the Securities, (v) all filing fees, reasonable
attorneys’ fees and expenses incurred by the Company, the Guarantors or the Underwriters in connection with qualifying or
registering (or obtaining exemptions from the qualification or registration of) all or any part of the Securities for offer and sale
under the securities laws of the several states of the United States, the provinces of Canada or other jurisdictions reasonably
designated by the Underwriters (including, without limitation, the cost of preparing, printing and mailing preliminary and final
blue sky or legal investment memoranda) and any related supplements to the Disclosure Package or the Prospectus, (vi) the fees and
expenses of the Trustee and the Paying Agent, including the fees and disbursements of counsel for the Trustee and the Paying Agent
in connection with the Indenture and the Securities, (vii) any fees payable in connection with the rating of the Securities with the
ratings agencies, (viii) any filing fees incident to, and any reasonable fees and disbursements of counsel to the Underwriters in
connection with the review by FINRA, if any, of the terms of the sale of the Securities, (ix) all fees and expenses (including
reasonable fees and expenses of counsel) of the Company and the Guarantors in connection with approval of the Securities for
clearance and settlement through Euroclear and Clearstream, as applicable, and the performance by the Company and the Guarantors of
their respective other obligations under this Agreement, (x) all reasonable and documented out-of-pocket costs and expenses in
connection with the “roadshow” and any other meetings with prospective investors in the Securities, including the
transportation and other expenses incurred by or on behalf of the Underwriters, (xi) all other fees, costs and expenses
referred to in Item 14 of Part II of the Registration Statement, (xii) all expenses, costs and listing fees in connection with the
application for the listing of the Securities on the NYSE, and (xiii) all other costs and expenses incident to the performance of
their obligations hereunder which are not otherwise specifically provided for in this Section 4. Except as provided in this
Section 4 and Sections 6, 7 and 8 hereof, the Underwriters shall pay their own expenses, including the fees and
disbursements of their counsel. Each Underwriter agrees to pay the portion of such expenses represented by such Underwriter’s
pro rata share (based on the proportion that the principal amount of Securities set forth opposite each Underwriter’s name in
Schedule A bears to the aggregate principal amount of Securities set forth opposite the names of all Underwriters) of the Securities
(with respect to each Underwriter, the “Pro Rata Expenses”).
SECTION 5. Conditions of the Obligations
of the Underwriters. The obligations of the several Underwriters to purchase and pay for the Securities as provided herein on the
Closing Date shall be subject to the accuracy of the representations and warranties on the part of the Company and the Guarantors set
forth in Section 1 hereof as of the date hereof and as of the Closing Date as though then made and to the timely performance by the Company
of its covenants and other obligations hereunder, and to each of the following additional conditions:
(a) Accountants’
Comfort Letter. On the date hereof, the Underwriters shall have received from each (i) KPMG LLP, the independent registered public
accounting firm for the Parent Guarantor and (ii) Pricewaterhouse Coopers LLP, the independent registered public accounting firm for the
Acquired Business, a “comfort letter” dated the date hereof addressed to the Underwriters, in form and substance satisfactory
to the Representatives, covering the financial information in the Disclosure Package and other customary matters. In addition, on the
Closing Date, the Underwriters shall have received from each such accountants a “bring-down comfort letter” dated the Closing
Date addressed to the Underwriters, in form and substance satisfactory to the Representatives, in the form of the “comfort letters”
delivered on the date hereof, except that (i) they shall cover the financial information in the Prospectus and any amendment or supplement
thereto and (ii) procedures shall be brought down to a date no more than 3 business days prior to the Closing Date.
(b) Compliance
with Registration Requirements; No Stop Order; No Objection from FINRA. For the period from and after effectiveness of this Agreement
and prior to the Closing Date and, with respect to the Securities:
(i) the
Company shall have filed the Prospectus with the Commission (including the information required by Rules 430A, 430B and 430C under the
Securities Act) in the manner and within the time period required by Rule 424(b) under the Securities Act;
(ii) the
Final Term Sheet, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have
been filed with the Commission within the applicable time periods prescribed for such filings under such Rule 433; and
(iii) no
stop order suspending the effectiveness of the Registration Statement, or any post-effective amendment to the Registration
Statement, shall be in effect and no proceedings for such purpose or pursuant to Section 8A of the Securities Act shall have been
instituted or threatened by the Commission; and the Company shall not have received from the Commission any notice pursuant to Rule
401(g)(2) of the Securities Act objecting to use of the automatic shelf registration statement form.
(c) No
Material Adverse Change or Ratings Agency Change. For the period from and after the date of this Agreement and prior to the Closing
Date:
(i) in
the judgment of the Representatives there shall not have occurred any Material Adverse Change; and
(ii) there
shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading in the rating accorded
the Parent Guarantor or any of its subsidiaries or any of their securities or indebtedness by any “nationally recognized statistical
rating organization” as such term is defined in Section 3(a)(62) of the Exchange Act.
(d) Opinion
of Counsel for the Company. On the Closing Date, the Underwriters shall have received the opinion of Xxxxxx, Xxxx & Xxxxxxxx LLP,
counsel for the Company, dated as of such Closing Date, the form of which is attached as Exhibit A.
(e) Opinion
of Counsel for the Underwriters. On the Closing Date, the Underwriters shall have received the favorable opinion of Xxxxxx Xxxxxx
& Xxxxxxx LLP, counsel for the Underwriters, dated as of such Closing Date, with respect to such matters as may be reasonably requested
by the Underwriters.
(f) Officers’
Certificate. On the Closing Date the Underwriters shall have received a written certificate executed by an executive officer and a
principal financial or accounting officer of the Company, dated as of the Closing Date, to the effect set forth in Section 5(c)(ii)
hereof, and further to the effect that:
(i) for
the period from and after the date of this Agreement and prior to the Closing Date there has not occurred any Material Adverse Change;
(ii) the
representations and warranties of the Company and the Guarantors set forth in Section 1 hereof were true and correct as of the date
hereof and are true and correct as of the Closing Date with the same force and effect as though expressly made on and as of the Closing
Date; and
(iii) the
Company and the Guarantors have complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied
at or prior to the Closing Date.
(g) Indenture;
Securities. The Company and the Guarantors shall have executed and delivered the Indenture and the Securities, in form and
substance reasonably satisfactory to the Underwriters, and the Underwriters shall have received executed copies thereof.
(h) Additional
Documents. On or before the Closing Date, the Underwriters and counsel for the Underwriters shall have received such information,
documents and opinions as they may reasonably require for the purposes of enabling them to pass upon the issuance and sale of the Securities
as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any
of the conditions or agreements, herein contained.
(u) Euroclear
and Clearstream. The Securities shall be eligible for clearance and settlement through Euroclear and Clearstream.
If any condition specified in this Section 5
is not satisfied when and as required to be satisfied, this Agreement may be terminated by the Representatives by notice to the Company
at any time on or prior to the Closing Date, which termination shall be without liability on the part of any party to any other party,
except that Sections 4, 6, 7 and 8 hereof shall at all times be effective and shall survive such termination.
SECTION 6. Reimbursement of Underwriters’
Expenses. If this Agreement is terminated by the Representatives pursuant to Section 5 or Section 9(i)(x) or (iv) hereof, including
if the sale to the Underwriters of the Securities on the Closing Date is not consummated because of any refusal, inability or failure
on the part of the Company or any Guarantor to perform any agreement herein or to comply with any provision hereof, the Company and the
Guarantors, jointly and severally, agree to reimburse the Underwriters, severally, upon demand for all out-of-pocket expenses that shall
have been reasonably incurred by the Underwriters in connection with the proposed purchase and the offering and sale of the Securities,
including, without limitation, fees and disbursements of counsel, printing expenses, travel expenses, postage, facsimile and telephone
charges.
SECTION 7. Indemnification.
(a) Indemnification
of the Underwriters. Each of the Company and the Guarantors, jointly and severally, agrees to indemnify and hold harmless each
Underwriter, its affiliates, directors, officers and employees, and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act against any loss, claim, damage, liability or
expense, as incurred, to which such Underwriter, affiliate, director, officer, employee or controlling person may become subject,
under the Securities Act, the Exchange Act or other federal or state statutory law or regulation, or at common law or otherwise
(including in settlement of any litigation, if such settlement is effected with the written consent of the Company), insofar as such
loss, claim, damage, liability or expense (or actions in respect thereof as contemplated below) arises out of or is based upon (i)
any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, or any amendment
thereto, including any information deemed to be a part thereof pursuant to Rule 430B or 430C under the Securities Act, or the
omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein
not misleading; or (ii) upon any untrue statement or alleged untrue statement of a material fact contained in any Issuer Free
Writing Prospectus, any Preliminary Prospectus or the Prospectus (or any amendment or supplement thereto), or the omission or
alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; and to reimburse each Underwriter and each such affiliate, director, officer, employee
or controlling person for any and all expenses (including the reasonable fees and disbursements of counsel chosen by the
Representatives) as such expenses are reasonably incurred by such Underwriter or such affiliate, director, officer, employee or
controlling person in connection with investigating, defending, settling, compromising or paying any such loss, claim, damage,
liability, expense or action; provided, however, that the foregoing indemnity agreement shall not apply, with respect
to an Underwriter, to any loss, claim, damage, liability or expense to the extent, but only to the extent, arising out of or based
upon any untrue statement or alleged untrue statement or omission or alleged omission made in reliance upon and in conformity with
written information furnished to the Company by such Underwriter through the Representatives expressly for use in the Registration
Statement, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Prospectus (or any amendment or supplement
thereto), it being understood and agreed that the only such information furnished by the Underwriters through the Representatives
consists of the information described as such in Section 7(b) hereof. The indemnity agreement set forth in this Section 7(a)
shall be in addition to any liabilities that the Company or the Guarantors may otherwise have.
(b) Indemnification
of the Company and the Guarantors. Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the
Company, each Guarantor, each officer of the Company or a Guarantor who signed the Registration Statement, each of their respective
directors and each person, if any, who controls the Company or any Guarantor within the meaning of the Securities Act or the
Exchange Act, against any loss, claim, damage, liability or expense, as incurred, to which the Company, any Guarantor, any officer
of the Company or a Guarantor who signed the Registration Statement or any such director or controlling person may become subject,
under the Securities Act, the Exchange Act, or other federal or state statutory law or regulation, or at common law or otherwise
(including in settlement of any litigation, if such settlement is effected with the written consent of such Underwriter), insofar as
such loss, claim, damage, liability or expense (or actions in respect thereof as contemplated below) arises out of or is based upon
any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, any Issuer Free Writing
Prospectus, any Preliminary Prospectus or the Prospectus (or any amendment or supplement thereto), or the omission or alleged
omission therefrom of 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 to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in the Registration Statement, any Issuer Free Writing Prospectus, any
Preliminary Prospectus or the Prospectus (or any amendment or supplement thereto), in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the Representatives expressly for use therein; and to reimburse the
Company, any Guarantor and each such director or controlling person for any and all expenses (including the fees and disbursements
of counsel) as such expenses are reasonably incurred by the Company, any Guarantor or such director or controlling person in
connection with investigating, defending, settling, compromising or paying any such loss, claim, damage, liability, expense or
action. Each of the Company and the Guarantors hereby acknowledges that the only information that the Underwriters through the
Representatives have furnished to the Company expressly for use in the Registration Statement, any Issuer Free Writing Prospectus,
any Preliminary Prospectus or the Prospectus (or any amendment or supplement thereto) are the statements set forth in the eleventh
paragraph (beginning “Neither we nor any of the underwriters...”) under the caption “Underwriting” in the
Prospectus. The indemnity agreement set forth in this Section 7(b) shall be in addition to any liabilities that each Underwriter may
otherwise have.
(c) Notifications
and Other Indemnification Procedures. Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement
of any action, such indemnified party will, if a claim in respect thereof is to be made against an indemnifying party under this Section
7, notify the indemnifying party in writing of the commencement thereof; provided that the failure to so notify the indemnifying
party will not relieve it from any liability which it may have to any indemnified party under this Section 7 except to the extent that
it has been materially prejudiced by such failure (through the forfeiture of substantive rights and defenses) and shall not relieve the
indemnifying party from any liability that the indemnifying party may have to an indemnified party other than under this Section 7. In
case any such action is brought against any indemnified party and such indemnified party seeks or intends to seek indemnity from an indemnifying
party, the indemnifying party will be entitled to participate in and, to the extent that it shall elect, jointly with all other indemnifying
parties similarly notified, by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof with counsel reasonably satisfactory to such indemnified party; provided, however,
if the defendants in any such action include both the indemnified party and the indemnifying party and the indemnified party shall have
reasonably concluded that a conflict may arise between the positions of the indemnifying party and the indemnified party in conducting
the defense of any such action or that there may be legal defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, the indemnified party or parties shall have the right to select separate
counsel to assume such legal defenses and to otherwise participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified party of such indemnifying party’s election so to
assume the defense of such action and approval by the indemnified party of counsel, the indemnifying party will not be liable to such
indemnified party under this Section 7 for any legal or other expenses of counsel subsequently incurred by such indemnified party in connection
with the defense thereof unless (i) the indemnified party shall have employed separate counsel in accordance with the proviso to the immediately
preceding sentence (it being understood, however, that the indemnifying party shall not be liable for the expenses of more than one separate
counsel (together with local counsel (in each jurisdiction)), which shall be selected by the Representatives (in the case of counsel representing
the Underwriters or their related persons), representing the indemnified parties who are parties to such action) or (ii) the indemnifying
party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time
after notice of commencement of the action, in each of which cases the fees and expenses of counsel shall be at the expense of the indemnifying
party.
(d) Settlements. The
indemnifying party under this Section 7 shall not be liable for any settlement of any proceeding effected without its written
consent, which will not be unreasonably withheld, but if settled with such consent or if there be a final judgment for the
plaintiff, the indemnifying party agrees to indemnify the indemnified party against any loss, claim, damage, liability or expense by
reason of such settlement or judgment. No indemnifying party shall, without the prior written consent of the indemnified party,
effect any settlement, compromise or consent to the entry of judgment in any pending or threatened action, suit or proceeding in
respect of which any indemnified party is or could have been a party and indemnity was or could have been sought hereunder by such
indemnified party, unless such settlement, compromise or consent (i) includes an unconditional release of such indemnified party
from all liability on claims that are the subject matter of such action, suit or proceeding and (ii) does not include any statements
as to or any findings of fault, culpability or failure to act by or on behalf of any indemnified party.
SECTION 8. Contribution. If the indemnification
provided for in Section 7 hereof is for any reason held to be unavailable to or otherwise insufficient to hold harmless an indemnified
party in respect of any losses, claims, damages, liabilities or expenses referred to therein, then each indemnifying party shall contribute
to the aggregate amount paid or payable by such indemnified party, as incurred, as a result of any losses, claims, damages, liabilities
or expenses referred to therein (i) in such proportion as is appropriate to reflect the relative benefits received by the Company and
the Guarantors, on the one hand, and the Underwriters, on the other hand, from the offering of the Securities pursuant to this Agreement
or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the relative fault of the Company and the Guarantors, on the one
hand, and the Underwriters, on the other hand, in connection with the statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company and the
Guarantors, on the one hand, and the Underwriters, on the other hand, in connection with the offering of the Securities pursuant to this
Agreement shall be deemed to be in the same respective proportions as the total net proceeds from the offering of the Securities pursuant
to this Agreement (before deducting expenses) received by the Company, and the total underwriting discount received by the Underwriters,
in each case as set forth on the front cover page of the Prospectus, bear to the aggregate initial offering price of the Securities. The
relative fault of the Company and the Guarantors, on the one hand, and the Underwriters, on the other hand, shall be determined by reference
to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state
a material fact relates to information supplied by the Company and the Guarantors, on the one hand, or the Underwriters, on the other
hand, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or
omission.
The amount paid or payable by a party as a result
of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set
forth in Section 7 hereof, any legal or other fees or expenses reasonably incurred by such party in connection with investigating
or defending any action or claim. The provisions set forth in Section 7 hereof with respect to notice of commencement of any action
shall apply if a claim for contribution is to be made under this Section 8; provided, however, that no additional notice
shall be required with respect to any action for which notice has been given under Section 7 hereof for purposes of indemnification.
The Company, the Guarantors and the Underwriters
agree that it would not be just and equitable if contribution pursuant to this Section 8 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 which does not take account of the
equitable considerations referred to in this Section 8.
Notwithstanding the provisions of this
Section 8, no Underwriter shall be required to contribute any amount in excess of the underwriting discount received by such
Underwriter in connection with the Securities distributed by it. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11 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 8 are several, and not joint, in
proportion to their respective underwriting commitments as set forth opposite their names in Schedule A. For purposes of this
Section 8, each affiliate, director, officer and employee of an Underwriter and each person, if any, who controls an Underwriter
within the meaning of the Securities Act and the Exchange Act shall have the same rights to contribution as such Underwriter, and
each director of the Company or any Guarantor, each officer of the Company or a Guarantor who signed the Registration Statement and
each person, if any, who controls the Company or any Guarantor with the meaning of the Securities Act and the Exchange Act shall
have the same rights to contribution as the Company and the Guarantors.
SECTION 9. Termination of this Agreement.
Prior to the Closing Date, this Agreement may be terminated by the Representatives by notice given to the Company if at any time: (i) (x)
trading or quotation in any of the Company’s securities shall have been suspended or limited on any exchange or in any over-the-counter
market or (y) trading in securities generally on the Nasdaq Stock Market, the NYSE, the London Stock Exchange or the Luxembourg Exchange
or the over-the-counter market shall have been suspended or materially limited, or minimum or maximum prices shall have been generally
established on any of such quotation system or stock exchange by the Commission or FINRA; (ii) a general banking moratorium shall have
been declared by any of U.S. federal, New York, Delaware or United Kingdom government or regulatory authorities or other authorities in
the European Union; (iii) there shall have occurred any outbreak or escalation of national or international hostilities or any international
or national crisis or calamity, or any change or development involving a prospective change in the United States or international financial
markets, 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 in the manner and on the terms described in the Disclosure Package or the Prospectus
or to enforce contracts for the sale of securities or (iv) in the judgment of the Representatives there shall have occurred any Material
Adverse Change. Any termination pursuant to this Section 9 shall be without liability on the part of (i) the Company or any Guarantor
to any Underwriter, except that the Company and the Guarantors shall be obligated to reimburse the expenses of the Underwriters to the
extent required by Sections 4 and 6 hereof, (ii) any Underwriter to the Company, or (iii) any party hereto to any other party except that
the provisions of Sections 7 and 8 hereof shall at all times be effective and shall survive such termination.
SECTION 10. Representations and Indemnities
to Survive Delivery. The respective indemnities, agreements, representations, warranties and other statements of the Company, the
Guarantors, their respective officers and the several Underwriters set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation made by or on behalf of any Underwriter, the Company, any Guarantor or any of their
partners, officers or directors or any controlling person, as the case may be, and will survive delivery of and payment for the Securities
sold hereunder and any termination of this Agreement.
SECTION 11. Notices. All communications
hereunder shall be in writing and shall be mailed, hand delivered, couriered or facsimiled and confirmed to the parties hereto as follows:
If to the Underwriters:
Citigroup Global Markets Limited
Citigroup Centre
Canada Square
Xxxxxx Xxxxx
Xxxxxx X00 0XX
Xxxxxx Xxxxxxx
|
Facsimile: |
x00 00 0000 0000 |
|
Attention: |
Syndicate Desk |
Deutsche Bank AG, London Branch
Winchester House
1 Great Xxxxxxxxxx Xxxxxx
Xxxxxx
XX0X 0XX
Xxxxxx Xxxxxxx
|
Facsimile: |
+ 44 207 545 4361 |
|
Email: |
xxx_xxxxxxx.xxxxxx@xxxx.xx.xxx |
|
Attention: |
DCM Debt Syndicate |
HSBC Bank plc
0 Xxxxxx Xxxxxx
Xxxxxx X00 0XX
Xxxxxx Xxxxxxx
|
Telephone: |
x00 00 0000 0000 |
|
Facsimile: |
x00 00 0000 0000 |
|
Email: |
xxxxxxxxxxx.xxxxxxxxxx@xxxxxx.xxx |
|
Attention: |
Head of DCM Legal |
X.X. Xxxxxx Securities plc
00 Xxxx Xxxxxx
Xxxxxx Xxxxx
Xxxxxx X00 0XX
Xxxxxx Xxxxxxx
|
Email: |
xxxx_xxxxxxxxx@xxxxxxxx.xxx |
|
Attention: |
Head of International Syndicate |
Xxxxxxx Xxxxx International
0 Xxxx Xxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Xxxxxx Xxxxxxx
|
Facsimile: |
x00 (0)00 0000 0000 |
|
Attention: |
Syndicate Desk |
with a copy to:
Xxxxxx Xxxxxx & Xxxxxxx LLP
00 Xxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
|
Facsimile: |
212-269-5420 |
|
Attention: |
Xxxx X. Xxxxxxxxx, Esq. |
If to the Company or the Guarantors:
Celanese Corporation
000 X. Xxx Xxxxxxx Xxxx.
Xxxxx 000X
Xxxxxx, Xxxxx 00000
|
Facsimile: |
000-000-0000 |
|
Attention: |
General Counsel |
Any party hereto may change the address or facsimile
number for receipt of communications by giving written notice to the others.
SECTION 12. Successors. This Agreement
will inure to the benefit of and be binding upon the parties hereto, and to the benefit of the indemnified parties referred to in Sections 7
and 8 hereof, and in each case their respective successors, and no other person will have any right or obligation hereunder.
SECTION 13. Authority of the Representatives.
Any action by the Underwriters hereunder may be taken by Citigroup, Deutsche Bank, HSBC, X.X. Xxxxxx and MLI on behalf of the Underwriters,
and any such action taken by Citigroup, Deutsche Bank, HSBC, X.X. Xxxxxx and MLI shall be binding upon the Underwriters.
SECTION 14. Partial Unenforceability.
The invalidity or unenforceability of any section, paragraph or provision of this Agreement shall not affect the validity or enforceability
of any other section, paragraph or provision hereof. If any section, paragraph or provision of this Agreement is for any reason determined
to be invalid or unenforceable, there shall be deemed to be made such minor changes (and only such minor changes) as are necessary to
make it valid and enforceable.
SECTION
15. Governing Law; Submission to Jurisdiction; Waiver of Jury Trial. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN
SUCH STATE WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THEREOF. Any legal suit, action or proceeding arising out of or based upon
this Agreement or the transactions contemplated hereby (“Related Proceedings”) may be instituted in the federal courts
of the United States of America located in the City and County of New York or the courts of the State of New York in each case
located in the City and County of New York (collectively, the “Specified Courts”), and each party irrevocably submits to
the exclusive jurisdiction (except for suits, actions, or proceedings instituted in regard to the enforcement of a judgment of any
Specified Court in a Related Proceeding (a “Related Judgment”), as to which such jurisdiction is non-exclusive) of the
Specified Courts in any Related Proceeding. Service of any process, summons, notice or document by mail to such party’s
address set forth above shall be effective service of process for any Related Proceeding brought in any Specified Court. The parties
irrevocably and unconditionally waive any objection to the laying of venue of any Related Proceeding in the Specified Courts and
irrevocably and unconditionally waive and agree not to plead or claim in any Specified Court that any Related Proceeding brought in
any Specified Court has been brought in an inconvenient forum. THE PARTIES HERETO HEREBY IRREVOCABLY WAIVE, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 16. Default of One or More of the
Several Underwriters. If any one or more of the several Underwriters shall fail or refuse to purchase Securities of any applicable
series that it or they have agreed to purchase hereunder on the Closing Date, and the aggregate number of Securities which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase does not exceed 10% of the aggregate number of the Securities of
the applicable series to be purchased on such date, the other Underwriters of such series shall be obligated, severally, in the proportions
that the number of Securities of such series set forth opposite their respective names on Schedule A bears to the aggregate number of
Securities of such series set forth opposite the names of all such non-defaulting Underwriters, or in such other proportions as may be
specified by the Underwriters of such series with the consent of the non-defaulting Underwriters of such series, to purchase the applicable
Securities which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase on the Closing Date. If any one
or more of the Underwriters of any series shall fail or refuse to purchase Securities of such series and the aggregate number of Securities
of such series with respect to which such default occurs exceeds 10% of the aggregate number of Securities of such series to be purchased
on the Closing Date, and arrangements satisfactory to the Underwriters and the Company for the purchase of such Securities are not made
within 48 hours after such default, this Agreement shall terminate with respect to such series without liability of any party to any other
party except that the provisions of Sections 4, 6, 7 and 8 hereof shall at all times be effective and shall survive such termination.
In any such case either the applicable Underwriters or the Company shall have the right to postpone the Closing Date, as the case may
be, but in no event for longer than seven days in order that the required changes, if any, to the Registration Statement, any Issuer Free
Writing Prospectus, any Preliminary Prospectus or the Prospectus or any other documents or arrangements may be effected.
For the avoidance of doubt, to the extent an Underwriter’s
obligation to purchase the Securities hereunder constitutes a BRRD Liability (as defined below) or a UK Bail-In Liability (as defined
below) and such Underwriter does not, at the Closing Time, purchase the full amount of the Securities that it has agreed to purchase hereunder
due to the exercise by the Relevant Resolution Authority (as defined below) or the relevant UK resolution authority of its powers under
the relevant Bail-in Legislation as set forth in Section 21 with respect to such BRRD Liability or UK Bail-In Liability, such Underwriter
shall be deemed, for all purposes of this Section 16, to have defaulted on its obligation to purchase such Securities that it has agreed
to purchase hereunder but has not purchased, and this Section 16 shall remain in full force and effect with respect to the obligations
of the other Underwriters.
As used
in this Agreement, the term “Underwriter” shall be deemed to include any person substituted for a defaulting Underwriter
under this Section 16. Any action taken under this Section 16 shall not relieve any defaulting Underwriter from liability in respect
of any default of such Underwriter under this Agreement.
SECTION 17. No Advisory or Fiduciary Responsibility.
Each of the Company and the Guarantors acknowledges and agrees that: (i) the purchase and sale of the Securities pursuant to this Agreement,
including the determination of the offering price of the Securities and any related discounts and commissions, is an arm’s-length
commercial transaction between the Company and the Guarantors, on the one hand, and the several Underwriters, on the other hand, and the
Company and the Guarantors are capable of evaluating and understanding and understand and accept the terms, risks and conditions of the
transactions contemplated by this Agreement; (ii) in connection with each transaction contemplated hereby and the process leading to such
transaction each Underwriter is and has been acting solely as a principal and is not the agent or fiduciary of the Company and the Guarantors
or their respective affiliates, stockholders, creditors or employees or any other party; (iii) no Underwriter has assumed or will assume
an advisory or fiduciary responsibility in favor of the Company and the Guarantors with respect to any of the transactions contemplated
hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company and the
Guarantors on other matters) or any other obligation to the Company and the Guarantors except the obligations expressly set forth in this
Agreement; (iv) the several Underwriters and their respective affiliates may be engaged in a broad range of transactions that involve
interests that differ from those of the Company and the Guarantors, and the several Underwriters have no obligation to disclose any of
such interests by virtue of any fiduciary or advisory relationship; and (v) the Underwriters have not provided any legal, accounting,
regulatory or tax advice with respect to the offering contemplated hereby, and the Company and the Guarantors have consulted their own
legal, accounting, regulatory and tax advisors to the extent they deemed appropriate.
This Agreement supersedes all prior agreements
and understandings (whether written or oral) between the Company, the Guarantors and the several Underwriters, or any of them, with respect
to the subject matter hereof. The Company and the Guarantors hereby waive and release, to the fullest extent permitted by law, any claims
that the Company and the Guarantors may have against the several Underwriters with respect to any breach or alleged breach of fiduciary
duty.
SECTION 18. General
Provisions. This Agreement constitutes the entire agreement of the parties to this Agreement and supersedes all prior written or
oral and all contemporaneous oral agreements, understandings and negotiations with respect to the subject matter hereof. This
Agreement may be executed in two or more counterparts, each one of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument. Any signature to this Agreement may be delivered by facsimile,
electronic mail (including pdf) or any electronic signature complying with the U.S. Federal ESIGN Act of 2000 or the New York
Electronic Signature and Records Act or other transmission method and any counterpart so delivered shall be deemed to have been duly
and validly delivered and be valid and effective for all purposes to the fullest extent permitted by applicable law. Each of the
parties hereto represents and warrants to the other parties that it has the capacity and authority to execute this Agreement through
electronic means.. This Agreement may not be amended or modified unless in writing by all of the parties hereto, and no condition
herein (express or implied) may be waived unless waived in writing by each party whom the condition is meant to benefit. The section
headings herein are for the convenience of the parties only and shall not affect the construction or interpretation of this
Agreement.
SECTION 19. Judgment Currency. If for
the purposes of obtaining judgment in any court it is necessary to convert a sum due hereunder into any currency other than Euros, the
parties hereto agree, to the fullest extent that they may effectively do so, that the rate of exchange used shall be the rate at which
in accordance with normal banking procedures the Underwriters could purchase Euros with such other currency in the City of New York on
the business day preceding that on which final judgment is given. The obligations of the Company and each Guarantor in respect of any
sum due from it to any Underwriter shall, notwithstanding any judgment in any currency other than Euros, not be discharged until the first
business day, following receipt by such Underwriter of any sum adjudged to be so due in such other currency, on which (and only to the
extent that) such Underwriter may in accordance with normal banking procedures purchase Euros with such other currency.
SECTION 20. Recognition of the U.S. Special
Resolution Regimes.
(a) In
the event that any Underwriter that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer
from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent
as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were
governed by the laws of the United States or a state of the United States.
(b) In
the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate of such Underwriter becomes subject to a proceeding under
a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Underwriter are permitted to
be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement
were governed by the laws of the United States or a state of the United States.
As used in this Section 20:
“BHC Act Affiliate” has the meaning assigned
to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k).
“Covered Entity” means any of the following:
(i) a
“covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
(ii) a
“covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
(iii) a
“covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Default Right” has the meaning assigned
to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“U.S. Special Resolution Regime” means each
of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Xxxx-Xxxxx Xxxx Street Reform
and Consumer Protection Act and the regulations promulgated thereunder.
SECTION 21. Contractual Recognition of Bail-In.
| (a) | EEA Bail-In. Notwithstanding and to the exclusion of any other term of this Agreement or any other agreements, arrangements
or understanding between the parties thereto, each of the parties to this Agreement acknowledges and accepts that a BRRD Liability arising
under this Agreement may be subject to the exercise of Bail-In Powers by the Relevant Resolution Authority, and acknowledges, accepts,
and agrees to be bound by: |
| (i) | the effect of the exercise of Bail-In Powers by the Relevant Resolution Authority in relation to any BRRD Liability of any of the
Underwriters under this Agreement, that (without limitation) may include and result in any of the following, or some combination thereof: |
| a. | the reduction of all, or a portion, of the BRRD Liability or outstanding amounts due thereon; |
| b. | the conversion of all, or a portion of, the BRRD Liability into shares, other securities or other obligations of an Underwriter or
another person, and the issue to or conferral on the Company of such shares, securities or obligations; |
| c. | the cancellation of the BRRD Liability; |
| d. | the amendment or alteration of any of any interest, if applicable, thereon, the maturity or the dates
on which any payments are due, including by suspending payment for a temporary period; and |
| (ii) | the variation of the terms of this Agreement, as deemed necessary by the Relevant Resolution Authority, to give effect to the exercise
of Bail-In Powers by the Relevant Resolution Authority. |
| (b) | As used in this Section 21: |
(i)
“Bail-In Legislation” means in relation to a member state of the European Economic Area which has implemented,
or which at any time implements, the BRRD, the relevant implementing law, regulation, rule or requirement as described in the EU Bail-In
Legislation Schedule from time to time.
(ii)
“Bail-In Powers” means any Write-down and Conversion Powers as defined in the EU Bail-In Legislation Schedule,
in relation to the relevant Bail-In Legislation.
(iii)
“BRRD” means Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions
and investment firms.
(iv)
“BRRD Liability” means a liability in respect of which the relevant Write Down and Conversion Powers in the
applicable Bail-In Legislation may be exercised.
(v)
“EU Bail-in Legislation Schedule” means the document described as such, then in effect, and published by the
Loan Market Association (or any successor person) from time to time at xxxx://xxx.xxx.xx.xxx/xxxxx.xxxx?xx000.
(vi)
“Relevant Resolution Authority” means the resolution authority with the ability to exercise any Bail-In Powers.
| (c) | UK Bail-In. Notwithstanding and to the exclusion of any other term of this Agreement or any other agreements, arrangements
or understandings between thereto, each of the parties to this Agreement acknowledges and accepts that a UK Bail-in Liability arising
under this Agreement may be subject to the exercise of UK Bail-in Powers by the relevant UK resolution authority, and acknowledges, accepts
and agrees to be bound by: |
| (i) | the effect of the exercise of UK Bail-in Powers by the relevant UK resolution authority in relation to any UK Bail-in Liability of
an Underwriter (the “Relevant UK Bail-in Party”) to such other party under this Agreement, that (without limitation) may include
and result in any of the following, or some combination thereof: |
| a. | the reduction of all, or a portion, of the UK Bail-in Liability or outstanding amounts due thereon; |
| b. | the conversion of all, or a portion, of the UK Bail-in Liability into shares, other securities or other obligations of the Relevant
BRRD Party or another person, and the issue to or conferral on such other party to this Agreement of such shares, securities or obligations; |
| c. | the cancellation of the UK Bail-in Liability; |
| d. | the amendment or alteration of any interest, if applicable, thereon, the maturity or the dates on which any payments are due, including
by suspending payment for a temporary period; and |
| (ii) | the variation of the terms of this Agreement, as deemed necessary by the relevant resolution authority, to give effect to the exercise
of UK Bail-in Powers by the relevant resolution authority. |
| (d) | For purposes of this Section 21: |
| (i) | “UK Bail-in Legislation” means Part I of the UK Banking Xxx 0000 and any other law or regulation applicable in
the UK relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (otherwise
than through liquidation, administration or other insolvency proceedings); |
| (ii) | “UK Bail-in Liability” means a liability in respect of which the UK Bail-in Powers may be exercised; |
| (iii) | “UK Bail-in Powers” means the powers under the UK Bail-in Legislation to cancel, transfer or dilute shares issued
by a person that is a bank or investment firm or affiliate of a bank or investment firm, to cancel, reduce, modify or change the form
of a liability of such a person or any contract or instrument under which that liability arises, to convert all or part of that liability
into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have
effect as if a right had been exercised under it or to suspend any obligation in respect of that liability. |
SECTION 22. Agreement Among Underwriters.
The Underwriters agree as between themselves that they will be bound by and will comply with the International Capital Market Association
Agreement Among Managers Version 1/New York Law Schedule (the “Agreement Among Managers”) as amended in the manner
set out below. For purposes of the Agreement Among Managers, “Managers” means the Underwriters (each acting on their own behalf
or through any of their respective affiliates), “Lead Manager” means the Representatives (each acting on their own behalf
or through any of their respective affiliates), “Settlement Lead Manager” means MLI, “Stabilizing Manager” means
MLI and “Subscription Agreement” means the Underwriting Agreement. Clause 3 of the Agreement Among Managers shall be deleted
in its entirety and replaced with Section 16 of this Agreement.
SECTION
23. Co-Manufacturer Agreement. (a) Solely for the purposes of the requirements of Article 9(8) of the
MIFID Product Governance rules under EU Delegated Directive 2017/593 (the “Product Governance Rules”) regarding
the mutual responsibilities of manufacturers under the Product Governance Rules, Deutsche Bank (a “Manufacturer”)
acknowledges to each other Manufacturer that it understands the responsibilities conferred upon it under the Product Governance
Rules relating to each of the product approval process, the target market and the proposed distribution channels as applying to the
Securities and the related information set out in the Disclosure Package and the Prospectus in connection with the Securities. Each
of the Underwriters (other than those not subject to the Product Governance Rules), the Company and the Guarantors note the
application of the Product Governance Rules and acknowledge the target market and distribution channels identified as applying to
the Securities by the Manufacturer and the related information set out in the Disclosure Package and the Prospectus in connection
with the Securities.
(b) UK Co-Manufacturer Agreement. Solely
for the purposes of the requirements of 3.2.7R of the FCA Handbook Product Intervention and Product Governance Sourcebook (the “UK
MiFIR Product Governance Rules”) regarding the mutual responsibilities of manufacturers under the UK MiFIR Product Governance
Rules (a) each of Citigroup, Deutsche Bank, HSBC, X.X. Xxxxxx and MLI (each a “UK Manufacturer” and together, the “UK
Manufacturers”) understands the responsibilities conferred upon it under the UK MiFIR Product Governance Rules relating to each
of the product approval process, the target market and the proposed distribution channels as applying to the Securities and the related
information set out in the Disclosure Package and the Prospectus in connection with the Securities; and (b) each of the Underwriters,
the Issuer and the Guarantors note the application of the UK MiFIR Product Governance Rules and acknowledge the target market and distribution
channels identified as applying to the Securities by the UK Manufacturers and the related information set out in the Disclosure Package
and the Prospectus in connection with the Securities.
[Remainder of page intentionally
left blank]
If the foregoing is in accordance with your understanding
of our agreement, kindly sign and return to the Company the enclosed copies hereof, whereupon this instrument, along with all counterparts
hereof, shall become a binding agreement in accordance with its terms.
|
Very
truly yours, |
|
|
|
CELANESE
US HOLDINGS LLC |
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|
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By:
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/s/
Xxxxx X. Xxxxxxxxxx |
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Name:
Xxxxx X. Xxxxxxxxxx |
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|
Title:
President |
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CELANESE
CORPORATION as Guarantor |
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By:
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/s/
Xxxxx X. Xxxxxxxxxx |
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Name:
Xxxxx X. Xxxxxxxxxx |
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Title:
Executive Vice President and Chief Financial Officer |
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CELANESE
AMERICAS LLC as Guarantor |
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By: |
/s/
Xxxxxx Xxxxxx |
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Name:
Xxxxxx Xxxxxx |
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|
Title:
Vice President and Treasurer |
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CELANESE
ACETATE LLC as Guarantor |
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By: |
/s/
Xxxxxx Xxxxxx |
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Name:
Xxxxxx Xxxxxx |
|
|
Title:
Vice President and Treasurer |
|
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CELANESE
CHEMICALS, INC. as Guarantor |
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By:
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/s/
Xxxxxx Xxxxxx |
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|
Name:
Xxxxxx Xxxxxx |
|
|
Title:
Vice President and Treasurer |
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CNA HOLDINGS LLC as Guarantor |
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|
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By: |
/s/ Xxxxxx Xxxxxx |
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Name: Xxxxxx Xxxxxx |
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Title: Vice President and Treasurer |
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CELANESE INTERNATIONAL CORPORATION as Guarantor |
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By: |
/s/ Xxxxxx Xxxxxx |
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Name: Xxxxxx Xxxxxx |
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Title: Vice President and Treasurer |
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CELTRAN, INC. as Guarantor |
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By: |
/s/ Xxxxxx Xxxxxx |
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Name: Xxxxxx Xxxxxx |
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Title: Vice President and Treasurer |
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KEP AMERICAS ENGINEERING PLASTICS, LLC as Guarantor |
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By: |
/s/ Xxxxxx Xxxxxx |
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Name: Xxxxxx Xxxxxx |
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|
Title: Vice President and Treasurer |
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TICONA FORTRON INC. as Guarantor |
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By: |
/s/ Xxxxxx Xxxxxx |
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|
Name: Xxxxxx Xxxxxx |
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|
Title: Vice President and Treasurer |
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TICONA POLYMERS, INC. as Guarantor |
|
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By: |
/s/ Xxxxxx Xxxxxx |
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Name: Xxxxxx Xxxxxx |
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|
Title: Vice President and Treasurer |
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TICONA LLC as Guarantor |
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|
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By: |
/s/ Xxxxxx Xxxxxx |
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Name: Xxxxxx Xxxxxx |
|
|
Title: Vice President and Treasurer |
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CELANESE GLOBAL RELOCATION LLC as Guarantor |
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By: |
/s/ Xxxxxx Xxxxxx |
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Name: Xxxxxx Xxxxxx |
|
|
Title: Vice President and Treasurer |
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CELANESE LTD. as Guarantor |
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By: |
CELANESE INTERNATIONAL CORPORATION, |
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its general partner |
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By: |
/s/ Xxxxxx Xxxxxx |
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Name: Xxxxxx Xxxxxx |
|
|
Title: Vice President and Treasurer |
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CELANESE SALES U.S. LTD. as Guarantor |
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By: |
CELANESE INTERNATIONAL CORPORATION, |
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its general partner |
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By: |
/s/ Xxxxxx Xxxxxx |
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Name: Xxxxxx Xxxxxx |
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Title: Vice President and Treasurer |
The foregoing Underwriting Agreement is hereby confirmed
and accepted by the Underwriters as of the date first above written.
By:
CITIGROUP GLOBAL MARKETS LIMITED |
|
|
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By: |
/s/
Xxxxx Xxxxxxx |
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|
Name:
Xxxxx Xxxxxxx |
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Title:
Delegated Signatory |
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[Signature Page to Underwriting Agreement]
By: DEUTSCHE BANK AG, LONDON BRANCH |
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|
By: |
/s/ Xxx Xxxxxxxxxxx |
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Name: Xxx Xxxxxxxxxxx |
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|
Title: Managing Director |
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By: |
/s/ Xxxxxx Xxxxxxxxx |
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Name: Xxxxxx Xxxxxxxxx |
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|
Title: Managing Director |
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[Signature Page to Underwriting Agreement]
By: HSBC BANK PLC |
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|
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By: |
/s/ Xxxx Xxxxx |
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Name: Xxxx Xxxxx |
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|
Title: Managing Associate General Counsel |
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[Signature Page to Underwriting Agreement]
By: X.X. XXXXXX SECURITIES PLC |
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|
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By: |
/s/ Xxxxxx Xxxxxxxx |
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Name: Xxxxxx Xxxxxxxx |
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Title: Executive Director |
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[Signature Page to Underwriting Agreement]
By: XXXXXXX XXXXX INTERNATIONAL |
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By: |
/s/ Xxxxx Xxxxxxxx |
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Name: Xxxxx Xxxxxxxx |
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|
Title: Authorised Signatory |
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[Signature Page to Underwriting Agreement]
By: MUFG SECURITIES EMEA PLC |
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By: |
/s/ Xxxxx Xxxxxx |
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|
Name: Xxxxx Xxxxxx |
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|
Title: Authorised Signatory |
|
[Signature Page to Underwriting Agreement]
By: SMBC NIKKO CAPITAL MARKETS LIMITED |
|
|
|
By: |
/s/ Xxxxxxx Xxxxx |
|
|
Name: Xxxxxxx Xxxxx |
|
|
Title: Head of Debt Syndication |
|
[Signature Page to Underwriting Agreement]
By: UNICREDIT BANK
AG |
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By: |
/s/ Xxxx Xxxx |
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|
Name: Xxxx Xxxx |
|
|
Title: Managing
Director |
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By: |
/s/ Fabio Xxxxx Xxxxx |
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Name: Fabio Xxxxx Xxxxx |
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|
Title: Managing Director |
|
[Signature Page to Underwriting Agreement]
By: U.S.
BANCORP INVESTMENTS, INC. |
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|
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By: |
/s/ Xxxxxxx X. Xxxxxx |
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Name: Xxxxxxx X. Xxxxxx |
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|
Title: Managing Director |
|
[Signature Page to Underwriting Agreement]
By: XXXXXX
XXXXXXX & CO. INTERNATIONAL PLC |
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By: |
/s/ Xxxx Xxxxxxx |
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|
Name: Xxxx Xxxxxxx |
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|
Title: Managing Director |
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[Signature Page to Underwriting Agreement]
By: PNC CAPITAL
MARKETS LLC |
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|
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By: |
/s/ Xxxxxxx Xxxxxxx |
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Name: Xxxxxxx Xxxxxxx |
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|
Title: Managing Director |
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[Signature Page to Underwriting Agreement]
By: BANCO SANTANDER,
S.A. |
|
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By: |
/s/ Xxxxxxxx x’Xxxxx |
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|
Name: Xxxxxxxx x’Xxxxx |
|
|
Title: DCM Executive Director |
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|
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By: |
/s/ Xxxxxx Xxxx |
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Name: Xxxxxx Xxxx |
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Title: DCM |
|
[Signature Page to Underwriting Agreement]
By: XXXXXXX
SACHS & CO. LLC |
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By: |
/s/ Xxx Xxxxxxx |
|
|
Name: Xxx Xxxxxxx |
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|
Title: Vice President |
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[Signature Page to Underwriting Agreement]
By: STANDARD CHARTERED
BANK |
|
|
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By: |
/s/ Xxxxxxx Xxxxxx-Liot |
|
|
Name: Xxxxxxx Xxxxxx-Liot |
|
|
Title: Managing Director, Debt Capital Markets |
|
[Signature Page to Underwriting Agreement]
By: THE TORONTO-DOMINION
BANK |
|
|
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By: |
/s/ Xxxxxxx Xxxxxxx |
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Name: Xxxxxxx Xxxxxxx |
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|
Title: Director |
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[Signature Page to Underwriting Agreement]
SCHEDULE A
Underwriters | |
Aggregate Principal Amount of
2026 Notes to be Purchased | | |
Aggregate Principal Amount of
2029 Notes to be Purchased | |
Xxxxxxx Xxxxx International | |
€ | 350,000,000 | | |
€ | 175,000,000 | |
Citigroup Global Markets Limited | |
€ | 90,000,000 | | |
€ | 45,000,000 | |
Deutsche Bank AG, London Branch | |
€ | 90,000,000 | | |
€ | 45,000,000 | |
HSBC Bank plc | |
€ | 90,000,000 | | |
€ | 45,000,000 | |
X.X. Xxxxxx Securities plc | |
€ | 90,000,000 | | |
€ | 45,000,000 | |
MUFG Securities EMEA plc | |
€ | 41,250,000 | | |
€ | 20,625,000 | |
SMBC Nikko Capital Markets Limited | |
€ | 41,250,000 | | |
€ | 20,625,000 | |
UniCredit Bank AG | |
€ | 41,250,000 | | |
€ | 20,625,000 | |
U.S. Bancorp Investments, Inc. | |
€ | 41,250,000 | | |
€ | 20,625,000 | |
Xxxxxx Xxxxxxx & Co. International plc | |
€ | 27,500,000 | | |
€ | 13,750,000 | |
PNC Capital Markets LLC | |
€ | 27,500,000 | | |
€ | 13,750,000 | |
Banco Santander, S.A. | |
€ | 17,500,000 | | |
€ | 8,750,000 | |
Xxxxxxx Sachs & Co. LLC | |
€ | 17,500,000 | | |
€ | 8,750,000 | |
Standard Chartered Bank | |
€ | 17,500,000 | | |
€ | 8,750,000 | |
The Toronto-Dominion Bank | |
€ | 17,500,000 | | |
€ | 8,750,000 | |
Total | |
€ | 1,000,000,000 | | |
€ | 500,000,000 | |
SCHEDULE B
Subsidiary Guarantors
Celanese Acetate LLC
Celanese Americas LLC
Celanese Chemicals, Inc.
Celanese Global Relocation LLC
Celanese International Corporation
Celanese Ltd.
Celanese Sales U.S. Ltd.
Celtran, Inc.
CNA Holdings LLC
KEP Americas Engineering Plastics, LLC
Ticona Fortron Inc.
Ticona LLC
Ticona Polymers, Inc.
SCHEDULE C
Issuer Free Writing Prospectuses
| 1. | Final Term Sheet dated July 12, 2022, substantially in the form filed with the Commission. |
| 2. | Any electronic road show. |
EXHIBIT A
Form of opinion of Xxxxxx Xxxx & Xxxxxxxx LLP
to be delivered pursuant to Section 5 of the Underwriting Agreement.
[Provided under separate cover]