4.750% NOTES DUE 2010 FIRST SUPPLEMENTAL INDENTURE among BAXTER FINCO B.V., as Issuer and BAXTER INTERNATIONAL INC., as Guarantor and J.P. MORGAN TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee Dated as of October 5, 2005
Exhibit 4.2
4.750% NOTES DUE 2010
among
XXXXXX XXXXX B.V.,
as Issuer
and
XXXXXX INTERNATIONAL INC.,
as Guarantor
and
X.X. XXXXXX TRUST COMPANY, NATIONAL ASSOCIATION,
as Trustee
Dated as of October 5, 2005
TABLE OF CONTENTS
| Page | ||||||
ARTICLE 1 |
||||||
| Definitions | ||||||
Section 1.01.
|
Definition of Terms. | 1 | ||||
| ARTICLE 2 | ||||||
| The Notes | ||||||
Section 2.01.
|
Designation. | 4 | ||||
Section 2.02.
|
Principal Amount; Series Treatment | 4 | ||||
Section 2.03.
|
Maturity. | 4 | ||||
Section 2.04.
|
Interest; Additional Amounts | 5 | ||||
Section 2.05.
|
Form of Notes and Guarantee | 5 | ||||
Section 2.06.
|
Restrictive Legends | 6 | ||||
Section 2.07.
|
Transfer Restrictions | 7 | ||||
Section 2.08.
|
Transfers and Exchanges | 8 | ||||
Section 2.09.
|
Additional Interest | 8 | ||||
| ARTICLE 3 | ||||||
| Redemption Of The Notes | ||||||
Section 3.01.
|
Optional Redemption by Company | 8 | ||||
| ARTICLE 4 | ||||||
| Execution Of The Notes | ||||||
Section 4.01.
|
Execution; Certificates | 9 | ||||
| ARTICLE 5 | ||||||
| Miscellaneous | ||||||
Section 5.01.
|
No Resales by Affiliates | 9 | ||||
Section 5.02.
|
Ratification of Indenture | 9 | ||||
Section 5.03.
|
Trustee Not Responsible for Recitals | 9 | ||||
Section 5.04.
|
Governing Law | 9 | ||||
Section 5.05.
|
Separability | 9 | ||||
Section 5.06.
|
Counterparts | 9 | ||||
-i-
FIRST SUPPLEMENTAL INDENTURE, dated as of October 5, 2005 (the “Supplemental
Indenture”), among Xxxxxx Xxxxx B.V., a private company with limited liability organized under
the laws of The Netherlands (the “Company”), Xxxxxx International Inc., a Delaware
corporation and indirect parent company of the Company (the “Guarantor”), and X.X. Xxxxxx
Trust Company, National Association, a national banking association, as Trustee, under the
Indenture, dated as of October 5, 2005 (the “Indenture”), among the Company, the Guarantor
and the Trustee.
ARTICLE 1
Definitions
Section 1.01. Definition of Terms.
Unless the context otherwise requires:
(a) a term defined in the Indenture has the same meaning when used in this Supplemental
Indenture unless the definition of such term is amended and supplemented pursuant to this
Supplemental Indenture;
(b) a term defined anywhere in this Supplemental Indenture has the same meaning throughout;
(c) the singular includes the plural and vice versa;
(d) a reference to a Section or Article is to a Section or Article of this Supplemental
Indenture;
(e) headings are for convenience of reference only and do not affect interpretation;
(f) the following terms have the meanings given to them in this Section 1.01(f):
“Additional Interest” means Additional Interest as defined in the Registration Rights
Agreement.
“Closing Date” means October 5, 2005.
“Clearstream” means Clearstream Banking SA.
“Company” shall have the meaning set forth in the first paragraph hereof.
“Depositary” means the clearing agency registered under the Exchange Act that is
designated to act as the Depositary for the Global Notes. The Depository Trust Company shall be
the initial Depositary, until a successor shall have been appointed and become such pursuant to the
applicable provisions of this Indenture, and thereafter, “Depositary” shall mean or include such
successor.
“Euroclear” means Euroclear Bank S.A./N.V., and its successors or assigns, as operator
of the Euroclear system.
“Exchange Guarantee” means the guarantee by the Guarantor of the Company’s obligations
under the Exchange Notes containing terms identical in all material respects to the Initial
Guarantee.
“Exchange Offer” means the exchange offer by the Company of the Exchange Notes for the
Initial Notes and the exchange offer by the Guarantor of the Exchange Guarantee for the Initial
Guarantee, in each case pursuant to the Registration Rights Agreement.
“Exchange Offer Registration Statement” means a registration statement relating to an
Exchange Offer as provided for, and in accordance with, the Registration Rights Agreement,
including the prospectus contained therein, all exhibits thereto and all material incorporated by
reference therein.
2
“Exchange Notes” means the Notes of the Company to be offered to Holders in exchange
for the Initial Notes pursuant to the Exchange Offer or otherwise pursuant to a Registration of the
Exchange Notes containing terms identical to the Notes for which they are exchanged (except that
(i) interest thereon shall accrue from the last date on which interest was paid on the
corresponding series of Notes or, if no such interest has been paid, from the first date that the
corresponding series of Notes was originally issued under the Indenture as supplemented by this
Supplemental Indenture, (ii) the provisions relating to Additional Interest (other than any
Additional Interest accrued through that date of issuance of such Exchange Notes) will be
eliminated and (iii) the Exchange Notes will be registered under the Securities Act and will not be
subject to transfer restrictions or bear the Restricted Legend).
“Global Note” shall have the meaning set forth in Section 2.05(b).
“Guarantor” shall have the meaning set forth in the first paragraph hereof.
“Initial Guarantee” means the Parent Guarantee issued by the Guarantor in respect of
any Initial Notes.
“Initial Notes” means (i) all Notes issued on the first date that Notes were
originally issued under this Supplemental Indenture, (ii) any additional Notes issued under
Section 2.02 in any offering not registered under the Securities Act and (iii) any Notes
issued in replacement therefor, but not including any Exchange Notes issued in exchange therefor.
“Notes” shall have the meaning set forth in the recitals above and shall include any
Global Note.
“Offshore Global Note” shall have the meaning set forth in Section 2.05(b)
hereof.
“Registration” means a registered exchange offer for the Initial Notes and the Initial
Guarantee by the Company and the Guarantor or other registration of the Initial Notes and the
Initial Guarantee under the Securities Act pursuant to and in accordance with the terms of the
Registration Rights Agreement.
“Registration Rights Agreement” means the Registration Rights Agreement, dated as of
October 5, 2005, among the Company, the Guarantor and Deutsche Bank Securities Inc., Xxxxxxx, Xxxxx
& Co., ABN AMRO Incorporated, BNP Paribas Securities Corp. and Wachovia Capital Markets, LLC.
“Registration Statement” means the Registration Statement pursuant to and as defined
in the Registration Rights Agreement.
“Regulation S” means Regulation S under the Securities Act.
“Regulation S Certificate” means a certificate substantially in the form of
Exhibit C hereto.
“Restricted Legend” means the “restricted legends” referred to in Section
2.06(a) with respect to the U.S. Global Note and the Offshore Global Note.
3
“Rule 144A” means Rule 144A under the Securities Act.
“Rule 144A Certificate” means (i) a certificate substantially in the form of
Exhibit B hereto or (ii) a written certification addressed to the Company and the Trustee
to the effect that the Person making such certification (x) is acquiring such Note (or beneficial
interest) for its own account or one or more accounts with respect to which it exercises sole
investment discretion and that it and each such account is a qualified institutional buyer within
the meaning of Rule 144A, (y) is aware that the transfer to it or exchange, as applicable, is being
made in reliance upon the exemption from the provisions of Section 5 of the Securities Act provided
by Rule 144A and (z) acknowledges that it has received such information regarding the Company as it
has requested pursuant to Rule 144A(d)(4) or has determined not to request such information.
“U.S. Global Note” shall have the meaning set forth in Section 2.05(b) hereof.
ARTICLE 2
The Notes
Section 2.01. Designation.
The Company hereby establishes a Rule 144A Guaranteed Series of Securities designated the
“4.750% Notes due 2010” for issuance under the Indenture.
Section 2.02. Principal Amount; Series Treatment.
(a) The Notes shall be initially limited to an aggregate principal amount of $500,000,000.
The Company may, from time to time, without the consent of the Holders of the outstanding Notes,
issue additional Notes, so that such additional Notes and the outstanding Notes shall be
consolidated together and form a single series of Securities under the Indenture as supplemented by
this Supplemental Indenture.
(b) Any additional Notes issued under Section 2.02(a) shall have the same terms in all
respects as the corresponding series of Notes, except that interest will accrue on the additional
Notes from the most recent date to which interest has been paid on the Notes of such series (other
than the additional Notes) or if no interest has been paid on the Outstanding Notes of such series
from the first date that the Outstanding Notes were originally issued under the Indenture, as
supplemented by this Supplemental Indenture.
(c) For all purposes of the Indenture and this Supplemental Indenture, all Notes, whether
Initial Notes, Exchange Notes or additional Notes issued under Section 2.02(a), shall
constitute one series of Securities and shall vote together as one series of Securities.
(d) The Notes shall be issued in minimum denominations of $100,000 and integral multiples of
$1,000 in excess thereof.
Section 2.03. Maturity.
The Notes will become due and payable on October 15, 2010.
4
Section 2.04. Interest; Additional Amounts. The Notes will bear interest at the rate
of 4.750% per annum from October 5, 2005 until the principal thereof becomes due and payable or to
the date of redemption (if any) of the Notes, such interest to be payable semi-annually on April 15
and October 15 of each year, commencing, in the case of the Initial Notes or any additional Notes
issued prior to such date, on April 15, 2006. Additional Amounts on the Notes shall be payable
subject to the terms and conditions set forth in the form of Exhibit A hereto.
Section 2.05. Form of Notes and the Parent Guarantee.
(a) The Notes shall contain the terms set forth in, and shall be substantially in the form of,
Exhibit A hereto, provided that Exchange Notes (i) shall contain the alternative ninth
paragraph appearing on the reverse of the Notes as set forth on Exhibit A and (ii) shall
not contain the Restricted Legend or the eighth paragraph appearing on the reverse of the Notes as
set forth on Exhibit A. The terms and provisions contained in the form of Notes set forth
in Exhibit A shall constitute, and are hereby expressly made, a part of the Indenture, as
supplemented by this Supplemental Indenture.
Any of the Notes may have such letters, numbers or other marks of identification and such
notations, legends, endorsements or changes as the Authorized Officers executing the same may
approve (execution thereof to be conclusive evidence of such approval) and as are not inconsistent
with the provisions of the Indenture, as supplemented by this Supplemental Indenture, or as may be
required by the Depositary or as may be required for the Initial Notes to be tradeable on any other
market developed for trading of securities pursuant to Rule 144A or Regulation S or as may be
required to comply with any applicable law or with any rule or regulation made pursuant thereto or
with any rule or regulation of any securities exchange or automated quotation system on which the
Notes may be listed, or to conform to usage, or to indicate any special limitations or restrictions
to which any particular Notes are subject.
(b) So long as the Notes are eligible for book-entry settlement with the Depositary, or unless
otherwise required by law, or otherwise contemplated herein, all of the Notes shall be represented
by one or more Notes in global form registered in the name of the Depositary or the nominee of the
Depositary.
Initial Notes offered and sold in reliance on Rule 144A shall be issued initially in the form
of one or more permanent Global Securities in registered form, substantially in the form set forth
in Exhibit A (the “U.S. Global Notes”), registered in the name of the nominee of
the Depositary, deposited with the Trustee, as custodian for the Depositary, duly executed by the
Company and authenticated by the Trustee as hereinafter provided. The aggregate principal amount
of the U.S. Global Notes may from time to time be increased or decreased by adjustments made on the
records of the Trustee, as custodian for the Depositary or its nominee, in accordance with the
instructions given by the Holder thereof, as hereinafter provided.
Initial Notes offered and sold in offshore transactions in reliance on Regulation S shall be
issued initially in the form of one or more permanent Global Securities in registered form
substantially in the form set forth in Exhibit A (the “Offshore Global Notes”),
registered in the name of the nominee of the Depositary, deposited with the Trustee, as custodian
for the Depositary, duly executed by the Company and authenticated by the Trustee as hereinafter
5
provided. The aggregate principal amount of the Offshore Global Notes may from time to time
be increased or decreased by adjustments made on the records of the Trustee, as custodian for the
Depositary or its nominee, as hereinafter provided.
The U.S. Global Notes and the Offshore Global Notes are collectively referred to herein as the
“Global Notes.” The transfer and exchange of beneficial interests in any such Global Notes
shall be effected through the Depositary in accordance with the Indenture and the applicable
procedures of the Depositary. Except as provided in the Indenture, beneficial owners of a Global
Note shall not be entitled to have certificates registered in their names, will not receive or be
entitled to receive physical delivery of certificates in definitive form and will not be considered
Holders of such Global Note.
Any Global Note shall represent such of the Outstanding Notes as shall be specified therein
and shall provide that it shall represent the aggregate amount of Outstanding Notes from time to
time endorsed thereon and that the aggregate amount of Outstanding Notes represented thereby may
from time to time be increased or reduced to reflect redemptions, transfers or exchanges permitted
hereby. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the
amount of outstanding Notes represented thereby shall be made by the Trustee in such manner and
upon instructions given by the Holder of such Notes in accordance with the Indenture and this
Supplemental Indenture. Payment of principal of and interest and premium, if any, on any Global
Note shall be made to the Holder of such Note.
(c) Each Note, including any Global Note, shall have a Parent Guarantee in the form of
Exhibit D endorsed thereon.
Section 2.06. Restrictive Legends. (a) Except as otherwise provided in paragraph (b)
below, each U.S. Global Note and each Offshore Global Note shall bear the restricted legends (the
“Restricted Legends”) as set forth in the form of Exhibit A hereto on the face
thereof.
(b) In the case that (i) the Company determines (upon the advice of counsel and such other
certifications and evidence as the Company may reasonably require) that any Note is eligible for
resale pursuant to Rule 144(k) under the Securities Act (or a successor provision) and that the
Restricted Legend is no longer necessary or appropriate in order to ensure that subsequent
transfers of such Note (or a beneficial interest therein) are effected in compliance with the
Securities Act, or (ii) an Initial Note is (x) sold pursuant to an effective registration statement
under the Securities Act, pursuant to the Registration Rights Agreement or otherwise, or (y)
exchanged for an Exchange Note, the Company may instruct the Trustee to cancel such Note and issue
to the Holder thereof (or to its transferee) a new Note of like tenor and amount, registered in the
name of the Holder thereof (or its transferee), that does not bear the Restricted Legend, and the
Trustee will comply with such instruction. If a Note to be reissued under this Section
2.06(b) without a Restricted Legend is represented by a Global Note bearing the Restricted
Legend, the principal amount of the legended Global Note shall be reduced by the principal amount
of the Note to be reissued without the Restricted Legend and the principal amount of a Global Note
without the Restricted Legend of the appropriate series of Securities shall be increased by an
equal principal amount. If a Global Note without the Restricted Legend of the appropriate series
of Securities is not then outstanding, the Company shall execute and the
6
Trustee shall authenticate and deliver a Global Note of the appropriate series of Securities
without the Restricted Legend to the Depositary.
Section 2.07. Transfer Restrictions. (a) By its acceptance of any Note bearing the
Restricted Legend, each Holder of such a Note acknowledges the restrictions on transfer of such
Note set forth in this Supplemental Indenture and in the Restricted Legend and agrees that it will
transfer such Note only as provided in this Supplemental Indenture and the Restricted Legend. The
Company and the Trustee as Security Registrar for the Notes shall not register a transfer of any
Note unless such transfer complies with the restrictions on transfer of such Note set forth in this
Supplemental Indenture and the Restricted Legend. In connection with any transfer of Notes, each
Holder agrees by its acceptance of the Notes to furnish the Trustee as Security Registrar for the
Notes or the Company such certifications, legal opinions or other information as either of them may
reasonably require to confirm that such transfer is being made pursuant to an exemption from, or a
transaction not subject to, the registration requirements of the Securities Act; provided that the
Trustee shall not be required to determine (but may rely on a determination made by the Company
with respect to) the sufficiency of any such certifications, legal opinions or other information.
The transfer or exchange of a beneficial interest in an Offshore Global Note for a beneficial
interest in a U.S. Global Note may only be made upon receipt by the Trustee of a duly completed
Rule 144A Certificate.
The transfer or exchange of a beneficial interest in a U.S. Global Note for a beneficial
interest in an Offshore Global Note may only be made upon receipt by the Trustee of a duly
completed Registration S Certificate.
During the 40–day “distribution compliance period” within the meaning of Regulation S,
beneficial interests in an Offshore Global Note shall be held through the Depositary only through
Euroclear and Clearstream, and their respective direct and indirect participants.
The Trustee shall retain copies of all letters, notices and other written communications
received pursuant to the Indenture or this Section 2.07(a). The Company shall have the
right to inspect and make copies of all such letters, notices or other written communications at
any reasonable time upon the giving of reasonable written notice to the Trustee.
The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance
with any restrictions on transfer imposed under the Indenture, this Supplemental Indenture or under
applicable law with respect to any transfer of any interest in any Note (including any transfers
between or among members of, or participants in, the Depositary or beneficial owners of interests
in any Global Note) other than to require delivery of such certificates and other documentation or
evidence as are expressly required by, and to do so if and when expressly required by the terms of,
the Indenture, as supplemented by this Supplemental Indenture, and to examine the same to determine
substantial compliance as to form with the express requirements hereof.
(b) The following provisions shall apply only to Global Notes:
7
(i) Each Global Note authenticated under this Supplemental Indenture shall be
registered in the name of the Depositary or a nominee thereof and delivered to such
Depositary or a nominee thereof or Trustee if the Trustee is acting as custodian for the
Depositary or its nominee with respect to such Global Note, and each such Global Note shall
constitute a single Note for all purposes of the Indenture and this Supplemental Indenture.
(ii) Notwithstanding any other provision in this Supplemental Indenture, no Global Note
may be exchanged in whole or in part for Notes registered, and no transfer of a Global Note
in whole or in part may be registered, in the name of any Person other than the Depositary
or a nominee thereof except as provided in Section 3.05 of the Indenture. Any Note issued
in exchange for a Global Note or any portion thereof shall be a Global Note; provided that
any such Note so issued that is registered in the name of a Person other than the Depositary
or a nominee thereof shall not be a Global Note.
(iii) Securities issued in exchange for a Global Note or any portion thereof pursuant
to clause (ii) above shall be issued pursuant to Section 3.05 of the Indenture.
(iv) At such time as all interests in a Global Note have been redeemed, repurchased,
converted, canceled or exchanged for Notes in certificated form, such Global Note shall,
upon receipt thereof, be canceled by the Trustee in accordance with standing procedures and
instructions existing between the Depositary and the Trustee. At any time prior to such
cancellation, if any interest in a Global Note is redeemed, repurchased, converted, canceled
or exchanged for Notes in certificated form, the principal amount of such Global Note shall,
in accordance with the standing procedures and instructions existing between the Depositary
and the Trustee, be appropriately reduced, and an endorsement shall be made on such Global
Note, by the Trustee, at the direction of the Trustee, to reflect such reduction.
Section 2.08. Transfers and Exchanges. The Notes shall be transferred and exchanged
by the Holders thereof and the Trustee in accordance with the terms and conditions set forth in
Section 3.05 the Indenture.
Section 2.09. Additional Interest.
If a Registration Default (as defined in the Registration Rights Agreement) occurs with
respect to a series of Notes, the interest rate borne by the Notes of such series shall be
increased as provided in the Registration Rights Agreement.
ARTICLE 3
Redemption Of The Notes
Section 3.01. Optional Redemption by Company. The Notes may be redeemed at the option
of the Company on the terms and conditions set forth in the form of Note set forth as Exhibit
A.
ARTICLE 4
Execution Of The Notes
8
Section 4.01. Execution; Certificates. The Notes and any Officers’ Certificate to be
delivered under the Indenture in connection with the authentication and delivery of the Notes shall
be executed and delivered as set forth in the Indenture.
ARTICLE 5
Miscellaneous
Section 5.01. No Resales by Affiliates. Any Initial Note that, prior to the
expiration of the holding period applicable to sales thereof under Rule 144(k) under the Securities
Act (or any successor provision), is purchased or owned by the Company, the Guarantor or any
affiliate thereof (within the meaning of Rule 144) may not be resold by the Company, the Guarantor
or such affiliate unless registered under the Securities Act or resold pursuant to an exemption
from the registration requirements of the Securities Act in a transaction which results in such
Initial Note no longer being “restricted securities” (as defined under Rule 144).
Section 5.02. Ratification of Indenture.
The Indenture, as supplemented by this Supplemental Indenture, is in all respects ratified and
confirmed, and this Supplemental Indenture shall be deemed part of the Indenture in the manner and
to the extent herein and therein provided.
Section 5.03. Trustee Not Responsible for Recitals.
The recitals herein contained are made by the Company and the Guarantor and not by the
Trustee, and the Trustee assumes no responsibility for the correctness thereof. The Trustee makes
no representation as to the validity or sufficiency of this Supplemental Indenture.
Section 5.04. Governing Law.
This Supplemental Indenture, the Notes and any Parent Guarantee shall be governed by and
construed in accordance with the laws of the State of New York, as applied to contracts made and
performed within the State of New York, without regards to principles of conflicts of law.
Section 5.05. Separability.
In case any one or more of the provisions contained in this Supplemental Indenture or in the
Notes shall for any reason be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provisions of this
Supplemental Indenture or of the Notes, but this Supplemental Indenture and the Notes shall be
construed as if such invalid or illegal or unenforceable provision had never been contained herein
or therein.
Section 5.06. Counterparts.
This Supplemental Indenture may be executed in any number of counterparts each of which shall
be an original; but such counterparts shall together constitute but one and the same instrument.
9
IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental Indenture to be
duly executed as of the date first above written.
| XXXXXX XXXXX B. V. | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| XXXXXX INTERNATIONAL INC. | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| X. X. XXXXXX TRUST COMPANY, NATIONAL ASSOCIATION | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
EXHIBIT A
[FACE OF NOTE]
[Unless and until a Security is exchanged for an Exchange Note or sold in connection with an
effective Registration Statement pursuant to the Registration Rights Agreement, the U.S. Global
Notes shall bear the restricted legend set forth below on the face thereof :]
[THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), OR ANY STATE SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THIS
SECURITY, AGREES FOR THE BENEFIT OF XXXXXX XXXXX B.V. THAT (A) THIS SECURITY MAY NOT BE
OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED OTHER THAN (1) TO XXXXXX XXXXX B.V., (2)
IN A TRANSACTION ENTITLED TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT (IF AVAILABLE), (3) SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT
TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO A PERSON WHOM THE SELLER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A PURCHASING FOR
ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS
GIVEN THAT THE OFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE
l44A (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON
THE REVERSE OF THIS SECURITY), (4) OUTSIDE THE UNITED STATES IN A TRANSACTION MEETING THE
REQUIREMENTS OF REGULATION S UNDER THE SECURITIES ACT, (5) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT, SUBJECT, IN THE CASE OF CLAUSES (2),
(4) OR (5), TO THE RECEIPT BY XXXXXX XXXXX B.V. OF AN OPINION OF COUNSEL OR SUCH OTHER
EVIDENCE ACCEPTABLE TO XXXXXX XXXXX B.V. THAT SUCH OFFER, RESALE, PLEDGE OR TRANSFER IS
EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OR (6) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT AND THAT (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS
REQUIRED TO, NOTIFY ANY PURCHASER OF THIS SECURITY OF THE RESALE RESTRICTIONS REFERRED TO
HEREIN AND DELIVER TO THE TRANSFEREE (OTHER THAN A QUALIFIED INSTITUTIONAL BUYER) PRIOR TO
THE SALE A COPY OF THE TRANSFER RESTRICTIONS APPLICABLE HERETO (COPIES OF WHICH MAY BE
OBTAINED FROM THE TRUSTEE).
THE HOLDER OF THIS SECURITY IS ENTITLED TO THE BENEFITS OF A REGISTRATION RIGHTS AGREEMENT
(AS SUCH TERM IS DEFINED IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF) AND, BY ITS
ACCEPTANCE HEREOF, AGREES TO BE BOUND BY AND TO COMPLY WITH THE PROVISIONS OF SUCH
REGISTRATION RIGHTS AGREEMENT.]
A-1
[Unless and until a Security is exchanged for an Exchange Note or sold in connection with an
effective Registration Statement pursuant to the Registration Rights Agreement, the Offshore Global
Notes shall bear the following restricted legend on the face thereof until at least the 41st day
after the Closing Date:]
[THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), OR ANY STATE SECURITIES LAWS. THE HOLDER HEREOF, BY ACQUIRING THIS
SECURITY, AGREES FOR XXXXXX XXXXX B.V. THAT NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE OFFERED, RESOLD, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF EXCEPT IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS.
ANY OFFER, SALE, TRANSFER, PLEDGE, ENCUMBRANCE OR OTHER DISPOSITION OF THIS SECURITY OR ANY
INTEREST OR PARTICIPATION HEREIN WITHIN FORTY DAYS AFTER THE LATER OF THE COMMENCEMENT OF
THE OFFERING OF THIS SECURITY OR THE DATE OF CLOSING OF SUCH OFFERING MAY BE MADE ONLY IN
COMPLIANCE WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT OR PURSUANT TO
RULE 144A UNDER THE SECURITIES ACT.]
[Each Global Note shall bear the following legend:]
[THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED
TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY IS
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR
ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND, UNLESS AND
UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE REGISTERED FORM, THIS
SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO THE NOMINEE OF THE
DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR TO A
NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
Unless this certificate is presented by an authorized representative of The Depository Trust
Company, a New York corporation (“DTC”) to the Company or its agent for registration of transfer,
exchange or payment, and any certificate issued is registered in the name of Cede & Co. or such
other name as requested by an authorized representative of DTC (and any payment is made to Cede &
Co. or to such other entity as is required by an authorized representative of DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the
registered owner hereof, Cede & Co., has an interest herein.]
A-2
CUSIP No.
ISIN
ISIN
XXXXXX XXXXX B.V.
4.750% Note due 2010
Guaranteed by Xxxxxx International Inc.
| No. A-1 | $[ ] |
Xxxxxx Xxxxx B.V., a private company with limited liability organized under the laws of The
Netherlands (the “Company”), for value received, hereby promises to pay to Cede & Co. or
registered assigns, at the office or agency of the Company in the City of New York, the principal
sum of [ ] DOLLARS ($[ ]) on October 15, 2010, in such coin or currency of the
United States of America as at the time of payment shall be legal tender for the payment of public
and private debts, and to pay interest, semiannually on April 15 and October 15 of each year,
commencing on April 15, 2006, on said principal sum at said office or agency, in like coin or
currency, at the rate per annum specified in the title of this Note, from the April 15 or the
October 15, as the case may be, next preceding the date of this Note to which interest has been
paid, unless the date hereof is a date to which interest has been paid, in which case from the date
of this Note, or unless no interest has been paid on these Notes, in which case from October 5,
2005 until payment of said principal sum has been made or duly provided for; provided, that payment
of interest may be made at the option of the Company by check mailed to the address of the person
entitled thereto as such address shall appear on the Security Register or by wire transfer to an
account maintained by the payee with a bank located in the United States.
Notwithstanding the foregoing, if the date hereof is after the 1st day of October or April, as
the case may be, and before the following April 15 or October 15, as the case may be, this Note
shall bear interest from such April 15 or October 15; provided, that if the Company shall default
in the payment of interest due on such April 15 or October 15, then this Note shall bear interest
from the next preceding April 15 or October 15, to which interest has been paid or, if no interest
has been paid on these Notes, from October 5, 2005. The interest so payable on any April 15 or
October 15, will, subject to certain exceptions provided in the Indenture referred to on the
reverse hereof, be paid to the person in whose name this Note is registered at the close of
business on the April 1 or October 1, as the case may be, preceding such April 15 or October 15.
Interest on this Note will be calculated on the basis of a 360-day year of twelve 30-day months.
Reference is made to the further provisions of this Note set forth on the reverse hereof.
Such further provisions shall for all purposes have the same effect as though fully set forth at
this place.
This Note shall not be valid or become obligatory for any purpose until the certificate of
authentication hereon shall have been signed by the Trustee under the Indenture referred to on the
reverse hereof.
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Dated:
| XXXXXX XXXXX B.V. | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
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(FORM OF CERTIFICATION OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein issued under the
within-mentioned Indenture.
X.X. XXXXXX TRUST COMPANY,
NATIONAL ASSOCIATION
as Trustee
NATIONAL ASSOCIATION
as Trustee
By:
Authorized Signatory
Authorized Signatory
Dated:
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REVERSE OF NOTE
XXXXXX XXXXX B.V.
4.750% Note due 2010
Guaranteed by Xxxxxx International Inc.
This Note is one of a duly authorized issue of Securities of the Company of the series
hereinafter specified, all issued or to be issued under and pursuant to an Indenture, dated as of
October 5, 2005, as supplemented by the First Supplemental Indenture, dated as of October 5, 2005
(both together herein called the “Indenture”), among the Company, Xxxxxx International
Inc., a Delaware corporation and indirect parent company of the Company (the “Guarantor”),
and X.X. Xxxxxx Trust Company, National Association, a national banking association, as trustee
(herein called the “Trustee” which term includes any successor Trustee under the
Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for
a description of the rights, limitations of rights, obligations, duties and immunities thereunder
of the Trustee, the Company, the Guarantor and the Holders of the Securities. This Note is one of
a Guaranteed Series of Securities of the Company designated as the 4.750% Notes due 2010 (the
“Notes”), initially limited in aggregate principal amount of $500,000,000, subject to the
issuance of additional Notes as provided in the Indenture. Terms used but not defined herein shall
have the respective meanings set forth in the Indenture.
If any interest payment date, maturity date or redemption date of this Note falls on a day
that is not a Business Day, payment will be made on the next succeeding Business Day, and no
interest will accrue for the period from and after the interest payment date, maturity date or
redemption date, as the case may be, to the next succeeding Business Day. As used in this Note,
the term “Business Day” means any day, other than a Saturday or Sunday, that is neither a
legal holiday nor a day on which commercial banks are authorized or required by law, regulation or
executive order to close in the City of New York.
To secure the due and punctual payment of principal, premium, if any, and interest on, if any,
and any Additional Amounts payable with respect to, this Note by the Company under the Indenture,
when and as the same shall become due and payable, whether at maturity, upon acceleration, by call
for redemption or otherwise in accordance with the terms of the Indenture, the Guarantor has
unconditionally and irrevocably guaranteed this Note pursuant to the terms of the Parent Guarantee
endorsed hereon (the “Parent Guarantee”) and pursuant to the terms set forth in the
Indenture.
The Indenture contains provisions for the defeasance at any time of the entire indebtedness of
the Notes and the Parent Guarantee or certain covenants set forth in the Indenture applicable to
the Notes upon compliance by the Company or the Guarantor of certain conditions set forth therein,
which provisions apply to this Note.
This Note is redeemable in whole or in part, at the option of the Company, at any time (an
“Optional Redemption”), at a redemption price (the “Optional Redemption Price”)
equal to the greater of:
A-6
(i) 100% of the principal amount of the Notes to be redeemed plus accrued and unpaid
interest thereon to the redemption date, or
(ii) the sum of the present values of the remaining scheduled payments of principal and
interest thereon discounted to the redemption date on a semiannual basis (assuming a 360-day
year consisting of twelve 30-day months) at the Treasury Rate plus 12.5 basis points, plus
accrued interest thereon to the date of redemption.
“Treasury Rate” means, with respect to any redemption date, the rate per annum equal
to the semiannual equivalent yield to maturity of the Comparable Treasury Issue, assuming a price
for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such redemption date.
“Comparable Treasury Issue” means the United States Treasury security selected by an
Independent Investment Banker as having a maturity comparable to the remaining term of the Notes to
be redeemed that would be utilized, at the time of selection and in accordance with customary
financial practice, in pricing new issues of corporate debt securities of comparable maturity to
the remaining term of the Notes.
“Comparable Treasury Price” means, with respect to any redemption date, (1) the
average of four Reference Treasury Dealer Quotations for such redemption date, after excluding the
highest and lowest such Reference Treasury Dealer Quotations, or (2) if the Company obtains fewer
than four such Reference Treasury Dealer Quotations, the average of all such quotations.
“Independent Investment Banker” means one of the Reference Treasury Dealers appointed
by the Company.
“Reference Treasury Dealers” means (1) Deutsche Bank Securities Inc. and its
successors; provided, however, that if any of the foregoing shall cease to be a primary U.S.
Government securities dealer (“Primary Treasury Dealer”), the Company shall substitute
another nationally recognized investment banking firm that is a Primary Treasury Dealer, and (2) at
the option of the Company, additional Primary Treasury Dealers selected by the Company.
“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury
Dealer and any redemption date, the average, as determined by the Company, of the bid and asked
prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal
amount) quoted in writing to the Company by such Reference Treasury Dealer at 5:00 p.m. New York
time on the third Business Day preceding such redemption date.
Any redemption pursuant to the preceding paragraph will be made upon not less than 30 nor more
than 60 days prior notice before the redemption date to the Holders, at the Optional Redemption
Price. If the Notes are only partially redeemed by the Company pursuant to an Optional Redemption,
the Notes will be redeemed by such method as the Trustee shall deem fair and appropriate and in
accordance with the Indenture. In the event of redemption of this Note in part only, a new Note or
Notes of this series for the unredeemed portion hereof shall be issued in the name of the Holder
hereof upon the cancellation hereof. Unless the Company defaults in payment of the redemption
price, on and after the redemption date interest will cease to accrue on the Notes or portions
thereof called for redemption.
A-7
This Note is redeemable in whole, but not in part, at the option of the Company, at any time
(an “Optional Tax Redemption”), if
(i) the Company would be required to pay Additional Amounts as a result of any change
in the tax laws of The Netherlands that becomes effective on or after the date of issuance
of this Note, or
(ii) as a result of any change in any treaty affecting taxation to which The
Netherlands, or a jurisdiction in which a successor to the Company is organized, is a party
that becomes effective on or after the date of issuance of the Notes, the Guarantor would be
required to deduct or withhold tax on any payment to the Company to enable it to make any
payment of principal or interest,
at a redemption price equal to 100% of the principal amount of the Notes to be redeemed plus
accrued and unpaid interest thereon to the redemption date. Any Optional Tax Redemption pursuant
to the preceding paragraph will be made upon not less than 30 nor more than 60 days prior notice
before the redemption date to the Holders. With respect to clauses (i) and (ii) above, however,
the Company will not be permitted to redeem the Notes if it can avoid either the payment of
Additional Amounts, or deductions or withholding, as the case may be, by using reasonable means
available to it.
[TO BE INCLUDED IN INITIAL NOTES, NOT EXCHANGE NOTES: In the event that a Registration Default
(as defined in the Registration Rights Agreement) occurs, then the Company shall pay Additional
Interest (as defined in the Registration Rights Agreement), in addition to the interest otherwise
due hereon, to the Holder as provided in the Registration Rights Agreement.]
[TO BE INCLUDED IN EXCHANGE NOTES: There shall also be payable in respect of this Note all
Additional Interest (as defined in the Registration Rights Agreement) that may have accrued on the
Note for which this Note was exchanged pursuant to the Exchange Offer, such Additional Interest to
be calculated in accordance with the terms of such Note and payable at the same time and in the
same manner as periodic interest on this Note.]
If an Event of Default, with respect to the Notes shall have occurred and be continuing, the
principal of this Note may be declared due and payable in the manner and with the effect set forth
in the Indenture.
The Indenture contains provisions permitting the Company, the Guarantor and the Trustee, with
the consent of the Holders of not less than a majority in aggregate principal amount of the Notes
at the time Outstanding of each series to be affected to execute supplemental indentures adding any
provisions to or changing in any manner or eliminating any of the provisions of the Indenture or of
any supplemental indenture or modifying in any manner the rights of the Holders of the Notes
subject to the limitations set forth in the Indenture. It is also provided in the Indenture that,
with respect to certain defaults or Events of Default regarding the Securities of any series, the
Holders of a majority in aggregate principal amount of the Securities at the time Outstanding of
such series may on behalf of the Holders of all the Securities of such series waive any such past
default or Event of Default and its consequences. The preceding
A-8
sentence shall not, however, apply to a default in the payment of the principal of or premium,
if any, or interest on, or Additional Amounts with respect to, the Notes. Any such consent or
waiver by the Holder of this Note (unless revoked as provided in the Indenture) shall be conclusive
and binding upon such Holder and upon all future Holders and owners of this Note and any Notes
which may be issued in exchange or substitution herefor, irrespective of whether or not any
notation thereof is made upon this Note or such other Notes.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall
alter or impair the obligations of the Company and the Guarantor, which are absolute and
unconditional, to pay the principal of and any premium and interest on, and any Additional Amounts
with respect to, this Note in the manner and at the respective times herein provided.
The Notes are issuable in registered form without coupons in denominations of $100,000 and any
multiple of $1,000 at the office or agency of the Trustee in the City of New York, and in the
manner and subject to the limitations provided in the Indenture, but without the payment of any
service charge, Notes may be exchanged for a like aggregate principal amount of Notes of other
authorized denominations.
There is no sinking fund for the retirement of the Notes.
Upon due presentment for registration of transfer of this Note at the office or agency of the
Trustee in the City of New York, a new Note or Notes of authorized denominations for an equal
aggregate principal amount will be issued to the transferee in exchange therefor, subject to the
limitations provided in the Indenture, without charge except for any tax or other governmental
charge imposed in connection therewith.
Prior to due presentment for registration or transfer, the Company, the Guarantor, the Trustee
and any agent of the Company, the Guarantor or the Trustee may treat the registered Holder hereof
as the owner of this Note (whether or not this Note shall be overdue), for the purpose of receiving
payment of the principal hereof and premium, if any, and subject to the provisions on the face
hereof, interest hereon, and, any Additional Amounts with respect to, the Notes and for all other
purposes, and neither the Company, the Guarantor nor the Trustee nor any agent of the Company, the
Guarantor or the Trustee shall be affected by any notice to the contrary.
No recourse under or upon any obligation, covenant or agreement contained in the Indenture or
any indenture supplemental thereto or in any Note, or because of any indebtedness evidenced
thereby, shall be had against any past, present or future stockholder, employee, officer or
director, as such, of the Company, the Guarantor, or of any predecessor or successor, either
directly or through the Company, the Guarantor, or any predecessor or successor, under any rule of
law, statute or constitutional provision or by the enforcement of any assessment or by any legal or
equitable proceeding or otherwise, all such liability being expressly waived and released by the
acceptance hereof and as part of the consideration for the issue hereof.
This Note is the senior unsecured obligation of the Company and will rank on a parity with all
other senior unsecured unsubordinated indebtedness of the Company, including any other Securities
issued under the Indenture. The Parent Guarantee is the senior unsecured
A-9
obligation of the Guarantor and will rank equally with all other senior unsecured indebtedness
of the Guarantor.
This Security is a Global Security within the meaning of the Indenture and is registered in
the name of the Depositary or a nominee of the Depositary. This Security is exchangeable for
Securities registered in the name of a person other than the Depositary or its nominee only in the
limited circumstances as permitted by the Indenture and may not be transferred except as a whole by
the Depositary to a nominee of the Depositary or by a nominee of the Depositary to the Depositary
or another nominee of the Depositary.
A-10
[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s), assign(s) and transfer(s)
unto
Insert Taxpayer Identification No.
Please print or typewrite name and address including zip code of assignee
the within Note and all rights thereunder, hereby irrevocably constituting and appointing attorney
to transfer said Note on the books of
the Company with full power of substitution in the premises.
By:
Date:
A-11
[THE FOLLOWING PROVISION TO BE INCLUDED
ON ALL NOTES OTHER THAN EXCHANGE NOTES]
In connection with any transfer of this Note occurring prior to the date which is the earlier
of (i) the date of a registered exchange offer for the Notes or other registration of the Notes
under the Securities Act or (ii) two years (or such lesser period as may be provided in any
amendment to Rule 144(k) under the Securities Act) after the later of the original issuance of this
Note or the last date on which this Note was held by the Company or an affiliate of the Company,
the undersigned confirms that without utilizing any general solicitation or general advertising
that this Note is being transferred in accordance with its terms:
[Check One]
| (1) [ ] | to the Company; or | |||
| (2) [ ] | pursuant to an effective registration statement under the Securities Act of 1933; or | |||
| (3) [ ] | to a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act of 1933) that purchases for its own account or for the account of a qualified institutional buyer to whom notice is given that such transfer is being made in reliance on Rule 144A, in each case pursuant to and in compliance with Rule 144A under the Securities Act of 1933; or | |||
| (4) [ ] | outside the United States in a transaction meeting the requirements of Regulation S under the Securities Act. | |||
| (5) [ ] | pursuant to the exemption from registration provided by Rule 144 under the Securities Act of 1933. |
Unless one of the boxes is checked, the Trustee will refuse to register any of the Notes evidenced
by this certificate in the name of any Person other than the registered holder thereof, provided,
however, that if box (5) is checked, the Trustee may require, prior to registering any such
transfer of the Notes, such legal opinions, certifications and other information as the Company has
reasonably requested to confirm that such transfer is being made pursuant to an exemption from, or
in a transaction not subject to, the registration requirements of the Securities Act of 1933.
| Signature | ||
Signature Guarantee: |
||
Signature must be guaranteed
|
Signature |
Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements
of the Registrar, which requirements include membership or participation in the Security Transfer
Agent Medallion Program (“STAMP”) or such other “signature guarantee
A-12
program” as may be determined by the Registrar in addition to, or in substitution for, STAMP,
all in accordance with the Securities and Exchange Act of 1934, as amended.
A-13
TO BE COMPLETED BY PURCHASER IF (3) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this Note for its own account or
an account with respect to which it exercises sole investment discretion and that it and any such
account is a “qualified institutional buyer” within the meaning of Rule 144A under the Securities
Act of 1933, and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as the undersigned has
requested pursuant to Rule 144A or has determined not to request such information and that it is
aware that the transferor is relying upon the undersigned’s foregoing representations in order to
claim the exemption from registration provided by Rule 144A.
Dated: |
||||||
| NOTICE: To be executed by an | ||||||
| executive officer |
A-14
Schedule I
[Include as Schedule I only for a Global Note]
XXXXXX XXXXX B.V.
4.750% Notes due 2010
Guaranteed by Xxxxxx International Inc.
No.
| Notation Explaining Principal | Authorized Signature of | |||||||||||
| Date | Principal Amount | Amount Recorded | Trustee or Custodian | |||||||||
A-15
EXHIBIT B
Form of Certificate to Be Delivered in
Connection with Transfers Pursuant to Rule 144A
, 200_
X.X. Xxxxxx Trust Company, National Association
000 X. Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Institutional Trust Services
000 X. Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Institutional Trust Services
| Re: | Xxxxxx Xxxxx B.V. (the “Company”) 4.750% Notes due 2010 | |||
| (the “Notes”) |
Dear Sirs:
This Certificate relates to:
[CHECK A OR B AS APPLICABLE.]
| [ ] | A. Our proposed purchase of $___principal amount of Notes issued under the Indenture. | |||
| [ ] | B. Our proposed exchange of $___principal amount of Notes issued under the Indenture for an equal principal amount of Notes to be held by us. |
We and, if applicable, each account for which we are acting in the aggregate owned and
invested more than $100,000,000 in securities of issuers that are not affiliated with us (or such
accounts, if applicable), as of ,200_, which is a date on or since close of our most
recent fiscal year. We and, if applicable, each account for which we are acting, are a qualified
institutional buyer within the meaning of Rule 144A (“Rule 144A”) under the Securities Act of 1933,
as amended (the “Securities Act”). If we are acting on behalf of an account, we exercise sole
investment discretion with respect to such account. We are aware that the transfer of Notes to us,
or such exchange, as applicable, is being made in reliance upon the exemption from the provisions
of Section 5 of the Securities Act provided by Rule 144A. Prior to the date of this Certificate we
have received such information regarding the Company as we have requested pursuant to Rule
144A(d)(4) or have determined not to request such information.
You and the Company are entitled to rely upon this Certificate and are irrevocably authorized
to produce this Certificate or a copy hereof to any interested party in any administrative or legal
proceeding or official inquiry with respect to the matters covered hereby.
Very truly yours,
[Name of Xxxxxx]
[Name of Xxxxxx]
By:
Authorized Signature
Authorized Signature
B-1
EXHIBIT C
Form of Certificate to Be Delivered in
Connection with Transfers Pursuant to Regulation S
, 200_
X.X. Xxxxxx Trust Company, National Association
X.X. Xxxxxx Trust Company, National Association
000 X. Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Institutional Trust Services
Attention:
X.X. Xxxxxx Trust Company, National Association
000 X. Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Institutional Trust Services
Attention:
| Re: | Xxxxxx Xxxxx B.V. (the “Company”) 4.750% Notes due 2010 | |||
| (the “Notes”) |
Dear Sirs:
Terms are used in this Certificate as used in Regulation S (“Regulation S”) under the
Securities Act of 1933, as amended (the “Securities Act”), except as otherwise stated herein.
[CHECK A OR B AS APPLICABLE.]
[ ] A. This Certificate relates to our proposed transfer of $___principal amount of Notes
issued under the Indenture. We hereby certify as follows:
| 2. | Unless the circumstances described in the parenthetical in paragraph 1 above are applicable, either (a) at the time the buy order was originated, the buyer was outside the United States or we and any person acting on our behalf reasonably believed that the buyer was outside the United States or (b) the transaction was executed in, on or through the facilities of a designated offshore securities market, and neither we nor any person acting on our behalf knows that the transaction was pre-arranged with a buyer in the United States. |
| 3. | Neither we, any of our affiliates, nor any person acting on our or their behalf has made any directed selling efforts in the United States with respect to the Notes. |
C-1
| 4. | The proposed transfer of Notes is not part of a plan or scheme to evade the registration requirements of the Securities Act. |
| 5. | If we are a dealer or a person receiving a selling concession, fee or other remuneration in respect of the Notes, and the proposed transfer takes place during the 40–day “distribution compliance period” within the meaning of Regulation S), or we are an officer or director of the Company or a Purchaser (as defined in the Indenture), we certify that the proposed transfer is being made in accordance with the provisions of Rule 904(b) of Regulation S. |
[ ] B. This Certificate relates to our proposed exchange of $___principal amount of Notes
issued under the Indenture for an equal principal amount of Notes to be held by us. We hereby
certify as follows:
| 1. | At the time the offer and sale of the Notes was made to us, either (i) we were not in the United States or (ii) we were excluded from the definition of “U.S. person” pursuant to Rule 902(k)(2)(vi) or the account held by us for which we were acting was excluded from the definition of “U.S. person” pursuant to Rule 902(k)(2)(i) under the circumstances described in Rule 902(h)(3); and we were not a member of an identifiable group of U.S. citizens abroad. | ||
| 2. | Unless the circumstances described in paragraph 1(ii) above are applicable, either (a) at the time our buy order was originated, we were outside the United States or (b) the transaction was executed in, on or through the facilities of a designated offshore securities market and we did not pre-arrange the transaction in the United States. | ||
| 3. | The proposed exchange of Notes is not part of a plan or scheme to evade the registration requirements of the Securities Act. You and the Company are entitled to rely upon this Certificate and are irrevocably authorized to produce this Certificate or a copy hereof to any interested party in any administrative or legal proceeding or official inquiry with respect to the matters covered hereby. |
Very truly yours,
[Name of Transferee]
[Name of Transferee]
By:
Authorized Signature
Authorized Signature
C-2
EXHIBIT D
GUARANTEE
GUARANTEE, dated as of October 5, 2005 of XXXXXX INTERNATIONAL INC., a corporation organized
under the laws of Delaware (the “Guarantor”).
The Guarantor, for value received, hereby agrees as follows for the benefit of the holders of
record (the “Holders”) from time to time of the Securities hereinafter described:
1. The Guarantor irrevocably guarantees payment in full, as and when the same becomes due and
payable (whether at maturity, by declaration of acceleration, call for redemption, or otherwise),
of the principal of, premium, if any, and interest, if any, on, and any Additional Amounts with
respect to, the 4.750% Notes due 2010 (the “Securities”) issued by Xxxxxx Xxxxx B.V., a
private company with limited liability organized under the laws of The Netherlands and an indirect
wholly–owned subsidiary of the Guarantor (the “Issuer”), from time to time pursuant to the
Indenture, dated as of October 5, 2005, as supplemented by the First Supplemental Indenture, dated
as of October 5, 2005, as the same may be amended, supplemented or modified from time to time,
among the Issuer, the Guarantor and X.X. Xxxxxx Trust Company, National Association (collectively,
the “Indenture”).
2. The Guarantor’s obligations under this Guarantee shall be unconditional, irrespective of
the validity or enforceability of any provision of the Indenture or the Securities.
3. This Guarantee is a guaranty of the due and punctual payment (and not merely of collection)
of the principal of, premium, if any, and interest, if any, on, and any Additional Amounts with
respect to, the Securities by the Issuer and shall remain in full force and effect until all
amounts have been validly, finally and irrevocably paid in full, and shall not be affected in any
way by any circumstance or condition whatsoever, including without limitation (i) the absence of
any action to obtain such amounts from the Issuer, (ii) any variation, extension, waiver,
compromise or release of any or all of the obligations of the Issuer under the Indenture or the
Securities or of any collateral security therefor (provided, however, that no such variation,
extension, waiver, compromise or release shall, without the consent of the Guarantor, increase the
principal amount of such Securities, or increase the interest rate thereon, or change any
redemption provisions thereof (including any change to increase any premium payable upon redemption
thereof), or change the stated maturity thereof) or (iii) any change in the existence or structure
of, or the bankruptcy or insolvency of, the Issuer or by any other circumstance (other than by
complete, irrevocable payment) that might otherwise constitute a legal or equitable discharge or
defense of a guarantor or surety. The Guarantor waives all requirements as to diligence,
presentment, demand for payment, protest and notice of any kind with respect to the Indenture and
the Securities.
4. In the event of a default in payment of principal of, or premium, if any, or interest, if
any, on, and any Additional Amounts with respect to, any Securities, the Holders of such Securities
may institute legal proceedings directly against the Guarantor to enforce this Guarantee without
first proceeding against the Issuer.
D-1
5. This Guarantee shall remain in full force and effect until the date upon which the entire
principal of, premium, if any, and interest, if any, on, and any Additional Amounts with respect
to, the Securities have been, or have been deemed pursuant to the provisions of Article XIII of the
Indenture to have been, paid in full or otherwise discharged; provided, however, that this
Guarantee shall be reinstated if at any time any payment by the Issuer of the principal of, or
premium, if any, or interest, if any, on, or any Additional Amounts with respect to, the
Securities, in whole or in part, is rescinded or must otherwise be returned by the Holder upon the
insolvency, bankruptcy or reorganization of the Issuer or otherwise, all as though such payment had
not been made.
6. This Guarantee shall be governed by and construed in accordance with the laws of the State
of New York as applied to contracts made and performed within the State of New York, without regard
to principles of conflicts of laws.
7. (a) The Guarantor hereby irrevocably accepts and submits to the non-exclusive jurisdiction
of the United States federal courts located in the Borough of Manhattan.
(b) The Guarantor hereby irrevocably designates, appoints and empowers CT Corporation System,
000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, as its designee, appointee and agent to receive,
accept and acknowledge for and on its behalf, and its properties, service for any and all legal
process, summons, notices and documents which may be served in any such action, suit or proceeding
brought in the courts listed in Section 7(a) hereof which may be made on such designee,
appointee and agent in accordance with legal procedures prescribed for such courts, with respect to
any action, suit or proceeding in connection with or arising out of this Guarantee. If for any
reason such designee, appointee and agent hereunder shall cease to be available to act as such, the
Guarantor agrees to designate a new designee, appointee and agent in the City of New York on the
terms and for the purposes of this Section 7. The Guarantor further hereby irrevocably
consents and agrees to the service of any and all legal process, summons, notices and documents out
of any of the aforesaid courts in any such action, suit or proceeding by serving a copy thereof
upon the agent for service of process referred to in this Section 7 (whether or not the
appointment of such agent shall for any reason prove to be ineffective or such agent shall accept
or acknowledge such service) or by mailing copies thereof by registered or certified airmail,
postage prepaid, to it at its address specified in or designated pursuant to this Guarantee. The
Guarantor agrees that the failure of any such designee, appointee and agent to give any notice of
such service to the Guarantor shall not impair or affect in any way the validity of such service or
any judgment rendered in any action or proceeding based thereon. Nothing herein shall in any way
be deemed to limit the ability of the Holders of any Securities to serve any such legal process,
summons, notices and documents in any other manner permitted by applicable law or to obtain
jurisdiction over the undersigned or bring actions, suits or proceedings against the undersigned in
such other jurisdictions, and in such other manner, as may be permitted by applicable law. The
Guarantor hereby irrevocably and unconditionally waives any objection which it may now or hereafter
have to the laying of venue of any of the aforesaid actions, suits or proceedings arising out of or
in connection with this Guarantee brought in the courts listed in Section 7(a) and hereby
further irrevocably and unconditionally waives and agrees not to plead or claim in any such court
that any such action, suit or proceeding brought in any such court has been brought in an
inconvenient forum.
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8. The Guarantor shall be subrogated to all rights of the Holders of the Securities against
the Issuer in respect of any amounts paid by the Guarantor on account of such Securities pursuant
to the provisions of this Guarantee or the Indenture; provided, however, that the Guarantor shall
not be entitled to enforce or to receive any payments arising out of, or based upon, such right of
subrogation until the principal of, and premium, if any, and interest, if any, on such Securities
shall have been paid in full.
Dated:
XXXXXX INTERNATIONAL INC.
By:
Name:
Title:
Name:
Title:
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