SHARE EXCHANGE AGREEMENT by and between WEATHERFORD INTERNATIONAL LTD., a company incorporated under the laws of Bermuda and WEATHERFORD INTERNATIONAL LTD., a Swiss joint-stock corporation Dated as of December 10, 2008
Exhibit 2.1
by and between
XXXXXXXXXXX INTERNATIONAL LTD.,
a company incorporated under the laws of Bermuda
a company incorporated under the laws of Bermuda
and
XXXXXXXXXXX INTERNATIONAL LTD.,
a Swiss joint-stock corporation
a Swiss joint-stock corporation
Dated as of December 10, 2008
TABLE OF CONTENTS
1. SHARE EXCHANGE BY WAY OF SCHEME OF ARRANGEMENT |
2 | |||
1.1 EXCHANGE |
2 | |||
1.2 SCHEME OF ARRANGEMENT; EFFECTIVE TIME |
2 | |||
2. EXCHANGE AND ISSUANCE OF SHARES |
2 | |||
2.1 EXCHANGE OF SHARES AND ISSUANCE OF SHARES IN THE SHARE EXCHANGE |
2 | |||
2.2 EMPLOYEE BENEFIT AND COMPENSATION PLANS AND AGREEMENTS |
3 | |||
2.3 WARRANT |
5 | |||
3. CONDITIONS PRECEDENT |
5 | |||
3.1 CONDITIONS TO EACH PARTY’S OBLIGATION TO EFFECT THE SHARE EXCHANGE |
5 | |||
4. TERMINATION, AMENDMENT AND WAIVER |
6 | |||
4.1 TERMINATION |
6 | |||
4.2 EFFECT OF TERMINATION |
6 | |||
4.3 AMENDMENT |
6 | |||
4.4 WAIVER |
6 | |||
5. COVENANTS |
7 | |||
5.1 RULE 16B-3 APPROVAL |
7 | |||
5.2 INDEMNIFICATION |
7 | |||
5.3 GUARANTEES |
9 | |||
6. GENERAL PROVISIONS |
9 | |||
6.1 ASSIGNMENT; BINDING EFFECT; BENEFIT |
9 | |||
6.2 ENTIRE AGREEMENT |
9 | |||
6.3 GOVERNING LAW |
10 | |||
6.4 COUNTERPARTS |
10 | |||
6.5 HEADINGS |
10 | |||
6.6 SEVERABILITY |
10 | |||
EXHIBIT A |
12 | |||
EXHIBIT B |
13 |
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This Share Exchange Agreement (this “Agreement”) is made as of December 10, 2008 by
and between Xxxxxxxxxxx International Ltd., an exempted company incorporated with limited liability
under the laws of Bermuda with registration number 31959 (“Weatherford-Bermuda”), and
Xxxxxxxxxxx International Ltd., a corporation incorporated under the laws of Switzerland, with its
registered office in the Canton of Zug, Switzerland, and with registered number CH-170.3.032.888-3,
and a direct, wholly-owned subsidiary of Weatherford-Bermuda (“Weatherford-Switzerland”).
Each of Weatherford-Bermuda and Weatherford-Switzerland are referred to in this Agreement
individually as a “party” and collectively as the “parties.”
PRELIMINARY STATEMENTS
A. The Boards of Directors of each of Weatherford-Bermuda and Weatherford-Switzerland have
determined that it is in the best interests of their respective shareholders to enter into a
transaction (the “Share Exchange”) by way of a scheme of arrangement under Section 99 of
the Companies Xxx 0000 of Bermuda (the “Companies Act”) in its present form or with or
subject to any modifications, additions or conditions that are consented to by Weatherford-Bermuda
and that the Supreme Court of Bermuda (the “Court”) may approve, impose or permit (the
“Scheme”) whereby Weatherford-Switzerland will become the parent holding company of
Weatherford-Bermuda as a result of the exchange of Weatherford-Bermuda common shares for
Weatherford-Switzerland registered shares upon the terms set forth in this Agreement or as
otherwise required in the Scheme or under Swiss law.
B. The Boards of Directors of each of Weatherford-Bermuda and Weatherford-Switzerland have
approved the Share Exchange upon the terms and subject to the conditions set forth in this
Agreement, whereby each issued and outstanding common share of US$1.00 par value in the capital of
Weatherford-Bermuda (a “Weatherford-Bermuda Common Share”), will be exchanged (based on an
exchange rate determined by reference to an internationally recognized exchange rate at or about
the Effective Time (as defined below), as determined by Weatherford-Bermuda) for one share with a
par value in Swiss francs equivalent to US$1.00 per share in the capital of Weatherford-Switzerland
(a “Registered Share”).
C. The Scheme requires the affirmative vote of a majority in number of the shareholders of
Weatherford-Bermuda present and voting either in person or by proxy at the meeting representing at
least three fourths in value of the shareholders present and voting either in person or by proxy at
the meeting.
D. The parties intend for the Share Exchange to qualify as a reorganization under Section
368(a)(1)(B) and/or an exchange under Section 351 of the U.S. Internal Revenue Code of 1986, as
amended (the “Code”), and the Treasury regulations promulgated thereunder (the
“Treasury Regulations”).
E. The parties further intend for this Agreement to constitute a plan of reorganization within
the meaning of Section 368 of the Code and the Treasury Regulations.
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F. Capitalized terms in this Agreement have the meanings set forth herein.
AGREEMENT
The parties, intending to be legally bound, agree as follows:
1. SHARE EXCHANGE BY WAY OF SCHEME OF ARRANGEMENT
1.1 EXCHANGE
In the Share Exchange, at the Effective Time as a result of the operation of the Companies Act
and the Scheme, and pursuant to and in accordance with applicable Swiss law, each issued and
outstanding Weatherford-Bermuda Common Share will be exchanged for the right to receive one
Registered Share and Weatherford-Switzerland will become the parent holding company of
Weatherford-Bermuda as described in Section 2.1.
1.2 SCHEME OF ARRANGEMENT; EFFECTIVE TIME
As soon as practicable after the date hereof and in accordance with this Agreement,
Weatherford-Bermuda will (i) issue proceedings requesting the Court to summon such meetings of the
holders of the Weatherford-Bermuda Common Shares, (ii) convene such meetings to obtain the approval
required under Section 99(2) of the Companies Act and, subject to such approval being obtained,
(iii) file a petition and seek the sanction of the Share Exchange pursuant to Section 99 of the
Companies Act on the hearing of the petition and file such other documents as are required to be
duly filed with the Court to effect the Share Exchange. As soon as practicable after the date of
this Agreement and in accordance with this Agreement, Weatherford-Bermuda and
Weatherford-Switzerland will take any and all actions necessary to effect the Share Exchange.
Weatherford-Switzerland shall undertake to the Court that, at or promptly after the Effective Time,
it shall issue, subject to the provisions of this Agreement, the Registered Shares pursuant to
Section 2.1(a). As soon as practicable following the satisfaction or waiver (subject to
applicable laws) of the conditions set forth in this Agreement, if this Agreement is not terminated
prior thereto as provided in Section 4.1, Weatherford-Bermuda shall cause the order of the
Court sanctioning the Share Exchange pursuant to Section 99 of the Companies Act (the “Court
Order”) to be filed with the Registrar of Companies of Bermuda. The Scheme shall become
effective as a matter of Bermuda law on the date and time at which an office copy of the Court
Order shall have been delivered to the Registrar of Companies in Bermuda for registration (the
“Effective Time”), while it shall become effective as a matter of Swiss law on the date and
time at which the application to register the capital increase covering and including the
Registered Shares shall be registered with the Register of Commerce of Zug, Switzerland.
2. EXCHANGE AND ISSUANCE OF SHARES
2.1 EXCHANGE OF SHARES AND ISSUANCE OF SHARES IN THE SHARE EXCHANGE
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(a) At the Effective Time, by virtue of the Scheme, each holder (a “Scheme
Shareholder”) of Weatherford-Bermuda Common Shares issued and outstanding immediately prior to
the Effective Time (“Scheme Shares”) (including any affiliates and subsidiaries of
Weatherford-Bermuda holding any Weatherford-Bermuda Common Shares) shall have the right to receive
one validly issued and fully paid Registered Share in exchange for each Scheme Share. All Scheme
Shares shall be transferred to Weatherford-Switzerland. At the Effective Time, the Scheme
Shareholders shall thereafter cease to have any rights with respect to such Weatherford-Bermuda
Common Shares, except the right to receive, without interest, Registered Shares in accordance with
this Section 2.1.
(b) At or about the Effective Time, Weatherford-Switzerland shall issue and allot to American
Stock Transfer & Trust Company, LLC (or such other person or entity as Weatherford-Bermuda may
determine in its sole discretion) as nominee acting on behalf and for the account of the Scheme
Shareholders (the “Nominee”) one new validly issued and fully paid Registered Share in
accordance with applicable Swiss law as consideration and in exchange for each Scheme Share.
(c) Immediately thereafter and as a result thereof, the Nominee shall transfer and allot to
each Scheme Shareholder one new Registered Share as consideration and in exchange for each Scheme
Share. The Registered Shares shall be issued in uncertificated book-entry form.
As a result of the foregoing, Weatherford-Bermuda will become a wholly owned subsidiary of
Weatherford-Switzerland.
2.2 EMPLOYEE BENEFIT AND COMPENSATION PLANS AND AGREEMENTS
(a) Each of Weatherford-Bermuda and Xxxxxxxxxxx International, Inc., a Delaware corporation
and a wholly owned subsidiary of Weatherford-Bermuda (“Weatherford-Delaware”), maintains
and sponsors a variety of equity compensation-related plans, and certain other plans, agreements,
awards and arrangements, providing for the grant or award to its directors, officers and employees
and other persons (collectively, the “Stock Plans”) of (i) options, restricted shares or
other rights to purchase or receive Weatherford-Bermuda Common Shares or (ii) the right to receive
benefits or other amounts by reference to Weatherford-Bermuda Common Shares (individually, an
“Award” and collectively, the “Awards”). Weatherford-Delaware currently maintains
and sponsors the plans listed on Exhibit A attached hereto (the “Delaware Stock
Plans”) and Weatherford-Bermuda currently maintains and sponsors the plans listed on
Exhibit B attached hereto (the “Bermuda Stock Plans”). At the Effective Time, the
Delaware Stock Plans and Bermuda Stock Plans, together with any other employee benefit and
compensation plans and agreements of Weatherford-Bermuda or its affiliates as determined by the
management of Weatherford-Bermuda in its sole discretion, shall be assumed and/or adopted by and
become plans and agreements of Weatherford-Switzerland (collectively, the “Assumed Plans”);
provided, however, that Weatherford-Delaware (or other applicable Weatherford-Bermuda
affiliate) shall continue to maintain and/or sponsor the Stock Plans further described on
Exhibit A or Exhibit B as continuing to be maintained and/or sponsored by
Weatherford-Delaware (or other applicable Weatherford-Bermuda affiliate). Weatherford-Switzerland
shall,
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pursuant to the terms hereof and thereof, assume the rights and obligations of
Weatherford-Bermuda under the Assumed Plans.
(b) To the extent any Stock Plan (whether or not an Assumed Plan) provides for the issuance,
acquisition, holding or purchase of, or otherwise relates to or references, Weatherford-Bermuda
Common Shares, then, pursuant to the terms hereof and thereof, after the Effective Time, such Stock
Plan shall be deemed to provide for the issuance, acquisition, purchase or holding of, or otherwise
relate to or reference, Registered Shares (or benefits or other amounts determined in accordance
with the Assumed Plans). In furtherance thereof, all references in the Stock Plans to
Weatherford-Bermuda or its predecessors shall be amended to be references to
Weatherford-Switzerland. Such amendments deemed necessary or appropriate by Weatherford-Bermuda and
Weatherford-Switzerland to effect the Scheme and related transactions, including to facilitate the
assignment to, and assumption and/or adoption by, Weatherford-Switzerland of the Assumed Plans or
the actions contemplated hereby (subject to this Section 2.2), shall be adopted and entered
into with respect to the Assumed Plans or any other Stock Plan. Such assumption and/or adoption
may take place, among others, by execution of an Assumption and Assignment Agreement between
Weatherford-Bermuda and Weatherford-Switzerland. The vote of the Scheme Shareholders at the
meeting of the holders of Weatherford-Bermuda Common Shares convened at the direction of the Court
at which the Scheme will be voted upon shall, pursuant to the terms hereof and of the Stock Plans,
be deemed to satisfy any requirement of shareholder approval of such amendments and the assignment
to, and assumption and/or adoption by, Weatherford-Switzerland of the Assumed Plans and/or Awards
or the actions contemplated hereby with respect to any other Stock Plan.
(c) All outstanding Awards or any other benefits available which are based on
Weatherford-Bermuda Common Shares and which have been granted under the Stock Plans (including, as
applicable, any Weatherford-Bermuda Common Shares exchanged pursuant to Section 2.1) shall
remain outstanding and, after the Effective Time, pursuant to the terms thereof, be deemed to
provide for the issuance, acquisition, purchase or holding of, or otherwise relate to or reference,
Registered Shares. In furtherance thereof, as of the Effective Time, all references to
Weatherford-Bermuda or any of its predecessors in any Award or any related document or agreement
shall be deemed to be references to Weatherford-Switzerland. Each Award assumed by
Weatherford-Switzerland shall thereafter, pursuant to the terms thereof, be exercisable, issuable,
held, available or vest upon the same terms and conditions as under the applicable Stock Plan
(including Assumed Plans) and the applicable Award document or agreement issued thereunder, except
that upon the exercise, issuance, holding, availability or vesting of such Awards, Registered
Shares shall be issuable or available, or benefits or other amounts determined, in lieu of
Weatherford-Bermuda Common Shares. For the avoidance of doubt, the number of Registered Shares
issuable or available upon the exercise or issuance of an Award immediately after the Effective
Time and, if applicable, the exercise price of each such Award, shall be the same number of shares
and the exercise price as in effect immediately prior to the Effective Time. Each Award that is a
stock option shall be assumed by Weatherford-Switzerland in such manner that
Weatherford-Switzerland would be a corporation “assuming a stock option in a transaction to which
section 424(a) applies” within the meaning of Section 424 of the Code, were Section 424 of the Code
applicable to such Award, with regard to the requirements of Treasury Regulation
Section 1.424-1(a)(5)(iii) for options that are intended to qualify under
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Section 422 of the Code, and with regard to the requirements of Treasury Regulation
Section 1.409A-1(b)(5)(v)(D) for other options.
2.3 WARRANT
At the Effective Time, the outstanding warrants to purchase Weatherford-Bermuda Common Shares
issued pursuant to the Amended and Restated Warrant Agreement dated July 12, 2006 between
Weatherford-Bermuda and Shell Technology Ventures Inc. (as assigned to other parties) (the
“Warrant Agreement”) shall, pursuant to the terms thereof, be assumed by, and the Warrant
Agreement and all of the rights and obligations of Weatherford-Bermuda thereunder shall immediately
be assigned to, Weatherford-Switzerland in accordance with the terms of the Warrant Agreement.
3. CONDITIONS PRECEDENT
3.1 CONDITIONS TO EACH PARTY’S OBLIGATION TO EFFECT THE SHARE EXCHANGE
The respective obligation of each party to effect the Share Exchange is subject to the
satisfaction or waiver of the following conditions:
(a) The Scheme shall have been adopted and approved by the affirmative vote of a majority in
number of the Scheme Shareholders present and voting either in person or by proxy on the Scheme,
representing at least three fourths in value of the Scheme Shareholders present and either in person or by proxy voting on
the Scheme.
(b) The definitive proxy statement of Weatherford-Bermuda on Schedule 14A relating to the
meeting of the holders of Weatherford-Bermuda Common Shares at which the Scheme will be voted upon
(the “Proxy Statement”) shall have been filed with the U.S. Securities and Exchange
Commission.
(c) None of the parties hereto shall be subject to any decree, order or injunction of a court
of competent jurisdiction, domestic or foreign, which prohibits the consummation of the Share
Exchange.
(d) The Registered Shares to be issued in connection with the Share Exchange shall have been
authorized for listing on the New York Stock Exchange, subject to official notice of issuance.
(e) The capital increase covering/including the Registered Shares to be issued in connection
with the Scheme shall have been registered with the commercial register in the Canton of Zug,
Switzerland.
(f) The Scheme shall have been sanctioned by the Court and the Court Order shall have been
filed with the Registrar of Companies of the Bermuda Islands and shall be effective.
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(g) Weatherford-Bermuda shall have received an opinion from Xxxxx & XxXxxxxx LLP confirming,
as of the effective date of the Share Exchange, the material U.S. federal income tax consequences
of the Share Exchange, receiving distributions on Registered Shares, and disposing of Registered
Shares, each as described under “Material Tax Considerations—U.S. Federal Income Tax
Considerations” in the Proxy Statement (or such other matters as Weatherford-Bermuda may
determine).
(h) Weatherford-Bermuda shall have received an opinion from Xxxxx & XxXxxxxx Xxxxxx
confirming, as of the effective date of the Share Exchange, the matters discussed under “Material
Tax Considerations—Swiss Tax Considerations” in the Proxy Statement (or such other matters as
Weatherford-Bermuda may determine).
4. TERMINATION, AMENDMENT AND WAIVER
4.1 TERMINATION
This Agreement may be terminated at any time prior to the Effective Time, whether before or
after approval by the shareholders of Weatherford-Bermuda or sanction of the Court of matters
presented in connection with this Agreement, by action of the Board of Directors of
Weatherford-Bermuda.
4.2 EFFECT OF TERMINATION
In the event of termination of this Agreement as provided in Section 4.1, this
Agreement shall forthwith become void and have no effect, without any liability or obligation on
the part of Weatherford-Bermuda or Weatherford-Switzerland.
4.3 AMENDMENT
This Agreement may be amended by the parties hereto at any time before or after any required
approval of matters presented in connection with this Agreement by the shareholders of
Weatherford-Bermuda or sanction of such matters by the Court; provided, however,
that after any such approval or sanction, there shall be made no amendment that by law requires
further approval by such shareholders until such further approval has been obtained. This
Agreement may not be amended except by an instrument in writing signed on behalf of each of the
parties hereto.
4.4 WAIVER
At any time prior to the Effective Time, a party may waive compliance by the other party with
any of the agreements or conditions contained in this Agreement. Any agreement on the part of a
party to any such waiver shall be valid only if set forth in an instrument in writing signed on
behalf of such party. The failure of any party to this Agreement to assert any of its rights under
this Agreement or otherwise shall not constitute a waiver of such rights.
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5. COVENANTS
5.1 RULE 16B-3 APPROVAL
Weatherford-Bermuda and Weatherford-Switzerland shall take all such steps as may be required
to cause the transactions contemplated by Section 2.1 and any other dispositions of
Weatherford-Bermuda equity securities (including derivative securities) or acquisitions of
Weatherford-Switzerland equity securities (including derivative securities) in connection with the
Scheme by each individual who is a director or officer of Weatherford-Bermuda or
Weatherford-Switzerland to be exempt under Rule 16b-3 promulgated under the U.S. Securities
Exchange Act of 1934, as amended.
5.2 INDEMNIFICATION
(a) From and after the Effective Time, Weatherford-Bermuda shall indemnify each person who is
now, or has been at anytime prior to the Effective Time, a director, officer, employee, agent or
fiduciary of Weatherford-Bermuda (or any subsidiary thereof) and each person who served at the
request of Weatherford-Bermuda as a director, officer, employee, agent or fiduciary of another
company, corporation, partnership, limited liability company, joint venture, trust, employee
benefit plan or other entity or enterprise (each, an “Indemnitee”) if such Indemnitee is a
party or is threatened to be made a party to any threatened, pending or completed action, suit,
arbitration, alternative dispute resolution mechanism, investigation, administrative hearing or any
other proceeding, whether civil, criminal, administrative or investigative and whether formal or
informal (including, but not limited to, the investigation, defense, settlement or appeal thereof)
(a “Proceeding”) and whether commenced, asserted or claimed before or after the Effective
Time, including a Proceeding brought by or in the right of Weatherford-Bermuda, by reason of the
fact that Indemnitee is or was a director, officer, employee, agent, or fiduciary of
Weatherford-Bermuda or is or was serving at the request of Weatherford-Bermuda as a director,
officer, employee, agent, or fiduciary of any other company, corporation, partnership, limited
liability company, joint venture, trust, employee benefit plan or other entity or enterprise or by
reason of anything done or not done by Indemnitee in any such capacity. All reasonable expenses
incurred by Indemnitee (including attorneys’ fees, retainers and advances of disbursements required
of Indemnitee) shall be paid by Weatherford-Bermuda in advance of the final disposition of any
Proceeding at the request of Indemnitee as promptly as possible, and in any event within 20 days
after the receipt by Weatherford-Bermuda of a statement or statements from Indemnitee requesting
such advance or advances from time to time. Indemnitee’s entitlement to such expenses shall include
those incurred in connection with any Proceeding by Indemnitee seeking an adjudication or award in
arbitration pursuant to this Agreement. Such statement or statements shall reasonably evidence the
expenses incurred by Indemnitee in connection therewith and shall include or be accompanied by an
undertaking by or on behalf of Indemnitee to repay such amount if it is ultimately determined that
Indemnitee is not entitled to be indemnified against such expenses by Weatherford-Bermuda as
provided by this Agreement or otherwise. Notwithstanding the foregoing or anything else to the
contrary, the indemnity provided in this Section 5.2 shall not indemnify the Indemnitee
against, or exempt the Indemnitee from, any liability in respect of Indemnitee’s fraud or for any
action or inaction for which indemnification is prohibited under Bermuda law.
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(b) With respect to any such Proceeding: (i) Weatherford-Bermuda will be entitled to
participate therein at its own expense; and (ii) except as otherwise provided below, to the extent
that it may wish, Weatherford-Bermuda jointly with any other indemnifying party similarly notified
will be entitled to assume the defense thereof, with counsel reasonably satisfactory to Indemnitee.
After notice from Weatherford-Bermuda to Indemnitee of its election so to assume the defense
thereof, Weatherford-Bermuda will not be liable to Indemnitee under this Agreement for any legal or
other expenses subsequently incurred by Indemnitee in connection with the defense thereof other
than reasonable costs of investigation or as otherwise provided below. Indemnitee shall have the
right to employ Indemnitee’s own counsel in such Proceeding, but the fees and expenses of such
counsel incurred after notice from Weatherford-Bermuda of its assumption of the defense thereof
shall be at the expense of Indemnitee and not subject to indemnification hereunder unless: (i) the
employment of counsel by Indemnitee has been authorized by Weatherford-Bermuda; (ii) in the
reasonable opinion of counsel to Indemnitee there is or may be a conflict of interest between
Weatherford-Bermuda and Indemnitee in the conduct of the defense of such Proceeding; or (iii)
Weatherford-Bermuda shall not in fact have employed counsel to assume the defense of such action,
in each of which cases, the fees and expenses of counsel shall be at the expense of
Weatherford-Bermuda. Neither Weatherford-Bermuda nor the Indemnitee shall settle any claim without
the prior written consent of the other (which shall not be unreasonably withheld).
(b) The parties agree that the rights to indemnification, including provisions relating to
advances of expenses incurred in defense of any Proceeding, in the organizational documents of
Weatherford-Bermuda and similar organizational documents of its subsidiaries with respect to
matters occurring through the Effective Time, shall survive the Scheme and shall continue in full
force and effect for a period of six years from the Effective Time; provided,
however, that all rights to indemnification in respect of any Proceeding pending or
asserted within such period shall continue until the disposition or resolution of such Proceeding.
(c) The rights of Indemnitees hereunder shall be in addition to any other rights such
Indemnitee may have under (i) the bye-laws of Weatherford-Bermuda, (ii) the articles of association
or other organizational documents of Weatherford-Switzerland, (iii) similar organizational
documents of Weatherford-Bermuda’s subsidiaries or the laws of its subsidiaries’ jurisdictions of
organization, (iv) separate agreements (including indemnity agreements in existence on the date
hereof or entered into in the future), (v) a vote of Weatherford-Bermuda’s shareholders, (vi) a
vote of Weatherford-Bermuda’s Board of Directors, (vii) a vote of the Weatherford-Bermuda’s
directors who are not a party to a Proceeding in respect of any Indemnitees, (viii) the laws of
Bermuda or Switzerland or (ix) otherwise. The provisions of this Section 5.2 shall survive
the consummation of the Scheme and expressly are intended to benefit each Indemnitee.
(d) In the event Weatherford-Bermuda or any of its successors or assigns (i) amalgamates,
consolidates with or merges into (or enters into any other business combination with), including by
way of a scheme of arrangement or a share exchange, any other person and shall not be the
continuing or surviving corporation or entity in such amalgamation, consolidation or merger or
(ii) transfers all or substantially all of its properties and assets to any
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person, then and in either such case, proper provision shall be made so that the successors
and assigns of Weatherford-Bermuda assume the obligations set forth in this Section 5.2.
5.3 GUARANTEES
At or immediately prior to the Effective Time, Weatherford-Switzerland agrees to guaranty the
following debt of Weatherford-Bermuda, Weatherford-Delaware and their affiliates:
| • | Weatherford-Bermuda’s 4.95% senior notes due 2013; 5.15% senior notes due 2013; 5.50% senior notes due 2016; 6.00% senior notes due 2018; 6.50% senior notes due 2036; 7.00% senior notes due 2038; notes issued under Weatherford-Bermuda’s commercial paper program; and notes issued under Weatherford-Bermuda’s affiliates’ commercial paper program; and | ||
| • | Weatherford-Delaware’s 6.625% senior notes due 2011; 5.95% senior notes due 2012; 6.35% senior notes due 2017; and 6.80% senior notes due 2037; and | ||
| • | Any debt outstanding or to be borrowed in the future under the Second Amended and Restated Credit Agreement dated as of May 2, 2006, among Weatherford-Bermuda, Weatherford-Delaware and certain of their affiliates, JPMorgan Chase Bank, N.A., as administrative agent, and the lender parties thereto; the Credit Agreement, dated as of March 19, 2008, among Weatherford-Bermuda, Weatherford-Delaware, Deutsche Bank AG Cayman Islands Branch, as administrative agent, and the lender parties thereto; and the Credit Agreement, dated as of October 20, 2008, among Weatherford-Bermuda, Weatherford-Delaware, UBS AG, Stamford Branch, as administrative agent, and the lender parties thereto. |
6. GENERAL PROVISIONS
6.1 ASSIGNMENT; BINDING EFFECT; BENEFIT
Neither this Agreement nor any of the rights, interests or obligations hereunder shall be
assigned by the parties hereto (whether by operation of law or otherwise) without the prior written
consent of the other party. Subject to the preceding sentence, this Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective successors and
assigns. Notwithstanding anything contained in this Agreement to the contrary, nothing in this
Agreement, expressed or implied, is intended to confer on any person other than the parties hereto
or their respective successors, executors, administrators and assigns any rights, remedies,
obligations or liabilities under or by reason of this Agreement, except for the provisions of
Section 5.2 (which may be enforced by the beneficiaries thereof).
6.2 ENTIRE AGREEMENT
This Agreement and any documents delivered by the parties in connection herewith constitute
the entire agreement among the parties with respect to the subject matter hereof and supersede all
prior agreements and understandings among the parties with respect thereto. No
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addition to or modification of any provision of this Agreement shall be binding upon any party
hereto unless made in writing and signed by all parties hereto.
6.3 GOVERNING LAW
Except to the extent that the laws of the jurisdiction of organization of any party hereto, or
any other jurisdiction, are mandatorily applicable to the Share Exchange or to matters arising
under or in connection with this Agreement, this Agreement shall be governed by and construed in
accordance with the laws of the State of Texas, U.S.A. without regard to its rules of conflict of
laws.
6.4 COUNTERPARTS
This Agreement may be executed by the parties hereto in separate counterparts, including
facsimile or .pdf documents, each of which when so executed and delivered shall be an original, but
all such counterparts shall together constitute one and the same instrument. Each counterpart may
consist of a number of copies hereof each signed by less than all, but together signed by all of
the parties hereto.
6.5 HEADINGS
Headings of the Sections of this Agreement are for the convenience of the parties only and
shall be given no substantive or interpretative effect whatsoever.
6.6 SEVERABILITY
Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction
shall, as to that jurisdiction, be ineffective to the extent of such invalidity or unenforceability
without rendering invalid or unenforceable the remaining terms and provisions of this Agreement or
affecting the validity or enforceability of any of the terms or provisions of this Agreement in any
other jurisdiction. If any provision of this Agreement is so broad as to be unenforceable, the
provision shall be interpreted to be only so broad as is enforceable.
(Remainder of page intentionally left blank)
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The parties have executed and delivered this Agreement as of the date indicated in the first
sentence of this Agreement.
| XXXXXXXXXXX INTERNATIONAL LTD., a company incorporated under the laws of Bermuda |
||||||
| By: | /s/ XXXXXXX X. DUROC-XXXXXX | |||||
| Name: Xxxxxxx X. Duroc-Xxxxxx Title: Chief Executive Officer |
||||||
| XXXXXXXXXXX INTERNATIONAL LTD., a Swiss joint-stock corporation |
||||||
| By: | /s/ XXXX X. XXXXXX | |||||
| Name: Xxxx X. Xxxxxx Title: Authorized Signatory |
||||||
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EXHIBIT A
Delaware Stock Plans
1. Xxxxxxxxxxx International, Inc. Executive Deferred Compensation Stock Ownership Plan
2. Xxxxxxxxxxx International, Inc. Foreign Executive Deferred Compensation Stock Plan
3. Xxxxxxxxxxx International, Inc. 1998 Employee Stock Option Plan
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EXHIBIT B
Bermuda Stock Plans
1. Xxxxxxxxxxx International Ltd. Deferred Compensation Plan for Non-Employee Directors
2. Xxxxxxxxxxx International Ltd. 2006 Omnibus Incentive Plan
3. Xxxxxxxxxxx International Ltd. Restricted Share Plan
4. Stock Option Agreement dated September 8, 1998, as amended, between Xxxxxxxxxxx International Ltd. and each of Xxxxxxx X. Xxxxx, Xxxxxxx X. Xxxxxxxx and Xxxxxx Xxxxxxx.
5. Stock Option Agreement dated July 5, 2000 between Xxxxxxxxxxx International Ltd. and each of Xxxxx X. Xxxxxxx, Xxxxxxx X. Xxxxx, Xxxxxxx X. Xxxxxxxx, Xxxxxx Xxxxxxx and Xxxxxx X. Rayne.
6. Stock Option Agreement dated September 26, 2001 between Xxxxxxxxxxx International Ltd. and each of Xxxxx X. Xxxxxxx, Xxxxxxx X. Xxxxx, Xxxxxxx X. Xxxxxxxx, Xxxxxx Xxxxxxx and Xxxxxx X. Rayne.
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